Whitaker Coal Corp v. James Osborne

Filing

OPINION filed : DENIED the petition for review, thereby affirming Respondent s award of benefits; decision not for publication. Eric L. Clay (AUTHORINGa), Circuit Judge; Deborah L. Cook, Circuit Judges and Solomon Oliver , Jr., Chief District Judge for the Northern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0487n.06
No. 12-3872

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

May 15, 2013
DEBORAH S. HUNT, Clerk

WHITAKER COAL CORPORATION,
self-insured through Sun Coal Corporation,
Petitioner,
ON PETITION FOR REVIEW OF
AN ORDER OF THE BENEFITS
REVIEW BOARD

v.
JAMES OSBORNE and DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
/

BEFORE:

CLAY and COOK, Circuit Judges; and OLIVER, District Judge.*

CLAY, Circuit Judge. Respondent James Osborne, a retired coal miner, filed a claim for
benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., with the United States
Department of Labor’s Office of Workers’ Compensation Programs. The administrative law judge
found that Respondent was entitled to benefits under the Act, and the Benefits Review Board
affirmed that decision. Petitioner Whitaker Coal Corporation petitions this Court for review of the

*

The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the
Northern District of Ohio, sitting by designation.

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Board’s decision. For the following reasons, we DENY the petition for review, thereby affirming
the award of benefits to Respondent.
BACKGROUND
Respondent James Osborne worked in coal mines for thirty-three years, nine of them as an
employee of Petitioner Whitaker Coal Corporation. On August 2, 1994, Respondent filed a claim
for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., with Respondent Director,
Office of Workers’ Compensation Programs (the “Director”). The district officer recommended
denying benefits. After a hearing before an administrative law judge (“ALJ”), it was determined that
although Respondent suffered from simple pneumoconiosis, Respondent failed to establish that he
was totally disabled because of that condition. Respondent was therefore denied benefits.
Respondent filed a second claim for benefits on April 15, 2008; it is this claim that forms the
basis for this appeal. On this claim, the district officer recommended awarding benefits, and the
matter was referred to an ALJ. At a hearing on May 11, 2010, the ALJ received all of the evidence
adduced since the denial of Respondent’s first claim. This evidence consisted of chest x-rays, CT
scans, pulmonary function studies, arterial blood gas studies, and several medical opinions.
In his November 29, 2010 decision awarding Respondent benefits, the ALJ discussed and
weighed the evidence submitted. The medical evidence and opinions were in agreement that
Respondent has a large mass in the upper right lobe of his lung, but there was significant
disagreement about the cause of that mass and other nodules in Respondent’s lungs. ALJ first
considered the x-ray evidence. Of the sixteen chest x-rays performed, only four classified the mass

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on the ILO scale,1 with Dr. Paul Wheeler (who performed two x-rays) finding no pneumoconiosis,
Dr. John C. Scatarige finding simple pneumoconiosis, and Dr. Abdi Vaezy finding complicated
pneumoconiosis. The unclassified x-rays were also split as to the diagnosis with Drs. Basim W.
Atoum, Mahender Pampati, Ashok Patel, and Rodney G. Stinett finding the results consistent with
pneumoconiosis, Drs. Wheeler and Scatarige viewing them as evincing a conglomerate
granulomatous disease such as histoplasmosis or tuberculosis, and Dr. John M. Harrison interpreting
the results as a sign of complicated pneumoconiosis.
The ALJ next detailed Respondent’s CT scans. Again, the CT scans revealed a difference
of opinion about Respondent’s condition. Dr. Patel thought that the nodules were “consistent with
pneumoconiosis,” but he did not clarify whether that was simple or complicated pneumoconiosis.
(App. at 20–21.) Dr. Wheeler thought that the CT scans showed that the masses were not related
to pneumoconiosis. A third doctor, Dr. Dhiren Desai, did not offer a definitive diagnosis based on
his CT scan. After describing pulmonary function studies and arterial blood gas studies done on
Respondent, the ALJ turned to the “narrative medical evidence” (i.e., the physician’s opinions). The
most relevant of these opinions are those of Drs. Harrison (Respondent’s expert); A. Dahhan
(Petitioner’s expert); and Vaezy (Director’s independent examiner).

