Russell W. Byrd v. Red Bone Mining Company (Board decision, March 25, 2025)

BRB interlocutory order. The Benefits Review Board vacated the administrative law judge's denial of black lung benefits and remanded the claim for new disability findings. 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 § 802.407.

Plain-English summary

Russell W. Byrd sought black lung benefits after thirty-three years of coal mine work. The judge found simple and legal pneumoconiosis but denied benefits because he found no totally disabling respiratory impairment. The Board held that the judge could not favor a later, nonqualifying breathing test solely because it was newer than an earlier qualifying test. That error also affected how he weighed the conflicting medical opinions, and he had not compared their assessments with the heavy demands of Byrd's mine work. The Board vacated the benefits denial and directed the judge to reconsider disability and, if needed, the fifteen-year presumption and entitlement.

Decision snapshot

• Authority: Total disability under 20 C.F.R. § 718.204(b)(2); fifteen-year presumption under 30 U.S.C. § 921(c)(4).
• Outcome: Benefits denial vacated in part and remanded; entitlement remains open.
• Key point: A later test showing improvement cannot receive greater weight based only on its date.

Full text (DOL BRB public release)

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

BRB No. 24-0300 BLA

RUSSELL W. BYRD
)
)
Claimant-Petitioner
)
)
v. )
)
RED BONE MINING COMPANY
)
)
and
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NOT-PUBLISHED
)
BRICKSTREET MUTUAL INSURANCE
)
COMPANY INCORPORATED
) DATE ISSUED: 03/25/2025
)
Employer/Carrier-Respondents )
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
)
DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Drew A. Swank, Administrative Law Judge, United States Department of Labor.

Deanna Lyn Istik (Sinatra & Istik Law Office, PLLC), Cranberry Township, Pennsylvania, for Claimant.

Jason H. Halbert and Joseph D. Halbert (Halbert Legal, PLLC), Lexington, Kentucky, for Employer.

Simon Jacobs (Jonathan Snare, Deputy Solicitor of Labor; Jennifer Feldman Jones, Acting Associate Solicitor; William M. Bush, Acting Counsel for Administrative Appeals), Washington, D.C., for the Acting Director, Office of Workers’ Compensation Programs, United States Department of Labor.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and JONES, Administrative Appeals Judges.

PER CURIAM:

Claimant appeals Administrative Law Judge (ALJ) Drew A. Swank’s Decision and Order Denying Benefits (2023-BLA-06095) rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves a subsequent claim filed on November 2, 2022.1

The ALJ found Claimant established the existence of simple clinical pneumoconiosis and legal pneumoconiosis but did not establish complicated pneumoconiosis and thus could not invoke the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); 20 C.F.R.
§718.304. He credited Claimant with thirty-three years of coal mine employment, based on the parties’ stipulation, but found Claimant did not establish a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Thus, he concluded Claimant did not invoke the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018),2 or establish a change in an applicable condition of entitlement.3 20 C.F.R. §§718.305, 725.309(c). Because Claimant failed to establish an essential element of entitlement, the ALJ denied benefits.

1
Claimant filed a prior claim on September 12, 2018, which the ALJ denied on September 29, 2021, because although he found Claimant established the existence of legal pneumoconiosis, he determined Claimant failed to establish a totally disabling respiratory or pulmonary impairment. Decision and Order at 2; Director’s Exhibit 1. Claimant took no further action until filing his current claim. Director’s Exhibit 3.
2
Section 411(c)(4) of the Act provides a rebuttable presumption that a miner is totally disabled due to pneumoconiosis if he has at least fifteen years of underground or substantially similar surface coal mine employment and a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §718.305.
3
When a miner files a claim for benefits more than one year after the denial of a previous claim becomes final, the ALJ must also deny the subsequent claim unless he 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” 2
On appeal, Claimant argues the ALJ erred in finding he failed to establish a total respiratory or pulmonary disability. 20 C.F.R. §718.204(b)(2). Employer responds in support of the denial of benefits. The Acting Director, Office of Workers’ Compensation Programs (the Director), also responds, agreeing with Claimant that remand is necessary based on the ALJ’s weighing of the pulmonary function study and medical opinion evidence at 20 C.F.R. §718.204(b)(2)(i), (iv).4

The Benefits Review Board’s scope of review is defined by statute. We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.5 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Invocation of the Section 411(c)(4) Presumption: Total Disability

