Elbert Williams v. Whitaker Coal Company and Wells Fargo Disability Management (Board decision, February 28, 2018)

BRB interlocutory order. This unpublished decision is not precedent. The Benefits Review Board remanded the matter for further proceedings. Entitlement remains unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Elbert Williams received black lung benefits after the labor judge found complicated pneumoconiosis. The Board found errors in the judge’s evaluation of the X-ray and medical opinion evidence. It vacated the complicated pneumoconiosis finding and the resulting award, and remanded for a new assessment of the evidence.

Decision snapshot

• Authority: 20 C.F.R. § 718.304.
• Outcome: Benefits award affirmed in part, vacated in part, and remanded.
• Key point: The judge must reconsider the evidence of complicated pneumoconiosis.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 17-0228 BLA

ELBERT WILLIAMS
)
)
Claimant-Respondent
)
)
v. )
)
WHITAKER COAL COMPANY
)
)
and
)
)
WELLS FARGO DISABILITY
)
MANAGEMENT
) DATE ISSUED: 02/28/2018
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) DECISION and ORDER

Appeal of the Decision and Order of Christopher Larsen, Administrative Law Judge, United States Department of Labor.

Ronald E. Gilbertson (Gilbertson Law, LLC), Columbia, Maryland, for employer/carrier.

Jeffrey S. Goldberg (Kate S. O’Scannlain, Solicitor of Labor; Maia S.
Fisher, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
 Before: HALL, Chief Administrative Appeals Judge, GILLIGAN and ROLFE, Administrative Appeals Judges.

PER CURIAM:

Employer/carrier (employer) appeals the Decision and Order (2012-BLA-05762) of Administrative Law Judge Christopher Larsen awarding benefits on a claim filed pursuant to provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act). This case involves a subsequent claim filed on March 28, 2011.1

After crediting claimant with at least thirty-two years of coal mine employment,2 the administrative law judge found that the new evidence did not establish that the claimant is totally disabled pursuant to 20 C.F.R. §718.204(b)(2). Because claimant failed to establish that he is totally disabled, the administrative law judge found that claimant did not invoke the rebuttable presumption of total disability due to pneumoconiosis provided at Section 411(c)(4) of the Act.3 30 U.S.C. §921(c)(4) (2012). However, the administrative law judge found that the new evidence established the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304. He therefore found that claimant invoked the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3).4 The administrative law judge further found that claimant’s complicated pneumoconiosis arose out of coal mine employment pursuant to 20 C.F.R. §718.203(b). Accordingly, the administrative law judge awarded benefits.

1
Claimant’s first claim, filed on May 10, 1973, was denied by the district director on August 27, 1980, because the evidence did not establish the existence of pneumoconiosis. Director’s Exhibit 1.
2
The record reflects that claimant’s last coal mine employment was in Kentucky. Director’s Exhibit 4. Accordingly, the Board will apply the law of the United States Court of Appeals for the Sixth Circuit. See Shupe v. Director, OWCP, 12 BLR 1- 200, 1-202 (1989) (en banc). .
3
Section 411(c)(4) of the Act provides a rebuttable presumption that a miner is totally disabled due to pneumoconiosis in cases where fifteen or more years of qualifying coal mine employment and a totally disabling respiratory impairment are established. 30 U.S.C. §921(c)(4) (2012); see 20 C.F.R. §718.305.
4
Because claimant invoked the irrebuttable presumption of total disability due to pneumoconiosis, the administrative law judge found that claimant established a change in an applicable condition pursuant to 20 C.F.R. §725.309.

