PEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners, v. Verna L. SHONK (Widow of Lewis Shonk) and Director, Office of Workers’ Compensation Programs, Respondents.
No. 88-2519.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 19, 1989. Decided June 29, 1990.
906 F.2d 264
Robert C. Price, Price & Runnels, Bloomington, Ind., for Verna L. Shonk.
Carla Chapman, Benefits Review Bd., Dept. of Labor, Sylvia T. Kaser, Marta Kusic, Dept. of Labor, Black Lung Div., Washington, D.C., for Office of Workers’ Compensation Programs.
Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
Peabody Coal Company and Old Republic Insurance Company (collectively, “Peabody“) petition this court for review of a final decision of the Department of Labor‘s Benefits Review Board (“Board“), affirming an award of black lung benefits to the widow of a miner once employed by Peabody.
I
BACKGROUND
Mr. Shonk (whose widow, Verna L. Shonk, is a respondent in this case) worked in a strip coal mine pit for seventeen years, loading coal onto trucks for shipment. The miner later worked for Peabody for nine years, retiring from his last job as a laborer in the coal mine‘s garage when he reached the age of sixty-five on March 31, 1977.
Mr. Shonk applied for black lung benefits on May 19, 1977. His claim apparently was denied preliminarily on November 28, 1978. Mr. Shonk died on August 19, 1980 from a rupture of an aneurysm in his abdominal aorta. The autopsy report disclosed anthracosis in the miner‘s lungs.1 Thereafter, Mrs. Shonk applied for survivor‘s benefits. A claims examiner informed Peabody on November 12, 1980 that she initially found Peabody liable to pay Mrs. Shonk black lung benefits based on Mr. Shonk‘s claim. Peabody timely controverted the initial finding.
In July of 1981, a deputy commissioner in the Office of Workers’ Compensation Programs (“OWCP,” the second respondent in this case) determined that Mrs. Shonk was entitled to benefits based on her husband‘s claim. Peabody timely requested a de novo review by an administrative law judge (ALJ). ALJ Robert L. Hillyard examined the autopsy report and deposition testimony of Dr. Anil Sarkar; Mrs. Shonk‘s deposition testimony; the deposition of Dr. R. Joe Noble, a cardiologist who had examined Mr. Shonk while he was alive; the deposition testimony of two physicians—Dr. Richard M. Nay, a cardiologist, and Dr. Edwin E. Pontius, a board-certified pathologist—both retained by Peabody; and Mr. Shonk‘s medical records.
ALJ Hillyard invoked the interim presumption of total disability due to pneumoconiosis pursuant to
By the time the Board reviewed the claim, this court had decided Wetherill v. Director, OWCP, 812 F.2d 376 (7th Cir.1987), where, in dicta, the court noted that the Board‘s previous interpretation of (b)(2) rebuttal “seems contrary to [the regulation‘s] plain language and therefore erroneous.” Id. at 379. The Board followed this reasoning and determined that “the evidence must demonstrate the absence of any impairment” to rebut under (b)(2). The Board affirmed the ALJ‘s finding that the evidence was equivocal as to total disability and also held that Peabody had waived rebuttal under
II
ANALYSIS
Although Peabody seeks review of the Board‘s decision, “our task is to review the judgment of the ALJ, which was upheld by the Board.” Collins v. Old Ben Coal Co., 861 F.2d 481, 486 (7th Cir.1988) (citing Dotson v. Peabody Coal Co., 846 F.2d 1134, 1137 (7th Cir.1988)). Our initial inquiry is whether the ALJ‘s decision was rational, supported by substantial evidence, and not contrary to law. See
A. Invocation of the Interim Presumption
First, Peabody contends that the ALJ improperly invoked the interim presumption of total disability pursuant to
Peabody argues that “as a matter of law, there is no autopsy evidence of record that Mr. Shonk had pneumoconiosis,” and that the ALJ should not have invoked the presumption because, despite what
The employer on appeal in this court cites medical testimony presented in hearings conducted preliminarily to the promulgation of Department of Labor rules to the effect that anthracosis consists only of a discoloring pigmentation of the lung and is not an impairment. The regulatory definition of pneumoconiosis, however, is not so restricted.