To invoke the Section 411(c)(4) presumption, Claimant must establish he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.305(b)(1)(iii). A miner is totally disabled if his pulmonary or respiratory impairment, standing alone, prevents him from performing his usual coal mine work or comparable gainful work. See 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on qualifying pulmonary function or arterial blood gas studies,6 evidence of pneumoconiosis and cor

are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(c)(3). Because the ALJ denied Claimant’s prior claim for failure to establish total disability, he has to submit new evidence establishing that element in order to obtain review of his current claim on the merits. See 20 C.F.R. §725.309(c)(3), (4); White, 23 BLR at 1-3.
4
We affirm, as unchallenged on appeal, the ALJ’s finding that Claimant established thirty-three years of coal mine employment and legal and simple clinical pneumoconiosis but did not establish complicated pneumoconiosis. Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 4, 11, 18; Hearing Transcript at 6.
5
The Board will apply the law of the United States Court of Appeals for the Fourth Circuit because Claimant performed his last coal mine employment in West Virginia. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Hearing Transcript at 13; Director’s Exhibit 4.
6
A “qualifying” pulmonary function study or blood gas study yields results equal to or less than the applicable table values contained in Appendices B and C of 20 C.F.R. Part 718, respectively. A “non-qualifying” study yields results exceeding those values. See 20 C.F.R. §718.204(b)(2)(i), (ii).

3 pulmonale with right-sided congestive heart failure, or medical opinions. 20 C.F.R.
§718.204(b)(2)(i)-(iv). The ALJ must weigh all relevant supporting evidence against all relevant contrary evidence. See Defore v. Ala. By-Products Corp., 12 BLR 1-27, 1-28-29 (1988); Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff’d on recon., 9 BLR 1-236 (1987) (en banc). The ALJ found Claimant did not establish total disability by any method. 20 C.F.R. §718.204(b)(2)(i)-(iv); Decision and Order at 25.

Claimant concedes that the blood gas studies are not qualifying and that there is no evidence of cor pulmonale with right-sided congestive heart failure. Claimant’s Brief at 7. Thus, we affirm the ALJ’s findings that Claimant has not established total disability at 20 C.F.R. §718.204(b)(2)(ii), (iii). Skrack, 6 BLR at 1-711; Decision and Order at 22. However, Claimant argues the ALJ erred in weighing the pulmonary function study and medical opinion evidence. Claimant’s Brief at 7-10. We agree.

Pulmonary Function Study Evidence

The ALJ considered two pulmonary function studies dated December 14, 2022, and April 20, 2023. 20 C.F.R. §718.204(b)(2)(i); Decision and Order at 20; Director’s Exhibits 16, 29. The December 14, 2022 study produced qualifying values before the administration of a bronchodilator and non-qualifying values after. Director’s Exhibit 16. The April 20, 2023 study produced non-qualifying values before and after the administration of a bronchodilator. Director’s Exhibit 29. Noting that the more recent April 20, 2023 study had non-qualifying values, the ALJ stated:

As more weight may be accorded to the results of a recent ventilatory study over those of an earlier study, the undersigned finds that Claimant has failed to demonstrate the existence of a total pulmonary/respiratory disability pursuant to 20 [C.F.R.] § 718.204(b)(2)(i) as the admitted pulmonary function test results failed to qualify.

Decision and Order at 21. Claimant and the Director argue the ALJ erred in discounting the December 14, 2022 study solely because the April 20, 2023 study was more recent. Claimant’s Brief at 10; Director’s Brief at 1-3 (unpaginated). Employer asserts that regardless of recency, Claimant has not carried his burden as the pulmonary function study evidence is, at best, in equipoise. Employer’s Brief at 5. However, the Director states the Board is not authorized to reweigh the evidence and therefore the case must be remanded. Director’s Brief at 3 (unpaginated). We agree with Claimant’s and the Director’s arguments.

4
The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, has held it irrational to credit evidence solely because of recency if it shows the miner’s condition has improved. See Adkins v. Director, OWCP, 958 F.2d 49, 51-52 (4th Cir. 1992); see also Thorn v. Itmann Coal Co., 3 F.3d 713, 719 (4th Cir. 1993); Kincaid v. Island Creek Coal Co., 26 BLR 1-43, 1-50-52 (2023). Because the ALJ gave more weight to the April 2023 pulmonary function study solely based on its recency, we vacate his finding at 20 C.F.R. §718.204(b)(2)(i). See Decision and Order at 21.

Medical Opinion Evidence

In weighing the medical opinion evidence, the ALJ initially determined Claimant’s “last job as a section mechanic” required “heavy exertional work.” Decision and Order at 22-23 n.19. We affirm this finding as unchallenged. Skrack, 6 BLR at 1-711.

