Lee v. Am. Energy, LLC
| Decision Date | 22 June 2022 |
| Docket Number | BRB 21-0104 BLA |
| Parties | ROBERT E. LEE Claimant-Petitioner v. AMERICAN ENERGY, LLC and ROCKWOOD CASUALTY INSURANCE COMPANY Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
ROBERT E. LEE Claimant-Petitioner
v.
AMERICAN ENERGY, LLC and ROCKWOOD CASUALTY INSURANCE COMPANY Employer/Carrier- Respondents
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest
BRB No. 21-0104 BLA
Court of Appeals of Black Lung
June 22, 2022
UNPUBLISHED OPINION
Appeal of Order Granting Motion for Reconsideration and Denying Benefits of Paul C. Johnson, Jr., District Chief Administrative Law Judge, United States Department of Labor.
Robert E. Lee, St. Paul, Virginia.
Catherine A. Karczmarczyk (Penn, Stuart &Eskridge), Johnson City, Tennessee, for Employer and its Carrier.
Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges
DECISION AND ORDER
PER CURIAM
Claimant, without representation,[1] appeals District Chief Administrative Law Judge (ALJ) Paul C. Johnson's Order Granting Motion for Reconsideration and Denying Benefits (2015-BLA-05663), rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a claim filed on November 15, 2013, and is before the Benefits Review Board for a second time.
ALJ Alan L. Bergstrom initially denied Claimant benefits in an October 30, 2017 Decision and Order - Denying Benefits. Pursuant to Claimant's appeal, the Board affirmed ALJ Bergstrom's finding that Claimant is not entitled to the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. Lee v. American Energy, LLC, BRB No. 18-0087 BLA, slip op. at 4 (Nov. 16, 2018). The Board, however, vacated his finding that Claimant failed to establish total disability and thus failed to invoke the Section 411(c)(4) presumption.[2] Id. at 9-11. Furthermore, the Board determined ALJ Bergstrom failed to address whether Claimant's twenty-nine years of coal mine employment qualified to invoke the Section 411(c)(4) presumption. Id. at 10-11 n. 13. Thus, in the event total disability was established on remand, the Board directed him to determine if Claimant had sufficient qualifying coal mine employment to invoke the Section 411(c)(4) presumption. Id. at 10. If Claimant invoked the Section 411(c)(4) presumption, he was then to consider whether Employer and its Carrier (Employer) could rebut it. Id. at 11; 30 U.S.C. §921(c)(4); 20 C.F.R. §718.305.
On remand, this case was assigned to ALJ Johnson because ALJ Bergstrom retired. Order Reassigning Case. ALJ Johnson (the ALJ) issued a Decision and Order on Remand Awarding Benefits on May 21, 2020. He found Claimant established total disability under 20 C.F.R. §718.204(b)(2)(iv) and at least fifteen years of qualifying coal mine employment, thus invoking the Section 411(c)(4) presumption. Decision and Order on Remand at 6-7. He further found Employer failed to rebut it and awarded benefits. Id. at 10-15.
Employer requested reconsideration, asserting the ALJ erred in finding total disability based on the medical opinion evidence.[3] In his Order Granting Motion for Reconsideration and Denying Benefits (Order Granting Reconsideration), the subject of the current appeal, the ALJ reevaluated the evidence and determined it was insufficient to establish total disability. He therefore denied benefits.
On appeal, Claimant generally challenges the ALJ's denial of benefits. Employer responds, urging affirmance. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
Because Claimant is unrepresented, the Board addresses whether substantial evidence supports the Decision and Order below. Hodges v. BethEnergy Mines, Inc., 18 BLR 1-84, 1-86 (1994). We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[4] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman &Grylls Assocs., Inc., 380 U.S. 359 (1965).
Section 411(c)(4) Presumption- Total Disability
A miner is totally disabled if his pulmonary or respiratory impairment, standing alone, prevents him from performing his usual coal mine 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 ALJ must consider all relevant evidence and weigh the evidence supporting total disability against the 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). As the Board previously affirmed the findings that Claimant failed to establish total disability under 20 C.F.R. §718.204(b)(2)(ii), (iii), the remaining avenues to establish total disability are via pulmonary function study or medical opinion evidence. Lee, BRB No. 18-0087 BLA, slip op. at 6 n. 5; 20 C.F.R. §718.204(b)(2)(i), (iv).
