PART III
ADMINISTRATIVE PROCESSING OF CLAIMS
1. FILING OF CLAIMS/APPEALS, SERVICE, SUFFICIENCY OF PLEADINGS
Actual Knowledge of Service
If a party's attorney has actual knowledge of a claim being filed, the attorney may not argue that he did not receive proper service. Any other rule would place form above substance. Pothering v. Parkson Coal Co., 861, 1321, 12 BLR 2- 60 (3d Cir. 1988).
Sufficiency of Pleadings (Cross-appeals)
A party challenging an ALJ's decision must do more than recite evidence favorable to its case, the party must demonstrate with some degree of specificity the manner in which substantial evidence does not exist or why the decision is contrary to law. Cox v. Benefits Review Board, 791 F.2d 445, 9 BLR 2-46 (6th Cir. 1986).
A party may not attack a decision with a view toward enlarging his or her own rights or lessening the rights of an adversary absent a cross-appeal. However, a cross-appeal is unnecessary when a prevailing party merely advances an argument that would provide another avenue by which the fact finder could reach the same favorable judgment. Hansen v. Director, OWCP, No. 91-9559 (10th Cir. Jan. 20, 1993).
An appellee need not cross-appeal in order to make an argument that supports the decision reached by the alj but attacks the reasoning used by the alj in reaching his decision. Malcomb v. Island Creek Coal Co., 15 F.3d 364, 18 BLR 2-113 (4th Cir. 1994).
Timely Filing of Appeals
The doctrine of equitable tolling does not apply to suspend the running of the 60-day filing period. Brown v. Director, OWCP, 864 F.2d 120, 12 BLR 2-147 (11th Cir. 1989); see also Shendock v. Director, OWCP, 893 F.2d 9458 (3d Cir. 1990); Bolling v. Director, OWCP, 823 F.2d 165 (6th Cir. 1987); Butcher v. Big Mountain Coal, Inc., 802 F.2d 1056 (4th Cir. 1986); Clay v. Mountain Coal, Inc., 748 F.2d 501 (8th Cir. 1984); Pittston Stevedoring v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff'd on other grounds sub nom., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). It is consistent with decisions rejecting arguments that equitable tolling principles should be applied to the 30-day filing period under 33 U.S.C. §921(a) (1986). See Wellman v. Director, OWCP, 706 F.2d 191 (6th Cir. 1983); Insurance Company of North America v. Gee, 702 F.2d 411 (2d Cir. 1983). Note, however, that Section 725.478 requires that proper service on counsel is a prerequisite to the running of the 30 day appeal period. Patton v. Director, OWCP, 763 F.2d 553, 7 BLR 2-216 (3d Cir. 1985); Youghiogheny & Ohio Coal Co. v. Benefits Review Board, 745 F.2d 380 (6th Cir. 1984); Jewell Smokeless Coal Co. v. Looney, 892 F.2d 366, 13 BLR 2-177 (4th Cir. 1989); Old Ben Coal Co. v. Jones, 897 F.2d 900, 13 BLR 2-360 (7th Cir. 1990). Note also that the filing regulations implementing Section 921 of the LHCA differ in Longshore cases, 20 C.F.R. §702.349. See Jeffboat Inc., v. Mann, 875 F.2d 660 (7th Cir. 1989); Jones, supra.
The Fourth Circuit reversed the Board and held that the ALJ's failure to serve claimant's attorney by registered or certified mail does not undermine service where the record establishes actual notice was accomplished. In stressing that service by registered or certified mail is mandatory, the Court recognized that this requirement is met where the record establishes actual notice. Thus, if registered or certified mail is not used, the 30-day appeal time period begins with the date when both actual notice is accomplished and the ALJ's decision is filed with the district director. Service on claimant's attorney is tantamount to service on claimant and thus, since claimant filed his notice of appeal more than 30 days after actual notice to his attorney, his filing was untimely and the Board did not have jurisdiction to review the merits of the appeal. Dominion Coal Corp. v. Honaker, 33 F.3d 401, 18 BLR 2-342 (4th Cir. 1994).
