Phillips v. Carbon Resources, Inc., BRB 19-0207 BLA
| Decision Date | 29 May 2020 |
| Docket Number | BRB 19-0207 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | JAMES PHILLIPS Claimant-Respondent v. CARBON RESOURCES, INCORPORATED 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UNPUBLISHED OPINION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 Natalie A Appetta, Administrative Law Judge, United States Department of Labor.
Heath M. Long (Pawlowski, Bilonick & Long), Ebensburg Pennsylvania, for claimant.
Christopher Pierson (Burns White LLC), Pittsburgh Pennsylvania, for employer.
Cynthia Liao (Kate S. O'Scannlain, Solicitor of Labor; Barry H. Joyner, 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: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2017-BLA-06047) of Administrative Law Judge Natalie A Appetta on a subsequent claim[1] filed on July 21, 2016, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act).
The administrative law judge found employer is the responsible operator. She credited claimant with twelve years of coal mine employment[2] and thus found he could not invoke the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[3] 30 U.S.C. §921(c)(4) (2012). Considering claimant's entitlement under 20 C.F.R. Part 718, she determined he established a totally disabling respiratory or pulmonary impairment based on the newly submitted evidence. 20 C.F.R. §718.204(b)(2). Thus he established a change in an applicable condition of entitlement. 20 C.F.R. §725.309(c). She further found he did not establish clinical pneumoconiosis, but established he is totally disabled due to legal pneumoconiosis, [4] and awarded benefits. 20 C.F.R. §§718.202(a), 718.204(b)(2), (c).
On appeal, employer argues the administrative law judge erred in finding it is the responsible operator and claimant is totally disabled due to legal pneumoconiosis. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response brief agreeing the administrative law judge erred in finding employer is the responsible operator.
The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order Awarding Benefits if it is rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 362 (1965).
To be entitled to benefits under the Act, claimant must establish disease (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
We initially address employer's argument that the administrative law judge erred in finding claimant totally disabled, as this finding is relevant to whether he established a change in an applicable condition of entitlement.[5] 20 C.F.R. §725.309(c). A miner is totally disabled if his pulmonary or respiratory impairment, standing alone, prevents him from performing his usual coal mine work and comparable gainful work.[6] See 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on pulmonary function studies, arterial blood gas studies, evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure, or medical opinions. 20 C.F.R. §718.204(b)(2)(i)-(iv). The administrative law judge must weigh all relevant supporting evidence against all relevant contrary evidence and determine whether claimant established total disability by a preponderance of the evidence. See Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff'd on recon., 9 BLR 1-236 (1987) (en banc).
The administrative law judge first considered four pulmonary function studies conducted on August 10, 2016, March 14, 2017, November 15, 2017, and June 13, 2018. Decision and Order at 10-11. The August 10, 2016 and June 13, 2018 studies produced non-qualifying[7] values while the March 14, 2017 and November 15, 2017 studies produced qualifying values. Director's Exhibit 9; Claimant's Exhibit 5; Employer's Exhibits 1, 4. She found the August 10, 2016, March 14, 2017, and November 15, 2017 studies all invalid based on Dr. Fino's and Dr. Basheda's medical opinions. Decision and Order at 11. As the record contains no valid qualifying pulmonary function study, she found this evidence does not establish total disability. 20 C.F.R. §718.204(b)(2)(i); Decision and Order at 11.
The administrative law judge then considered three arterial blood gas studies conducted on August 10, 2016, June 13, 2018, and September 26, 2018. Decision and Order at 12. The June 13, 2018 and September 26, 2018 studies produced non-qualifying values while the August 10, 2016 study produced qualifying values. Director's Exhibit 9; Claimant's Exhibit 6; Employer's Exhibit 11. She found this evidence does not establish total disability because the preponderance of the testing, including the most recent, is nonqualifying. 20 C.F.R. §718.204(b)(2)(ii); Decision and Order at 12.
Next she weighed Dr. Fino's and Dr. Basheda's opinions that claimant is not totally disabled and Dr. Holt's opinion that he is totally disabled.[8] Decision and Order at 12-17; Director's Exhibits 9, 10; Employer's Exhibits 1, 3, 4, 6. She discredited Dr. Fino's and Dr. Basheda's opinions because she found they considered objective testing and treatment records not admitted into the record and because they did not adequately address claimant's use of home oxygen therapy. Decision and Order at 17. She credited Dr. Holt's opinion, finding it reasoned and documented. Id. at 16-17. Thus she found the medical opinions established total disability. 20 C.F.R. §718.204(b)(2)(iv); Decision and Order at 17.
Finally, weighing all the relevant supporting evidence against all the relevant contrary evidence, the administrative law judge found that although the "majority" of the blood gas studies are non-qualifying and the valid pulmonary function studies are nonqualifying, Dr. Holt's opinion is "sufficient to establish disability" and thus claimant "established, by a preponderance of the evidence, that he is totally disabled due to a respiratory or pulmonary condition" under 20 C.F.R. §718.204(b)(2). Decision and Order at 18.
We agree with employer's argument that the administrative law judge committed a number of errors in weighing the conflicting evidence on total disability and that remand is required. As set forth below, her crediting of Dr. Holt's medical opinion was inconsistent with her determinations as to the credibility and weight to be given evidence he relied on. Specifically, the objective evidence of total disability Dr. Holt identified and relied on consisted of a pulmonary function study and an arterial blood gas study; but the administrative law judge found the pulmonary function study invalid and the arterial blood gas study outweighed by two more recent non-qualifying studies. Nonetheless, she credited Dr. Holt's opinion, found it outweighed all of the other relevant evidence, and rested her determination that claimant is totally disabled upon it. 20 C.F.R. §718.204(b)(2). Further, she did not apply the same level of scrutiny to the conflicting medical opinions, substituted her opinion for that of medical experts, inadequately explained her credibility findings, and failed to consider all relevant evidence. 20 C.F.R. §718.204(b)(2)(iv).
The administrative law judge first erred in discrediting the opinions of Drs. Fino and Basheda. 20 C.F.R. §718.204(b)(2)(iv); Decision and Order at 17. Dr. Fino testified claimant's pulmonary function studies evidence a mild respiratory impairment reflected by reductions in the FEV1 and FVC values and his arterial blood gas studies evidence mild hypoxemia, but opined these impairments are not disabling. Employer's Exhibit 6 at 11-16, 18. Dr. Basheda diagnosed a non-disabling class II impairment, also based on reductions in the FEV1 and FVC values on claimant's pulmonary function studies.[9]Employer's Exhibit 1 at 23-24.
The administrative law judge assigned their opinions reduced weight because she found they "neglect[ed]" to address claimant's supplemental home oxygen therapy "in any way, beyond noting it in their summaries." Decision and Order at 17. She found they or "in the context of another non-pulmonary condition requiring home oxygen." Id. We agree with employer's argument that the administrative law judge did not identify the medical evidence she found credibly establishes claimant's home oxygen use supports the existence of a disabling respiratory or pulmonary impairment. Employer's Brief at 25-26. Thus in requiring Drs. Fino and Basheda to address this "notable...
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