Huitt v. Sunnyside Coal Co.

CourtCourt of Appeals of Black Lung Complaints
Decision Date16 December 2009
Docket NumberBRB 09-0246 BLA
PartiesDONALD HUITT Claimant-Respondent v. SUNNYSIDE 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UNPUBLISHED OPINION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 Donald W Mosser, Administrative Law Judge, United States Department of Labor.

Jonathan Wilderman (Wilderman & Linnet, P.C.), Denver Colorado, for claimant.

Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.

Sarah H. Hurley (Deborah Greenfield, Acting Deputy Solicitor; 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: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Employer appeals the Decision and Order-Awarding Benefits (2005-BLA-06083) of Administrative Law Judge Donald W. Mosser with respect to a subsequent claim filed on September 13 2004, pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq . (the Act). [1] After crediting claimant with at least eighteen years of coal mine employment, based on the stipulation of the parties, the administrative law judge adjudicated this claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that the newly submitted evidence established the existence of totally disabling coal workers’ pneumoconiosis, and, therefore, a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(d). On the merits, the administrative law judge determined that the evidence, as a whole, established the existence of legal pneumoconiosis arising out of coal mine employment at 20 C.F.R. §§718.202(a)(4), 718.203 and that claimant is totally disabled due to pneumoconiosis pursuant to 20 C.F.R. §718.204(b), (c). Accordingly, the administrative law judge awarded benefits.

Employer appeals, arguing that the administrative law judge applied the incorrect standard in finding that claimant established a change in an applicable condition of entitlement under 20 C.F.R. §725.309(d). In addition, employer asserts that the administrative law judge erred in his findings at 20 C.F.R. §§718.202(a)(4), 718.203, 718.204(c), because he incorrectly weighed the medical opinion evidence and mechanically gave greater weight to the opinions of Drs. James and Badger, based on their status as treating physicians, in violation of 20 C.F.R. §718.104(d). Employer further argues that the administrative law judge failed to make a finding of total disability pursuant to 20 C.F.R. §718.204(b). Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers’ Compensation Programs (the Director), has filed a limited brief, asserting that the administrative law judge applied the appropriate standard in analyzing whether claimant proved a change in an applicable condition of entitlement under 20 C.F.R. §725.309(d). The Director further maintains, however, that the administrative law judge was mistaken when he indicated that the regulatory standard at 20 C.F.R. §718.204(c)(1) differs from the “contributing cause” standard enunciated by the United States Court of Appeals for the Tenth Circuit in Mangus v. Director, OWCP, 882 F.2d 1527, 13 BLR 2-9 (10th Cir. 1989). [2]

The Board’s scope of review is defined by statute. The administrative law judge’s Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is 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 Associates, Inc ., 380 U.S. 359 (1965).

In order to establish entitlement to benefits in a living miner’s claim filed pursuant to 20 C.F.R. Part 718, claimant must establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204; Gee v. W.G. Moore & Sons, 9 BLR 14 (1986)(en banc ). Failure to establish any one of these elements precludes entitlement. See Trent v. Director, OWCP, 11 BLR 126 (1987); Perry v. Director, OWCP, 9 BLR 11 (1986)( en banc ).

I. Subsequent Claim Standard

In making his findings at 20 C.F.R. §725.309(d), the administrative law judge noted that he was required to consider all of the newly submitted evidence in order to determine whether claimant proved at least one of the elements of entitlement previously decided against him. Decision and Order at 3. Further, the administrative law judge stated that if claimant met this burden, he must then consider whether all of the evidence of record supports a finding of entitlement to benefits. Id.

Employer argues that the administrative law judge applied a standard that the United States Court of Appeals for the Tenth Circuit, within whose jurisdiction this claim arises, rejected in Wyoming Fuel Company v. Director, OWCP [ Brandolino ], 90 F.3d 1502, 20 BLR 2-302 (10th Cir. 1996). [4] Claimant responds, stating that employer erroneously relies on the Brandolino duplicate claim standard, which the court adopted prior to the effective date of the revised regulations. Claimant further asserts that the Tenth Circuit recognized in Energy West Mining Company v. Oliver, 555 F.3d 1211, 24 BLR 2-155 (10th Cir. 2009), that the revised regulations replaced this standard, In his limited response brief, the Director argues that the administrative law judge’s “application of the regulatory standard in this Tenth Circuit case was correct and should be affirmed.” Director’s Brief at 3.

We reject employer’s contention and affirm the administrative law judge’s application of 20 C.F.R. §725.309(d) in this case. As the Director and claimant accurately assert, in Oliver, the Tenth Circuit “supplanted” the material worsening test set forth in Brandolino . [5] See Oliver, 555 F.3d at 1223, 24 BLR at 2-173. In light of the administrative law judge’s determination that the newly submitted evidence established a change in an applicable condition of entitlement, he applied the proper standard pursuant to 20 C.F.R. §725.309(d). Decision and Order at 3.

II. The Existence of Legal Pneumoconiosis A.The Administrative Law Judge’s Findings

The administrative law judge initially considered the newly submitted opinions of Drs. James, Badger, Repsher and Renn and noted that because they agreed that claimant does not suffer from clinical pneumoconiosis, he would limit his review of the evidence to whether claimant established the existence of legal pneumoconiosis. Decision and Order at 15. The administrative law judge determined that the opinions in which Drs. Repsher and Renn diagnosed congestive heart failure, and ruled out the presence of any coal dust related condition, were entitled to diminished weight because both physicians opined that claimant does not have chronic obstructive pulmonary disease (COPD), despite the numerous references to the condition in claimant’s treatment records. Id.

With respect to Dr. Badger’s opinion, that claimant’s pulmonary condition is not related to his heart disease, the administrative law judge deferred to Dr. Badger’s conclusions regarding claimant’s cardiac condition because he has seen and treated claimant for cardiac conditions numerous times and is the only Board-certified cardiologist of record. Decision and Order at 15. Further, the administrative law judge noted that Dr. Badger’s opinion as to claimant’s cardiac function is “greatly bolstered” by the heart catheterizations in the record, which Dr. Badger found to be essentially normal. Id. The administrative law judge also determined that, even if he found that claimant suffers from congestive heart failure, it would not mean that claimant does not also suffer from a coal mine dust-induced lung disease, as a miner can suffer from both COPD and congestive heart failure. Id. at 16.

The administrative law judge found Dr. James’s opinion, that claimant suffers from COPD related to coal dust exposure, to be the most persuasive, reasonable and well supported, as evidenced by claimant’s history of shortness of breath, phlegm production, cough, and airflow limitation on spirometry. Decision and Order at 16. The administrative law judge also noted that Dr. James ruled out other possible causes of claimant’s COPD and treated the miner for his pulmonary conditions, as of the date of the hearing, so he “appears to have the best picture of the miner’s complete medical condition.” Id. The administrative law judge found that Dr. James’s opinion, as supported by Dr. Badger’s opinion, was entitled to greatest weight. Id.

The administrative law judge further found that the negative CT scan reading by Dr. Wiot, a Board-certified radiologist and B reader, did not outweigh the medical opinion evidence. Decision and Order at 16. The administrative law judge concluded by stating that he found the newly submitted medical opinion evidence sufficient to establish the existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4). Id. The administrative law judge also determined, therefore, that claimant established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(d). Id. at 3, 16.

With respect to the merits of entitlement, the administrative law judge noted that in the sole medical opinion developed in conjunction with claimant’s initial claim, Dr. Poitras opined that claimant has mild COPD due to coal...

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