Russell Smallwood v. Presley Trucking Company, Incorporated and Granite State Insurance/AIG (Board decision, April 28, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's denial of black lung benefits. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Russell Smallwood filed a second black lung benefits claim after 14 years of coal mine work. The administrative law judge denied it because Smallwood had not shown a totally disabling respiratory impairment. The Board upheld the judge's weighing of three blood gas studies: one met the disability threshold, but two later studies did not. It also upheld the judge's decision to give less weight to a doctor's disability opinion that relied on the single qualifying study without adequately addressing Smallwood's mine work demands and the other test results. Because total disability remained unproven, the Board affirmed the denial.

Decision snapshot

• Authority: Total respiratory disability under 20 C.F.R. § 718.204(b)(2) and subsequent claims under § 725.309(c).
• Outcome: Black lung benefits denial affirmed.
• Key point: A single qualifying blood gas study did not establish total disability when the judge reasonably weighed it against two nonqualifying studies and the medical opinions.

Full text (DOL BRB public release)

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

BRB No. 24-0327 BLA

RUSSELL SMALLWOOD
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Claimant-Petitioner
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v. )
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PRESLEY TRUCKING COMPANY,
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INCORPORATED
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NOT-PUBLISHED
and
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GRANITE STATE INSURANCE/AIG
) DATE ISSUED: 04/28/2025
)
Employer/Carrier-
)
Respondents
)
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DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
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DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Steven D. Bell, Administrative Law Judge, United States Department of Labor.

Ward Ballerstedt (Morgan & Morgan), Louisville, Kentucky, for Claimant.

Daniel G. Murdock (Fulton, Devlin & Powers, LLC), Lexington, Kentucky, for Employer and its Carrier.

Before: GRESH, Chief Administrative Appeals Judge, JONES and ROLFE, Administrative Appeals Judges.
PER CURIAM:

Claimant appeals Administrative Law Judge (ALJ) Steven D. Bell’s Decision and Order Denying Benefits (2022-BLA-05069) rendered on a subsequent claim1 filed on September 2, 2020, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C.
§§901-944 (2018) (Act).

The ALJ credited Claimant with fourteen years of coal mine employment based on the parties’ stipulation, and thus found he could not invoke the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).2 Considering entitlement under 20 C.F.R. Part 718, the ALJ found Claimant did not establish he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R.
§718.204(b)(2). He, therefore, found Claimant did not establish a change in an applicable condition of entitlement,3 20 C.F.R. §725.309(c), and denied benefits.

On appeal, Claimant argues the ALJ erred in finding he is not totally disabled.
Employer and its Carrier (Employer) respond in support of the denial. The Acting Director, Office of Workers’ Compensation Programs, declined to file a response brief.

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

1
This is Claimant’s second claim for benefits. On June 18, 2019, the district director denied his prior claim, filed on September 6, 2017, for failure to establish total disability. Director’s Exhibit 39.
2
Section 411(c)(4) 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); see 20 C.F.R. §718.305.
3
When a claimant 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); see 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). Because the district director denied Claimant’s prior claim for failing to establish total disability, Claimant had to establish this element of entitlement to obtain review of the merits of this claim. See White, 23 BLR at 1-3; Director’s Exhibit 39.

2 accordance with applicable law.4 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).

Entitlement Under 20 C.F.R. Part 718

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. Failure to establish any one of these elements 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, 1-2 (1986) (en banc).

Total Disability

A miner is totally disabled if his respiratory or pulmonary impairment, standing alone, prevents him from performing his usual coal mine work and comparable gainful work. 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on qualifying pulmonary function studies and arterial blood gas studies,5 evidence of pneumoconiosis and cor 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 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).

4
The Board will apply the law of the United States Court of Appeals for the Sixth Circuit because Claimant performed his last coal mine employment in Kentucky. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Decision and Order at 4; Hearing Transcript at 8.
5
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
The ALJ found Claimant failed to establish total disability. Decision and Order at 6-14. Claimant contends the ALJ erred in weighing the blood gas study and medical opinion evidence.6 We disagree.

