Consolidation Coal Co. v. McMahon, No. 95-3005

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMILBURN
Citation77 F.3d 898
PartiesCONSOLIDATION COAL COMPANY, Petitioner, v. Lawrence McMAHON, Respondent, Director, Office of Workers' Compensation Programs, United States Department of Labor, Party-in-Interest.
Docket NumberNo. 95-3005
Decision Date11 March 1996

Page 898

77 F.3d 898
CONSOLIDATION COAL COMPANY, Petitioner,
v.
Lawrence McMAHON, Respondent,
Director, Office of Workers' Compensation Programs, United
States Department of Labor, Party-in-Interest.
No. 95-3005.
United States Court of Appeals,
Sixth Circuit.
Argued Feb. 5, 1996.
Decided March 11, 1996.

Page 899

On Petition to Review an Order of the Benefits Review Board.

Douglas A. Smoot (argued and briefed), Mary Rich Maloy, Jackson & Kelly, Charleston, WV, for Consolidation Coal Co.

Diana H. Crutchfield (argued and briefed), Kessler, Crutchfield & Taylor, Moundsville, WV, for Lawrence McMahon.

Christian P. Barber, Karen Blank, Jennifer U. Toth, U.S. Dept. of Labor, Office of the Solicitor, Washington, DC, for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before: ENGEL and MILBURN, Circuit Judges; WEBER, District Judge. *

MILBURN, Circuit Judge.

Employer Consolidation Coal Company petitions for review of decisions of the Benefits Review Board ("BRB") awarding black lung benefits under the Black Lung Benefits Act ("Act"), 30 U.S.C. § 901 et seq., to Claimant Lawrence McMahon. On appeal, the issues are (1) whether the administrative law judge ("ALJ") improperly found that the presumption of total disability due to pneumoconiosis was invoked by the x-ray evidence pursuant to 20 C.F.R. § 727.203(a)(1), (2) whether the ALJ improperly concluded that the employer

Page 900

had not rebutted the interim presumption of total disability due to pneumoconiosis pursuant to 20 C.F.R. § 727.203(b)(3), and (3) whether the employer submitted sufficient evidence to rebut the presumption of total disability due to pneumoconiosis pursuant to 20 C.F.R. § 727.203(b)(4). For the reasons that follow, the petition for review is granted, and the case is remanded to the BRB with instructions to reverse the ALJ.

I.

A.

Claimant was born on October 3, 1922. He worked as an underground coal miner for approximately 28.75 years. Claimant worked for employer from 1947 to January 12, 1979, when he retired from coal mining at the age of 56. For his last seven years with employer, claimant worked as a continuous miner operator, which required him to lift and carry 30- to 35-pound posts, set safety jacks, and handle cables. While he was performing many of these duties, claimant had to work in a bent over position, which required additional physical exertion, because the mine roof was low.

After retiring from coal mine employment, claimant worked for approximately eight or nine months in 1980 as a delivery truck driver for a florist shop. According to claimant, he quit this employment because he experienced shortness of breath when he frequently had to get in and out of the delivery truck while delivering flowers to customers' homes. This was claimant's last gainful employment. Claimant has one dependent, his wife. They were married on June 28, 1980.

Claimant began smoking cigarettes in 1946, after he was discharged from the armed services. He smoked about one-half of a pack of cigarettes per day for approximately 20 to 23 years. Claimant quit smoking in 1967. He resumed smoking in 1980, smoking one-half of a pack of cigarettes per day or less. At the time of the hearing before the ALJ, he was smoking approximately five cigarettes per day.

The administrative record in this case contains a total of 28 chest x-ray readings, six pulmonary function studies, and five arterial blood gas studies. In addition, the record also contains ten medical reports submitted by seven different physicians. 1

B.

Claimant Lawrence McMahon filed a claim for black lung benefits under the Act on August 20, 1979. On August 22, 1979, the Department of Labor notified Employer Consolidation Coal Company that it had been identified as the responsible operator pursuant to 20 C.F.R. §§ 725.490-.495 and was potentially liable for the payment of any benefits awarded to claimant. Employer timely controverted the claim for benefits on October 22, 1979.

