Grim v. Abraxas, Inc.
| Decision Date | 17 February 2021 |
| Docket Number | BRB 19-0534 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BOBBY G. GRIM Claimant-Petitioner v. ABRAXAS, INCORPORATED and AMERICAN BUSINESS & MERCANTILE INSURANCE Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Denying Benefits of John P Sellers, III, Administrative Law Judge, United States Department of Labor.
Bobby G. Grim, Nippa, Kentucky.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for Employer/Carrier.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE, and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Claimant without the assistance of counsel, [1] appeals Administrative Law Judge John P. Sellers, III's Decision and Order Denying Benefits (2018-BLA-05036) rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case involves a miner's subsequent claim filed on June 21, 2016.[2] 20 C.F.R. §725.309.
The administrative law judge credited Claimant with 14.19 years of coal mine employment, and thus found he could not invoke the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C §921(c)(4) (2018).[3] Considering whether Claimant established entitlement to benefits without the benefit of this presumption, the administrative law judge found the new evidence established total disability at 20 C.F.R. §718.204(b)(2) and therefore a change in an applicable condition of entitlement at 20 C.F.R. §725.309(c). He also found, based on all the evidence, Claimant did not establish he has clinical or legal pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a), 718.203.[4] Further, the administrative law judge found Claimant did not establish total disability due to pneumoconiosis at 20 C.F.R. §718.204(c) and denied benefits.
On appeal, Claimant generally challenges the denial of benefits. Employer and its Carrier (Employer) respond, urging affirmance of the denial of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
When a claimant files an appeal without the assistance of counsel, the Benefits Review Board considers whether the Decision and Order is supported by substantial evidence. Hodges v. BethEnergy Mines, Inc., 18 BLR 1-84 (1994). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law.[5] 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).
When a miner files a claim for benefits more than one year after the final denial of a previous claim, he must establish "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). The district director denied Claimant's prior claim because he did not establish total respiratory disability. Director's Exhibit 6 at 4. Consequently, to obtain review of the merits of his claim, Claimant had to establish he is totally disabled. 20 C.F.R. §725.309(c)(3), (4).
Because the administrative law judge's determination of Claimant's length of coal mine employment is relevant to whether Claimant can invoke the Section 411(c)(4) presumption of total disability due to pneumoconiosis, we will review his finding that Claimant worked 14.19 years in underground coal mine employment. 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §718.305.
Claimant bears the burden of proof to establish the number of years he worked in coal mine employment. Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985); Hunt v. Director, OWCP, 7 BLR 1-709, 1-710-11 (1985). The Board will uphold an administrative law judge's determination on length of coal mine employment based on a reasonable method of calculation that is supported by substantial evidence. Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011).
In determining the total length of Claimant's coal mine employment, the administrative law judge considered all relevant evidence, consisting of Claimant's employment history summaries, his Social Security Administration (SSA) earnings records, and his hearing testimony. Decision and Order at 4-9; Director's Exhibits 1-6, 8, 12, 55 at 15-22; Hearing Transcript at 13-24. He noted Claimant alleged between fifteen and eighteen years of underground coal mine employment with numerous employers from 1970 to 1986, but his SSA earnings records show he worked in coal mine employment between 1971 and 1986. He also noted that, although Claimant testified some employers may not have reported his earnings to the SSA, he was unable to recall the names of such employers and when he worked for them. Decision and Order at 5; Hearing Transcript at 22-24. Further, he noted Claimant testified he first worked in coal mine employment for White Ash Mining Company in 1971. Decision and Order at 5; Director's Exhibit 55 at 21. Thus the administrative law judge rationally found the preponderance of the evidence established Claimant worked in coal mine employment between 1971 and 1986. Decision and Order at 7-9; see Clayton v. Pyro Mining Co., 7 BLR 1-551 (1984).
The administrative law judge also determined "the record does not clearly identify the beginning and ending dates of Claimant's coal mine employment," except for his employment with Bowling Mining from 1985 to 1986.[6] Decision and Order at 7. Noting Claimant did not work 125 days in 1985 or 1986, [7] the only years in which the beginning and ending dates of his employment could be determined, the administrative law judge calculated Claimant's length of coal mine employment for each year from 1971 through 1986 with reference to the formula set forth at 20 C.F.R. §725.101(a)(32)(iii) and the decision of the United States Court of Appeals for the Sixth Circuit in Shepherd v. Incoal, Inc., 915 F.3d 392 (2019).[8] The administrative law judge determined Claimant's SSA earnings records establish his income exceeded the coal mine industry's average earnings in 1972 to 1975, 1977, and 1979 to 1984, as set forth in Exhibit 610 of the Office of Workers' Compensation Programs Coal Mine (BLBA) Procedure Manual.[9] Decision and Order at 7. Thus, he credited Claimant with eleven years of coal mine employment for these years. Id. He calculated the number of days Claimant worked in each remaining year in 1971, 1976, 1978, 1985, and 1986 by dividing Claimant's yearly earnings by the industry's average daily earnings. He next divided the number of days Claimant worked each year by 125 and credited him with a fractional year of coal mine employment for each year. Over these remaining years, the administrative law judge credited Claimant with 3.19 years of coal mine employment. He therefore concluded Claimant established a total of 14.19 years of qualifying coal mine employment. This calculation accords with law. Shepherd, 915 F.3d at 402. Because we detect no error in the administrative law judge's finding that Claimant has fewer than fifteen years of coal mine employment, we affirm his finding that Claimant did not invoke the Section 411(c)(4) presumption of total disability due to pneumoconiosis. 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §718.305(b)(1)(i).[10]
Without the assistance of any statutory presumptions, the administrative law judge initially addressed whether Claimant met his burden to establish a totally disabling pulmonary or respiratory impairment pursuant to 20 C.F.R. §718.204(b) and, therefore, a change in an applicable condition of entitlement at 20 C.F.R. §725.309(c).[11]
A miner is totally disabled if his pulmonary or respiratory impairment, 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. 20 C.F.R §718.204(b)(2)(i)-(iv). The administrative law judge must weigh all relevant supporting evidence against all relevant contrary evidence. 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).
The record contains five new pulmonary function studies dated March 9, 2016, September 12, 2016, April 20, 2017, January 17, 2018, and April 13, 2018. The March 9, 2016 and April 13 2018 studies, administered without the use of bronchodilators, produced qualifying values.[12] Director's Exhibit 26; Claimant's Exhibit 4. The September 12, 2016 and January 17, 2018 studies produced qualifying results both before and after the administration of bronchodilators. Director's Exhibit 14; Employer's Exhibit 5. Finally, the April 20, 2017 study, administered without the use of bronchodilators, produced nonqualifying values. Director's Exhibit 27. Considering the validity of the pulmonary function studies, the administrative law judge found all but the April 20, 2017 study technically acceptable. Decision and Order at 12, 22-28. According greater weight to the two most recent studies administered in 2018, the administrative law judge found the preponderance of the...
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