Old Ben Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 16 August 1995
• Docket Number: No. 94-2110,94-2110
• Parties: OLD BEN COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Lowell Mitchell, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1003

62 F.3d 1003

OLD BEN COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Lowell Mitchell Respondents.

No. 94-2110.

United States Court of Appeals Seventh Circuit.

Argued May 9, 1995.

Decided Aug. 16, 1995.

Mark E. Solomons (argued), Laura M. Klaus, Arter & Hadden, Washington, DC, for Old Ben Coal Co.

Christian P. Barber, Barry H. Joyner, Dept. of Labor, Office of the Sol., Washington, DC, for Office of Workers' Compensation Programs.

Harold B. Culley, Jr. (argued), Culley & Wissore, Raleigh, IL, for Lowell Mitchell.

Thomas O. Shepherd, Jr., Benefits Review Bd., Executive Counsel, Clerk of the Bd., Washington, DC, for Benefits Review Bd.

Before ESCHBACH, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

In this appeal, we review an order of the Department of Labor's ("DOL") Benefits Review Board (the "Board") awarding Lowell Mitchell benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945. Coal miner Mitchell applied for benefits and after a series of decisions by Administrative Law Judges ("ALJ") and remands by the Board spanning fourteen years, the Board affirmed an award of benefits and denied Old Ben Coal Company's motion for reconsideration. For the reasons that follow, we remand.

I.

Lowell Mitchell, a coal miner for over thirty-five years, worked primarily above ground at an Old Ben Coal Company coal preparation plant. He retired from coal mining on September 30, 1978, at age 65. In addition to his coal dust exposure, Mitchell smoked approximately one pack of cigarettes per day for almost 50 years. Mitchell initially filed his claim for benefits on January 22, 1980. Old Ben denied liability on several grounds. The DOL issued an administrative award of benefits on July 21, 1980, and sent the case to ALJ Neusner for trial, which was held on March 14, 1983. After a number of evidentiary challenges, the ALJ remanded to the DOL on August 30, 1983, for further proceedings.

Again before the DOL, Old Ben was given the opportunity to develop more fully the medical evidence, which resulted in the DOL issuing an order denying benefits. ALJ Gilday held a hearing reviewing this matter on April 22, 1986, and found that Mitchell successfully invoked the interim presumption ¹ because the record, although filled with twenty-eight negative x-ray interpretations, contained seven x-ray readings concluding that Mitchell had pneumoconiosis. See 20 C.F.R. Sec. 727.203(a). In reaching his determination, the ALJ apparently did not weigh the conflicting x-ray evidence, but rather relied on Kuehner v. Ziegler Coal Co., 788 F.2d 439, 440 (7th Cir.1986), which endorsed Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir.1986), rev'd Mullins Coal Co. v. OWCP, 484 U.S. 135, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987), which held that one positive x-ray is sufficient to invoke the interim presumption. The ALJ also concluded that Mitchell did not invoke the presumption through pulmonary function and blood gas tests or through reasoned medical opinions. The ALJ then found that Old Ben successfully rebutted this presumption because Mitchell's respiratory impairment did not prevent him from doing his regular coal mine work. See 20 C.F.R. Sec. 727.203(b)(2). The ALJ thus did not consider the bulk of Old Ben's evidence and did not address whether Mitchell actually suffered from pneumoconiosis, Sec. 727.203(b)(4), or whether he had any work disability related at least in part to pneumoconiosis, Sec. 727.203(b)(3). The ALJ affirmed the DOL's denial of benefits.

On appeal, the Board vacated the denial and remanded the case once again. In reaching this conclusion, the Board relied on dicta in Wetherill v. OWCP, 812 F.2d 376 (7th Cir.1987), parts of which we subsequently repudiated in Freeman United Coal Min. Co. v. Foster, 30 F.3d 834, 839 (7th Cir.1994) (hereinafter "Foster "), cert. denied, --- U.S. ----, 115 S.Ct. 1399, 131 L.Ed.2d 287 (1995). The Board determined that rebuttal by the Sec. 723.203(b)(2) method was unavailable if the miner was disabled, even if only by a non-respiratory impairment. The Board, over a dissent, directed the ALJ on remand to consider rebuttal only by the Sec. 723.203(b)(3) method and, citing Mullins Coal for the proposition that when the presumption is invoked by x-rays there can be no rebuttal under Sec. 727.203(b)(4), precluded the ALJ from considering that method.

