Youghiogheny and Ohio Coal Co. v. Warren

• Decision Date: 30 September 1987
• Docket Number: No. 86-3778.,86-3778.
• Citation: 841 F.2d 134
• Parties: The YOUGHIOGHENY AND OHIO COAL COMPANY, Petitioner, v. Martin O. WARREN; Director, Office of Workers' Compensation Programs, United States Department of Labor; and the Benefits Review Board, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

841 F.2d 134

The YOUGHIOGHENY AND OHIO COAL COMPANY, Petitioner, v. Martin O. WARREN; Director, Office of Workers' Compensation Programs, United States Department of Labor; and the Benefits Review Board, United States Department of Labor, Respondents.

No. 86-3778.

United States Court of Appeals, Sixth Circuit.

Argued July 31, 1987.

Decided September 30, 1987.

John G. Paleudis (argued), Hanlon, Duff & Paleudis, Co., St. Clairsville, Ohio, for petitioner.

Jennifer L. Sargus (argued), Wheeling, W.Va., for Warren.

Office of the Sol., U.S. Dept. of Labor, Director, Washington, D.C., Thomas L. Holzman (argued), Brian E. Peters, for Director.

Before KENNEDY and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

PER CURIAM.

On May 4, 1979, Martin O. Warren filed a claim for benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. On May 23, 1980, the Acting Deputy Commissioner of the Office of Workers' Compensation Programs of the United States Department of Labor made an initial determination that the claimant was eligible for such benefits as of January 1, 1980. The claimant's employer, the Youghiogheny and Ohio Coal Company, contested this finding, but the claimant began receiving benefits as of the time of the initial determination. An administrative law judge decided that claimant was entitled to benefits, and that decision was affirmed by the Benefits Review Board. Prejudgment interest was awarded for a period commencing January 1, 1980.

The employer has appealed the board's decision on the merits, contending, among other things, that the decision was based on regulations that the agency was no longer permitted to use. The employer also challenged the award of prejudgment interest. We shall affirm on all issues except the last.

The claimant had twenty-six years of qualifying coal mine employment. All but one of his x-rays indicated the presence of pneumoconiosis. Applying 20 C.F.R. § 727.203(a)(1), the ALJ held that the claimant was entitled to the benefit of an "interim presumption" of total disability due to pneumoconiosis.

The ALJ also found that the interim presumption of disability had not been rebutted under 20 C.F.R. § 727.203(b). The employer claimed to have rebutted the presumption by establishing that the claimant was able to do his usual coal mine work or comparable gainful work (see § 727.203(b)(2)), but the ALJ concluded otherwise:

"Dr. G.O. Kress examined the claimant on October 8, 1979 and January 17, 1983. Dr. Kress made very thorough examinations of the Claimant, and in two exhaustive depositions, stated that, in his opinion, the Claimant was not totally disabled. Dr. Kress believed that the Claimant was capable of doing his usual coal mine work, although he was not sure what that coal mine work was. It is apparent that there is some question as to the extent of the claimant's disability. Drs. Tipton and Carniero sic consider the claimant to be totally disabled, and Dr. Kress does not consider the Claimant totally disabled, but perhaps `10 to 15 percent.' In light of the beneficent purposes of the Act, and resolving reasonable doubts in favor of the Claimant, I find that the evidence does not rebut the presumption under this subsection."

The employer also claimed that the presumption had been rebutted under (b)(3) ("the evidence establishes that the total disability ... of the miner did not arise in whole or in part out of coal mine employment"), but the ALJ rejected that contention also:

"The claimant worked for 26 years in the coal mines and had no other industrial dust exposure. Drs. Tipton and Carniero sic believed that the Claimant's condition was related to coal mine employment, but Dr. Kress stated that the condition might be related to obesity and the Claimant's former cigarette smoking. I find that the evidence is not sufficient to rebut the presumption under this subsection."

I

The employer asserts on appeal that the ALJ should not have applied the interim regulations contained in 20 C.F.R. § 727 because the claim was filed in 1979, a date after that by which 30 U.S.C. § 931(c) required the Department of Labor to have issued new final regulations replacing the interim regulations.

