### 2002 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-26-2002 

# C onsolid a t ion C o al v

. K u sh ak

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 1-2854

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2002

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2002 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" C on s o l id a t ion C o al v

. K ush ak " (2002). 2002 D e cisio n s

. P ape r 209. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2002/209NO T PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 01-2854

___________

IN THE MATTER OF:

CONSOLIDATION COAL COMPANY,

Responsible Operator/Pet itioner

v.

GEORGE KUSHAK,

Claimant/Responden t

and

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PRO GRAMS, United States Department of Labor,

Party-In-Interest

___________

On Petition for Review of Decision and Order of the Benefits Review Board dated May 16, 20 01 entered in Agency Nos. 0090-1 and 00-0830 BLA

___________

Submitted Under Third Circuit L.A.R. 34. 1(a) March 1, 2002

Before ROTH and FUENTES, Circuit Judges, and KATZ, District Judge.

(Opinion Filed: March 26, 2002)

________________________

OPINION OF THE COURT

________________________

FUENTES, Circuit Judge: This is a petition for review sought by the Co nsolidation Coal Company ("CONSOL") of the Decision and Order of the Benefit s Review Board (the "Board")which affirmed the order of the Administrative Law Judge ("ALJ") awarding

black lung benefits to claimant George Kushak. Because we agree that the findings of the ALJ were supported by substantial evidence, we will deny the petition for review.

I. We state the facts and extensive procedural hi story of this case only in summary. George Kushak, who worked over 34 years in and abou t the coal mines of Pennsylvania, first filed for Black Lung benefits on January 15, 1980. Since then, his case has been before the Board four times. In his initial Decision and Order, the ALJ fou nd that Kushak failed to establish that his work at a repair shop for CONSOL constituted th e work of a coal miner. Accordingly, the ALJ dismissed CONSOL as the respon sible operator. The Board, however, later vacated the ALJ's finding with respe ct to Kushak's status as a coal miner and instructed the ALJ to reconsider Kushak's eligi bility for benefits. On remand, the ALJ found that Kushak qualified as a coal miner wit h CONSOL and that CONSOL was the responsible operator. Further, the ALJ credite d Kushak with 34 years of coal mine employment and found that he established invocation of the interim presumption of total disability due to pneumoconiosis pursuant to 20 C.F .R.  727.203(a)(4) and that CONSOL failed to establish rebuttal pursuant to 20 C.F.R.  727.203(b). Based on these findings, the ALJ awarded benefits to Kushak. After several subsequent appeals to the Board and remands to the ALJ, the ALJ affirmed the award of benefits again on April 28, 2 000. CONSOL then appealed that decision to the Board, contending that the ALJ erre d in finding that the evidence was sufficient to establish invocation of the interim p resumption pursuant to  727.203(a)(4) and in finding that the evidence was insufficient t o establish rebuttal of the interim presumption pursuant to  727.203(b)(3) and (b)(4). More specifically, CONSOL argued that the ALJ failed to state an adequate rationale for finding the opinion of one doctor, who diagnosed total disability due to pneumoconiosi s, more persuasive than the contrary opinions of four other doctors, who found no respir atory impairment. In its Decision and Order dated March 16, 2001 , the Board found that the ALJweighed all of the medical opinions and rationally concluded that the

preponderance of the evidence established the existence of a totally disabling respiratory or pulmonary impairment due to pneumoconiosis. Accordingly, it affirmed the ALJ's Decision and Order on Remand denying modification and awarding b enefits. On July 12, 2001, CONSOL filed a notice of appeal with this Court. I t maintains that the ALJ failed to rely on substantial evidence in finding that the opinion of Kushak's treating physician established the presence of a totally disabling pul monary disease.

