BRB No. 02-0887 BLA
PHILIP CAPPELLINI )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:06/25/2003
)
DIRECTOR, OFFICE OF WORKERS= )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order-Denial of Benefits on Remand of Paul H. Teitler, Administrative Law
Judge, United States Department of Labor.
Rocco V. Valvano, Jr., Scranton, Pennsylvania, for claimant.
Sarah M. Hurley (Howard M. Radzely, Acting Solicitor of Labor; Donald S. Shire, Associate Solicitor; Rae
Ellen Frank James, Deputy Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation
and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United
States Department of Labor.
Before: SMITH, McGRANERY and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order-Denial of Benefits on Remand (00-BLA-0841) of Administrative Law
Judge Paul H. Teitler on a duplicate claim 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).[1] This
is the second time that this duplicate claim is before the Board.[2] The Board
previously affirmed as unchallenged the administrative law judge=s finding of eight and one-half years of coal mine, but
vacated the administrative law judge=s finding that the existence of pneumoconiosis was not established on the merits at
20 C.F.R. '718.202(a)(4). Cappellini v. Director, OWCP, BRB No. 01-0674 BLA (May 9, 2002) (unpublished).
Specifically, the Board determined that the administrative law judge mischaracterized, and erred in discrediting, the
opinions of Drs. Levinson and Sahillioglu. Accordingly, the Board remanded the case for reconsideration, and instructed
the administrative law judge to determine first whether the newly submitted evidence is sufficient to establish a material
change in conditions at 20 C.F.R. '725.309 (2000) pursuant to Labelle Processing Co. v. Swarrow, 72 F.3d 308,
20 BLR 2-76 (3d Cir. 1995). Cappellini, slip op. at 6. The Board stated that the previous claim was denied
because claimant failed to establish the existence of pneumoconiosis at 20 C.F.R. '718.202(a) and that his disability was
not due to pneumoconiosis at 20 C.F.R. '718.204(c). Id.; Director=s Exhibit 16.
On remand, the administrative law judge found that the new medical opinion evidence developed in connection with
claimant=s duplicate claim failed to establish the existence of pneumoconiosis and precluded a finding of a material change
in conditions pursuant to Section 725.309 (2000). Accordingly, the administrative law judge denied benefits. On appeal,
claimant challenges the administrative law judge=s evaluation of the medical opinions of Drs. Sahillioglu and Levinson.
The Director, Office of Workers= Compensation Programs (the Director), responds urging affirmance of the administrative
law judge=s denial of benefits.
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 into the Act by 30 U.S.C.
'932(a); O=Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant argues that on remand the administrative law judge failed to abide by the Board=s instructions and
Asimply reasserted his previous analysis, which was determined to be flawed.@ Claimant=s Brief at 5. Claimant=s
contentions are without merit. Initially, we affirm the administrative law judge=s finding that Dr. Sahillioglu=s diagnosis
of AP 1/0 pneumoconiosis@ was a mere restatement of an x-ray opinion, and therefore, could not establish the existence
of pneumoconiosis under Section 718.202(a)(4) as unchallenged on appeal. Decision and Order-Denial of Benefits
on Remand at 6; Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983); see Worhach v. Director,
OWCP, 17 BLR 1-105, 1-110 (1993); Anderson v. Valley Camp Coal Co., 12 BLR 1-111, 1-113 (1989);
Director=s Exhibit 6. Further, the administrative law judge reasonably found that the opinion of Dr. Sahillioglu lacked
documentation to support a finding of pneumoconiosis. Decision and Order-Denial of Benefits on Remand at 6; Lango
v. Director, OWCP, 104 F.3d 573, 21 BLR 2-12 (3d Cir. 1997). The administrative law judge reconsidered the opinion
and concluded that Dr. Sahillioglu=s statements that the pulmonary function study Amay suggest@ a mild degree of
restrictive pulmonary disease if verified by volume determination, and that claimant=s pneumoconiosis Amay be related
to various work that claimant has done@ could not establish Alegal@ pneumoconiosis as it was equivocal. Justice v.
