                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

Hrobak v. ABC Coal Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3185




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                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-3185


                    JOSEPH G. HROBAK,

                                   Petitioner

                              v.

ABC COAL COMPANY; LACKAWANNA CASUALTY COMPANY;
    DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
  PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                                   Respondents




        On Petition for Review of a Decision and Order
                 of the Benefits Review Board
              (D.C. No. 0090-1: 03-0660 BLA)


        Submitted Pursuant to Third Circuit LAR 34.1(a)
                         June 3, 2005

 BEFORE: FUENTES, GREENBERG and COWEN, Circuit Judges

                     (Filed June 28, 2005)


                          OPINION
COWEN, Circuit Judge.

       Joseph G. Hrobak, a former miner, petitions for review of the United States

Department of Labor Benefits Review Board’s (the “Board”) order affirming the

Administrative Law Judge’s (the “ALJ”) decision to deny benefits on his claim filed

pursuant to the federal black lung program, first enacted as Title IV of the Federal Coal

Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. (the “Act”).

Hrobak contends that the ALJ erred in not affording his treating physician’s opinion

controlling weight. He further asserts that the ALJ improperly substituted his own

medical judgment for that of Hrobak’s treating physician and another physician who

supported his claim of pneumoconiosis. We have jurisdiction pursuant to section 21(c) of

the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 921(c), as

incorporated by section 422(a) of the Act, 30 U.S.C. § 932(a). Because we conclude that

the Board’s order was supported by substantial evidence and was in accordance with the

law, we will deny the petition.

       As we write solely for the parties, we only provide a brief recitation of the facts.

Hrobak first saw Charles J. Aquilina, M.D. in February 1983. In July 1998 when Hrobak

became ill he remained under the care of Dr. Aquilina. Throughout the remainder of

1998 and 1999 Hrobak consulted with Dr. Aquilina for various medical problems. In

1999 and 2000, after undergoing numerous tests, Hrobak was diagnosed with chronic

obstructive pulmonary disease (“COPD”) and antracosilicosis. Dr. Gacad, whom Hrobak



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consulted for a second opinion, agreed that he could have coal worker related COPD, but

indicated that he does not have coal worker pneuemoconiosis based on his chest x-ray.

Hobrak then saw Dr. Levinson at the request of counsel, who opined that Hrobak does not

suffer from pneuemoconiosis.

      Hrobak filed claims for benefits under the Act in 1983 and 1986, which were

denied. In June 1997, Hrobak filed the instant claim for benefits which was also denied

after the ALJ concluded that pneumoconiosis had not been established. After a hearing

before the Office of Administrative Law Judges, his claim was again denied. On appeal,

the Board partially affirmed and partially reversed the ALJ’s decision and remanded the

matter back for a determination of whether Dr. Aquilina qualified as Hrobak’s treating

physician and the weight to be afforded to his opinion. On remand, the ALJ found that

although Dr. Aquilina qualified as Hrobak’s treating physician, the evidence was

insufficient to establish the existence of pneumocosniosis. The Board affirmed the ALJ’s

order denying benefits and this appeal ensued.

      We review the Board’s decision for conformance with applicable law and

adherence to its statutory scope of review. See Nelson v. American Dredging Co., 143

F.3d 789, 792 (3d Cir. 1998). We review the factual findings for substantial evidence by

conducting an independent review of the record. See id. at 793. Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).



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       In order to establish eligibility for benefits, a claimant must establish that he

suffers from pneumoconiosis, that it arose out of coal mine employment, and that he is

totally disabled as a result. See Beatty v. Danri Corp. and Triangle Enters., 49 F.3d 993,

997 (3d Cir. 1995). Here, the Board affirmed the ALJ’s decision denying Hrobak’s claim

because he failed to establish that he suffered from pneumoconiosis. Although the ALJ

found that Dr. Aquilina was Hrobak’s treating physician, he ultimately concluded that the

medical opinion evidence was insufficient to support his diagnosis of pneuemoconiosis.

Particularly, the ALJ accorded greater weight to the opinion of Dr. Levinson, who found

no pneumoconiosis, because it was more well reasoned and better documented. Further,

the ALJ found that as a board-certified internist and pulmonologist, Dr. Levinson was

better qualified to render an opinion than Dr. Aquilina, who was a board-certified

anesthesiologist.

       On appeal, Hrobak contends that under the treating physician rule, the ALJ is

required to give controlling weight to the judgment of his treating physician, Dr.