2
 On appeal, employer argues that the administrative law judge erred in finding that the evidence established the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304. Employer also contends that the administrative law judge erred in finding that claimant established a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309(c).5 Claimant has not filed a response brief. The Director, Office of Workers’ Compensation Programs, has filed a limited response, requesting that the Board instruct the administrative law judge that he may take official notice of several documents pertaining to the credibility of Dr. Wheeler’s x-ray interpretation, if the Board vacates the administrative law judge’s findings regarding the existence of complicated pneumoconiosis.6

The Board’s scope of review is defined by statute. The administrative law judge’s Decision and Order must be affirmed if it is rational, supported by substantial evidence,

5
Nine months after filing its brief in support of the petition for review, and six months after the briefing schedule closed, employer moved to hold this case in abeyance pending a decision from the United States Supreme Court in Lucia v. SEC, 832 F.3d 277 (D.C. Cir. 2016), aff’d on reh’g, 868 F.3d 1021 (Mem.) (2017), cert. granted, U.S. , 2018 WL 386565 (Jan. 12, 2018). In its motion, employer argues for the first time that the manner in which Department of Labor administrative law judges are appointed may violate the Appointments Clause of the Constitution, Art. II § 2, cl. 2. Employer’s Motion at 2-4. Because the Supreme Court will address in Lucia whether Securities and Exchange Commission administrative law judges are “inferior officers” within the meaning of the Appointments Clause, employer requests that this case be held in abeyance until the Court resolves the issue. Id. The Director, Office of Workers’ Compensation Programs (the Director), responds that employer waived this argument by failing to raise it in its opening brief. We agree with the Director. We generally will not consider new issues raised by the petitioner after it has filed its brief identifying the issues to be considered on appeal. See Williams v. Humphreys Enters., Inc., 19 BLR 1- 111, 1-114 (1995); Senick v. Keystone Coal Mining Co., 5 BLR 1-395, 1-398 (1982). And while we retain the discretion in exceptional cases to consider nonjurisdictional constitutional claims that were not timely raised, Freytag v. Comm’r, 501 U.S. 868, 879 (1991), employer has not attempted to show why this case so qualifies. Because employer did not raise the Appointments Clause issue in its opening brief, it waived the issue. Therefore, employer’s motion to hold this case in abeyance is denied.
6
In support of his argument, the Director identifies several documents “pertaining to the credibility” of Dr. Wheeler’s reading of the June 8, 2011 x-ray, including BLBA Bulletin 14-09, issued June 2, 2014, which instructs district directors to not credit Dr. Wheeler’s negative readings for pneumoconiosis in the absence of persuasive evidence rehabilitating his readings. Director’s Brief at 2.

3 and in accordance with applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

To establish entitlement to benefits under the Act, claimant must demonstrate by a preponderance of the evidence that he is totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Where a miner files a claim for benefits more than one year after the final denial of a previous claim, the subsequent claim must also be denied unless the administrative law judge finds that “one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. §725.309(c); White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(c)(3). Claimant’s prior claim was denied because he failed to establish the existence of pneumoconiosis. Director’s Exhibit 1. Consequently, to obtain review of the merits of his claim, claimant had to submit new evidence establishing the existence of pneumoconiosis. 20 C.F.R. §725.309(c).

Complicated Pneumoconiosis

Under Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), and its implementing regulation, 20 C.F.R. §718.304, there is an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if the miner is suffering from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. The administrative law judge must determine whether the evidence in each category tends to establish the existence of complicated pneumoconiosis, and then must weigh together the evidence at subsections (a), (b), and (c) before determining whether claimant has invoked the irrebuttable presumption. See Gray v. SLC Coal Co., 176 F.3d 382, 388-89, 21 BLR 2- 615, 2-626-29 (6th Cir. 1999); Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33 (1991) (en banc).

Section 718.304(a)

Employer contends that the administrative law judge erred in finding that the x-ray evidence established the existence of complicated pneumoconiosis pursuant to 20 C.F.R.
§718.304(a). Specifically, employer argues that the administrative law judge erred in his weighing of the interpretations of the new x-rays taken on November 10, 2010, June 8, 2011, and June 28, 2012.