1

The ILO (International Labor Office) publishes guidelines for the classification of chest
x-rays of pneumoconiosis. See Int’l Labor Office, Guidelines for the Use of the ILO International
Classification of Radiographs of Pneumoconioses (2000), available at
http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---safework/documents/
publication/wcms_108568.pdf. Pneumoconiosis may be established with a chest x-ray that is
“classified as Category 1, 2, 3, A, B, or C, according to [these guidelines],” 20 C.F.R. § 718.102(b),
with categories 1, 2, and 3 indicating simple pneumoconiosis and categories A, B, and C indicating
complicated pneumoconiosis. Gale Coal Co. v. Hamilton, 173 F.3d 855, at *1 (6th Cir. 1999) (table
decision).
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Dr. Harrison, a Board-certified internist and pulmonologist, examined Respondent in May
2004 at the request of Respondent’s treating physician after previous x-rays and scans were
inconclusive as to the existence of pneumoconiosis. Dr. Harrison did a full review of Respondent’s
family, medical, and social histories, ran his own x-ray, and comparatively reviewed all prior x-rays
and scans in Respondent’s file. On his x-ray, Dr. Harrison noted “diffuse reticular nodular disease
most prominent in the upper 2/3 of both lung zones” and “conglomerate changes in the apices where
granulomatous disease appears to have consolidated.” (App. at 54.) On the whole, Dr. Harrison
diagnosed Respondent with “[c]omplicated coal workers’ pneumoconiosis,” which he stated was
“easy to see . . . watching the progression of his chest x-rays from ’98 until recently that this has gone
from simple coal workers’ pneumoconiosis to complicated coal workers’ pneumoconiosis.” (Id.)
Dr. Dahhan, also a Board-certified internist and pulmonologist, examined Respondent in
September 2008 at Petitioner’s request. As Dr. Harrison had, Dr. Dahhan obtained a full medical
history and his examination also included a pulmonary function test. Dr. Dahhan interpreted a
previously-run scan consistent with Dr. Scatarige, a Board-certified radiologist and certified Breader2: “no large opacities . . . consistent with histoplasmosis or tuberculosis rather than
pneumoconiosis.” (Id. at 28.) This diagnosis, Dr. Dahhan opined, was confirmed by Respondent’s
normal pulmonary function studies. Overall, Dr. Dahhan concluded that Respondent did not have
complicated pneumoconiosis.

2

A “B-reader” is “a physician who has demonstrated proficiency in evaluating chest [x-rays]
and in the use of the [ILO scale] for interpreting chest [x-rays] for pneumoconiosis and other
diseases.” 20 C.F.R. § 718.202(a)(1)(ii)(E); see also Woodward v. Director, OWCP, 991 F.2d 314,
316 n.4 (6th Cir. 1993).
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Third, Dr. Vaezy, a Board-certified internist and pulmonologist as well as a certified Breader, examined Respondent in June 2008 at the Director’s request to allow the Director to fulfill
its obligation under 30 U.S.C. § 923(b). Dr. Vaezy too conducted an x-ray and categorized
Respondent’s mass as a category C under the ILO guidelines, indicating complicated
pneumoconiosis. Although Dr. Vaezy noted that Respondent’s pulmonary function results were
“borderline normal,” Dr. Vaezy diagnosed Respondent with complicated pneumoconiosis. (App.
at 28.)
After evaluating the medical evidence, the ALJ concluded that Respondent was entitled to
the irrebuttable presumption of entitlement to benefits embodied in 30 U.S.C. § 921(c)(3) and 20
C.F.R. § 718.304 because Respondent had proven that he suffered from complicated pneumoconiosis
arising out of coal mine employment. Central to the ALJ’s conclusion were the medical opinions.
In weighing the opinions of Drs. Harrison, Dahhan, and Vaezy, the ALJ was “struck by the
thoroughness” of Dr. Harrison’s, noting that only Dr. Harrison “obtained information regarding the
[Respondent’s] negative skin test for tuberculosis, which is significant given the fact that [two nonexamining doctors] suggest[ed] that the x-ray [masses] may [have] be[en] due to tuberculosis.” (Id.
at 36.) Further, the ALJ stated that Dr. Harrison, “unlike Drs. Vaezy and Dahhan, reviewed a series
of x-ray films for comparison purposes, and found a clear progression of the disease process.” (Id.)
The ALJ found that both Dr. Vaezy’s and Dr. Dahhan’s opinions were entitled to weight but that the
“weight of the medical-opinion evidence, when viewed independently, supports a finding of
complicated pneumoconiosis based upon the opinions of Drs. Harrison and Vaezy.” (Id. at 38.) The

