Oak Grove Resources, LLC v. Director, OWCP , 562 F. App'x 836 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13019
Non-Argument Calendar
________________________
Agency No. 12-0503-BLA
OAK GROVE RESOURCES, LLC,
Petitioner,
versus
DIRECTOR, OWCP,
BERNARD COOK, JR.,
Respondents.
________________________
Petition for Review of a Decision of the
Department of Labor
________________________
(April 3, 2014)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Oak Grove Resources, LLC, appeals a decision that affirmed an award of
benefits for Bernard Cook Jr., under the Black Lung Benefits Act. See 30 U.S.C.
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§ 901(a). Oak Grove argues that Cook was not entitled to the statutory
presumption of total disability due to pneumoconiosis; that the administrative law
judge should have admitted the interpretation of an x-ray by Dr. Scott Loveless;
and that Oak Grove rebutted the presumption that Cook was totally disabled. We
affirm.
Substantial evidence supports the finding that Cook was entitled to a
presumption of total disability attributable to pneumoconiosis. A worker is entitled
to a presumption that he is totally disabled if he worked in underground mines at
least 15 years and proves that he has a totally disabling respiratory impairment.
See Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010); 30 U.S.C. § 921(c)(4).
Oak Grove did not dispute that Cook had worked in underground mines for 16
years, and the administrative law judge was entitled to find that Cook was totally
disabled based on two pulmonary function tests in June 2009 and February 2010
that revealed he had disabling respiratory impairments. See 20 C.F.R.
§ 718.204(b)(2)(i). The technician who administered the February 2010 test
reported, as he was required to do, see id. § 718.103(b)(5), that Cook’s cooperation
was “inconsistent” and “poor,” and the administrative law judge considered Cook’s
behavior in deciding whether to credit the results of the test. See id. § 718 App. B.
(“If it is established that one or more standards have not been met, the claims
adjudicator may consider such fact in determining the evidentiary weight to be
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given to the results of the ventilatory function tests.”). “We do not question the
weight accorded . . . [the February 2010 test] by the ALJ, for such is not within our
scope of review.” Taylor v. Ala. By–Products Corp., 862 F.2d 1529, 1531 n.1
(11th Cir. 1989).
Dr. Phillip O’Reilly opined that the June 2009 test showed a “severe
restriction” and that Cook was “50 [to] 75% impaired,” but O’Reilly’s opinion did
not constitute “contrary probative evidence” to negate the test, 20 C.F.R.
§ 718.204(b)(2). O’Reilly did not dispute the validity of the June 2009 test, see
Lollar v. Ala. By-Products Corp., 893 F.2d 1258, 1267 (11th Cir. 1990), or address
whether Cook could resume work as a coal miner or engage in comparable work,
see 20 C.F.R. § 718.204(b)(2)(iv). O’Reilly determined that the results of an
arterial blood gas study performed in June 2009 were normal, but that test result
did “not, by itself, negate” the finding that Cook suffered from a totally disabling
respiratory impairment, see Lollar, 893 F.2d at 1266.
Oak Grove argues that the administrative law judge should have admitted
Dr. Loveless’s reading of an x-ray as showing no pneumoconiosis because it was a
“record of Cook’s medical treatment” or, alternatively, because it was necessary to
understand the medical notes of Cook’s pulmonary specialist, but we decline to
consider arguments that Oak Grove failed to exhaust during the administrative
proceedings. Under the Black Lung Benefits Act, “in the absence of good cause,”
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20 C.F.R. § 725.456(b)(1), a party may not introduce more than “two chest x-ray
interpretations . . . in support of [its] affirmative case,” id. § 725.414(a)(2)(i),
(a)(3)(i), “one physician’s interpretation of each chest x-ray . . . in rebuttal of the
case presented by the opposing party,” id. § 725.414(a)(2)(ii), (a)(3)(ii), and “any
record of . . . medical treatment for a respiratory or pulmonary or related disease,”
id. § 725.414(a)(4). During the proceedings before the administrative law judge,
Oak Grove submitted Loveless’s reading “in rebuttal of [Cook’s] case” and,
alternatively, “in support of [its] affirmative case.” Oak Grove argued in its
petition to the Benefits Review Board that there was “good cause” to admit
Loveless’s reading to understand the notes of Cook’s pulmonary specialist, but the
Board declined to consider the argument because it had not been presented to the
administrative law judge. See Del Monte Fresh Produce v. Dir., OWCP, 563 F.3d
1216, 1223 (11th Cir. 2009). We also will not consider arguments that Oak Grove
never presented to the administrative law judge. See Dir., Office of Workers’
Comp. Programs, U.S. Dep’t of Labor v. Drummond Coal Co., 831 F.2d 240, 243
(11th Cir. 1987) (quoting Taft v. Ala. By-Products Corp., 733 F.2d 1518, 1523
(11th Cir. 1984)).
Substantial evidence also supports the finding that Oak Grove failed to rebut
the presumption that Cook was totally disabled. An employer can rebut the
presumption by proving either that the miner did not suffer from legal or clinical
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pneumoconiosis or that the miner’s totally disabling impairment is unrelated to his
pneumoconiosis. 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(d). Oak Grove
contends that the administrative law judge erroneously disregarded two computed
tomography scans as proof that Cook did not suffer from pneumoconiosis, but Oak
Grove failed to establish that the scans were “medically acceptable test[s] or
procedure[s]” that warranted consideration, 20 C.F.R. § 718. 107(a). Even if we
were to assume that the administrative law judge erred in failing to consider the
scans, any error was harmless because the interpretations of the scans did not
mention pneumoconiosis. “Rebuttal requires affirmative proof that
pneumoconiosis does not and did not exist, not silence as to whether the miner’s
severe lung condition is or is not pneumoconiosis.” Black Diamond Coal Mining
Co. v. Benefits Review Bd., 758 F.2d 1532, 1534 (11th Cir. 1985). And Oak
Grove did not challenge the finding that it failed to prove that Cook’s impairment
was unrelated to his pneumoconiosis; Oak Grove instead argued to the Board that
Cook did not have pneumoconiosis. The Board was not obliged to review a
finding about causation not disputed by Oak Grove. See Del Monte, 563 F.3d at
1223.
We AFFIRM the decision to award benefits to Cook.
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