Smith v. Jewell Smokeless Coal Corp.

9 F. App'x 140
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 15, 2001
Docket00-1721
StatusUnpublished

This text of 9 F. App'x 140 (Smith v. Jewell Smokeless Coal Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Jewell Smokeless Coal Corp., 9 F. App'x 140 (4th Cir. 2001).

Opinion

OPINION

PER CURIAM.

John D. Smith, Jr., a former coal miner with eight years service in the mines, seeks review of the Benefits Review Board’s (BRB) decision and order affirming the administrative law judge’s (ALJ) denial of black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 2000). Because we conclude that the BRB’s decision is supported by substantial evidence, we affirm.

As explained in more detail below, this proceeding has an extensive administrative history. The ALJ initially assigned to the case concluded that Smith was entitled to benefits. On appeal by the employer, Jewell Smokeless, the BRB vacated the ALJ’s conclusion that Smith was totally disabled and remanded the case to permit the ALJ to reweigh the medical evidence. On remand, the matter was assigned to a second ALJ. The second ALJ concluded that Smith was not disabled. On Smith’s appeal, the BRB again remanded. On this remand, the second ALJ again concluded that Smith was not disabled. Smith again appealed to the BRB. The BRB reversed the denial of benefits. Jewell Smokeless then requested reconsideration. Upon reconsideration, the BRB vacated its decision and remanded yet again for further review of the medical evidence. On this remand, the case was assigned to a third ALJ. This ALJ concluded that Smith was not disabled. Once more, Smith appealed and, on this occasion, the BRB affirmed the ALJ’s denial of benefits. This petition for review followed.

An understanding of the issues raised by Smith’s petition for review requires a more complete explanation of the substance of the medical evidence and the legal issues raised at the various administrative proceedings.

Smith filed his claim for benefits in July 1985, and after the Department of Labor denied the claim, it was assigned to an ALJ. The ALJ conducted a hearing on September 29, 1988. At the hearing, the ALJ received exhibits that included the results of several medical evaluations of Mr. Smith conducted between 1974 and the date of the hearing. Mr. Smith also testified at the hearing.

*142 The ALJ found that the chest x-ray-evidence demonstrated that Smith suffers from pneumoconiosis, and that Smith’s pneumoconiosis arose out of his coal mine employment. In considering whether the evidence supported a finding that Smith was totally disabled, the ALJ reviewed six pulmonary function tests and nine blood gas studies. He determined that this evidence was not sufficient to demonstrate total disability, nor was there any evidence that Smith suffered from cor pulmonale with right sided congestive heart failure. The ALJ then considered the medical opinion evidence regarding total disability, consisting of reports from several doctors who treated Smith.

Doctor McVey treated Smith for various medical conditions, including pulmonary and respiratory problems. Dr. Hansen diagnosed Smith as suffering from pneumoconiosis, with other pulmonary problems including emphysema and chronic bronchitis. Dr. Waugh conducted a cardiac catherization on Smith and determined that his recurrent chest pain was not of cardiac origin. None of these doctors, however, expressed any opinion regarding disability. Accordingly, the ALJ did not consider their views in determining whether Smith was totally disabled.

Dr. Karpynec conducted a neurological examination of Smith to evaluate chest pain, low back pain, and pain of the lower extremities. He opined that Smith was unable to perform his duties as a coal miner due to multi-level degenerative disease of the spine and “underlying pulmonary disease which is also a contributing factor,” but did not specify the nature or impact of this pulmonary disease. The ALJ did not consider this opinion.

Dr. Byers, who is board certified in internal medicine and pulmonary medicine, examined Smith in 1986 on behalf of the employer. He was also deposed prior to the hearing. Dr. Byers noted a smoking history of one and one-half packs per day for forty-five years, and one-half pack per day at the time of the examination. In his report, Dr. Byers also noted a history of exposure to asbestos starting in 1954, which is consistent with Smith’s employment history. At the hearing conducted by the first ALJ, however, Smith denied that he had ever been exposed to asbestos, or that he had related a history of exposure to Dr. Byers. Dr. Byers’ examination noted that breath sounds were clear at rest, and that a forced expiratory maneuver revealed a moderate large airway wheeze without significant prolongation. Pulmonary function testing conducted in conjunction with the examination suggested a mild restrictive ventilatory defect, with improvement after administration of bronchodilators, indicating a reversible obstructive airway disease. Arterial blood gas testing indicated mild hypoxemia, with a carboxy hemoglobin level in the toxic range.

Dr. Byers stated that the carboxy hemoglobin level indicated significant recent inhalation of toxic fumes, which he attributed to Smith’s “heavy chronic tobacco abuse.” This level indicated that Smith’s cardiac and respiratory workload was increased by twenty to twenty-five percent as a result of impaired ability of the blood to transport oxygen. Dr. Byers interpreted a chest x-ray taken in his office as consistent with pulmonary fibrosis that could result from asbestosis. The x-ray was not consistent with pneumoconiosis. Dr. Byers concluded that Smith suffered a mild respiratory impairment resulting from a mild restrictive ventilatory pattern and a possible mild obstructive process, neither of which would be considered disabling, or prevent Smith from performing his last employment. Dr. Byers also noted a significant asbestos exposure and x-ray *143 pattern consistent with asbestosis. Finally, Dr. Byers found no evidence of coal worker’s pneumoconiosis.

Dr. Garzón, who is board certified in internal medicine, examined several medical reports and test results, excluding the four most recent x-rays, in February 1988. Dr. Garzón concluded that there was no medical evidence of a totally disabling chronic respiratory impairment arising out of coal mine employment. From a pulmonary and respiratory standpoint, Smith was capable of returning to his former employment in coal mining. Finally, he stated that there was no convincing evidence of coal worker’s pneumoconiosis, but the x-rays suggested asbestosis.

Dr. Robinette, who is board certified in internal medicine and pulmonary medicine, examined Smith in September 1988. Dr. Robinette noted at least a fifty pack year history of smoking cigarettes. On examination he noted diminished breath sounds with diffuse wheezes and prolongation of the expiratory phase. He evaluated a chest x-ray as showing mild diffuse interstitial fibrosis and scattered opacities consistent with pneumoconiosis. He noted that there was no evidence of pleural calcification or changes indicating pulmonary asbestosis. Pulmonary function studies showed a decreased FVC, normal total lung capacity, and markedly increased diffusion capacity; blood gas studies showed a normal carbon dioxide level and decreased oxygen level. These results were compatible with moderately severe obstructive pulmonary disease, without significant response to bronchodilator therapy.

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Bluebook (online)
9 F. App'x 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-jewell-smokeless-coal-corp-ca4-2001.