Summers v. Freeman United Coal Min. Co.

• Decision Date: 03 March 1994
• Docket Number: No. 93-1110,93-1110
• Citation: 14 F.3d 1220
• Parties: Herman E. SUMMERS, Petitioner, v. FREEMAN UNITED COAL MINING CO. and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1220

14 F.3d 1220

Herman E. SUMMERS, Petitioner, v. FREEMAN UNITED COAL MINING CO. and Director, Office of

Workers' Compensation Programs, United States

Department of Labor, Respondents.

No. 93-1110.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 1993.

Decided Jan. 27, 1994.

Rehearing Denied March 3, 1994.

Janet F. Gerske (argued), Chicago, IL, for petitioner.

Patricia M. Nece, Dept. of Labor, Appellate Litigation, Rodger Pitcairn (argued), Dept. of Labor, Office of the Sol., Washington, DC, for Office of Workers Compensation Programs.

Kathryn S. Matkov (argued), Gould & Ratner, Chicago, IL, for Freeman United Coal Min. Co.

Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of the Board, Washington, DC, for Benefits Review Bd.

Before POSNER, Chief Judge, MANION, Circuit Judge, and GRANT, District Judge. ¹

GRANT, District Judge.

Plaintiff, Herman Summers, appeals from a final decision of the U.S. Department of Labor's Office of Workers' Compensation Programs denying his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. For the following reasons we now affirm the administrative decision.

I. BACKGROUND

From 1948 through 1950, Herman Summers worked in the underground mines of the Old Ben Coal Company hanging trolley wire for locomotives. He moved to the surface in 1950, when he went to work as an electrician for Freeman United Coal Mining Company ("Freeman"). Mr. Summers stayed with Freeman until 1965, when he took a job as a maintenance supervisor at Southern Illinois University. In 1974, he returned to Freeman, teaching basic electrical concepts to miners for the first few months and subsequently assuming the position of assistant electrical engineer. In that capacity, he traveled above and below ground to supervise electrical repair work, working underground about one day a week. Mr. Summers retired in October 1980, on the recommendation of his treating physician, Dr. John McGowan, and has not worked since.

On October 9, 1980, Mr. Summers filed an application for disability benefits under the Black Lung Benefits Act (the "Act"), 30 U.S.C. Sec. 901 et seq., alleging total disability due to a respiratory impairment (asthma and breathing difficulty) which he contends was caused, at least in part, by his exposure to coal dust during the course of his coal mine employment. After initially finding that Mr. Summers was not entitled to benefits, the Office of Workers' Compensation Programs reconsidered the evidence, reversed the denial and notified Freeman that it was responsible for paying the award. Freeman refused and requested a hearing before an Administrative Law Judge ("ALJ").

The medical evidence presented at the hearing was not without conflict. The record shows that Mr. Summers has suffered from bronchial asthma and respiratory insufficiency since 1965, that he has been treated by Dr. John McGowan for that condition since December 1968, and that he was hospitalized fourteen times between 1968 and February 1982 for treatment related to his condition. Dr. McGowan and several consulting physicians, including Dr. William Getty, Dr. Parviz Sanjabi, Dr. Herman Lyle and Dr. David Wells, issued statements regarding Mr. Summers' condition. All concurred in the opinion that Mr. Summers was totally disabled as a result of a severe respiratory problem (bronchial asthma and chronic obstructive pulmonary disease). Drs. Getty and Sanjabi, the only two physicians to express an opinion on the issue of whether Mr. Summers' disability arose out of his coal mine employment, however, both indicated that it did not.

Dr. Getty indicated in his report of February 26, 1982 that a chest x-ray taken on February 25, 1982 showed the lungs to be clear. Dr. Eugene Hendershot, a Board Certified radiologist, read Mr. Summers' February 25 x-ray and reported that "no nodular infiltrates were seen, the cardiovascular shadow was normal, the pleural spaces showed no abnormality," and the x-ray was completely negative for pneumoconiosis. Dr. Joseph Rosenstein, a Board Certified radiologist and "B" reader, concurred with Dr. Hendershot's interpretation. ² Based upon his examination of Mr. Summers, Mr. Summers' medical history, various test results and the chest x-ray, Dr. Getty opined:

... [Mr. Summers'] disability is based upon the development of intrinsic bronchitis approximately 16 years ago, about 1965 ... There may be evidence of aggravation of his pulmonary problem from the coal dust, but I do not believe this is the primary cause of his ailment. Asthmatic bronchitis is a type of allergic internal disorder usually in persons with an allergic nature in the past, or in the family.... Mr. Summers is totally incapacitated because of his pulmonary disease, but his pulmonary disease is not the result of his coal mining experience....