4
 In evaluating the interpretations of the three new x-rays, the administrative law judge accurately noted that Dr. Miller’s positive interpretation of the November 10, 2010 x-ray,7 as well as Dr. West’s negative interpretation of the June 28, 2012 x-ray,8 are the only interpretations of these films. Decision and Order at 18; Claimant’s Exhibit 2; Employer’s Exhibit 2. The administrative law judge therefore found that the November 10, 2010 x-ray is positive for complicated pneumoconiosis, while the June 28, 2012 x-ray is negative for the disease. Id.

The record contains conflicting interpretations of the third x-ray, dated June 8,
2011. Dr. Westerfield, a B reader, read the June 8, 2011 x-ray as positive for Category B large opacities, and smaller opacities of simple pneumoconiosis. Director’s Exhibit 13. Dr. Westerfield further noted the presence of granulomas and commented that the “right upper lobe large opacity could be [a] neoplasm.” Id. Dr. Gaziano, a B reader, who reviewed the June 8, 2011 x-ray to assess its film quality only, commented that the x-ray revealed “probable complicated pneumoconiosis.”9 Id. Conversely, Dr. Wheeler, a Board-certified radiologist and B reader, interpreted the June 8, 2011 film as negative for simple and complicated pneumoconiosis. Director’s Exhibit 14. Dr. Wheeler identified a six-centimeter mass in the right upper lobe “compatible with granulomatous disease: histoplasmosis, or mycobacterium avium complex (MAV) more likely than
[tuberculosis].” Id. Dr. Wheeler further noted:

  Get CT scan to show any calcified granulomata it may contain which can
  be hidden by high kV technique . . . .

                                       ***

  Small nodules in [right upper lobe] are not CWP because pattern is
  asymmetrical and mainly in [right upper lobe]. Mass in [right upper lobe]
  is not large opacity of CWP because background nodules are very low
  profusion.



  7
    Dr. Miller, a Board-certified radiologist and B reader, diagnosed complicated

pneumoconiosis after identifying Category B large opacities, and smaller opacities of simple pneumoconiosis. Claimant’s Exhibit 2.
8
Dr. West, a Board-certified radiologist and B reader, interpreted the x-ray as
negative for simple and complicated pneumoconiosis. Employer’s Exhibit 2. Dr. West, however, checked “cg” (calcified granuloma) on the x-ray report.
9
Dr. Gaziano also noted that a “tumor mass” needed to be ruled out. Director’s
Exhibit 13.
5
 Mass is most likely histoplasmoma judging from calcified granulomata
because histoplasmosis is most common cause of calcified granulomata in
America. However, diagnosis should have been made with biopsy or
microbiology when lung symptoms first developed or first abnormal x-ray
was reported. If untreated, histoplasmosis is the granulomatous disease
most likely to self-cure.

Director’s Exhibit 14.

The administrative law judge found that Dr. Wheeler’s radiological qualifications were superior to those of Drs. Westerfield and Gaziano, but found that Dr. Wheeler’s x- ray interpretation was “internally inconsistent” and did not “refute [the] positive interpretations.” Decision and Order at 19. Consequently, the administrative law judge found the June 8, 2011 x-ray was positive for complicated pneumoconiosis. Id.

After finding the November 10, 2010 and June 8, 2011 x-rays positive for complicated pneumoconiosis, and the most recent June 28, 2012 x-ray negative for complicated pneumoconiosis, the administrative law judge weighed them together:

I decline to give the negative x-ray reading controlling weight solely on the basis that it is more recent. Pneumoconiosis is a progressive and irreversible disease. While later positive x-rays could be more probative than earlier negative x-rays, in this case the situation is reversed.
Consequently, it is more likely that Dr. West’s negative interpretation is a false negative, rather than assuming that [claimant’s] condition somehow improved in the interim. As two chest x-rays are positive for complicated pneumoconiosis and only one is negative, I find that the chest x-ray evidence on the whole favors a finding of complicated pneumoconiosis.

