England v. Eastern Associated ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DOUGLAS ENGLAND,
Petitioner,
v.
EASTERN ASSOCIATED COAL
No. 97-2309
CORPORATION; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(96-1154-BLA)
Submitted: July 14, 1998
Decided: August 4, 1998
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
S.F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Appellant. Mark E. Solomons, Laura Metcoff Klaus,
ARTER & HADDEN, Washington, D.C., for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Douglas England appeals the Benefits Review Board's ("BRB")
decision upholding a finding by the administrative law judge ("ALJ")
that England was not entitled to black lung disability benefits because
he failed to establish total disability. For reasons stated more fully
below, we affirm the BRB's decision denying benefits.
I.
The procedural background of this case is tortured. In 1986, while
still working as a miner, England filed an application for benefits
under the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West
1986 & Supp. 1998). Initially, the Department of Labor denied dis-
ability benefits. England then requested a formal hearing on the mat-
ter before an ALJ.
The ALJ concluded that the x-ray and medical opinion evidence
established pneumoconiosis. In addition, the ALJ determined that
England had established total disability due to pneumoconiosis on the
basis of the reports of Drs. Daniel and Cardona. The BRB vacated
that decision and remanded to the ALJ for consideration of an omitted
x-ray and discussion of how the conflicting medical opinions were
weighed, both in determining the existence of pneumoconiosis and in
finding total disability.
On remand, a new ALJ issued an order denying England's claim.
The ALJ concluded that the weight of the x-ray evidence established
pneumoconiosis. He found, however, that England failed to establish
that he was disabled for work by any respiratory or pulmonary
impairment. There was conflicting medical opinion evidence on this
issue, and the ALJ accorded greater weight to the reports of Drs. Zal-
divar (no total disability), Tuteur (disability, but not caused by pneu-
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moconiosis), Pfister (no pulmonary impairment), Leef (no pulmonary
impairment), and Starr (not totally disabled) than to those of Drs.
Daniel and Cardona. The ALJ based this decision on the fact that Drs.
Zaldivar and Tuteur were board-certified in internal medicine and
pulmonary diseases, and Drs. Daniel and Cardona were not.
The BRB again remanded the claim for additional consideration.
The BRB believed that the ALJ had mischaracterized Dr. Teuter's
diagnosis and collapsed the discussion of total disability and causa-
tion. Although Dr. Teuter found that England's disability was not due
to pneumoconiosis, he found that England was, in fact, totally dis-
abled from a respiratory standpoint. The BRB remanded for reconsid-
eration of the issue of total disability.
On remand, the ALJ accorded the greatest weight to Dr. Teuter's
report, finding that it was consistent with Drs. Daniel, Pfister, Leef,
Cook (pneumoconiosis, but no conclusion as to total disability), Starr,
and Cardona, and concluded that England's pneumoconiosis arose in
part from his coal mine employment. The ALJ discounted Dr. Zaldi-
var's report as against the weight of the evidence. On reconsideration,
the ALJ acknowledged that he had merged his analysis of total dis-
ability and disability causation. In a second order, the ALJ explained
that the medical opinion evidence did not establish England's total
respiratory disability for work. In so holding, the ALJ credited the
opinions of Drs. Pfister, Leef, Rasmussen (minimal loss of function),
Starr, and Zaldivar. He discounted Dr. Daniel's opinion for failure to
discuss England's employment requirements and discounted Dr. Car-
dona's opinion for failure to discuss objective test results.
The BRB remanded to the ALJ once again, ordering the ALJ to
further consider Dr. Daniel's opinion in light of the other evidence of
record. The claim was referred to a third ALJ, who again denied the
claim. The ALJ found that, even considering England's testimony
regarding the demands of his coal mine employment, he could not
infer total disability from Dr. Daniel's medical assessment of
England's limitations. The ALJ further reasoned that, in any event,
Dr. Daniel's assessment was not reliable, because it was at odds with
the objective evidence in the record and England's testimony that he
continued to work for one year after Dr. Daniel's examination.
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This time, the BRB affirmed the ALJ's conclusions, finding no
basis on which to disturb the ALJ's credibility findings. England's
motion for reconsideration was granted, but the BRB declined to
overturn its earlier decision. England now appeals.
