Morrison v. Tenn. Consol. Coal Co.

Decision Date15 July 2011
Docket NumberNo. 10–3008.,10–3008.
Citation644 F.3d 473
PartiesDwight MORRISON, Petitioner,v.TENNESSEE CONSOLIDATED COAL COMPANY; A.T. Massey; Director, Office of Workers' Compensation Programs, United States, Respondents.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF: Ronald E. Gilbertson, Husch Blackwell, Washington, D.C., Michelle S. Gerdano, United States Department of Labor, Washington, D.C., for Respondents. Dwight Morrison, Whitwell, Tennessee, pro se.Before: COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Petitioner Dwight Morrison appeals an order of the Benefits Review Board (“Board”) affirming a decision of an Administrative Law Judge (“ALJ”) denying Morrison's claim for benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. § 901, et seq. For the reasons that follow, we vacate the order of the Board, and remand for further proceedings consistent with this opinion.

I.

Morrison was born in 1953. He worked primarily as an underground surveyor for respondent, Tennessee Consolidated Coal Company (TCCC), from May of 1975 until September of 1997, when he was laid off as part of a reduction in force. After he was laid off, Morrison worked for another five months in a non-coal mine position. He thus established a total of twenty-two years and four months of coal mine employment.

Morrison filed his first claim for black lung benefits on September 21, 1998. Pete Soteres, M.D., examined Morrison on behalf of the Department of Labor (“DOL”) on December 14, 1998, in connection with this first claim. The claim was denied by the district director on February 16, 1999, on the ground that Morrison failed to establish any of the medical elements of entitlement. Morrison did not appeal.

On February 22, 2007, Morrison filed the instant claim. Two physicians submitted medical opinions in connection with this subsequent claim: Suresh Enjeti, M.D., and Anuj Chandra, M.D., D.A.B.S.M. In addition, the record contains three interpretations of two x-rays taken on December 14, 1998, and April 16, 2007.

Nicholas Sargent, M.D., a B-reader and Board-certified radiologist,1 and Dr. Soteres, a physician with no radiological qualifications, interpreted Morrison's December 14, 1998, x-ray as negative for pneumoconiosis. Dr. Enjeti, a physician with no radiological qualifications, rendered the only substantive interpretation of Morrison's April 16, 2007, x-ray.2 In completing the x-ray reading form, Dr. Enjeti checked “no” in response to the question: “Is Film Completely Negative?” In addition, he marked “no” in response to “any parenchymal abnormalities consistent with pneumoconiosis?” and noted “not sure.” He indicated, by checking the “no” box, that there were no pleural abnormalities consistent with pneumoconiosis. In the comment section he noted: “1x2 cm density right mid lung; plate-like atelectasis left lower lung.”

The DOL provided Morrison with two pulmonary examinations, one in connection with each of his claims for benefits. The first was on December 14, 1998, by Dr. Soteres, who conducted a physical examination, chest x-ray, blood gas studies, pulmonary function testing, and an electrocardiogram. Dr. Soteres diagnosed “SOB [shortness of breath] of unknown etiology,” but opined that Morrison suffered no impairment.

On April 16, 2007, Dr. Enjeti examined Morrison in connection with his subsequent claim for benefits. Like Dr. Soteres, he performed a chest x-ray, a pulmonary function study, and an arterial blood gas study. The pulmonary function study produced an FEV1 value of 2.23 L/s, an FVC value of 2.61 L, and FEV1/FVC ratio of 86. After the administration of bronchodilator medication, the study determined an FEV1 value of 1.53 L/s, an FVC of 1.79 L, and an FEV1/FVC ration of 85. While the study itself states that the [s]pirometry data is acceptable and reproducible,” Dr. Enjeti noted in his written report a “nonreproducable effort,” presumably in reference to the pulmonary function test. Dr. Enjeti interpreted the test as showing a “moderate restrictive lung disease.”

Based on his examination, Dr. Enjeti diagnosed: (1) restrictive lung disease, (2) right mid lung density, (3) bilateral hilar adenopathy.” He attributed Morrison's restrictive lung disease to “body habitus,” but did not opine on the etiology of Morrison's right mid-lung density or bilateral hilar adenopathy. Dr. Enjeti concluded that Morrison showed no signs of impairment from any of these diagnoses.

In addition to the two DOL ordered opinions, the record contains a 2007 opinion by Dr. Chandra. He conducted a sleep study of Morrison and diagnosed “sleep-disordered breathing / obstructive sleep apnea.” In his report, Dr. Chandra also noted “a history of COPD [chronic obstructive pulmonary disease] and exposure to coal” and a “history of black lung[.] However, Dr. Chandra did not provide any medical documentation in support of these notations.

