Meyer v. Zeigler Coal Co.

• Decision Date: 31 January 1990
• Docket Number: No. 86-2292,86-2292
• Citation: 894 F.2d 902
• Parties: William Frank MEYER, Petitioner, v. ZEIGLER COAL COMPANY, and Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 902

894 F.2d 902

William Frank MEYER, Petitioner, v. ZEIGLER COAL COMPANY, and Director, Office of Workers' Compensation Programs, Respondents.

No. 86-2292.

United States Court of Appeals Seventh Circuit.

Argued Feb. 14, 1989.

Decided Jan. 31, 1990.

Thomas Broden (argued), Notre Dame Law School, Notre Dame, Ind., Kathleen M. Burke, for petitioner.

Mark E. Solomons (argued), Arter & Hadden, Washington, D.C., for respondent, Zeigler Coal Co.

Thomas L. Holzman, Office of the Sol., Brian Peters, Dept. of Labor, Black Lung Div., Washington, D.C., for respondent Office of Workers' Compensation Programs.

Carla Chapman, Benefits Review Bd., Dept. of Labor, Washington, D.C., for respondent Benefits Review Bd.

Before CUDAHY and KANNE, Circuit Judges and ESCHBACH, Senior Circuit Judge.

KANNE, Circuit Judge.

William Meyer retired from thirty-nine years of coal mine employment on December 30, 1976, at age 60. On March 3, 1978, Meyer filed an application for benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-45 (the "Act"). The Department of Labor ("DOL") initially denied Meyer's application for benefits. Notwithstanding this denial, the DOL eventually reversed course and entered an initial determination of entitlement to benefits.

Subsequently, Zeigler Coal Company ("Zeigler"), Meyer's employer, contested Meyer's entitlement to benefits. A formal hearing was held before an administrative law judge ("ALJ") and on October 5, 1983, the ALJ issued a decision and order reversing the determination of entitlement to benefits.

In reaching his decision, the ALJ evaluated the record under the DOL's interim presumption system, set out in 20 C.F.R. Sec. 727.203. Under 20 C.F.R. Sec. 727.203(a)(1)-(4), a coal miner is presumed totally disabled due to pneumoconiosis if he has engaged in coal mine employment for at least ten years ¹ and can establish one of the following medical requirements:

(1) A chest roentgenogram (x-ray), biopsy, or autopsy establishing the existence of pneumoconiosis,

(2) Ventilatory studies conforming to values set by regulation,

(3) Blood gas studies conforming to values set by regulation, or

(4) Other medical evidence, including the documented opinion of one physician exercising reasoned medical judgment, establishing the presence of a totally disabling respiratory or pulmonary impairment.

The ALJ determined that the interim presumption of disability could not be invoked under either Sec. 727.203(a)(1), (2) or (3). However, relying on the medical opinion of Dr. Robert Fulk, the ALJ found that Meyer invoked the presumption of disability under Sec. 727.203(a)(4). ²

The ALJ concluded, however, that Meyer was not entitled to benefits because Zeigler successfully rebutted the Sec. 727.203(a)(4) interim presumption. In his rebuttal inquiry, the ALJ relied for the most part on the medical opinion evidence of Dr. Thomas Dew. The ALJ found that Dr. Dew's opinion, coupled with the objective test findings in the record, rebutted the interim presumption under Sec. 727.203(b)(2). That section states that an employer can rebut a presumption of disability by establishing that an employee is capable of doing his usual coal mine work or comparable and gainful work. ³

Meyer subsequently appealed the ALJ's decision to the Benefits Review Board of the Department of Labor. The Board issued a decision and order summarily affirming the ALJ's denial of benefits, holding that the ALJ's rebuttal findings were supported by substantial evidence. Meyer now appeals to this court. For the reasons discussed below, we affirm the ALJ's decision.

In this appeal, Meyer contends that there are two basic grounds on which to reverse the ALJ's decision. First, Meyer argues that the ALJ erred in refusing to invoke the interim presumption under 20 C.F.R. Sec. 727.203(a)(2). Second, Meyer contends the ALJ erred in holding that Zeigler rebutted the 20 C.F.R. Sec. 727.203(a)(4) interim presumption.

We disagree with Meyer's contention that the ALJ erred because he did not invoke the Sec. 727.203(a)(2) presumption. Under Sec. 727.203(a)(2), ventilatory studies must establish the presence of a chronic respiratory or pulmonary disease according to values specified in that section. That section contains a table which sets out several pairs of forced expiratory volume ("F.E.V.") and maximum voluntary ventilation ("M.V.V.") values. If the claimant's F.E.V. and M.V.V. values are the same or lower than the values specified in the table for that claimant's height, the ALJ must invoke the (a)(2) interim presumption.