The Tenth Circuit held that the Board had jurisdiction to consider employer's appeal because employer had filed its notice of appeal with the Board within 30 days of receiving the ALJ's order by certified mail. 33 U.S.C. §921. The Court held that the mere filing of the order with the District Director is insufficient to toll the 30-day appeal period. Rather, the statutory language plainly requires the service of an order by certified mail for the 30-day appeal period to begin. The Court also refused to adopt the Director's position that, even if notice is not received by certified mail, the 30-day period commences once a party receives actual notice of the ALJ's decision. Big Horn Coal Co. v. Director, OWCP, [Madia], 55 F.3d 545, 19 BLR 2-209 (10th Cir. 1995).
Interlocutory appeals
The Fourth Circuit adopts a case-by-case approach in addressing whether, when two cases are consolidated before the Board, judgement in one is appealable, following similar holdings in the Third, Fifth, and Seventh Circuits. Here, the miner's claim, remanded to the ALJ by the Board, and the widow's claim, finally denied by the Board, are both dismissed as interlocutory. Eggers v. Clinchfield Coal Co., 11 F.3d 35, 18 BLR 2-67 (4th Cir. 1993).
Validity of Section 802.206(e)
Section 802.205(A)(e)(now Section 802.206(e), dealing with filing of appeal time when the case involves a motion for reconsideration) is a valid and enforceable regulation. Jones v. Illinois Central Gulf R.R., 846 F.2d 1099, 11 BLR 2-150 (7th Cir. 1988).
2. THE DISTRICT DIRECTOR'S ROLE AND REPRESENTATIVE
Deference to the Director in Interpreting Regulations
Several Circuit Courts have addressed the issues regarding whether the Director's interpretation is entitled to special deference. In Director, OWCP v. General Dynamics Corp. and Krotsis, 900 F.2d 506, 23 BRBS 40 (CRT)(2d Cir. 1989), the court stated:
Id. at 46-48.
Noting that neither the BLBA nor the DOL regulations expressly set forth a method for determining how attorney's fees are to be apportioned over a state benefits award in calculating the offset of Federal black lung benefits pursuant to 20 C.F.R. §725.535(d), the court determined that such a decision is a pure policy decision to be made by the Director, not by the Board, as only the former is authorized to make Black Lung policy decisions. The court held that the Board had, therefore, exceeded its statutory authority when interposing its own method of excluding legal fees from the offset calculation under Section 725.535(d). Moreover, the court held that the Director's interpretation of Section 725.535(d) was entitled to deference as this interpretation was not clearly erroneous or inconsistent with the regulation but, to the contrary, more reasonable and better suited to meet the remedial purposes of the BLBA. Director, OWCP v. Barnes and Tucker Co., 969 F.2d 1524, 16 BLR 2-99 (3d Cir. 1992).
Relationship Between District Director and the Director
The Director, in his role as principal, has the authority to require the District Director, his agent, to properly perform his obligations under the regulations. In this case, the failure of the District Director to forward the hearing record to the Benefits Review Board justified the dismissal of the Director's appeal. The Court distinguishes Director, OWCP v. Brodka, 643 F.2d 159, 3 BLR 2-1 (3d Cir. 1981). Director, OWCP v. Hileman, 897 F.2d 1277, 13 BLR 2- 382 (4th Cir. 1980).
Validity of DOL Denial Letter
The court held that the Department of Labor form denial letter (CM-100) sent to claimants seeking black lung benefits met the minimum due process standards of notice and opportunity for hearing, assuming that due process considerations applied. Jordan v. Benefits Review Board, 876 F.2d 1455, 12 BLR 2-371 (11th Cir. 1989); see also Jordan v. Director, OWCP, 892 F.2d 482 (6th Cir. 1989).
3. CLAIMANT'S RIGHT TO COMPLETE PULMONARY EVALUATION
Under 20 C.F.R. §718.101, the Director must provide the claimant with the opportunity to have a "complete pulmonary evaluation including, but not limited to, a test roentgenogram (x-ray), physical examination, pulmonary function tests and a blood-gas study." If the tests are not performed in compliance with Part 718, the Director must allow the claimant the opportunity to undergo further testing. 20 C.F.R. §725.406(b). This duty is not discharged if the record contains no opinion as to the miner's respiratory disability, or only an opinion that is not credible. See Newman v. Director, OWCP, 745 F.2d 1162, 7 BLR 2-25 (8th Cir. 1984); Cline v. Director, OWCP, 917 F.2d 9, 14 BLR 2-102 (8th Cir. 1990); Hall v. Director, OWCP, 14 BLR 1-51 (1990); Pettry v. Director, OWCP, 14 BLR 1-98 (1990).