On October 29, 2008, the ALJ issued a decision and order denying benefits. The ALJ found that none of the x-ray interpretations were positive for pneumoconiosis under 20 C.F.R. § 718.202(a)(1). He also weighed the medical opinion evidence under 20 C.F.R. § 718.202(a)(4), and found that Drs. Soteres and Enjeti did not make a diagnosis of clinical or legal pneumoconiosis. “In the case of Dr. Chandra's sleep study,” the ALJ found that “no objective medical evidence supports a diagnosis of COPD or pneumoconiosis.” Moreover, the ALJ noted that “Dr. Chandra did not diagnose [Morrison] with clinical or legal pneumoconiosis.”

The ALJ also addressed the issue of disability under 20 C.F.R. § 718.202(b)(2), and concluded that Morrison established a totally disabling respiratory impairment based solely on the post-bronchodilator results of Dr. Enjeti's April 16, 2007, pulmonary function study. However, because Morrison did not establish that he had pneumoconiosis, the ALJ determined that Morrison could not show that his total disabling condition was a result of pneumoconiosis. Consequently, the ALJ ruled that Morrison had failed to meet his burden of demonstrating an entitlement to benefits.

Morrison appealed to the Benefits Review Board. The Board considered the ALJ's weighing of the x-ray and medical opinion evidence, and concluded that substantial evidence supported the ALJ's finding that these sources did not establish the existence of pneumoconiosis. Having affirmed the ALJ's ruling on the issue of pneumoconiosis, an essential element of entitlement under the Act, the Board affirmed the ALJ's denial of benefits. As a result, the Board declined to address the employer's contentions of error regarding the ALJ's finding of total disability.

Morrison now timely appeals.

II.

We review the Board's legal conclusions de novo. Paducah Marine Ways v. Thompson, 82 F.3d 130, 133 (6th Cir.1996). While we must affirm the Board's decision “if the Board has not committed any legal error or exceeded its statutory scope of review of the ALJ's factual determinations[,] our review on appeal is “focused on whether the ALJ—not the Board—had substantial evidence upon which to base his ... decision.” Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742 (6th Cir.1997). The ALJ's findings are conclusive if they are supported by substantial evidence and are in accord with the applicable law. Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602, 606 (6th Cir.2001). ‘Substantial evidence’ means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.1985) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). [I]n referring to a singular reasonable mind, the Supreme Court has directed us to uphold decisions that rest within the realm of rationality; a reviewing court has no license to set aside an inference merely because it finds the opposite conclusion more reasonable or because it questions the factual basis.” Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 756 (4th Cir.1999) (citations and internal quotation marks omitted).

Where the substantial evidence requirement is satisfied, we may not set aside the ALJ's findings, “even if we would have taken a different view of the evidence were we the trier of facts.” Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir.1985). In deciding whether the substantial evidence standard is satisfied, we consider whether the ALJ adequately explained the reasons for crediting certain testimony and documentary evidence over other testimony and documentary evidence. Peabody Coal Co. v. Hill, 123 F.3d 412, 415 (6th Cir.1997). “A remand or reversal is only appropriate when the ALJ fails to consider all of the evidence under the proper legal standard or there is insufficient evidence to support the ALJ's finding.” McCain v. Director, OWCP, 58 Fed.Appx. 184, 201 (6th Cir.2003) (citing Cornett v. Benham Coal, Inc., 227 F.3d 569, 575 (6th Cir.2000), and Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir.1983)).

III.

To establish entitlement to benefits, the claimant must prove by a preponderance of the evidence that (1) he has pneumoconiosis; 3 (2) his pneumoconiosis arose at least in part out of his coal mine employment; (3) he is totally disabled; and (4) the total disability is due to pneumoconiosis. See 20 C.F.R. §§ 718.202– 204 (2000); Adams v. Director, OWCP, 886 F.2d 818, 820 (6th Cir.1989). The regulations provide four methods of establishing the existence of pneumoconiosis: (1) by chest x-ray; (2) by autopsy or biopsy evidence; (3) by certain presumptions described in 20 C.F.R. §§ 718.304– 718.306; or (4) by reasoned medical opinion. 20 C.F.R. § 718.202.

After the ALJ and Board decisions in this case, Congress amended the Black Lung Benefits Act. See Patient Protection and Affordable Care Act (“PPACA”), Pub.L. No. 111–148, § 1556, 124 Stat. 119 (2010). The amendment revived a statutory presumption and made it...

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