Kennellis Energies, Inc. v. Hallmark ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1758
KENNELLIS ENERGIES, INCORPORATED
and ROYAL & SUN ALLIANCE USA,
Petitioners,
v.
SHELBY HALLMARK, Director, Office of Workers’
Compensation Programs, United States Department
of Labor, and ROBERT RAY,
Respondents.
____________
Petition for Review of an Order of the Benefits Review Board.
No. 00-BLA-1018
____________
ARGUED APRIL 2, 2003—DECIDED JUNE 25, 2003
____________
Before BAUER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. After a tortuous procedural jour-
ney, including multiple decisions by an Administrative
Law Judge and the Benefits Review Board of the Office
of Workers’ Compensation Programs, Petitioners Kennel-
lis Energies, Inc., and Royal & Sun Alliance USA (col-
lectively, “Kennellis”) seek review of an award of benefits
to Respondent Robert Ray after a finding of his total
disability due to coal miners’ pneumoconiosis. We affirm
the decision of the Benefits Review Board.
2 No. 02-1758
BACKGROUND
Ray began working in the coal mines at the age of twenty
in 1948, and until 1952 he worked as a trapper, bottom
laborer, and shuttle car operator for Old Ben Coal Com-
pany. From 1957 to 1969, Ray worked for Peabody Coal
Company as a haulage truck driver, drill helper and
operator, and fire shooter in a strip mine. Between 1969
and 1980, Ray returned to Old Ben Coal, where he served
as a continuous mine operator and deputy mine inspector.
Finally, from 1984 to 1985, Ray worked for Kennellis at
the Bushy Creek Mine as an underground roof bolter. In
that capacity, he worked in low coal, with a roof height
of four to six feet, where he was required to constantly
lift, carry, and install fifteen-pound roof bolts into the
mine ceiling. In a typical day, he would install 150-200
bolts.
Beginning in 1977 or 1978, Ray experienced episodes
of shortness of breath and weakness, which prevented him
from keeping pace with fellow workers. In 1984, Ray
injured both of his knees in separate incidents, the first
of which required surgical repair and time-off from work
for recovery; he continued to work after the second injury
and did not have it repaired until after retiring from
the coal mines. Ray also suffers from hypertension and
arthritis and smoked approximately three-fourths of a
pack of cigarettes per day for nearly forty years, quitting
in approximately 1982 or 1983. He retired from mine
employment in October 1985.
Ray filed his original claim for federal black lung bene-
fits with the Office of Workers’ Compensation Programs
(OWCP) on September 29, 1980, but that claim was ad-
ministratively denied on March 9, 1981, because, although
sufficient proof of pneumoconiosis existed, there was in-
sufficient evidence to support a finding of total disability.
After he retired, however, Ray filed a second claim for
No. 02-1758 3
benefits in April 1986. In order to prevail on this claim, Ray
was required to show that a “material change” had oc-
curred in his condition since his original claim was denied
in 1981. After reviewing the evidence, a district director
for OWCP recommended that Ray’s claim be denied again.
Ray then requested a formal hearing before an Admin-
istrative Law Judge (ALJ).
Ray’s hearing was scheduled for June 1988 but was
delayed for three years as the proper procedure for review-
ing the district director’s denial was debated within
the Department of Labor. Ray’s hearing was eventually
held on March 2, 1991, before ALJ Robert S. Amery, who
issued a decision awarding benefits to Ray in October 1991.
Judge Amery concluded that a material change had oc-
curred in Ray’s condition between the filing of his two
claims and that the evidence showed Ray suffered from
pneumoconiosis resulting in a total disability.
Kennellis appealed that ruling to the Benefits Review
Board of OWCP (“Board”), which remanded the claim for
reconsideration of several issues in September 1993. The
Board determined that Ray had been employed for at
least twenty-five years in coal mines but remanded
Judge Amery’s finding of material change in light of this
Circuit’s decision in Sahara Coal Co. v. Office of Workers’
Comp., United States Dept. Of Labor, 946 F.2d 554 (7th Cir.
1991) [hereinafter McNew]. The Board also directed
the ALJ to review the finding of pneumoconiosis because
the ALJ’s opinion suggested a preference for the treat-
ing physician’s opinion, which had been rejected by
this Circuit in Peabody v. Helms, 901 F.2d 571 (7th Cir.
1990), and Amax Coal Co. v. Beasley, 957 F.2d 324 (7th Cir.
1992). Further, the Board directed the ALJ to review the
finding of total disability due to pneumoconiosis.