Pulmonary Function Studies
On remand, the ALJ considered six pulmonary function studies conducted on October 30, 2013, March 26, 2014, August 1, 2014, August 15, 2014, July 2, 2015, and May 24, 2016. Decision and Order on Remand at 3-4. The October 30, 2013 pulmonary function study was qualifying[5] before the administration of bronchodilators. Claimant's Exhibit 3. The March 26, 2014 study was non-qualifying before and after the administration of bronchodilators. Director's Exhibit 10. The August 1, 2014 study was qualifying before the administration of bronchodilators. Claimant's Exhibit 45. The August 15, 2015 pulmonary function study was non-qualifying before and after the administration of bronchodilators. Director's Exhibit 11. The July 2, 2015 pulmonary function study was qualifying before the administration of bronchodilators and nonqualifying after the administration of bronchodilators. Employer's Exhibit 1. The May 24, 2016 pulmonary function study was non-qualifying before the administration of bronchodilators. Employer's Exhibit 4. The ALJ found the results of the pulmonary function study evidence are in equipoise and therefore do not establish total disability.[6]Decision and Order on Remand at 4.
Addressing the Board's remand instructions, the ALJ found the August 15, 2014 and July 2, 2015 studies valid[7] for determining total disability.[8] Id. at 3. He noted Dr. Sargent "signed off" on the August 15, 2014 study, which Dr. Sargent believed represented a "true and accurate reflection of the patient's current clinical condition." Id. at 3, citing Director's Exhibit 11. The ALJ also found the July 2, 2015 test valid given that the technician who performed it indicated the data was "acceptable and reproducible" and Dr. McSharry "signed off" on it. Decision and Order on Remand at 3. Because it is supported by substantial evidence, we affirm the ALJ's findings that the August 15, 2014 and July 2, 2015 pulmonary function studies are reliable. See Keener v. Peerless Eagle Coal Co., 23 BLR 1-229, 1-237 (2007) (en banc); Orek v. Director, OWCP, 10 BLR 1-511, 1-54-5 (1987); Decision and Order on Remand at 3.
On remand the ALJ also reconsidered whether ALJ Bergstrom had properly admitted the May 24, 2016 pulmonary function study into evidence.[9] Lee, BRB No. 180087 BLA, slip op. at 9. He rationally determined the study was admitted into the record, as Employer submitted it at the hearing and it is clearly a part of Claimant's treatment records. See V.B. [Blake] v. Elm Grove Coal Co., 24 BLR 1-109, 1-113 (2009); Decision and Order on Remand at 2-3; Hearing Transcript at 11; Employer's Evidence Summary Form; Employer's Exhibit 4. Employer is correct that the ALJ did not, as the Board instructed, first determine if the study was sufficiently reliable to establish total disability.[10]
65 Fed.Reg. 79,920, 79,928 (Dec. 20, 2000); Lee, BRB No. 18-0087 BLA, slip op. at 9 n. 8; Decision and Order on Remand at 3; Employer's Response at 6. But there is no indication that the study is invalid or unreliable, and Dr. McSharry opined the test is reproducible. Vivian v. Director, OWCP, 7 BLR 1-360 (1984) (the party challenging the validity of a study has the burden to establish the results are suspect or unreliable); Employer's Exhibits 3, 4. As such, any error in not determining the reliability of the test was harmless.[11] Larioni v. Director, 6 BLR 1-1276, 1-1278 (1984).
The ALJ noted the results of the pulmonary function studies are mixed, with the first test being qualifying and the final test producing non-qualifying values before and after bronchodilators. Decisions and Order on Remand at 4. He further noted the studies alternated between qualifying and non-qualifying values, separated by five months, six months, two weeks, one year, and one year. Id. Because the ALJ did a qualitative and quantitative review of the tests, his findings are supported by substantial evidence and therefore we affirm his determination that Claimant did not establish total disability at 20 C.F.R. §718.204(b)(2)(i).[12] See Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 557 (4th Cir. 2013); Decision and Order on Remand at 4.
Medical Opinions
Notwithstanding non-qualifying objective testing, total disability may be established by a reasoned medical opinion that the miner is unable to perform his usual coal mining work. 20 C.F.R. §718.204(b)(2)(iv); see also Killman v. Director, OWCP, 415 F.3d 716, 721-22 (7th Cir. 2005); Cornett v. Benham Coal, Inc., 227 F.3d 569, 577 (6th Cir. 2000). A miner's usual coal mine employment is the most recent job he performed regularly and over a substantial period of time. Shortridge v. Beatrice Coal Co., 4 BLR 1535, 1-538-39 (1982).
The ALJ considered the medical opinions of Drs. Ajjarapu, Sargent, and McSharry. Dr. Ajjarapu opined Claimant has a severe, totally disabling pulmonary impairment...
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