895 F.2d 130, 132 (4th Cir.1989).4
The statute broadly defines “pneumoconiosis” as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.”
Peabody next argues that the interim presumption should not have been invoked because Dr. Sarkar‘s autopsy and deposition testimony indicate that he used the term only to describe pigmentation in Mr. Shonk‘s lungs. Peabody attempts to establish that Mr. Shonk only had black pigmentation and no disease in his lungs. The legitimacy of this argument is questionable.6 Nonetheless, we disagree with Peabody‘s characterization of Dr. Sarkar‘s report and deposition. The pathologist included anthracosis in the section of his autopsy report labeled “Final Pathological Diagnosis.” A diagnosis is more than a description; it is the identification of a disease or injury. Moreover, in deposing Dr. Sarkar, Peabody‘s attorney asked the physician three times whether he meant “more than” simply black pigment when he used the term “anthracosis.” The physician responded twice by describing a disease process by which anthracotic pigment causes a reaction which in turn causes fibrosis7 and destruction of the miner‘s useful lung tissue.8 Dr. Sarkar opined that the lungs were, indeed, diseased, and that the disease was caused by the miner‘s exposure to coal dust. The physician observed that the level of lung impairment resulting from anthracosis would depend on “how much of the functioning lung tissue [was] disorganized into anthracosis.” These statements illustrate Dr. Sarkar‘s overall opinion that the lungs were diseased and support the contention that he used the word “anthracosis” as descriptive of disease.
Moreover, Peabody‘s physicians did not dispute Dr. Sarkar‘s observation that Mr. Shonk‘s lungs contained brownish/black pigment, or his additional findings of pleural thickening or scarring, bullous emphysema, and fibrosis. Thus, the doctors concurred in the physical finding of anthracosis, and the ALJ did not have opposing opinions to weigh.
In sum, the ALJ considered the opinions of three physicians. The Company‘s doctors urged that anthracosis is not a disease, but disputed only Dr. Sarkar‘s interpretation of his findings rather than the actual physical findings. Dr. Sarkar performed the autopsy and was the only physician who viewed the lungs in their entirety. He diagnosed the disease anthracosis and believed that the anthracosis in Mr. Shonk‘s lungs was caused by exposure to coal dust. The ALJ chose to give more weight to the opinion of the physician who performed the autopsy; this was permissible. Simila v. Bethlehem Mines Corp., 7 BLR 1-535, 1-539 (Ben.Rev.Bd.1985). The ALJ also noted, as an additional reason for crediting Dr. Sarkar‘s opinion, that autopsy evidence is accorded more probative value than x-ray evidence in establishing the existence of pneumoconiosis. See Fetterman v. Director, OWCP, 7 BLR 1-688, 1-691 (Ben.Rev.Bd.1985). The weighing of expert opinions is the province of the ALJ, not this court. Migliorini v. Director, OWCP, 898 F.2d 1292, 1296 (7th Cir.1990); Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir.1988). We will not disturb the ALJ‘s credibility determination.
Congress intended the Act to cover many different lung diseases. The ALJ‘s decision that anthracosis is equivalent to pneumoconiosis comports with law, is rational, and is supported by substantial evidence. The ALJ properly invoked the interim presumption under
B. Failure to Rebut
When the interim presumption is invoked, the miner is considered 1) totally disabled 2) due to pneumoconiosis 3) that arose from his coal mine employment. Generally stated, the three factors presumed are disability, disease, and causation. Once the interim presumption is established under
In Wetherill v. Director, OWCP, we noted that the proper inquiry under
Peabody argued, and continues to argue, that arteriosclerotic heart disease alone caused congestive heart failure, which resulted in Mr. Shonk‘s symptom of extreme dyspnea and his three hospitalizations. The heart disease admittedly was unrelated to Mr. Shonk‘s coal mine employment. Peabody further contends that, even if Mr. Shonk had some pulmonary disease, such as fibrosis or emphysema (which its doctors conceded), the lung disease itself did not impair him; that is, the disease would not have rendered him totally disabled to do his usual coal mine work.
