Washington v. Jim Walters Res.
| Decision Date | 27 September 2022 |
| Docket Number | 21-0115 BLA |
| Parties | COLLIN WASHINGTON Claimant-Petitioner v. JIM WALTERS RESOURCES, INCORPORATED - WALTER ENERGY Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Denying Request for Modification of Angela F. Donaldson, Administrative Law Judge, United States Department of Labor.
John R. Jacobs and Paisley Newsome (Maples Tucker & Jacobs LLC), Birmingham, Alabama, for Claimant.
John C. Webb V and Aaron D. Ashcraft (Lloyd, Gray, Whitehead & Monroe, P.C.), Birmingham, Alabama, for Employer.
Before: BUZZARD, GRESH, and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals Administrative Law Judge (ALJ) Angela F Donaldson's Decision and Order Denying Request for Modification (2020-BLA-05277) rendered on a request for modification of a denial of a subsequent claim filed on February 5, 2016,[1] pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).
In a February 22, 2018 Decision and Order Denying Benefits, ALJ Larry W. Price denied benefits because Claimant failed to establish a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Claimant timely requested modification of that denial. 20 C.F.R. §725.310.
In the Decision and Order that is the subject of this appeal, ALJ Donaldson (the ALJ) accepted the parties' stipulation that Claimant has at least thirty-five years and eleven months of underground coal mine employment. However, she found Claimant failed to establish total disability, 20 C.F.R. §718.204(b)(2), and therefore failed to establish a mistake of fact in the prior denial or a change in conditions since the prior denial. 20 C.F.R. §725.310. She thus found Claimant did not establish entitlement under 20 C.F.R. Part 718, and denied benefits.
On appeal, Claimant argues the ALJ erred in finding the evidence did not establish a totally disabling pulmonary impairment. Employer responds in support of the denial of benefits. The Director, Office of Workers' Compensation Programs, did not file a response.[2]
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.[3] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).
To be entitled to benefits under the Act, Claimant must establish disease (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Statutory presumptions may assist a claimant in establishing these elements when certain conditions are met, but failure to establish any element precludes an award of benefits. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).
Section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §922, which is incorporated into the Black Lung Benefits Act by 30 U.S.C. §932(a), and implemented by 20 C.F.R. §725.310, authorizes an ALJ to grant modification of an award or denial of benefits based on a change in conditions or a mistake in a determination of fact. The ALJ has broad discretion to correct mistakes of fact, including the ultimate fact of entitlement. See USX Corp. v. Director, OWCP [Bridges], 978 F.2d 656, 658 (11th Cir. 1992); see also Jessee v. Director, OWCP, 5 F.3d 723 (4th Cir. 1993); Old Ben Coal Co. v. Director, OWCP [Hilliard], 292 F.3d 533 (7th Cir. 2002). The ALJ is authorized "to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971).
Section 411(c)(4) of the Act provides a rebuttable presumption that a miner is totally disabled due to pneumoconiosis if he has at least fifteen years of underground coal mine employment or surface coal mine employment in substantially similar dust conditions and a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2018); see 20 C.F.R. §718.305. A miner is totally disabled if he has a pulmonary or respiratory impairment which, standing alone, prevents him from performing his usual coal mine work[4] and comparable gainful work. See 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on pulmonary function studies, 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 ALJ must weigh all relevant supporting evidence against all relevant contrary evidence. See Defore v. Ala. By-Products Corp., 12 BLR 1-27, 1-28-29 (1988); 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). Qualifying evidence in any of the four categories establishes total disability when there is no "contrary probative evidence." 20 C.F.R. §718.204(b)(2). Claimant contends the ALJ erred in finding the pulmonary function studies, medical opinion evidence, and evidence as a whole failed to establish total disability.[5] Claimant's Brief at 4-7.
The ALJ considered two previously submitted pulmonary function studies dated March 31, 2016, and July 5, 2017,[6] and two new pulmonary function studies dated February 18, 2019, and July 25, 2019.[7] Decision and Order at 8-10; Director's Exhibit 13; Claimant's Exhibits 5-6; Employer's Exhibit 2. She found the March 31, 2016 study d id not produce qualifying values.[8] Decision and Order at 9. The ALJ then independently assessed the July 15, 2017, February 18, 2019 and July 25, 2019 pulmonary function studies based on the quality standards in Appendix B of 20 C.F.R. Part 718. Decision and Order at 9-10, referencing 20 C.F.R. Part 718, App. B (2)(ii)(G) (pulmonary function test effort is unacceptable if the variation between the two largest FEV1 measurements exceeds 100 milliliters or five percent, whichever is greater). She found these three studies, with the exception of the July 15, 2017 non-qualifying post-bronchodilator study, to be "unacceptable" because the difference between the two largest FEV1 measurements exceeded 100 milliliters. Decision and Order at 9-10; Claimant's Exhibits 5-6; Employer's Exhibit 2. Further, she noted the July 25, 2019 study also was non-qualifying. Decision and Order at 10; Employer's Exhibit 2.
Claimant contends the ALJ erred in finding the July 15, 2017, February 18, 2019 and July 25, 2019 pulmonary function studies invalid based on the variability in the tracings. Specifically, Claimant argues the ALJ substituted her opinion for those of the medical experts by interpreting the studies and did not consider the documentation and statements from the technicians who performed the studies. Claimant's Brief at 4-6. Claimant further argues that even if the pulmonary function studies did not conform to the quality standards, that is a factor in determining the weight of the evidence but is not sufficient for excluding that evidence from consideration altogether. Id. at 5. Claimant's arguments are persuasive.
When weighing pulmonary function studies, the ALJ must determine whether they are in substantial compliance with the quality standards. 20 C.F.R. §§718.101(b), 718.103(c); 20 C.F.R. Part 718, Appendix B; see Keener v. Peerless Eagle Coal Co., 23 BLR 1-229, 1-237 (2007) (en banc). If a study does not precisely conform to the quality standards, but is in substantial compliance, it "constitute[s] evidence of the fact for which it is proffered." 20 C.F.R. §718.101(b). The ALJ must then, in her role as fact-finder, determine the probative weight to assign the study. See Orek v. Director, OWCP, 10 BLR 1-51, 1-54-55 (1987). However, interpretation of the factors provided in Appendix B requires medical expertise; the ALJ may not independently apply the Appendix B quality standard requirements to interpret the validity of pulmonary function studies, as interpretation of medical data is a matter for medical experts. Schetroma v. Director, OWCP, 18 BLR 1-19, 1-22-24 (1993).
As Claimant argues, the ALJ impermissibly determined the July 15, 2017, February 18, 2019 and July 25, 2019 pulmonary function studies are invalid without evidence from any medical expert opining the studies were invalid or unreliable. Schetroma, 18 BLR at 1-23-1-24. Neither party points to an expert opinion indicating any of the pulmonary function studies are invalid or otherwise unreliable. However, as Claimant indicates, the technician[9] who administered the July 5, 2017 study commented Claimant's Exhibit 5 at 6 (emphasis in original). The same comments were made regarding the February 18, 2019 testing. Claimant's Exhibit 6. Similarly, the technician who performed the July 25, 2019 study noted good patient effort. Employer's Exhibit 2. Moreover, the Appendix B quality standard on which the ALJ relied specifically states that tests with "excessive variability" between the curves "may still be...
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