2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-23-2009

Felton v. Director OWCP

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1113

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Recommended Citation

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-1113

___________

ROBERT A. FELTON,

Petitioner

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR;

BETHENERGY MINES, INC.

____________________________________

On Appeal from a Decision and Order

of the Benefits Review Board

( BRB No. 07-255 BLA)

___________________________________

Submitted Pursuant to Third Circuit LAR 34.1( a)

April 10, 2009

Before: MCKEE, HARDIMAN and ROTH, Circuit Judges

(Opinion filed: July 23, 2009)

___________

OPINION

___________

PER CURIAM

Robert Felton, proceeding pro se, appeals from the September 27, 2007 decision of
 “Legal pneumoconiosis includes any chronic lung disease or impairment and its 1

sequelae arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2).

2

the Benefits Review Board (“BRB”) upholding an Administrative Law Judge’s (“ALJ”)

denial of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944.

Robert Felton was employed as a coal miner at BethEnergy Mines for eighteen

years, working underground as a roof bolter and car operator mechanic. He retired in

1993. On June 24, 2002, Felton filed a claim for benefits alleging that he suffers from

pneumoconiosis and that he was totally disabled. 

Black lung benefits are awarded to coal miners who are totally disabled by

pneumoconiosis caused by inhalation of harmful dust in the course of coal mine

employment. See 30 U.S.C. § 901(a). In order to be entitled to benefits, a claimant must

establish: 1) the existence of pneumoconiosis; 2) that the pneumoconiosis arose out of

coal mine employment; and 3) that the pneumoconiosis is totally disabling. See 20 C.F.R.

§ 718.201(a); Labelle Processing Co. v. Swarrow, 72 F3d, 308, 312 (3d Cir. 1995). 

An ALJ held a formal hearing in Felton’s case on February 28, 2006. After

considering the evidence presented in the case, he concluded that Felton had not

established the existence of clinical or legal pneumoconiosis – either of which is

sufficient to support a finding of pneumoconiosis. See 20 C.F.R §§ 718.201(a)(1) and

718.201(a)(2). The ALJ also determined, in the alternative, that Felton had not 1

established that he suffers from a totally disabling respiratory condition. See 20 C.F.R. §

718.204(b)(1).
 Felton’s petition for review was timely because under 20 C.F.R. § 802.406, following 2

a BRB’s decision on a timely motion for reconsideration, an appellant has sixty days to

file a petition for review in the appropriate United States Court of Appeals. The BRB

denied Felton’s motion for reconsideration on November 21, 2007. Felton subsequently

filed a petition for review in this Court on December 17, 2007, within the period allotted

by regulation.

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 II.

We have jurisdiction to hear this appeal pursuant to 33 U.S.C. § 921(c), as

incorporated by 30 U.S.C. § 932(a). See Lombardy v. Director, OWCP, 355 F.3d 211, 2

213 (3d Cir. 2004). We review the BRB’s decision to determine whether an error of law

has been committed and whether it has adhered to its statutory scope of review. 

Kowalchick v. Director, OWCP, 893 F.2d 615, 619 (3d Cir. 1990). The BRB is bound by

the ALJ’s factual findings if they are supported by substantial evidence. Id. Thus, in

reviewing the BRB’s decision, we must independently review the record and decide

whether the ALJ’s findings are supported by substantial evidence. Id. Substantial

evidence is “more than a mere scintilla,” and is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id.

III.

In his petition for review, Felton appears to generally contend that the ALJ erred in

denying his claim for benefits, but he does not set forth any case law which might support

his argument. His informal brief does contend, however, that the ALJ erroneously

determined that one of the three experts in the case lacked “credibility.” Based upon our

review of the record, we conclude that the BRB’s determinations were supported by
 There was no biopsy evidence entered in the case, and no statutory presumptions were 3

applicable in Felton’s case. 

4

substantial evidence. 

