Jarvis v. Carbon Fuel Company
| Decision Date | 07 October 2003 |
| Docket Number | No. 02-1061.,02-1061. |
| Parties | BUDE JARVIS, <I>Petitioner,</I> v. CARBON FUEL COMPANY; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, <I>Respondents.</I> |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Timothy Francis Cogan, CASSIDY, MYERS, COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia, for Petitioner. Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Morgantown, West Virginia, for Respondents. ON BRIEF: Kathy L. Snyder, JACKSON & KELLY, P.L.L.C., Morgantown, West Virginia, for Respondent Carbon Fuel.
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Bude Jarvis, a coal miner, appeals the Decision and Order of the Benefits Review Board (Board) affirming the decision of an Administrative Law Judge (ALJ) to deny Jarvis benefits on a claim filed pursuant to the provisions of the Black Lung Benefits Act (the Act), as amended, 30 U.S.C.A. §§ 901-45 (West 1986 & Supp. 2003). See Jarvis v. Carbon Fuel Co., BRB No. 01-0171 BLA (Nov. 19, 2001) (J.A. at 571-84). Because the factual findings of the ALJ were supported by substantial evidence, and the legal conclusions of both the ALJ and the Board were consistent with applicable law, we affirm.
Jarvis worked as a coal miner for 32 years. In 1978, Jarvis was refused employment because he had pneumoconiosis. He filed his first claim for black lung benefits1 on March 13, 1979, which was denied because he was not totally disabled. He filed a request for modification of this decision, which also was denied. Jarvis appealed the ALJ's decision to the Board, which affirmed, and then appealed the Board's decision to this court, which likewise affirmed. See Jarvis v. Carbon Fuel Co., 23 F.3d 401 (4th Cir. 1994) (unpublished).
In July 1996, Jarvis filed a new claim. Because of the denial of his earlier claim, the 1996 claim was subject to the "duplicate claims" regulation, which provides, in relevant part, as follows: "If the earlier . . . claim has been finally denied, the later claim shall also be denied, on the grounds of the prior denial, unless the deputy commissioner determines that there has been a material change in conditions[.]" 20 C.F.R. § 725.309(d) (1996). Therefore, because Jarvis's earlier claim was denied for failure to show total disability, the later claim was subject to denial unless Jarvis could show that he was totally disabled. Section 718.204 provides that a miner can show total disability by invoking the irrebuttable presumption under 20 C.F.R. § 718.304 (2003),2 or producing any of the following evidence: (1) pulmonary function tests showing qualifying values; (2) arterial blood-gas tests showing qualifying values; (3) the miner has pneumoconiosis and has been shown by medical evidence to be suffering from cor pulmonale with right sided congestive heart failure; or (4) the reasoned medical judgment of a physician based on acceptable techniques concluding that the miner cannot engage in coal mine work. See 20 C.F.R. § 718.204(b), (c) (2003).
The Department of Labor originally denied Jarvis's duplicate claim by notice dated January 15, 1997. At Jarvis's request, the case was then forwarded to ALJ Clement J. Kennington, who held a hearing on April 22, 1998. ALJ Kennington denied Jarvis's claim in a Decision and Order issued on August 5, 1998. ALJ Kennington reviewed the following medical evidence in rendering his decision: the readings of twenty-six chest x-rays taken from 1973 to 1997 and the qualifications of those examining physicians; ten pulmonary function studies taken between 1976 and 1997, which did not produce any qualifying values (i.e., values equal to or less than those values provided in Appendix B of the Act); seven blood gas studies taken between 1976 and 1997, of which two from 1980 produced qualifying values (values equal to or less than those provided in Appendix C of the Act); and the reports of twelve physical examinations.3
Examining all this evidence together, ALJ Kennington found that there was conflict among the physicians as to whether there was additional evidence of complicated pneumoconiosis. In reviewing the qualifications of the various physicians, as is required by the law of this circuit, see Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 440 (4th Cir. 1997), he found all of the physicians to be equally credible and stated that he found "no basis for according greater weight to the interpretations of either," and thus found the evidence to be "equally balanced." (J.A. at 359.) Accordingly, ALJ Kennington concluded that he was required to deny benefits because Jarvis had failed to prove by a preponderance of the evidence that he had complicated pneumoconiosis.
