                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0721n.06
                             Filed: October 4, 2006

                                                 05-4540

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


DALE J. SHANNON,                                      )
                                                      )
        Petitioner,                                   )    ON PETITION FOR REVIEW OF
                                                      )    AN ORDER OF THE BENEFITS
v.                                                    )    REVIEW BOARD
                                                      )
DIRECTOR, Office of                   Workers’        )
Compensation Programs,                                )
                                                      )
        Respondent.                                   )



        Before: MARTIN and DAUGHTREY, Circuit Judges, and REEVES,* District Judge.


        PER CURIAM. Dale Shannon seeks review of an order of Benefits Review Board

affirming the denial of his application for black lung disability benefits. Because the

decision below was based on substantial evidence that Shannon’s impairment due to

pneumoconiosis does not render him totally disabled, we must deny the petition to review.


        The administrative law judge who heard the petitioner’s case ruled that some, if not

all, of Shannon’s employment satisfied the Sixth Circuit’s two-pronged function-situs test

as elaborated in Director, OWCP v. Consolidation Coal Co., 884 F.2d 926, 929, 932 (6th

Cir. 1989), and, therefore, that Shannon was a “miner” under the Black Lung Benefits Act,



        *
         The Hon. Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
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Shannon v. Director, OWCP

30 U.S.C. §§ 901-945. However, because of the sporadic nature of the work and the lack

of accurate records, the ALJ was unable to calculate the actual length of time that could

be attributed to coal mine employment. Accordingly, the ALJ remanded the matter to the

Director after questioning the reliability of a Department-sponsored physical exam,

performed by Dr. Glen Baker, because its conclusion was based on an inaccurate number

of years of coal mine employment. The order of remand requested further development

of the evidence as to length of coal mine employment and a credible pulmonary evaluation.


       In response, the Director filed a motion to reconsider, contending that a remand was

unnecessary because the medical evidence wholly failed to indicate that Shannon was

disabled and that a more precise determination of his coal mine employment history was

irrelevant. The ALJ granted this motion and decided the case on the merits, finding that

the petitioner had failed to establish the two elements necessary to recover under the Act,

i.e., that he was totally disabled due to pneumoconiosis and that the pneumoconiosis was

caused by his coal dust exposure. Shannon had submitted reports from two Department-

sponsored examinations, both performed by Dr. Glen Baker, the first in January 19, 1999,

and the second almost two years later, in December 2001. They were summarized by the

ALJ, in part, as follows:


       Dr. Baker opined that Claimant has pneumoconiosis caused by coal dust
       exposure but that he had no pulmonary impairments. The arterial blood gas
       tests and pulmonary function tests produced non-qualifying values. Where
       no evidence exists in the record that Claimant is totally disabled or totally
       disabled due to pneumoconiosis, I find that this claim fails.


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Shannon v. Director, OWCP

The Benefits Review Board found that the ALJ’s decision denying Shannon benefits was

supported by substantial evidence:


       Pursuant to Section 718.204(b)(2)(ii), the administrative law judge noted
       accurately that the pulmonary function and blood gas studies conducted by
       Dr. Baker on December 7, 2001 were non-qualifying. Additionally, review of
       the record discloses no evidence of core pulmonale with right-sided
       congestive heart failure, evidence that would be necessary to support a
       finding of total disability under Section 718.204(b)(2)(iii). Pursuant to Section
       718.204(b)(2)(iv), the administrative law judge reviewed Dr. Baker’s
       December 7, 2001 medical report and observed accurately that Dr. Baker
       found claimant to have no pulmonary impairment. As substantial evidence
       supports the administrative law judge’s findings, and the record contains no
       other evidence that claimant is totally disabled, we affirm the administrative
       law judge’s finding that claimant did not establish that he is totally disabled
       pursuant to Section 718.204(b)(2).


In a footnote, the Board addressed the fact that the ALJ did not specifically discuss Dr.

Baker’s January 1999 medical report diagnosing Shannon with “minimal” or “mild”

impairment from pneumoconiosis and chronic bronchitis and concluding that Shannon was

not totally disabled. The Board determined that “[a]ny error by the administrative law judge

was harmless, as Dr. Baker’s 1999 report, and the non-qualifying objective tests

accompanying that report, could only support the administrative law judge’s finding that the

record contains no evidence of a totally disabling respiratory or pulmonary impairment.”