Meyer argues that the ALJ erred because he failed to properly apply the values specified in the (a)(2) table. Meyer claims that the ALJ was incorrect in using F.E.V. and M.V.V. values corresponding to a claimant 72 inches tall because the evidence supports the fact that Meyer is 73 inches in height. Meyer contends that because one of the ventilatory studies in the record contained F.E.V. and M.V.V. values lower than those in the table for a 73 inch claimant, the ALJ was required to invoke the (a)(2) presumption. ⁴

The standard of review for black lung claims has long been settled. Findings of fact and conclusions following therefrom must be affirmed if supported by substantial evidence on the record considered as a whole. Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968); Amax Coal Co. v. Director, Office of Workers' Compensation Programs, 801 F.2d 958, 961 (7th Cir.1986); Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, 778 F.2d 358, 362 (7th Cir.1985); Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir.1985). In addition, this court cannot reweigh the evidence or set aside an inference because it finds an opposite inference more reasonable or because it questions its factual basis. Amax Coal Co. v. Burns, 855 F.2d 499, 501 (7th Cir.1988); Peabody Coal Co. v. Benefits Review Bd., 560 F.2d 797, 802 (7th Cir.1977). The power to make credibility determinations and resolve inconsistencies in the evidence presented is within the sole province of the ALJ. Freeman United Coal Mining Co. v. Benefits Review Bd., 879 F.2d 245, 249 (7th Cir.1989); Peabody Coal Co. v. Benefits Review Bd., 560 F.2d at 802.

Here, the ALJ was presented with conflicting evidence which he was entitled to resolve. Dr. Dew's report had Meyer measured at 72 inches tall while Dr. Fulk's report and two ventilatory studies put Meyer at 73 inches. At the formal hearing, Meyer's attorney noted this discrepancy and asked Meyer what his true height was. Meyer said it was 73 inches. At that point, both Meyer's attorney and Zeigler's attorney suggested to the ALJ that a physician present at the hearing measure Meyer. The ALJ declined the opportunity to have Meyer measured.

While perhaps the ALJ should have inquired more extensively into what Meyer's height was, or taken further steps to determine his height, our only task is to determine whether there was substantial evidence in the record to support the ALJ's finding that Meyer was 72 inches tall. Substantial evidence is "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); Ray v. Bowen, 843 F.2d 998, 1001 (7th Cir.1988). Here, the ALJ was faced with conflicting evidence regarding Meyer's height. One doctor's measurement put Meyer at 72 inches while others' put him at 73 inches. We cannot say that the ALJ was unreasonable in accepting one of these measurements as adequate to support a conclusion of what Meyer's height actually is. While further steps to determine Meyer's height would have been desirable, Dr. Dew's 72 inch measurement was adequate to support the ALJ's conclusion that Meyer was indeed 72 inches tall. The ALJ, therefore, did not misapply the Sec. 727.203(a)(2) table when he compared Meyer's F.E.V. and M.V.V. values to the values corresponding to a 72 inch miner. Since the ALJ did not misapply the table, he did not err in refusing to invoke the Sec. 727.203(a)(2) interim presumption.

Even if we agreed with Meyer that the ALJ erred in refusing to invoke the Sec. 727.203(a)(2) interim presumption, we would still affirm the ALJ's decision to deny Meyer benefits because we find that the ALJ correctly held that Zeigler rebutted the presumption of disability under Sec. 727.203(b)(2). Section 727.203(b)(2) provides that the interim presumption is rebutted if, in light of all relevant evidence, it is established that the claimant is able to do his usual coal mine work or comparable and gainful work. The ALJ held that the Sec. 727.203(b)(2) rebuttal was established because the evidence demonstrated that Meyer did not have a totally disabling respiratory disease.

Meyer argues that the ALJ erred because he applied an incorrect legal standard in determining whether Zeigler established the (b)(2) rebuttal. Specifically, Meyer asserts that the ALJ erred because he placed substantial weight on Dr. Dew's conclusion that "Meyer [is] a healthy man capable of doing anything that any other 63 year old man is capable of doing." Meyer asserts that the (b)(2) standard is not whether the claimant can do what any other 63 year old can do but whether the claimant can perform his usual or comparable work. Meyer contends that the ALJ should have applied either the "usual coal mine employment" test or the "last job" test this court discussed in Peabody Coal Co. v. Director, Office of Workers' Compensation, 778 F.2d 358 (7th Cir.1985) and, since he failed to use either of these tests to weigh the rebuttal evidence, his decision is contrary to law.

We disagree with Meyer's contention that the ALJ applied an incorrect legal standard in determining (b)(2) rebuttal. Meyer argues that under Peabody, Zeigler has not established the (b)(2) rebuttal because Meyer has shown that he is unable to perform the task of...