U.S. Steel Mining Co., LLC v. Director, Owcp

• Decision Date: 28 September 2004
• Docket Number: No. 03-13526.,03-13526.
• Citation: 386 F.3d 977
• Parties: U.S. STEEL MINING COMPANY, LLC, Petitioner, v. DIRECTOR, OWCP, Roderick Jones, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

386 F.3d 977

U.S. STEEL MINING COMPANY, LLC, Petitioner, v. DIRECTOR, OWCP, Roderick Jones, Respondents.

No. 03-13526.

United States Court of Appeals, Eleventh Circuit.

September 28, 2004.

James N. Nolan, Walston, Wells, Anderson & Bains, LLP, Birmingham, AL, for Petitioner.

Thomas E. Johnson, Johnson, Jones, Snelling, Gilbert & Davis, P.C., Chicago, IL, Jennifer U. Toth, Patricia M. Nece, Michelle S. Gerdano, Christian P. Barber, Richard Seid, U.S. Dept. of Labor, Washington, DC, for Respondents.

Petition for Review of an Order of the Benefits Review Board United States Department of Labor.

Before BIRCH, MARCUS and BRUNETTI^*, Circuit Judges.

MARCUS, Circuit Judge:

U.S. Steel Mining Company ("U.S.Steel") appeals from the final order of the Department of Labor's Benefits Review Board ("BRB") affirming the award of black lung benefits to Roderick Jones ("Jones"), a former coal miner. An Administrative Law Judge ("ALJ") granted benefits to Jones on his second claim under the Black Lung Benefits Act ("the Act" or "the BLBA"), 30 U.S.C. §§ 901-945, after finding that Jones was totally disabled by pneumoconiosis — or black lung disease¹ — that developed as a result of his work in the coal mines of Alabama. On appeal, U.S. Steel says that the ALJ used the wrong legal standard in evaluating whether there was a material change in Jones's condition, a prerequisite to Jones's second claim under the Act, and that the ALJ reached the wrong decision on the merits. After thorough review, we are persuaded by neither argument and, accordingly, affirm the judgment of the BRB.

I.

A.

The procedural history, essential background and developed facts are straightforward. The Secretary of Labor's black lung benefits program allows coal miners to file more than one benefits claim under certain circumstances. After the first claim by a miner is denied, the claimant may file a second or "duplicate" application more than one year after the denial of the first claim.² In order to file a duplicate claim, the miner must first establish that "a material change in conditions" has occurred since the earlier denial of the first claim. 20 C.F.R. § 725.309(d). Indeed, duplicate claims are feasible under the BLBA precisely because pneumoconiosis is a latent and progressive disease, from which a miner's condition may deteriorate over time. As a result, if a miner's condition has materially changed, he may allege a new cause of action based on a very different physical condition. See, e.g., Coleman v. Director, OWCP, 345 F.3d 861, 863 (11th Cir.2003) (per curiam) ("Because pneumoconiosis is a latent and progressive disease, a miner's condition may worsen over time. In recognition of that fact, the Labor Department's regulations permit a miner whose first claim has been denied to pursue a later claim for benefits, provided the miner can establish a change in conditions of entitlement." (citation omitted)); Labelle Processing Co. v. Swarrow, 72 F.3d 308, 313-16 (3d Cir.1995). The Director of the U.S. Department of Labor's Office of Workers' Compensation Programs ("the Director"), has taken the position that a claimant may establish a "material change" by proving any element of entitlement in the second claim that the miner failed to show in the first one.

Jones filed his original claim for black lung benefits on October 22, 1997. The claim was denied by the U.S. Department of Labor's District Director ("District Director"), who concluded that Jones had failed to establish any of the elements of black lung eligibility. Jones did not appeal the denial of his first claim.

Almost two years later, Jones brought this claim on August 2, 1999, seeking benefits for himself, his wife, and four dependent children. Because Jones's second claim was filed more than a year after the denial of the first one, this claim was a "duplicate claim" governed by 20 C.F.R. § 725.309(d), and, therefore, Jones had to prove by a preponderance of the evidence that a "material change in conditions" had occurred since the denial of his initial claim. Id. After meeting this threshold requirement, Jones also had to establish that: (1) he had pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment; (3) he was totally disabled; and (4) the pneumoconiosis contributed to the total disability. Id. § 725.202(d)(2).

The District Director denied Jones's duplicate (or second) claim on September 6, 2000, after which Jones filed a timely request for a hearing.³ On October 23, 2001, a hearing was conducted in Birmingham, Alabama, before an ALJ. In a decision and order dated August 1, 2002, the ALJ determined that Jones and his family were entitled to an award of benefits. U.S. Steel timely appealed to the BRB, and, in a decision and order dated May 16, 2003, a three-judge panel of the BRB affirmed the ALJ's order.

