Consolidation Coal Company v. James Sanati, Director, Office of Workers' Compensation Programs, United States Department of Labor
713 F.2d 480
4th Cir.
1983
Check Treatment

*2 pneumo- presumed is to have coal worker’s RUSSELL, Before WIDENER and evidence, “[ojther coniosis if medical includ- SPROUSE, Judges. Circuit ing the documented of es- exercising judgment, reasoned medical WIDENER, Judge: Circuit totally tablishes This is a review of a decision of the impairment.” admin- affirming Benefits Review Board an ALJ, however, The invoked judge’s lung istrative law award black solely physician’s tion on the basis one Lung to the Black Bene- pursuant benefits and opinion, reasoning that Act, seq. 901 et Because fits 30 U.S.C. § re- one alone reasoned applied wrong the ALJ and Board quires invocation evaluating the we standard in of, (a)(4) regardless of existence under remand the case for redetermination. must evi- weighing, contrary other and without benefits, lung claimant To receive black Board af- dence. The Benefits Review due must show that he is disabled determination.2 firmed ALJ’s pneumoconiosis out of coal mine that arose 20 See C.F.R. 727.- employment. §§ 727.203(a)(4) Invocation of the § aid in his (1982). 201-.202 To the claimant physi- on of one solely the basis sumption provide proof, regulations certain it opinion, weighing against without cian’s which, available, if his sumptions establish con- contrary opinions, other physicians’ entitlement benefits unless rebutted Califa- holdings Sharpless to our v. trary id. The is- employer. See 727-203. § no, (4th Cir.1978), Petry and 585 F.2d 664 whether, finding sue in this case is Cir.1978). Califano, (4th 577 F.2d 860 claimant, ALJ properly favor of the the similar Petry and involved Sharpless presumption under 727.- invoked the to coal disability of total due presumptions 203(a)(4). in 20 provided for pneumoconiosis worker’s ALJ, 410.414(b), respec- hearing 419.490(b) At a evidence and before C.F.R. §§ In cases we held that presented by tively. both the claimant and his both was Consistently Rep. (1981). Lung 1-487 pulmonary function Black that found The ALJ reasoning, to in- a divided Administra- with the ALJ’s insufficient were gas studies blood Stiner, weigh- rejected Appeals panel, 727.- provided §§ for in tive presumptions voke the determining specifically ing did whether of all the evidence (a)(3). He further 203(a)(2) and x-ray under conflicting invoke resolve not Rather, apply, Stiner 203(a)(4). held Id. 727.203(a)(1) at 1-490. did findings, that § so that biopsy. having no been there pul- totally disabling respiratory or is a there monary impairment invocation of order, relied the Board its decision Corp., presumption. Id. Mines Bethlehem upon Stiner v. part proving by including has burden the other claimant and contrary document- opinions. all the facts ed of the evidence preponderance regulations in terms re- quire presumption. to establish necessary “other evidence,” includ- 864; 667; ing F.2d at see Steadman the physician’s at F.2d opinion, must establish *3 999, 67 SEC, presence the 450 U.S. S.Ct. totally v. disabling respirato- ry require Our cases or (1981). pulmonary L.Ed.2d 69 impairment. It is the obli- weigh gation to all evi- tribunal of the administrative ALJ and the Board to as- necessary fact to estab- certain if to a such dence relevant is so established. Leaving deciding to aside for before invoke presumption lish a moment other evidence outside 667; the written opinions, when, 585 F.2d at the presumption. case, as in this there are in that in cases at least passing note three physicians’ at 863. We opinions, two of which presump- at least two of the other state there involving is no such totally 727.203(a) the disabling impairment Board itself tions set out in § and one of which states that is, that an ALJ must consider and there has held then it is the obligation of the competent and relevant evi- weigh all administrative tribunal to ascertain question the fact in whether or bearing on not dence the claimant has established presence to invoke the determining whether of the impairment by ponderance Ridge Justice v. Jewell sumptions. evidence, See of the and in so doing 1-547, Lung Rep. 1-550 to Corp., 3 Black consider Coal and weigh all three opinions.3 (x-rays); (1981) (§ 727.203(a)(1)) Strako The mere existence of one such opinion in Co., 1-136, Lung Rep. Black Zeigler Coal present circumstances here is insuffi- (§ 727.203(a)(2) (ventilatory cient (1981) to require 1-143 the invocation of the pre- tests)). sumption. question The presumption order repeat, being

To reviewed must be vacat- been en- ed a miner who has and the case provides remanded for action not for at least employment mine inconsistent gaged coal with this opinion. be be presumed will years VACATED AND REMANDED.4 if the fol- pneumoconiosis disabled due is met: requirement medical lowing evidence, including the

