BRB No. 02-0773 BLA
JEFFREY ASHER )
)
Claimant-Petitioner )
)
v. )
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BLUE DIAMOND COAL COMPANY, )DATE ISSUED:06/13/2003
INCORPORATED )
)
and )
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LIBERTY MUTUAL INSURANCE GROUP )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Denial of Benefits of Daniel J.
Roketenetz, Administrative Law Judge, United States Department of
Labor.
Phillip Lewis, Hyden, Kentucky, for claimant.
Francesca L. Maggard (Lewis and Lewis Law Offices), Hazard, Kentucky,
for employer/carrier.
Before: McGRANERY, HALL and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Denial of Benefits (01-BLA-0852) of Administrative Law Judge Daniel J. Roketenetz (the
administrative law judge) on a duplicate claim[1] filed pursuant to the provisions of Title IV of the Federal
Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901
et seq. (the Act).[2] The
administrative law judge found that claimant established thirty years of
coal mine employment. Noting that the prior claim was denied based on
claimant's failure to establish the existence of pneumoconiosis, the
administrative law judge found that claimant failed to establish a
material change in conditions under 20 C.F.R. §725.309 (2000).[3] Specifically, the administrative law
judge found that the newly submitted evidence failed to establish the
existence of pneumoconiosis under 20 C.F.R. §718.202. Accordingly,
benefits were denied. On appeal, claimant relies on the opinion of his
treating physician, Dr. Cornett, and the opinion of Dr. Younes in arguing
that the evidence establishes that he is totally disabled due to
pneumoconiosis. Employer/carrier (employer) responds, and urges the
Board to affirm the decision below as it is supported by substantial
evidence. The Director, Office of Workers' Compensation Programs, has
not filed a brief in the appeal.
The Board's scope of review is defined by statute. If the
administrative law judge's findings of fact and conclusions of law are
supported by substantial evidence, are rational, and are consistent with
applicable law, they are binding upon this Board and may not be
disturbed. 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).
The regulation at 20 C.F.R. §725.309 (2000) provides that a
duplicate claim is subject to automatic denial on the basis of the prior
denial, unless there is a determination of a material change in
conditions since the denial of the prior claim. 20 C.F.R. §725.309
(2000). The United States Court of Appeals for the Sixth Circuit, within
whose jurisdiction this claim arises, Shupe v. Director, OWCP, 12
BLR 1-200 (1989)(en banc), has held that in assessing whether a
material change in conditions has been established, an administrative law
judge must consider all of the new evidence, favorable and unfavorable,
and determine whether the miner has proven at least one of the elements
of entitlement previously adjudicated against him. Sharondale Corp. v.
Ross, 42 F.3d 993, 19 BLR 2-10 (6th Cir. 1994). In the instant case,
claimant's original claim was denied because the evidence failed to
establish the existence of pneumoconiosis under 20 C.F.R. §718.202
(2000). Director's Exhibit 36. Consequently, the newly submitted
evidence must establish the existence of pneumoconiosis in order to
establish a material change in conditions under 20 C.F.R. §725.309
(2000).
Claimant contends that the administrative law judge erred in finding that the newly submitted medical
opinion evidence is insufficient to establish the existence of pneumoconiosis under 20 C.F.R.
§718.202(a)(4).[4] Specifically, claimant argues that
the administrative law judge erred by not according greater weight to the
medical opinion of his treating physician, Dr. Cornett. Dr. Cornett
opined that claimant is totally and permanently disabled due to chronic
obstructive pulmonary disease that is based, in substantial part, on
claimant's coal dust exposure. Director's Exhibit 27. Although the
administrative law judge recognized Dr. Cornett's status as claimant's
treating physician, he found that Dr. Cornett's opinion is entitled to
little weight because her report is neither well reasoned nor well
documented. Specifically, the administrative law judge noted that the
first of Dr. Cornett's two reports is "almost completely illegible" while
the second is a two-paragraph letter in which Dr. Cornett "fails to state
the specific results of any test or x-ray she has conducted or reviewed
or the findings of any clinical examination she or any other physician
has conducted." Decision and Order at 13; Director's Exhibit 28. The
administrative law judge also found that Dr. Cornett failed to
demonstrate any understanding of the exertional requirements of
claimant's usual coal mine employment or to discuss claimant's "lengthy
smoking history or [to] address what effect that habit has had on his
respiratory condition." Decision and Order at 13.
