Junior J. SHELTON, Petitioner, v. OLD BEN COAL COMPANY and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
No. 90-1941.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 19, 1990. Decided May 21, 1991.
Steven D. Breeskin, Elizabeth Hopkins, Dept. of Labor, Office of the Solicitor, Carla Chapman, Benefits Review Bd., Dept. of Labor, Washington, D.C., Paul Frieden, Dept. of Labor, Black Lung Div., Mark E. Solomons, Arter & Hadden, Washington, D.C., Steven L. Crow, Cleveland, Ohio, for respondents.
Before POSNER, COFFEY, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
This is a petition by the claimant, Junior Shelton, to review a decision by the Benefits Review Board (BRB) affirming the denial of black lung benefits. Mr. Shelton is asking this court to remand this case on two grounds: 1) that the Administrative Law Judge (ALJ) erred in his consideration of the medical evidence by finding that1
I
BACKGROUND
Junior Shelton worked for Old Ben Coal Company for 38 years, first as a coal miner, then, for the last 13 years, as a mine examiner. He was a pack-a-day cigarette smoker from 1941 to 1985 and has been a half-pack smoker since that date. He has been diagnosed as having several physical problems in addition to pneumoconiosis. He is obese and has hypertension, chronic bronchitis, and angina pectoris. He applied for benefits in September 1984. He retired on January 2, 1985, at the age of 62. He worked on the first two days of 1985 specifically to obtain extra retirement benefits. He has not worked since.
II
ANALYSIS
The regulations that govern this case are found in
The ALJ found that Mr. Shelton suffers from pneumoconiosis. See
On appeal to the BRB, Mr. Shelton contested the ALJ‘s conclusions regarding total disability. Mr. Shelton raised two arguments before the BRB: 1) that the ALJ erred in finding that none of the blood gas studies produced qualifying values; and 2) that the ALJ erred in disregarding the inference of total disability in the medical assessment of Dr. Rango Rao. The BRB admitted that the ALJ erred in interpreting the blood gas studies and in not considering Dr. Rao‘s report as evidence of total disability. Despite the infirmities in the ALJ‘s analysis, however, the Board affirmed the denial of benefits. The BRB concluded that, because the causal link between Mr. Shelton‘s total disability and his pneumoconiosis could not be established on the record in this case, the ALJ‘s errors were harmless.
Mr. Shelton moved for reconsideration. He argued that the Board applied the wrong standard of causation. In its order and motion for reconsideration, the BRB, noting that Wilburn v. Director, OWCP, 11 BLR 1-135 (1988) had not been overruled in the Seventh Circuit, as it had been in other circuits,2 found that Mr. Shelton‘s pneumoconiosis was not “in and of itself” totally disabling.
A. Standard of Review
Although this appeal comes to this court from the Benefits Review Board, in reviewing the denial of black lung benefits, this court must evaluate the ALJ‘S judgment, not the Board‘s. Collins v. Old Ben Coal Co., 861 F.2d 481, 486 (7th Cir. 1988). We must determine whether the ALJ‘s decision is rational, is supported by substantial evidence, and is consistent with the law. Migliorini v. Director, OWCP, 898 F.2d 1292, 1294 (7th Cir. 1990). Although we must review the entire record, we may not redetermine the facts or substitute our judgment for the ALJ‘s. Freeman United Coal Mining Co. v. Benefits Review Board, 919 F.2d 451, 452 (7th Cir. 1990). Our review of questions of law, however, is de novo. Director, OWCP v. Midland Coal Co., 855 F.2d 509, 511 (7th Cir. 1988). “The Review Board has the identical scope of review when sitting as an appellate panel reviewing decisions of the ALJ.” Zettler v. Director, OWCP, 886 F.2d 831, 834 (7th Cir. 1989) (per curiam). Our review of the Board‘s decision is limited to whether the Board adhered to its scope of review and to whether the Board committed an error of law. Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589-90 (7th Cir. 1985).
B. Total Disability
To prove total disability, Mr. Shelton must show that his pneumoconiosis prevents him from performing his usual coal mine work and from engaging in gainful employment that requires comparable skills in the immediate area of his residence.