B.

It is undisputed that Roderick Jones worked for twenty-two years as a coal miner in Alabama, before leaving the mines in 1993, at the age of 41. At the hearing, Jones explained that he quit working as a miner because his "body wouldn't take it anymore," and that "it came to the point that I couldn't breathe and do a job like I should do it." Since leaving the mines, Jones has not worked, except as a pastor in his church. Jones has never smoked cigarettes, pipes, or cigars. Besides working as a coal miner, he has never held any employment in which he was exposed to pulmonary irritants.

Jones currently suffers from substantial breathing difficulties. He easily becomes short of breath after minimal exertion, such as climbing a single flight of stairs, mowing his lawn, or playing basketball with his children for more than "a little bit." He occasionally suffers from "uncontrollable coughing," a condition which worsens at night and requires him to sleep propped up on four or five pillows. In the year preceding the ALJ hearing, Jones's breathing difficulties forced him to visit a hospital emergency room on multiple occasions, where he was put on a breathing machine. Jones has been prescribed prednisone pills and inhalers to help with his breathing, and he also takes medication for atrial fibrillation, or an irregular heartbeat, which was diagnosed in 1979.

Because, under the Act, the characterization of a coal miner as being totally disabled depends in part on whether the miner is unable to perform his "usual coal mine work," 20 C.F.R. § 718.204(b)(1), we examine the work Jones engaged in during the last period of his employment. See Shortridge v. Beatrice Pocahontas Coal Co., 4 BLR 1-534, 1-539 (1982) ("[U]sual coal mine work is the most recent job the miner performed regularly and over a substantial period of time."). The last job Jones performed regularly and over a substantial period of time was a faceman.

As a faceman, Jones was required to build cement block walls inside the mine. This work caused him to regularly lift 100-pound bags of cement and 50-pound bags of rock dust, and to lift cement blocks weighing 40 pounds. Sometimes Jones was required to lift the 40-pound blocks above his head. His job also required him to lift bundles of roof-bolting pins, which could weigh from 80 to 150 pounds, and to carry these bundles for distances of up to 1600 feet. Jones also unloaded mining cars which contained approximately 300 50- to 100-pound bags of rock dust. Jones unloaded the rock dust bags, cut them open, and spread the rock dust within the mine shafts, a dirty and dusty task. In addition, Jones shoveled wet coal spillage from the belt line that took the coal out of the mine, requiring him to shovel 40- to 50-pound loads of wet coal. Finally, Jones sometimes filled the mine's grout machine, which required him to unload 50- to 100-pound bags of cement and dump them into the machine.

Since 1997, a number of doctors have examined Jones or his medical records, and come to varying conclusions concerning his medical condition and the causes of that condition. Because these differences in medical opinion play a central role in the resolution of this appeal, we describe the range of medical evidence presented in some detail.

Dr. Goldstein, a board-certified pulmonary specialist and B-reader,⁴ examined Jones the first time he applied for black lung benefits, in December 1997. Dr. Goldstein read Jones's lung x-ray as being negative for pneumoconiosis⁵ and found no pulmonary impairment. However, Dr. Goldstein diagnosed a cardiac arrhythmia, chest pain, and a restrictive lung defect. Goldstein did not opine on the cause of the restrictive lung defect, simply writing "? etiology" in his report. Dr. Goldstein found Jones to be 100% disabled because of his cardiac arrhythmia.

Dr. Cohen, another board-certified pulmonary specialist, conducted a new pulmonary examination of Jones in October 1999 in connection with Jones's second claim. Dr. Cohen reviewed Jones's work and medical histories, respiratory symptoms, and physical examination. Dr. Cohen identified pneumoconiosis, classified as 1/0, on an x-ray of Jones's lungs taken on October 12, 1999,⁶ determining that the x-ray showed signs of pneumoconiosis in Jones's middle and upper lung zones.⁷ Dr. Cohen also conducted a pulmonary function study that revealed mild reductions in Jones's total lung capacity and a mild diffusion impairment; he also conducted blood gas testing, which indicated a reduced capacity of Jones's lungs to oxygenate his blood. Dr. Cohen observed that some of the shortness of breath Jones experienced was associated with the exacerbation of his arrhythmia, but, notably, that many of Jones's symptoms were altogether independent of the diagnosed arrhythmia. Because of the x-ray evidence, as well as the impairment evident in Jones's pulmonary function test, Dr. Cohen unambiguously diagnosed Jones as suffering from coal miners' pneumoconiosis. Dr. Cohen also concluded that, because of the exertion required in Jones's last mining job, he was totally disabled.

Dr. Cohen issued a second report...