Accordingly, Judge Amery reviewed the case and is-
sued a second decision on March 3, 1994, reinstating the
4 No. 02-1758
award of benefits. The ALJ specifically found that Ray’s
pneumoconiosis met the McNew standard and that the
majority of medical opinions established total disability
due to pneumoconiosis. Kennellis appealed the findings to
the Board again. Just as before, the Board remanded
the claim for further findings in May 1995 and ordered
review of the material change finding because the ALJ
did not consider all medical opinions that addressed the
issue of total disability. Review was also ordered of the
findings of pneumoconiosis and total disability because
this Circuit, in Sahara Coal Co. v. Fitts, 39 F.3d 781 (7th
Cir. 1994), decided in the interim, had rejected reliance
solely on numerical superiority in weighing medical opin-
ion evidence. Further, the Board sought additional ex-
planation from the ALJ as to how he weighed the physi-
cians’ opinions to determine causation.
When the case was remanded the second time, Judge
Amery was no longer available, so the case was assigned
to ALJ Ellen M. O’Shea. Judge O’Shea issued her find-
ings on October 3, 1997, awarding benefits to Ray once
again. As Judge Amery had concluded before, Judge
O’Shea found a material change in Ray’s condition that
established total disability due to pneumoconiosis. In an
all too familiar pattern (some seventeen years into this
litigation), an appeal was taken and the Board remanded
the case again for further findings. The Board affirmed
Judge O’Shea’s findings of material change and pneumoco-
niosis but required additional discussion of the medical
opinions relating to the findings of total disability and
causation as well as the onset date of Ray’s pneumoconiosis.
On June 21, 2000, Judge O’Shea issued the fourth
(her second) and final decision awarding benefits to Ray.
Her opinion further explained, as requested, how she
weighed the medical opinion evidence to determine total
disability due to pneumoconiosis and thus a material
change in Ray’s condition. With respect to the onset date
No. 02-1758 5
of Ray’s disability, Judge O’Shea noted that the evi-
dence did not establish a specific date, so that benefits
would become payable as of the month Ray filed his
claim. Kennellis initiated a fourth appeal, but the Board
affirmed the ALJ’s findings in their entirety on July 27,
2001. Kennellis then filed this appeal.
Between September 1980 and July 1989, Ray underwent
ten different physical examinations by eight physicians.1
Each physician administered a battery of tests to as-
sess Ray’s cardiovascular and pulmonary health. On the
whole, their reports indicated that Ray complained of
shortness of breath and fatigue after walking only one
to two blocks, climbing a flight of ten to twelve steps, or
lifting and carrying approximately fifty pounds twenty
to fifty feet. The reports also noted an increase in symp-
toms in the years following Ray’s original claim in 1980.
The doctors’ diagnoses included combinations of chronic
obstructive pulmonary disease, hypertension, chronic
bronchitis, joint disease/arthritis, and/or pneumoconiosis.
Chest X-rays returned mixed findings. After twenty-
six readings were performed by numerous radiologists
and physicians, eight found evidence of pneumoconiosis in
the X-ray, while seventeen did not (though eleven of
1
The following is a list of the medical examinations Ray under-
went in the nine-year span discussed above, including the physi-
cian’s name, the date of the examination, and whether pneumoco-
niosis was diagnosed: 1) Dr. Parviz B. Sanjabi, September 23,
1980, possible simple pneumoconiosis; 2) Dr. Y. N. Chiou, Novem-
ber 18, 1980, negative; 3) Dr. W. H. Getty, December 28, 1980,
negative; 4) Dr. Bob G. Thompson, April 21, 1986, positive; 5) Dr.
Parviz B. Sanjabi, May 1, 1986, positive; 6) Dr. G. V. Ranga Rao,
May 19, 1986, positive; 7) Dr. John E. Myers, Jr., January 20,
1987, positive; 8) Dr. Peter G. Tuteur, March 24, 1987, negative;
9) Dr. William C. Houser, April 12, 1988, positive; and 10) Dr.
Peter G. Tuteur, July 11, 1989, negative.
6 No. 02-1758
those doctors reported other findings, such as aortic arterio-
sclerosis or pleural abnormalities).
Of the eight physicians who physically examined Ray,
five concluded specifically that he suffered from pneumo-
coniosis, while three did not. Some also specifically linked
their finding of pneumoconiosis to Ray’s occupational
exposure to coal dust. One of the physicians (Dr. Tuteur)
who did not diagnose pneumoconiosis, however, could
not definitively rule out the disease, based on Ray’s respira-
tory problems and occupational history, despite a normal
chest X-ray and his history as a smoker.2
ANALYSIS
Because Kennellis seeks review of the Board’s decision
affirming the ALJ’s award of benefits, we review the
decision of the ALJ to determine if it was rational, sup-
ported by substantial evidence on the record as a whole,
and not contrary to law. Peabody Coal Co. v. Shonk, 906
F.2d 264, 267 (7th Cir. 1990). Substantial evidence is
that which a reasonable mind might accept as adequate
to support a particular conclusion. Pancake v. AMAX Coal
Co., 858 F.2d 1250, 1255 (7th Cir. 1988). We may not set
aside an inference simply because we find the opposite
conclusion more reasonable or question the factual basis.
