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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-15320
                         Non-Argument Calendar
                       ________________________

                        Agency No. 15-0168 BLA



JIM WALTER RESOURCES, INC.,
WALTER ENERGY, INC.,

                                                                      Petitioners,

                                 versus

NOLAN BRANTLEY,
DIRECTOR, OWCP,
U.S. DEPARTMENT OF LABOR,

                                                                     Respondents.

                       ________________________

                  Petition for Review of a Decision of the
                           Benefits Review Board
                        ________________________

                              (July 11, 2017)

Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jim Walter Resources, Inc. seeks review of the Benefits Review Board’s

(“BRB”) denial of reconsideration and of its final order affirming an

Administrative Law Judge’s (“ALJ”) grant of benefits under the Black Lung

Benefits Act (“BLBA”), 30 U.S.C. § 901, et seq. Jim Walter Resources contends

that the medical evidence does not establish that Nolan Brantley, who worked in

coal mines for over 18 years, has a totally disabling respiratory or pulmonary

impairment. Jim Walter Resources argues that the ALJ erred in making weight

and credibility determinations about Brantley’s pulmonary function tests (“PFT”)

and about medical doctors’ opinions.

      “Decisions of the ALJ are reviewable only as to whether they are in

accordance with law and supported by substantial evidence in light of the entire

record.” Pittsburg & Midway Coal Mining Co. v. Dir., Office of Workers’ Comp.

Programs, 

, 980 (11th Cir. 2007) (quotation omitted). “Substantial

evidence” means “more than a scintilla” and “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” 

Because the deferential review given to ALJ decisions binds

us and the BRB, we review de novo BRB decisions. 

BRB affirms

the ALJ, we review the BRB’s decision with the same deference that is given to

the ALJ. 

BLBA case comes to us from the BRB, we begin our

analysis by reviewing the ALJ’s decision. 

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      “The ALJ is responsible for making credibility determinations and for

weighing conflicting evidence; however, the ALJ’s opinion must show that the

determinations are made in a reasoned manner.” Bradberry v. Dir., Office of

Workers’ Comp. Programs, 

, 1367 (11th Cir. 1997). We cannot

second guess the ALJ’s credibility determinations unless they are unsupported by

substantial evidence. U.S. Steel Mining Co. v. Dir., OWCP, 

, 992

(11th Cir. 2004). “That a different conclusion might be reached from the same

evidence is insufficient reason to overturn the result” in a BLBA case. Black

Diamond Coal Mining Co. v. Benefits Review Bd., 

, 1534 (11th Cir.

1985).

      “[C]ourts require administrative issue exhaustion as a general rule because it

is usually appropriate under an agency’s practice for contestants in an adversary

proceeding before it to develop fully all issues there.” Sims v. Apfel, 

,

109 (2000) (alteration and quotations omitted). A party that petitions the BRB for

review must list the specific issues to be reviewed. 20 C.F.R. § 802.211(a); see

also 

(citing this regulation as an example of a requirement of

issue exhaustion). A party abandons an argument on appeal by failing to brief it.

Access Now, Inc. v. Sw. Airlines Co., 

, 1330 (11th Cir. 2004).

      The BLBA provides benefits “to coal miners who are totally disabled due to

pneumoconiosis and to the surviving dependents of miners whose death was due to


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such disease.” 30 U.S.C. § 901(a). A miner who applies for BLBA benefits is

entitled to benefits if he establishes that he has pneumoconiosis, the

pneumoconiosis arose out of coal mine employment, he is totally disabled, and the

pneumoconiosis contributes to the total disability. 20 C.F.R. § 725.202(d).

      A miner is totally disabled when he has a respiratory or pulmonary

impairment that prevents him from performing his usual coal mine work and from

engaging in gainful employment “requiring the skills or abilities comparable to

those of any employment in a mine or mines in which he . . . previously engaged

with some regularity over a substantial period of time.” 20 C.F.R. § 718.204(b)(1).

There is a rebuttable presumption that a miner is totally disabled due to

pneumoconiosis when the miner engaged in coal mine employment for at least 15

years and has a totally disabling respiratory or pulmonary impairment. 20 C.F.R.

§ 718.305(b)(1), (c)(1). A party opposing a miner’s claim for BLBA benefits may

rebut this presumption by establishing either that the miner does not have legal or

clinical pneumoconiosis, or that pneumoconiosis did not cause any part of the

miner’s respiratory or pulmonary total disability. 

718.305(d)(1).

      A miner’s total disability may be established by, among other things, PFTs

or a doctor’s conclusion—based on reasoned medical judgment and medically

acceptable clinical and laboratory diagnostic techniques—that the miner’s

respiratory or pulmonary impairment prevents him from engaging in employment.


