Smith v. U.S. Steel Mining Co.
| Decision Date | 27 April 2017 |
| Docket Number | BRB 16-0361 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BOYD SMITH Claimant-Petitioner v. U.S. STEEL MINING COMPANY, ALABAMA, LLC Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand of Lystra A. Harris Administrative Law Judge, United States Department of Labor.
Abigail P. van Alstyne (Quinn, Connor, Weaver, Davies & Roucco), Birmingham, Alabama, for claimant.
Kary B. Wolfe (Jones Walker LLP), Birmingham, Alabama, for employer.
Barry H. Joyner (Nicholas C. Geale, Acting Solicitor of Labor; Maia Fisher, 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: BUZZARD, GILLIGAN, and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order on Remand (2011-BLA-05246) of Administrative Law Judge Lystra A. Harris denying benefits on a claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act). This case, involving a subsequent claim filed on March 16, 2010, [1] is before the Board for the second time.
In the initial Decision and Order, Administrative Law Judge Ralph A. Romano credited claimant with twenty-four years of coal mine employment, [2] but found that the new evidence did not establish the presence of a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). The administrative law judge therefore found that claimant failed to invoke the Section 411(c)(4) presumption that he is totally disabled due to pneumoconiosis.[3] 30 U.S.C. §921(c)(4) (2012). The administrative law judge further found that claimant failed to establish a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(c). Accordingly, Judge Romano denied benefits.
Pursuant to claimant's appeal, the Board affirmed Judge Romano's determination that the new evidence failed to establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(ii), (iii). Smith v. U.S. Steel Mining Co., BRB No. 12-0505 BLA (June 17, 2013)(unpub.). However, the Board vacated Judge Romano's finding that the new pulmonary function study evidence and medical opinion evidence did not establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(i), (iv). Specifically, the Board held that Judge Romano did not make a specific finding regarding the pulmonary function study evidence, or compare the medical opinions diagnosing a moderate to severe impairment with the exertional requirements of claimant's usual coal mine employment. Smith, BRB No. 12-0505 BLA, slip op. at 3-5. Accordingly, the Board remanded the case for further consideration.
On remand, due to Judge Romano's unavailability, the case was reassigned to Administrative Law Judge Lystra A. Harris (the administrative law judge). In a Decision and Order on Remand dated March 22, 2016, the administrative law judge found that the new evidence did not establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(i), (iv). The administrative law judge therefore found that claimant failed to establish a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(c), and could not invoke the Section 411(c)(4) presumption. Accordingly, the administrative law judge denied benefits.
On appeal, claimant argues that the administrative law judge erred in finding that the new pulmonary function study evidence and medical opinion evidence did not establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(i), (iv). Employer responds in support of the administrative law judge's denial of benefits. The Director, Office of Worker's Compensation Programs (the Director), has filed a response brief, contending that the administrative law judge erred in her consideration of the new pulmonary function study evidence and medical opinion evidence pursuant to 20 C.F.R. §718.204(b)(2)(i), (iv).
The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed 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 (1965).
To be entitled to benefits under the Act, claimant must establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, a totally disabling respiratory or pulmonary impairment, and that the totally disabling respiratory or pulmonary impairment is due to pneumoconiosis. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Where a miner files a claim for benefits more than one year after the final denial of a previous claim, the subsequent claim must also be denied unless the administrative law judge finds that “one of the applicable conditions of entitlement... has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. §725.309(c); White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(c)(3). Claimant's prior claim was denied because he failed to establish total disability. Director's Exhibit 1. Consequently, to obtain review of the merits of his claim, claimant had to submit new evidence establishing total disability. 20 C.F.R. §725.309(c)(3), (4).
Claimant initially contends that the administrative law judge erred in finding that the new pulmonary function study evidence did not establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(i). The administrative law judge considered four pulmonary function studies conducted on April 22, 2010, August 12, 2010, September 9, 2010, and June 6, 2011.[4] The April 22, 2010 pulmonary function study yielded non-qualifying[5] values both before and after the administration of bronchodilators. Director's Exhibit 8. The August 12, 2010 pulmonary function study yielded qualifying values both before and after the administration of a bronchodilator.[6] Claimant's Exhibit 1. The September 9, 2010 pulmonary function study yielded non-qualifying pre-bronchodilator values, and did not include post-bronchodilator results. Claimant's Exhibit 1. Finally, the June 6, 2011 pulmonary function study yielded qualifying values both before and after the administration of a bronchodilator. Employer's Exhibit 7.
The administrative law judge first weighed the pre-bronchodilator results of the four studies, noting that two studies yielded qualifying values (August 12, 2010 and June 6, 2011), and two studies yielded non-qualifying values (April 22, 2010 and September 9, 2010). The administrative law judge indicated that, because claimant's results “var[ied] in the relatively short 14-month period between testing, ” she “decline[d] to grant more probative weight” to the more recent pulmonary function study values. Decision and Order on Remand at 4. Noting that “pulmonary function testing is effort-dependent and [that] spurious low values can result, but spurious high values are not possible, ” the administrative law judge found that the pre-bronchodilator pulmonary function study evidence was “in equipoise as to the issue of [c]laimant's total disability.” Decision and Order on Remand at 4.
Turning to the post-bronchodilator results, the administrative law judge noted that two studies yielded qualifying values (August 12, 2010 and June 6, 2011), and one study yielded non-qualifying values (April 22, 2010). The administrative law judge determined that all of the post-bronchodilator values “must be accorded minimal weight, ” because “post-bronchodilator tests are less probative” on the issue of total disability. Decision and Order on Remand at 5. Therefore, the administrative law judge found that the new pulmonary function study evidence was in equipoise and did not establish total disability pursuant to 20 C.F.R. §718.204(b)(2)(i). Id.
Claimant argues that the administrative law judge did not adequately explain why she found that the pre-bronchodilator pulmonary function evidence was in equipoise, when she reasoned that spurious low values, but not spurious high values, are possible. Specifically, claimant argues that because there is no evidence that claimant's pulmonary function studies were invalid for insufficient effort or cooperation, or other technical defect, the administrative law judge did not set forth a basis for questioning the “validity of the qualifying pre-bronchodilator test results.” Claimant's Brief at 6. The Director asserts that the administrative law judge's analysis of the pre-bronchodilator study results was “cursory, ” and based on the improper assumption that higher test results are necessarily more reliable than lower results. Director's Brief at 4. We agree.
The administrative law judge declined to accord greater weight to the more recent and qualifying pulmonary function study conducted nine months after the prior study, because she found that the pulmonary function study results varied over the fourteen months in which the studies were conducted. Decision and Order on Remand at 4. As the Director points out, however, claimant's pulmonary function studies do not demonstrate widely disparate values between the qualifying and non-qualifying values. Instead, all of claimant's studies demonstrate values either slightly above or slightly below the qualifying values listed at 20 C.F.R. Part 718, Appendix B. Director's Exhibit 8; Clai...
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