II.
Proof of total disability may be established by: (1) qualifying pul-
monary function studies; (2) qualifying arterial blood gas tests; (3)
proof of cor pulmonale with right-sided congestive heart failure; or
(4) reasoned medical opinions based on medically acceptable clinical
and laboratory tests. See 20 C.F.R. § 718.204(c)(1)-(4) (1997). After
concluding that England failed to establish total disability under (1),
(2) or (3), the ALJ rightfully considered the medical reports to deter-
mine whether disability could be established based on medical opin-
ion. After reviewing the physicians' reports, the ALJ found that
England failed to establish disability under § 718.204(c)(4) and thus
was not entitled to benefits. He stated:
Dr. Daniel's assessment of the claimant's work capacity is
not reliable and does not establish the presence of a totally
disabling respiratory or pulmonary impairment. Assuming
that the claimant's job did involve heavy manual labor, for
example when loading and unloading supplies, he continued
to do that work for a year after Dr. Daniel's examination,
with no change in the way he performed the job, until he
sustained a rotator cuff injury to a shoulder. He has signifi-
cant heart disease dating back to 1978 or 1979. His ventila-
tory function and arterial blood gas test results were not
merely "non-qualifying" but were far above table examina-
tions values and noted to be normal. Subsequent thorough
physical examinations by Drs. Rasmussen, Starr and Zaldi-
var in particular, revealed no significant pulmonary disease.
The medical evidence does not establish that the claimant
has a totally disabling respiratory or pulmonary impairment.
Dr. Daniel's opinion is far outweighed by the claimant's
own job performance between August 1986 and August
1987, and by the persuasive medical opinions of all other
examining physicians (except Dr. Cardona).
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The BRB declined to reweigh the medical evidence of record and
affirmed the ALJ's decision. England argues on appeal that the only
reasoned medical opinions (those of Drs. Daniel and Cardona) estab-
lish total disability. He also asserts that the BRB erred in not consid-
ering his arguments on causation.
III.
On appeal, we must determine whether the BRB's decision uphold-
ing the ALJ's finding of no disability was supported by substantial
evidence, consistent with applicable law, and, specifically, whether
the ALJ acted properly in granting more weight to the medical opin-
ions of the physicians who found no total disability. See Walker v.
Director, Office of Workers' Compensation Programs , 927 F.2d 181,
182-85 & n.2 (4th Cir. 1991).
The ALJ found Dr. Daniel's assessment of total disability to be
unreliable due to the fact that England continued working for a year
after Dr. Daniel's examination. In addition, the objective evidence of
record, including the other medical tests and later examinations,
revealed no pulmonary disease. The ALJ held Dr. Cardona's opinion
entitled to less weight, because he failed to discuss a blood gas test
and a pulmonary function study (showing no disability) which he
himself conducted. It was certainly within the ALJ's discretion to
consider the thoroughness of and underlying support for the conclu-
sions reached by the doctors. See Thorn v. Itmann Coal Co., 3 F.3d
713, 718-19 (4th Cir. 1993).
It is not for this court to decide the facts de novo or to substitute
our judgment for that of the ALJ. On appeal, we must merely deter-
mine whether the ALJ's decision to accord less weight to the medical
opinions of Drs. Daniel and Cardona was rational and supported by
substantial evidence. See Jordan v. Califano, 582 F.2d 1333, 1335
(4th Cir. 1978). We hold that it was.
IV.
Because we find that the ALJ did not err in discounting the medical
opinions of Drs. Daniel and Cardona in determining that England was
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not totally disabled, we need not reach the issue of whether the BRB
erred in finding that England waived the issue of causation. England's
failure to establish his total disability due to any respiratory or pulmo-
nary impairment precluded an award of benefits, regardless of
whether his disability was caused by pneumoconiosis. See Jewell
Smokeless Coal Corp. v. Street, 42 F.3d 241, 243-45 (4th Cir. 1994).
For the foregoing reasons, we affirm the BRB's decision upholding
the ALJ's denial of black lung benefits to England. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid in decisional process.
AFFIRMED
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