Pack v. Consol of Ky., Inc.
| Docket Number | BRB 22-0294 BLA |
| Decision Date | 15 August 2023 |
| Parties | JANET PACK (o/b/o the Estate of FRED PACK, JR.) Claimant-Respondent v. CONSOL OF KENTUCKY, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits in a Subsequent Claim on Modification of John P. Sellers, III, Administrative Law Judge, United States Department of Labor.
C Phillip Wheeler (Wheeler & Baker, PLLC), Pikeville Kentucky for Claimant.
William S. Mattingly (Jackson Kelly, PLLC), Lexington Kentucky for Employer.
Before: BUZZARD, ROLFE, and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals Administrative Law Judge (ALJ) John P. Sellers III's Decision and Order Awarding Benefits in a Subsequent Claim on Modification (2020-BLA-05447) rendered pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a subsequent claim filed on September 18, 2017.[1]
The ALJ credited the Miner with twenty years of coal mine employment and found Claimant established complicated pneumoconiosis.[2] 20 C.F.R. §718.304. Thus he found Claimant invoked the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act and established a change in an applicable condition of entitlement. 30 U.S.C. §921(c)(3) (2018); 20 C.F.R. §725.309.[3] Further, he found the Miner's complicated pneumoconiosis arose out of his coal mine employment. 20 C.F.R. §718.203. Thus he awarded benefits.
On appeal, Employer argues the ALJ erred in finding Claimant established complicated pneumoconiosis.[4] Claimant responds in support of the award. The Director, Office of Workers' Compensation Programs, declined to file a response brief.
The Benefits Review Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[5] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).
Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner was totally disabled due to pneumoconiosis if he suffered from a chronic dust disease of the lung which: (a) when diagnosed by chest x-ray yields one or more large opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy, yields massive lesions in the lung; or (c) when diagnosed by other means would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. In determining whether Claimant has invoked the irrebuttable presumption, the ALJ must consider all evidence relevant to the presence or absence of complicated pneumoconiosis. 30 U.S.C. §923(b); Truitt v. North Am. Coal Corp., 2 BLR 1-199 (1979), aff'd sub nom. Director, OWCP v. North Am. Coal Corp., 626 F.2d 1137 (3d Cir. 1980); see Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33 (1991) (en banc).
The ALJ found Claimant established complicated pneumoconiosis based on the x-rays, computed tomography (CT) scans, medical opinions, and the evidence as a whole.[6]20 C.F.R. §718.304(a), (c); Decision and Order at 12, 15, 22.
20 C.F.R. §718.304(a) - X-ray evidence
Employer argues the ALJ erred in finding the x-rays establish complicated pneumoconiosis. Employer's Brief at 6-16. We disagree.
The ALJ considered nine interpretations of five x-rays dated September 3, 2002, June 2, 2015, November 2, 2017, April 12, 2018, and January 31, 2019. 20 C.F.R. §718.304(a); Decision and Order at 8-9; Director's Exhibits 3 (internally Director's Exhibit 21), 20, 22, 27, 28; Claimant's Exhibits 1-3. He noted all interpreting physicians are dually-qualified as Board-certified radiologists and B readers. Decision and Order at 9.
Dr. Meyer interpreted the September 3, 2002 x-ray as negative for complicated pneumoconiosis. Director's Exhibit 27 at 2-3. Based on his uncontradicted reading, the ALJ found this x-ray negative for the disease. Decision and Order at 9.
Drs. Kendall and Meyer read the June 2, 2015 x-ray as negative for complicated pneumoconiosis. Director's Exhibits 3 (internally Director's Exhibit 21), 27 at 4-5. Based on the uncontradicted readings, the ALJ similarly found this x-ray negative for the disease.[7]Decision and Order at 9-10.
Drs. Kendall and Crum read the November 2, 2017 x-ray as positive for complicated pneumoconiosis, Category B. Director's Exhibit 20; Claimant's Exhibit 3. Dr. Meyer read it as negative for complicated pneumoconiosis. Director's Exhibit 27 at 6-7. He also identified a "worsening reticular opacity bilaterally, most severe in the mid and lower [lung] zones," along with a "more confluent opacity in the right mid zone." Id. He concluded the x-ray is consistent with "usual interstitial pneumonia (UIP)" as the "rapid worsening compared to 2015 is not consistent with [coal workers' pneumoconiosis] and more typical of UIP with acute exacerbation." Id. He stated the opacity in the right middle lung "may be [an] acute exacerbation, infection[,] or neoplasm." Id.
