Bledsoe v. Buffalo Mining Co.
| Docket Number | 22-0272 BLA |
| Decision Date | 06 September 2023 |
| Parties | LAWRENCE GARY BLEDSOE Claimant-Respondent v. BUFFALO MINING COMPANY c/o HEALTHSMART CCS Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Theresa C Timlin, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams &Reynolds) Norton, Virginia for Claimant. Ann B. Rembrandt (Jackson Kelly PLLC), Charleston, West Virginia, for Employer.
Before: GRESH, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals Administrative Law Judge (ALJ) Theresa C Timlin's Decision and Order Awarding Benefits (2020-BLA-05671) rendered on a subsequent claim filed on August 28, 2015,[1] pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).
The ALJ credited Claimant with 23.44 years of underground coal mine employment and found he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Thus she found Claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act,[2] and established a change in an applicable condition of entitlement.[3] 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §725.309. She further found Employer did not rebut the presumption and awarded benefits.
On appeal, Employer argues the ALJ erred in finding Claimant is totally disabled and thus invoked the Section 411(c)(4) presumption. It also argues she erred in finding it did not rebut the presumption.[4] Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), declined to file a response unless requested.
The Benefits Review Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[5] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Assocs., Inc., 380 U.S. 359 (1965).
A miner is totally disabled if he has a pulmonary or respiratory impairment which, standing alone, prevents him from performing his usual coal mine work and comparable gainful work. See 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based upon pulmonary function studies, arterial blood gas studies, evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure, or medical opinions. 20 C.F.R. §718.204(b)(2)(i)-(iv). The ALJ must weigh all relevant supporting evidence against all relevant contrary evidence. See Rafferty v. Jones &Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1198 (1986), aff'd on recon., 9 BLR 1-236 (1987) (en banc). Qualifying evidence in any of the four categories establishes total disability when there is no "contrary probative evidence." 20 C.F.R. §718.204(b)(2).
The ALJ found Claimant established total disability based on the arterial blood gas studies, medical opinions, and evidence as a whole.[6] 20 C.F.R. §718.204(b)(2)(ii), (iv); Decision and Order at 24.
Employer argues the ALJ erred in finding the blood gas study evidence supports total disability. Employer's Brief at 15-16, 28-30. We disagree.
The ALJ considered four blood gas studies dated September 30, 2015, March 1, 2017, May 1, 2019, and August 20, 2019. Director's Exhibit 14; Employer's Exhibit 1; Claimant's Exhibits 1, 2. None of the studies produced qualifying[7] values at rest. Id. However, the September 30, 2015 and the May 1, 2019 studies produced qualifying values during exercise, Director's Exhibit 14; Claimant's Exhibit 1, whereas the March 1, 2017 and August 20, 2019 studies did not include any exercise testing. Employer's Exhibit 1; Claimant's Exhibit 2. The ALJ permissibly assigned controlling weight to the exercise blood gas studies because they are better indicators of Claimant's ability to perform the exertional requirements of his usual coal mine employment. Coen v. Director, OWCP, 7 BLR 1-30, 1-31-32 (1984); Decision and Order at 14. She also found the blood gas study evidence overall supports total disability because all the studies taken during exercise are qualifying, including the most recent exercise study Claimant performed on May 1, 2019. See Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997); Adkins v. Director, OWCP, 958 F.2d 49, 51-52 (4th Cir. 1992); Milburn Colliery v. Hicks, 138 F.3d 524, 533 (4th Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997); Decision and Order at 14.
Employer argues the ALJ erred in relying on the September 30, 2015 blood gas study because she did not address Dr. Zaldivar's explanation that, because the blood sample was not immediately put on ice, this study is not reliable.[8] Employer's Brief at 15-16, citing Employer's Exhibit 1. Employer has not explained why the error it alleges would make a difference, as the ALJ found the blood gas study evidence supports total disability based on the most recent exercise blood gas test, which Claimant performed on May 1, 2019, as part of Dr. Raj's examination. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009); Decision and Order at 14. Thus we affirm her finding the blood gas study evidence supports total disability at 20 C.F.R. §718.204(b)(2)(ii). Decision and Order at 14.