Thereafter, on September 11, 1980, the Department of Labor issued a Notice of Initial Finding, which concluded that claimant was entitled to benefits. On July 15, 1981, employer challenged the initial finding and submitted evidence in support of its position that claimant was not entitled to benefits. The claim was forwarded to the Office of Administrative Law Judges on December 19, 1981.

A formal hearing was held before an ALJ on September 23, 1985. The ALJ issued a decision and order denying benefits to claimant on August 19, 1986. In that decision, the ALJ concluded that claimant had established approximately 28.75 years of qualifying coal mine employment. Accordingly, because claimant had filed his claim for benefits before March 31, 1980, and had established more than ten years of qualifying coal mine employment, the ALJ adjudicated his claim for benefits under the interim regulations set forth in 20 C.F.R. Part 727. In particular, the ALJ found that the presumption of total disability due to pneumoconiosis was invoked by the x-ray evidence of record pursuant to 20 C.F.R. § 727.203(a)(1). However, the ALJ denied benefits to claimant because he found that employer had rebutted the presumption of total disability due to pneumoconiosis under 20 C.F.R. § 727.203(b)(2).

Claimant filed a petition for review of the ALJ's decision with the BRB on September

Page 901

17, 1986. Subsequently, on June 22, 1988, the Board vacated the ALJ's decision and order and remanded the claim for a determination as to whether the evidence was sufficient to establish rebuttal pursuant to 20 C.F.R. § 727.203(b)(2) and (b)(3).

On remand, the ALJ issued a decision and order awarding benefits on April 27, 1989. In his decision and order on remand, the ALJ found that employer had failed to rebut the presumption of total disability due to pneumoconiosis under either 20 C.F.R. § 727.203(b)(2) or § 727.203(b)(3).

Thereafter, employer timely filed a petition for review of the ALJ's decision with the BRB. In its petition for review, employer challenged only the ALJ's finding that rebuttal had not been established under 20 C.F.R. § 727.203(b)(3).

On August 17, 1992, the BRB issued a decision and order affirming the ALJ's decision and order of April 27, 1989. Employer then filed a timely request for reconsideration with the BRB. As before, employer's request for reconsideration sought only reconsideration of the ALJ's finding that it had not established rebuttal under 20 C.F.R. § 727.203(b)(3). On November 14, 1994, the BRB issued a decision and order on reconsideration in which it granted employer's motion for reconsideration but denied the relief requested, thereby affirming the ALJ's award of benefits. Employer then filed a timely petition for review of the BRB's decisions with this court.

II.

A.

Employer argues that the ALJ's finding that the presumption of total disability due to pneumoconiosis arising out of coal mine employment was invoked by the x-ray evidence under 20 C.F.R. § 727.203(a)(1) is not supported by substantial evidence and is not in accordance with the law. Our scope of review of decisions of the BRB is limited. A decision of the BRB must be affirmed if the BRB did not commit a legal error or exceed its statutory scope of review of the ALJ's findings. Director, OWCP v. Quarto Mining Co., 901 F.2d 532, 536 (6th Cir.1990). The standards of review for the BRB and this court are the same. Welch v. Benefits Review Bd., 808 F.2d 443, 445 (6th Cir.1986) (per curiam). Thus, our review on appeal focuses on whether the ALJ had substantial evidence on which to base his decision. Zimmerman v. Director, OWCP, 871 F.2d 564, 566 (6th Cir.1989). If the ALJ's findings are supported by substantial evidence and are in accordance with the applicable law, the ALJ's findings are conclusive. Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.1985) (per curiam). "Substantial evidence is 'more than a mere scintilla;' substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 488 (6th Cir.1985) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). In deciding whether the substantial evidence requirement is satisfied, we consider whether the ALJ adequately explained the reasons for crediting certain testimony and evidence over other evidence in the record in deciding to either award or deny benefits. Director, OWCP v. Congleton, 743 F.2d 428, 430 (6th Cir.1984). Finally, when dealing with a claim for benefits, we must keep in mind that the Act is remedial in nature and must be liberally construed " 'to include the largest number of miners as benefit recipients.' " Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1042 (6th Cir.1993) (quoting Southard v. Director, OWCP, 732 F.2d 66, 71 (6th Cir.1984)).

