Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor, No. 83-984-BLA.
Bauer, Chief Judge, Cummings, Circuit Judge, and Eschbach, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge
Freeman United Coal Mining Company petitions for review of a decision of the Benefits Review Board of the Department of Labor. The Board reversed the decision of an administrative law judge (ALJ) denying respondent Donald L. Jones benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. We reverse the Board's decision and remand to the ALJ for further proceedings consistent with this court's order.
Donald L. Jones worked for Freeman United Coal Mining Company as a coal miner for approximately forty-five years. Jones was sixty-one years old when he filed for black lung benefits with the United States Department of Labor on October 27, 1978. Jones continued to work for several months after filing his claim, but he eventually retired in 1979. Jones died on November 3, 1981.
Prior to Jones' death the ALJ issued a decision denying Jones benefits under the Act. The Benefits Review Board reversed, finding that the ALJ failed to invoke the interim presumption under 20 C.F.R. § 727.203(a)(1)*fn1 in the presence of x-ray evidence that showed the existence of pneumoconiosis and the ALJ also improperly allowed a rereading of this x-ray to defeat this threshold showing, in violation of the regulations. The Board remanded the case to the ALJ for reconsideration and for the purpose of allowing the parties to submit additional x-ray evidence if they desired. The ALJ reopened the record to allow additional submissions and granted the parties an extension of time until September 1981 for this purpose. In October 1981, the ALJ issued a supplemental decision in which he determined that the interim presumption was invoked and Freeman had failed to submit any rebuttal evidence. When Freeman advised the ALJ that the ALJ had given the parties until September to submit additional evidence and that Freeman did submit x-ray evidence in August suggesting that Jones did not have pneumoconiosis, the ALJ suspended his October order until such time that he reviewed this additional evidence.
Jones also submitted additional x-ray evidence in November 1981. Thus, the ALJ had three readings of a single x-ray before him: a negative reading for pneumoconiosis by Dr. Rosenstein (a "B" reader*fn2); a positive reading for pneumoconiosis by Dr. Brandon (a "B" reader); and, a positive reading for pneumoconiosis by Dr. Minetree (a board-certified radiologist). Two years later, on January 1, 1983 (no reason is given for this delay), the ALJ issued a supplemental order in which he rejected as inadmissible Dr. Rosenstein's reading submitted by Freeman. The ALJ also rejected Dr. Brandon's reading, stating that it was submitted "long after the time provided for the admission of additional evidence."*fn3 Consequently, the ALJ found that the x-ray reading by Dr. Minetree was sufficient to invoke the interim presumption and, in the absence of rebuttal evidence, Jones was entitled to benefits.
Less than one month later, however, the ALJ reversed his decision and concluded that Dr. Rosenstein's reading was admissible. The ALJ then reasoned that Dr. Rosenstein's reading must be given greater weight than Dr. Minetree's since Dr. Rosenstein was a "B" reader. The ALJ therefore vacated his supplemental order awarding Jones benefits and reinstated his original order denying benefits on the grounds that the x-ray evidence did not invoke the presumption. Jones requested the ALJ to reconsider his decision, specifically the exclusion of Dr. Brandon's reading. The ALJ denied Jones' request as untimely and offered that even if he considered the merits of Jones' request his decision would be unchanged.
The Board reversed the ALJ's decision, finding, preliminarily, that Jones' request for reconsideration was timely and, further, that the ALJ should have permitted Dr. Brandon's reading into the record. The Board concluded that based upon the readings by Drs. Brandon and Minetree, the interim presumption was invoked. Further, the Board found the evidence insufficient to establish rebuttal. The Board reversed the ALJ's decision and awarded Jones benefits.
Freeman appeals, contending that the Board exceeded its proper scope of review. Freeman does not appeal the Board's finding that the motion for reconsideration was timely or that the additional x-ray evidence was improperly excluded. Freeman argues only that the ALJ properly weighed the conflicting x-ray evidence and that his findings are conclusive since they are supported by substantial evidence. Freeman requests that we reverse the Board and reinstate the ALJ's denial of benefits.*fn4
This court's review is limited in scope. This court reviews the judgment of the ALJ to determine whether it is supported by substantial evidence and is in accordance with the law. Peabody Coal v. Helms, 859 F.2d 486, 489 (7th Cir. 1988); Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971).
The sole issue is whether the ALJ's decision that the x-ray evidence was insufficient to invoke the interim presumption is supported by substantial evidence and in accordance with the law. It is clear that in issuing his decision on January 20, 1983, the ALJ excluded Dr. Brandon's reading and thus did not consider all relevant medical evidence. Freeman asserts that this omission is excusable, however, because in denying Jones' motion for reconsideration the ALJ allegedly considered this reading and suggested that it would not affect his decision. The ALJ's order, although susceptible of such an interpretation, does not state this specifically, and in ...