Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor. 99-BLA-397
Before Posner, Ripple and Manion, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge
ARGUED SEPTEMBER 27, 2002
Amax Coal Co. ("Amax") appeals from a grant of benefits by an administrative law judge ("ALJ") under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. ("BLBA"), in favor of Jack L. Chubb. The Benefits Review Board ("BRB" or "Board") affirmed the ALJ's decision on initial review and again on reconsideration. Amax asserts the ALJ and BRB erred on multiple grounds. It asserts that it was denied due process of law because of the delay in the litigation, that the ALJ's decision is without substantial evidence, that the statutory presumption for date of onset violates the Administrative Procedure Act ("APA") and is thus invalid, and that the attorneys' fees requested by Mr. Chubb's counsel are unreasonable. For the reasons set forth in the following opinion, we affirm in part and reverse in part.
Jack L. Chubb worked as a coal miner for twenty-eight years. On August 22, 1978, he filed for black lung benefits under the BLBA. A district director awarded benefits and identified Amax as the company liable to pay the benefits. Amax sought a hearing. By the time of the hearing, Mr. Chubb indicated through counsel that he had returned to coal mining on September 1, 1981, and wished to withdraw his claim. In April 1982, the ALJ issued an order approving Mr. Chubb's request to withdraw and dismissing Amax as a party. However, on a motion by the Department of Labor ("DOL") for reconsideration, Amax was reinstated as a party. Mr. Chubb requested a hearing on his entitlement to benefits between August 1, 1978, and August 30, 1981; if it was determined that he was not entitled to benefits from 1978 to 1981, he would be required to reimburse the benefits he had received during that time period.
After experiencing episodes of shortness of breath and some chest pain, Mr. Chubb retired from coal mining on September 16, 1982. Amax contends that Mr. Chubb left because of heart problems.
After multiple proceedings, the BRB, in 1992 stated that the case was a "morass of procedural errors." Petitioner's App. at 89. The BRB determined that, because
[the] procedural errors in this case go as far back as claimant's motion to withdraw his claim, justice requires that we vacate this case in its entirety, and remand it to the administrative law judge with instructions to convene a new hearing. At the hearing, the administrative law judge should determine whether claimant wishes to pursue his previous request to withdraw his 1978 claim. Id. at 90.
Amax sought reconsideration, which was denied in 1994.
On remand, in November 1995, Mr. Chubb decided to pursue his 1978 claim. In 1996, the ALJ concluded that the x-rays, pulmonary function studies, and physicians' opinions invoked the interim presumption of entitlement under three of the alternative methods. See 20 C.F.R. § 727.203(a)(1),(2),(4). *fn1 The ALJ found that Amax had not rebutted the presumption under the applicable rebuttal provisions. See 20 C.F.R. § 727.203(b)(1)-(4). *fn2 The ALJ found onset on April 23, 1984, and awarded benefits beginning April 1, 1984.
The BRB affirmed as uncontested the ALJ's finding of invocation, that is, that the claimant had invoked the interim presumption of entitlement, under § 727.203(a)(2) by establishing a totally disabling respiratory impairment as shown by pulmonary function tests. *fn3 See Petitioner's App. at 62 n.2. The BRB nevertheless reviewed the ALJ's other findings that claimant had invoked the interim presumption under § 727.203(a)(1) and § 727.203(a)(4) because they affected the ALJ's findings on rebuttal. The Board determined that the ALJ's other invocation findings based on his weighing of the x-ray interpretations and medical opinions could not stand and, consequently, vacated the rebuttal findings on disability causation and the existence of pneumoconiosis. Based on contentions of Amax that the April 1984 onset date was "arbitrary" and contentions by Mr. Chubb that the record did not establish a date of onset, the BRB vacated the ALJ's determination of an onset date. Id. at 64-65. The BRB advised the ALJ that "where claimant was employed in coal mine employment subsequent to the filing of his claim, if the evidence of record does not establish a particular date of onset, the date of claimant's last coal mine employment is the date for the commencement of benefits." Id. at 65.
On remand, the ALJ again awarded benefits. As to the x-ray evidence, the ALJ explained:
I observe that a majority of the most highly qualified physicians, those who are both B-readers and board certified radiologists, found the presence of pneumoconiosis. Pneumoconiosis is a progressive disease and since the 1982 film was taken, the positive readings among dually qualified physicians constitute a sizeable majority of the readings by physicians possessing the most impressive credentials. It is proper to credit the opinions of dually qualified physicians over B-readers and I do so here. I do not lend added weight to the November 24, 1995 negative readings based on recency, because of the majority findings. Id. at 52 (citations omitted).
The ALJ also found the medical opinions established the presence of a totally disabling respiratory impairment under § 727.203(a)(4). The ALJ accepted the medical opinions that diagnosed Mr. Chubb as totally disabled by a respiratory impairment because: (1) Dr. Lenyo is board certified in internal medicine and repeatedly examined and diagnosed Mr. Chubb with respiratory disability due to pneumoconiosis; (2) the opinions of Drs. Lenyo, Combs and Rader were all "reasoned and documented"; and (3) the opinions of Drs. Deppe and Jacobson were otherwise consistent with the opinions finding disability present. Id. at 53. The ALJ afforded additional credence to these opinions because the pulmonary function studies supported the physicians' conclusions. The ALJ discredited the opinions of Dr. Tuteur, because Dr. Tuteur did not believe that Mr. Chubb had pneumoconiosis, and Dr. Myers, because of the equivocal and vague expression of her conclusions.
The ALJ also determined that Amax had not rebutted this evidence. Although Drs. Tuteur and Myers had offered opinions in favor of rebuttal, the ALJ did "not find their opinions to be sufficient to establish rebuttal in the face of five physicians who believe the contrary, one of whom is also board certified." Id. at 54. Additionally, the ALJ gave Drs. Tuteur and Myers less weight for the "same reasons" that he had stated earlier. Id. The ALJ also dismissed reconsideration of the rebuttal evidence under § 727.203(b)(4) as "unnecessary" because the finding under § 727.203(a)(1) that the disease had been established by x-ray evidence precluded a finding of rebuttal premised on the absence of the disease. Id.
The ALJ awarded benefits beginning September 1, 1982, the month in which Mr. Chubb had retired from coal mining. The ALJ noted that the testimony of various physicians and other medical evidence had provided differing dates ranging from 1980 to 1995. The ALJ did not find that any of these established a specific date of onset of when Mr. Chubb first became totally disabled. While under 20 C.F.R. § 725.503 the date of filing is the default date of onset when a specific date of onset is not established by the evidence, the ALJ explained that because Mr. Chubb returned to work after the date of filing, pursuant to 20 C.F.R. § 725.503A(c) and Order of the Board, I must find that the date of the Claimant's last coal mine employment is the date for the commencement of benefits, unless credited medical evidence establishes that Claimant was not totally disabled at some point post retirement. I do not find credited medical evidence which establishes that the Claimant was not totally disabled after his retirement. Indeed, Dr. Lenyo opined that the Claimant was totally disabled prior to leaving coal mine employment. I must therefore use Mr. Chubb's last date of coal mine employment as the onset date.
Petitioner's App. at 55. The ALJ ordered benefits commencing on September 1, 1982, the month that Mr. Chubb retired.
Amax appealed and the BRB affirmed. The BRB noted that the ALJ had not merely relied on a head count of the testifying physicians, but had adequately explained his crediting and discrediting of the various physicians' opinions. The BRB also rejected Amax's arguments concerning any due process violation, noting that Amax had been timely notified of the claim and had been an active participant in all of the proceedings. On ...