Cowin & Company, Inc. v. Director, OWCP , 535 F. App'x 779 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14992
Non-Argument Calendar
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Agency No. 11-0382-BLA
COWIN & COMPANY, INC.,
Petitioner,
versus
DIRECTOR, OWCP,
US DEPARTMENT OF LABOR,
DONALD R. HENLEY,
Respondents.
________________________
Petition for Review of a Decision of the
Department of Labor
________________________
(August 19, 2013)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Cowin and Company, Inc., appeals a decision that affirmed an award of
benefits for Donald R. Henley based on his second claim under the Black Lung
Benefits Act. 30 U.S.C. § 901. Cowin argues that the denial of Henley’s first
claim for benefits bars his second claim for benefits and that the decision to award
Henley benefits based on Dr. Harsha Shantha’s medical opinion was not supported
by substantial evidence. We affirm.
We review de novo the decision of the Benefits Review Board. U.S. Steel
Mining Co. v. Dir., OWCP, 386 F.3d 977, 984 (11th Cir. 2004). To the extent the
Board affirms an award of benefits under the Act, that decision is “effectively
cloak[ed] . . . with the same deference” owed to the decision of the administrative
law judge. Id. (internal quotation marks and citation omitted). “Decisions of the
[administrative law judge] are reviewable only as to whether they are in
accordance with law and supported by substantial evidence in light of the entire
record.” Id. Substantial evidence consists of “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotation marks and citation omitted).
The Board did not err by affirming the determination that Henley “satisfied
the threshold requirement for a [second] claim . . . by showing a material change in
[his] condition.” Id. at 990. The administrative law judge applied the one-element
test we adopted in U.S. Steel and determined that Henley had failed to establish he
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suffered from pneumoconiosis when he filed his first claim for benefits in 1993,
but that he had a material change of condition and suffered from the disease when
he filed his second claim in 2002. Cowin argues that the administrative law judge
could not disturb the finding he made during Henley’s first claim for benefits that
Henley’s lung condition was not caused by exposure to coal dust, but the
administrative law judge could not take that earlier finding into account when
evaluating Henley’s second claim for benefits. The administrative law judge
determined whether Henley had a “material change” in his condition by comparing
the evidence he presented in support of his second claim “with the conclusion[]
reached in the prior claim” that he did not have pneumoconiosis. See id. at 989(emphasis omitted). Cowin also argues that res judicata barred Henley’s second
claim for benefits, but Henley sought in his second claim to prove that his health
had changed since the denial of his first claim, not to relitigate the denial of that
claim. See id. at 990.
Substantial evidence supports the decision that Henley had legal
pneumoconiosis. Dr. Harsha Shantha, a board certified pulmonologist and
Henley’s treating physician, opined that Henley’s symptoms were attributable to
sarcoidosis and an obstructive impairment attributable to coal workers’
pneumoconiosis, which is consistent with the definition of legal pneumoconiosis.
See 20 C.F.R. § 718.201(a)(2), (b). Dr. Shantha determined that Henley had coal
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workers’ pneumoconiosis based on objective medical evidence of his work and
social history, which included exposure to coal and sand dust, but no exposure to
cigarette smoke; Henley’s clinical presentation; and a pulmonary function test.
See id. § 718.202(a)(4). The administrative law judge reasonably found Dr.
Shantha’s opinion more probative and well-reasoned than other, less definitive,
diagnoses of pneumoconiosis by Dr. Ceso Ebeo, who failed to provide a
pulmonary diagnosis; Dr. Donald Rasmussen, who relied on evidence not in the
record; Dr. Randolph Forehand, who needed to eliminate tuberculosis and
malignancy as possible diagnoses; and Dr. Jay Mehta, who gave an alternative
diagnosis of idiopathic pulmonary fibrosis.
Cowin challenges the decision of the administrative law judge on four
grounds, all of which fail. First, Cowin argues that Henley was not entitled to
benefits because he had a negative lung biopsy, but negative biopsy evidence is not
dispositive of a claim for benefits. See id. § 718.106(c) (“A negative biopsy is not
conclusive evidence that the miner does not have pneumoconiosis.”). Second,
Cowin argues that Henley was not entitled to benefits based on his CT scan in
February 2002 showing sarcoidosis, but the administrative law judge found that the
CT scan was counterweighed by a chest x-ray in December 2003 that two doctors
read as showing pneumoconiosis, and we cannot disturb that finding. See Taylor
v. Ala. By–Products Corp., 862 F.2d 1529, 1531 n.1 (11th Cir. 1989) (“We do not
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question the weight accorded to the evidence by the ALJ, for such is not within our
scope of review.”). Third, Cowin argues that the administrative law judge
misstated that Dr. Shantha did not rely on the CT scan evidence, but the
administrative law judge explained that the doctor made a partial diagnosis of
sarcoidosis based on the scan and then determined from the other objective
medical evidence that Henley suffered from coal worker’s pneumoconiosis.
Fourth, Cowin argues that the administrative law judge “summarily disregarded all
of the evidence from [Henley’s] prior claim,” but the administrative law judge
considered “the radiographic record in the earlier claim” and reasonably
determined that “the most recent chest x-rays [were] more relevant medical
evidence on the condition of Mr. Henley’s lungs” and more consistent with the
“latent and progressive” nature of pneumoconiosis. See 20 C.F.R. § 718.201(c);
see also U.S. Steel, 386 F.3d at 990.
We AFFIRM the decision to award benefits to Henley.
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