As mentioned earlier, proving the existence of pneumoconiosis is an essential

condition of entitlement to benefits. By regulation, the existence of pneumoconiosis may

be established by: 1) X-ray; 2) biopsy or autopsy; 3) invocation of presumptions; or 4)

reasoned and documented medical opinion. See 20 C.F.R. § 718.202(a). In Felton’s

case, the ALJ considered multiple chest X-ray readings and the medical opinions of three

expert physicians. 

3

Felton underwent three separate chest X-rays, two in June 2003 and a third in

November 2004. The X-rays were uniformly negative for clinical pneumoconiosis. Dr.

Gregory Fino, a Board-certified internist and Board-certified pulmonologist, examined

Felton in July 2003 at the request of BethEnergy, finding no pneumoconiosis and no

respiratory impairment. Dr. Ahmad Kahn, a Board-certified internist, also examined

Felton in July 2003 at the request of the Department of Labor. Dr. Kahn diagnosed

Felton with mild obstructive airway disease resulting in “minimal” impairment. In his

report, he cited both Felton’s over 16-year smoking history and his coal mine employment

as the “probable” cause of the airway disease. He further explained that it was “difficult

to ascertain [causation] based upon minimal functional impairment” and that “other

etio[logies] need to be ruled out.” DX16 at 10. Lastly, at BethEnergy’s request, Dr.

George Zlupko, a Board-certified internist, examined Felton in January 2005. Dr. Zlupko
 The BRB affirmed the denial of benefits based upon the ALJ’s finding of no 4

pneumoconiosis, holding it unnecessary to address the ALJ’s alternative finding of no

total respiratory disability. Because a miner seeking benefits must show that he is totally

disabled not merely by a respiratory or pulmonary condition, but by pneumoconiosis, see

Bonessa v. U.S. Steel Corp., 884 F.2d 726, 729 (3d Cir. 1989), the BRB appropriately

declined to review the ALJ’s alternative ground for denial of benefits.

5

diagnosed no pneumoconiosis and no pulmonary function impairment. 

Based upon the evidence, the ALJ concluded that Felton had not proved the

existence of pneumoconiosis. Specifically, the ALJ determined that the evidence failed to

establish “clinical” pneumoconiosis because the X-ray readings were negative for the

disease. The ALJ also determined that the evidence failed to establish “legal”

pneumoconiosis because Drs. Fino and Zlupko specifically diagnosed no respiratory

disease of any kind, and Dr. Kahn – while diagnosing coal mine employment as a

“probable” cause of Felton’s airway disease – was equivocal in his diagnosis. The ALJ

also took into account that Dr. Fino was better credentialed than Dr. Kahn and that Dr.

Kahn acknowledged difficulty in determining causation because of the “minimal” nature

of Felton’s impairment. DX 16 at 10.

Based upon our review of the record, we find that the BRB appropriately

determined that the ALJ’s finding of no pneumoconiosis was supported by substantial

evidence. As a result, Felton was not entitled to benefits. First, all three of Felton’s 4

chest X-rays were negative for the disease. Second, it was acceptable for the ALJ to

afford less weight to Dr. Kahn’s diagnosis of legal pneumoconiosis because his opinion

was equivocal. See Soubik v. Director, OWCP, 366 F.3d 226, 234 n.12 (3d Cir. 2004)
 The BRB did not reach the ALJ’s determination, in the alternative, that the evidence 5

did not establish Felton’s total disability. The issue is not properly before us. See Grigg

v. Director, OWCP, 28 F.3d 416, 418 (4th Cir. 2002).

6

(an ALJ may “minimize the probative value” of an equivocal doctor’s opinion). Third,

the ALJ was permitted to afford greater weight to the opinion of Dr. Fino than that of Dr.

Kahn because Dr. Fino is a Board-certified pulmonologist as well as a Board-certified

internist. See Balsavage v. Director, OWCP, 295 F.3d 390, 396-97 (3d Cir. 2002)

(holding that an ALJ may weigh the various credentials of the physicians giving

opinions).5

The ALJ fulfilled his statutory duties, and his findings were supported by

substantial evidence. Accordingly, we find no error. For the foregoing reasons, we deny

the Petition for Review and affirm the order of the Benefits Review Board entered on

September 27, 2007.