Vialpando v. Chevron Mining, Inc.
| Decision Date | 12 July 2017 |
| Docket Number | BRB 16-0573 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | FILBERT C. VIALPANDO Claimant-Respondent v. CHEVRON MINING, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Scott R. Morris, Administrative Law Judge, United States Department of Labor.
Evan B. Smith (Appalachian Citizens' Law Center, Inc.) Whitesburg, Kentucky, for claimant.
Timothy S. Hale (Hale & Dixon, P.C.), Albuquerque, New Mexico, for employer.
Before: HALL, Chief Administrative Appeals Judge, BUZZARD and GILLIGAN, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (2012-BLA-05572) of Administrative Law Judge Scott R. Morris rendered on a miner's claim filed on February 25, 2011, pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act).
The administrative law judge credited claimant with over twenty-nine years of underground coal mine employment[1] and determined that claimant has a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). Therefore, the administrative law judge found that claimant invoked the presumption set forth at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2012), [2] that he is totally disabled due to pneumoconiosis. The administrative law judge further determined that employer did not rebut the presumption. Accordingly, he awarded benefits.
On appeal, employer argues that the administrative law judge erred in finding that the evidence established total disability pursuant to 20 C.F.R. §718.204(b)(2), and therefore erred in finding that claimant invoked the Section 411(c)(4) presumption.[3] Employer further contends that the administrative law judge erred in finding that it failed to rebut the presumption. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response. Employer has filed a reply brief, reiterating its contentions on appeal.
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).
A miner is considered totally disabled if his pulmonary or respiratory impairment, standing alone, prevents him from performing his usual coal mine work. See 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on pulmonary function testing evidence, arterial blood gas study evidence, evidence of cor pulmonale with right-sided congestive heart failure, or medical opinion evidence. 20 C.F.R. §718.204(b)(2)(i)-(iv). The administrative law judge must consider all of the relevant evidence and weigh the 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). In this case, the administrative law judge found that the arterial blood gas study evidence and the medical opinion evidence support a finding of total disability.[4] Decision and Order at 17, 25-27. Giving controlling weight to Dr. Sood's opinion, the administrative law judge determined that claimant has a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). Id. at 27.
Employer argues that the administrative law judge ignored Dr. Repsher's opinion that claimant is not totally disabled, and further contends that Dr. Repsher's opinion is uncontradicted. Employer's Brief at 6-8; Employer's Exhibit 1 at 3. These arguments lack merit. As an initial matter, the administrative law judge found that the arterial blood gas study evidence supports a finding of total disability pursuant to 20 C.F.R. §718.204(b)(2)(ii). That finding is affirmed, as it is unchallenged by employer on appeal. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 17. Moreover, Dr. Sood's opinion that claimant is totally disabled directly contradicts Dr. Repsher's opinion. The administrative law judge specifically considered and weighed both opinions, and ultimately credited Dr. Sood's opinion over Dr. Repsher's opinion. Decision and Order at 26-27.
In its reply brief, employer contends that the administrative law judge erred by crediting Dr. Sood's opinion over that of Dr. Repsher. Employer's Reply Brief at 2-3. Specifically, employer asserts that Dr. Sood is “new... to black lung evaluation and is newly designated to conduct [Department of Labor] examinations, ” and then suggests that Dr. Sood has a “bias for his position” that always leads him to conclude that miners are totally disabled. Id. at 2. This argument is unsubstantiated and lacks merit. If employer is asserting that Dr. Sood conducted the Department of Labor (DOL)-sponsored complete pulmonary evaluation, see 20 C.F.R. §725.406, employer is incorrect. Dr. Sood examined claimant in 2013, more than two years after Dr. Klepper performed the DOL-sponsored examination of claimant in 2011.[5] Claimant's Exhibit 1; Director's Exhibit 10. Moreover, the fact that claimant underwent an examination by Dr. Sood to generate additional evidence for his claim does not establish any bias on Dr. Sood's part. See Richardson v. Perales, 402 U.S. 389, 402-04 (1971) (); see also Van Dyke v. Missouri Mining, Inc., 78 F.3d 362, 365, 20 BLR 2-144, 2-151 (8th Cir. 1996).
Employer raises no other arguments on the issue of total disability. We therefore affirm the administrative law judge's decision to credit Dr. Sood's opinion and give it controlling weight.[6] Consequently, we affirm the administrative law judge's determination that claimant has a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2), and that claimant invoked the Section 411(c)(4) presumption.
Because claimant invoked the Section 411(c)(4) presumption of total disability due to pneumoconiosis, the burden shifted to employer to rebut the presumption by establishing that claimant has neither legal nor clinical pneumoconiosis [7] or by establishing that “no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201.” 20 C.F.R. §718.305(d)(1)(i), (ii); see Energy West Mining Co. v. Estate of Blackburn, 857 F.3d 817, 821-22 (10th Cir. 2017). The administrative law judge determined that employer failed to rebut the presumption by either method, finding that although employer established that claimant does not have clinical pneumoconiosis, it failed to establish that he does not have legal pneumoconiosis or that no part of his totally disabling respiratory or pulmonary impairment is due to pneumoconiosis. Decision and Order at 28-37.
Employer argues that the administrative law judge erred by “not adequately considering” Dr. Repsher's opinion that claimant's COPD was due to smoking, and that claimant therefore does not have legal pneumoconiosis. Employer's Reply Brief at 2-3. We disagree. The administrative law judge considered Dr. Repsher's opinion and weighed it against the opposing opinions of Drs. Klepper and Sood.[8] Decision and Order at 31-34; Employer's Exhibit 1 at 3. The administrative law judge discredited Dr. Repsher's opinion for several reasons[9] and ultimately concluded that his opinion on legal pneumoconiosis “merits little to no probative value, and does not constitute affirmative evidence sufficient to rebut the presumption at Section 718.305(d)(1)(i)[(A)] regarding legal pneumoconiosis.” Decision and Order at 32-34. The administrative law judge therefore found that employer failed to meet its burden of establishing that claimant does not have legal pneumoconiosis, and thus failed to rebut the Section 411(c)(4) presumption by proving that claimant does not have pneumoconiosis pursuant to 20 C.F.R. §718.305(d)(1)(i). Id. at 34.
We affirm the bases on which the administrative law judge discounted Dr. Repsher's opinion regarding the existence of legal pneumoconiosis, as those findings are unchallenged by employer on appeal. SeeSkrack, 6 BLR at 1-711. Consequently, we also affirm the administrative law judge's findings that employer failed to disprove the existence of legal pneumoconiosis, and therefore failed to rebut the Section 411(c)(4) presumption by establishing that claimant does not have pneumoconiosis pursuant to 20 C.F.R. §718.305(d)(1)(i).
Finally we affirm the administrative law judge's finding that employer failed to rebut the Section 411(c)(4) presumption by establishing that no part of claimant's totally disabling respiratory or pulmonary impairment was caused by pneumoconiosis pursuant to 20 C.F.R. §718.305(d)(1)(ii). Employer offers no arguments against that finding beyond its contention that the administrative law judge erred by not adequately considering Dr. Repsher's opinion. Employer's Reply Brief at 2-3. Employer's argument lacks merit. Because Dr. Repsher did not diagnose claimant with legal pneumoconiosis, contrary to the administrative law judge's finding that employer failed to disprove the existence of the disease,...
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