Marshall v. Eastern Associated Coal Corp.
| Decision Date | 15 November 2013 |
| Docket Number | BRB 13-0057 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | JAMES MARSHALL Claimant-Respondent v. EASTERN ASSOCIATED COAL CORPORATION 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UNPUBLISHED OPINION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 Living Miner's Benefits of William S. Colwell, Administrative Law Judge United States Department of Labor.
Joseph E. Wolfe (Wolfe, Williams, Rutherford & Williams) Norton, Virginia, for claimant.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., for employer.
Helen H. Cox (M. Patricia Smith, Solicitor of Labor; Rae Ellen 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order Awarding Living Miner's Benefits (09-BLA-5872) of Administrative Law Judge William S Colwell rendered on a claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (Supp. 2011) (the Act). This case involves a miner's subsequent claim [1]filed on October 20, 2004. [2] Director's Exhibit 3.
Initially, in a Decision and Order issued on December 28, 2007, the administrative law judge credited claimant with twenty-one years of coal mine employment, [3]and found that the medical evidence developed since the denial of claimant's previous claim established that claimant is totally disabled by a respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2), thereby demonstrating a change in the applicable condition of entitlement under 20 C.F.R. §725.309(d). Director's Exhibit 57 at 6, 19. Considering the merits of the claim, the administrative law judge found that the medical evidence did not establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a). Director's Exhibit 57 at 28-29. Accordingly, the administrative law judge denied benefits.
Claimant timely requested modification pursuant to 20 C.F.R. §725.310. Director's Exhibit 58. The claim was referred to the Office of Administrative Law Judges and a hearing was held before the administrative law judge on March 30, 2011. Director's Exhibits 63, 64.
In a Decision and Order issued on September 25, 2012, which is the subject of this appeal, the administrative law judge credited claimant with 20.5 years of coal mine employment, pursuant to the parties' stipulation, and found that claimant smoked one pack of cigarettes per day for thirty-four years. Decision and Order at 3, 5-8. The administrative law judge found that the x-ray, biopsy, CT-scan, and medical opinion evidence did not establish the existence of clinical pneumoconiosis [4]pursuant to 20 C.F.R. §§718.202(a)(1), (2), (4) and 718.107, but that the medical opinion evidence established the existence of legal pneumoconiosis, [5]in the form of emphysema and obstructive lung disease due, in part, to coal mine dust exposure pursuant to 20 C.F.R. §718.202(a)(4). The administrative law judge therefore determined that a mistake in a determination of fact was made in his prior decision denying benefits. See 20 C.F.R. §725.310; Decision and Order at 35. The administrative law judge further found that the evidence established that claimant is totally disabled, pursuant to 20 C.F.R. §718.204(b)(2), and that legal pneumoconiosis is a substantially contributing cause of his total disability, pursuant to 20 C.F.R. §718.204(c). Finding that the evidence did not establish the date upon which claimant became totally disabled due to pneumoconiosis, the administrative law judge awarded benefits as of October 2004, the month in which claimant filed his claim.
On appeal, employer challenges the administrative law judge's findings of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) and total disability due to pneumoconiosis at 20 C.F.R. §718.204(c), contending that the administrative law judge erred in referring to the preamble to the 2000 regulatory revisions when assessing the credibility of the medical opinions. Employer further asserts that the administrative law judge failed to properly resolve the conflicting evidence regarding the extent of claimant's smoking history, and erred in his determination that benefits are payable as of October 2004. Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging the Board to reject employer's contention that the administrative law judge erred in considering the preamble in assessing the credibility of the physicians' opinions. Employer submitted a reply, reiterating its contentions. [6]
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law. 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).
To establish entitlement to benefits under the Act, claimant must establish by a preponderance of the evidence that he is totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
An administrative law judge may grant modification based on a change in conditions or because of a mistake in a determination of fact. 20 C.F.R. §725.310(a). When a request for modification is filed, “any mistake of fact may be corrected [by the administrative law judge], including the ultimate issue of benefits eligibility.” Betty B Coal Co. v. Director, OWCP [Stanley], 194 F.3d 491, 497, 22 BLR 2-1, 2-11 (4th Cir. 1999); Jessee v. Director, OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993).
Employer asserts that the administrative law judge's resolution of the conflicts in the accounts of claimant's smoking history fails to comport with the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a). Employer's Brief at 18. We disagree.
The administrative law judge reviewed the smoking histories contained in claimant's hearing testimony, medical treatment records, and the medical reports of record, and noted that there was “significant variability” in those histories. [7] Decision and Order at 5. Based on his determination that claimant's testimony was credible and supported by a majority of the histories recorded by the examining physicians, the administrative law judge found that claimant smoked from 1954 to 1988, for a total of thirty-four years.
As to the amount that claimant smoked, the administrative law judge found that claimant “credibly” testified that he smoked “a pack or so” a day, and that Drs. Rasmussen, Crisalli, and Zaldivar all noted a one-pack-per-day habit in their examination reports. Decision and Order at 7. Although Dr. Forehand's accounts varied regarding the amount that claimant smoked per day, the administrative law judge explained that he credited Dr. Forehand's most recent account of smoking one pack per day, because it was consistent with claimant's testimony, and with the smoking histories recorded by Drs. Rasmussen, Crisalli, and Zaldivar. Further, the administrative law judge discounted the 1974 hospitalization record notation that claimant was smoking two to three packs per day, because none of claimant's other medical treatment records mentioned a history of smoking two to three packs per day, and because “the source of the information obtained for the hospitalization records is unknown. . . .” Decision and Order at 8. The administrative law judge therefore explained that he accorded “greatest weight to the reports of examining physicians over sparse references to the miner's smoking history in hospitalization records, ” to find that claimant smoked one pack of cigarettes per day. Decision and Order at 8.
Based on the foregoing analysis set forth by the administrative law judge, we conclude that, contrary to employer's contention, the administrative law judge's finding that claimant smoked one pack per day for thirty-four years, ending in 1988, is adequately explained and is supported by substantial evidence. [8] See Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 316, 25 BLR 2-115, 2-132-33 (4th Cir. 2012). As the length and extent of claimant's smoking history is a factual, not medical, determination that is committed to the administrative law judge's discretion, and as no abuse of discretion has been demonstrated, we affirm the administrative law judge's finding that claimant smoked one pack of cigarettes per day for thirty-four years. See Bobick v. Saginaw Mining Co., 13 BLR 1-52, 1-54 (1988); Maypray v. Island Creek Coal Co., 7 BLR 1-683 (1985); Decision and Order at 7-8.
Employer next challenges the administrative law judge's weighing of the medical opinion evidence in finding the existence of legal pneumoconiosis established at 20 C.F.R §718.202(a)(4). The administrative law judge considered the medical opinions of Drs. Zaldivar, Renn, Crisalli, Rasmussen, and Forehand. Drs. Zaldivar, Renn, and Crisalli opined that claimant suffers from smoking-induced obstructive lung disease, while Drs. Rasmussen and Forehand opined that both smoking and coal mine dust exposure contributed to claimant's emphysema and obstructive lung disease. Director's...
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