On Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor
Before Posner, Chief Judge, and Flaum and Evans, Circuit Judges.
Twenty-two years ago, John P. Kelley, a miner, now deceased, filed a claim for black lung benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. sec. 901 et seq. Like a pinball, Kelley's claim has been bounced around the benefits review system. Underlying this ordeal is the suspicion that Kelley's disability is a result of his heart disease rather than pneumoconiosis caused by exposure to the dust of the coal mines. Ziegler Coal, Kelley's employer, asks this court now to re-examine the final grant of benefits. We do so and affirm the grant of benefits to Kelley's estate.
Briefly, the procedural history of this claim is as follows. John Kelley retired from a 32-year mining career in 1974, at which time he underwent bypass surgery. He applied for black lung benefits in 1975, which were denied. In 1979, the Department of Labor reexamined Kelley's claim under the 1977 amendments to the Black Lung Benefits Act and approved his claim. A hearing was held before an Administrative Law Judge (ALJ) in 1985; benefits were awarded in 1986. Ziegler, responsible for reimbursing the government, appealed to the Benefits Review Board, which, finding fault with the ALJ's weighing of the evidence and application of the regulations, remanded the case in 1992. On remand, the ALJ again awarded Kelley benefits. Ziegler appealed again. The Board affirmed benefits in 1994. Ziegler sought reconsideration, which was denied in 1996. Ziegler now petitions this court for review.
Though Ziegler's appeal is from a decision of the Benefits Review Board, "we actually review the decision of the ALJ, asking whether it is supported by substantial evidence, in accord with the law, and is rational." Ziegler Coal Co. v. Office of Workers' Compensation Programs, 23 F.3d 1235, 1237 (7th Cir. 1994) (quoting Peabody Coal v. Helms, 859 F.2d 486, 489 (7th Cir. 1988)). We affirm the findings of the ALJ if they are supported by "such relevant evidence as a rational mind might accept to support an adequate decision." Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1392 (7th Cir. 1994) (quoting Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir. 1992)). To this end, the ALJ must consider all relevant medical evidence, refrain from substituting his layman's expertise for that of a qualified expert, and, absent evidence to the contrary or a legal basis, must not disregard the opinion of a qualified expert. See Vigna, 22 F.3d at 1392; Wetherill v. Director, Office of Workers' Compensation Programs, 812 F.2d 376, 382 (7th Cir. 1986). Within these parameters, factual determinations are the ALJ's to make: "We cannot reweigh the evidence or make credibility determinations." Vigna, 22 F.3d at 1392; Summers v. Freeman United Coal Mining Co., 14 F.3d 1220, 1223 (7th Cir. 1994). We reserve only questions of law for de novo review. See Vigna, 22 F.3d at 1392; Keeling v. Peabody Coal Co., 984 F.2d 857, 862 (7th Cir. 1993).
Given this bifurcated standard of review, Ziegler, perhaps strategically, argues that its "appeal presents only questions of law," and thus would have us review the claim de novo. We cannot agree. Ziegler's appeal asks us in large part to reweigh the evidence under the "interim presumptions" with a sprinkling of inconsequential issues for plenary review. We address these specifics in due course. First, we should place Kelley's award of benefits within the context of "the interim presumptions," the prescribed lens through which we view Kelley's disability.
The purpose of the Black Lung Benefits Act is to provide benefits both to coal miners who are totally disabled by pneumoconiosis and to surviving dependents of miners who died as a result of pneumoconiosis. See 30 U.S.C. sec. 901. To establish disability due to pneumoconiosis, miners may rely on statutory or regulatory presumptions, which tend to weight the system in their favor. See Freeman United Coal Mining Co. v. Foster, 30 F.3d 834, 836 (7th Cir. 1994). Because Kelley filed his claim in 1975, the "interim presumptions," 20 C.F.R. sec. 727.203, control. Under section 727.203, "a coal miner who engaged in coal mine employment for at least 10 years will be presumed totally disabled due to pneumoconiosis" if he meets one of four thresholds for medical evidence. 20 C.F.R. sec. 727.203(a). In Kelley's case, the ALJ found that he met the presumption requirements through x-ray evidence, see sec. 727.203(a)(1), and through ventilatory studies, see sec. 727.203(a)(2). Section 727.203(b) provides that this presumption may be rebutted in four manners. Here, Ziegler sought to establish pursuant to 20 C.F.R. sec. 727.203(b)(3) that, upon consideration of all relevant medical evidence, "the total disability or death of the miner did not arise in whole or in part out of coal mine employment." The ALJ found that Ziegler failed to meet both its burden of production and persuasion. As evidenced by this synopsis, under the regulations, pneumoconiosis becomes the focus of the ALJ's inquiry and our review; Kelley's potentially disabling heart disease and smoking habit are relegated to the margins, unless it can be proved that these were the total cause of disability.
We proceed now to Ziegler's appeal. Ziegler claims that the ALJ erred in invoking the interim presumption on the basis of Kelley's x-ray evidence pursuant to 20 C.F.R. 727.203(a)(1). Subsection (a)(1) allows that chest x-ray evidence may establish the presence of pneumoconiosis. The Supreme Court has interpreted "establish" to mean "show by a preponderance of the evidence"; the evidence to be considered under subsection (a)(1) is x-rays within the context of their medical interpretations and in reference to other x-rays of the claimant, rather than the x-rays in isolation. See Mullins Coal Co. v. Director, Officer of Workers' Compensation Programs, 484 U.S. 135, 148 (1987) (examining claim where miner relied on single x-ray to invoke presumption).
In the instant case, the ALJ had before him x-rays of Kelley's chest taken between 1962 and 1985. B-readers, a specially skilled subset of x-ray readers, first read x-rays positive for pneumoconiosis in 1979; however, inconsistency in readings persisted through 1985. In making his determination, the ALJ relied on the five most recent x-ray readings, dating from 1985. Of those five readings, four were "positive for pneumoconiosis": Dr. Minetree, a Board certified radiologist, classified the evidence as 3/2; Dr. Brandon, a Board certified radiologist and B-reader, classified the evidence as «; Dr. Lapp, a B-reader, weighted it as 2/1; and Dr. Renn, a B-reader classified it as 2/3. See 20 C.F.R. sec. 410.428 (a)(1) (explaining classification of chest roentgenograms). Dr. Mann, a B-reader, found the x-ray evidence "negative." Of these four "positive" interpretations, one, made by Dr. Renn, concluded that the x-ray evidence did not establish pneumoconiosis. The ALJ relied upon the remaining three "positive" x-rays to find that the x-ray evidence established pneumoconiosis. The ALJ explained that he discounted the reading made by Dr. Renn because his statements were "equivocal to the existence of pneumoconiosis." *fn1 The ALJ further explained that, pursuant to Benefits Review Board precedent, he credited the x-ray reading made by Dr. Brandon, a board certified radiologist and B-reader, over the reading made by Dr. Renn, who although a ...