Milburn Colliery Co. v. Director Office of Workers' Compensation Programs ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MILBURN COLLIERY COMPANY, 
Petitioner,
v.
DIRECTOR OFFICE OF WORKERS’  No. 02-2223
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
VERNON DELUNG,
Respondents.

On Petition for Review of an Order
from the Benefits Review Board.
(02-124-BLA)
Argued: May 6, 2003
Decided: July 15, 2003
Before WIDENER and MICHAEL, Circuit Judges, and
Frank W. BULLOCK, Jr., United States District Judge
for the Middle District of North Carolina,
sitting by designation.
Petition for review denied by unpublished per curiam opinion.
COUNSEL
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Frederick Klein Muth,
HENSLEY, MUTH, GARTON & HAYES, Bluefield, West Virginia,
2 MILBURN COLLIERY v. DIRECTOR OWCP
for Respondent DeLung; Jennifer U. Toth, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director. ON BRIEF: Kathy L. Snyder, JACKSON
& KELLY, P.L.L.C., Morgantown, West Virginia, for Petitioner.
Eugene Scalia, Acting Solicitor of Labor, Donald S. Shire, Associate
Solicitor, Christian P. Barber, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent Director.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Vernon DeLung was awarded black lung benefits by an administra-
tive law judge, and this decision was affirmed by the Benefits Review
Board. We now deny the petition for review filed by the employer,
Milburn Colliery Company.
I.
DeLung is a West Virginia resident and a former coal miner. The
parties agree that he worked for Milburn Colliery from July 1972
until April 1979 and again from August 1979 to October 1984. He
first filed for black lung benefits in September 1992. The District
Director in the Office of Workers’ Compensation Programs, U.S.
Department of Labor, initially found that DeLung was eligible for
benefits, and Milburn Colliery contested this finding; after a hearing,
an administrative law judge (ALJ) denied benefits in 1995. The Bene-
fits Review Board (Board) upheld this decision. DeLung filed a new
claim (the subject of this appeal) in February 1997. Again, the District
Director found that he was eligible for benefits, Milburn Colliery dis-
puted the finding, and the case was referred to the Office of Adminis-
trative Law Judges for a hearing. In 1998 a different ALJ determined
MILBURN COLLIERY v. DIRECTOR OWCP 3
that DeLung was eligible for benefits. The company appealed to the
Board, which remanded for further proceedings on the question of
whether DeLung had established the existence of pneumoconiosis. On
remand the ALJ again found that DeLung was eligible for benefits,
and the Board affirmed. Milburn Colliery then filed a petition for
review with us.
II.
Milburn Colliery challenges the award of benefits on several
grounds. The company argues that there is a lack of substantial evi-
dence to support the ALJ’s determinations that (1) the x-ray evidence
establishes the existence of pneumoconiosis; (2) the opinion evidence
from the doctors establishes the existence of pneumoconiosis; (3) the
respiratory impairment was totally disabling; and (4) pneumoconiosis
was a contributing cause of the disability. Finally, Milburn Colliery
claims that the date on which DeLung filed his claim cannot be used
as the onset date. "The scope of appellate review for a decision of the
Benefits Review Board affirming the ALJ is whether the ALJ’s deci-
sion is supported by substantial evidence and is in accordance with
the law." Green v. Dir., Office of Workers’ Comp. Programs, 790
F.2d 1118, 1119 (4th Cir. 1986).
A.
We turn first to the x-ray evidence. There are thirty-seven interpre-
tations of three x-rays of DeLung’s lungs. An x-ray reading of 1/0
would be positive for pneumoconiosis, and a 0/0 reading would be
negative; according to the regulations, a 0/1 finding "does not consti-
tute evidence of pneumoconiosis." 20 C.F.R. § 718.102(b). Fifteen of
the readings were positive for pneumoconiosis; twenty-two were neg-
ative. Five of the negative readings, however, were 0/1, instead of 0/0,
showing some dust retention in the lungs. Four of the five doctors
who read the x-rays as 0/1 confirmed, by checking a box on the x-ray
classification form, that they detected parenchymal abnormalities con-
sistent with pneumoconiosis. The ALJ concluded that the five 0/1
readings, which did not constitute evidence of pneumoconiosis, were
more consistent with the fifteen positive x-ray readings than they
were with the seventeen completely negative readings. The ALJ also
concluded that the five 0/1 readings, all by doctors hired by Milburn
4 MILBURN COLLIERY v. DIRECTOR OWCP
Colliery, were an indication that the completely negative readings
were wrong. The ALJ then discounted the completely negative read-
ings and relied on the fifteen positive readings to find the existence
of pneumoconiosis. The company contends that the ALJ could not
rely on the 0/1 readings in any way in the process of concluding that
the x-ray evidence established pneumoconiosis.
