Lollar v. Alabama By-Products Corp., BY-PRODUCTS

Citation893 F.2d 1258
Decision Date06 February 1990
Docket NumberNos. 89-7221,BY-PRODUCTS,89-7222,s. 89-7221
PartiesHenry C. LOLLAR, Petitioner, v. ALABAMACORP., and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Arthur HICKS, Petitioner, v. ALABAMACORP., and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Patricia Guthrie Fraley, Cooper, Mitch, Crawford et al., Birmingham, Ala., for petitioner.

Linda M. Meekins, Clerk, Benefits Review Bd., U.S. Dept. of Labor, Washington, D.C., H. Thomas Wells, Jr., Maynard, Cooper, Frierson, et al., Birmingham, Ala., Karen Blank, U.S. Dept. of Justice, Office of Sol., Michael J. Denny, Nicholas J. Leventow, Washington, D.C., for respondents in No. 89-7221.

H. Thomas Wells, Jr., Maynard, Cooper, Frierson, et al., Birmingham, Ala., Karen Blank, U.S. Dept. of Justice, Office of Sol., Michael J. Denney, Nicholas J. Levintow, Washington, D.C., for respondents in No. 89-7222.

Petitions for review from the Benefits Review Board of the United States Department of Labor.

Before JOHNSON and EDMONDSON, Circuit Judges, and PECKHAM, * Senior District Judge.

JOHNSON, Circuit Judge:

Henry C. Lollar and Arthur Hicks ("the petitioners") seek review of decisions of the Benefits Review Board ("BRB" or "Board") of the United States Department of Labor ("DOL") denying them benefits under the Black Lung Benefits Act, 30 U.S.C.A. Secs. 901-945 ("the Act"), and its accompanying regulations, 20 C.F.R. Part 718. 1

I. FACTS AND PROCEDURAL HISTORY
A. Petitioner Lollar

Lollar was born in 1918, and began working in coal mines in the 1950s. He retired from respondent Alabama By-Products Corporation ("ABC") in 1985, after having worked in coal mining for at least 21 years. Medical records from 1961 to 1984 indicate that Lollar has suffered from coronary heart disease, obesity, chronic obstructive pulmonary disease, and hypertension. Since 1972, x-ray results have also indicated pneumoconiosis ("black lung"). On March 15, 1985, Lollar was examined by Dr. Jack H. Hasson, who found that Lollar suffered from heart disease, pneumoconiosis, interstitial lung disease, and chronic bronchitis. Dr. Hasson found Lollar's lung x-ray taken on that date to indicate parenchymal abnormalities consistent with pneumoconiosis and with interstitial lung disease of multiple etiologies. In a follow-up letter of June 1, 1987, Dr. Hasson stated that, based on the 1985 examination, Lollar suffered a significant drop in his oxygen blood-gas level after only low-level exercise and "would have difficulty in performing work over an 8 hour period." Lollar's lung x-ray taken on May 26, 1987 was read by Dr. James W. Ballard, who found parenchymal abnormalities throughout all six lung zones consistent with pneumoconiosis.

Lollar applied for black lung benefits on February 5, 1985. The DOL initially denied his claim. Following a hearing held on July 14, 1987, an Administrative Law Judge ("ALJ") awarded Lollar benefits on October 2, 1987. The ALJ found that Lollar had pneumoconiosis, that the pneumoconiosis arose from his coal mine employment, and that Lollar suffered a total pulmonary disability due to his pneumoconiosis. ABC appealed this decision to the BRB on the grounds that the evidence rebutted the regulatory presumption that Lollar's pneumoconiosis arose out of his coal mine employment, 2 and that there was not substantial evidence to support the ALJ's finding that Lollar's total disability was due to pneumoconiosis. On January 27, 1989, the BRB reversed the ALJ solely on the latter ground and denied Lollar benefits.

B. Petitioner Hicks

Hicks was born in 1921, and worked in coal mining for at least 26 years before retiring from ABC in 1983. A majority of Hicks's x-rays between 1974 and 1984 were found by Hicks's physicians to indicate pneumoconiosis. Hicks also has a history of heart attack, ischemic heart disease, hypertension, chronic bronchitis, bullous emphysema, allergies, syncopic disorientation, and chronic arthritis aggravated by obesity. Hicks had smoked one or more packs of cigarettes a day for about thirty years but quit around 1973. Pulmonary function tests showed that Hicks suffered significant respiratory impairment.