He then considered four medical opinions. Drs. Celko and Go opined Claimant is totally disabled, while Drs. Fino and Rosenberg opined he is not. Director’s Exhibits 16, 20, 29; Claimant’s Exhibits 2, 4; Employer’s Exhibits 2, 4, 5. Dr. Celko performed the Department of Labor-sponsored complete pulmonary evaluation of Claimant on December 14, 2022, conducting pulmonary function and blood gas studies, taking Claimant’s smoking and coal mine employment histories, and recording the results of his physical examination. Director’s Exhibit 16. Based on Claimant’s “moderately severe obstructive ventilatory pattern” and “moderate reduction of the diffusing capacity” observed on the pulmonary function study, Dr. Celko concluded Claimant does not have the pulmonary capacity to perform his usual coal mine employment or equivalent employment that required very heavy physical labor. Id. at 1-2. In his supplemental report, Dr. Celko reviewed the non-qualifying April 20, 2023 pulmonary function study but indicated “[t]he difference in objective test results . . . could simply be due to the normal week to week variation seen in patients with COPD [chronic obstructive pulmonary disease] as outlined in the ATS [American Thoracic Society] interpretive guidelines.” Director’s Exhibit 20 at

1. He therefore reiterated his opinion that, from a pulmonary standpoint, Claimant is totally
   disabled from performing his usual coal mine work or equivalent job. Id. at 1-2. Dr. Go conducted a review of Claimant’s medical records and opined Claimant is totally disabled based on his “multiple diffusion capacity test abnormalities” and does not have the pulmonary capacity to continue his previous coal mine employment as a section mechanic, which required heavy physical labor. Claimant’s Exhibit 2 at 7. In his supplemental opinion, based on a review of Drs. Fino’s and Rosenberg’s reports, Dr. Go continued to find Claimant is totally disabled based on his diffusion abnormalities. Claimant’s Exhibit 4 at 2.

   Dr. Fino examined Claimant, conducted a review of Claimant’s medical records,
   and opined he has a mild obstructive defect, air trapping, and reduced diffusion capacity
   5
   based on the results of the objective studies. Director’s Exhibit 29 at 9. However, he found Claimant is not totally disabled from a respiratory standpoint “based on his FEV1 values
   [on pulmonary function testing] and his exercise testing.” Id. at 15. In his supplemental opinion, based on a review of Drs. Celko’s and Rosenberg’s reports, Dr. Fino reiterated his finding that Claimant is not totally disabled from performing his usual coal mine work. Employer’s Exhibit 4 at 1-2. Dr. Rosenberg conducted a review of Claimant’s medical records and opined that while Claimant “has displayed variable degrees of airflow obstruction with a bronchodilator response” on the objective studies, he is not totally disabled from a respiratory standpoint. Employer’s Exhibit 2 at 7. In his supplemental opinion, Dr. Rosenberg reiterated that Claimant could perform his usual coal mine work from a pulmonary perspective. Employer’s Exhibit 5 at 1.

   The ALJ found the physicians’ qualifications “roughly equivalent.” Decision and
   Order at 25. Noting that the diagnostic testing data does not support a finding of total disability, he determined that “it supports the conclusions of Drs. Fino and Rosenberg better than those of Drs. Celko and Go.” Id. He stated Dr. Celko’s opinion, that the improvement of Claimant’s pulmonary function testing results could be due to normal variations in COPD patients, “cuts both ways” as Dr. Celko’s testing results “could have just as easily been as much of an anomaly as the results from Dr. Fino’s testing.” Id. Therefore, he determined the conflicting medical opinion evidence is at best in equipoise. Id. Considering the “totality of the evidence,” including the diagnostic results and the “recency of Dr. Fino’s examination in comparison to Dr. Celko’s,” the ALJ found Drs. Fino’s and Rosenberg’s opinions better reasoned and entitled to more weight. Id. Thus, he found Claimant failed to establish total disability based on the medical opinions. 20 C.F.R. §718.204(b)(2)(iv); Decision and Order at 25.