On appeal to the BRB, Mr. Shelton argued that the ALJ erred in interpreting the evidence. First, Mr. Shelton argued that the ALJ misinterpreted the results of the arterial blood gas studies. While admitting that the exercise blood gas studies from
The respondents argue that any error committed by the ALJ was harmless and that the medical evidence indicates that the ALJ would have arrived at the same decision in any case. First, they point out that the job of a mine examiner is not very physically demanding. Regarding the blood gas studies, they note medical evi-
dence that indicates that Mr. Shelton‘s blood gas exchange improved with exercise, which negates an inference of total disability. Regarding Dr. Rao‘s report, they contend that his report is not evidence of total disability because it did not provide an explanation of his findings on the form4 and because it significantly understates Mr. Shelton‘s smoking record as having been ten years. Moreover, none of the other five doctors whose reports the ALJ considered expressly found total disability due to pneumoconiosis. On the contrary, three doctors explicitly stated that Mr. Shelton was not totally disabled by his impairments.
“It is the ALJ‘s duty to consider all of the evidence and make findings of fact and conclusions of law which adequately set forth the factual and legal basis for his decision.” Director, OWCP v. Rowe, 710 F.2d 251, 254-55 (6th Cir. 1983). An ALJ must consider all relevant medical evidence and may not disregard the medical conclusions of a qualified doctor. Pancake v. AMAX Coal Co., 858 F.2d 1250, 1255 (7th Cir. 1988). Furthermore, the ALJ must consider the nature of the claimant‘s coal mine work. Then he must compare the evidence of exertional requirements of the work with the medical opinions regarding the claimant‘s work capability. Poole, 897 F.2d at 894. This court may neither fill in the gaps in the ALJ‘s reasoning, id. at 895, nor decide the facts anew, Zettler, 886 F.2d at 834, as respondents ask us to do. “[W]eighing conflicting medical evidence is precisely the function of the ALJ as fact-finder.” Poole, 897 F.2d at 895.
In sum, the ALJ committed a number of errors. He failed to make a specific finding of whether Mr. Shelton‘s pneumoconiosis arose out of his coal mine employment. More fundamentally, in analyzing
C. Causation
While acknowledging that the ALJ erred, the BRB excused the ALJ‘s errors as harmless because Mr. Shelton had not proved causation under the “in and of itself” standard enunciated in Wilburn v. Director, OWCP, 11 BLR 1-135 (1988). However, this standard was overruled by this circuit‘s recent decision in Shelton v. Director, OWCP, 899 F.2d 690 (7th Cir. 1990) in favor of a “necessary condition” standard. We cannot as easily excuse the ALJ‘s errors as harmless given the fact that they were compounded by the BRB‘s reliance on an incorrect legal standard.
The proper causation standard requires “that black lung disease be a necessary, though it need not be a sufficient, condition of the miner‘s total disability.” Shelton, 899 F.2d at 693. In other words, Mr. Shelton must prove that but for his pneumoconiosis he would not be totally disabled. Hawkins v. Director, OWCP, 907 F.2d 697, 701 (7th Cir. 1990).5 The ALJ did not discuss the causation issue nor make any findings of fact regarding causation. Whether Mr. Shelton has met his burden of showing causation requires an examination of the same evidence that the ALJ must consider in determining total disability.
The only medical evidence that links Mr. Shelton‘s pneumoconiosis with total disability is Dr. Rao‘s report.6 His report does not state specifically that pneumoconiosis
is a necessary condition of Mr. Shelton‘s total disability—causation must be inferred from his medical assessment. On one page, Dr. Rao listed Mr. Shelton‘s physical limitations that may be the result of pulmonary disease. On the next page, he listed Mr. Shelton‘s cardiopulmonary problems as due to hypertension, angina pectoris, and pneumoconiosis.7 The BRB found that listing one of the cardiopulmonary problems as pneumoconiosis was insufficient to establish the requisite causal relationship between the disability and pneumoconiosis under the Wilburn standard. Under the “necessary condition” standard, however, Dr. Rao‘s report can be read as showing that Mr. Shelton‘s total disability results from a combination of pneumoconiosis, angina pectoris, and hypertension. See Adams v. Director, OWCP, 886 F.2d 818, 826 (6th Cir. 1989) (under simple contributing cause standard, where pneumoconiosis is one of a combination of medical problems that cause the disability, the burden of proof is satisfied). Because the physical limitations were listed under those that may be due to pulmonary disease, pneumoconiosis can be viewed as a necessary condition of those limitations. On this record, we cannot say, as a matter of law, that the requisite causation could not be established upon an assessment of all the evidence. Whether a causal link can be established under the “necessary condition” standard therefore requires a weighing of all the evidence by the ALJ. We emphasize that we express no opinion with regard to the outcome.