30 U.S.C. § 931(c) says that "final regulations required for implementation of any amendments to this part" shall be promulgated and published within six months after the month in which such statutory amendments are enacted. The Black Lung Benefits Act is divided into three parts; § 931(c) is found in Part C. The "new" regulations that the employer claims ought to have been promulgated by the time the claim was filed in 1979 were required by the 1978 amendments to 30 U.S.C. §§ 902(f)(1) and (f)(2), sections that are found not in Part C but in Part A. Those sections require that the criteria for determining total disability with respect to claims filed after June 30, 1973 (Part C claims) be no more restrictive than those applicable to claims filed on June 30, 1973. (The regulations used by the ALJ here were, in fact those applicable to claims filed on June 30, 1973.) The employer would have us read 30 U.S.C. § 931(c) as requiring promulgation, within six months, of "regulations required for implementation of any amendments to statutory sections that affect claims governed by this part," but that is not what the law says; it deals only with regulations required for implementation of "amendments to this part."

II

In asking us to reverse the finding that the employer had failed to establish, under 20 C.F.R. § 727.203(b)(2), that the claimant was "able to do his usual coal mine work or comparable and gainful work," the employer argues

"nowhere did the ALJ state that he found the medical opinions `equally probative.' Rather, he indicated for (b)(2) rebuttal that he was `resolving reasonable doubts in favor of the claimant.' Hence, at best the ALJ simply indicated that since two out of three doctors' reports raised some reasonable doubts, he would resolve those reasonable doubts in favor of the claimant. This is contrary to law as in rebuttal an ALJ must resolve and explain conflicts in the evidence leading to a finding based on the preponderance of the evidence." (Footnote omitted.)

In its brief to the Benefits Review Board, however, the employer took a contrary stance, arguing that "in essence, the Administrative Law Judge accepted the conclusions of Dr. Tipton and Dr. Carneiro as being of equal probative value as Dr. Kress' and resolved doubts in favor of the claimant." Although the ALJ did not explicitly state how he resolved doubts and conflicts in the evidence, there is substantial evidence in the record to support the ALJ's (b)(2) determination. (Substantial evidence has been defined as more than a mere scintilla. It means that amount of evidence that a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).)

In making the finding under (b)(2), the ALJ had to decide whether the claimant could perform his last job as a fire boss in the coal mines. The question was not whether the claimant was totally disabled in the way he would have had to be to qualify for benefits under the Social Security Act, but whether he was able to do his usual coal mine work. Ratliff v. Benefits Review Board, 816 F.2d 1121, 1123 (6th Cir.1987). The ALJ thus had to determine the extent of the claimant's disability, and whether that disability prevented the claimant from performing his usual coal mine job.

All the doctors indicated that the claimant was disabled to some degree. Dr. Tipton and Dr. Carneiro believed that the claimant was totally disabled. Dr. Kress, the employer's doctor, thought that the extent of the claimant's disability was only ten to fifteen percent. The ALJ appears to have believed that the conclusion reached by Drs. Tipton and Carneiro was no less worthy of acceptance than that of Dr. Kress. There is substantial support for that conclusion. The record shows that Dr. Tipton relied on additional evidence that Dr. Kress did not consider. Dr. Tipton's report says, for example, that the claimant

"was expectorating in the range of 1/3 cup of mucous per day during the last few years in the mines. There was a considerable amount of black coal dust content. At times the mucous had a yellowish color ... he continues to expectorate a yellowish dark looking mucous which amounts from about two teaspoonsful sic to 1/4 of a cup."

Dr. Tipton's readings of the X-rays, blood gas studies and ventilation studies did not contradict those of Dr. Kress; rather he placed less importance upon them and relied on other evidence. The legislative history indicates that Congress knew there would be instances in which not all the objective medical evidence would show the presence of pneumoconiosis, but pneumoconiosis would nonetheless be found. H.R.Rep. No. 95-151, 95th Cong., 2nd Sess. 6, reprinted in 1978 U.S.Code Cong. & Admin.News, 237, 242.

The second part of the (b)(2) determination requires that the claimant's disability be assessed in terms of its effect on the claimant's ability to perform his last coal mine job or...