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ALJ found that his conclusion about the weight of the medical-opinion evidence was buttressed by
the x-ray evidence, CT scans, and Respondent’s employment and medical histories.
Petitioner appealed the ALJ’s decision to the United States Department of Labor Benefits
Review Board (the “Board”). Before the Board, Petitioner argued, as it does here, that “since the
[ALJ] found that the x-ray and CT scan evidence was insufficient to establish complicated
pneumoconiosis, he erred in crediting the medical opinion evidence, which relied, in part, on x-ray
and CT scan evidence to find complicated pneumoconiosis established.” (App. at 9.) In rejecting
this argument, the Board found that the ALJ “properly credited the opinions of Dr. Harrison and Dr.
Vaezy, over the contrary opinion of Dr. Dahhan, because he found their opinions to be better
reasoned and documented.” (Id.) Therefore, it affirmed the ALJ’s determination that Respondent
had established § 921(c)’s irrebuttable presumption of totally disabling pneumoconiosis.
DISCUSSION
A.

Standard of Review
While this Court reviews the legal conclusions of the Board de novo, we will affirm the

ALJ’s decision so long as that decision is supported by substantial evidence. Morrison v. Tenn.
Consol. Coal Co., 644 F.3d 473, 477 (6th Cir. 2011); see also Peabody Coal Co. v. Odom, 342 F.3d
486, 489 (6th Cir. 2003) (“When the question is whether the ALJ reached the correct result after
weighing conflicting medical evidence, our scope of review is exceedingly narrow.”). “Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Morrison, 644 F.3d at 478 (internal quotation marks omitted). “A remand or

reversal is only appropriate when the ALJ fails to consider all of the evidence under the proper legal

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standard or there is insufficient evidence to support the ALJ’s finding.” Id. (internal quotation marks
omitted).
B.

Statutory and Regulatory Framework
The Black Lung Benefits Act compensates coal miners who can prove that they are (1) totally

disabled (2) by pneumoconiosis (3) arising out of coal mine employment. See 30 U.S.C. § 901(a);
20 C.F.R. § 725.201(a). Pneumoconiosis is defined as “a chronic dust disease of the lung and its
sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.”
30 U.S.C. § 902(b). Pneumoconiosis “is customarily classified as ‘simple’ or ‘complicated.’” Usery
v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976). If the claimant is “shown by x-ray or other
clinical evidence to be afflicted with complicated pneumoconiosis[, he] is ‘irrebuttably presumed’
to be totally disabled due to pneumoconiosis.” Id. at 10–11. Under current regulations that
irrebuttable presumption can be established (A) by a chest X-ray that yields one or more large
opacities (greater than one centimeter in diameter) that are classified as a Category A, B, or C opacity
on the ILO scale; (B) by biopsy or autopsy that yields massive lesions in the lung; or (C) by other
means that could reasonably be expected to yield results described in clause (A) or (B). 30 U.S.C.
§ 921(c)(3). Despite these seemingly rigid categories, the Act requires the consideration of “all
relevant evidence” before making a determination about an award for benefits. Id. § 923(b). In
making that determination, the ALJ is required not only to “weigh all relevant evidence within each
category set forth in § 921” but also to “weigh evidence from different categories (e.g., x-ray vs.
autopsy) against one another.” See Gray v. SLC Coal Co., 176 F.3d 382, 389 (6th Cir. 1999).
C.

