Robert A. Felton v. Director, Office of Workers' Compensation Programs, United States Department of Labor

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1113
___________
ROBERT A. FELTON,
Petitioner
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR;
BETHENERGY MINES, INC.
____________________________________
On Appeal from a Decision and Order
of the Benefits Review Board
( BRB No. 07-255 BLA)
___________________________________
Submitted Pursuant to Third Circuit LAR 34.1( a)
April 10, 2009
Before: MCKEE, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: July 23, 2009)
___________
OPINION
___________
PER CURIAM
Robert Felton, proceeding pro se, appeals from the September 27, 2007 decision of

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“Legal pneumoconiosis includes any chronic lung disease or impairment and its1
sequelae arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2).
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the Benefits Review Board (“BRB”) upholding an Administrative Law Judge’s (“ALJ”)
denial of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944.
Robert Felton was employed as a coal miner at BethEnergy Mines for eighteen
years, working underground as a roof bolter and car operator mechanic. He retired in
1993. On June 24, 2002, Felton filed a claim for benefits alleging that he suffers from
pneumoconiosis and that he was totally disabled.
Black lung benefits are awarded to coal miners who are totally disabled by
pneumoconiosis caused by inhalation of harmful dust in the course of coal mine
employment. See 30 U.S.C. § 901(a). In order to be entitled to benefits, a claimant must
establish: 1) the existence of pneumoconiosis; 2) that the pneumoconiosis arose out of
coal mine employment; and 3) that the pneumoconiosis is totally disabling. See 20 C.F.R.
§ 718.201(a); Labelle Processing Co. v. Swarrow, 72 F3d, 308, 312 (3d Cir. 1995).
An ALJ held a formal hearing in Felton’s case on February 28, 2006. After
considering the evidence presented in the case, he concluded that Felton had not
established the existence of clinical or legal pneumoconiosis – either of which is
sufficient to support a finding of pneumoconiosis. See 20 C.F.R §§ 718.201(a)(1) and
718.201(a)(2). The ALJ also determined, in the alternative, that Felton had not1
established that he suffers from a totally disabling respiratory condition. See 20 C.F.R. §
718.204(b)(1).

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Felton’s petition for review was timely because under 20 C.F.R. § 802.406, following2
a BRB’s decision on a timely motion for reconsideration, an appellant has sixty days to
file a petition for review in the appropriate United States Court of Appeals. The BRB
denied Felton’s motion for reconsideration on November 21, 2007. Felton subsequently
filed a petition for review in this Court on December 17, 2007, within the period allotted
by regulation.
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II.
We have jurisdiction to hear this appeal pursuant to 33 U.S.C. § 921(c), as
incorporated by 30 U.S.C. § 932(a). See Lombardy v. Director, OWCP, 355 F.3d 211,2
213 (3d Cir. 2004). We review the BRB’s decision to determine whether an error of law
has been committed and whether it has adhered to its statutory scope of review.
Kowalchick v. Director, OWCP, 893 F.2d 615, 619 (3d Cir. 1990). The BRB is bound by
the ALJ’s factual findings if they are supported by substantial evidence. Id. Thus, in
reviewing the BRB’s decision, we must independently review the record and decide
whether the ALJ’s findings are supported by substantial evidence. Id. Substantial
evidence is “more than a mere scintilla,” and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id.
III.
In his petition for review, Felton appears to generally contend that the ALJ erred in
denying his claim for benefits, but he does not set forth any case law which might support
his argument. His informal brief does contend, however, that the ALJ erroneously
determined that one of the three experts in the case lacked “credibility.” Based upon our
review of the record, we conclude that the BRB’s determinations were supported by