Id. Making credibility determinations and resolving
inconsistencies in the evidence is within the sole province
of the ALJ. Meyer v. Zeigler Coal Co., 894 F.2d 902, 906
(7th Cir. 1990). Accordingly, if we determine the ALJ’s
decision was properly supported, we will affirm the deci-
sion of the Board to uphold the ALJ’s ruling. Shonk, 906
F.2d at 267.
2
Due to the abundance and diversity of medical opinions in this
case, further discussion of particular physicians’ opinions fol-
lows below as it pertains to each issue presented upon appeal.
No. 02-1758 7
Kennellis assigns as error the following four issues: 1)
the ALJ’s determination that a material change had
occurred in Ray’s condition to permit consideration of his
duplicate claim; 2) the ALJ’s finding that Ray established
he suffered from pneumoconiosis by medical opinion
evidence; 3) the ALJ’s finding of total disability; and 4)
the ALJ’s determination that pneumoconiosis was the
cause of Ray’s total disability in light of his other health
problems. We examine each issue in turn.
A. Whether a “material change” occurred due to
total disability
In order to consider Ray’s duplicate claim (because his
original claim had been denied in 1981), the ALJ was
required to determine first whether a material change
had occurred in Ray’s condition. A material change may
be shown two ways. First, the miner can show that he
did not have pneumoconiosis at the time of his original
claim but has since contracted and become totally dis-
abled by the disease. Second, and the method by which the
ALJ determined Ray demonstrated a material change, the
miner can show that the disease’s progress has resulted
in total disability although it was not totally disabling at
the time of the original application. McNew, 946 F.2d at
556. Ray’s original claim was denied because he could
not prove his pneumoconiosis was totally disabling in 1980.
Because the ALJ found that a material change had oc-
curred in Ray’s condition by concluding that he had
since become totally disabled by the disease, our review
necessarily considers whether that determination is in
line with the McNew standard and supported by substan-
tial evidence.
The ALJ relied primarily upon the opinion of Dr. Myers,
who is board-certified in internal medicine, to find total
disability—a conclusion which the Board affirmed prior
8 No. 02-1758
to its final remand. Specifically, the ALJ concluded that
Dr. Myers’ opinion was documented, well-reasoned, and
accounted for numerous test results, some of which
might have led to a negative pneumoconiosis diagnosis.
Dr. Myers’ ultimate conclusion, however, was that Ray
demonstrated pneumoconiosis to the point of total disabil-
ity based on a complete pulmonary examination and
Ray’s employment history as a coal miner.
In remanding the case for the third and final time, the
Board merely asked the ALJ to demonstrate further
how she weighed all of the medical opinions to find a
material change in Ray’s condition. To that end, the ALJ
rationally concluded that the opinions of Drs. Sanjabi
and Rao also showed a worsening of Ray’s pneumoco-
niosis symptoms since 1980 and that the disease’s prog-
ress affected his ability to perform the arduous tasks
required of a roof bolter at the time he filed his duplicate
claim, thereby supporting Dr. Myers’ finding of total
disability. Further, the ALJ concluded that Dr. Thompson’s
and Dr. Rao’s reports did not provide evidence contrary
to Dr. Myers’ specific finding of total disability because
those physicians did not address Ray’s functional ability
to perform his job.
The ALJ also concluded that Dr. Houser’s report was
ambiguous on the issue of total disability because his
report did not specifically conclude that Ray could return
to his coal mine job. Rather, Dr. Houser merely stated
that he found “no functional disability.” The ALJ discred-
ited this particular statement by Dr. Houser because Dr.
Houser did not explain the exact meaning of “no func-
tional disability,” nor did he explain whether that state-
ment referred to Ray’s ability to perform his particular
job. We do not find the ALJ’s conclusion irrational in
this instance; she compared Dr. Houser’s report to those of
Drs. Tuteur and Getty, who also found no total disability
and specifically stated that Ray could perform the par-
No. 02-1758 9
ticular tasks associated with his coal mine job. Dr. Houser’s
lone, unexplained reference to functional ability is not
sufficient to overturn the ALJ’s finding of total disability.
This finding is further supported by Dr. Houser’s admis-
sions that Ray’s pulmonary condition was not entirely
normal and could be affected by heavy, exertional work.
