Lynda Freeman v. DOL

Filing

OPINION filed: The judgment of the district court is AFFIRMED, decision not for publication. Damon J. Keith, Circuit Judge (authoring); Eric L. Clay, Circuit Judge and Helene N. White, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0346n.06
No. 15-6189
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LYNDA L. FREEMAN,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF LABOR,
Defendant-Appellee.

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FILED
Jun 22, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY

BEFORE: KEITH, CLAY, and WHITE, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Appellant Lynda L. Freeman (“Freeman”) appeals
the district court’s affirmance of a United States Department of Labor (“DOL”) decision. The
DOL denied Freeman’s claim for compensation under the Energy Employees Occupational
Illness Compensation Program Act of 2000 (“EEOICPA” or “the Act”). Freeman sought review
of this decision, asserting that the DOL’s denial of her claim for survivor benefits under the Act
was arbitrary and capricious. She also sought review of the DOL’s denial of her motion to
reopen. The district court held that the DOL’s denial of Freeman’s claim was not arbitrary or
capricious. The court also concluded that the DOL’s denial of her motion to reopen is not
subject to judicial review. For the following reasons, we AFFIRM.

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I.

BACKGROUND

A. Statutory and Regulatory Background
The EEOICPA established a federal compensation program. See 42 U.S.C. § 7384. The
program provides benefits to individuals who have illnesses that were caused by exposure to
radiation or beryllium in the course of their work for the Department of Energy (“DOE”). Id.
Under Part B of the Act, covered employees (or their eligible survivors) can receive a lump-sum
payment of $150,000 (and coverage of medical expenses) for covered beryllium illnesses,
specified cancers, and other specified illnesses. See 42 U.S.C. §§ 7384n-s. Chronic Beryllium
Disease (“CBD”) is one of the covered beryllium illnesses. See 42 U.S.C. § 7384l.
A claimant seeking compensation under Part B based on CBD must first provide the
Department of Labor (“DOL”)1 with proof of an employee’s qualification as a “covered
beryllium employee.” See id. at §§ 7384s, 7384l(1). This means proof that the employee was
potentially exposed to beryllium in the performance of duty at a covered facility. See id. at
§ 7384l(7). When documentation establishes employment at a DOE facility “during a period of
time when beryllium dust, particles, or vapor may have been present,” an employee’s exposure
to beryllium is presumed in the absence of substantial evidence to the contrary. See id. at
§ 7384n.

1

The DOL is the adjudicatory agency for claims under the Act. See Watson v. Solis,
693 F.3d 620, 623 (6th Cir. 2012). The DOL has delegated its responsibilities under the Act to
the Office of Workers’ Compensation Programs (OWCP). 20 C.F.R. § 30.1. Therefore, “[a]n
employee, or the employee’s survivor, files a claim for EEOICPA benefits with the [OWCP].”
Gomez v. United States, 459 F. App’x 701, 703 (10th Cir. 2012); accord 20 C.F.R. § 30.100(a).
Once the OWCP district office renders a recommendation on a claimant’s case, the claimant may
file written objections with the Final Adjudication Branch (FAB) within the OWCP. 20 C.F.R.
§ 30.310. For simplification, the agency rendering the decision before the court is referred to as
the DOL throughout this opinion. Cf. Watson, 693 F.3d at 623.
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Once beryllium exposure is established, recovery under the Act then depends on when
the person was alleged to have been diagnosed with CBD. See id. at § 7384l(13). Those who
were allegedly diagnosed with CBD before January 1, 1993 must satisfy different criteria than
those were allegedly diagnosed after that date. See id. It is undisputed that the pre-1993 criteria
apply here. See Appellant Br. at 31. In order to meet the pre-1993 requirements, the claimant
must show “occupational or environmental history, or epidemiologic evidence of beryllium
exposure,” and satisfy:
any three of the following criteria [through medical evidence]: (I) Characteristic
chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive
or obstructive lung physiology testing or diffusing lung capacity defect. (III)
Lung pathology consistent with [CBD]. (IV) Clinical course consistent with a
chronic respiratory disorder.
(V) Immunologic tests showing beryllium
sensitivity (skin patch test or beryllium blood test preferred).
See 42 U.S.C. § 7384l(13); 20 C.F.R. § 30.100(c)(2) (noting that, with the exception of a covered
uranium employee, the claimant must submit medical evidence of the employee’s covered
illness).
B. Freeman Seeks Compensation
Freeman’s father, Ezra Freeman (“Ezra”), was an employee at Paducah Gaseous
Diffusion Plant (the “Plant”).

