Morgan v. Consolidation Coal Co.
| Decision Date | 30 July 2010 |
| Docket Number | BRB 09-0739 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | DONALD E. MORGAN Claimant-Respondent v. CONSOLIDATION COAL COMPANY 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UNPUBLISHED OPINION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 Benefits of Michael P Lesniak, Administrative Law Judge, United States Department of Labor.
Lynda D. Glagola (Lungs at Work), McMurray, Pennsylvania, for claimant.
Lindsey M. Sbrolla (Thompson, Calkins & Sutter) Pittsburgh, Pennsylvania, for employer.
Michelle S. Gerdano (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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order - Awarding Benefits (2008-BLA-5072) of Administrative Law Judge Michael P Lesniak, rendered on a subsequent claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2006), amended by Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010) () (the Act). [1] In a Decision and Order dated June 30, 2009, the administrative law judge accepted the parties' stipulation that claimant worked at least thirteen years in coal mine employment and adjudicated this claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found that the evidence established total disability pursuant to 20 C.F.R. §718.204(b), and a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309. The administrative law judge further found, based on his review of the evidence submitted with the subsequent claim, that claimant established the existence of legal pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4), that his pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203, and that he is totally disabled due to pneumoconiosis pursuant to 20 C.F.R. §718.204(c). Accordingly, the administrative law judge awarded benefits.
On appeal, employer contends that the administrative law judge erred in finding that claimant established the existence of legal pneumoconiosis. Employer asserts that the administrative law judge erred in failing to consider evidence from claimant's prior claim, erred in determining the length of claimant's smoking history, erred in relying on the preamble to the regulations when evaluating the medical opinions, mischaracterized the opinions of Drs. Fino and Renn, and failed to explain, in accordance with the Administrative Procedure Act (APA), [2]why he credited the opinions of Drs. Jaworski, Celko and Rasmussen, as establishing that claimant's chronic obstructive pulmonary disease (COPD) was due, in part, to coal dust exposure. Employer further asserts that the administrative law judge erred in applying his credibility determinations at 20 C.F.R. §718.202(a)(4), in finding that claimant established disability causation under 20 C.F.R. §718.204(c). Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs, has filed a limited response brief, asserting that the administrative law judge reasonably considered the preamble in resolving the conflict in the medical opinion evidence. [3] Employer has filed a reply brief, reiterating its argument that the administrative law judge erred in weighing the opinions of Drs. Fino and Renn. [4]
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. [5] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a miner's claim pursuant to 20 C.F.R. Part 718, claimant must prove that he has pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, that he is totally disabled and that his disability is due to pneumoconiosis. See 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes a finding of entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
Employer first contends on appeal that the administrative law judge erred in failing to weigh all of the relevant evidence of record, prior to awarding benefits. Specifically, employer asserts that the administrative law judge did not consider medical evidence contained in claimant's first black lung claim, including a report by Dr. Basheda, relevant to the issues of the existence of legal pneumoconiosis, disability causation and the length of claimant's smoking history. [6] Employer's assertion of error has merit.
The regulation at 20 C.F.R. §725.309(d)(1) requires that “[a]ny evidence submitted in conjunction with any prior claim shall be made part of the record in the subsequent claim, provided that it was not excluded in the adjudication of the prior claim.” 20 C.F.R. §725.309(d)(1). Furthermore, pursuant to 20 C.F.R. §725.309(d), once claimant has established a change in an applicable condition of entitlement in a subsequent claim, the administrative law judge must consider all of the record evidence relevant to claimant's entitlement, including the evidence submitted with any prior claim. See White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). Because the administrative law judge's Decision and Order does not reflect his consideration of the prior claim evidence, we must vacate the award of benefits and remand the case for further consideration. Id.
Employer's next argument is that the administrative law judge erred in finding that claimant's smoking history is “about” fifty pack years. Employer's Brief in Support of Petition for Review at 14; see Decision and Order at 4. In determining the length of claimant's smoking history, the administrative law judge considered claimant's hearing testimony, the five newly submitted medical reports of Drs. Jaworski, Celko, Rasmussen, Fino and Renn, along with claimant's treatment records. [7] The administrative law judge concluded:
In its closing brief, [e]mployer meticulously reviewed every treatment record mention of a smoking history and “submits the miner's smoking history is [eighty] to [one hundred] pack years.” While the treatment records may indeed record a smoking history up to 100 pack years, I find that the most persuasive evidence of [c]laimant's smoking history is from the examining physician[]s in this case, Drs. Jaworski, Rasmussen, Celko and Fino. It is reasonable to conclude that the examining physicians, who were conducting their exams for the express purpose of establishing the extent of [c]laimant's respiratory disease as well as its etiology, would have emphasized the importance of obtaining an accurate smoking history. Therefore, I find the most reasonable evidence establishes that [c]laimant[‘s] smoking history is about [fifty] pack years.
Employer argues that the administrative law judge has “substituted his own personal view in concluding that the physicians who examined [c]laimant as part of the present litigation would have emphasized the importance of obtaining an accurate smoking history” as “[t]here is nothing in the record to support this conclusion. . . .” Employer's Brief is Support of Petition for Review at 14. Based on the administrative law judge's analysis, we agree with employer that the administrative law judge has failed to explain why the pulmonologists who examined claimant during his hospitalizations, [8]for the purpose of either diagnosing or treating his lung condition, would not also have emphasized the importance of obtaining an accurate smoking history from claimant. Consequently, the administrative law judge's credibility determination is not rational. Additionally, the administrative law judge erred in failing to consider the medical report of Dr. Basheda, who also examined claimant in relation to his black lung claim, and reported a smoking history of two packs of cigarettes a day from age eighteen to sixty-seven, resulting in a one-hundred pack year history of smoking. Director's Exhibit 1. Therefore, on remand, the administrative law judge is instructed to reconsider the length of claimant's smoking history, in light of the smoking history recorded by Dr. Basheda.
Pursuant to 20 C.F.R. §718.202(a)(4), employer also argues that the administrative law judge erred in weighing the conflicting medical opinions of Drs. Jaworski, Celko, Fino, Renn and Rasmussen, as to whether claimant established the existence of legal pneumoconiosis. [9] As noted by the administrative law judge, “[a]ll five physicians diagnosed [COPD] and found [c]laimant totally disabled due to pulmonary impairment.” Decision and Order at 16. Drs. Jaworski, Celko and Rasmussen attributed claimant's COPD/emphysema to both smoking and coal dust exposure, while Drs. Fino and Renn opined that coal dust exposure did not significantly contribute to his lung disease. The administrative law judge determined that Drs. Fino and Renn expressed opinions that conflicted with the definition of legal pneumoconiosis, as set forth in the preamble to the revised regulations. He gave greater weight to the opinions of Drs. Jaworski, Celko and Rasmussen, and explained:
All three physician[]s considered both [c]laimant's smoking and coal dust history,...
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