846 F2d 364 Johnson v. Island Creek Coal Co

846 F.2d 364

Comas JOHNSON, Petitioner,
ISLAND CREEK COAL CO., and Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.

No. 86-4153.

United States Court of Appeals,
Sixth Circuit.

Argued Nov. 12, 1987.
Decided May 12, 1988.

Albert A. Burchett (argued), Prestonsburg, Ky., for petitioner.

Allen Prunty, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., for Island Creek Coal.

Martin Hall, Office of the Sol., U.S. Dept. of Labor, J. Michael O'Neill, Marta Kusic, Benefits Review Bd., U.S. Dept. of Labor, Washington, D.C., for respondents.

Before: KRUPANSKY and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

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Petitioner, Comas Johnson (Johnson), petitioned this court for review of the decision of the Benefits Review Board of the United States Department of Labor (Board) denying him disability benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901, et seq.


Johnson worked as a coal miner for approximately 19 years and had an eighth grade education. Johnson retired in 1975 when he began experiencing shortness of breath, and subsequently filed a claim for black lung disability benefits on April 22, 1977. His claim was denied initially on February 27, 1980, and Johnson timely requested a hearing before an administrative law judge (ALJ).


The ALJ conducted a hearing on June 5, 1984 and issued a decision on November 13, 1984 denying Johnson's claim for black lung disability benefits. Johnson submitted 27 x-ray interpretations to the ALJ. The initial two x-ray readings were positive as to pneumoconiosis. However, of the 25 following x-ray readings and rereadings, 19 were negative and five were positive as to pneumoconiosis. In fact, all x-ray interpretations submitted by B-Readers1 (eleven in all) were negative for pneumoconiosis. The ALJ accordingly concluded that the weight of the evidence was insufficient to invoke the interim presumption of 20 C.F.R. Sec. 727.203(a)(1). Further, the ALJ determined that other evidence such as ventilatory function studies, arterial blood gas studies and medical opinions failed to establish entitlement to the interim presumptions contained in 20 C.F.R. Sec. 727.203(a)(2)-(4). On November 21, 1986, the Benefits Review Board unanimously affirmed the ALJ's decision.


On review, Johnson argued that the ALJ's conclusion that he was not entitled to the interim presumption of 20 C.F.R. Sec. 727.203(a)(1) was incorrect as a matter of law. Specifically, Johnson argued that an initial single positive x-ray interpretation indicating pneumoconiosis was sufficient to invoke the interim presumption even if contradicted by later negative x-ray readings or rereadings.


This Court will not reverse the ALJ's finding if substantial evidence supports the ALJ's determination that the claimant is not entitled to the invocation of the interim presumption. Engle v. Director, O.W.C.P., 792 F.2d 63 (6th Cir.1986). "Our function is only to see that the decision of the ALJ and Board was supported by substantial evidence, and that all evidence that the statute mandates to be considered has been considered." Engle 792 F.2d at 64.


The Supreme Court has recently addressed the issue presented in this case as to the burden of proof necessary to invoke the interim presumption. In Mullins Coal Co. v. Director, --- U.S. ----, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987), the Court held that the claimant must prove by a preponderance of the evidence that he is entitled to the interim presumption of 20 C.F.R. Sec. 727.203(a). The presumption is not available to a claimant "... when the claimant is merely in a position to offer a single item of qualifying evidence that is overcome by more reliable conflicting evidence." Mullins, 108 S.Ct. at 439.


Recently, in Creech v. Benefits Review Board, 841 F.2d 706 (6th Cir.1988), the Sixth Circuit followed the reasoning in Mullins. In Creech, three x-rays had been performed upon the claimant. The first and third x-rays had been initially interpreted as positive for pneumoconiosis; however, upon rereadings by B-readers, the x-rays were determined to be unreadable. The second x-ray had been interpreted as negative for pneumoconiosis. The court concluded that the ALJ properly weighed the conflicting evidence by using the preponderance of the evidence test to determine whether the interim presumption should be invoked even when the first x-ray was initially interpreted as positive for pneumoconiosis. Creech, at 709.

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In the present case, Johnson offered as proof of pneumoconiosis two initial and five subsequent x-rays indicating positive results. However, 19 x-ray interpretations did not establish any pneumoconiosis. In fact, all B-Readers have interpreted x-rays of Johnson as negative. The ALJ is entitled to place more weight to B-Readers' conclusions due to their expertise in the area. Back v. Director, O.W.C.P., 796 F.2d 169 (6th Cir.1986). Therefore, there was substantial evidence to support the ALJ's determination that Johnson failed to meet his burden of proof to invoke the interim presumption.


Accordingly, the Benefits Review Board's decision that the appellant was not entitled to black lung disability benefits is AFFIRMED.


A B-Reader is one who has passed an examination testing his proficiency in detecting the presence of pneumoconiosis in chest x-rays. Mullins Coal Co. v. Director, --- U.S. ----, 108 S.Ct. 427, 432, n. 16, 98 L.Ed.2d 450 (1987); Gibas v. Saginaw Mining Company, 748 F.2d 1112, 1114, n. 3 (6th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985)