On Petition for Review of an Order of the Benefits Review Board, BRB No. 86-2937 BLA.
Hutchinson, Scirica and Nygaard, Circuit Judges.
Manuel Gonzales petitions this court for review of a decision of the Benefits Review Board (BRB) denying him benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. The sole issue on appeal is whether respondent Director has successfully rebutted an interim presumption that Gonzales was totally disabled due to pneumoconiosis. The BRB affirmed a finding by the Administrative Law Judge (ALJ) that the Director rebutted the presumption of total disability with evidence that Gonzales was able to perform his usual coal mining employment. The proof consisted of a general conclusion by a single physician that Gonzales suffered no impairments from the disease. Since the physician reached this conclusion without any consideration of Gonzales' prior coal mining work, we hold that the Director did not present substantial evidence to rebut the presumption of total disability. Accordingly, we reverse the order of the BRB.
Gonzales filed his petition for federal black lung benefits in 1979. After the claim was administratively rejected by the Department of Labor, the matter was referred to an ALJ for a formal hearing in 1984. The Director did not contest whether Gonzales had pneumoconiosis; instead he challenged Gonzales' assertions relating to the length of his coal mine employment, the causal relationship between his coal mine employment and his pneumoconiosis, his total disability and the relation of his disability to the presence of pneumoconiosis. Form CM-1025, April 6, 1984, Appendix at 37a-38a. The hearing took place in July, 1986. At the hearing Gonzales established that he had worked in the mines for at least ten years. That finding, combined with the Director's concession that Gonzales was suffering from pneumoconiosis, invoked the interim presumption of total disability. 20 C.F.R. § 727.203(a)(1). The inquiry then shifted to the issue of whether the interim presumption was rebutted by evidence that Gonzales was capable of performing his usual coal mine work. 20 C.F.R. § 727.203(b)(2).
Gonzales testified that in the period between 1946 and 1957 his job was to push a buggy loaded with coal along a track about three hundred feet long to a slope where the buggy was hooked onto a cable and taken out to the surface. One other person helped him to push the cars, which Gonzales estimated weighed about one thousand pounds. He also stated that he spent seven to eight hours per day performing this task. Transcript of Hearing, 7/8/86, Appendix at 43a-44a.
Both sides presented medical evidence concerning whether Gonzales was totally disabled. Gonzales relied on a report by Dr. Raymond Kraynak dated June 16, 1986 in which Dr. Kraynak concluded that Gonzales was totally disabled, stating that "he is unable to lift or carry, climb steps or walk for any period of time. He must be able to sit, stand, and lay down at his leisure, secondary to his severe respiratory problems." Appendix at 35a. The Director based his rebuttal evidence on a report prepared by Dr. Robin Kaplan on June 5, 1986. Dr. Kaplan disputed the finding that Gonzales suffered from pneumoconiosis. He concluded that Gonzales suffered "no respiratory impairment", that there were "no limitations" which would prevent him from performing his last coal mining duties, and that Gonzales suffered no other non-respiratory impairments. Appendix at 25a-26a. In answering the questions on the questionnaire accompanying the Department of Labor's medical examination form, Dr. Kaplan did not indicate that he was aware of Gonzales' coal mining duties, nor did he state any underlying facts to support his conclusions. He stated in the report that Gonzales was capable of walking a distance of one mile, that he could climb ten stairs and that he could lift and carry weights ranging from twenty-five to fifty pounds a distance of ten feet. Appendix at 23a.
On October 31, 1986, the ALJ issued a Decision and Order rejecting Gonzales' claim. The ALJ determined that Dr. Kaplan's report was sufficient to rebut the interim presumption. She noted that Dr. Kaplan, as a registered pulmonary specialist, was better qualified than Dr. Kraynak, a general practitioner, to render a reasoned opinion concerning Gonzales' ability to perform his normal coal mine work. Appendix at 4a. She also rejected Dr. Kraynak's report as unpersuasive since it raised doubts regarding "the medical acceptability and reliability of the documentation on which Dr. Kraynak based his opinion." Id. The ALJ did not discuss Gonzales' normal coal mine work, nor whether he was still able to perform that particular type of work.
Gonzales appealed the Decision and Order of the ALJ to the BRB. The BRB affirmed, noting in its opinion that the ALJ did not err when she failed to analyze the specific requirements of Gonzales' coal mine work: "Because Dr. Kaplan concluded that claimant suffers from no limitations or impairment, a comparison of the exertional requirements of claimant's usual coal mine employment was not required to assess the sufficiency of Dr. Kaplan's report under subsection (b)(2)." Appendix at 5a, (citation omitted). This timely petition for review followed. We have jurisdiction pursuant to 33 U.S.C § 921(c) and 30 U.S.C. § 932(a).
Gonzales argues that the ALJ and the BRB erred in relying on the report of Dr. Kaplan to rebut the interim presumption of total disability. He claims that a statement of "no impairment" in Dr. Kaplan's report is insufficient to rebut the presumption since it does not consider the nature of his normal coal mine work. He further contends that Dr. Kaplan's conclusions regarding Gonzales' functional capacities do not satisfy the Director's obligation to show that the claimant is capable of performing his normal coal mine work or comparable work. The Director takes the position that the finding of no impairments logically compels the conclusion that Gonzales is capable of performing his normal coal mine work.
Our review of the decision of the BRB is limited to a determination as to whether an error of law has been committed and whether the BRB has adhered to the statutory standard of review. Hillibush v. U.S. Department of Labor, Benefits Review Board, 853 F.2d 197, 202 (3d Cir. 1988). The factual findings of the ALJ are binding if they are supported by substantial evidence in the record considered as a whole. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986); 33 U.S.C. § 921(b)(3). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. "Since the Black Lung Act should be liberally construed to assure widespread benefits to miners disabled by black lung disease, 'the party opposing an award of benefits must point to persuasive evidence' to rebut an interim presumption of disability." Kertesz, 788 F.2d at 163, citing Pavesi v. Director, Office of Workers Programs, 758 F.2d 956, 964-65 (3d Cir. 1985).
The regulations promulgated by the Department of Labor provide that once the interim presumption of total disability has been established, the Director may rebut the presumption with proof under one of the four criteria set forth in 20 C.F.R. § ...