The Director's attack of the report of one of its own physicians did not undermine its discharge of its duty to provide a complete pulmonary exam where the Director continued to regard the report of another physician, whom it had requested, as credible. Oliver v. Director, OWCP, No. 92-3787 (8th Cir., May 24, 1993).
The administrative law judge did not abuse his discretion in ordering a second exam where 3 years had elapsed since employer's earlier exam of the miner. Skukan v. Consolidation Coal Co, No. 92-3281 (6th Cir., May 18, 1993).
Right to a Hearing
Under the Act and regulations, the parties to a case have a right to a de novo hearing before an ALJ on all questions in respect to a claim. Pyro Mining Co. v. Slaton, 879 F.2d 187, 12 BLR 2-328 (6th Cir. 1989); see also Lukman v. Director, OWCP, 896 F.2d 1248, 13 BLR 2-332 (10th Cir. 1990); Pruitt v. USX Corp., 14 BLR 1-129 (1990).
Under 5 U.S.C. §556(d) all parties to a hearing must have the opportunity to fully present their case by way of argument, proof, and cross-examination. This principle may not be circumvented by a restrictive application of Section 725.456(b)(the twenty day rule), so as to preclude rebuttal evidence. The ALJ, however, may exclude evidence which is irrelevant, immaterial or unduly repetitious. North American Coal Co. v. Miller, 870 F.2d 948, 12 BLR 2-222 (3d Cir. 1989); see 5 U.S.C. §556(d); see also Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042, 14 BLR 2-1 (6th Cir. 1990); Owens v. Jewell Smokeless Coal Corp., 14 BLR 1-47 (1990).
Waiver
The Fourth Circuit rejects employer's argument that claimant waived his causation argument before the Court as he only discussed the disability holding of the Board. The Board, in affirming the ALJ's finding of no respiratory disability under Section 718.204(c) did not reach the Section 718.204(b) arguments below. The Court held, citing Thorn, that "the policy reasons behind administrative waiver - preserving the requirement of exhaustion of remedies and respect for the agency's expertise - are simply not present." As claimant had properly raised and briefed the causation issue before the Board, the Court held that he had not waived this argument, therefore preserving the appeal on the merits. Toler v. Eastern Asso. Coal Co., 43 F.3d 109, 19 BLR 2-70 (4th Cir. 1995).
The Seventh Circuit reversed the order of the Board awarding benefits and instructing the Board to dismiss the claim. The court held that claimant waived any argument based on intervening law since the general premise at issue was clearly established prior to the issuance of the intervening case cited by claimant and claimant had failed to raise this issue before the Board. Nevertheless, while claimant had waived its right to request a remand based upon intervening law, employer had also failed to oppose a remand and thus had waived its right to raise the issue of claimant's waiver. However, due to the failure of claimant's supplemental brief to relate the general proposition to the facts of the present case, the court concluded that reversal rather than remand was appropriate. Freeman United Coal Mining Co. v. Director, OWCP [Shelton], 957 F.2d 302, 16 BLR 2-40 (7th Cir. 1992).
The Seventh Circuit held that employer did not waive its arguments under Section 727.203 (a)(1), (b)(2) as it sought to rely on later issued precedence in Mullins. Here the Court relied on its prior precedence in Freeman United Coal Mining Co. v. Director, OWCP, 957 F.2d 302, 304 (7th Cir. 1992), quoting this decision and noting that waiver "is a flexible doctrine, too, so that when all the claimant asks for is a remand to permit the agency to consider an intervening decision--a decision the agency couldn't have considered earlier- -the doctrine does not stand in the way." Old Ben Coal Co. v. Director, OWCP [Mitchell], F.3d , No. 94-2110 (7th Cir. Aug. 16, 1995).
