                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2006

Florence Mining Co v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1310




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    No: 05-1310

                        THE FLORENCE MINING COMPANY,

                                               Petitioner

                                              v.

        DIRECTOR, OWCP, UNITED STATES DEPARTMENT OF LABOR;
                        BARRY L. HENDERSON,

                                              Respondents

                    Petition for Review of a Decision and Order of
                      the Benefits Review Board, United States
                                  Department of Labor
                                  (No. 04-0350 BLA)

                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   July 11, 2006

                    Before: SLOVITER, McKEE and RENDELL,
                                 Circuit Judges

                                (Filed: July 19, 2006)

                                      OPINION

McKEE, Circuit Judge.

      The Florence Mining Company petitions for review of a decision of the Benefits

Review Board (“BRB”) affirming a decision of an Administrative Law Judge awarding

Barry L. Henderson, a former employee of Florence Mining, benefits under the Black


                                          1
Lung Benefits Act, 30 U.S.C. §§ 901-945. For the reasons that follow, we will deny the

petition for review.

                                             I.

       Because we write primarily for the parties, we will recite only as much of the

factual and procedural history of this case as is helpful to our brief discussion.1 The ALJ

found that although the x-ray evidence did not establish the existence of pneumoconiosis

by a preponderance of the evidence pursuant to 20 C.F.R. § 718.202(a)(1), the weight of

the medical opinion evidence established the existence of both clinical and legal

pneumoconiosis, see n.2, infra., pursuant to 20 C.F.R. § 718.202(a)(4). That regulation

provides:

       A determination of the existence of pneumoconiosis may also be made if a
       physician, exercising sound medical judgment, notwithstanding a negative
       X-ray, finds that the miner suffers or suffered from pneumoconiosis as




       1
       In Mancia v. Director, OWCP, 130 F.3d 579 (3d Cir. 1997), we explained our
standard of review:

       The [BRB] is bound by the ALJ’s findings of fact if they are supported by
       substantial evidence. Our review of the [BRB’s] decision is limited to a
       determination of whether an error of law has been committed and whether
       the [BRB] has adhered to its scope of review. In doing so, we must
       independently review the record and decide whether the ALJ’s findings are
       supported by substantial evidence. Substantial evidence has been defined
       as more than a mere scintilla. It means such relevant evidence as a
       reasonable mind might accept as adequate to support a conclusion.

Id. at 584 (citation omitted).

                                             2
      defined in § 718.201.2 Any such finding shall be based on objective
      medical evidence such as blood-gas studies, electrocardiograms, pulmonary
      function tests, physical examination, and medical and work histories. Such
      a finding shall be supported by a reasoned medical opinion.

In concluding that the weight of the medical evidence established the existence of

pneumoconiosis, the ALJ considered the medical opinions of three physicians. Dr. Vijay

Malhotra, a board-certified internist, who performed an evaluation on behalf of the

Department of Labor, opined that although Henderson’s chest x-ray was negative for

pneumoconiosis, he suffers from industrial bronchitis due to coal dust exposure. Dr.

John Schaff, a board certified pulmonologist and internist, who performed an evaluation

on behalf of Henderson, opined that Henderson’s chest x-ray was positive for clinical

pneumoconiosis and that Henderson also suffers from chronic bronchitis due to coal dust

exposure. Dr. Robert Pickerill, a board certified pulmonologist, who performed an

evaluation on behalf of Florence Mining, opined that Henderson’s chest x-ray was

negative for pneumoconiosis and that he suffers from chronic obstructive bronchial

asthma unrelated to his coal mine employment.

      The ALJ concluded that while Dr. Pickerill’s opinion was documented and

      2
        20 C.F.R. § 718.201 defines pneumoconiosis as “a chronic dust disease of the
lung and its sequelae, including respiratory and pulmonary impairments arising out of
coal mine employment. This definition includes both medical, or ‘clinical’,
pneumoconiosis and statutory, or ‘legal’, pneumoconiosis.” “The statutory definition of
pneumoconiosis (i.e., any lung disease that is significantly related to, or substantially
aggravated by, dust exposure in coal mine employment) is much broader than the
medical definition, which only encompasses lung disease caused by fibrotic reaction of
lung tissue to inhaled dust.” Mancia v. Director, OWCP, 130 F.3d 579, 581 n.3 (3d Cir.
1997) (citation omitted).

                                            3
reasoned, Dr. Schaff’s opinion better explained that Henderson’s symptoms of coughing

and wheezing with pulmonary obstruction and restriction were not due to asthma, as Dr.

Pickerill opined. Rather, those symptoms resulted from coal dust exposure. Dr. Schaff

convincingly explained how his diagnosis was supported by Henderson’s history of at

least sixteen years of coal mine employment, symptoms, pulmonary function

abnormalities, and reduced diffusing capacity. The ALJ also found that Dr. Schaff’s

diagnosis of coal dust related chronic bronchitis was corroborated by Dr. Malhotra’s

diagnosis of industrial bronchitis due to coal dust exposure.

       In its petition for review, Florence Mining argues that the opinions of Drs. Schall

and Malhotra were unreasoned and, therefore, could not be relied upon by the ALJ.

Essentially, Florence Mining contends that the ALJ should have relied upon Dr.

Pickerill’s opinion and found that Henderson did not prove the existence of

pneumoconiosis. We disagree. The ALJ was faced with three physicians giving

different opinions regarding the cause of Henderson’s pulmonary disability. The ALJ

carefully reviewed the findings and opinions of each physician and made determinations

of credibility and weight. That is precisely what he is required to do. As we said in

Kertesz v. Crescent Hills Coal Co., 788 F.2d 158 (3d Cir. 1986):

       In reaching a decision, an ALJ should set out and discuss the pertinent
       medical evidence presented. The ALJ is not bound to accept the opinion or
       theory of any medical expert, but may weigh the medical evidence and
       draw its own inferences.

Id. at 163 (citations omitted). Accordingly, the ALJ was acting well within his discretion


                                             4
in crediting the opinions of Drs. Schaff and Malhotra over the opinion of Dr. Pickerill.

       Florence Mining also argues that Dr. Schaff’s reliance on his own chest x-ray to

diagnose clinical pneumoconiosis, when all of the x-ray evidence taken together did not

merit a positive finding pursuant to 20 C.F.R. § 718.202(a)(1), “should have been

deemed error, thus negating the ALJ’s conclusion that Dr. Schall found clinical

pneumoconiosis.” Petitioner’s Br. at 19. However, this argument is the proverbial “red-

herring.” Dr. Schaff also opined that Henderson suffered from chronic or industrial

bronchitis arising from coal dust exposure. Moreover, Dr. Schaff’s opinion in this regard

was corroborated by the opinion of Dr. Malhorta. Therefore, the ALJ’s finding that

Henderson established the existence of legal pneumoconiosis in the form of chronic or

industrial bronchitis makes Henderson eligible for benefits even if he does not suffer

from clinical pneumoconiosis.

                                            II.

       For the above reasons, we hold that the ALJ’s findings are supported by

substantial evidence. Accordingly, we will deny the petition for review.




                                             5
