John Starchevich v. Director, Owcp, U.S. Department of Labor

873 F.2d 197, 1989 WL 38762

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 31, 1989
• Docket: 87-1838
• Status: Published

Opinions

JOHN R. GIBSON, Circuit Judge.

John Starchevich appeals from an order of the Benefits Review Board of the United States Department of Labor, which affirmed a decision by an Administrative Law Judge (AU) denying benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. For reversal Starchevich contends that the AU erroneously considered a rereading of an x-ray, in violation of 30 U.S. C. § 923(b) and 20 C.F.R. § 727.206(b)(1), that the AU improperly rejected the opinion of a doctor offering favorable evidence, and that the AU’s findings are not supported by the evidence as a whole. We affirm the Board’s decision.

Starchevich, who had worked for over 10 years as a coal miner, applied for benefits in May of 1978. The Department of Labor denied his claim on March 29,1979, provoking a number of formal hearings. The last formal hearing, upon which this appeal is based, occurred on April 26,1983. Starche-vich’s evidence included a chest x-ray that had been initially interpreted to indicate lung damage, but was subsequently reread and discredited by another doctor, and the opinion of Dr. L. K. Rasmussen, who diagnosed Starchevich as suffering from disabling lung disease brought about by his coal mining employment. The AU was not persuaded by this evidence, however, and ruled that Starchevich was not presumptively entitled to benefits under 20 C.F.R. (a).¹ The AU also found that Starchevich could not establish a totally disabling impairment, as described by 20 C.F.R. Part 410, and therefore denied the entire benefits claim. The Benefits Review Board affirmed the AU’s decision, and this appeal followed.

Starchevich first argues that the AU erred in allowing the April 9, 1980 x-ray interpreted as showing lung damage to be reread. He believes that 30 U.S.C. § 923(b) and 20 C.F.R. § 727.206(b)(1)² prohibit the rereading in this situation. The government agrees that the initial reading was done by a board certified radiologist, that applicable quality standards were met, and that the claim has not been fraudulently presented. It argues, however, that Starchevich did not produce sufficient “other evidence” to activate section 727.-206(b)(l)’s rereading prohibition.

The government relies on Auxier v. Director, Office of Workers’ Compensation Programs, 4 Black Lung Rep. (MB) 1-717 (1982), in which the Board interpreted section 727.206(b)(l)’s requirements for other evidence. The Board there decided “that the prohibition is activated by any significant and measurable level of respiratory or pulmonary impairment.” Id. at 1-721. Starchevich argues that this interpretation is unduly restrictive, but we are not persuaded. Administrative agencies are allowed deference when interpreting their own governing statute, unless those interpretations are unreasonable. See Clay v. Director, Office of Workers’ Compensation Programs, 748 F.2d 501, 502 (8th Cir. 1984); see also Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Board’s reading of the statute in Auxier tracks, with both explicit language and legislative history, see Auxier, 4 Black Lung Rep. (MB) at 1-722, and we cannot say that it is unreasonable.

Thus, Starchevich’s argument is reduced to the question of whether the AU improperly concluded that no other evidence existed of significant or measurable lung impairment. The AU’s findings of fact must also be given deference, unless they are clearly erroneous or not supported by the record as a whole. See Phillips v. Director, Office of Workers’ Compensation Programs, 768 F.2d 982, 984 (8th Cir.1985); Newman v. Director, Office of Workers’ Compensation Programs, 745 F.2d 1162, 1164 (8th Cir.1984) (per curiam); 33 U.S.C. § 921(b)(3) (1982); 20 C.F.R. § 802.301 (1988). Although Starchevich did present some evidence of impairment, the government produced rebuttal evidence demonstrating that no impairment was present. We therefore hold that the AU’s decision to credit the government’s evidence over Starchevich’s was not clearly erroneous and was supported by the record.

Starchevich also argues that the AU improperly refused to consider the opinion of Dr. Rasmussen, who found lung impairment. The government offered the opinion of Dr. Roger Mitchell, Jr., however, which directly contradicted Dr. Rasmussen’s testimony. The AU explicitly relied on Dr. Mitchell’s superior expertise, and this reliance was not clearly erroneous. Finally, Starchevich argues that the denial of benefits was not supported by the record as a whole. As we have already stated, the government supplied an extensive amount of evidence, which was sufficient to support the decision. We therefore affirm the decision of the Benefits Review Board.

1 . Persons who have previously worked in coal mines for at least ten years are presumptively entitled to benefits if any one of the following conditions is met:

(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumo-coniosis * * *

(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease

(3) Blood gas studies [demonstrate] the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood * * *

(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment * * *

20 C.F.R. § 727.203(a) (1988).

2 . 20 C.F.R. § 727.206(b)(1), the implementing regulation for the relevant portion of 30 U.S.C. § 923(b), states:

In all claims where there is other evidence of a pulmonary or respiratory impairment, a board-certified or board-eligible radiologist’s interpretation of a chest X-ray shall be accepted by the Office if the X-ray is in compliance with the requirements of § 410.428(b) of this title and if such X-ray has been taken by a radiologist or qualified radiologic technologist or technician and there is no evidence that the claimant has been fraudulently represented.