The Tenth Circuit agreed with the Board that employer had waived its right to contest both the responsible operator issue and the liability of the Trust Fund where employer stated at the 1984 hearing before the ALJ that it was not contesting its position as the responsible operator. The Court held that once employer withdrew its argument that it was not the responsible operator, it waived its right to contest liability once claimant was shown to be eligible for benefits. Big Horn Coal Co. v. Director, OWCP, [Madia], 55 F.3d 545, 19 BLR 2-209 (10th Cir. 1995).
The Seventh Circuit held that the long delay in processing the claim and a lost hearing transcript did not constitute a violation of claimant's due process rights in this case. Grigg v. Director, OWCP, 28 F.3d 416, 18 BLR 2-299 (4th Cir. 1994).
The Third Circuit rejected employer's assertion that due process required that it be afforded an opportunity to develop evidence to address new standards of proof regarding rebuttal under Section 727.203(b)(2), (3) where the Court affirmed the Board's reversal of a denial of benefits. The Court held that employer had an opportunity to develop the evidence under the Kertesz standard because that case had been decided before the initial hearing in the present case. BethEnergy Mines, Inc. v. Director, OWCP [Vrobel], 39 F.3d 458, 19 BLR 2-95 (3d Cir. 1994).
a. Role of Government Attorney
In discussing the role of a government attorney in disability cases, the court ruled that "In the performance of ... his duty ... he is not a counsel giving advice to the government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and legal obligations." Furthermore, the court said:
Zimmerman v. Schweiker, 575 F.Supp. 1436, 1440 (E.D. N.Y. 1983).
Absence of Counsel
Mere absence of counsel in black lung proceeding before ALJ is not alone ground for a remand. A remand for reconsideration on decision on black lung claim may be warranted where there is a clear showing of prejudice or unfairness which may be attributed to lack of counsel at administrative hearing. However, the change of counsel may place greater responsibility on ALJ to develop the facts. Hunt v. Califano, 445 F.Supp. 624 (D. Md 1977).
Acts of Counsel Binding on Party
A party generally is bound by the acts of his attorney and is considered to have "notice of all facts, notice of which can be charged upon the attorney." Link v. Wabash, 370 U.S. 630, 634 (1962); see Consolidation Coal Co. v. Gooding, 703 F.2d 230, 233 (6th Cir. 1983); Howell v. Director, OWCP, 7 BLR 1-259 (1984).
The Fourth Circuit affirmed the Board's decision affirming the ALJ's denial of benefits, holding that the ALJ properly refused to admit a report by the West Virginia Occupational Pneumoconiosis Board into evidence pursuant to 20 C.F.R. §725.456. The Court held that claimant possessed the report at the time his claim was pending before the district director but withheld it until his claim was forwarded to the OALJ and that claimant failed to introduce evidence of extraordinary circumstances to justify his failure to timely submit the report. Further, as admission of the report was not requested by the district director or employer, and claimant did not submit the report to the parties at least 20 days before the hearing, the 20 day requirement was not waived and claimant did not show good cause to justify its admission. The Court further found that the ALJ's conclusion that claimant is not totally disabled due to pneumoconiosis is supported by substantial evidence. Doss v. Director, OWCP, 53 F.3d 654, 19 BLR 2-181 (4th Cir. 1995).
C. EVALUATION AND WEIGHING OF EVIDENCE
a. Generally; Interpretation of Medical Data
The crediting of medical opinion is the province of the ALJ, and the ALJ need not accept the conclusion of any particular physician but may examine all the medical evidence and draw appropriate inferences. Peabody Coal Co. v. Shonk, 906 F.2d 264 (7th Cir. 1990); see also Migliorini v. Director, OWCP, 898 F.2d 1292, 13 BLR 2-418 (7th Cir. 1990); Smith v. Director, OWCP, 843 F.2d 1053, 11 BLR 2-125 (7th Cir. 1988).
An alj may not, at the invocation stage, conclude that a medical opinion of no impairment is outweighed by opinions establishing total disability and then, at rebuttal, rely on the same opinion of no impairment to disprove total disability. The alj may, however, rely on the opinion of lack of impairment to rebut one of the presumed elements, such as causation, that are not proved during invocation. Drummond Coal Co. v. Freeman, 17 F.3d 361, BLR (11th Cir. 1994).
