Director, Office of Workers' Compensation Programs v. Lilburn Rowe

MILES, Chief District Judge,

concurring.

I am in complete agreement with the holding reached by Judges Contie and Well-ford that “[wjhen the ALJ fails to make important and necessary factual findings, the proper course for the Board is to remand the case to the ALJ....” 1 Therefore, I agree with the present disposition of this case and write separately only to express my disagreement with two secondary matters.

First, I disagree with the contention made by the Director of the Office of Workers’ Compensation Programs that the Benefits Review Board engaged in de novo review. While the majority opinion does not address this assertion, some of the language used therein may imply tacit agreement with the Director’s position. The record before this Court indicates to me, however, that the Benefits Review Board did not engage in de novo review, but merely examined the complete record in light of the ALJ’s opinion. The Board’s review would have been de novo if it had considered evidence outside of the record or had considered the record “afresh” 2 without giving any consideration to the ALJ’s opinion.

Secondly, I have problems with the majority’s brief discussion of what is necessary to determine that a doctor’s diagnosis is sufficiently documented and reasoned to invoke the presumption of pneumoconiosis under 20 C.F.R. § 727.203 (a)(4).

The majority contends that,

the mere fact that an opinion is asserted to be based upon medical studies cannot by itself establish as a matter of law that it is documented and reasoned. Rather, that determination requires the factfinder to examine the validity of the reasoning of a medical opinion in light of the studies conducted and the objective indications upon which the medical opinion or conclusion is based. Of course, the fact-finder should also consider any contrary test results or diagnoses in reaching a decision as to whether a statutory presumption applies and ultimately whether the claimant is totally disabled.

While conceding that experienced administrative law judges frequently develop considerable expertise in evaluating evidence routinely encountered in the hearings over which they daily preside, I believe that it is unnecessary and unduly burdensome to require all ALJs, whether novice or veteran, “to examine the validity of the reasoning of *257 a medical opinion” before finding that a doctor’s opinion raises the presumption of pneumoconiosis in subsection (a)(4). I also am convinced that it is improper for the ALJ to consider evidence contrary to a finding of totally disabling pneumoconiosis until a presumption of pneumoconiosis has been raised.

When I read subsection (a)(4) in the context of the entire regulation codified at 20 C.F.R. § 727.203 (a)(4), I am convinced that the presumption in (a)(4) t is raised by a medical opinion which finds total disability due to.pneumoconiosis and states that the diagnosis is based on the results from specified tests. An ALJ need do no more than find that the specified tests are generally considered probative regarding pneumoco-niosis to determine that the opinion is reasoned and thereby sufficient to raise the presumption. To require more intensive inquiry into the basis of the diagnosis before invoking the presumption has the effect of rendering subsection (a)(4) a compilation of the provisions in subsections (a)(1) through (a)(3).

Subsections (a)(1) through (a)(3) require the ALJ to look to specific test results in determining whether or not the results raise the presumption of pneumoconiosis. Since the tests referred to in subsections (a)(1) through (a)(3) are presumably the same or equivalent to those which would be cited as the basis for a reasoned medical opinion in compliance with subsection (a)(4), I am satisfied that the regulation in 'question is best construed to allow the ALJ to make an independent judgment based on the objective results from tests listed in subsections (a)(1), (2) and (3) regarding the invocation of the presumption, but to allow for a doctor’s judgment (also based on test results but perhaps augmented by subjective considerations such as the patient’s history) to satisfy subsection (a)(4). Furthermore, once the presumption is raised under any part of the regulation in question, then, and only then, need the ALJ look to other evidence to see if the presumption has been rebutted.

This interpretation of 20 C.F.R. § 727 .-203(a) appears to comport with the Benefits Review Board’s understanding regarding that provision. In the past, the Benefits Review Board has endorsed the practice of allowing an opinion based on generally accepted medical tests to invoke the presumption in subsection (a)(4), but has considered other evidence, such as contrary test results or diagnoses, in rebuttal of the presumption when raised. 3 Edward Justice v. Jewell Ridge Coal Corporation, 3 B.L.R. 1-547, 1-552 (1981). See also, Fred J. Marshall v. The Youghiogheny & Ohio Coal Company, 2 B.L.R. 1-746, 1-756-759 (1979), and the cases cited therein for examples of the types of documentation which have previously been deemed sufficient to justify the conclusion that a physician was “exercising reasoned medical judgment” thereby satisfying the requirements of subsection (a)(4).

If this past practice was followed in the present case, the ALJ would be allowed to rely on Dr. Odom’s and Dr. Rivera’s conclusions jointly and thereby determine that the presumption in subsection (a)(4) has been raised. The ALJ would then consider the respondent’s smoking habit, and the opinion of the more qualified x-ray reader that the x-rays relied upon by Dr. Odom were unreadable, as rebuttal evidence. I consider this procedure to be preferable because it imposes upon the AU the duty to consider and weigh all the evidence contained in the record in assessing the merits of a particular claim, but does not require the ALJ to substitute his or her own opinion for that of *258 qualified members of the medical profession.

. The cases cited by the Director in support of the contention that the Benefits Review Board should have remanded the case to the ALJ for reconsideration of the entire record and for explicit evaluation of all the evidence contained therein are Albert D. Rasel v. Bethlehem Mines Corp., 1 B.L.R. 1-918 (1978); Edna Gerhardt v. Saraha Coal Company, Inc., 1 B.L.R. 1-405 (1978); Ersilio Marsella v. Starvaggi Industries, Inc., 2 B.L.R. 1-286 (1979); Fred J. Marshall v. The Youghiogheny & Ohio Coal Co., 2 B.L.R. 1-746 (1979); Edward Justice v. Jewell Ridge Coal Corp., 3 B.L.R. 1-547 (1981); Lee Hopwood v. Sextet Mining Corp., 3 B.L.R. 1-477 (1981).

This case stands in contrast to the cases listed above for, as was conceded by the petitioner in oral argument, remand is not likely to alter the ultimate outcome of the present case. In fact, the evidence which the ALJ failed to consider, Dr. Odom’s report, lends additional support to the ALJ’s initial decision to award benefits to the respondent. While appropriate, remand in this case will therefore serve only to insure that the basis for this award of benefits is adequately articulated and thereby preserve the procedural integrity of the system. While these goals are not without merit, it appears to me that the time and energy available to the Benefits Review Board and the ALJ might be better spent on consideration of pending cases in which the outcome has yet to be determined.

. De novo is defined as “anew; afresh; a second time” in Black’s Law Dictionary (4th ed. 1968).

. The Board has previously held that a single reasoned medical opinion which establishes the existence of a totally disabling respiratory or pulmonary impairment establishes a prima facie case entitling claimant to invocation of the Section 727.203 presumption pursuant to Subsection (a)(4). Stiner v. Bethlehem Mines Corp., ___ BLR ___, BRB No. 80-935 BLA (June 11, 1981). All other medical reports of record containing conflicting evidence as to the extent of claimant’s impairment, if any, must be considered along with all other medical evidence in rebuttal pursuant to Section 727.203(b). 20 C.F.R. § 727.203 (b).

Edward Justice v. Jewell Ridge Coal Corp., 3 B.L.R. 1-547, 1-552 (1981).