Peabody first points to the fact that Mr. Shonk denied having any respiratory symptoms on his application for black lung benefits, and that, three months after his retirement, Mr. Shonk told Dr. Lenyo that he retired due to his age, not a lung impairment. However, Mr. Shonk did claim to have had a significant sputum-producing cough for four to five years prior to his retirement and shortness of breath upon walking one city block or a flight of stairs, when Dr. Lenyo examined him. Dr. Lenyo diagnosed “chronic bronchitis and mild pulmonary emphysema (sic)” related to coal dust exposure. He also recited Mr. Shonk‘s “difficulty” lifting and climbing.
Peabody emphasizes that Dr. Noble, a cardiologist and the only physician giving deposition testimony who actually examined Mr. Shonk while he was alive (in August 1979), opined that Mr. Shonk‘s three episodes of severe dyspnea were most probably due to transient congestive heart failure. The physician based this opinion on the results of a stress test and chest x-ray, and the fact that Mr. Shonk seemed to be “relatively asymptomatic” between acute episodes. Dr. Noble testified that he must not have considered Mr. Shonk disabled when he examined Mr. Shonk one year before his death. When he examined Mr. Shonk, Dr. Noble recited that Mr. Shonk could “climb steps and walk reasonable distances without dyspnea nor other cardiopulmonary disability.” While the cardiologist admitted that he could not rule out asthmatic bronchitis as a cause of the dyspneic episodes, his professional judgment was that the episodes were cardiac, not pulmonary, in origin.
The ALJ discredited Dr. Noble‘s deposition testimony as rebuttal evidence for two reasons. First, the doctor did not rule out asthmatic bronchitis, and such a diagnosis was made by Dr. Wu, a respiratory specialist, who examined Mr. Shonk just a week before his death. Dr. Wu diagnosed a “chronic obstructive lung disease with an asthmatic component.” Crediting medical opinion is the province of the ALJ; he need not accept the conclusions of a physician, but may examine the medical evidence and draw his own inferences. See Migliorini, 898 F.2d at 1297; Smith, 843 F.2d at 1057. In addition, Dr. Noble did not take into account Mr. Shonk‘s duties as a laborer in the garage at the coal mine when he stated in deposition that he must not have considered Mr. Shonk disabled when he examined him several years before. The Board has held that a doctor‘s conclusion that a miner is disabled will not support the miner‘s claim of disability if the doctor failed to consider the miner‘s duties. See, e.g., Rankin v. Keystone Coal Mining Corp., 8 BLR 1-54, 1-57 (Ben.Rev.Bd.1985) (a doctor‘s listing of miner‘s limitations does not support invocation of presumption if doctor fails to compare those limitations to the exertional requirements of the miner‘s work); Parino v. Old Ben Coal Co., 6 BLR 1-104, 1-107 (Ben.Rev.Bd.1983) (doctor‘s recitation of one flight dyspnea and one block dyspnea insufficient to constitute total disability). Similarly, a physician‘s general statement that a miner is not disabled, without addressing the physical requirements of the miner‘s work, cannot support an employer‘s rebuttal. See, e.g., Wilson v. Benefits Review Board, 748 F.2d 198, 201 (4th Cir.1984) (a doctor‘s report “concluding that [the miner] was ‘capable of engaging in gainful employment with respect to his lungs’ ... [had] little probative value” in making a determination of rebuttal); Boyd v. Freeman United Coal Mining, 6 BLR 1-159, 1-164-1-165 (Ben.Rev.Bd.1983) (a doctor‘s diagnoses of “mild hypoxemia” and “mild obstruction” does not establish the degree of a miner‘s impairment and cannot, therefore, provide substantial evidence to rebut).
