Tracy v. Coal, BRB 20-0407 BLA
| Decision Date | 27 September 2021 |
| Docket Number | 20-0408 BLA,BRB 20-0407 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | GARNET TRACY (o/b/o and Widow of GERALD TRACY) Claimant-Respondent v. CONSOLIDATION COAL and CONSOL ENERGY, INCORPORATED c/o HEALTHSMART, CCS Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Benefits in the Miner's Claim and Automatic Entitlement in the Survivor's Claim of Joseph E. Kane, Administrative Law Judge, United States Department of Labor.
Wes Addington (Appalachian Citizens' Law Center, Inc.) Whitesburg, Kentucky, for Claimant.
Cheryl L. Intravaia and Kara L. Jones (Feirich/Mager/Green/Ryan) Carbondale, Illinois, for Employer and its Carrier.
William M. Bush (Seema Nanda, Solicitor of Labor; Barry H Joyner, Associate Solicitor; Christian P. Barber, Acting 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, ROLFE and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Joseph E. Kane's Decision and Order Granting Benefits in the Miner's Claim and Automatic Entitlement in the Survivor's Claim (2016-BLA-05711, 2019-BLA-06223) rendered on claims filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a miner's subsequent claim filed on May 28, 2014, [1] and a survivor's claim filed on March 11, 2019.[2]
The ALJ credited the Miner with thirty-three years of surface coal mine employment in conditions substantially similar to those in an underground mine and found he had a totally disabling respiratory or pulmonary impairment. 20 C.F.R §718.204(b)(2). Thus, Claimant established a change in an applicable condition of entitlement[3] and invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[4] 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §725.309(c). The ALJ further found Employer did not rebut the presumption and awarded benefits in the miner's claim. Because the Miner was determined to be entitled to benefits at the time of his death, the ALJ found Claimant automatically entitled to survivor's benefits under Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[5]
On appeal, Employer argues the ALJ erred in finding the Miner's above-ground coal mine employment was performed in conditions substantially similar to underground coal mines and the Miner was totally disabled, and thus erred in finding Claimant invoked the Section 411(c)(4) presumption. It also argues he erred in finding it did not rebut the presumption.[6] Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), filed a limited response, arguing the ALJ applied the appropriate legal standard in assessing whether the miner's above-ground coal mine employment was qualifying for the presumption. Employer filed a consolidated reply brief, reiterating its arguments.
The Benefits Review Board's scope of review is defined by statute. We must affirm the ALJ's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[7] 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 invoke the Section 411(c)(4) presumption, Claimant must establish the Miner had at least fifteen years of employment 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); Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-29 (2011). The conditions in a surface mine are "substantially similar" to those underground if "the miner was regularly exposed to coal-mine dust while working there." 20 C.F.R. §718.305(b)(2).
We first reject Employer's argument that the regulation at 20 C.F.R. §718.305(b)(2), which defines substantial similarity, is invalid because it is contrary to the Act. Employer's Brief at 4-6. The United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, as well as the United States Court of Appeals for the Tenth Circuit, have rejected similar arguments and upheld the validity of 20 C.F.R. §718.305(b)(2). See Zurich v. Am. Ins. Grp. v. Duncan, 889 F.3d 293, 301-03 (6th Cir. 2018); Spring Creek Coal Co. v. McLean, 881 F.3d 1211, 1219-23 (10th Cir. 2018).
Employer further argues the ALJ erred in finding the Miner's testimony sufficient to establish his surface coal mine employment occurred in conditions substantially similar to underground mines. Employer's Brief at 6, 19. We disagree. The Miner testified that: he was regularly exposed to dust at the strip mine where he worked; he would cough and suffer from a dry throat at work from inhaling the dust; his clothes were covered in dust; and he would cough and spit dust after leaving work for the day. Hearing Transcript at 17-18. The ALJ permissibly found the Miner's uncontradicted testimony credible and establishes he was regularly exposed to coal mine dust. See Brandywine Explosives & Supply v. Director, OWCP [Kennard], 790 F.3d 657, 664 (6th Cir. 2015); Cent. Ohio Coal Co. v. Director, OWCP [Sterling], 762 F.3d 483, 490 (6th Cir. 2014) (claimant's testimony that the conditions throughout his employment were "very dusty" met burden to establish he was regularly exposed to coal mine dust); Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1343-44 & n.17 (10th Cir. 2014) (claimant's testimony that he was exposed to "pretty dusty" conditions "provided substantial evidence of regular exposure to coal mine dust"); Decision and Order at 4. Because it is supported by substantial evidence, we affir m the ALJ's finding that Claimant established at least fifteen years of qualifying coal mine employment. 20 C.F.R. §718.305(b)(2).
A miner was totally disabled if his pulmonary or respiratory impairment, standing alone, prevented him from performing his usual coal mine work and comparable gainful work. See 20 C.F.R. §718.204(b)(1). In the absence of contrary probative evidence, a miner's total disability is established by qualifying pulmonary function studies qualifying arterial blood gas studies, [8] 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 ALJ must weigh the relevant evidence supporting a finding of total disability against the contrary 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 ALJ found Claimant did not establis h total disability based on the pulmonary function studies or arterial blood gas testing, or evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure. 20 C.F.R. §718.204(b)(2)(i)-(iii); Decision and Order at 5-7. However, he found Claimant established total disability based on the medical opinions. 20 C.F.R. §718.204(b)(2)(iv); Decision and Order at 7-10.
Employer argues the ALJ erred. Employer's Brief at 15-19. Again, we disagree.
The ALJ considered the opinions of Drs. Feicht, Goggin, Go, and Zaldivar that the Miner was totally disabled, and Dr. Fino's opinion that he was not. Decision and Order at 7-10; Miner's Claim (MC) Director's Exhibits 6 at 195-96, 219; 7 at 233-41; 8 at 30-31, 37-46, 71-75, 173-79; Claimant's Exhibit 1; Employer's Exhibits 3, 4, 6-8. He discredited Dr. Fino's opinion as unsupported by the record, and found the opinions of Drs. Goggin, Go, and Zaldivar credible and sufficient to establis h total disability.[9] Decision and Order at 10.
Employer argues the ALJ did not adequately set forth his bases for crediting the opinions of Drs. Goggin, Go, and Zaldivar and thus did not satisfy the explanatory requirements of the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a).[10] Employer's Brief at 15-16, 19-20.
Contrary to Employer's argument, the ALJ accurately set forth the doctors' respective bases for diagnosing total disability and explained his reasons for crediting them. Decision and Order at 7-10. He found Dr. Goggin was the Miner's treating physician for over ten years. Decision and Order at 7-8, citing MC Claimant's Exhibit 1. He noted the doctor diagnosed chronic obstructive pulmonary disease (COPD) in the form of chronic bronchitis, based on what the doctor stated was the Miner's "long history of severe lung disease, [documented] countless clinical encounters over the years, previous [x-rays] and pulmonary function tests, as well as data from multiple hospitalizations." Id. Finally, the ALJ noted Dr. Goggin testified at a deposition that the Miner's COPD prevented him from performing his usual coal mine employment as a heavy equipment operator due to "chronic cough, chronic wheezing, frequent exacerbations requiring steroids and antibiotics, and shortness of breath when walking even short distances." Decision and Order at 7-8, citing Employer's Exhibit 19 at 10.
With respect to Dr. Go, the ALJ observed the doctor opined the Miner was totally disabled based on his history of frequent exacerbations of obstructive lung disease and shortness of breath when walking, which rendered him unable to perform the exertional work required of a heavy equipment...
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