Decision and Order at 19. Thus, the administrative law judge found that the x-ray evidence established complicated pneumoconiosis pursuant to 20 C.F.R. §718.304(a).

Employer contends that the administrative law judge committed numerous errors in his consideration of the June 8, 2011 x-ray. Employer initially argues that the administrative law judge erred by failing to consider Dr. Westerfield’s notation of “granulomas” and his comment that the “right upper lobe large opacity could be [a] neoplasm.” Employer’s Brief at 15; Director’s Exhibit 13. We agree. An administrative law judge must consider a physician’s entire x-ray report at 20 C.F.R. §718.304(a), including any additional notations by the physician, because comments that constitute an alternative diagnosis could call into question the physician’s diagnosis of complicated pneumoconiosis. Melnick, 16 BLR at 1-37. On remand, the administrative law judge should discuss Dr. Westerfield’s entire x-ray report, including his additional notations.

6
 We also agree with employer that the administrative law judge erred in his consideration of Dr. Gaziano’s film quality report. Because Dr. Gaziano’s review was for quality purposes only, the administrative law judge erred in treating it as a substantive reading. Moreover, although Dr. Gaziano stated that the June 8, 2011 x-ray revealed “probable pneumoconiosis,” the doctor did not address the size of the opacities, or designate any opacities as Category A, B, or C, as required by 20 C.F.R. §718.304(a). Director’s Exhibit 13. Consequently, Dr. Gaziano’s x-ray interpretation is not properly classified, and is insufficient to support a finding of complicated pneumoconiosis.

Employer finally contends that the administrative law judge erred in his consideration of Dr. Wheeler’s negative interpretation. The administrative law judge accorded less weight to Dr. Wheeler’s x-ray interpretation because the doctor opined that claimant’s “calcified granulomata” were most likely histoplasmosis, despite his assertion that calcified granulomatous disease requires a diagnosis on CT scan. Decision and Order at 18; Director’s Exhibit 14. Contrary to the administrative law judge’s characterization, Dr. Wheeler did not indicate that he required a CT scan to confirm his diagnosis of the presence of calcified granuloma. Dr. Wheeler indicated only that a CT scan could show “any calcified granulomata . . . which can be hidden by high kV technique.”10 Director’s Exhibit 14. Moreover, as employer notes, the administrative law judge failed to recognize that a subsequent CT scan taken on June 28, 2012 was, in fact, interpreted as revealing “multiple scattered calcified granulomas.” Employer’s Exhibit 8.

The administrative law judge also found that Dr. Wheeler’s interpretation was “internally inconsistent,” stating that:

Dr. Wheeler asserts that [claimant’s] large opacity was not a form of complicated pneumoconiosis because [claimant’s] background nodules were of “very low profusion.” This statement is problematic for two reasons. First, Dr. Wheeler did not diagnose simple pneumoconiosis, so he failed to explain the consequence of the background nodules. Second, the regulations do not define complicated pneumoconiosis as a large opacity against a background of small opacities. As Dr. Wheeler’s x-ray interpretation is internally inconsistent, I decline to give it full weight.

Decision and Order at 19.

10
High kV technique refers to chest radiography using a kilovoltage of at least 125 kVp, usually 140–150 kVp, to reduce patient dose and increase latitude. http://www.medilexicon.com/dictionary/89860.

7
 Although the administrative law judge found that Dr. Wheeler’s x-ray interpretation was “internally inconsistent,” he failed to clearly identify the inconsistency or explain how it undermined Dr. Wheeler’s x-ray interpretation.11 Consequently, the administrative law judge’s analysis does not comply with the Administrative Procedure Act (APA), which provides that every adjudicatory decision must be accompanied by a statement of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” 5 U.S.C.
§557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a); see Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989). In light of the above-referenced errors, we vacate the administrative law judge’s finding that the x-ray evidence established the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304(a), and remand the case for further consideration.12 On remand, the administrative law judge must consider the number of x-ray interpretations, along with the readers’ qualifications, dates of film, quality of film, and the actual reading.13 See Dixon v. N. Camp Coal Co., 8 BLR 1-344 (1985); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); see also Wheatley v. Peabody Coal Co., 6 BLR 1-1214 (1984); see generally Gober v. Reading Anthracite Co., 12 BLR 1-67 (1988).