The ALJ considered the medical opinions of Drs. Everhart, Raj, and Green that Claimant is totally disabled and those of Drs Zaldivar and Spagnolo that he is not. Decision and Order at 15-23; Director's Exhibit 14; Claimant's Exhibits 1, 2; Employer's Exhibits 1, 3, 9, 10. She found the opinions of Drs. Everhart, Raj, and Green reasoned and documented. Decision and Order at 23. She discredited Dr. Zaldivar's opinion because he failed to explain why Claimant is not totally disabled in light of Dr. Raj's May 1, 2019 exercise blood gas study that produced qualifying values. Id. She also discredited Dr. Spagnolo's opinion because he conflated the issues of total disability and total disability causation. Id.
Employer argues the ALJ erred in weighing the opinions of Drs. Zaldivar and Spagnolo.[9] Employer's Brief at 16-18, 26-30. We disagree.
Employer argues that the ALJ erred in finding Dr. Zaldivar failed to discuss the May 1, 2019 qualifying exercise blood gas study. Employer's Brief at 16-18. It argues that, in regard to the later qualifying exercise test, Dr. Zaldivar "explained that blood gas studies can deteriorate in an individual with cardiac disease as a result of the aging process, circulatory problems[,] and fluid retention." Id. Thus, it argues he credibly explained there is no intrinsic pulmonary impairment evidenced by blood gas testing. Id. This argument is not persuasive, as the relevant inquiry at 20 C.F.R. §718.204(b)(2) is whether the miner has a totally disabling respiratory or pulmonary impairment; the cause of that impairment is addressed at 20 C.F.R. §§718.202(a)(4), 718.204(c), or in consideration of rebuttal of the Section 411(c)(4) presumption pursuant to 20 C.F.R. §718.305. See Bosco v. Twin Pines Coal Co., 892 F.2d 1473, 1480-81 (10th Cir. 1989); Johnson v. Apogee Coal Co., BLR, BRB No. 22-0022 BLA, slip op. at 10-11 (May 26, 2023), appeal docketed, No. 23-3612 (6th Cir. July 25, 2023).
Employer next argues that Dr. Zaldivar's opinion is credible because he "based his opinion upon the totality of the clinical record and not just the exercise studies." Employer's Brief at 17. Employer's argument is a request to reweigh the evidence, which we are not empowered to do. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1113 (1989); Employer's Brief at 34-35. Because it is supported by substantial evidence, we affirm the ALJ's finding that Dr. Zaldivar's opinion is unpersuasive. Underwood, 105 F.3d at 949; Hicks, 138 F.3d at 533; Akers, 131 F.3d at 441.
We also reject Employer's argument that the ALJ erred in weighing Dr. Spagnolo's medical opinion. Employer's Brief at 26-28. Dr. Spagnolo opined the record was insufficient to diagnose Claimant with pneumoconiosis and attributed any disability he has to heart disease. Employer's Exhibit 3. He opined that there was no evidence of chronic dust disease significantly related to, or substantially aggravated by, Claimant's occupational exposure to dust. Employer's Exhibit 10 at 24-25. Further, he opined Claimant "probably" has a disabling cardiac condition but not a disabling pulmonary impairment. Id. at 26-27. Once again, we note the relevant inquiry at 20 C.F.R. §718.204(b)(2) is whether the miner has a totally disabling respiratory or pulmonary impairment; the cause of that impairment is addressed at 20 C.F.R. §§718.202(a)(4), 718.204(c), or in consideration of rebuttal of the Section 411(c)(4) presumption pursuant to 20 C.F.R. §718.305. See Bosco, 892 F.2d at 1480-81; Johnson, BLR, BRB No. 220022 BLA, slip op. at 10-11. Thus, we discern no error in the ALJ's finding that Dr. Spagnolo did not adequately explain why Claimant is not totally disabled despite the qualifying exercise blood gas studies, and merely conflated the issues of total disability and total disability causation.[10] See Hicks, 138 F.3d at 533; Akers, 131 F.3d at 441; Decision and Order at 23.
Thus we affirm the ALJ's findings that the medical opinions support total disability at 20 C.F.R. §718.204(b)(2)(iv), and Claimant established total disability based on...
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