Smith v. Stillhouse Mining, LLC, BRB 20-0401 BLA
| Decision Date | 26 October 2021 |
| Docket Number | BRB 20-0401 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | ISOM G. SMITH, II Claimant-Petitioner v. STILLHOUSE MINING, LLC c/o ALPHA NATURAL RESOURCES and AMERICAN INTERNATIONAL SOUTH/AIG Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Denying Benefits of Scott R Morris, Administrative Law Judge, United States Department of Labor.
Isom G. Smith, II, Harlan, Kentucky.
Catherine A. Karczmarczyk (Penn, Stuart & Eskridge) Johnson City, Tennessee, for Employer and its Carrier.
Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals, without the assistance of counsel, [1] Administrative Law Judge (ALJ) Scott R. Morris's Decision and Order Denying Benefits (2018-BLA-06117) rendered on a claim filed on June 30, 2016, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).
The ALJ credited Claimant with 13.68 years of coal mine employment and thus found he could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).[2] Considering entitlement under 20 C.F.R. Part 718, the ALJ found Claimant established a totally disabling respiratory impairment but did not establish clinical or legal pneumoconiosis. 20 C.F.R §§718.202(a), 718.204(b). Thus he denied benefits.
On appeal, Claimant generally challenges the denial of benefits. Employer and its Carrier (Employer) respond in support of the decision. The Director, Office of Workers' Compensation Programs, has not filed a response brief.[3]
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue raised to be whether the Decision and Order below is supported by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must affirm the ALJ's Decision and Order if the findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with law.[4] 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 (1965).
Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if he suffers from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, 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. See Gray v. SLC Coal Co., 176 F.3d 382, 388-89 (6th Cir. 1999); Melnick v. Consol. Coal Co., 16 BLR 1-31, 1-33-34 (1991) (en banc).
The record contains x-ray and computed tomography (CT) scan evidence relevant to the existence of complicated pneumoconiosis. Claimant's Exhibit 1, 3; Employer's Exhibit 1, 16. The ALJ did not address this evidence which, if credited, could invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); see 20 C.F.R. §718.304.
In view of the foregoing, we vacate the ALJ's Decision and Order and remand the case for him to consider all the relevant evidence in accordance with the Administrative Procedure Act (APA).[5] See 30 U.S.C. §923(b); Director, OWCP v. Rowe, 710 F.2d 251, 254-55 (6th Cir. 1983); Wojtowicz v. Duquesne Light Co., 12 BLR 1-162, 1-165 (1989); McCune v. Central Appalachian Coal Co., 6 BLR 1-996, 1-998 (1984) (). On remand, the ALJ must critically examine all the relevant medical evidence to determine whether Claimant established the presence of complicated pneumoconiosis. 30 U.S.C. §921(c)(3); Gray, 176 F.3d at 388-89; 20 C.F.R. §718.304(a)-(c).
We next review the ALJ's determination that Claimant did not invoke the Section 411(c)(4) presumption of total disability due to pneumoconiosis because he worked for only 13.68 years in qualifying coal mine employment. 20 C.F.R §718.305(b)(1)(i).
To invoke the Section 411(c)(4) presumption, Claimant must establish he worked at least fifteen years in underground coal mines or surface coal mines in conditions "substantially similar to conditions in an underground mine." 30 U.S.C. §921(c)(4) (2018). Claimant bears the burden to establish the number of years he worked in coal mine employment. Mills v. Director, OWCP, 348 F.3d 133, 136 (6th Cir. 2003); Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985). The Board will uphold an ALJ's determination based on a reasonable method of calculation that is supported by substantial evidence. Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011).
The ALJ first addressed whether Claimant's work as a night watchman for Martin's Fork Security Agency (Martin's Fork) in 1993 and 1994, and Jericol Mining in 1994 and 1995, constituted the work of a "miner" under the Act. Decision and Order at 12. A "miner" is "any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal." 30 U.S.C. §902(d). The implementing regulation provides "a rebuttable presumption that any person working in or around a coal mine or coal preparation facility is a miner." 20 C.F.R. §725.202(a); see 20 C.F.R. §725.101(a)(19). The United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this cases arises, has held duties that meet situs and function requirements constitute the work of a miner as defined in the Act. Navistar, Inc. v. Forester, 767 F.3d 638, 641 (6th Cir. 2014); Director, OWCP v. Consolidation Coal Co. [Petracca], 884 F.2d 926, 929-30 (6th Cir. 1989). Under the situs requirement, the work must take place in or around a coal mine or coal preparation facility; under the function requirement, the work must be integral or necessary to the extraction or preparation of coal. Forester, 767 F.3d at 641; Petracca, 884 F.2d at 929.
The ALJ rationally found Claimant's job as a night watchman with Martin's Fork did not take place in or around a coal mine or coal preparation facility, and thus did not satisfy the situs prong, based on Claimant's testimony that this work was not "for a coal mine," but took place "outside the coal company." Decision and Order at 12; see Petracca, 884 F.2d at 934-35; Rowe, 710 F.2d at 254-255; Employer's Exhibit 13 at 9-10. With respect to Claimant's work for Jericol Mining, the ALJ found Claimant established the work took place in or around a coal mine or preparation facility, and thus he invoked the rebuttable presumption that this work constitutes that of a miner at 20 C.F.R. §725.202(a). Decision and Order at 12. Based on Claimant's testimony that his duties involved "just watching the mine site," Employer's Exhibit 8 at 10, the ALJ rationally found Employer rebutted the presumption by establishing Claimant's work with Jericol Mining was not integral or necessary to the extraction or preparation of coal. Falcon Coal Co. v. Clemons, 873 F.2d 916, 921 (6th Cir. 1989) (); 20 C.F.R. §725.202(a)(2); Decision and Order at 12. We therefore affirm his determination that Martin's Fork and Jericol Mining did not employ Claimant as a miner.
For Claimant's remaining employers from 1991 to 2010, the ALJ permissibly found Claimant's Social Security Administration (SSA) earnings record the most probative evidence regarding the dates of his coal mine employment. See Tackett v. Director, OWCP, 6 BLR 1-839, 1-841 (1984) (); Decision and Order at 15. As the ALJ was unable to determine the beginning and ending dates of Claimant's employment, he permissibly applied the method of calculation at 20 C.F.R. §725.101(a)(32)(iii). Shepherd v. Incoal, Inc., 915 F.3d 392, 405-06 (6th Cir. 2019); Decision and Order at 13-16. He divided Claimant's annual earnings for the operators as set forth in Claimant's SSA earnings record by the yearly average wage for 125 days as reported in Exhibit 610 of the Office of Workers' Compensation Programs Coal Mine (BLBA) Procedure Manual.[6] Decision and Order at 15-16; Director's Exhibit 9. Where Claimant's wages exceeded the 125-day average, the ALJ credited him with a full year of coal mine employment. Id. Where Claimant's earnings fell below the 125-day average, the ALJ credited him with a fractional year. Id. Applying this method of calculation, he rationally found Claimant established 13.68 years of coal mine employment. Decision and Order at 16. We therefore affirm the ALJ's finding Claimant did not invoke the Section 411(c)(4) presumption. See Muncy, 25 BLR at 1-29; Decision and Order at 32.
20 C.F.R. Part 718 Entitlement
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...
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