II. We have appellate jurisdiction over this matte r 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 Title IV of the Federal Coal M ine Health and Safety Act of 1969, as amended, 30 U.S.C.  932(a). We review decisions of the Benefits Revie w Board for errors of law and adherence to the Board's statutor y scope of review. See Nelson v. American Dredging Co., 143 F.3d 789, 792 (3d Cir. 1 998). When factual findings are at issue, "we make a n independent factual review to determine whether the administrative law judge's fi ndings were supported by substantial evidence." Sea-Land Service, Inc. v. Rock, 953 F.2 d 56, 59 (3d Cir. 1992) (citing Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 67 7 F.2d 286, 290 (3d Cir.1982)). "Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richa rdson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

III. To be entitled to the interim presumption of t otal disability due to pneumoconiosis, an individual with over ten years of coal mine empl oyment must produce evidence in accordance with 20 C.F.R.  727.203(a), which provides: A miner who engaged in mine employment for at least 10 years will be presumed to be totally disabled due to pneumoc oniosis . . . arising out of that employment if one of the following medica l requirements is met: (1) x-ray, biopsy, or autopsy establ ished existence of pneumoconiosis . . . or(2) ventilatory studies which demons trate the presence of

an impairment in the transfer of oxygen from the lung . . . or (3) blood gas studies which demonstr ate the presence of an impairment in the transfer of oxygen from the lung . . . or (4) other medical evidence, includin g the documented opinion of a physician exercising reasoned medical jud gment, establishes the presence of a totally disabling respirato ry or pulmonary impairment.

The ALJ found that Kushak is entitled to the presum ption of total disability under  727.203(a)(4) based upon the documented opinion of Dr. Naresh Bhatt, who diagnosed Kushak with pneumoconiosis after treating and exami ning him several times. In making his diagnosis, Dr. Bhatt stated that he relied upon Kushak's coal mine employment history, his complaints of shortness of breath, whe ezes in the lungs, and

x-ray interpretations showing the presence of fibrosis in the lungs. Because we conclude that a reasonable mind cou ld accept Dr. Bhatt's medical report as adequate to support a conclusion that Kus hak has been suffering from pneumoconiosis, we find that the ALJ's finding that Kushak is entitled to the presumption of total disability under  727.203(a)(4) is supported by substantial evidence. Once an individual invokes the interim presump tion under  727.203(a), the presumption can be rebutted pursuant to  727.203(b) if: (1) the evidence establishes that the individu al is doing his usual coal mine work . . . or (2) in light of all relevant evidence it is es tablished that the individual is able to do his usual coal mine work . . . or (3) the evidence establishes that the total di sability . . . did not arise in whole or in part from coal mine employment . . . or (4) evidence establishes that the miner does n ot or did not have pneumoconiosis.

CONSOL contends that several laboratory test result s and the opinions of Drs. Fino, Morgan, Renn, and Packovich, who all found no signs of disabling pulmonary disease, are sufficient to establish rebuttal of the interim presumption under subsections (b)(3) and (b)(4). The ALJ cited several reasons for rejecting CO NSOL's argument with respect tosubsection (b)(3). He observed that Drs. Fino and Morgan could not

provide an alternative cause for Kushak's symptoms. He dismis sed Dr. Renn's opinion, which attributed Kushak's symptoms to depression, because it was not documented elsewhere in the record and because none of the other examining physicians had made that diagnosis. After weighing the evidence, the ALJ finally conclu ded that Dr. Bhatt's opinion is the most persuasive on the causation issue. The ALJ also found that the preponderance of t he evidence does not support rebuttal under subsection (b)(4). He explained tha t negative chest x-ray evidence alone does not establish rebuttal and, again, that he fou nd the opinion of Dr. Bhatt more persuasive than those of Drs. Renn, Morgan, Fino an d Packovich. He noted that Drs. Fino and Morgan had never actually examined Kushak and that Drs. Renn and Packovich only examined Kushak once. Dr. Bhatt, in contrast, had examined Kushak on several occasions over a three year period. Further, the A LJ found that Dr. Bhatt provided a reasoned opinion supporting his conclusion that a c ausal nexus exists between Kushak's respiratory or pulmonary impairment and his coal mi ne dust exposure. Because we agree with the Board's finding that the ALJ weighed all of the medical opinions and test results and reasonably concluded that the evidence was insufficient to establish rebuttal of the interim presumption pursu ant to subsections (b)(3) and (b)(4), we find that his decision was supported by substantial evidence. We have also carefully considered CONSOL's remaining arguments in this app eal and conclude that they lack merit.

IV. For the reasons stated above and in the Benefi ts Review Board's wellreasoned opinion, we will deny CONSOL's petition for review of the Board's decision.

_____________________________ TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion./s/ Julio M . Fuentes

Circuit Jud ge