Ezra died in 1991.

In 2003, Freeman filed a claim for

compensation under Parts B and E of the EEOICPA. She asserted that her father developed lung
cancer and emphysema as a result of hazardous exposure to “beryllium and/or welding fumes” at
the Plant. This claim was denied in 2006.
In that same year, Freeman filed another claim for compensation under Part B only. She
submitted additional medical evidence and alleged that her father had CBD. A District Medical
Consultant reviewed the evidence submitted by Freeman and opined that the records showed a
clinical course consistent with chronic respiratory disorder and a diffusion lung capacity defect.
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However, the doctor opined that Ezra’s medical records—although they showed findings
consistent with CBD—did not support a diagnosis of CBD. Taking into account this medical
opinion, the DOL applied the presumption of beryllium exposure, but found that only two of the
five pre-1993 criteria were met: restrictive or obstructive lung physiology testing and a clinical
course consistent with a chronic respiratory disorder. Because Freeman failed to show three of
the five criteria, Freeman’s claim was denied in 2007.
Thereafter, Freeman submitted additional medical evidence, and the DOL vacated its
2007 denial to determine whether this new evidence made a difference to Freeman’s claim. The
DOL then had a second District Medical Consultant review Freeman’s claim. This medical
doctor concluded that the records reflected a clinical course consistent with a chronic respiratory
disorder and the pulmonary function tests showed an obstructive physiology and a diffusion
capacity defect consistent with CBD, but that Ezra’s x-rays and CT scans did not “show
characteristic abnormalities of CBD,” nor did his lung pathology reports show findings
consistent with CBD, “even on an at least as likely as not basis.” Based on this report, a Claims
Examiner issued a recommended decision denying Freeman’s claim.
Freeman objected to the recommendation and requested a hearing. After a hearing, the
DOL denied Freeman’s claim again in August 2009, the “Final Decision.” Freeman then filed a
request for reconsideration which was denied in October 2009. After an unsuccessful attempt at
reopening her case, Freeman filed a second request to reopen based upon more evidence of
beryllium exposure, but that request was denied in April 2014.
C. Freeman Seeks Judicial Review
Thereafter, Freeman filed a complaint in federal district court, seeking review of the
DOL’s 2009 denial of her claim for compensation and review of the DOL’s 2014 denial of her

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second request to reopen.

Freeman argued that Ezra qualified as a member of a “special

exposure cohort” (“SEC”) because he “worked for more than 250 days at the” Plant, “performed
all of his work ‘at a gaseous diffusion plant located in Paducah, Kentucky[,]’” and developed
lung cancer, which ultimately led to his death. Freeman asserted that lung cancer is a specified
cancer that qualifies a person for membership in the “special exposure cohort,” and therefore she
is entitled to survivor benefit compensation under the Act as his only surviving child. Freeman
argued, in the alternative, that even if Ezra did not qualify as a member of the special exposure
cohort, she is nonetheless entitled to benefits under the Act because Ezra had Chronic Beryllium
Disease.
With respect to Freeman’s CBD argument, the district court concluded that the DOL’s
decision was not arbitrary or capricious because two medical consultants concluded that Freeman
failed to satisfy the criteria for showing a diagnosis of CBD. The court concluded that the
DOL’s decision was based on “consideration of the relevant factors” and there was no clear error
of judgment.
The district court further concluded that Freeman’s “special exposure cohort” argument
was irrelevant. In so concluding, the district court reasoned that SEC status is relevant only for
compensation for cancer, and the judicial review “encompasse[d] only Freeman’s claim for
CBD, not her prior claim for cancer.” Lastly, the district court concluded that the DOL’s denial
of Freeman’s motion to reopen was not subject to judicial review, but even if it was, the district
court concluded that this claim failed on the merits. Freeman timely appealed to this court.
II.

APPELLATE JURISDICTION

The district court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 federal
question jurisdiction because a federal question under the Administrative Procedure Act

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(“APA”) was presented. See Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 494 (6th Cir.
2014). The district court’s order resolving the question was a final order, so this court has
jurisdiction to review it pursuant to 28 U.S.C. § 1291.
III.