Date at Which Disability Is Judged
The date of hearing is the date upon which disability is assessed by the ALJ in a living miner's case. Cooley v. Island Creek Coal Co., 845 F.2d 622, 11 BLR 2-147 (6th Cir. 1988); see also Zettler v. Director, OWCP, 886 F.2d 831, BLR (7th Cir. 1989); Freeman United Coal Co. v. Benefits Review Board, 912 F.2d 164, 14 BLR 2-53 (7th Cir. 1990).
Inferring Total Disability
The Seventh Circuit, citing Parsons v. Black Diamond Coal Co., 7 BLR 1-236, 1-239 (1984) and Turner v. Director, OWCP, 7 BLR 1-419, 1-421 (1984) held that in order to infer disability, the ALJ must first determine the nature of the claimant's usual coal mine work and then compare evidence of the exertional requirements of the work with medical opinions regarding the claimant's work capability. The court also held, citing Hvizdzak v. North American Coal Corp., 7 BLR 1-469, 1-471 (1984), that the ALJ is to make the ultimate finding of total disability, which is a legal determination. Poole v. Freeman United Coal Mining Co., 897 F.2d 888, 13 BLR 2-348 (7th Cir. 1990); see also Wilson v. Benefits Review Board, 748 F.2d 198, 7 BLR 2-38 (4th Cir. 1984).
The Fourth Circuit, noting its agreement with the Director as well as the Third and Eleventh Circuits, held that an ALJ may not reject limitations noted in a doctor's report as being nothing more than mere recitations of the patient's symptoms unless there is specific evidence for doing so in the report. [The Third and Eleventh Circuits have previously held that an ALJ must identify the basis for a finding that the listed limitations are the patient's descriptions rather than the physician's conclusions. Kowalchick v. Director, OWCP, 893 F.2d 615, 13 BLR 2-226 (3d Cir. 1990) and Jordan v. BRB, 876 F.2d 1455, 12 BLR 2-371 (11th Cir. 1989)]. Scott v. Mason Coal Co., F.3d , No. 93-2067 (4th Cir. Aug. 10, 1995).
c. Existence of Pneumoconiosis
A claimant need not prove the existence of an impairment in order to prove he has pneumoconiosis. The Board has held that the absence of an impairment does not establish the absence of pneumoconiosis. Sainz v. Kaiser Steel Corp., 5 BLR 1-758 (1983), aff'd sub nom. Kaiser Steel Corp. v. Director, OWCP, 748 F.2d 1426, 7 BLR 2-84 (10th Cir. 1984).
In a footnote, responding to employer's reliance on the Surgeon General's report, The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace (1985), the Board noted that employer has submitted no evidence to support its argument that simple pneumoconiosis is not a progressive disease and because the miner had no further coal dust exposure, his disease could not have progressed since the prior denial; see Mullins Coal Co. of Va. v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g denied, 484 U.S. 1047 (1988); Chubb v. Consolidation Coal Co., 741 F.2d 968 (7th Cir. 1984); Cosalter v. Mathies Coal Co., 6 BLR 1-1182 (1984). Spese v. Peabody Coal Co., 19 BLR 1-45 (1995).
d. Cause of Disability and Pneumoconiosis
Concurrent Causes of Disability
The concurrence of two sufficient disabling medical causes, one within the ambit of the Act, and the other not, will in no way prevent a miner from claiming benefits under the Act. Old Ben Coal Co. v. Prewitt, 755 F.2d 588 (7th Cir. 1985); Peabody Coal Co., supra.
Silent Evidence
Silence in the record as to causation will not defeat the presumption favoring the claimant. Amax Coal Co. v. Burns, 855 F.2d 499, 502 (7th Cir. 1988)(citing Old Ben Coal Co. v. Prewitt, 755 F.2d 588 (7th Cir. 1985); Freeman United Coal Co. v. Benefits Review Board, 912 F.2d 164, 14 BLR 2-53 (7th Cir. 1990).
