Eversole v. Shamrock Coal Co., Inc.
| Decision Date | 18 July 1994 |
| Docket Number | No. 93-3527,93-3527 |
| Citation | 30 F.3d 133 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. James EVERSOLE, Petitioner-Appellant, v. SHAMROCK COAL COMPANY, INC., and Director, OWCP, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: GUY and BOGGS, Circuit Judges; and WOODS, Senior District Judge *.
Petitioner James Eversole appeals from an order of the Benefits Review Board which affirmed the decision of the Administrative Law Judge ("ALJ") denying his claim for benefits under the Black Lung Benefits Act. Eversole argues that the Board erred when it concluded that he failed to brief adequately his challenge to the ALJ's finding, as required by 20 C.F.R. Sec. 802.211(b). In addition, Eversole charges that the ALJ did not accord proper weight to the medical opinions of Drs. Bushey, Anderson and Baker. While Eversole did adequately brief his challenge to the ALJ's findings, we conclude that the ALJ's findings are supported by substantial evidence, and therefore, we affirm the Board's order.
On December 13, 1988, Eversole filed a claim for benefits under the Black Lung Benefits Act, as amended, 30 U.S.C. Sec. 901 et seq. (1988). The claim was denied by the District Director on May 16, 1989, and again on July 18, 1989. The ALJ held a formal hearing on Eversole's claim on October 24, 1990.
James Eversole was born on February 27, 1936, and has an eighth grade education. At the hearing, Eversole testified that he worked 32 years in the coal mining industry and that his last coal mine employment was with the Shamrock Coal Company. His last day of coal mining was January 24, 1984. Eversole described the physical activity involved in his former job as conveyor operator as requiring him to sit for three hours per day, stand for five hours per day, lift fifteen pounds three times per day and carry 25 pounds 15-20 feet once per day. Eversole testified that he suffers from shortness of breath and "smothering." He also acknowledged that he smoked cigarettes for four years, but quit his 1 1/2 pack per day habit twenty years ago.
The medical opinions and test results from five physicians are included in the record. Dr. Harold Bushey, Eversole's treating physician, performed an examination on January 13, 1984. Respiratory capacity tests were inadequate to establish total disability under the guidelines, but on the basis of x-rays Dr. Bushey diagnosed "chronic lung disease with pulmonary fibrosis, compatible with coalworker's pneumoconiosis...." Dr. Bushey opined that claimant should not be exposed further to the dust in the coal mining industry.
On May 3, 1984, Eversole was examined by Richard P. O'Neill, M.D., at the request of the Department of Labor. Dr. O'Neill noted a 20 year smoking history of 1 1/2 packs per day and a 30 year coal mine employment history. Pulmonary tests were invalid due to inadequate effort, and Eversole's other test results were within normal range. On the basis of this examination, Dr. O'Neill reported the following diagnoses: 1) Chronic bronchitis; 2) No evidence of pneumoconiosis; 3) History of myocardial infarction; 4) History of hypertension; 5) Overweight.
On May 21, 1984, Eversole was examined by Dr. Bruce Broudy at the request of Shamrock Coal Company. Dr. Broudy noted a 30 year coal mining employment history and that Eversole was "an ex-smoker having consumed one pack per day for twenty years until he quit ten years ago." Eversole's respiratory capacity tests were within normal limits, but arterial blood gas studies showed low blood oxygen levels indicative of mild resting hypoxemia. Dr. Broudy diagnosed Eversole as suffering from mild obstructive airways disease with a borderline ventilatory defect consistent with chronic bronchitis, hypertension, and obesity. Dr. Broudy concluded that Eversole did not have pneumoconiosis, and that Eversole retained the respiratory functional capacity to perform the work of an underground coal miner.
Eversole was next examined by Dr. William Anderson on August 16, 1984, at the request of Eversole's attorney. Dr. Anderson noted a 28 year history of coal mine employment and a 22 year history of smoking one pack of cigarettes per day. The results of the pulmonary function and arterial blood gas tests performed by Dr. Anderson were not adequate to establish disability under the guidelines contained in the Act. Dr. Anderson obtained a chest x-ray, which he interpreted as negative for pneumoconiosis, but noted minimal bilateral pleural thickening. An electrocardiogram produced a normal reading. Dr. Anderson's final diagnoses were: 1) pleural thickening due to an unknown cause; 2) arteriosclerotic heart disease with exertional and paroxysmal nocturnal dyspnea; and 3) high blood pressure.