Island Creek Coal Co., 11 BLR 1-91 (1988); Director=s Exhibit 6. The administrative law judge also found that Dr.
Sahillioglu failed to affirmatively link his diagnosis of mild restrictive lung disease to claimant=s coal mine employment.
Decision and Order-Denial of Benefits on Remand at 6; Plesh v. Director, OWCP, 71 F.3d 103, 20 BLR 2-30 (3d
Cir. 1995).
In addition, the administrative law judge found that Dr. Levinson=s opinion was equivocal and flawed. Decision
and Order-Denial of Benefits on Remand at 6-7. The administrative law judge found that in his October 22, 2000 report,
Dr. Levinson stated that claimant had a mild obstructive impairment, while in his hearing testimony on December 11, 2000,
he stated that claimant had a pulmonary restriction with no obstruction. Decision and Order-Denial of Benefits on Remand
at 6; Claimant Exhibit 1; Hearing Transcript at 21. Claimant contends that Dr. Levinson=s report and testimony are not
conflicting because pneumoconiosis may have both obstructive and restrictive components. Claimant is correct that the
definition of legal pneumoconiosis includes any chronic restrictive or obstructive pulmonary disease arising out of coal
mine employment, see 20 C.F.R. '718.201(a)(2). The administrative law judge, however, found that Dr. Levinson
did not explain why he first stated that claimant had a mild obstructive impairment, then changed his opinion stating that
claimant had a pulmonary restriction with no obstruction. Claimant=s Exhibit 1; Hearing Transcript at 21. The
administrative law judge therefore rationally found Dr. Levinson=s opinion inherently conflicting and insufficient to
establish a material change in conditions. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en
banc); Fagg v. Amax Coal Co., 12 BLR 1-77 (1988).
Claimant also argues that the administrative law judge erred in finding that Dr. Levinson=s opinion only established
that claimant Amay be on a course to develop a respiratory impairment in the future,@ and asserts that the administrative
law judge, without any medical foundation, Ainterjects Claimant=s weight as being the possible cause of a restrictive
pulmonary impairment.@ Claimant=s Brief at 9. We disagree. The administrative law judge reviewed the pulmonary
function studies relied on by Dr. Levinson and reasonably found that the physician had not logically explained how
claimant=s generally normal values indicated that claimant was suffering from a respiratory impairment. Lango,
104 F.3d 573, 21 BLR 2-12; Director, OWCP v. Siwiec, 894 F.2d 635, 639, 13 BLR 2-259 (3d Cir. 1990). We
therefore affirm the administrative law judge=s finding that Dr. Levinson=s opinion is insufficient to establish the existence
of pneumoconiosis under Section 718.202(a)(4).
Inasmuch as the administrative law judge=s finding at Section 718.202(a)(4) is rational and claimant did not
challenge the administrative law judge=s previous findings under Section 718.202(a)(1)-(3), we affirm the administrative
law judge=s finding that the newly submitted medical evidence of record failed to establish the existence of pneumoconiosis
under Section 718.202(a), and thus claimant failed to establish a material change in conditions pursuant to Section
725.309(d) (2000). Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997);
Swarrow, 72 F.3d at 316, 20 BLR at 2-92; Skrack, 6 BLR at 1-711.
Accordingly, the administrative law judge's Decision and Order-Denial of Benefits on Remand is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, JR.
Administrative Appeals Judge
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Footnotes.
1)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 codified at 20 C.F.R.
Parts 718, 722, 725 and 726. All citations to the regulations, unless otherwise noted, refer to the amended regulations.
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2)The prior procedural history is set forth in the Board=s Decision and Order of May 9, 2002.
Cappellini v. Director, OWCP, BRB No. 01-0674 BLA (May 9, 2002) (unpublished).
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NOTE: This is an UNPUBLISHED BLA Document.
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