On remand, Old Ben argued that even if Wetherill precluded Sec. (b)(2) rebuttal, it could still establish rebuttal under Secs. (b)(3) and (b)(4). The coal company further maintained that it was entitled to have the ALJ consider all the relevant evidence relating to Mitchell's medical condition because some of that evidence was not previously considered due to the ALJ's use of pre-Mullins Coal x-ray invocation rules. Mitchell disagreed, arguing that: (1) Wetherill precluded Sec. (b)(2) rebuttal because Mitchell was totally disabled by heart disease; (2) Sec. (b)(3) could not be met because under Wetherill, an unpublished Board decision, and an unpublished decision of this court, Old Ben failed to rule out that pneumoconiosis could have been a contributing cause of his disability; and (3) Mullins Coal precluded Sec. (b)(4) rebuttal.

ALJ Gilday issued a decision and order on September 21, 1989, awarding benefits. The ALJ concluded that Wetherill prevented Sec. (b)(2) rebuttal because of Mitchell's heart disease, and, along with the two unpublished decisions, precluded Sec. (b)(3) rebuttal. The ALJ refused to consider the Sec. (b)(4) rebuttal in light of Mullins Coal. The ALJ also awarded attorney's fees against Old Ben. On appeal before the Board, Old Ben challenged the ALJ's Sec. (b)(3) conclusions, arguing that the presumption had been invoked improperly using a just-overruled standard. The Board issued a decision and order on August 19, 1992, affirming both the benefits and attorney's fee awards. The Board did not consider Old Ben's proffered evidence that Mitchell did not have pneumoconiosis and concluded that the ALJ's refusal to find rebuttal by the third method was supported by substantial evidence and in accordance with the law. Specifically, the Board held that the ALJ could rely solely on the treating physician status of one of the reporting doctors in resolving conflicts in the medical evidence. The Board also affirmed the ALJ's findings as to Secs. (b)(2) and (b)(4), but did not explicitly address the attorney's fees issue.

Old Ben then filed a motion for reconsideration, arguing that the ALJ erred: (1) by not considering whether the interim presumption was invoked in accordance with the Mullins Coal standard; (2) in precluding rebuttal by the Sec. (b)(4) method by applying Mullins Coal favorably only for Mitchell; (3) by applying an incorrect legal standard in determining Sec. (b)(3) rebuttal; (4) in relying on the opinion of Dr. Rosecan solely because he was Mitchell's treating doctor; and (5) in ignoring the attorney's fees appeal. The Board, on May 18, 1994, denied reconsideration after concluding that Old Ben had waived all of its arguments with respect to a recent Supreme Court decision dealing with the presumption. The Board also held that the ALJ could credit a treating physician over other doctors solely because of his status. Finally, the Board affirmed the award of attorney's fees. Old Ben filed this appeal.

II.

Old Ben raises several issues on appeal. First, the coal company argues that the Board erred in refusing to apply current Supreme Court, Seventh Circuit and Board law regarding the invocation of the presumption in a fair and rational way. Second, Old Ben contends that the ALJ's analysis under Sec. 727.203(b)(3) is inconsistent with existing law and must be vacated. Finally, Old Ben maintains that the Board erred in vacating the ALJ's original rebuttal finding under Sec. 727.203(b)(2). Although the case is a final decision of the Board, we review the ALJ's benefits decision to determine whether it is rational, supported by substantial evidence, and consistent with the governing law. Blakley v. Amax Coal Co., 54 F.3d 1313, 1318 (7th Cir.1995); Mitchell v. OWCP, 25 F.3d 500, 504 (7th Cir.1994). Substantial evidence is "such relevant evidence as a rational mind might accept as adequate to support a conclusion." Peabody Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir.1988). We do not reweigh the evidence or substitute our judgment for that of the ALJ. Rather, we carefully review the record to insure that the ALJ considered all of the relevant medical evidence. Blakley, 54 F.3d at 1318; Peabody Coal v. Vigna, 22 F.3d 1388, 1394 (7th Cir.1994). After that examination, we analyze the Board's decision to determine whether it adhered to its scope of review and whether it committed legal error. Shelton v. Old Ben Coal Co., 933 F.2d 504, 506 (7th Cir.1991).

Old Ben claims that the Board erred in refusing to apply current law in a fair and rational way. Specifically, the coal company points to changes in Supreme Court and Seventh Circuit case law that were not applied by the Board. Old Ben asks us to remand to the Board and instruct it to apply the law now in effect with respect to invocation and rebuttal of the interim presumptions. Mitchell responds that Old Ben has waived many of its arguments relating to this issue because it first challenged the ALJ's findings on the invocation of the presumption in its motion for reconsideration.

As a preliminary matter, we address Mitchell's contention that Old Ben waived its arguments relating to Mullins Coal and the invocation of the presumption. Mitchell maintains that Old Ben failed to challenge the ALJ's Sec. (a)(1) invocation either time it went before the Board on appeal and only raised the issue on reconsideration in its second appeal. The ALJ, on remand, noted that Old Ben had not challenged his prior finding of invocation under Sec. (a)(1). Furthermore, the Board...