11
Dr. Wheeler consistently opined that the June 8, 2011 x-ray did not reveal simple or complicated pneumoconiosis. Director’s Exhibit 14. Although the administrative law judge found that the x-ray evidence supported a finding of simple pneumoconiosis, Decision and Order at 18, he did not provide any findings in support of this determination. Consequently, on remand, the administrative is instructed to reconsider whether the evidence establishes the existence of simple pneumoconiosis.
12
We also agree with employer that the administrative law judge failed to adequately explain his basis for finding that Dr. West’s negative interpretation of the June 28, 2012 x-ray is likely a “false negative.” 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a); see Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989); Decision and Order at 19; Employer’s Exhibit 2.
13
The Director has requested that the Board instruct the administrative law judge that he may take official notice on remand of items pertaining to the credibility of Dr. Wheeler’s x-ray interpretation. The decision to reopen the record or take official notice of a matter are procedural issues committed to the administrative law judge’s discretion. See Troup v. Reading Anthracite Coal Co., 22 BLR 1-14, 1-21 (1999) (en banc); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-153 (1989) (en banc).

8
Section 718.304(c)

Employer argues that the administrative law judge erred in finding that the evidence established the existence of complicated pneumoconiosis pursuant to 20 C.F.R.
§718.304(c).14 The record contains a range of other diagnostic evidence under 20 C.F.R.
§718.304(c), including treatment records, a negative interpretation of a June 28, 2012 CT scan, and medical opinion evidence.

Employer argues that the administrative law judge erred “by failing to explain why the treatment records do not support an inference that claimant does not have complicated pneumoconiosis.” Employer’s Brief at 11. We disagree. While an administrative law judge may conclude that treatment records not diagnosing complicated pneumoconiosis are probative of its absence, the administrative law judge is not required to do so. See generally Marra v. Consolidation Coal Co., 7 BLR 1-216, 1-218-19 (1984). Whether such evidence establishes the absence of pneumoconiosis is a question of fact committed to the administrative law judge. Id. at 1-219. Here, the administrative law judge considered claimant’s treatment records and noted that although an August 15, 2011 x- ray was interpreted as revealing “large opacities,” the reader did not provide an etiology for the disease. Decision and Order at 19. The administrative law judge also found that while Dr. Alam’s reference to a CT scan revealing “a 2.5 cm x 4.4 cm somewhat oval to rounded” opacity could be read as consistent with a diagnosis of complicated pneumoconiosis, it “stops short of such a diagnosis.” Id. He therefore found that the treatment records did not support a finding of complicated pneumoconiosis. Id. at 19-20. On the facts as found by the administrative law judge, no further explanation was required. See Marra, 7 BLR at 1-218-19.

However, we agree with employer that the administrative law judge erred in his consideration of the CT scan evidence. Dr. West, a Board-certified radiologist and B reader, interpreted a June 28, 2012 high-resolution CT scan as revealing “multiple scattered calcified granulomas.” Employer’s Exhibit 8. Dr. West opined that the findings were “most consistent with calcified and noncalcified granulomatous . . . scarring such as previous [tuberculosis] or fungal pneumonitis.” Id. Dr. West opined that these findings were “not typical for coal workers’ pneumoconiosis.” Id. The administrative law judge found this CT scan to be negative for both simple and complicated pneumoconiosis. Decision and Order at 20.

Despite finding that the June 28, 2012 CT scan was negative for complicated pneumoconiosis, the administrative law judge nevertheless found that it “did not exclude

14
The record does not contain any biopsy evidence submitted in connection with claimant’s subsequent claim. 20 C.F.R. §718.304(b).