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20 C.F.R. § 718.204(b)(2). Doctors “need not phrase their medical conclusions in

terms of ‘total disability’ in order to establish a presumption sufficient to set out

the physical impairments that rule out work.” Black Diamond Coal 

(stating that an ALJ could infer that a miner was totally disabled

when a doctor’s report indicated that the miner could not “walk more than one

block or climb one flight of stairs daily”).

      Appendix B to title 20, part 718 of the Code of Federal Regulations provides

standards “to insure that uniform procedures are used in administering and

interpreting [PFTs] and that the best available medical evidence will be submitted

in support of a claim for black lung benefits.” 20 C.F.R. pt. 718, app. B. “If it is

established that one or more standards have not been met, the claims adjudicator

may consider such fact in determining the evidentiary weight to be given to the

results of the” PFT. 

involves a procedure to measure values for forced

expiratory volume in one second (“FEV1”) and forced vital capacity (“FVC”) and

another procedure to measure maximum voluntary ventilation (“MVV”). See 

app. B(2)(ii), (iii); 20 C.F.R. § 718.103(a).

      The FEV1 and FVC portion of a PFT involves a person completely expiring

his breath, momentarily holding his breath, closing his mouth around a

mouthpiece, making “a maximum inspiration” of air, and then blowing “as hard,

fast and completely as possible for at least 7 seconds or until a plateau has been


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attained in the volume-time curve with no detectable change in the expired volume

during the last 2 seconds of maximal expiratory effort.” 20 C.F.R. pt. 718, app.

B(2)(ii). The person must provide a “minimum of three flow-volume loops and

derived spirometric tracings.” 

“shall be observed throughout the

[procedure] for compliance with instructions,” and “[i]nspiration and expiration

shall be checked visually for reproducibility.” 

’s “effort shall be

judged unacceptable,” among other times, when he has coughed or has “an

excessive variability between the three acceptable curves.” 

app.

B(2)(ii)(D), (G). Excessive variability means that the “variation between the two

largest FEV1’s of the three acceptable tracings [exceeds] 5 percent of the largest

FEV1 or 100 ml, whichever is greater.” 

app. B(2)(ii)(G) (stating that

“individuals with obstructive disease or rapid decline in lung function will be less

likely to achieve this degree of reproducibility” and that “tests not meeting this

criterion may still be submitted for consideration in support of a claim for black

lung benefits”).

      The MVV portion of a PFT involves a person breathing normally into a

mouthpiece for 10 to 15 seconds and then breathing “as deeply and as rapidly as

possible” into the mouthpiece for 15 seconds. 

app. B(2)(iii). This

procedure is repeated three times. 

“shall be observed for

compliance with instructions” during the procedure. 

’s “effort shall


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be judged unacceptable,” among other times, when he has coughed or has “an

excessive variability between the three acceptable curves.” 

app.

B(2)(iii)(B), (D). Excessive variability means that the “variation between the two

largest MVVs of the three satisfactory tracings [exceeds] 10 percent.” 

app. B(2)(iii)(D).

      Whether a PFT establishes that a miner is totally disabled depends on the

PFT results and the miner’s age, gender, and height. 20 C.F.R. § 718.204(b)(2)(i)

(referencing the tables in 20 C.F.R. pt. 718, app. B). The Fourth Circuit has

rejected the proposition that, where a miner has taken multiple PFTs, the highest

PFT results necessarily are more reliable. See Greer v. Dir., Office of Workers’

Comp. Programs, 

, 90-91 (4th Cir. 1991), abrogated in part on other

grounds by Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 

, 281 (1994), as recognized in Scott v. Mason Coal Co., 

,

1140 n.2 (4th Cir. 1995). In Greer, the Fourth Circuit accepted that “no one can

possibly expel more air than he is ultimately capable of,” that it was “impossible to

make a higher-than-capacity score on” a PFT, and that a miner could “produce an

artificially low result by giving subpar effort.” 

But the Fourth Circuit

stated that an argument that “higher test results [therefore] are more reliable than

lower ones” was “overstated, simplistic, and unfair” because “pneumoconiosis is a

chronic condition, and, on any given day, it is possible to do better, and indeed to


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exert more effort, than one’s typical condition would permit.” 

(emphasis omitted); see also Thorn v. Itmann Coal Co., 

, 719 (4th Cir.

1993) (stating that the Court had “criticized the practice of routinely ascribing

greatest weight to the highest results among valid” PFTs and that “[i]mputing

selective reliability to the highest results of invalid” PFTs was “highly speculative”

(emphasis omitted)).

      As an initial matter, Jim Walter Resources adequately exhausted its

argument that a PFT that Brantley took on April 26, 2012, was invalid because he

coughed during the PFT. Jim Walter Resources argued to the BRB that Brantley’s

coughing supported invalidation of the April 26 PFT. Thus, that argument

properly is before us. See 

.

      Brantley took PFTs on April 26, 2012, June 25, 2012, and June 28, 2012.

