Williams v. Whitaker Coal Corp.
| Decision Date | 24 March 2022 |
| Docket Number | BRB 21-0080 BLA |
| Parties | ELBERT WILLIAMS Claimant-Petitioner v. WHITAKER COAL CORPORATION 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UNPUBLISHED OPINION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 Benefits on Remand of Jason A. Golden, Administrative Law Judge, United States Department of Labor.
Edmond Collett (Edmond Collett, P.S.C.), Asher, Kentucky, for Claimant.
James M. Kennedy (Baird and Baird, P.S.C.), Pikeville, Kentucky for Employer.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.
Claimant appeals Administrative Law Judge (ALJ) Jason A. Golden's Decision and Order Denying Benefits on Remand (2012-BLA-05762) 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 subsequent claim[1] filed on March 28, 2011, and is before the Benefits Review Board for a second time.
In a January 10, 2017 Decision and Order Awarding Benefits, ALJ Christopher Larsen credited Claimant with at least thirty-two years of underground coal mine employment, but found he did not establish a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). He thus found Claimant could not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act.[2]30 U.S.C. §921(c)(4) (2018). He found, however, Claimant established complicated pneumoconiosis and thus invoked the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. He further found Claimant's complicated pneumoconiosis arose out of his coal mine employment, 20 C.F.R. §718.203(b), and awarded benefits.
In consideration of Employer's appeal, the Board held ALJ Larsen erred in weighing the x-ray and computed tomography (CT) scan evidence on the issue of complicated pneumoconiosis.[3] Williams v. Whitaker Coal Corp., BRB No. 17-0228 BLA, slip op. at 3-11 (Feb. 28, 2018) (unpub.); 20 C.F.R. §718.304(a), (c). Because his findings with respect to the x-rays and CT scans affected the weight he assigned the medical opinions, the Board also vacated his finding that the medical opinions establish complicated pneumoconiosis. Williams, BRB No. 17-0228 BLA, slip op. at 11; 20 C.F.R. §718.304(c). The Board thus remanded the case for ALJ Larsen to reconsider all the relevant evidence on the issue of complicated pneumoconiosis and explain the bases for his findings of fact and credibility determinations in accordance with the Administrative Procedure Act (APA).[4] Williams, BRB No. 17-0228 BLA, slip op. at 11.
On remand, this case was reassigned to ALJ Golden (the ALJ).[5] In his Decision and Order Denying Benefits on Remand that is the subject of this appeal, ALJ Golden did not disturb ALJ Larsen's finding that Claimant failed to establish total disability and thus could not invoke the Section 411(c)(4) presumption or establish entitlement under 20 C.F.R Part 718. 20 C.F.R. §718.204(b)(2). ALJ Golden further found the x-ray, CT scan, and medical opinion evidence insufficient to establish complicated pneumoconiosis; therefore, he found Claimant could not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. He thus denied benefits.
On appeal, Claimant argues the ALJ erred in weighing the evidence on the issue of complicated pneumoconiosis. Employer responds, urging affirmance of the denial. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
The 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.[6] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, 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 claimants in establishing the elements of entitlement if certain conditions are met, but failure to establish any element precludes an award of benefits. See 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 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if he suffers from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. In determining whether Claimant has invoked the irrebuttable presumption, the ALJ must consider all evidence relevant to the presence or absence of complicated pneumoconiosis. See Gray v. SLC Coal Co., 176 F.3d 382, 388-89 (6th Cir. 1999); Melnick v. Consol. Coal Co., 16 BLR 1-31, 1-33-34 (1991) (en banc).
The ALJ found the x-ray readings, biopsy evidence, CT scan readings, treatment records, and medical opinions of record, considered independently, are insufficient to establish complicated pneumoconiosis. 20 C.F.R. §718.304(a)-(c); Decision and Order on Remand at 4-14. He further found all the relevant evidence weighed together is insufficient to establish complicated pneumoconiosis. 20 C.F.R. §718.304; Decision and Order on Remand at 14.
We agree with Claimant that the ALJ erred in weighing the x-ray evidence.[7] 20 C.F.R. §718.304(a); Claimant's Brief at 3-4. The ALJ weighed four readings of three x-rays dated November 10, 2010, June 8, 2011, and June 28, 2012. Decision and Order on Remand at 6-9; Director's Exhibits 13, 14; Claimant's Exhibit 2; Employer's Exhibit 1. He accurately noted Dr. Miller's positive reading of the November 10, 2010 x-ray and Dr. West's negative reading of the June 28, 2012 x-ray are the only interpretations of these films.[8] Decision and Order at 4-9. Based on the unrebutted readings, the ALJ found the November 10, 2010 x-ray is positive for complicated pneumoconiosis, while the June 28, 2012 x-ray is negative for the disease.[9] Id.
The ALJ then weighed the two conflicting interpretations of the June 8, 2011 x-ray.[10] Dr. Westerfield, a B reader, interpreted it as positive for complicated pneumoconiosis, whereas Dr. Wheeler, a dually-qualified Board-certified radiologist and B reader, interpreted it as negative for the disease. Director's Exhibits 13, 14. The ALJ accorded greater weight to Dr. Wheeler's negative reading based on his superior radiological qualifications and thus found the June 8, 2011 x-ray negative for complicated pneumoconiosis. Decision and Order on Remand at 8.
The ALJ erred in resolving the conflicting readings of the June 8, 2011 x-ray. Consistent with the requirement to consider all relevant evidence, the Board previously held that, in evaluating the June 8, 2011 x-ray readings, the ALJ "must consider a physician's entire x-ray report at 20 C.F.R. §718.304(a), including any additional notations by the physician." Williams, BRB No. 17-0228 BLA, slip op. at 6, citing Melnick, 16 BLR at 1-33. The Board reasoned that such comments, including alternative diagnoses, "could call into question" the doctor's opinions on the issue of complicated pneumoconiosis. Id. Thus in resolving the conflicting readings of this x-ray, the Board instructed the ALJ to weigh "the number of x-ray interpretations, along with the readers' qualifications, dates of film, quality of film, and the actual reading." Id. at 8 (emphasis added). Claimant argues the ALJ erred on remand by selectively analyzing the x-ray evidence.[11] Claimant's Br. at 4. We agree. The ALJ followed the Board's instructions with respect to Dr. Westerfield but failed to do so with Dr. Wheeler. He found Dr. Westerfield diagnosed complicated pneumoconiosis on the June 8, 2011 x-ray and identified "granulomas" along with a "right upper lobe large opacity [that] could be neoplasm." Decision and Order on Remand at 7-8, citing Director's Exhibit 13. The ALJ permissibly found Dr. Westerfield's additional comments regarding granulomas and neoplasm do not undermine the credibility of his diagnosis of complicated pneumoconiosis because the doctor "affirmed that he found the x-ray [supports] a diagnosis of complicated pneumoconiosis in his accompanying report." Decision and Order on Remand at 7-8; see Jericol Mining, Inc. v. Napier, 301 F.3d 703, 713-14 (6th Cir. 2002); Wolf Creek Collieries v. Robinson, 872 F.2d 1264 (6th Cir. 1989); Melnick, 16 BLR at 1-33; Director's Exhibit 13. Thus we affirm the ALJ's finding that Dr. Westerfield's June 8, 2011 positive x-ray reading is credible.[12]
The ALJ, however, failed to similarly critically analyze the narrative comments accompanying Dr. Wheeler's June 8 2011 x-ray reading. Dr. Wheeler identified a six-centimeter mass in the right upper lung "compatible with conglomerate granulomatous disease:...
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