Peabody further argues that the ALJ “required the physician to conduct the analysis” that the ALJ must conduct. That simply is not the case. The ALJ merely determined that the physician‘s deposition statement did not deserve much weight in light of his failure to consider Mr. Shonk‘s job, and Peabody‘s burdens of production and persuasion. Mullins, 484 U.S. at 144 and n. 12; Zettler v. Director, OWCP, 886 F.2d 831, 835 (7th Cir.1989) (quoting Cooley v. Island Creek Coal Co., 845 F.2d 622, 624 (6th Cir.1988)); Amax Coal Co. v. Director, OWCP, 772 F.2d 304, 305 (7th Cir.1985) (the interim “presumption shifts the burden of persuasion ... not merely ... production“). If Dr. Noble failed to consider the miner‘s duties when he examined the miner, then the ALJ need not accept as dispositive evidence of rebuttal the physician‘s later testimony that, at the time he examined Mr. Shonk, he did not consider the miner to be disabled.
Peabody also emphasizes the conclusions of its two retained physicians in support of rebuttal. Dr. Nay, the cardiologist retained by Peabody, concurred in Dr. Noble‘s opinion that cardiac problems caused Mr. Shonk‘s respiratory symptoms. Dr. Nay‘s conclusion that Mr. Shonk did not have a pulmonary or respiratory impairment was based on a 1977 pulmonary function study, which was normal; x-rays that did not indicate pulmonary dysfunction or disability; and hospital records and the autopsy, which emphasized Mr. Shonk‘s heart disease. However, Dr. Nay conceded that Mr. Shonk could have had bronchitis, which he believed was caused by cigarette smoking.10 The cardiologist testified that Mr. Shonk was not disabled from doing his usual job, which required moderate to relatively heavy labor, on a pulmonary basis.
Dr. Pontius, a pathologist, opined that Mr. Shonk did not have pneumoconiosis based on his review of all the evidence, including the autopsy report and slides. Dr. Pontius concluded that Mr. Shonk‘s dyspnea, and his death, resulted from arteriosclerotic heart disease. He believed that no symptoms or findings indicated that Mr. Shonk was disabled, either prior to his retirement or at the time of his death, due to a pulmonary or respiratory disease. Dr. Pontius opined that any disability suffered by Mr. Shonk before his death was due to his cardiovascular disease. However, the pathologist specifically stated that Mr. Shonk had “no primary pulmonary disease that would have been disabling.”
The ALJ discredited the depositions of Drs. Nay and Pontius because he had previously credited Dr. Sarkar‘s autopsy and deposition over them. Since Peabody‘s physicians rejected the possibility that Mr. Shonk had anthracosis at all, the ALJ distrusted their opinions as to whether the miner‘s lungs were impaired by any pulmonary or respiratory disease. The ALJ‘s implicit distrust was not irrational. Dr. Sarkar, on the other hand, was the only physician who viewed Mr. Shonk‘s lungs. He opined, in deposition testimony, that the diseased portions of the lungs were “useless” for respiration. The physician also concluded that whatever lung impairment Mr. Shonk suffered was a function of the extent to which Mr. Shonk‘s lungs had been “disorganized into anthracosis,” and that he considered such damage “extensive.” Further, Dr. Sarkar expected Mr. Shonk‘s anthracosis to show up on a pulmonary function study, and one PFS in the record did reveal a mild obstructive defect, according to the physician.
Accordingly, the ALJ properly concluded that Peabody failed to demonstrate that Mr. Shonk was not totally disabled.
Peabody contends in this court that “the issue presented is whether the ALJ erred in concluding that Peabody failed to prove that Mr. Shonk did not at the time of his death have a primary pulmonary or respiratory impairment which was sufficiently severe to preclude him from doing his usual work.” (emphasis supplied). Peabody presents this issue under
The ALJ determined that Peabody failed to rebut because the evidence did not establish “that the total disability of the miner did not, in whole or in part, arise out of coal mine employment.” We will not disturb that conclusion.
Conclusion
Accordingly, the award of benefits is affirmed.11
Notes
We conclude that, because the deputy commissioner did not violate a statutory mandate or exceed a statutory limitation, the issue of agency jurisdiction, created by Congress, does not arise. The basis on which the claim should have been adjudicated in the agency is waived for failure to present it to the agency.