As the regulation makes clear, the ALJ would have erred if he had
concluded that the 0/1 readings themselves demonstrated that DeLung
had pneumoconiosis. The ALJ recognized, however, that the 0/1 read-
ings did not "constitute positive evidence of pneumoconiosis." The
ALJ used the 0/1 readings to assist him in weighing the reliability of
the 1/0 and 0/0 readings. He found the 0/0 readings to be less reliable
because even the 0/1 readings showed some dust in the lungs. The
Board concluded that this analysis was appropriate, DeLung v. Mil-
burn Colliery Co., BRB No. 02-0124 BLA, at 5 (2002), and we agree.
B.
Milburn Colliery also argues that the opinion evidence from the
doctors is insufficient to establish the existence of pneumoconiosis
and that the evidence is insufficient to establish either a totally dis-
abling respiratory impairment or causation. The Board concluded that
there is substantial evidence in the record to support the ALJ’s find-
ings in favor of DeLung on each of these issues. Again, we agree with
the Board’s reasoning. DeLung v. Milburn Colliery Co., BRB No. 99-
0158 BLA, at 8-10 (2000); DeLung, BRB No. 02-0124, BLA at 5-8.
C.
Finally, Milburn Colliery argues that the ALJ erred in adopting the
date DeLung’s claim was filed as the onset date of his pneumoconio-
sis. In using the filing date, the ALJ relied on 20 C.F.R. § 725.503(b),
which provides that where the evidence does not establish the month
of the onset of the claimant’s disability, benefits are payable begin-
ning with the month the claim was filed. The company argues that
this regulation is invalid under 5 U.S.C. § 556(d), a provision of the
Administrative Procedure Act (APA). Section 556(d) provides that
the party seeking an award has the burden of proof. The company
claims that the regulation violates § 556(d) by shifting the burden of
MILBURN COLLIERY v. DIRECTOR OWCP 5
proof to the employer to prove when the claimant becomes eligible
for benefits.
The APA applies to the Black Lung Benefits Act, 30 U.S.C.
§§ 901-45, through a somewhat circuitous route. The Black Lung
Benefits Act incorporates, among other things, part of the Longshore
and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-50. 30
U.S.C. § 932(a). Section 919(d) of the Longshore Act states that hear-
ings are to be consistent with the APA. 33 U.S.C. § 919(d). It thus
appears at first blush that the APA’s burden of proof provision fully
applies to black lung claims. However, the Longshore Act (and there-
fore the APA) applies to the Black Lung Benefits Act "except as oth-
erwise provided . . . by regulations of the Secretary." 30 U.S.C.
§ 932(a). Here, there is a regulation that explicitly provides otherwise.
See 20 C.F.R. § 725.503(b); see also Amax Coal Co. v. Dir., Office
of Workers’ Comp. Programs, 312 F.3d 882, 893 (7th Cir. 2002);
accord, Green, 790 F.2d at 1119 n.4 (applying the onset date pre-
sumption). Because regulations of the Secretary allow the ALJ to
adopt the date of filing as the onset date when a more accurate date
cannot be determined, there is no conflict with the APA. Accordingly,
the ALJ here did not err in ordering benefits to commence as of the
month the claim was filed.
III.
Because there was no error in the Board’s determination that the
ALJ’s findings were supported by substantial evidence and no error
in the ALJ’s use of the date of filing as the onset date, we deny the
petition for review.
PETITION DENIED