Petition for Review of an Order of the United States Department of Labor.
BEFORE CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*
This is a petition for review of an Order of the Benefits Review Board, United States Department of Labor, which affirmed an administrative law judge's decision to award black lung benefits. Petitioner Amax Coal Company challenges the Benefits Review Board Order on the grounds that the administrative law judge (ALJ) failed to comply with the decisional requirements of the Administrative Procedure Act and that the evidence submitted to the ALJ established that the claimant's husband, Marion Chavis, was not disabled. For the reasons set forth below, we affirm the decision of the Benefits Review Board.
On May 26, 1978, Marion Chavis, the widow of Harvey Chavis, filed a claim for survivor benefits under the Black Lung Benefits Act, 30 U.S.C. § 901, et seq. The Department of Labor (DOL) awarded benefits and the petitioner, Amax Coal Company ("Amax"), controverted liability and requested and received a formal hearing before an ALJ. On August 20, 1980, Administrative Law Judge Charles P. Rippey issued a decision and order awarding benefits to Chavis. The Alj ruled that the "interim presumption " of entitlement to benefits was applicable because the claimant's husband had been employed for twenty-five or more years in one or more coal mines prior to June 30, 1971. See 30 U.S.C. § 921(c) (5); 20 C.F.R. § 727.204(a). Judge Rippey concluded that the coal-mine employer had not rebutted the presumption because it had not "introduced evidence into the record which would support the conclusion that Harvey Chavis was not even partially disabled due to pneumoconiosis." (App. A4-A5)
The Benefits Review Board affirmed the ALJ's decision on November 2, 1983, holding the ALJ was correct in concluding that the evidence submitted "is not indicative ***of the absence of disability" (App.A2).
This case can be characterized as one where the petitioner failed to recognize its burden and put forth the necessary effort below and having lost in the lower tribunal now seeks to prevail on appeal on procedural grounds. The specific task before this Court is to determine whether the ALJ's decision is supported by substantial evidence. Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir. 1985). Amax did not contest the invocation of presumption below but attempted to rebut the § 727.204(a) presumption by demonstrating, in terms of the regulatory language, that "at the time of death [the] miner was not partially or totally disabled due to pneumoconiosis." 20 C.F.R. § 727.204(a). This Court has stated that a coal-mine employer may rebut the presumption of entitlement to benefits by showing that: "(1) the miner did not have pneumoconiosis; or (2) the miner was not totally or partially disabled at the time of his death; or (3) the partial or total disability which the miner may have suffered at the time of his death was not due to pneumoconiosis.: Bishop v. Peabody Coal Co., 690 F.2d 131 (7th Cir. 1982). The language of 30 U.S.C. § 921(c) (5) stating that the presumption is rebutted only by "establishing" certain points indicates that the presumption shifts the burden of persuasion and not merely the burden of production to the coal-mine employer. See American Coal Co. v. Benefits Review Board, 738 F.2d 387, 390 (10th Cir. 1984); Alabama By-Products v. Killingsworth, 733 F.2d 1511, 1513-1514 (11th Cir. 1984); Gaudiano v. United States Steel Corp., 4B.L.R. 1-313, 1-317 (1981); S. Rep. NO. 209, 95th Cong., 1st Sess. 18 (1977) ("Any burden of proof is on the Secretary to show that the miner was not partially or totally disabled").
Amax focused on showing that the miner was not totally or partially disabled at the time of death and did not attempt to prove directly that the miner did not have pneumoconiosis or that any disability was not the result of pneumoconiosis (Tr. 18-19). The ALJ and the Board understood Amax as following this strategy (App. A2, A5, A6-A9). Both tribunals below concluded that the presumption had not been rebutted and that the employer's evidence was not persuasive on the issue of demonstrating an absence of disability (App. A2, A5). The Benefits Review Board did note, however, that the ALJ failed to consider certain evidence in the record, specifically, medical records concerning hospitalization of the miner for a gastrointestinal condition and a death certificate attributing the miner's death to hypovolemic shock due to a ruptured aortic aneurysm (App. 42).
Careful analysis of this case indicated the ALJ's decision is supported by substantial evidence. The ALJ's failure to discuss certain evidence does not prevent this Court's discerning the ALJ's path of reasoning nor require a remand of the case pursuant to 5 U.S.C. § 557(c) (3) (A) (requiring a statement of findings and conclusions and the reasons or basis therefore). See Markus v. Old Ben Coal Co., 712 F.2d 322, 327 (7th Cir. 1983). The Board was correct in pointing out the ALJ's duty consider evidence presented by the parties, but where both the Board and this Court agree that undiscussed evidence is not probative on the issue in dispute and is not in conflict with other relevant evidence, there is no need to remand the case to the administrative tribunal for reconsideration See International Detective Service, Inc. v. I.C.C., 198 U.S. App. D.C. 334, 613 F.2d 1067, 1077 (D.C. Cir. 1979); National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292-1293 (9th Cir. 1979). This case stands in contrast to Peabody Coal Co. v. Hale, 771 F.2d 246 (7th Cir. 1985), where this Court remanded the decision of an ALJ because seemingly significant evidence was termed "no evidence" by the ALJ without discussion and because the undiscussed evidence was in direct conflict with other relevant evidence. Hale also involved the highly relevant evidence of an examining physician's diagnosis regarding pneumoconiosis whereas here the medical records introduced concerned a gastrointestinal incident and not examination or treatment for lung disease. See infra p. 6.
The primary relevant evidence presented by Amax consisted of 1) a work history revealing steadily increasing earnings until death, 2) employment at death, and 3) a death certificate attributing death to a vascular problem and not mention occupation lung disease. 20 C.F.R. § 727.204(d) lists four types of evidence which "alone shall not be sufficient to rebut the [§ 921(c) (4) and (5)] presumption:"
(1) Evidence that a deceased miner was em-ployed in a coal mine at the time of death; (2) Evidence pertaining to a deceased miner's level of earnings prior to death; (3) A chest X-ray interpreted as negative for the existence of pneumoconiosis; (4) A death certificate which makes not mention of pneumoconiosis.
Although in Freeman v. Director, 687 F.2d 214, 217 (7th Cir. 1982), this Court stated "the presence of more than one of these [§ 727.204(d)] factors tends to indicate the absence of reduced work ability," the narrowness of the Court's holding must be recognized. In Freeman the Court affirmed on substantial evidence ground the Benefits Review Board's ruling that the § 411(c) (5), 30 U.S.C. § 921(c) (5), presumption was rebutted by presentation of three of the four § 727. 204(d) factors ((d) (1), (2), and (4)).*fn1 The case is distinguishable from the present situation because in Freeman the claimant presented absolutely no evidence of disability and relied upon the force of the § 921(c) (5) presumption alone. The Court concluded that under such circumstances the submission of more than one of the § 727.203(d) types of evidence was sufficient alone to support a finding that the presumption was rebutted. 687 F.2d at 215-217. Although the presence of more than one of these factors might be enough to constitute substantial evidence permitting affirmance of denial of ...