Dr. Parviz Sanjabi concurred with Dr. Getty's diagnosis. In a Report of Physical Examination dated January 12, 1981, Dr. Sanjabi indicated that although Mr. Summers suffered from atopic asthma by history, his condition was not related to dust exposure in his coal mine employment.

Balanced against this evidence were two x-ray reports showing that Mr. Summers was positive for pneumoconiosis: the first, a report by Dr. D. Sloan dated December 5, 1980 interpreting an x-ray of even date, and the second a report by Dr. Brent Brandon dated April 26, 1982, interpreting the February 25, 1982 x-ray taken during Dr. Getty's examination. While Dr. Brandon is both a Board Certified radiologist and a "B" reader, Dr. Sloan is neither. Dr. Sloan's interpretation of the December 5, 1980 x-ray conflicted with a report by Dr. Rosenstein dated January 29, 1982, in which Dr. Rosenstein concluded that the December 1980 x-ray was not positive for pneumoconiosis. Dr. Brandon's interpretation of the February 25, 1982 x-ray conflicted with the earlier reports made by Drs. Getty, Hendershot and Rosenstein.

Resolving the conflict in the evidence in favor of Freeman, the ALJ found that while Mr. Summers may have been disabled as a result of a pulmonary impairment, his disability was not caused by, or the result of, his coal mine employment as evidenced by the reports of Drs. Getty and Sanjabi and the negative x-ray interpretations by Drs. Hendershot and Rosenstein. In rejecting the positive x-ray evidence offered by Mr. Summers, the ALJ stated:

Dr. Sloan, who is neither a B-reader nor Board certified, found rounded opacities with a profusion of 1/1 in his 5 December 1980 reading. That x-ray, however, was reread by Dr. Rosenstein, a B reader, who found no evidence of coal miner's pneumoconiosis. Dr. Getty stated that an x-ray made 26 February 1982 showed the lungs to be clear. Drs. Hendershot and Rosenstein agreed.

The ALJ concluded on the basis of the foregoing that even if Mr. Summers had been entitled to a presumption of disability under 20 C.F.R. Sec. 718.203(b), that presumption had been rebutted. ³ (Decision and Order dated December 19, 1986).

Mr. Summers thereafter sought review by the Benefits Review Board contending that the ALJ committed reversible error when he failed to consider entitlement under 30 U.S.C. Sec. 921(c)(4) and 20 C.F.R. Sec. 718.305 which establish yet another rebuttable presumption of disability due to pneumoconiosis for miners who have worked for fifteen years in an underground coal mine or under "substantially similar" conditions, and failed to identify a rational basis for rejecting evidence which favored his position, i.e., the positive x-ray readings by Dr. Sloan and Dr. Brandon and Dr. Getty's acknowledgment that coal dust may have been an aggravating factor. The Board agreed and remanded the case for further consideration.

Mr. Summers fared no better on remand. By order dated June 6, 1991, the ALJ found that the cause of Mr. Summers' disability had been positively identified as asthma, not pneumoconiosis, and that the presumption of disability due to pneumoconiosis had therefore been rebutted. To the extent Dr. Getty indicated in his report of February 26, 1982 that there "may" be evidence of aggravation of Mr. Summers' pulmonary problem from the coal dust, the ALJ noted that no such evidence was presented, and found that Dr. Getty's "throw away" sentence "[could] not be 'characterized' in any way to establish a causal connection between claimant's pulmonary condition and his coal mine employment" when his report is read in its entirety. The ALJ thus concluded that Mr. Summers' claim should be denied. The Benefits Review Board affirmed the ALJ's decision on November 25, 1992, and this appeal followed.

In his petition for judicial review, Mr. Summers once again asserts a right to benefits under 20 C.F.R. Secs. 718.202-718.204 and 30 U.S.C. Sec. 921(c)(4). Mr. Summers contends that he presented direct evidence of total disability due to pneumoconiosis in the form of positive x-ray readings by Dr. Sloan and Dr. Brandon, that the ALJ should have given greater weight to that evidence, and that he erred as a matter of law in failing to do so. Alternatively, he contends that where, as here, the evidence (specifically Dr. Getty's report) did not expressly rule out coal dust exposure as a contributing cause of disability, the presumption of disability due to pneumoconiosis accorded under 30 U.S.C. Sec. 921(c)(4) remains intact; and that the ALJ's findings to the contrary were not supported by substantial evidence.

II. STANDARD OF REVIEW

The standard of review in black lung cases is well-settled. The ALJ's findings of fact must be affirmed if they are supported by substantial evidence in the record when viewed in its entirety. Meyer v. Zeigler Coal Co., 894 F.2d 902, 906 (7th Cir.), cert. denied, 498 U.S. 827, 111 S.Ct. 84, 112 L.Ed.2d 57 (1990); Amax Coal Co. v. Director, Office of Workers' Compensation Programs, 801 F.2d 958, 961 (7th Cir.1986); Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, 778 F.2d...