Following this decision, Jarvis filed an appeal with the Board. While that appeal was pending, he filed a request for modification with the district director. Consequently, the Board dismissed the appeal on August 25, 1999, and remanded the case to the district director for modification proceedings.
Pursuant to this order, a new hearing was held on July 26, 2000 before ALJ Daniel L. Leland. In addition to incorporating some of the evidence reviewed in the previous ALJ decision of August 5, 1998,4 Jarvis presented new evidence consisting of the interpretations by various physicians of three new chest x-rays, a letter from Jarvis's treating physician, three new medical reports, and additional depositions of physicians. On September 28, 2000, ALJ Leland issued a Decision and Order denying the claim. In his decision, ALJ Leland first noted that Jarvis had not met any of the criteria in section 718.204(c) to establish a finding of total disability. Specifically, pulmonary function studies and blood gas tests produced non-qualifying values, there was no evidence of cor pulmonale, and each of the examining physicians had determined that Jarvis had the respiratory capacity to perform his usual coal mine work. Next, ALJ Leland found that the conditions required to establish the irrebuttable presumption under section 718.304 were not met, because, although three physicians did interpret three different x-rays to show signs of complicated pneumoconiosis, numerous other physicians interpreted those same x-rays as showing only simple pneumoconiosis. In arriving at his conclusion, ALJ Leland remarked that the testimony of Dr. Deardorff, a physician who had testified before ALJ Kennington that a 1996 x-ray may show complicated pneumoconiosis, was "highly equivocal . . . and [Dr. Deardorff] basically gave [Jarvis] the benefit of the doubt." (J.A. at 564 n.3.) Thus, ALJ Leland accorded Dr. Deardorff's testimony little weight in making his determination of whether Jarvis had complicated pneumoconiosis.
Reviewing all of this evidence, ALJ Leland concluded that the preponderance of the x-ray evidence did not support a finding of complicated pneumoconiosis. ALJ Leland thus concluded that Jarvis had failed to demonstrate a material change in his condition, and declined Jarvis's request to modify ALJ Kennington's decision denying the claim.
Jarvis appealed the September 2000 decision to the Board. On November 19, 2001, the Board affirmed the decision of ALJ Leland denying benefits, finding it to be supported by substantial evidence.5
We review claims for benefits under the Act to determine whether substantial evidence supports the factual findings of the ALJ. Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 190 (4th Cir. 2000). "Substantial evidence consists of sufficient relevant evidence to convince a reasonable mind that the evidence is adequate to support a conclusion." Scott v. Mason Coal Co., 289 F.3d 263, 267 (4th Cir. 2002); see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Applying this standard, "we must affirm the Board if it properly determined that the ALJ's findings are supported by substantial evidence." Doss v. Director, Office of Workers' Comp. Programs, 53 F.3d 654, 659 (4th Cir. 1995). We review the ALJ's and the Board's conclusions of law de novo. See Scott v. Mason Coal Co., 60 F.3d 1138, 1140 (4th Cir. 1995).
On appeal to this court, Jarvis argues that: (1) the Department of Labor did not properly provide Jarvis and his attorney with the entire record, thereby violating his due process rights, (2) the evidence that ALJ Leland and the Board credited in making their determinations was not reliable because proper weight was not accorded to the fact that the physicians rendered conflicting reports, (3) ALJ Leland merely "counted heads" in rendering his decision, (4) ALJ Leland erred in disregarding Dr. Deardorff's opinion as "highly equivocal" or equivocal, (5) Dr. Wiot's rationale regarding Jarvis's diagnosis is not worthy of weight, (6) ALJ Kennington erred in not following the presumption that legal pneumoconiosis is a progressive disease, (7) ALJ Kennington and ALJ Leland did not discharge their respective duties to prevent Carbon Fuel Company from submitting cumulative evidence, considering that Jarvis was unrepresented by counsel, (8) ALJ Kennington and ALJ Leland erred in relying upon evidence that the pulmonary function and blood gas tests were non-qualifying, because an inference of non-disability does not arise from these results, and (9) ALJ Leland erred in not considering the issue of hostility to the Act. We address each of these arguments in turn.
The issues that Jarvis raises in this appeal deal principally with the manner in which the ALJs reviewed the evidence in the case. The exceptions are his contention that the Board deprived him of due process when it considered his case and his claim that ALJ Kennington and ALJ Leland erroneously admitted cumulative evidence. We will consider these issues before turning to the bulk of his argument.
Jarvis...
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