Eversole's most recent examination was performed by Glen Baker, M.D., on January 20, 1989, at the request of the Department of Labor. Dr. Baker noted a 30 year coal mine employment history and a four year smoking history. After performing pulmonary function and arterial blood gas studies and obtaining a chest x-ray, Dr. Baker diagnosed Eversole as having simple pneumoconiosis, type 1/0, chronic bronchitis caused by coal dust exposure and smoking, and chronic obstructive pulmonary disease. Dr. Baker concluded by stating that Eversole suffers from a mild to moderate pulmonary impairment.
In his decision, the ALJ noted that the claim at issue was filed on December 13, 1988, after the effective date of the permanent regulations at 20 C.F.R. Sec. 718. To be eligible for benefits under this statute, a claimant must prove by a preponderance of the evidence that: 1) he has pneumoconiosis; 2) the pneumoconiosis arose at least in part out of his coal mine employment; and 3) he has a totally disabling pulmonary or respiratory condition that is due (at least in part) to his pneumoconiosis. Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141, 108 S.Ct. 427, 431 (1987); Adams v. Director, OWCP, 886 F.2d 818, 825 (6th Cir.1989); Gee v. W.G. Moore & Sons, 9 BLR 1-4 (1986).
The ALJ found that Eversole had established the existence of pneumoconiosis under 718.202(a)(1). On the basis of income tax records, the ALJ found that Eversole had established a coal mine employment history of nineteen years. Because Eversole proved at least ten years of work in the coal mining industry, he was entitled to the presumption of causation found in Sec. 718.203(b). Accordingly, the ALJ found that Eversole's pneumoconiosis arose out of his coal mine employment.
None of Eversole's pulmonary function tests or arterial blood gas studies qualified to establish total disability on the basis of the values listed at Sec. 718.204. Consequently, Eversole had to establish total disability under Sec. 718.204(c)(4), which requires "a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques," to conclude that Eversole's respiratory or pulmonary condition prevents him from engaging in gainful employment, requiring the skills and abilities comparable to those of his former work in the mine.
After evaluating the medical opinions of record, the ALJ concluded that Eversole had not established total disability under Sec. 718.204(c)(4) because no physician had found him to be totally disabled due to pneumoconiosis. The ALJ noted that Dr. Broudy had specifically stated that Eversole retained the functional capacity to perform his usual coal mine employment and summarized the other medical evidence as follows:
Dr. Baker found the Claimant to suffer from a mild to moderate pulmonary impairment. Drs. O'Neill and Anderson gave no opinion on whether the Claimant was totally disabled due to pneumoconiosis. The only medical report of record that comes close to establishing total disability is Dr. Bushey's and he only recommended that the Claimant have no further exposure to coal dust.
Relying on Taylor v. Evans & Gambrel Co., Inc., 12 BLR 1-83 (1988), which held a medical opinion that merely advises against a return to the dusty coal mine atmosphere without addressing the miner's physical capacity to return to work was insufficient to establish the existence of a totally disabling impairment, the ALJ denied benefits.
A decision by the Benefits Review Board must be affirmed on appeal if the Board has not committed any legal error or exceeded its statutory scope of review of the ALJ's factual determinations. Director, OWCP v. Quarto Mining Co., 901 F.2d 532, 536 (6th Cir.1990). With respect to questions of law, however, this Court enjoys plenary review authority. Director, OWCP v. Saulsberry, 887 F.2d 667, 670 (6th Cir.1989).
The standards of review for the Board and this Court are the same. Welch v. Benefits Review Board, 808 F.2d 443, 445 (6th Cir.1986). Therefore the focus of review is 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). Substantial evidence is that relevant evidence which a reasonable mind would accept as...
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...to a request to reweigh the evidence of record, which is beyond the Board's scope of review.' " Eversole v. Shamrock Coal Co., 30 F.3d 133 (6th Cir. July 18, 1994) (unpublished) (brackets in original) (citation Because the ALJ's decision to deny benefits is supported by substantial evidence......