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There was no biopsy evidence entered in the case, and no statutory presumptions were3
applicable in Felton’s case.
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substantial evidence.
As mentioned earlier, proving the existence of pneumoconiosis is an essential
condition of entitlement to benefits. By regulation, the existence of pneumoconiosis may
be established by: 1) X-ray; 2) biopsy or autopsy; 3) invocation of presumptions; or 4)
reasoned and documented medical opinion. See 20 C.F.R. § 718.202(a). In Felton’s
case, the ALJ considered multiple chest X-ray readings and the medical opinions of three
expert physicians.3
Felton underwent three separate chest X-rays, two in June 2003 and a third in
November 2004. The X-rays were uniformly negative for clinical pneumoconiosis. Dr.
Gregory Fino, a Board-certified internist and Board-certified pulmonologist, examined
Felton in July 2003 at the request of BethEnergy, finding no pneumoconiosis and no
respiratory impairment. Dr. Ahmad Kahn, a Board-certified internist, also examined
Felton in July 2003 at the request of the Department of Labor. Dr. Kahn diagnosed
Felton with mild obstructive airway disease resulting in “minimal” impairment. In his
report, he cited both Felton’s over 16-year smoking history and his coal mine employment
as the “probable” cause of the airway disease. He further explained that it was “difficult
to ascertain [causation] based upon minimal functional impairment” and that “other
etio[logies] need to be ruled out.” DX16 at 10. Lastly, at BethEnergy’s request, Dr.
George Zlupko, a Board-certified internist, examined Felton in January 2005. Dr. Zlupko

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The BRB affirmed the denial of benefits based upon the ALJ’s finding of no4
pneumoconiosis, holding it unnecessary to address the ALJ’s alternative finding of no
total respiratory disability. Because a miner seeking benefits must show that he is totally
disabled not merely by a respiratory or pulmonary condition, but by pneumoconiosis, see
Bonessa v. U.S. Steel Corp., 884 F.2d 726, 729 (3d Cir. 1989), the BRB appropriately
declined to review the ALJ’s alternative ground for denial of benefits.
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diagnosed no pneumoconiosis and no pulmonary function impairment.
Based upon the evidence, the ALJ concluded that Felton had not proved the
existence of pneumoconiosis. Specifically, the ALJ determined that the evidence failed to
establish “clinical” pneumoconiosis because the X-ray readings were negative for the
disease. The ALJ also determined that the evidence failed to establish “legal”
pneumoconiosis because Drs. Fino and Zlupko specifically diagnosed no respiratory
disease of any kind, and Dr. Kahn – while diagnosing coal mine employment as a
“probable” cause of Felton’s airway disease – was equivocal in his diagnosis. The ALJ
also took into account that Dr. Fino was better credentialed than Dr. Kahn and that Dr.
Kahn acknowledged difficulty in determining causation because of the “minimal” nature
of Felton’s impairment. DX 16 at 10.
Based upon our review of the record, we find that the BRB appropriately
determined that the ALJ’s finding of no pneumoconiosis was supported by substantial
evidence. As a result, Felton was not entitled to benefits. First, all three of Felton’s4
chest X-rays were negative for the disease. Second, it was acceptable for the ALJ to
afford less weight to Dr. Kahn’s diagnosis of legal pneumoconiosis because his opinion
was equivocal. See Soubik v. Director, OWCP, 366 F.3d 226, 234 n.12 (3d Cir. 2004)

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The BRB did not reach the ALJ’s determination, in the alternative, that the evidence5
did not establish Felton’s total disability. The issue is not properly before us. See Grigg
v. Director, OWCP, 28 F.3d 416, 418 (4th Cir. 2002).
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(an ALJ may “minimize the probative value” of an equivocal doctor’s opinion). Third,
the ALJ was permitted to afford greater weight to the opinion of Dr. Fino than that of Dr.
Kahn because Dr. Fino is a Board-certified pulmonologist as well as a Board-certified
internist. See Balsavage v. Director, OWCP, 295 F.3d 390, 396-97 (3d Cir. 2002)
(holding that an ALJ may weigh the various credentials of the physicians giving
opinions).5
The ALJ fulfilled his statutory duties, and his findings were supported by
substantial evidence. Accordingly, we find no error. For the foregoing reasons, we deny
the Petition for Review and affirm the order of the Benefits Review Board entered on
September 27, 2007.

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