Finally, the ALJ reaffirmed her decision to discredit
the report and opinion of Dr. Tuteur because she found
his findings to be speculative, conclusory, and unsup-
ported—another determination the Board did not disturb
upon its final remand. Dr. Tuteur opined that Ray did not
have pneumoconiosis and that his pulmonary problems
were related to his smoking but failed to explain why
Ray’s breathing problems continued after Ray ceased
smoking approximately three to four years prior to filing
his duplicate claim. The ALJ also did not find Dr. Tuteur’s
opinion persuasive in light of Dr. Houser’s opinion that
some of the effects of smoking can resolve or improve
following the cessation of smoking.
Dr. Tuteur also opined that Ray’s breathing prob-
lems were not related to the inhalation of coal dust,
though Ray’s exposure to coal dust continued well after
he ceased smoking. Dr. Tuteur did conclude, however,
that Ray’s breathing problems were not attributable to
obesity, his knee injuries, or any other musculoskeletal
problems. We do not find the ALJ’s determination to
discredit Dr. Tuteur’s opinion irrational or unsupported
by the evidence, noting that “[w]hether a medical opinion
is reasoned . . . is a decision that rests ultimately with
the ALJ, not with us.” Freeman United Coal Mining Co.
v. Summers, 272 F.3d 473, 483 (7th Cir. 2001).
Accordingly, we find that the ALJ’s determination that
Ray’s pneumoconiosis had progressed to the point of total
disability (whereas it had not when he filed his original
claim in 1980) was rational, supported by substantial
10 No. 02-1758
evidence, and in line with the McNew standard. Ray
therefore demonstrated a material change in his condi-
tion making consideration of his duplicate claim proper.
B. Whether Ray established pneumoconiosis
We now consider whether Ray adequately demon-
strated that he suffered from pneumoconiosis. Proof
of pneumoconiosis may entail any of the following: 1) X-ray
evidence; 2) biopsy evidence; 3) proof of complicated pneu-
moconiosis under 20 C.F.R. §§ 718.304-306; or 4) reasoned
and documented medical opinion evidence notwithstand-
ing a negative X-ray reading. 20 C.F.R. § 718.202(a)(1)-(4)
(2003). We focus on the ALJ’s determination that Ray
proved he suffered from pneumoconiosis through medical
opinion evidence.
In concluding that Ray suffered from pneumoconiosis, the
ALJ examined the reports of Drs. Myers, Sanjabi, Rao,
Thompson, and Houser, all of whom diagnosed Ray with
pneumoconiosis. These reports, when considered as a
whole, took into account the various X-ray readings and
tests Ray underwent as well as his physical symptoms
and medical and work history. Only Dr. Tuteur’s opinion
was contrary. The ALJ discredited his opinion for the
reasons discussed above, and we see no reason to over-
turn that finding. Summers, 272 F.3d at 483.
Kennellis’ argument boils down to a claim that the ALJ
weighed the medical opinions improperly and that Dr.
Tuteur’s negative conclusions are more persuasive. As
we noted above, making credibility determinations and
resolving inconsistencies in the evidence is within the
sole province of the ALJ. Id.; Meyer, 894 F.2d at 906. We
find, therefore, that Ray adequately demonstrated that
he suffered from pneumoconiosis.
No. 02-1758 11
C. Whether Ray’s pneumoconiosis was the cause of
his total disability
The ALJ’s determination that Ray showed a material
change hinged upon a finding of total disability, and
because we agree with that finding, we need not revisit
the issue of total disability here. There remains only the
issue of causation. Kennellis argues that Ray had several
potential sources of disability, including knee problems,
heart disease, obesity, cigarette smoking, age, and coal
dust exposure. What Kennellis fails to provide, however,
is any evidence supporting a conclusion that Ray’s pneumo-
coniosis was not the cause of his total disability.
The ALJ relied upon the well-reasoned and documented
medical opinion of Dr. Myers (supported by the findings
of Drs. Sanjabi and Rao as to Ray’s limitations), who
concluded that Ray’s pneumoconiosis was the cause of
his total disability. Only Dr. Tuteur’s opinion, which the
ALJ permissibly discredited, supports Kennellis’ argument.
No other medical opinion contradicts Dr. Myers’ opinion
on the issue of causation. Absent proof that Ray’s other
ailments caused his total disability prior to the onset of
his pneumoconiosis, Kennellis’ argument cannot prevail.
See Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1394 (7th
Cir. 1994). We find that the ALJ’s determination that
Ray’s pneumoconiosis was the cause of his total disability
is supported by substantial evidence.
The decision of the Board upholding the ALJ’s ruling
is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-25-03