STANDARD OF REVIEW

“When reviewing an administrative agency’s final decision under the APA, this court
reviews the district court’s decision de novo.” Latin Ams. for Soc. & Econ. Dev. v. Adm’r of
Fed. Highway Admin., 756 F.3d 447, 462 (6th Cir. 2014). In other words, “we do not defer to
the district court’s decision, but instead review the administrative decision as if we were the first
reviewing court.” Meister v. U.S. Dep’t of Agric., 623 F.3d 363, 370 (6th Cir. 2010). Our
review of the agency’s decision is governed by the APA. See Ky. Waterways All. v. Johnson,
540 F.3d 466, 473 (6th Cir. 2008). “The APA directs that when reviewing the decision of an
administrative agency, a court shall ‘hold unlawful and set aside the agency action’ if the action
is ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.’” Id.
(quoting 5 U.S.C. § 706(2)(A)). “A court reviewing an agency’s adjudicative action should
accept the agency’s factual findings if those findings are supported by substantial evidence on
the record as a whole.” Id. (quoting Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992)). The court
must also “consider whether the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.” Id. (internal quotation marks and citation
omitted).
“Review under the arbitrary and capricious standard is deferential[.]” Nat’l Ass’n of
Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007). This standard “is the least
demanding review of an administrative action.” Coal. for Gov’t Procurement v. Fed. Prison
Indus., Inc., 365 F.3d 435, 475 (6th Cir. 2004). However, the standard does not require that we

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“merely . . . rubber stamp the [agency’s] decision.”

Ky. Waterways All., 540 F.3d at 474

(internal quotation mark omitted) (second alteration in original) (quoting Jones v. Metro. Life
Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004)). We will vacate the agency’s decision if the agency:
has relied on factors which Congress had not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.
Nat’l Ass’n of Home Builders, 551 U.S. at 658 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
IV.

DISCUSSION

A. The Denial of Freeman’s Claim
The crux of the DOL’s decision was that Freeman failed to show that her father had been
diagnosed with CBD. On appeal, Freeman argues that the DOL admitted that Ezra’s “medical
records showed findings consistent with” CBD, yet it arbitrarily denied Freeman’s claim for
survivor benefits. See Appellant Br. at 36. She asserts that “interstitial fibrosis” is a diagnosis
that establishes CBD, and Ezra’s medical records show that he was diagnosed with “interstitial
lung disease” with “basilar fibrosis,” and with “interstitial infiltration.” See id. Freeman’s
argument is unavailing for a number of reasons.
First, Freeman relies too heavily on the DOL’s conclusion that her father’s medical
records “showed findings consistent with CBD.” See 2009 Final Decision, R. 44, Page ID 463
(emphasis added). While the DOL noted that some findings in Ezra’s records were consistent
with CBD, it also noted that two doctors on two separate occasions opined that—notwithstanding
some consistencies—the medical evidence “was insufficient to support a diagnosis of CBD[.]”
Id. at Page ID 465 (emphasis added).

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Second, Freeman’s argument regarding Ezra’s diagnosis for interstitial lung disease is
unpersuasive. The District Medical Consultant reviewed the medical records and concluded that
although “[a] few readings of conventional chest radiographs refer to signs of fibrosis in several
areas of the lung[,]” “[t]he reports of the chest CT scans” showed no interstitial fibrosis or other
abnormalities characteristic of or consistent with CBD. Freeman essentially asks this court to reinterpret the medical evidence despite the medical consultant’s opinion and the DOL’s reliance
on that opinion—something this court cannot do. See McAlister v. Liberty Life Assur. Co. of
Boston, No. 15-5801, 2016 WL 2343030, at *8 (6th Cir. May 4, 2016) (“[W]e are not medical
specialists and that judgment is not ours to make.”) (quoting Elliott v. Metro. Life Ins. Co.,
473 F.3d 613, 622-23 (6th Cir. 2006)); see also Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43
(noting that under arbitrary and capricious review, “a court is not to substitute its judgment for
that of the agency”). Therefore, this argument is similarly unavailing.
Lastly, there is no indication that the agency relied on improper factors, entirely failed to
consider an important aspect of Freeman’s claim, offered an explanation for its decision that runs
counter to the evidence before the agency, or that its decision was implausible. See Nat’l Ass’n
of Home Builders, 551 U.S. at 658. Indeed, it appears the agency gave Freeman opportunity
after opportunity to succeed on her claim—it vacated its first denial after receiving more
evidence from Freeman, it held a hearing, had two independent doctors review Freeman’s file on
two separate occasions, and gave Freeman the benefit of the presumption of beryllium exposure.
Ultimately, Freeman was unable to provide evidence showing three out of the five criteria
required to establish CBD for diagnoses before January 1, 1993, foreclosing her claim.2 Under