2. SPECIFIC EVIDENTIARY PRINCIPLES
a. Blevins Test for Admissibility
In Blevins v. Peabody Coal Co., 6 BLR 1-750 (1983), the Board established guidelines for assessing the weight of a physician's opinion attributing a miner's lung disease to smoking rather than to coal mine employment. The medical expert shall:
Id. at 1-755, citing Blevins v. Peabody Coal Co., 1 BLR 1-1023, 1-1029 (1979)("Blevins II"). In addition, the Board rejected the "reasonable degree of medical certainty" standard enunciated in Blevins II in favor of a "reasonable medical judgment" standard pronounced in Underhill v. Peabody Coal Co., 687 F.2d 217, 4 BLR 2-142 (7th Cir. 1982) and reiterated in Peabody Coal Co. v. Lowis, 708 F.2d 266, 5 BLR 2-84 (7th Cir. 1983). But see Peabody Coal Co. v. Helms, 859 F.2d 486, 13 BLR 2- 449 (7th Cir. 1988) and Cosalter v. Mathies Coal Co., 6 BLR 1-1182 (1984), for further pronouncements by both the Board and the court on this issue.
Where the evidence on its face shows that the miner's condition has worsened, the evidence can be reconciled and thus application of the "later evidence is better" theory is permissible. However, where the evidence taken at face value shows that the miner has improved, it is impossible to reconcile the evidence and application of the "later evidence is better" theory is inappropriate. Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th Cir. 1992); see also Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993).
In Thorn v. Itmann Coal Co., 3 F.3d 713, 18 BLR 2- 16 (4th Cir. 1993), the Fourth Circuit held that "recency" in and of itself was not a sufficient reason to credit one medical opinion over another. The court held that a "bare appeal to 'recency' [was] an abdication of rational decision making.
As applied by the Board and the courts, the true doubt rule was as follows:
See Grizzle v. Pickands Mather and Co./Chisolm Mines, 994 F.2d 1093, 17 BLR 2-123 (4th Cir. 1993); Skukan v. Consolidation Coal Co., 993 F.2d 1228, 17 BLR 2-97 (6th Cir. 1993); Hansen v. Director, OWCP, 984 F.2d 364, 17 BLR 2-48 (10th Cir. 1993) and Freeman United Coal Mining Co. v. Director, OWCP [Jones], 988 F.2d 706 (7th Cir. 1993).
In Director, OWCP v. Greenwich Collieries [Ondecko], 114 S.Ct. 2251 (1994), aff'g sub nom. Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993), however, the Supreme Court held that the true doubt rule violated §7(c) of the Administrative Procedures Act.
On remand from the Supreme Court following Ondecko, the Sixth Circuit affirmed the Board's decision below and reinstated the denial of benefits as claimant had not met his burden of showing by a preponderance of the evidence that he had pneumoconiosis. True doubt, as applied by the ALJ, was invalid as conflicting with Section 7(c) of the APA. Skukan v. Consolidation Coal Co., 46 F.3d 15, 19 BLR 2-44 (6th Cir. 1995).
The Seventh Circuit, following the holding of the Supreme Court in Ondecko, held that as benefits were awarded in the instant case based on application of the true doubt rule, and the true doubt rule is no longer viable as it violates Section 7(c) of the Administrative Procedure Act, the award of benefits must be vacated and the case remanded for reevaluation of the medical evidence without benefit of the true doubt rule. Further, the Court held that the ALJ improperly accorded greater weight to the opinion of claimant's treating physician without properly discussing his rational, again holding that it is error to automatically accord greater weight to the opinion of a treating physician. Consolidation Coal Co. v. Director, OWCP [Sisson], 54 F.3d 434, 19 BLR 2-155 (7th Cir. 1995).
d. Adverse and Negative Inferences
Use of Negative Inferences
While the court declined to decide whether negative inferences by themselves gathered from the evidence in the record can ever overcome a presumption, the court stated:
Kline v. Director, OWCP, 879 F.2d 1175, 1181 n.15, 12 BLR 2-346 (3d Cir. 1989); see also Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532, 7 BLR 2-209 reh'g denied, 768 F.2d 1353 (11th Cir. 1985).
a. Physicians: Qualifications/Treating/Non-Examining
In vacating the Board's affirmance of the administrative law judge's finding that Section 718.305 rebuttal had been established based on proof that neither the miner's death nor disability arose from coal mine employment, the court applied Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 125 (4th Cir. 1984) to hold that the administrative law judge erred in relying solely on the opinion of a non-examining physician that the miner's chronic obstructive lung disease was caused by cigarette smoking as no examining physician of record had addressed the cause of the miner's chronic obstructive lung disease. Turner v. Director, OWCP, 927 F.2d 778, 15 BLR 2-6 (4th Cir. 1991).
