Dawson v. Office of Workers' Compensation Programs, BRB 09-0467 BLA

CourtCourt of Appeals of Black Lung Complaints
Writing for the CourtROY P. SMITH Administrative Appeals Judge
Decision Date30 April 2010
Docket NumberBRB 09-0467 BLA
PartiesBOBBY DAWSON Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BOBBY DAWSON Claimant-Petitioner
v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 09-0467 BLA

Court of Appeals of Black Lung

April 30, 2010


UNPUBLISHED OPINION

Appeal of the Decision and Order on Modification Denying Benefits of Jeffrey Tureck, Administrative Law Judge, United States Department of Labor.

Darrell Dunham, Carbondale, Illinois, for claimant.

Anne Marie Scarpino (M. Patricia Smith, Solicitor of Labor; Rae Ellen Frank James, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: SMITH, McGRANERY and BOGGS, Administrative Appeals Judges.

DECISION AND ORDER.

ROY P. SMITH Administrative Appeals Judge

Claimant appeals the Decision and Order on Modification Denying Benefits (2006-BLA-05496) of Administrative Law Judge Jeffrey Tureck rendered on a subsequent claim filed on April 10, 2003, [1]pursuant to the provisions of the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) (to be codified at 30 U.S.C. §§921(c)(4) and 932(l)) (the Act). [2] In a Proposed Decision and Order issued on December 11, 2003, the district director found that the newly submitted evidence established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203, and a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. However, the claim was denied by the district director on the ground that claimant failed to establish that he was totally disabled. Claimant subsequently filed a request for modification on July 17, 2004, which was denied by the district director on December 7, 2005. Thereafter, claimant requested a hearing, and the case was assigned to the administrative law judge, who issued his Decision and Order on Modification on February 19, 2009. [3] The administrative law judge credited claimant with seventeen and one-half years of coal mine employment, as stipulated by the parties, and adjudicated this claim under the regulations at 20 C.F.R. Part 718. The administrative law judge found that claimant failed to establish either a change in conditions or a mistake in a determination of fact with regard to the prior denial pursuant to 20 C.F.R. §725.310. Accordingly, the administrative law judge denied claimant's request for modification and benefits.

On appeal, claimant contends that the administrative law judge erred in finding that he failed to establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(iv) and the prerequisites for modification under 20 C.F.R. §725.310. The Director, Office of Workers' Compensation Programs (the Director), responds urging affirmance of the denial of benefits.

The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence and in accordance with applicable law. [4] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).

In order to establish entitlement to benefits in a living miner's claim pursuant to 20 C.F.R. Part 718, claimant must prove that he suffers from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, that he is totally disabled and that his disability is due to pneumoconiosis. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes a finding of entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).

Pursuant to 20 C.F.R. §725.310(a), a miner may, at any time before one year after the denial of a claim, file a request for modification of the denial of benefits. A miner may establish a basis for modification in his or her claim by establishing either a change in conditions or a mistake in a determination of fact. See 20 C.F.R. §725.310. In considering whether a change in conditions has been established pursuant to 20 C.F.R. §725.310, an administrative law judge is obligated to perform an independent assessment of the newly submitted evidence, considered in conjunction with the previously submitted evidence, to determine if the weight of the new evidence is sufficient to establish at least one element of entitlement which defeated entitlement in the prior decision. Kingery v. Hunt Branch Coal Co., 19 BLR 1-6, 1-11 (1994); Nataloni v. Director, OWCP, 17 BLR 1-82, 1-84 (1993). If a change is established, the administrative law judge must then consider all of the evidence of record to determine whether claimant has established entitlement to benefits on the merits of the claim. Nataloni, 17 BLR at 1-84. In addition, the administrative law judge has the authority to consider all the evidence for any mistake in a determination of fact, including the ultimate fact of entitlement. See Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533, 546, 547, 22 BLR 2-429, 2-452, 2-453 (7th Cir. 2002) (Wood, J., dissenting); Zeigler Coal Co. v. Sieberg, 839 F.2d 1280, 11 BLR 2-80 (7th Cir. 1988).