Blood Gas Studies

The ALJ considered three blood gas studies. Decision and Order at 9. Dr. Alam provided the Department of Labor (DOL)-sponsored complete pulmonary evaluation of Claimant and his December 1, 2020 study yielded qualifying values at rest, while the August 20, 2021 and May 26, 2022 blood gas studies that Drs. Rosenberg and Jarboe conducted, respectively, were non-qualifying at rest. Director’s Exhibit 23; Employer’s Exhibits 1 at 23; 2 at 21. No exercise blood gas studies were performed. Id. The ALJ concluded the preponderance of the blood gas study evidence is non-qualifying and thus does not support a finding of total disability. Decision and Order at 9.

Claimant contends the ALJ erred by not crediting Dr. Alam’s qualifying blood gas study, arguing that because Dr. Alam was “the DOL evaluator, who was not hired by either [C]laimant or the [E]mployer,” he alone is “unbiased.” Claimant’s Brief at 4 (unpaginated). In addition, Claimant contends the ALJ failed to consider that Employer’s physicians did not explain why their blood gas studies were inconsistent with Dr. Alam’s qualifying study. Id.

Contrary to Claimant’s contention, the opinion of a DOL physician cannot be accorded greatest weight due to his impartiality, absent evidence that the other physicians of record are biased. See Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-35-36 (1991) (en banc) (unless an ALJ identifies a specific basis for finding that a physician’s opinion reflects bias on behalf of an employer or a claimant, the ALJ should not automatically accord greatest weight to the opinion of a physician retained by the DOL). In this case, Claimant identified no evidence in the record indicating either of Employer’s physicians, Drs. Rosenberg or Jarboe, demonstrated bias. We therefore reject Claimant’s argument.

Moreover, the ALJ adequately explained how he weighed the blood gas study evidence. Decision and Order at 9. The ALJ specifically found the December 1, 2020 blood gas study reliable based on Dr. Gaziano’s validation of it. Moreover, Claimant does

6
We affirm, as unchallenged on appeal, the ALJ’s findings that Claimant did not establish total disability based on the pulmonary function studies and there is no evidence that Claimant has cor pulmonale with right-sided congestive heart failure. 20 C.F.R.
§718.204(b)(2)(i), (iii); see Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 6-9; Director’s Exhibit 27; Employer’s Exhibit 2; Claimant’s Brief at 3 (unpaginated).

4 not challenge the validity of the other two studies and no evidence suggests they are invalid. Id.; see also Director’s Exhibits 23, 26; Employer’s Exhibits 1 at 23; 2 at 21. In the absence of evidence demonstrating anything qualitatively wrong with the studies, the ALJ permissibly gave controlling weight to the greater number of non-qualifying studies. See Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267, 281 (1994); Sunny Ridge Mining Co. v. Keathley, 773 F.3d 734, 740 (6th Cir. 2014). We therefore affirm his conclusion that the blood gas study evidence does not support a finding of total disability. 20 C.F.R. §718.204(b)(2)(ii); Martin v. Ligon Preparation Co., 400 F.3d 302, 305 (6th Cir. 2005); Decision and Order at 9; Director’s Exhibit 23; Employer’s Exhibits 1 at 23; 2 at 21.

Medical Opinion Evidence

The ALJ considered three medical opinions.7 Dr. Alam examined Claimant on December 1, 2020, and opined he is totally disabled based on the results of the qualifying blood gas study that he conducted showing hypoxemia, Claimant’s reported symptoms, and an x-ray positive for pneumoconiosis. Director’s Exhibits 23 at 3, 5-6; 27 at 1-2. In contrast, Drs. Rosenberg and Jarboe opined he is not. Employer’s Exhibits 1-4.