It was error to give less weight to a physician simply because he was a reviewing physician (and more weight to another physician simply because he was an examining physician) where the reviewing physician was a qualified expert and his opinion was consistent with the opinion of the examining physician. Amax Coal Company v. Beasley, 957 F.2d 324, 16 BLR 2-45 (7th Cir. 1992).
The administrative law judge's deference to the opinion of the treating physician, over the opinion of a consulting physician who had seen the miner only once, was not affirmable where it had not been established that the ability to observe the claimant over an extended period of time was essential to an understanding of the miner's condition or that the treating physician knew anything about the disease in question. Amax Coal Co. v. Franklin, 957 F.2d 355, 16 BLR 2-50 (7th Cir. 1992).
In weighing the autopsy reports, the administrative law judge impermissibly applied a "blanket rule" in giving more weight to the physicians who performed the autopsy over the physician who reviewed the slides. The court noted that the administrative law judge also failed to indicate whether the autopsy reports met the quality standards of 20 C.F.R. §718.106(a). The court stressed that while the weighing of expert opinions is the province of the administrative law judge, there must be some indication that the weighing was conducted in a reasoned manner. Peabody Coal Co. v. Director, OWCP, 972 F.2d 178, 16 BLR 2-121 (7th Cir. 1992).
The opinion of treating physicians are entitled to greater weight than those of non-treating physicians. Tussy v. Island Creek Coal Co., No. 92-3032 (6th Cir. Jan. 13, 1993).
The Fourth Circuit, however, has held that there is no rule that a treating or examining physician must be accorded greater weight then the opinions of other physicians. [The court did recognize that as a general matter the opinions of treating and examining physicians deserve special consideration.] Grizzle v. Pickands Mather and Co./Chisolm Mines, No. 91-1078 (4th Cir., June 2, 1993).
The Seventh Circuit rejected the ALJ's reliance on two medical reports to award benefits in this case. Here, the ALJ credited one of these two reports, which contained discredited x-ray evidence, over a contrary report based on numerical superiority. The Court rejected this as unreasonable, vacated and remanded for further consideration. Sahara Coal Co. v. Fitts, 39 F.3d 781, 18 BLR 2-385 (7th Cir. 1994).
b. Hostility: Opinions in Conflict with the Act
The Third Circuit, adopting the Board's holdings in Stephens v. Bethlehem Mines Corp., 8 BLR 1-350, 1- 352 (1985) and Hoffman v. B & G Construction Co., 8 BLR 1-65 (1985), held that a physician's belief that simple pneumoconiosis is never disabling may constitute grounds for rejecting the medical opinion as inconsistent with congressional intent and the spirit of the Act. Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 12 BLR 2- 305 (3d Cir. 1989); see also Adams v. Peabody Coal Co., 816 F.2d 1116, 10 BLR 2-69 (6th Cir. 1987); Wetherill v. Director, OWCP, 812 F.2d 376, 9 BLR 2- 239 (7th Cir. 1987); Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532, 7 BLR 2-209, reh'g denied, 768 F.2d 1353 (11th Cir. 1985); Kaiser Steel Corp. v. Director, OWCP, 748 F.2d 1426 (10th Cir. 1984); Consolidation Coal Co. v. Hage, 908 F.2d 393, 14 BLR 2-46 (8th Cir. 1990).
The Eleventh Circuit, citing Stephens v. Bethlehem Mines Corp., 8 BLR 1-350 (1985), held that an ALJ may properly reject the opinions of doctors whose beliefs are in conflict with the Act. Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532, 7 BLR 2-209 (11th Cir. 1985); see also Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 12 BLR 2-305 (3d Cir. 1989); Robbins v. Jim Walter Resources, Inc., 898 F.2d 1478, 13 BLR 2-400 (11th Cir. 1990).
The Seventh Circuit concluded that Dr. Tuteur's opinion, that coal dust exposure does not cause obstructive impairment and therefore smoking must have caused the miner's condition, was not hostile to the Act as it did not fall into a traditionally hostile category and did not contravene the Act's definition of pneumoconiosis. Blakley v. Amax Coal Co., 54 F.3d 1313, 19 BLR 2-192 (7th Cir. 1995).