In considering whether claimant established the prerequisites for modification, the administrative law judge noted that claimant was required to establish that he is totally disabled in order to demonstrate either a mistake in a determination of fact or a change in conditions. The administrative law judge initially found that none of the pulmonary function tests or arterial blood gas studies submitted in conjunction with the subsequent claim or claimant's modification request was qualifying for total disability pursuant to 20 C.F.R. §718.204(b)(2)(i) and (ii), and that claimant was unable to establish total disability under 20 C.F.R. §718.204(b)(2)(iii), as there was no evidence in the record to establish that claimant has cor pulmonale with right-sided congestive heart failure. Decision and Order at 4. The administrative law judge also found that claimant was not entitled to the irrebuttable presumption of total disability due to pneumoconiosis set forth at 20 C.F.R. §718.304. [5] Id. Thus, the administrative law judge focused his analysis on whether claimant established total disability based on the medical opinion evidence pursuant to 20 C.F.R. §718.204(b)(2)(iv).

Dr. Reddy examined claimant on June 19, 2003, at the request of the Department of Labor, and opined that claimant is not totally disabled. Director's Exhibits 9-10, 47. Dr. Houser examined claimant on April 5, 2004, and diagnosed mild to moderate airway obstruction, but he did not offer any opinion as to whether claimant is totally disabled. Director's Exhibit 29.

Dr. Istanbouly examined claimant on August 29, 2007. Claimant's Exhibit 2 at Exhibit 1. [6] In his report, Dr. Istanbouly noted that claimant was a non-smoker and worked in the coal mines for twenty-one years. Id. He described that claimant's last coal mine employment involved “bolting roofs[, ] and it was a physical job including standing on his feet all of the time, lifting, shoveling, and holding.” Id. He also noted that at the time of his retirement from the mines, claimant “was getting short of breath by walking for only 1-2 blocks.” Id. A pulmonary function test (PFT) was obtained and revealed “moderate nonspecific ventilatory limitation, suggestive of restrictive lung disease [versus] mixed restrictive obstructive pattern.” Id. Dr. Istanbouly opined that claimant suffers from coal workers' pneumoconiosis and a severe respiratory impairment, although he also acknowledged that claimant “may have other medical problems which could be contributing to his respiratory symptoms, including coronary artery disease . . . uncontrolled obstructive sleep apnea, allergic rhinitis, and uncontrolled gastroesophageal reflux disease.” Id. (emphasis omitted).

In a letter to claimant's counsel dated September 19, 2007, Dr. Istanbouly advised that he had ordered an echocardiogram to rule out significant cardiac dysfunction contributing to claimant's respiratory impairment, and it showed “mild pulmonary hypertension, mild pulmonic regurgitation, mild tricuspid regurgitation, and mild aortic regurgitation.” Claimant's Exhibit 2 at Exhibit 2. Dr. Istanbouly opined that claimant “has a total[ly] disabling respiratory impairment, which seems to be related to Coal Worker's [sic] Pneumoconiosis in addition to his other co[-]morbidities.” Id.

In a deposition conducted on December 14, 2007, Dr. Istanbouly was asked to clarify the basis for his opinion that claimant is totally disabled and stated:

Now, the moderate [impairment] is based on his PFT. The patient . . . has been on home oxygen continuously for a few years, and he was dyspneic after walking for a few steps only in the office. So based on clinical evaluation, history, plus the most objective finding would be the pulmonary function test I did on the same day of evaluation [sic].

Claimant's Exhibit 2 at 25. On cross-examination, Dr. Istanbouly was asked if he was aware that the FEV1 and FVC values obtained during his pulmonary function testing were non-qualifying for total disability. Id. at 26. He responded, “Well, my understanding [is that] they are borderline.” Id. Dr. Istanbouly testified that he did not know why claimant was placed on oxygen therapy. Id. at 28-29. When asked why he did not obtain an arterial blood gas study to reassess claimant's need for oxygen, Dr. Istanbouly explained, “I [tried] to get [a] six minute walk test in the office to reassess his need for oxygen, [but] he couldn't walk.” Id. at 29.

In weighing the medical opinions at 20 C.F.R. §718.204(b)(2)(iv), the administrative law judge noted that Dr. Reddy's opinion supported a finding that claimant was...

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