Aquilina. Recognizing the limitation of the rule, Hrobak maintains that Dr. Aquilina’s

opinion was supported by his records and diagnostic testing and was not impeached by

substantial evidence. He asserts that the ALJ avoided application of the rule by merely

accepting the medical records to determine whether there was a doctor-patient

relationship, rather than for the contents of the records. Finally, he maintains that the ALJ




                                              4
improperly discredited the opinion of Dr. Gacad, which was based on objective testing

results.

       We recognize that under the Act, the ALJ is required to give “consideration to the

relationship between the miner and any treating physician whose report is admitted into

the record.” 20 C.F.R. § 718.104(d). Further, in “appropriate cases, the relationship

between the miner and his treating physician may constitute substantial evidence in

support of the [ALJ’s] decision to give that physician’s opinion controlling weight.” 20

C.F.R. § 718.104(d)(5). However, the Act also provides that “the weight given to the

opinion of the miner’s treating physician shall also be based on the credibility of the

physician’s opinion in light of its reasoning and documentation, other relevant evidence

and the record as a whole.” 20 C.F.R. § 718.104(d)(5).

       The ALJ in this case applied the correct standard for considering the treating

physician’s opinion before according greater weight to the countervailing evidence. After

examining the record, it is clear that the ALJ re-weighed the medical opinions, as ordered

by the Board. Contrary to Hrobak’s assertions, the opinion of Dr. Aquilina was

contradicted by substantial evidence in the record. As the Board explained:

              In weighing the medical opinions, the [ALJ] accorded greater
              weight to the opinion of Dr. Levinson, who found no
              pneumoconiosis, as he found it to be better reasoned and
              documented than the opinion of Dr. Aquilina. The [ALJ] placed
              substantial weight on Dr. Levinson’s opinion because he relied,
              in part, on the reversibility exhibited on claimant’s August 24,
              2000 pulmonary function study to find that claimant did not have
              pneumoconiosis. The [ALJ] further found significant the fact

                                              5
                that Dr. Aquilina agreed with Dr. Levinson that this was a
                clinical sign contradicting the presence of pneumoconiosis. In
                addition, the [ALJ] accorded greater weight to the opinion of Dr.
                Levinson because as a board-certified internist and
                pulmonologist, he was better-qualified than Dr. Aquilina, who
                was a board-certified anesthesiologist.

(App. at 6a.)

       The ALJ was permitted, and actually required, to consider the treating

physician’s diagnosis in light of the record as a whole. The cases cited by

Hrobak are not to the contrary. As example, in Jones v. Sullivan, this Court

had held that “in light of [the] conflicting and internally contradictory evidence,

the ALJ correctly determined that the opinions of Jones’s treating physicians

were not controlling.” 954 F.2d 125, 129 (3d Cir. 1991). Because there was

substantial evidence to support the ALJ’s decision to afford less weight to Dr.

Aquilina’s opinion than Dr. Levinson’s testimony, we will affirm on this

ground.

       We also disagree with Hrobak’s alternative argument that there was no

logical reason for discrediting Dr. Gacad’s opinion. The ALJ offered an

adequate reason for diminishing the weight of Dr. Gacad’s testimony—he

found that the “opinion was unclear and contradictory.” (App. at 15a.) The

ALJ pointed out the inconsistencies in the doctor’s own diagnoses. The

statements are contradictory, he explained, “in that prior to his 2001 report the

most [Dr. Gacad] said was the Claimant ‘could have’ COPD that was related to

                                              6
his coal mine employment (i.e. pneumoconiosis as defined by the regulations),

while in his 2001 report he said that his diagnosis ‘was still’ pneumoconiosis.”

(App. at 39a.) Accordingly, Dr. Gacad never clearly stated that Hrobak has

pneumoconiosis. In fact, Dr. Gacad opined in May 2000 that Hrobak “does

not have coal worker pneumoconiosis because he does not have the chest x-ray

criteria that would fit this diagnosis.” (App. at 183a.) Further, in his 2001

report Dr. Gacad recommended an additional diagnostic test to help establish

pneumoconiosis in light of a negative X-ray. (App. at 39a.) We agree with the

Board that the ALJ reasonably accorded diminished weight to Dr. Gacad’s

opinions based on his inherently inconsistent positions.

       Accordingly, we conclude that the Board’s order affirming the denial of benefits

was supported by substantial evidence, including the competent opinion of an examining

pulmonologist , and was in accordance with the law.

       For the foregoing reasons, the petition for review will be denied.




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