In a survivor's case, the court held that lay evidence alone may be sufficient to support finding of total disability due to pneumoconiosis. Rapier v. Secretary of Health and Human Services, 808 F.2d 456, 9 BLR 2-191 (6th Cir. 1986).
Lay evidence alone can be sufficient to support a finding that the deceased miner was totally disabled due to a respiratory impairment in a survivor's case. Dobbins v. Schweiker, 641 F.2d 1354 (9th Cir. 1981).
b. X-rays, Readers and Quality Standards
Distinguishing "B" Readers
The Fourth Circuit held that in the absence of expert testimony explaining the conflict, there is no rational basis for preferring one "B" reader's interpretation over another "B" reader's findings. Presumably, both "B" readers are equally qualified. Whitman v. Califano, 617 F.2d 1055 (4th Cir. 1980).
Section 413(b) Prohibition
The Eighth Circuit, citing Auxier v. Director, OWCP, 4 BLR 1-717 (1982), affirms the Board's holding that the prohibition in Section 413(b) of the Act against x-ray readings "is activated by any significant and measurable level of respiratory or pulmonary impairment." Starchevich v. Director, OWCP, 873 F.2d 197, 12 BLR 2-284 (8th Cir. 1989).
The Fourth Circuit affirms the Board's holding that Section 413(b) of the Act, 30 U.S.C. §923(b) does not preclude a mine operator from offering conflicting interpretations of x- rays. Grey v. Director, OWCP, F.2d , No. 90- 1795 (4th Cir., Sept. 4, 1991).
The Seventh Circuit held that a medical report based on a physical examination and medical history, which diagnosed chronic bronchitis, probable coal miners' pneumoconiosis, heart disease and probable tuberculosis all resulting in cardio-respiratory impairment and total disability from coal mining is sufficient "other evidence" under 30 U.S.C. §923(b). The Court also found that the ALJ erred in denying claimant a hearing. The Court stated that Congress obviously intended that the weighing of conflicting evidence be conducted following a hearing. The Court reversed the decision of the Board and remanded for a hearing to consider claimant's request for modification and to determine entitlement. Arnold v. Peabody Coal Co., 41 F.3d 1203, 19 BLR 2-22 (7th Cir. 1994).
The Seventh Circuit held that a medical report based on a physical examination and medical history, which diagnosed chronic bronchitis, probable coal miners' pneumoconiosis, heart disease and probable tuberculosis all resulting in cardio-respiratory impairment and total disability from coal mining is sufficient "other evidence" under 30 U.S.C. §923(b). The Court held that the ALJ erred in concluding that claimant had not submitted "other evidence" sufficient to invoke the re- reading prohibition of 30 U.S.C. Section 923(b) and 20 C.F.R. § 727.206(b)(1). Arnold v. Peabody Coal Co., 41 F.3d 1203, 19 BLR 2-22 (7th Cir. 1994).
c. Autopsy and Biopsy Evidence, Quality Standards
In the absence of an autopsy, a death certificate may not be used to preclude invocation of a presumption of a totally disabling respiratory or pulmonary impairment. Hillibush v. U. S. Department of Labor, 853 F.2d 197, 11 BLR 2-223 (3d Cir. 1988).
d. Ventilatory and Blood Gas Studies, Quality Standards
[See Part IV A.2.]
e. Vocational Experts and Evidence
The test for total disability is solely a medical test and not a vocational one. The fact that a miner would not be rehired does not support a finding of total disability. Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 7 BLR 2-124 (6th Cir. 1985).
f. Contraindication of Continued Employment
A medical conclusion that the miner "should not return to underground mining" because of his pneumoconiosis is not sufficient to establish that the miner is totally disabled. Zimmerman v. Director, OWCP, 871 F.2d 564, 12 BLR 2-254 (6th Cir. 1989); see also Neace v. Director, OWCP, 867 F.2d 264, 12 BLR 2-160 (6th Cir. 1989), reh'g denied 877 F.2d 495, 12 BLR 2-303 (6th Cir. 1989); Migliorini v. Director, OWCP, 898 F.2d 1292, 13 BLR 2-418 (7th Cir. 1990).