Claimant argues the ALJ should have credited Dr. Alam’s opinion because it is well- reasoned and well-documented. Claimant’s Brief at 4 (unpaginated). Claimant further argues the ALJ should not have credited Drs. Rosenberg’s and Jarboe’s opinions because they “did not rebut the well-reasoned opinion [of total disability] from Dr. Alam.” Id.

But the ALJ permissibly discredited Dr. Alam’s opinion because he relied on the “qualifying” nature of the blood gas study he obtained, despite the ALJ’s finding the overall weight of the studies was non-qualifying, and because Dr. Alam “did not have an understanding of Claimant’s complete pulmonary picture,” and therefore did not discuss the exertional requirements of Claimant’s usual mine work in view of the “preponderantly” non-qualifying blood gas studies. See Decision and Order at 11, 14; Tennessee Consol. Coal Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989) (“The determination as to whether [a medical] report [is] sufficiently documented and reasoned is essentially a credibility matter” “for the factfinder to decide.”); Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir. 1983) (same); Director’s Exhibit 23 at 3, 5-6. The ALJ also permissibly discredited Dr. Alam’s opinion because he cited Claimant’s positive x-rays as evidence of Claimant’s

7
We affirm, as unchallenged on appeal, the ALJ’s finding that Claimant’s “job as a truck driver occasionally required heavy manual labor,” since it required him to regularly lift and carry 50 to 100 pounds “as needed” every day, although he “[m]ostly sat.” See Skrack, 6 BLR at 1-711; Decision and Order at 4; Director’s Exhibit 16 at 1.

5 total disability when x-rays are diagnostic of the presence of lung disease, but not the extent of a respiratory disability. See Short v. Westmoreland Coal Co., 10 BLR 1-127, 1-129 n.4 (1987) (“It is well settled that x-rays, while useful in determining the presence or absence of disease, are not diagnostic of the extent of a respiratory disability.”); Arnoni v. Director, OWCP, 6 BLR 1-423, 1-425 (1983) (same); Decision and Order at 11; Director’s Exhibit 23 at 5-6.

Moreover, the ALJ accurately concluded that Dr. Alam’s reliance on Claimant’s respiratory or pulmonary symptoms, standing alone, is insufficient to establish total disability. See Wright v. Director, OWCP, 8 BLR 1-245, 1-247 (1985) (merely reciting a claimant’s symptoms is not a finding of the degree or severity of his impairment); Bushilla v. North American Coal Corp., 6 BLR 1-365, 1-367 (1983) (same); Decision and Order at 11; Director’s Exhibit 23 at 5-6. Dr. Alam’s opinion is the only opinion that could satisfy Claimant’s burden. Consequently, we affirm the ALJ’s finding that the medical opinion evidence does not support a finding of total disability.8 20 C.F.R. §718.204(b)(2)(iv). We further affirm the ALJ’s overall conclusion that Claimant failed to establish total disability based on a weighing of the evidence as a whole. 20 C.F.R. §718.204(b)(2); Decision and Order at 14. Thus, we also affirm the ALJ’s determination that Claimant did not establish a change in an applicable condition of entitlement. 20 C.F.R. §725.309; Decision and Order at 15.

8
Without the Section 411(c)(4) presumption, the burden rests on Claimant to establish total disability. 20 C.F.R. §718.204(b)(2); see Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267, 281 (1994) (moving party must carry its burden of proof by a preponderance of the evidence). Thus, the ALJ permissibly determined that it did not matter how much weight he ultimately accorded the opinions of Drs. Rosenberg and Jarboe because their opinions that Claimant does not have a totally disabling respiratory or pulmonary impairment do not support Claimant’s burden of establishing his total disability. Ondecko, 512 U.S. at 281; Decision and Order at 12, 14; Employer’s Exhibits 1-4.

6
Accordingly, we affirm the ALJ’s Decision and Order Denying Benefits.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

7