Ramey v. Kentland Elkhorn Coal Corp.
| Decision Date | 19 February 1985 |
| Docket Number | Nos. 84-3063,84-3128,s. 84-3063 |
| Citation | 755 F.2d 485 |
| Parties | Rex RAMEY (84-3063), Ross Lewis (84-3128), Petitioners, v. KENTLAND ELKHORN COAL CORPORATION (84-3063), Left Beaver Coal Company (84- 3128), Employers-Respondents, Director, Office of Workers' Compensation Programs, United States Department of Labor; Benefits Review Board, Party-In-Interest-Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Herbert Deskins, Jr., Deskins & Pafunda, Pikeville, Ky., David Thomas, argued, Nicholsville, Ky., for petitioner in No. 84-3063.
John Earl Hunt, Burchett & Barber, J. Logan Griffith, Mann & Griffith Law Firm Prestonsburg, Ky., for petitioner in No. 84-3128.
John L. Kilcullen, Kieran F. Kilcullen, Kilcullen, Wilson & Kilcullen, Mark E. Solomons, argued, Washington, D.C., Paul Jones, Baird & Baird, P.S.C., Pikeville, Ky., for employers-respondents.
Benefits Review Bd., U.S. Dept. of Labor, Denise Butler Harty, Joseph T. Bednarik, J. Michael O'Neill, argued, U.S. Dept. of Labor, Washington, D.C., for party-in-interest-respondent.
Before MARTIN and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.
In both of these cases, petitioners seek reversal of the Benefits Review Board's (Board) decisions denying them black lung benefits. Rex Ramey worked as a coal miner for forty-two years until 1976. Ross Lewis was also employed as a miner until 1976, having worked twenty-nine years in the coal mines.
An administrative law judge (ALJ) found that Ramey was entitled to invoke the 20 C.F.R. Sec. 727.203(a) 1 presumption of total disability due to pneumoconiosis because x-ray evidence demonstrated the presence of pneumoconiosis. The ALJ found, however, that the employer rebutted the presumption under 20 C.F.R. Sec. 727.203(b)(2) 2 by showing through medical evidence that Ramey was physically capable of working in the mines. The Board affirmed this decision, finding that it was supported by substantial evidence.
An ALJ also found that Lewis was entitled to invoke the rebuttable presumption of 20 C.F.R. Sec. 727.203(a) based on x-ray evidence. The ALJ concluded, however, that the employer rebutted the presumption under both 20 C.F.R. Sec. 727.203(b)(2) 3 and Sec. 727.203(b)(3). The ALJ determined that Lewis was not totally disabled for mine work by pulmonary disease, but that Lewis suffered from a totally disabling cardiac condition--a condition that the ALJ found did not arise in whole or in part from Lewis' coal mine employment.
In this appeal, both petitioners claim that the ALJs' decisions are not supported by substantial evidence. The finding of an ALJ in a black lung case may not be set aside if it is based on substantial evidence viewing the record as a whole, even if we would have taken a different view of the evidence were we the trier of facts. Moore v. Califano, 633 F.2d 727, 729 (6th Cir.1980). The petitioners also contend that the ALJs should have considered medical and vocational evidence before determining that the 20 C.F.R. Sec. 727.203(a) presumption of total disability was rebutted pursuant to 20 C.F.R. Sec. 727.203(b)(2). We conclude that the ALJs' decisions were based on substantial evidence and that vocational evidence need not be considered. Both decisions are affirmed.
We must first determine, assuming at this point that vocational evidence is unnecessary, whether the ALJ's determination that the presumption was rebutted is based on substantial evidence.
Dr. T.L. Wright examined Ramey on March 17, 1978, and diagnosed category 2/2 simple pneumoconiosis. Dr. Wright opined that Ramey was totally and permanently disabled "for coal mining, arduous labor, and work in a dusty environment." A pulmonary function study (PFS) conducted by Dr. Wright revealed a forced vital capacity of 100 percent of predicted normal, a one second forced expiratory volume of 101 percent of predicted normal and maximum voluntary ventilation of 145 percent of predicted normal. The blood gas study showed pO2 of 59.6 and pCO2 of 36.8. The blood gas values are sufficient to invoke the presumption in 20 C.F.R. Sec. 727.203(a).
On April 20, 1979, Dr. Harvey Page examined Ramey and diagnosed category 1/2 simple pneumoconiosis. He found that the claimant's PFS exceeded predicted normal values and was below predicted normal levels for the maximum voluntary ventilation. Dr. Page advised Ramey against further exposure to coal mine dust. Dr. Gene Combs, a Board certified radiologist and a "B" reader, 4 reviewed the x-ray taken by Dr. Page and found no evidence of pneumoconiosis.
Dr. Richard O'Neill, a specialist in internal medicine, examined Ramey on April 26, 1979, and found that an x-ray revealed stage 1/1 simple pneumoconiosis. He opined that the PFS revealed moderate small airways disease. A blood gas study showed a pO2 of 79 and pCO2 of 40. Dr. O'Neill found that the blood gas study revealed mild arterial hypoxemia.
On April 26, 1979, Dr. J.E. Meyers examined Ramey and found that his x-ray did not indicate pneumoconiosis. He found that the claimant's ventilatory studies produced normal results. Ramey's blood gas studies revealed a pO2 of 82 and pCO2 of 34, and Dr. Meyers interpreted these blood gas studies as normal. Dr. Meyers opined that Ramey's advanced age rather than a pulmonary disability prevented Ramey's return to coal mine work. The doctor stated that "normal physical activity, in fact, appears feasible."
A June 26, 1979, examination of Ramey conducted by Dr. Ballard Wright, a chest physician, revealed that Ramey had no "occupational pneumoconiosis or occupational lung injury." The PFS revealed "no abnormalities." The blood gas studies produced a resulting pO2 of 77.3 and an exercise pO2 of 81.8. Dr. Ballard Wright concluded that Ramey's health was "normal." Dr. T.R. Marshall, a Board certified radiologist, reviewed an x-ray taken by Dr. Ballard Wright and agreed that the x-ray was negative for pneumoconiosis. Dr. Benjamin Felson, a Board certified radiologist and a "C" reader, also reviewed the x-ray taken by Dr. Ballard Wright and found that it showed no evidence of pneumoconiosis.
On June 30, 1979, Dr. Frank Varney, a general practitioner, examined Mr. Ramey and found that the claimant's x-ray revealed category 2/2 simple pneumoconiosis and concluded that Ramey should curtail his exposure to dust.
Dr. Brent Brandon, Board certified radiologist and "B" reader, read Ramey's x-ray taken on March 6, 1979, as showing a positive finding of 1/2 pneumoconiosis in the upper right and left zones. Dr. Brandon made a similar reading of an x-ray taken on July 19, 1979. On that date, he found nodular densities in the upper right and left upper lung zones, 1/2 "q" type. Dr. Brandon advised Ramey against further dust exposure. Dr. Combs, also a Board certified "B" reader, re-read the March 6, 1979, x-ray and agreed with Dr. Brandon's findings.
Dr. William H. Anderson, a pulmonary specialist, examined Ramey on July 30, 1979, and found category 2 simple pneumoconiosis. Pulmonary function studies conducted by Dr. Anderson showed a vital capacity of 113.6 and a maximum voluntary ventilation of 95.57 percent of predicted normal. The one second forced expiratory volume was 104 percent of predicted normal. Blood gas studies revealed a pO2 of 72 and a pCO2 of 34. Dr. Anderson cautioned Ramey against further dust exposure but opined that pneumoconiosis did not impair Ramey's functional ability to work.
The ALJ evaluated all the medical evidence and determined that Ramey suffered from a moderate degree of pneumoconiosis but that he did not have a respiratory or pulmonary impairment of sufficient severity to prevent his engaging in his usual coal mine employment, and therefore, the employer had rebutted the presumption. These findings were based on substantial evidence. Substantial evidence is "more than a mere scintilla;" substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). The ALJ's findings complied with this standard.
It is Ramey's position that in order to rebut the presumption, the employer must not only establish by medical evidence that the Ramey is physically able to engage in coal mine work, but that the employer must also demonstrate that job opportunities in the coal mining industry are available to Ramey despite his occupational disease and that Ramey has a reasonable opportunity to be hired. 5 The employer-respondent and the Director maintain that vocational evidence need not be considered because the employer has rebutted the presumption by demonstrating through medical evidence that Ramey's pneumoconiosis is not disabling.
Whether a factfinder must consider vocational evidence when determining, pursuant to 20 C.F.R. Sec. 727.203(b)(2), if an employer has rebutted the presumption by proving the claimant is "able to do his usual coal mine work" is an issue of first impression in this circuit. 6 Several circuits, however have considered the question and have determined that such rebuttal under 20 C.F.R. Sec. 727.203(b)(2) is solely a matter of medical evidence. Taft v. Alabama By-Products Corp., 733 F.2d 1518 (11th Cir.1984); Director, Office of Workers' Compensation Programs v. Beatrice Pocohontas Co., 698 F.2d 680 (4th Cir.1983). See also Sherry v. Tesone Coal Co., 4 BLR 1-377, aff'd without published opinion, 696 F.2d 985 (3d Cir.1982); Johnson v. Cannelton Industries, Inc., 2 BLR 1-1081 (1980). We agree with the result reached by these courts.
Congress enacted the Black Lung Benefits Act to provide benefits to coal miners who are totally disabled due to pneumoconiosis. 30 U.S.C.A. Sec. 901(a) (West Supp.1972-1983). The Act...
To continue reading
Request your trial
-
In re Braddy
...n. 14 (6th Cir.1986); Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 731 n. 1 (6th Cir.1985); and Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 488 n. 6 (6th Cir.1985). On the other hand, the Sixth Circuit has cited its unpublished decisions in numerous published decisions. So......
-
Zurich Am. Ins. Grp. v. Duncan ex rel. Duncan
...as stated in Cumberland River Coal Co. v. Banks , 690 F.3d 477 (6th Cir. 2012) ; and then quoting Ramey v. Kentland Elkhorn Coal Corp. , 755 F.2d 485, 486 (6th Cir. 1985) ).B. Timeliness of Miner's ClaimZurich American first argues that the ALJ's finding that Raymond timely filed his BLBA c......
-
Morrison v. Tenn. Consol. Coal Co.
...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 expla......
-
Shepherd v. Incoal, Inc.
... ... that Claimant established 15.07 years of coal mine employment ... and modified his determination to ... Miner's work as a welder with Elkhorn Industrial Products ... (Elkhorn) and R & S cannot ... 877, 886 (1989); ... Invention Submission Corp. v. Dudas , 413 F.3d 411, ... 414-15 (4th Cir. 2005); ... facts.'" Id. , at 398 (quoting Ramey v ... Kentland Elkhorn Coal Corp. , 755 F.2d 485, ... ...