John Fife v. Director, Office of Workers' Compensation Programs, United States Department of Labor

888 F.2d 365, 1989 U.S. App. LEXIS 13372, 1989 WL 126248
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 5, 1989
Docket88-4060
StatusPublished
Cited by13 cases

This text of 888 F.2d 365 (John Fife v. Director, Office of Workers' Compensation Programs, United States Department of Labor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Fife v. Director, Office of Workers' Compensation Programs, United States Department of Labor, 888 F.2d 365, 1989 U.S. App. LEXIS 13372, 1989 WL 126248 (6th Cir. 1989).

Opinion

PER CURIAM.

John Fife appeals from the decision of the Benefits Review Board (BRB) denying him black lung benefits. Fife alleges that he developed pneumoconiosis from thirty-two years work in the coal mines. Upon our review of the record, we affirm the decision of the Board.

I

Fife, who was born on September 21, 1912, first filed for social security disability benefits in 1971. In April 1978, after having been denied social security benefits several times, he elected to have the Department of Labor (DOL) review his claims under the Black Lung Benefits Reform Act of 1977. In November 1980, the DOL denied his application. In July 1983, Fife received his first hearing in front of an administrative law judge (AU), and in May 1984, the AU awarded Fife benefits, finding that the claimant had successfully established a claim under 20 C.F.R. Sec. 727.-203(a)(1).

The Director, however, subsequently appealed the grant of benefits to the BRB. In August 1986, the Board remanded the case back to the AU because it found that the AU had: (1) mistakenly stated that one x-ray reading was positive for pneumo-coniosis, when, in fact, it was negative; (2) incorrectly credited the report of one doctor over another on the basis of the film quality; and (3) and referred to one positive x-ray reading as having been done by a B-reader, when the reader had not yet been so certified.

By the time the case was remanded, the original AU had left his position, and a new AU was assigned to the case. In February 1987, the new AU issued a decision denying benefits. Fife appealed to the Board, which affirmed the AU’s decision. This appeal followed.

The medical evidence presented consists of three chest x-rays that have been interpreted seven times and five medical examinations. The first x-ray, dated July 8, 1971, was read three times, with two readings (Drs. Stallworth and Whittelsey) being negative for pneumoconiosis. The positive interpretation was made by an unidentified doctor. The second x-ray, dated July 28, 1977, was read as positive for pneumoco-nionsis by Dr. William Swann. Swann’s *367 qualifications were not in the record at the time of the reading. This x-ray was read negatively by Dr. D.R. Brodie. 1 His qualifications were also not in the record at the time of review. The last x-ray was taken on December 12, 1980. It was read as positive by Dr. Sheldon Domm and negative by Dr. W.S. Cole. Cole, however, is a board-certified radiologist and a B-reader.

The first physical examination was done in May 1971 by Dr. Thomas Lomasney at a hospital in Knoxville, Tenn. Lomasney diagnosed diaphragmatic hiatus hernia and gastroresophageal reflux with aspiration bronchitis. He made no finding of pneumo-coniosis. The second recorded examination was done by Dr. S.G. McNeeley in February 1973. McNeeley, Fife’s treating physician since 1970, found that Fife suffered from a shortness of breath and that he could not work in the mines due to his respiratory problems, which included a cough. McNeeley concluded that he could not determine if Fife’s disability resulted from black lung or from aspiration bronchitis.

The third examination, accompanied by x-rays and pulmonary function studies, was performed by Dr. Sheldon Domm. Domm found that the x-rays and pulomonary functions studies indicated the presence of pneumoconiosis. A DOL consulting physician named Dr. Burki, however, later found, in reviewing the written record of the studies, that the tests were improperly performed. Burki concluded that the poor performance was due primarily to the claimant’s lack of effort. Domm found Fife’s lungs clear. He concluded that the claimant suffered from a moderately severe respiratory impairment that “would prevent engaging in strenuous labor— would not prevent engaging in light work.”

The final examinations were performed by Dr. Swann in July 1977 and July 1980. Swann concluded after the first examination that Fife suffered from black lung with a minimal impairment, but recorded no abnormal findings. In 1980, after doing a blood gas study, Swann, while concluding that the claimant suffered from dyspnea, diagnosed chronic bronchitis by history.

At his hearings, Fife testified that he began working in the coal mines in 1937. He worked in underground mines until 1955, and from 1955 until his retirement in 1969, he worked above ground. Fife testified that he has trouble breathing and suffers from coughing spells. His daughter confirmed these symptoms and testified that Fife could walk only a quarter mile on level ground and could not climb hills.

The ALJ, on remand, found that the claimant could not successfully invoke the interim presumption under Sec. 727.-203(a)(1) because the x-ray evidence as a whole did not indicate that the claimant suffered from pneumoconiosis. The ALJ also found that the claimant could not invoke the presumption under Sec. 727.-203(a)(4) even though the claimant presented a medical report, that of Dr. Domm, that indicated he could not do his former coal mine work. The AU rejected that report because he found it to be unreliable. The AU also found that none of the examining doctors stated that the claimant suffered from a respiratory ailment and that more recent reports did not find that Fife was disabled. Finally, the AU found that the claimant could not invoke the presumption under Part 410 of the regulations because he presented no proof of disabling pneumo-coniosis.

II

The decision of an AU concerning the grant of black lung benefits must be upheld if is supported by substantial evidence, even if the reviewing court disagrees with the AU’s factual findings. Engle v. Director, O.W.C.P., 792 F.2d 63, 64 (6th Cir.1986). “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, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The reviewing court affords the same review to the decision of the AU as does the BRB. Warman v. *368 Pittsburg & Midway Coal Min. Co., 839 F.2d 257, 261 (6th Cir.1988).

III

Fife first argues that the AU erred in finding that he could not invoke the interim presumption favoring a disability finding contained in Sec. 727.203(a)(1). This presumption is invoked when the preponderance of the x-ray evidence in the record establishes the presence of pneumoconiosis. Mullins Coal Co v. Director, O.W.C.P., 484 U.S. 135, 108 S.Ct. 427, 431, 98 L.Ed.2d 450 (1987). The AU found that the claimant could not invoke the presumption because the record showed that out of the seven x-ray readings, four were negative, and, of the three positive readings, none was by a B-reader. In addition, the two most recent x-rays were interpreted as negative by B-readers.

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Bluebook (online)
888 F.2d 365, 1989 U.S. App. LEXIS 13372, 1989 WL 126248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-fife-v-director-office-of-workers-compensation-programs-united-ca6-1989.