The ALJ permissibly found Dr. Meyer's discussion of alternative disease processes on the x-ray equivocal and speculative because the doctor "did not identify evidence in the record showing that the Miner had an acute exacerbation, infection, or neoplasm that could have accounted for the opacities . . . ." Decision and Order at 9-11; see Westmoreland Coal Co. v. Cox, 602 F.3d 276, 286-87 (4th Cir. 2010); Peabody Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997). Further, the ALJ permissibly found that, even if he had not found Dr. Meyer's negative reading equivocal and speculative, he would have found this x-ray positive for complicated pneumoconiosis because a greater number of dually-qualified radiologists read it as positive for the disease. See Staton v. Norfolk & Western Ry. Co., 65 F.3d 55, 59 (6th Cir. 1995); Woodward v. Director, OWCP, 991 F.2d 314, 321 (6th Cir. 1993); Decision and Order at 9-11. Thus we affirm the ALJ's finding the November 2, 2017 x-ray is positive for complicated pneumoconiosis. Decision and Order at 11.
Dr. Crum read the April 12, 2018 x-ray as positive for complicated pneumoconiosis, Category B, but Dr. Meyer read it as negative for the disease. Director's Exhibit 28 at 2-3; Claimant's Exhibit 1. Dr. Meyer acknowledged the presence of an "ill-defined ground-glass opacity in the right mid [lung] zone with a nodular focus measuring approximately [fourteen millimeters]" along with a "second nodule [in] the left mid zone." Director's Exhibit 28 at 2-3. He again opined the x-ray is consistent with UIP and not coal workers' pneumoconiosis. Id. In addition, he stated the "[d]eveloping nodules in the mid zones may be regions of superimposed infection, aspiration, or malignancy." Id. The ALJ permissibly found Dr. Meyer's reading of the April 13, 2018 x-ray not credible because he did not identify evidence in the record of "any infection, malignancy, . . . or any other factor that could account for the markings on the Miner's lungs . . . ." Decision and Order at 12; see Cox, 602 F.3d at 286-87; Smith, 127 F.3d at 507. Thus we affirm the ALJ's finding the April 12, 2018 x-ray is positive for complicated pneumoconiosis. Decision and Order at 12.
Next, Dr. Crum read the January 31, 2019 x-ray as consistent with complicated pneumoconiosis, Category B. Claimant's Exhibit 2. Based on his uncontradicted reading, the ALJ found this x-ray positive for the disease. Decision and Order at 12.
Finally, the ALJ permissibly found the September 3, 2002 negative x-ray entitled to diminished weight because it is "almost thirteen years older than the next most recent designated x-ray, taken in 2015," and the regulations recognize pneumoconiosis as a progressive and irreversible disease. 20 C.F.R. §718.201(c); see also Labelle Processin g Co. v. Swarrow, 72 F.3d 308, 315 (3d Cir. 1995); Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir. 1992); Woodward, 991 F.2d at 320; Decision and Order at 12. Because three of the four more recent x-rays are positive for complicated pneumoconiosis, the ALJ found the preponderance of the x-ray evidence supports complicated pneumoconiosis. Decision and Order at 12. The ALJ properly performed both a qualitative and quantitative analysis of the conflicting x-ray readings and explained his basis for resolving the conflict in the evidence. See Sea "B" Mining Co. v. Addison, 831 F.3d 244, 256 (4th Cir. 2016); Adkins, 958 F.2d at 52-53.
Employer argues the ALJ should have assigned greater weight to Dr. Meyer's interpretations than Dr. Crum's interpretations because of his alleged superior credentials. Employer's Brief at 15-16. We disagree. Contrary to Employer's contention, credibility determinations are within the ALJ's discretion. Balsavage v. Director, OWCP, 295 F.3d 390, 396 (3d Cir. 2002); Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986). He was not required to give greater weight to Employer's expert based on qualifications such as professorships and publications, but instead permissibly assigned equal weight to readings by physicians dually-qualified as Board-certified radiologists and B readers. Staton, 65 F.3d at 59; Woodward, 991 F.2d at 321; Worach v. Director, OWCP, 17 BLR 1-105, 1-108 (1993); Decision and Order at 9.
Employer also argues the ALJ should have considered Dr. Meyer's deposition testimony when resolving the conflict in the x-ray evidence....
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