CONCLUSION
The ALJ failed to make a finding of whether Mr. Shelton‘s pneumoconiosis
We cannot say, as a matter of law, that the ALJ would not have found total disability even considering all of the evidence. Nor can we say, as a matter of law, that, had the ALJ found total disability, the necessary causal link between Mr. Shelton‘s pneumoconiosis and his total disability still could not have been established. Therefore, we vacate the BRB‘s decision and remand this case to the ALJ for a determination of total disability and a finding of whether Mr. Shelton‘s pneumoconiosis arose out of his coal mine employment. If the ALJ finds that these requirements for entitlement to benefits have been shown, he should then determine whether the causal link exists between Mr. Shelton‘s pneumoconiosis and his total disability using the correct legal standard.
VACATED AND REMANDED
COFFEY, Circuit Judge, dissenting.
In remanding this case to the ALJ, the majority has required the application of the “contributing cause” or “necessary condition” standard established in this court‘s decisions in Shelton v. Director, OWCP, 899 F.2d 690 (7th Cir. 1990) and Hawkins v. Director, OWCP, 907 F.2d 697 (7th Cir. 1990). For reasons more fully discussed in my Compton concurrence, Compton v. Inland Steel Coal Co., 933 F.2d 477 (7th Cir. 1991) (Coffey, J., concurring), I am convinced that the all-inclusive Shelton-Hawkins standard is inconsistent with Congress’ clear intent that a miner establish that his total disability was primarily due to pneumoconiosis. See also Collins v. Director, OWCP, 932 F.2d 1191 (7th Cir. 1991) (Coffey, J., concurring). Rather, I believe that a miner should be required to demonstrate that pneumoconiosis constituted at least 51 percent of the cause of his total disability, as this standard implements Congress’ intent that only those who suffered from a medically documented pneumoconiosis-caused total disability should recover black lung benefits. See
The facts in the case before us illustrate the permissive and ambiguous nature of the Shelton-Hawkins “necessary condition” or “contributing cause” standard of causation, as it permits the ALJ to find disability “due to” pneumoconiosis in a case where the majority states, in regard to the only medical evidence of causation, “Dr. Rao‘s report can be read as showing that. Mr. Shelton‘s total disability results from a combination of pneumoconiosis, angina pectoris, and hypertension,” Majority Opinion at 508, without any percentage of causation noted. In contrast, the objective “percentage” standard would clearly prevent Shelton from receiving benefits on the basis of Dr. Rao‘s unquantified report. Adopting such an objective standard would lead to consistent treatment of applicants as well as to stability of the Black Lung Benefits Trust Fund. Thus, on the basis of the record made before the ALJ, I would hold as a matter of law that Shelton‘s failure to demonstrate that his purported total disability was “due to” pneumoconiosis renders harmless any alleged error in the ALJ‘s consideration of whether Shelton was totally disabled. The ALJ‘s rejection of Shelton‘s claim should be affirmed.
Fred M. NEWELL, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Freeman United Coal Mining Company, Respondents.
No. 90-2181.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 19, 1990. Decided May 22, 1991.
Harold B. Culley, Jr., Raleigh, Ill., for petitioner.
Jay D. Stein, Gould & Ratner, Chicago, Ill., for respondent Freeman United Coal Min. Co.
Barbara J. Johnson, Dept. of Labor, Appellate Litigation, Donald S. Shire, Sol. Gen., Steven D. Breeskin, Elizabeth Hopkins, Dept. of Labor, Office of the Sol., Washington, D.C., Louis R. Hegeman, Kathryn S. Mueller, Gould & Ratner, John H.