Black lung "[d]isability benefits are payable to a miner if (a) he or she is totally disabled, (b) the disability was caused, at least in part, by pneumoconiosis, and (c) the disability arose out of coal mine employment." Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141, 108 S.Ct. 427, 431, 98 L.Ed.2d 450 (1987). Under 20 C.F.R. § 727.203(a):

[a]ll three of these conditions of eligibility are presumed if the claimant was engaged in coal mine employment for at least ten years and if the claimant meets one of four medical requirements: (1) a chest X-ray establishes the presence of pneumoconiosis; (2) ventilatory studies establish the presence of a respiratory or pulmonary disease--not necessarily pneumoconiosis--of a specified severity; (3) blood gas studies

Page 902

demonstrate the presence of an impairment in the transfer of oxygen from the lungs to the blood; or (4) other medical evidence, including the documented opinion of a physician exercising reasonable medical judgment, establishes the presence of a totally disabling respiratory...

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56 practice notes
  • Little v. Unumprovident Corp., No. C-2-01-1269.
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 1, 2002
    ...in Pilot Life are differences of degree only. As far as ERISA pre-emption is concerned, there is no difference at all." Schachner, 77 F.3d at 898. The Sixth Circuit rejected plaintiff's argument that the law of bad faith in Ohio was directed specifically toward the insurance industry. ......
  • Island Creek Coal Co. v. Bryan, 18-3680
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 11, 2019
    ...that it permits excuses by applying the "futility" exception in this context. See Consolidation Coal Co. v. McMahon , 77 F.3d 898, 904 (6th Cir. 1996). But we need not decide what exceptions (if any) exist. Even if the regulation includes some, Island Creek and Cunningham have not......
  • In re Tyson, Bankruptcy No. 10–13207.
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Tennessee
    • June 7, 2011
    ...these parties. Quite simply, it is the law of the case and the Court is precluded from reexamining it Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 n. 5 (6th Cir.1996). However, based on Hunt's reiteration of the insufficiency argument, the Court finds it necessary to more fully set f......
  • Dantran, Inc. v. U.S. Dept. of Labor, No. 98-1830
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 7, 1999
    ...72 of review--and, thus, functions under precisely the same constraints as does a reviewing court. See Consolidation Coal Co. v. McMahon, 77 F.3d 898, 901 (6th Cir.1996); Taylor v. Alabama By-Products Corp., 862 F.2d 1529, 1532-33 (11th Cir.1989). Consequently, as long as the ALJ's findings......
  • Request a trial to view additional results
56 cases
  • Little v. Unumprovident Corp., No. C-2-01-1269.
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 1, 2002
    ...in Pilot Life are differences of degree only. As far as ERISA pre-emption is concerned, there is no difference at all." Schachner, 77 F.3d at 898. The Sixth Circuit rejected plaintiff's argument that the law of bad faith in Ohio was directed specifically toward the insurance industry. ......
  • Island Creek Coal Co. v. Bryan, 18-3680
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 11, 2019
    ...that it permits excuses by applying the "futility" exception in this context. See Consolidation Coal Co. v. McMahon , 77 F.3d 898, 904 (6th Cir. 1996). But we need not decide what exceptions (if any) exist. Even if the regulation includes some, Island Creek and Cunningham have not......
  • In re Tyson, Bankruptcy No. 10–13207.
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Tennessee
    • June 7, 2011
    ...these parties. Quite simply, it is the law of the case and the Court is precluded from reexamining it Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 n. 5 (6th Cir.1996). However, based on Hunt's reiteration of the insufficiency argument, the Court finds it necessary to more fully set f......
  • Dantran, Inc. v. U.S. Dept. of Labor, No. 98-1830
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 7, 1999
    ...72 of review--and, thus, functions under precisely the same constraints as does a reviewing court. See Consolidation Coal Co. v. McMahon, 77 F.3d 898, 901 (6th Cir.1996); Taylor v. Alabama By-Products Corp., 862 F.2d 1529, 1532-33 (11th Cir.1989). Consequently, as long as the ALJ's findings......
  • Request a trial to view additional results

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