   Because the ALJ’s improper weighing of the pulmonary function study evidence
   

   affected his credibility determinations regarding the medical opinions at 20 C.F.R.
   §718.204(b)(2)(iv), we vacate them. Decision and Order at 25. In addition, as Claimant and the Director contend, the ALJ’s reliance solely on the recency of Dr. Fino’s examination when crediting his opinion over Dr. Celko’s is also an invalid basis for weighing the medical opinions. Decision and Order at 25; Claimant’s Brief at 10; Director’s Brief at 3 (unpaginated); see Thorn, 3 F.3d at 718 (when weighing different medical opinions, “[a] bare appeal to ‘recency’ is an abdication of rational decision making”). Further, as Claimant asserts, in determining whether a miner is totally disabled, the ALJ must compare the exertional requirements of the miner’s usual coal mine work with the physicians’ description of the miner’s pulmonary impairment and physical limitations. See Lane v. Union Carbide Corp., 105 F.3d 166, 172 (4th Cir. 1997); Eagle v. Armco Inc., 943 F.2d 509, 512 n.4 (4th Cir. 1991); Claimant’s Brief at 7-9. In this case, although the ALJ found Claimant’s “last” coal mine work as a section mechanic required heavy physical labor, he failed to compare those requirements with the physicians’
   6
   assessments to determine whether their opinions support a finding of total respiratory disability. 20 C.F.R. §718.204(b)(2)(iv); see Lane, 105 F.3d at 172; Eagle, 943 F.2d at 512 n.4; see also Cornett v. Benham Coal, Inc., 227 F.3d 569, 578 (6th Cir. 2000) (even a mild impairment may be totally disabling depending on the exertional requirements of a miner’s usual coal mine employment); McMath v. Director, OWCP, 12 BLR 1-6, 1-9 (1988); Decision and Order at 23 n.19.

   Thus, we vacate the ALJ’s finding that Claimant did not establish total disability
   based on the medical opinions or in consideration of the evidence as a whole. Decision and Order at 25. Consequently, we vacate the ALJ’s denial of benefits and remand the case for the ALJ to determine if Claimant can invoke the Section 411(c)(4) presumption or otherwise establish his entitlement to benefits under 20 C.F.R. Part 718.7

                              Remand Instructions
   

   On remand, the ALJ must reconsider the pulmonary function study and medical
   opinion evidence and resolve the conflicting evidence without regard to recency alone to determine whether Claimant established total disability at 20 C.F.R. §718.204(b)(2)(i), (iv). See Thorn, 3 F.3d at 718 (4th Cir. 1993); Adkins, 958 F.2d at 51-52. He must also determine whether the physicians had an adequate understanding of Claimant’s usual coal mine employment, compare those requirements with the physicians’ assessments, and reevaluate whether the medical opinion evidence supports a finding of total disability at 20 C.F.R. §718.204(b)(2)(iv). See Lane, 105 F.3d at 172; Eagle, 943 F.2d at 512 n.4; see also Cornett, 227 F.3d at 578. In rendering his credibility findings, the ALJ must consider the comparative credentials of the physicians, the explanations for their conclusions, the documentation underlying their medical judgments, and the sophistication of and bases for their diagnoses. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533 (4th Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997).

   7
   To be entitled to benefits under the Act, Claimant must establish disease
   (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C. §901; 20 C.F.R.
   §§718.3, 718.202, 718.203, 718.204. Statutory presumptions may assist claimants in establishing the elements of entitlement if certain conditions are met, but failure to establish any of them precludes an award of benefits. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).

                                          7
   

   If the ALJ determines total disability is demonstrated by the pulmonary function
   studies or medical opinions, or both, he must reweigh all the relevant evidence together to determine whether Claimant established total disability. 20 C.F.R. §718.204(b)(2); see Fields v. Island Creek Coal Co., 10 BLR 1-19, 1-21 (1987); Shedlock, 9 BLR at 1-198. If Claimant fails to establish total disability, the ALJ may reinstate the denial of benefits. See Anderson, 12 BLR at 1-112; Trent, 11 BLR at 1-27; Perry, 9 BLR at 1-2.

   However, if Claimant establishes total disability, the ALJ must determine whether
   Claimant can establish that at least fifteen of his thirty-three years of coal mine employment to which the parties stipulated were performed underground or in substantially similar coal mine employment in order to invoke the Section 411(c)(4) presumption. Decision and Order at 4; Hearing Transcript at 6, 12; see Director’s Exhibits 4, 6. If Claimant invokes the presumption, he will have established a change in an applicable condition of entitlement. The ALJ must then determine whether Employer has rebutted the presumption. 20 C.F.R. §§718.305(b), (d)(1), 725.309(c).

   In rendering his credibility determinations and findings on remand, the ALJ must
   explain his decision in compliance with the Administrative Procedure Act.8 See Wojtowicz v. Duquesne Light Co., 12 BLR 1-162, 1-165 (1989).

   8
   The Administrative Procedure Act provides that every adjudicatory decision must
   include “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented . . . .” 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a).

                                         8
   

   Accordingly, we affirm in part and vacate in part the ALJ’s Decision and Order
   Denying Benefits and remand the case to the ALJ for further consideration consistent with this opinion.

   SO ORDERED.

                                    DANIEL T. GRESH, Chief
                                    Administrative Appeals Judge
   
                                    JUDITH S. BOGGS
                                    Administrative Appeals Judge
   
                                    MELISSA LIN JONES
                                    Administrative Appeals Judge
   
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