Dunn v. Jim Walter Res.
| Decision Date | 31 January 2023 |
| Docket Number | BRB 22-0149 BLA |
| Parties | RICKEY D. DUNN Claimant-Petitioner v. JIM WALTER RESOURCES, INCORPORATED and WALTER ENERGY, INCORPORATED Employer/Carrier-Respondents 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UNPUBLISHED OPINION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 Denying Benefits on Modification of Subsequent Claim of Patrick M. Rosenow, District Chief Administrative Law Judge, United States Department of Labor.
John R. Jacobs and J. Thomas Walker (Maples Tucker & Jacobs LLC), Birmingham, Alabama, for Claimant.
John C. Webb, V, and Aaron D. Ashcraft (Lloyd, Gray, Whitehead & Monroe, P.C.), Birmingham, Alabama, for Employer and its Carrier.
Before: ROLFE, GRESH, and JONES, Administrative Appeals Judges.
Claimant appeals District Chief Administrative Law Judge (ALJ) Patrick M. Rosenow's Decision and Order Denying Benefits on Modification of Subsequent Claim (2020-BLA-05804) rendered on a request for modification of a denial of a subsequent claim filed on September 23, 2015,[1] pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).
In his December 27, 2018 Decision and Order Denying Benefits, ALJ Lee J. Romero found Claimant failed to establish a totally disabling respiratory or pulmonary impairment. 20 C.F.R §718.204(b)(2). As Claimant did not establish a change in an applicable condition of entitlement, ALJ Romero denied his subsequent claim. 20 C.F.R. §725.309(c). Claimant timely filed a request for modification on July 1, 2019 which the district director denied. 20 C.F.R. §725.310. Claimant appealed, and the case was assigned to District Chief ALJ Rosenow (the ALJ).
In his January 12, 2022 Decision and Order, the subject of this appeal, the ALJ accepted the parties' stipulation that Claimant has at least thirty-four years of qualifying coal mine employment. Considering the new evidence submitted on modification, in conjunction with the evidence previously submitted in Claimant's 2012 initial claim and this subsequent claim, the ALJ found Claimant failed to establish total disability, 20 C.F.R. §718.204(b)(2), and therefore failed to establish a mistake of fact in the prior denial or change in conditions since the prior denial. 20 C.F.R. §725.310. He therefore denied benefits.
On appeal, Claimant argues the ALJ erred in finding he failed to establish total disability. Employer responds in support of the denial of benefits. The Director, Office of Workers' Compensation Programs, did not file a response.[2]
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.[3] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).
To be entitled to benefits under the Act, Claimant must establish disease (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Statutory presumptions may assist claimants in establishing the elements of entitlement if certain conditions are met, but failure to establish any element precludes an award of benefits. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
When a miner files a claim for benefits more than one year after the denial of a previous claim becomes final, the ALJ must deny the subsequent claim unless he finds that "one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final." 20 C.F.R. §725.309(c); White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). The "applicable conditions of entitlement" are "those conditions upon which the prior denial was based." 20 C.F.R. §725.309(c)(3). Because the district director denied Claimant's prior claim for failure to establish any element of entitlement, he had to submit new evidence establishing at least one element to obtain a review of his subsequent claim on the merits. See White, 23 BLR at 1-3; Director's Exhibit 1. Additionally, because Claimant sought modification of the denial of his subsequent claim, the ALJ was required to determine whether the denial contained a mistake in a determination of fact or whether the evidence submitted on modification, along with the evidence previously submitted in the subsequent claim, is sufficient to establish a change in an applicable condition of entitlement. 20 C.F.R. §725.310(a); Del Monte Fresh Produce v. Director, OWCP [Gates], 563 F.3d 1216, 1218 (11th Cir. 2009); USX Corp. v. Director, OWCP [Bridges], 978 F.2d 656, 658 (11th Cir. 1992); Hess v. Director, OWCP, 21 BLR 1-141, 1-143 (1998).
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 on pulmonary function studies, arterial blood gas studies, evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure, or medical opinions.[4] 20 C.F.R. §718.204(b)(2)(i)-(iv). The ALJ must weigh all relevant supporting evidence against all relevant contrary evidence.[5] See Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff'd on recon., 9 BLR 1-236 (1987) (en banc). Claimant contends the ALJ erred in finding the pulmonary function studies and the evidence as a whole failed to establish total disability. Claimant's Brief at 4-8.
The ALJ considered four new pulmonary function studies dated March 25, 2019, June 14, 2019, November 12, 2019, and November 2 2020.[6] Decision and Order at 6, 14-15. The March 25, 2019 study was conducted in the course of Claimant's treatment at the Veterans Affairs Medical Center; it produced qualifying values pre- and post-bronchodilator. Claimant's Exhibit 8 at 42. Claimant's June 14, 2019 treatment study conducted at Alabama Regional Medical Services produced qualifying pre-bronchodilator and non-qualifying post-bronchodilator results. Claimant's Exhibit 5. Dr. Goldstein's November 12, 2019 study produced non-qualifying pre-bronchodilator and post-bronchodilator results. Director's Exhibit 19 at 6-15. Dr. Connolly's November 2, 2020 study produced qualifying results pre-bronchodilator.[7] Claimant's Exhibit 6.
The ALJ noted the comments with the November 2, 2020 pre-bronchodilator study indicated the results were "acceptable and reproducible" and that Claimant gave good effort and had good understanding. Decision and Order at 6 n.21; Claimant's Exhibit 6 at 6. However, considering Employer's argument in its brief on modification that the test is invalid, the ALJ then independently assessed the November 2, 2020 study based on the quality standards in Appendix B of 20 C.F.R. Part 718. Decision and Order at 15 (); Employer's Modification Brief at 8. The ALJ found this study did not meet the "reproducibility and reliability" requirements of the regulations because of the excessive variability in the tracings and gave it little probative weight. Id. Further finding the March 25, 2019 qualifying treatment study merits "little evidentiary weight as it contains no spirometric tracings,"[8] and that the results of the June 14, 2019 qualifying treatment study and the November 12, 2019 non-qualifying study are in equipoise, the ALJ determined Claimant failed to establish total disability at 20 C.F.R. §718.204(b)(2)(i).[9] Id. at 15-16.
Claimant contends the ALJ erred in finding the November 2, 2020 study invalid, arguing the ALJ substituted his opinion for that of a medical expert by interpreting the study and did not consider the documentation indicating the study was acceptable, reproducible and performed with good effort and understanding. Claimant's Brief at 4-7. In addition, Claimant contends the quality standards are not mandatory but rather a factor in determining the weight of the evidence and are not sufficient for excluding evidence from consideration altogether. Id. at 5. We agree.
When weighing pulmonary function studies that are conducted in anticipation of litigation, the ALJ must determine whether they are in substantial compliance with the quality standards. 20 C.F.R. §§718.101(b), 718.103(c); 20 C.F.R. Part 718, App. B; see Keener v. Peerless Eagle Coal Co., 23 BLR 1-229, 1-237 (2007) (en banc). If a study does not precisely conform to the quality standards but is in substantial compliance, it "constitute[s] evidence of the fact for which it is proffered." 20 C.F.R. §718.101(b). The ALJ must then, in his role as factfinder, determine the probative weight to assign the study. See Orek v. Director, OWCP, 10 BLR 1-51, 1-54-55 (1987). However, interpretation of the factors listed in Appendix B requires medical expertise; the ALJ may not independently apply the Appendix B quality standard requirements to interpret the validity of pulmonary function studies, as interpretation of medical data is a...
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