Analysis

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Petitioner’s primary criticism of the ALJ is that after concluding that neither the x-rays or CT
scans were sufficiently conclusive to establish the irrebuttable presumption under 30 U.S.C.
§ 921(c)(3), the ALJ then considered the x-rays alongside the medical opinions of Drs. Harrison,
Dahhan, and Vaezy. The process that the ALJ used to determined that Respondent was entitled to
the irrebuttable presumption under § 921 was not in error. Our pronouncement in Gray that an ALJ
must not only “weigh all relevant evidence within each category set forth in § 921” but also must
“weigh evidence from different categories (e.g., x-ray vs. autopsy) against one another” undercuts
Petitioner’s argument. The ALJ did exactly what the Gray court instructed it to do. He first
considered the x-ray evidence, concluding that such evidence standing alone was insufficiently
conclusive to invoke the irrebuttable presumption. He next considered the CT scan evidence, and
again found that those results unto themselves were not definitive enough to invoke the presumption.
He then weighed the medical opinion testimony and found that such testimony supported a finding
of complicated pneumoconiosis. Finally, the ALJ proceeded to consider all of the evidence “in its
entirety,” not just categorically, and determined that the x-ray and CT scans, while inconclusive in
isolation, were sufficient when combined with the medical opinions as well as Respondent’s
employment and medical histories to invoke the irrebuttable presumption.
The propriety of the ALJ’s process is confirmed by our decision in Maynard v. Eastern Coal
Co., 328 F. App’x 980 (6th Cir. 2009). In that case, an ALJ had found that the x-rays “supported
a finding of, at the very least, simple [pneumoconiosis],” but the Board remanded for further
consideration of the medical opinions. Id. at 984. After weighing the x-rays against the medical
opinions, an ALJ determined that the miner did not have simple pneumoconiosis as the x-rays had

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seemed to indicate. Id. We affirmed the ALJ’s decision, and in so doing, endorsed the decisional
methodology that Petitioner claims is in error here: using medical opinions that rely on x-rays to
come to the opposite conclusion about the existence of pneumoconiosis than the x-rays, when
considered in isolation, would tend to support. In Maynard, the x-rays supported a finding of
pneumoconiosis and the medical opinions did not; here, the x-rays were inconclusive as to a finding
of complicated pneumoconiosis but the medical opinions support a finding of complicated
pneumoconiosis. In each case, the ALJ found that the medical opinions were deserving of more
weight in the overall balancing. Therefore, we find no error in the decisionmaking process used by
the ALJ.
Because the process by which the ALJ came to its determination was not erroneous,
Petitioner is left to argue that substantial evidence does not support the ALJ’s decision. As noted
above, however, “[w]hen the question is whether the ALJ reached the correct result after weighing
conflicting medical evidence, [the] scope of review is exceedingly narrow.” Peabody Coal, 342 F.3d
at 489. The ALJ seemed to give the most weight to Dr. Harrison’s opinion. He did so because,
unlike the other doctors, Dr. Harrison reviewed a series of x-rays and opined that those scans
revealed the progression of the disease from simple to complicated. Further, Dr. Harrison was the
only doctor to take into account Respondent’s negative skin test for tuberculosis, which Dr. Dahhan
suggested might have been the cause of the masses in Respondent’s lungs. Moreover, it is clear that
the ALJ did not look at Dr. Harrison’s testimony through rose-colored glasses. The ALJ discounted
Dr. Harrison’s diagnosis because he is not a B-reader, but he thought that the extensive
symptomology and comparative analysis done by Dr. Harrison made his opinion quite credible.

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Lastly, Dr. Harrison’s diagnosis was confirmed by Dr. Vaezy, who is a B-reader and was proffered
by neither Petitioner nor Respondent.
The ALJ also reasonably discounted Dr. Dahhan’s opinion. First, that opinion was contrary
to the two other examining doctors’ opinions. Second, Dr. Dahhan relied on readings by Dr.
Scatarige who thought that Respondent has “histoplamosis or TB” but did not have the information
about Respondent’s negative TB test. Additionally, Dr. Scatarige’s diagnosis, on which Dr. Dahhan
relied, was equivocal in that Dr. Scatarige recommended further testing. We have previously viewed
a doctor’s opinion as undercut where he “request[ed] further medical information on the miner.” See
Baker v. Arch on North Fork, Inc., 129 F.3d 1263, at *2 (6th Cir. 1997) (table decision). While the
ALJ found that Dr. Dahhan’s opinion was entitled to some weight, he ultimately concluded that it
was outweighed by Dr. Harrison’s better reasoned and documented opinion, which was confirmed
by Dr. Vaezy.
Given the limited scope of our review and the ALJ’s thorough discussion of the evidence and
opinions, we conclude that there is substantial evidence to support the conclusion that the
irrebuttable presumption of total disability from complicated pneumoconiosis was reasonably
invoked.
CONCLUSION
For the foregoing reasons, we DENY the petition for review, thereby affirming Respondent’s
award of benefits.

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