Dr. Allan R. Goldstein, who had earlier treated Hicks in 1975 and 1976, examined him again on July 10, 1984, and found that he suffered from shortness of breath and "a definite decrease in his pulmonary functions." Dr. Goldstein concluded that Hicks's pulmonary impairment "would be most consistent with interstitial fibrosis, chest wall deformity, pleural disease, excessive weight or interstitial disease," and gave his impression of Hicks's condition as "[s]hortness of breath with restrictive pulmonary functions and pleural disease by chest x-ray with minimal parenchymal disease, all of which is consistent with coal workers' pneumoconiosis." Most recently, Hicks was examined on May 26, 1987 by his family physician, Dr. Steve Johnson. Dr. Johnson, who had treated Hicks for about 12 months, indicated in brief, conclusory answers on a standardized form that Hicks had black lung and chronic bronchitis, that his condition was caused by coal dust exposure, and that he was totally disabled by his lung condition. Dr. Johnson relied, however, on the erroneous premise that Hicks had never smoked, and he failed to provide any medical notes to supplement his report or indicate the observations or tests, if any, on which he based his diagnosis.

Hicks applied for black lung benefits on February 22, 1983, and was initially found entitled to benefits by the DOL. ABC contested that finding and requested a hearing before an ALJ. The hearing was held on June 24, 1987, and the ALJ denied Hicks benefits on September 28, 1987. Hicks appealed to the BRB, which affirmed the ALJ's decision on January 27, 1989.

C. The Consolidated Appeal

Lollar's and Hicks's petitions for review in this Court have been consolidated. In Lollar's case, it is not contested before this Court that Lollar has pneumoconiosis, that his pneumoconiosis arose from his coal mine employment, 3 and that he suffers from a totally disabling pulmonary impairment. Thus, the only issue presented for our decision in Lollar's case is whether Lollar's pulmonary disability was "due to" his pneumoconiosis within the meaning of 20 C.F.R. Sec. 718.204(a). In Hicks's case, it is not contested before this Court that Hicks has pneumoconiosis and that his pneumoconiosis arose from his coal mine employment. Thus, the issues presented in Hicks's case are whether Hicks suffered from a totally disabling pulmonary impairment within the meaning of 20 C.F.R. Sec. 718.204(c), and whether such disability was "due to" pneumoconiosis within the meaning of 20 C.F.R. Sec. 718.204(a).

II. DISCUSSION
A. Standard of Review

Decisions of the ALJ are reviewable only as to whether they are in accordance with law and supported by substantial evidence in light of the entire record. This deferential standard of review binds both the BRB and this Court. See Jordan v. Benefits Review Bd., 876 F.2d 1455, 1459 (11th Cir.1989); Stomps v. Director, OWCP, 816 F.2d 1533, 1534 (11th Cir.1987); Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511, 1515 (11th Cir.1984). Because this Court applies the same standard of review to ALJ decisions as does the BRB, our review of BRB decisions is de novo. 4 "Substantial evidence" has been defined as "more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citation and internal quotation marks omitted).

It is well established that "courts must defer to an agency's consistent interpretation of its own regulation unless it is 'plainly erroneous or inconsistent with the regulation.' " Director, OWCP v. Mangifest, 826 F.2d 1318, 1323 (3d Cir.1987) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)); accord Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987). We owe this deference, however, only to the Director of the Office of Workers' Compensation Programs of the DOL ("the Director") as the relevant policymaker in this case; the BRB is not a policymaker and its interpretations are not entitled to any special deference. See Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980); Mangifest, 826 F.2d at 1323.

B. Governing Law

Generally speaking, a miner seeking black lung benefits under the Act must establish: "(1) that he suffers from pneumoconiosis, (2) that his pneumoconiosis arose from his coal mine employment, and (3) that he is totally disabled due to the pneumoconiosis." Mangus v. Director, OWCP, 882 F.2d 1527, 1529 (10th Cir.1989). The present case revolves around the third factor, which is governed by 20 C.F.R. Sec. 718.204(a). Section 718.204(a) states that "[b]enefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis." (Emphasis added.) Section 718.204(b) defines "total disability," stating that

a miner shall be considered totally disabled if pneumoconiosis as defined in Sec. 718.201 5 prevents or prevented the miner: (1) From performing his or her usual coal mine work; and (2) From engaging in gainful employment in the immediate area of his or her residence requiring the skills or abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity over a substantial period of time. [Emphasis added.]

Section 718.204(c) provides various criteria by which the existence of the total pulmonary or respiratory disability contemplated by section 718.204(b) may be established. Section 718.204...

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