Casey v. Island Creek Coal Co ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELMER G. CASEY,
Petitioner,
v.
ISLAND CREEK COAL COMPANY;
No. 98-1567
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(97-867-BLA)
Submitted: October 20, 1998
Decided: November 13, 1998
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Daniel Sachs, WISENFELD & WALDMAN, P.D., Hyattsville,
Maryland, for Petitioner. Douglas A. Smoot, JACKSON & KELLY,
Charleston, West Virginia; Marvin Krislov, Deputy Solicitor, Donald
S. Shire, Associate Solicitor, Christian P. Barber, Michelle S. Ger-
dano, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Elmer Casey petitions for review of a decision of the Benefits
Review Board ("Board") affirming the administrative law judge's
("ALJ") denial of his application for black lung benefits pursuant to
30 U.S.C.A. §§ 901-945 (West 1994 & Supp. 1998). ALJ Johnson
initially reviewed this claim under 20 C.F.R. Part 718 (1998), of the
applicable regulations, and denied benefits based on his determination
that the evidence of record failed to establish a totally disabling respi-
ratory impairment. Casey filed a petition for modification within one
year of ALJ Johnson's decision pursuant to 20 C.F.R.§ 725.310
(1998), and ALJ Mahoney considered the petition along with Casey's
new evidence but still found the evidence of record insufficient to
establish a totally disabling respiratory or pulmonary impairment. The
Board affirmed. We must affirm the Board's decision if it properly
decided that the ALJ's decision is supported by substantial evidence
and is in accordance with law. See Doss v. Director, Office of Work-
ers' Compensation Programs, 53 F.3d 654, 658 (4th Cir. 1995).
This appeal concerns only the issue of total disability, which under
Part 718 is addressed at § 718.204(c) (1998). A miner may establish
a totally disabling respiratory or pulmonary impairment under that
provision by means of: (1) pulmonary function studies; (2) arterial
blood gas studies, (3) evidence that the miner has pneumoconiosis
and suffers from cor pulmonale with right-sided congestive heart fail-
ure; or (4) medical reports. See Lane v. Union Carbide Corp., 105
F.3d 166, 170-71 (4th Cir. 1997). In this case, all of the miner's pul-
monary function studies produced non-qualifying values under
Appendix B of Part 718, and he presented no evidence of cor pulmon-
ale.
The blood gas studies produced mixed results. A November 1992
study produced resting values that qualified as prima facie evidence
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of a totally disabling impairment under Appendix C of Part 718. The
exercise portion of the study, however, produced non-qualifying val-
ues. In a March 1993 study both the miner's resting and exercise val-
ues qualified. An April 1993 study produced non-qualifying values at
rest but no exercise test was performed. These results were duplicated
at a November 1994 study. Both the at-rest and exercise portions of
an August 1995 study produced qualifying values. Finally, in a Janu-
ary 1996 study, the miner's resting results were non-qualifying but his
exercise values qualified.
Among the physicians who addressed the issue of disability, only
Dr. Forehand found the presence of a totally disabling respiratory
impairment. Drs. Sargent, Dahhan, Fino, Castle, Morgan, and Rep-
sher all submitted contrary opinions. ALJ Mahoney found that while
a preponderance of the blood gas evidence established a prima facie
case of disability under the regulations, the conflicting pulmonary
function evidence, and particularly, the medical opinion evidence,
overcame the blood gas evidence such that the evidence overall failed
to establish total disability under § 718.204(c).
On appeal, Casey does not challenge the reasoning employed by
the ALJ for according greater weight to the evidence suggestive of no
total disability. Rather, he contends that the ALJ could not credit the
medical reports finding no total disability as a matter of law. In
Casey's view, where the blood gas evidence demonstrates inadequate
oxygen saturation, a medical opinion finding that a miner can none-
theless perform work sometimes requiring heavy labor is not a rea-
soned medical judgment. Moreover, Casey contends, such an opinion
is hostile to the Black Lung Benefits Act and its implementing regula-
tions, because it essentially disagrees with the criteria set forth in
Appendix C for establishing disability. We disagree.
A miner can establish total disability under the four alternative
means discussed only "[i]n the absence of contrary probative evi-
dence." 20 C.F.R. § 718.204(c). See Lane, 105 F.3d at 171. Thus, if
a claimant establishes a prima facie case of disability through one of
the four means provided, the ALJ must then weigh all remaining evi-
dence relevant to disability against such evidence and determine
which is stronger. Our decision in Lane is indistinguishable from this
case in the sense that in both cases, the ALJ relied on pulmonary
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function studies and medical reports as "contrary probative evidence"
sufficient to outweigh blood gas evidence which, in the absence of
contrary evidence, could have established total disability.
Moreover, medical opinions which dispute the inference of total
disability that may in appropriate circumstances be drawn from quali-
fying blood gas evidence are not hostile to the Act or the regulations.
The Act requires consideration of all relevant evidence, see 30 U.S.C.
§ 923(b) (1994), and the drafters of the regulations not only specifi-
cally provided that blood gas evidence be weighed against contrary
probative evidence but also recognized that blood gas studies are an
imperfect tool for establishing disability. Hence, Appendix C states
that the values contained in the tables provided do not establish "stan-
dards for determining normal alveolar gas exchange values for any
particular individual." 20 C.F.R. Part 718, Appendix C. This language
reflects that qualifying or non-qualifying values can mean different
things for different people.
In this case, the miner's blood gas results varied greatly. While
some physicians opined that such variability casted doubt on the reli-
ability of the studies, they concluded that, even assuming their valid-
ity, this variability would be at odds with a pulmonary-based
impairment. The physicians finding no disability also opined that,
when adjusted for the miner's age, the qualifying values only
reflected mild hypoxia. Further, because the miner's studies demon-
strated little or no drop in oxygen tension with exercise, and his pul-
monary function studies consistently reflected normal diffusion of
carbon dioxide, the majority of the physicians of record concluded
that the miner exhibited no significant abnormality of his blood gas
transfer mechanisms. These physicians therefore concluded that the
miner retained the respiratory capacity to perform his usual coal mine
work.
Accordingly, substantial evidence supports the ALJ's finding of no
total disability. The decision of the Board is therefore affirmed. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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