Petitions to Review Orders of the Benefits Review Board, United States Department of Labor No. 00 BLA 0676
Before Flaum, Chief Judge, Posner and Rovner, Circuit
The opinion of the court was delivered by: Rovner, Circuit Judge
Peabody Coal Company and Old Republic Insurance Company (collectively "Peabody") appeal from orders entered by the Benefits Review Board ("BRB") in favor of the Estate of J.T. Goodloe. The BRB affirmed an award to Goodloe of black lung benefits and an award of fees to his attorney, who has pursued this claim for Goodloe and now for his estate for approximately twenty-four years. We previously remanded because the Administrative Law Judge applied an incorrect legal standard in determining whether to invoke an interim presumption that Goodloe suffered from a coal-related impairment. See Peabody Coal Co. v. Goodloe, 116 F.3d 207 (7th Cir. 1997). On remand, the ALJ applied the standard we set out and again concluded that Goodloe was entitled to benefits. We now affirm.
We will assume familiarity with our earlier opinion and will repeat only those facts necessary to the disposition of this successive appeal. Goodloe worked in the coal mines for more than thirty years. In 1978, he filed a claim for black lung benefits. Because of the length of time that he worked in the mines, Goodloe was entitled to an interim presumption of total disability due to pneumoconiosis (commonly known as black lung disease) if he could meet any of the criteria set forth in 20 C.F.R. § 727.203(a). The only criterion at issue at this point in the proceedings is subsection (a)(3), which provides, in relevant part, that a miner will be presumed to be totally disabled due to pneumoconiosis if he can demonstrate the following medical condition by a preponderance of the evidence:
Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by values which are equal to or less than the values specified [in an attached table]. 20 C.F.R. § 727.203(a)(3).
Goodloe's physicians conducted two studies of his blood gas levels, one in 1979 and one in 1984. The 1979 study produced non-qualifying results but the 1984 study was well within the qualifying range. Indeed, the 1984 study indicated theat Goodloe was suffering severe oxygen deprivation. Goodloe's blood oxygen levels were so low that every physician reviewing the results initially questioned the validity of the study.
In our prior opinion, we remanded the case because the ALJ placed an impermissible burden on the employer in determining whether to invoke the interim presumption. Rather than placing the burden of proof for the validity of the blood gas study on Goodloe, the ALJ invoked the presumption because Peabody failed to produce evidence that would invalidate the study. Goodloe, 116 F.3d at 212. On remand, we held that Goodloe was entitled to the interim presumption only if he could show by a preponderance of the evidence that the 1984 blood gas study was valid. Id. If Goodloe was able to show he was entitled to the presumption, Peabody would then have an opportunity to rebut the presumption using the methods set forth in section 727.203(b).
On remand, the ALJ considered the 1984 blood gas study ordered and reviewed by Dr. Henry Peters. Dr. Peters conducted a thorough physical examination of Goodloe at that same time and also ordered other diagnostic tests. When he received the results of the blood gas study, Dr. Peters asked the lab to double-check the test and verify it for accuracy, which the lab did to the doctor's satisfaction. The ALJ noted that Dr. Peters' physical examination of Goodloe and another diagnostic test corroborated the results of the blood gas study. At the examination, Goodloe appeared short of breath without exertion. He also exhibited increased chest diameter and clubbing of the digits. *fn1 Another blood test conducted at that time indicated that Goodloe had a condition known as polycythemia, or excessive red blood cells. This condition develops as a reaction to severe oxygen deficiency. All of these physical findings are consistent with black lung disease. Although two other physicians (Drs. Frank Stewart and David Howard) who subsequently reviewed the results doubted the validity of the qualifying blood gas study, the ALJ noted that neither had examined the miner, and the employer had produced no evidence suggesting the test results were invalid. Because Goodloe produced evidence that corroborated the validity of the study, the ALJ invoked the presumption under section 727.203(a)(3).
The ALJ proceeded to analyze whether Peabody could rebut the presumption under section 727.203(b). Under that section, the employer could rebut the presumption by demonstrating that (1) the miner was in fact performing his usual coal mine work or comparable, gainful work; (2) the miner was able to perform his usual coal mine work or comparable, gainful work; (3) the miner's total disability or death did not arise in whole or in part out of coal mine employment; or (4) the miner does not or did not have pneumoconiosis. The ALJ found no rebuttal evidence under the first prong of the test; Goodloe had stopped working in the mines and subsequently died.
Under the second prong, the ALJ found the medical evidence submitted by Peabody insufficient to establish by a preponderance of the evidence that Goodloe was capable of performing his usual coal mine or other comparable and gainful work. The ALJ rejected the medical opinions of Drs. Vest, Renn and Tuteur because they related exclusively to a 1979 pulmonary function study that did not produce qualifying results. In reviewing the opinions of Drs. Howard and Stewart, the ALJ considered whether Peabody could show that Goodloe was not disabled from performing his usual coal mine work despite the valid 1984 blood gas test. On that rebuttal point, the ALJ noted, the employer could not rely on evidence already considered and rejected in the invocation of the presumption. The ALJ thus refused to reconsider the opinions of Drs. Howard and Stewart questioning the validity of the 1984 blood gas study. That left the employer with Dr. Howard's opinion that coronary artery disease could have produced the shortness of breath that Goodloe experienced, and Dr. Stewart's opinion that Goodloe's continued cigarette smoking would have contributed to his failing health between the 1979 test and the 1984 test. Neither Dr. Stewart nor Dr. Howard testified as to the degree of impairment that would be expected if they presumed the 1984 blood gas study was valid. The ALJ thus found that Peabody failed to produce sufficient evidence on the second rebuttal prong.
On the third prong, the ALJ considered whether Peabody had shown by a preponderance of the evidence that black lung disease was not a contributing cause to Goodloe's disability. Goodloe had smoked cigarettes all of his adult life, and Peabody maintained that tobacco and not coal was the source of his lung problems. The ALJ found inadequate support for this argument in the record, ruling that none of the physicians testifying convincingly ruled out coal dust exposure as a contributing cause for Goodloe's disability. Finally, the ALJ contemplated Peabody's evidence on the fourth prong, whether Goodloe suffered from pneumoconiosis. The employer submitted x-rays and the opinions of Drs. Howard and Stewart. Although the ALJ agreed that the x-rays did not support a finding of pneumoconiosis, he also found that negative x-rays alone cannot establish the absence of the disease. The ALJ found that the opinions of Drs. Howard and Stewart did not adequately explain why thirty-three years of coal dust exposure was not a factor in Goodloe's lung disease. Accordingly, the ALJ found that Peabody had failed to adequately rebut the presumption of total ...