Claimant asserts that Dr. Cornett's medical opinion "is confirmed by
numerous other medical reports and x-ray interpretations in the record"
and "was based on treatment over a period of time." Claimant's Brief at
3. Claimant thus argues that Dr. Cornett, due to her prolonged contact
with claimant, is in a better position to assess claimant's condition
than Dr. Fino who never examined claimant and provided a one-time
consulting report.
Claimant's contentions lack merit. Contrary to claimant's contention, the administrative law judge did not err when
he accorded less weight to Dr. Cornett's medical opinion. The administrative law judge properly provided several reasons
in support of his finding that Dr. Cornett's opinion is neither well reasoned nor well documented. Wolf Creek Collieries
v. Director, OWCP [Stephens], 298 F.3d 511, BLR (6th Cir. 2002); Peabody Coal Co. v. Groves, 277
F.3d 829, 22 BLR 2-320 (6th Cir. 2002), cert. denied, 123 S.Ct. 865 (U.S. Jan. 13, 2003). Specifically, the
administrative law judge properly found that Dr. Cornett failed to cite the results of any objective test or physical
examination in support of her opinion, Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987), and failed to discuss
claimant's lengthy smoking history or to address what effect claimant's smoking habit had on his respiratory condition,
Maypray v. Island Creek Coal Co., 7 BLR 1-683 (1985). The administrative law judge, therefore, properly
discredited Dr. Cornett's opinion.
Further, claimant's remaining statements, regarding the administrative law judge's consideration of whether the
newly submitted evidence is sufficient to establish a material change in conditions, amount to no more than a request that
the Board reweigh the evidence. Such a request is beyond the Board's scope of review. See Cox v. Benefits Review
Board, 791 F.2d 445, 9 BLR 2-46 (6th Cir. 1986); Sarf v. Director, OWCP, 10 BLR 1-119 (1987).
Because substantial evidence supports the administrative law judge's finding that the newly submitted medical
opinion evidence is insufficient to establish the existence of pneumoconiosis under 20 C.F.R. §718.202(a)(4), we
affirm that finding. We also affirm the administrative law judge's finding that the newly submitted evidence is insufficient
to establish a material change in conditions at 20 C.F.R. §725.309 (2000) pursuant to Ross, and the
administrative law judge's denial of benefits.
Accordingly, the administrative law judge's Decision and Order Denial of Benefits is affirmed.
SO ORDERED.
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) Claimant filed the instant claim on June 23, 2000. Director's Exhibit 1. Claimant's
original claim, filed on August 26, 1991, was denied by Administrative Law Judge Frank D. Marden by Decision
and Order dated May 25, 1994 based on claimant's failure to establish the existence of pneumoconiosis under 20
C.F.R. §718.202. Director's Exhibit 36. The Board affirmed the denial of benefits in Asher v. Blue
Diamond Coal Co., BRB No. 94-2571 BLA (Mar. 20, 1995)(unpublished). Id.
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2) The Department of Labor has amended the regulations implementing the Federal Coal
Mine Health and Safety Act of 1969, as amended. These regulations became effective on January 19, 2001, and
are found at 20 C.F.R. Parts 718, 722, 725, and 726 (2002). All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
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3) The amendments to the regulation at 20 C.F.R. §725.309 (2000) do not apply to
claims, such as the instant claim, which were pending on January 19, 2001. See 20 C.F.R. §725.2;
65 Fed. Reg. 80,057.
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4) We affirm, as unchallenged on appeal, the administrative law judge's findings that the
newly submitted evidence fails to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1) - (3). Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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NOTE: This is an UNPUBLISHED BLA Document.
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