9 the possibility that [claimant] had complicated pneumoconiosis.” Decision and Order at 21-22. The administrative law judge reasoned that Dr. West’s negative interpretation of the CT scan was called into question by Dr. Jarboe’s statement in his medical opinion that “scattered calcifications could be seen with silicotic nodules” and the belief of claimant’s treating pulmonologist, Dr. Alam, that claimant had “silicotic nodules.” Id. at 22.

We agree with employer that the administrative law judge failed to explain how Dr. Jarboe’s comments, and Dr. Alam’s findings, undermine Dr. West’s negative CT scan interpretation. Based upon his review of Dr. West’s negative interpretation of the high resolution CT scan, Dr. Jarboe opined that claimant does not suffer from complicated pneumoconiosis:

[T]he chest x-ray and the high resolution CT scan that was done [on June 28, 2012] showed fairly clearly that [claimant] has old granulomatous disease as a cause of the abnormalities on his chest x-ray. He does not have complicated pneumoconiosis. These nodules are calcified.

And he also had dense calcifications in the hilar lymph nodes which goes along with . . . granulomatous disease. The hilar lymph nodes don’t get that large in coal workers’ pneumoconiosis and they almost never calcify. They can, but that’s very rare. They calcify in silicosis – pure silicosis but not in coal workers’ disease.

Employer’s Exhibit 6 at 11-12.

Thus, Dr. Jarboe agreed with Dr. West that the high-resolution CT scan indicated that claimant does not suffer from complicated pneumoconiosis. Additionally, although Dr. Alam noted in a 2011 consultation report that an x-ray15 revealed “coal workers’ pneumoconiosis with silicotic nodules,” Director’s Exhibit 11, the administrative law judge did not explain why he credited Dr. Alam’s x-ray interpretation over the other x- ray evidence of record. We, therefore, instruct the administrative law judge, on remand, to reconsider the weight to accord Dr. West’s negative interpretation of the June 28, 2012 CT scan.

The administrative law judge also considered the medical opinions of Drs.
Westerfield, Jarboe, and Vuskovich. While Dr. Westerfield diagnosed complicated pneumoconiosis, Director’s Exhibit 13, Dr. Jarboe opined that claimant does not suffer from the disease. Employer’s Exhibits 3, 6. Dr. Vuskovich opined that claimant did not

15
In his consultation report, Dr. Alam did not identify the date of the x-ray.
Director’s Exhibit 11.

10 suffer from clinical pneumoconiosis. Employer’s Exhibit 7 at 10. The administrative law judge credited Dr. Westerfield’s opinion over those of Drs. Jarboe and Vuskovich because he found that Dr. Westerfield’s opinion was consistent with his determination that the x-ray evidence established the existence of complicated pneumoconiosis. Decision and Order at 21. In light of our decision to vacate the administrative law judge’s finding that the x-ray evidence established the existence of complicated pneumoconiosis, we also vacate his finding that the medical opinion evidence supported a finding of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304(c), and remand the case for further consideration.16

In summary, on remand, the administrative law judge must reconsider whether claimant has established the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304(a), (c). In rendering his Decision and Order on remand, the administrative law judge must explain the bases for all of his findings of fact and credibility determinations in accordance with the APA. See Wojtowicz¸ 12 BLR at 1- 165.

16
Because we have vacated the administrative law judge’s finding that the new evidence established the existence of complicated pneumoconiosis, we also vacate his finding that claimant established a change in an applicable condition of entitlement. 20 C.F.R. §725.309.

11
 Accordingly, the administrative law judge’s Decision and Order awarding benefits is affirmed in part and vacated in part, and the case is remanded to the administrative law judge for further consideration consistent with this opinion.

SO ORDERED.

BETTY JEAN HALL, Chief
Administrative Appeals Judge

RYAN GILLIGAN
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge