Virginia Melton v. Trinity Coal Corp., BRB 19-0515 BLA
| Decision Date | 12 January 2021 |
| Docket Number | BRB 19-0515 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | VIRGINIA MELTON (Widow of PAUL DOUGLAS MELTON) Claimant-Petitioner v. TRINITY COAL CORPORATION Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Denying Benefits of Joseph E. Kane Administrative Law Judge, United States Department of Labor.
Virginia Melton, Wooten, Kentucky.
Paul E. Jones and Denise Hall Scarberry (Jones & Walters PLLC), Pikeville, Kentucky, for Employer.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and GRESH, Administrative Appeals Judges.
Claimant appeals, without the assistance of counsel, [1] Administrative Law Judge Joseph E. Kane's Decision and Order Denying Benefits (2017-BLA-06225) rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a survivor's claim filed on November 14, 2016.[2]
The administrative law judge credited the miner with thirty-seven years of surface coal mine employment in conditions substantially similar to an underground mine but found Claimant did not establish a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). The administrative law judge therefore found Claimant could not invoke the rebuttable presumption of death due to pneumoconiosis at Section 411(c)(4) of the Act.[3] 30 U.S.C. §921(c)(4) (2018). He also found that because the record lacks evidence of complicated pneumoconiosis, the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act is inapplicable.[4] 30 U.S.C. §921(c)(3); see 20 C.F.R. §718.304. Considering whether Claimant could establish entitlement to benefits without a presumption, the administrative law judge determined Claimant established the miner had pneumoconiosis arising out of coal mine employment, but did not establish his death was due to pneumoconiosis. Accordingly, the administrative law judge denied benefits.
On appeal, Claimant generally challenges the denial of benefits. Employer responds in support of the denial. The Director, Office of Workers' Compensation Programs, has declined to file a response brief in this appeal.[5]
In an appeal a claimant files without the assistance of counsel, the Benefits Review Board considers whether the Decision and Order Denying Benefits below is supported by substantial evidence. See McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176 (1989). We must affirm the administrative law judge's Decision and Order if the findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with law.[6] 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 the time of his death, a totally disabling respiratory or pulmonary impairment." 20 C.F.R. §718.305(b)(1)(iii). 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. 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on pulmonary function tests, arterial blood gas studies, 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 administrative law judge 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 administrative law judge determined Claimant did not establish total disability, as the sole qualifying[7] blood gas study was outweighed by the contrary probative evidence of record. Decision and Order at 4-5.
The administrative law judge correctly found no qualifying pulmonary function studies[8] and no evidence of cor pulmonale with right-sided congestive heart failure. Decision and Order at 4; Director's Exhibits 16, 17, 19. We therefore affirm his findings Claimant did not establish total disability at 20 C.F.R. §718.204(b)(2)(i), (iii). See Martin v. Ligon Preparation Co., 400 F.3d 302, 305 (6th Cir. 2005).
The administrative law judge considered blood gas studies dated March 19, 2014, and June 4, 2015, that produced non-qualifying values and a June 16, 2016 blood gas study that yielded qualifying values.[9] Decision and Order at 4; Director's Exhibits 15-17. The administrative law judge permissibly assigned less weight to the June 16, 2016 blood gas study as it was performed during the miner's hospitalization for an acute respiratory illness.[10] 20 C.F.R. §§718.105, 718.204(b)(2)(ii); Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir. 1983); Decision and Order at 4. Thus, we affirm his finding Claimant did not establish total disability at 20 C.F.R. §718.204(b)(2)(ii).
The administrative law judge also considered Dr. Broudy's medical opinion and the miner's treatment records. Decision and Order at 5; see Director's Exhibits 15, 16, 18; [11]Employer's Exhibit 1. Dr. Broudy opined that the miner had a mild, restrictive ventilatory defect, but was able, from a pulmonary standpoint, to perform the duties of his usual coal mine work. Director's Exhibit 16. During his deposition, Dr. Broudy reiterated his opinion and testified that the miner "did not have [a] total respiratory disability due to any cause." Employer's Exhibit 1 at 10. The administrative law judge found Dr. Broudy's opinion was based on the objective medical studies and correctly found that it did not support a finding of total disability. Decision and Order at 5.
The administrative law judge also found the Miner's treatment records do not discuss whether the Miner suffered from a pulmonary disability. He noted while discharge forms from Saint Joseph London hospital dated September 29, 2015, and December 10, 2015, have the word "disabled" written under the "Employer Information" section, the records did not discuss the basis of this notation or the type of disability. Decision and Order at 5; Director's Exhibits 15 at 47, 82. Thus, the administrative law judge determined that the medical opinion evidence and treatment records do not establish total disability at 20 C.F.R. §718.204(b)(2)(iv). Decision and Order at 5.
Although no treating physician explicitly opined the miner was totally disabled from a respiratory standpoint, a physician need not phrase his or her opinion in terms of "total disability" to support a finding of total disability pursuant to 20 C.F.R. §718.204(b)(2)(iv). See Poole v. Freeman United Coal Mining Co., 897 F.2d 888, 894, 13 BLR 2-348, 2-356 (7th Cir. 1990), citing Black Diamond Coal Co. v. Benefits Review Board [Raines], 758 F.2d 1532, 1534 (11th Cir. 1985) (). In determining whether total respiratory or pulmonary disability has been established, an administrative law judge must consider not only medical opinions phrased in terms of total disability, but those that provide a medical assessment of exertional limitations which may support the conclusion that the miner was totally disabled by a respiratory impairment. See Poole, 897 F.2d at 894, 13 BLR at 2-356. Here the Miner's records contain information relevant to his pulmonary condition that was not considered. Based on a pulmonary consultation after a June 15, 2016 blood gas study, the Miner was placed on Bilevel positive airway pressure (BiPAP) therapy.[12] Director's Exhibit 15. A June 19, 2016 x-ray report, taken while the Miner was in the hospital, contained the notation "History: [r]espiratory distress." Id. By the time the Miner was discharged on June 22, 2016, he had improved so that BiPAP therapy was no longer required but "would need home oxygen." Id. The final discharge diagnosis was "[a]cute hypoxemic respiratory failure secondary to atelectasis of the lungs." Id.
In addition, we note the administrative law judge did not consider Dr. Minami's autopsy report or Dr. Caffrey's opinion when evaluating whether the Miner had a totally disabling respiratory impairment. See Decision and Order at 4-5. Dr. Minami observed "features consistent with mild simple coal worker's [sic] pneumoconiosis" and "mild emphysematous changes." Director's Exhibit 14. Dr. Caffrey also stated the Miner had "a mild degree of simple coal workers' pneumoconiosis" but opined it "would not have caused him any discernible pulmonary disability." Employer's Exhibit 2.
We make no judgment as to whether this evidence meets or could meet the requirements for establishing total disability. However, where the administrative law judge fails to consider relevant evidence, and thereby fails to make appropriate factual findings and credibility determinations, the proper course for the Board is to remand the case for such determinations, instead of filling in the gaps in the administrative law judge's decision. Rowe, 710 F.2d at 255. Consequently, we must vacate the administrative law judge's determination that Claimant failed to establish total disability at 20 C.F.R. §718.204(b)(2)(iv), and overall at 20 C.F.R. §718.204(b)(2), and thus also failed to invoke the Section 411(c)(4) presumption that the Miner's death was due to pneumoconiosis.
On remand, the administrative law judge must consider...
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