(4) Other medical SPROUSE, Circuit Judge, dissenting: exer- opinion of documented I respectfully dissent. judgment, estab- cising reasoned a totally presence lishes the The majority opinion misconstrues the impairment; scheme of proof stated explicitly in 20 727.203(a)(4). C.F.R. § 727.203. It is true this miscon- it was error for opinion We are struction only relates to the burden of pro- mere hold that ducing the Board to ALJ and evidence and the sequence in which opinion documented of one such existence evidence should be considered, but in of the required present the invocation case a correct application of the all the other considering without provided in 20 C.F.R. respect dissenting opinion, presumption.” 3. With to the we op. p. SI. 5. We do not quarrel proposition think that it is written with a different under- with the single opin- that a standing of the administrative decision than ion may of a be sufficient to invoke presumption. that which we hold. say What dowe is that one opinion dissenting such opinion propo- The is based on the of other and con- trary may require presump- sition that “the reasoned of a invoked, tion to be physician is weighing sufficient evidence to invoke the absent a of the opinion against presumption,” p. other evidence. The administrative which we review It follows that the respondent motion of the holds that “the of one such mere existence Sanati appeal to dismiss the is denied. opinion required invocation by ability preponderance of the evidence. affirmance an 203(a)(4) was the procedure This exact used of benefits. award Board’s approved by ALJ and majority held that the Board The ALJ cases, many procedural Board. re- is single physician quirement amounts little more than an invoke evidence to sufficient “minuet,” evidentiary once all the evi- for pneu- due to disability total in favor of tion introduced, dence the order in which disagreement majority’s moconiosis. parties it have makes little dif- introduced of their linchpin is the holding with that weighed It is not piecemeal, ference. all believe My opinion. colleagues its entirety. evidence,” contemplated “other then, Normally, my disagreement with weighed be 727.203(a)(4), must section *4 majority the would been over form of the min- have in favor preponderate must and substance, rather than no formal requiring be invoked. can presumption er before of expression majority’s dissent. The reso- mind, turns my approach In case, however, lution of the issue in this down, the clas- ignores and upside sumption at delays necessitates remand and least bur- between the distinction procedural sic the miner’s benefits previously awarded production. of and burden proof den of him. Mathews, Prokes Circuit The Sixth ex- Cir.1977), succinctly (6th F.2d The majority is correct intimating as for this difference rationale its pressed ventilatory evidence of studies or of blood claims: lung black applied to gas prior studies must be weighed to invok- proving has burden of The claimant ing presumptions provided in sections benefits, and the effect to his entitlement 727.203(a)(2) (3), and respectively. A re- assist him is to of of regulations view defining those effect, if this burden. carrying however, sumptions, buttresses the argu- met, 921(c)(4) are of requirements ment that it is require to a weigh- incorrect case prima out facie has made claimant of ing “other medical evidence” before in- and the bur- presumed pneumoconiosis, of voking the 727.203(a)(4) section presump- to the Secre- shifts going of forward den tion. requirements for establishing the under sufficient tary produce evidence presumption by presentation ventilatory of rebut section the same studies, gas studies, blood and “other medi- of a usual functions These are tion. cal evidence” are in 20 727.- stated C.F.R. § assist one hav- statutory presumption —to 203(a)(2)-(4). Those provide: sections and shift proof ing the burden (2) Ventilatory the pres- studies establish evidence to with going burden forward ence of a chronic or respiratory pulmo- party. the other nary disease ... by demonstrated Id. at [FEVi,MVV] values equal are to or which less than the values specified in [a table]. unquestionably case, Sanati instant In the (3) gas Blood which demonstrate studies total proving burden ultimate had an impairment in the his evidence presenting disability, lung transfer of oxygen from the alveoli he when favor his arose to the blood as values indicated [below documented favorable produced certain arterial pC02 levels]. “reasoned exercising aof (4) Other medical including incumbent it was point At judgment.” exer- in re- offer employer to upon cising judgment, estab- 20 C.F.R. provided buttal, lishes the presence of a must ALJ rebuttal, 203(b). After impair- or determine entire evidence weigh ment. ... dis- established has the claimant whether (2) (3) Subparagraphs explicitly re

quire ventilatory that all the gas blood

“studies” establish the presumption. Sub-

paragraph (4) equally explicit in defining

“the documented of a physician” as to invoke the presumption

sufficient that is our focus of decision. Nor is the suffi increment

ciency of medical evi statutory

dence to invoke a lung pre black

sumption concept. novel See Singleton v.

Califano, (6th 591 F.2d 383 Cir.1979); Hen Weinberger,

son v. (7th Cir.

1977); Mathews, Bozwich v. 558 F.2d 475

(8th Cir.1977). case, present In the

plain language regulation

the same conclusion. *5 Wicker,

Louise REBUCK Jack County, Nebraska, Appellants,

Otoe VOGEL, Jr., and

Arthur Atchison

County, Missouri, Appellees. 82-2113, 82-2156.

Nos. States Court of Appeals,

United

Eighth Circuit. 17, May

Submitted Aug.

Decided