2

We do not find persuasive Freeman’s argument—made for the first time in her reply
brief—that the DOL “improperly” relied on the opinions of the District Medical Consultants
because the medical records clearly met the statutory criteria, and to the extent they were
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these circumstances, we cannot conclude that the agency acted arbitrarily or capriciously in
denying Freeman’s claim. See Watson v. Solis, 693 F.3d 620, 626 (6th Cir. 2012) (where the
claimant fails to provide evidence that is required under the Act, the DOL does not act arbitrarily
or capriciously in denying benefits).3
B. The Denial of Freeman’s Motion to Reopen
The district court concluded that judicial review of a denial of a motion to reopen under
the EEOICPA is precluded. Here, the DOL argues that the decision to deny a motion to reopen
under Part B is not reviewable because 1) it is not a “final agency action” subject to review under
the APA, and 2) it is a decision “committed to agency discretion by law,” and thus is
unreviewable pursuant to 5 U.S.C. § 701(a)(2). See Appellee Br. at 22-29. Neither this court nor
any court of appeals has decided this precise judicial review question. However, we need not
decide this question today.
unclear, the DOL should have sought clarification from the treating physician. This argument is
waived. Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010) (“We have consistently held . . .
that arguments made to us for the first time in a reply brief are waived.”). Even if we were to
consider the argument, it would fail. Freeman’s argument ignores the section of the procedure
manual that provides, regarding referrals to medical consultants, that although “[claims
examiners] should refer claims to a [medical consultant] for a medical review after all means of
obtaining the evidence from the treating physician is exhausted,” they “may also refer cases to a
[medical consultant] when the medical reports and/or tests do not include a clear interpretation
and/or if there is a specific question(s) about the medical evidence.” EEOICPA Procedure
Manual, ch. 2-1000.8 (emphasis added). Further, despite Freeman’s insinuations, the DOL did
not fail to send relevant medical records to Dr. Beckett—the first medical consultant to review
Ezra’s file. Rather, Dr. Beckett reviewed the file before Freeman submitted the additional
medical records, and once they were submitted, the DOL reopened the claim and referred the
new records to another medical consultant.
3

Freeman’s argument that she is entitled to benefits for her father’s alleged CBD based
on his alleged membership in the “special exposure cohort” is without merit. As the district
court properly determined, this argument is irrelevant to the claim before the court, which
encompasses the denial of benefits under Part B based on a diagnosis of CBD. By contrast,
inclusion in the “special exposure cohort” entitles members who contracted specified cancers to
compensation under Part B. See 42 U.S.C. §§ 7384l(9)(A), 7384l(14). The Final Decision of
which Freeman seeks review denied her survivor claim under Part B “for the condition of
[CBD],” not cancer.
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As we have done under similar circumstances, “we assume without deciding, for
purposes of argument, that the issue is reviewable[.]” See Amezola-Garcia v. Lynch, No. 153328, 2016 WL 1399347, *3 n.2 (6th Cir. April 11, 2016) (collecting cases).

“Such an

assumption does not run afoul of” the Supreme Court’s “prohibition against ‘hypothetical
jurisdiction,’” because “arguments that a court may not review agency action that is ‘committed
to agency discretion by law’ under 5 U.S.C. § 701(a)(2) do not go to the jurisdiction of the
court.”

Id.; see also Jama, 760 F.3d at 494 n.4 (noting that the APA does not confer

jurisdiction).
In support of her request to reopen, Freeman submitted additional evidence of her father’s
exposure to beryllium. But as stated above, additional evidence of his exposure to beryllium was
of no consequence to Freeman’s claim because the DOL had already presumed that her father
had been exposed to beryllium. Accordingly, even assuming judicial review of the denial of her
request to reopen is proper, Freeman still loses. Cf. Vasha v. Gonzales, 410 F.3d 863, 876 (6th
Cir. 2005) (assuming without deciding that judicial review was proper, and concluding that the
claimant was not entitled to have her claim reviewed by a three-member panel of the BIA
because her claim nonetheless lacked merit).
V.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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