The Board affirmed the denial of benefits, and Shannon now seeks review of that order.


       Like the Board, we review the ALJ’s decision only to decide whether substantial

evidence supports it and whether it is in accordance with the applicable law. See Kentland

Elkhorn Coal Corp. v. Hall, 287 F.3d 555, 559 (6th Cir. 2002); Glen Coal Co. v. Seals, 147

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05-4540
Shannon v. Director, OWCP

F.3d 502, 510 (6th Cir. 1998).        We do not reweigh the evidence or substitute our

judgement for that of the ALJ. See Gray v. SLC Coal Co., 176 F.3d 382, 387 (6th Cir.

1999).


         In his pro se petition, Shannon argues that the Board assessed his level of disability

only with regard to pneumoconiosis and disregarded his heart disease. Shannon claims

that taken together, his lung and heart impairments render him totally disabled and, further,

that because of the interdependence of the cardiac and pulmonary systems, without the

pneumoconiosis he would have no heart trouble. Therefore, he claims, his total disability

is a consequence of his exposure to coal mine dust.


         The flaw in this contention is the absence of any medical evidence that the claimant

is, in fact, totally disabled. Shannon submitted no such evidence, and the record is thus

completely void of any proof that would establish this predicate fact. The Act exists to

compensate not all disability but, specifically, total disability due to pneumoconiosis, see

20 C.F.R. § 718.204(a), which is defined generally as “a chronic dust disease of the lung

and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine

employment.” 20 C.F.R. § 718.201(a). In order to qualify as totally disabled, a miner must

have a pulmonary or respiratory impairment that, standing alone, prevents the miner from

performing his or her usual coal mine work and from engaging in gainful employment in the

immediate area of his or her residence. See C.F.R. § 718.204(b)(1)(i)-(ii). In determining

total disability:


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05-4540
Shannon v. Director, OWCP

       [A]ny nonpulmonary or nonrespiratory condition or disease, which causes an
       independent disability unrelated to the miner’s pulmonary or respiratory
       disability, shall not be considered in determining whether a miner is totally
       disabled due to pneumoconiosis. If, however, a nonpulmonary or
       nonrespiratory condition or disease causes a chronic respiratory or
       pulmonary impairment, that condition or disease shall be considered in
       determining whether the miner is or was totally disabled due to
       pneumoconiosis.


20 C.F.R. §718.204(a). The miner bears the burden of proving that he is totally disabled.

See Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994). The miner may

meet this burden by producing qualifying arterial blood gas or pulmonary function tests or

a physician’s “reasoned medical judgment, based on medically acceptable clinical and

laboratory diagnostic techniques . . . that [the] miner’s respiratory or pulmonary condition

prevents or prevented the miner from engaging in employment.” 20 C.F.R.

718.204(b)(1)(iv).


       The regulatory scheme provides guidelines by which the results of two tests –

pulmonary function and arterial blood-gas tests – may qualify a miner as totally disabled.

See 20 C.F.R. § 718.204(b)(2); 20 C.F.R. Pt. 718, Apps. B and C. These two tests were

performed by Dr. Baker on Shannon, on two separate occasions. On January 29, 1999,

Dr. Baker summarized both the pulmonary function and arterial blood gas test results as

“within normal limits.” Although Dr. Baker diagnosed Shannon with pneumoconiosis,

chronic bronchitis, and ischemic heart disease with left ventricular dysfunction, he also

indicated that Shannon’s pulmonary impairment was “mild” and indicated that he had the

respiratory capacity to perform the work of a coal miner (or comparable work in a dust-free

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Shannon v. Director, OWCP

environment). On December 7, 2001, Dr. Baker recorded similar results: Shannon’s

pulmonary function and arterial blood gas test results were within normal limits, and his

level of impairment was “minimal.”


       Given the fact that these two reports from Dr. Baker are the only medical evidence

in the record, we conclude that Shannon has failed to establish that he is totally disabled.

We therefore sustain the decision of the ALJ and DENY review of the Board’s order

affirming that decision.




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