Fleming v. Betty B Coal Co., Inc., BRB 13-0149 BLA
| Decision Date | 05 December 2013 |
| Docket Number | BRB 13-0149 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | EARLIE FLEMING Claimant-Respondent v. BETTY B COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Robert B. Rae Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe (Wolfe Williams Rutherford & Reynolds), Norton Virginia, for claimant.
John R. Sigmond (Penn, Stuart & Eskridge), Bristol, Virginia for employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2011-BLA-06010) of Administrative Law Judge Robert B. Rae rendered on a subsequent claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (Supp. 2011) (the Act). Claimant filed this claim on September 8, 2010. [1] Director's Exhibit 4.
In his Decision and Order issued November 29, 2012, the administrative law judge credited claimant with 13.8 years of coal mine employment, [2]determined that he had a smoking history of fifty-one pack years, and found that the medical opinion evidence developed since the prior denial of benefits established that claimant is totally disabled due to pneumoconiosis, pursuant to 20 C.F.R. §718.204(c). The administrative law judge therefore found that claimant established a change in an applicable condition of entitlement, pursuant to 20 C.F.R. §725.309. Considering the claim on its merits, the administrative law judge found that claimant established the existence of clinical and legal pneumoconiosis [3]pursuant to 20 C.F.R. §718.202(a)(1), (4), that claimant's clinical pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203(b), and that claimant is totally disabled by a respiratory impairment that is due to both clinical and legal pneumoconiosis pursuant to 20 C.F.R. §718.204(b)(2), (c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erred in finding that the new medical opinion evidence established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. Employer further asserts that the administrative law judge erred in his analysis of the evidence when he found that claimant established the existence of pneumoconiosis, and that he is totally disabled due to pneumoconiosis. [4] Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief. Employer has filed a reply brief reiterating its contentions on appeal.
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. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to benefits under the Act, claimant must demonstrate by a preponderance of the evidence that he is totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. When a miner files a claim for benefits more than one year after the final denial of a previous claim, the subsequent claim must also be denied unless the administrative law judge 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); [5]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). Claimant's prior claim was denied because he did not establish the existence of pneumoconiosis. Director's Exhibit 2. Therefore, to obtain review of the merits of his claim, he had to submit new evidence establishing the existence of pneumoconiosis. See 20 C.F.R. §725.309(c)(3), (4).
Employer contends that the administrative law judge addressed the wrong element of entitlement when he found that the new medical opinion evidence established that claimant's total disability is due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c), and demonstrated a change in an applicable condition under 20 C.F.R. §725.309. Decision and Order at 11-13. This contention has merit. The district director based the prior denial on claimant's failure to establish the existence of pneumoconiosis. [6] Director's Exhibit 2. Accordingly, claimant could obtain review of the merits of this claim only by submitting new evidence establishing that he has pneumoconiosis. 20 C.F.R. §725.309(c); Director's Exhibit 2. The administrative law judge therefore erred by failing to determine, as a threshold matter, whether the new evidence established the existence of pneumoconiosis.
When the administrative law judge turned to the merits of the claim, he relied on the new evidence submitted with the current claim to find the existence of pneumoconiosis established. [7] Decision and Order at 13-16. If we can affirm that finding, we can affirm the determination that claimant established a change in the applicable condition of entitlement pursuant to 20 C.F.R. §725.309(c). Therefore, we will consider whether substantial evidence supports the administrative law judge's finding that the new evidence established the existence of pneumoconiosis.
In finding the existence of pneumoconiosis established, the administrative law judge considered analog x-ray evidence, CT scan and digital x-ray evidence, claimant's medical treatment records, and medical opinions from Drs. Baker, Fino, and Rosenberg. Decision and Order at 3-10. The administrative law judge found that the analog x-ray evidence, claimant's treatment records, and Dr. Baker's medical opinion established the existence of clinical pneumoconiosis. Id. at 11-13, 15-16. The administrative law judge further found that Dr. Baker's opinion established the existence of legal pneumoconiosis. Id. at 11-13, 16. Employer raises several challenges to the administrative law judge's weighing of the evidence.
Employer argues that the administrative law judge erred in finding that the analog x-ray evidence supported a finding of clinical pneumoconiosis pursuant to 20 C.F.R §718.202(a)(1). Employer's Brief at 4-5. The record contains five interpretations of two new x-rays taken on October 22, 2010, and September 20, 2011. Dr. Alexander, dually-qualified as a Board-certified radiologist and a B reader, and Dr. Baker, a B reader, both read the October 22, 2010 x-ray as positive for pneumoconiosis. Director's Exhibits 11, 26. Dr. Wheeler, who is also dually-qualified, read the same x-ray as negative for pneumoconiosis. Director's Exhibit 28. Dr. Alexander read the September 20, 2011 x-ray as positive for pneumoconiosis; Dr. Scott, who is also dually-qualified, read it as negative for pneumoconiosis. Claimant's Exhibit 1; Employer's Exhibit 1.
With respect to the October 22, 2010 x-ray, the administrative law judge gave “equal weight to both dually qualified readers, ” but determined that “Dr. Baker's positive reading supports Dr. Alexander's positive finding, ” and therefore concluded that the October 22, 2010 x-ray was positive for the existence of pneumoconiosis. Decision and Order at 4. Because dually-qualified physicians disagreed as to the September 20, 2011 x-ray, the administrative law judge found the readings of that x-ray to be in equipoise. Decision and Order at 4. The administrative law judge concluded that “[t]he weight of the X-rays supports a finding of pneumoconiosis because one X-ray establishes pneumoconiosis and one X-ray is in equipoise.” Id.
Employer argues that the administrative law judge impermissibly “counted heads” and found that the analog x-ray evidence supported a finding of pneumoconiosis only because three of the five interpretations were positive. Employer's Brief at 4-5. We disagree. Contrary to employer's contention, the administrative law judge did not merely count the x-ray interpretations, but considered the readers' radiological qualifications, and permissibly determined that Dr. Alexander's positive interpretation of the October 22, 2010 x-ray, as supported by the positive interpretation of Dr. Baker, a B reader, outweighed Dr. Wheeler's negative interpretation. See Adkins v. Director, OWCP, 958 F.2d 49, 52, 16 BLR 2-61, 2-66 (4th Cir. 1992); Edmiston v. F & R Coal Co., 14 BLR 1-65 (1990); Decision and Order at 4. In light of the administrative law judge's finding that one x-ray was positive and one x-ray was in equipoise, we affirm the administrative law judge's determination that the analog x-ray evidence supports a finding of clinical pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1).
Dr Scott, who the administrative law judge noted is a Board-certified radiologist and a B reader, interpreted new CT scans taken on July 13, 2009, November 16, 2009, and November 1, 2010, as negative for clinical pneumoconiosis showing “[n]o small opacities to suggest silicosis/CWP.” Employer's Exhibits 5-7. Dr. Scott also interpreted a new digital x-ray, taken on February 23, 2011, as negative for clinical pneumoconiosis. [8] Director's Exhibit 27. The administrative law judge determined that Dr. Scott's interpretations of the CT scans and the digital x-ray weighed against a finding of clinical pneumoconiosis. Decision and Order at...
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