The ALJ’s weight and credibility determinations concerning the three PFTs were

made in a reasoned manner and are supported by substantial evidence.

      The ALJ permissibly gave the April 26 PFT the most weight. The FEV1 and

MVV values from the April 26 PFT are not excessively variable, and Dr. Krishna

Rao, the doctor who oversaw the PFT, was certified in pulmonary diseases, stated

that Brantley gave good effort during the PFT, and determined that the PFT results

were acceptable and reproducible. The ALJ was permitted to consider Brantley’s

coughing during the April 26 PFT in determining the weight to give the PFT


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results. See 20 C.F.R. pt. 718, app. B; 

app. B(2)(ii)(D), (iii)(B). But

the ALJ nonetheless could credit Dr. Rao’s determination that the PFT results were

acceptable and reproducible.

      The ALJ permissibly gave little weight to the June 25 and June 28 PFTs

because the results of those PFTs have excessively variable FEV1 values. See 20

C.F.R. pt. 718, app. B; 

app. B(2)(ii)(G). In addition, Brantley was

unable to complete the June 25 PFT because of coughing and shortness of breath.

Although the results of the two June PFTs are higher than the April 26 PFT results,

it is possible that Brantley produced better results and exerted more effort during

the June PFTs than his “typical condition would permit.” See 

; see also 

. Thus, the ALJ could credit the April 26 PFT

over the June PFTs.

      The ALJ concluded that the PFTs support a finding that Brantley has a

totally disabling respiratory or pulmonary impairment. This conclusion is in

accordance with the law and is supported by substantial evidence in light of the

entire record. The April 26 and June 28 PFT results indicate that Brantley is

totally disabled, and the ALJ characterized the June 25 PFT results as “border-line

non-qualifying” for total disability. The PFT evidence supports the ALJ’s

conclusion that Brantley has a totally disabling respiratory or pulmonary

impairment.


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      The ALJ’s weight and credibility determinations concerning the doctors’

opinions were made in a reasoned manner and are supported by substantial

evidence. The ALJ permissibly gave Dr. Allan Goldstein’s opinion significant

weight, because Dr. Goldstein examined Brantley, oversaw the June 25 PFT, and

reviewed Brantley’s work history, symptoms, abilities, and medical records. The

ALJ permissibly gave Dr. Rao’s opinion some weight, because Dr. Rao examined

Brantley, oversaw the April 26 and June 28 PFTs, and reviewed Brantley’s

symptoms and abilities. The ALJ permissibly gave Dr. Gregory Fino’s opinion

little weight, because Dr. Fino reviewed some of Brantley’s medical records but

did not examine or test Brantley.

      The ALJ concluded that the doctors’ opinions support a finding that Brantley

has a totally disabling respiratory or pulmonary impairment. This conclusion is in

accordance with the law and is supported by substantial evidence in light of the

entire record. Dr. Goldstein determined that Brantley has a pulmonary impairment

caused by asthma and stated that Brantley “can walk about a block and a half and

then becomes short of breath.” Cf. Black Diamond Coal 

(stating that an ALJ could infer that a miner was totally disabled when a doctor’s

report indicated that the miner could not “walk more than one block or climb one

flight of stairs daily”). Dr. Rao determined that Brantley has severe chronic

obstructive pulmonary disease and uncontrolled asthma. Dr. Rao further


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determined that Brantley’s impairment prevents him from working in coal mines or

engaging in gainful employment because “his respiratory condition is so severe

that it is difficult for him to walk several feet without stopping to catch his breath.”

Although Dr. Fino found no “valid, objective evidence of an impairment or

disability,” the ALJ could give this opinion little weight. The doctors’ opinions

support the ALJ’s conclusion that Brantley has a totally disabling respiratory or

pulmonary impairment.

      The ALJ’s conclusion that the medical evidence establishes that Brantley

has a totally disabling respiratory or pulmonary impairment is in accordance with

the law and is supported by substantial evidence—the PFTs and the doctors’

opinions—in light of the entire record. Jim Walter Resources does not challenge

the ALJ’s conclusion that, if Brantley has a totally disabling respiratory or

pulmonary impairment, Jim Walter Resources did not rebut the presumption that

the disability is due to pneumoconiosis. See 20 C.F.R. § 718.305(b)(1), (c)(1),

(d)(1). Jim Walters Resources also does not challenge the ALJ’s conclusion that

Brantley meets the other eligibility requirements for receipt of BLBA benefits. See

20 C.F.R. § 725.202(d). Jim Walters Resources has abandoned challenges to these

undisputed conclusions. See Access 

. Accordingly, the

ALJ’s and the BRB’s decisions that Brantley is eligible to receive BLBA benefits




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are in accordance with the law and are supported by substantial evidence in light of

the entire record. We therefore deny the petition for review.

      PETITION DENIED.




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