MURPHY, Circuit Judge.
Under the Black Lung Benefits Act ("the Act"), a coal miner who is totally disabled due to pneumoconiosis
To be entitled to lifetime benefits under the Act, a miner must prove (1) he suffers from pneumoconiosis; (2) which arose out of coal mining employment; and (3) caused the miner to be totally disabled. 20 C.F.R. §§ 718.202-204; Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir.2009). To be entitled to survivor benefits, a miner's eligible survivor must prove: (1) the miner had pneumoconiosis; (2) which arose out of coal mine employment; and (3) caused the miner's death. 20 C.F.R. § 718.205. Pneumoconiosis can be "simple" or "complicated."
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (footnote omitted). The Act does not use the term "complicated pneumoconiosis." However, 30 U.S.C. § 921(c)(3) creates an irrebutable presumption of total disability due to pneumoconiosis or death due to pneumoconiosis when the diagnostic criteria for complicated pneumoconiosis are met. See Pittsburg & Midway Coal Mining Co. v. Dir., Office of Workers' Comp. Programs, 508 F.3d 975, 984 (11th
30 U.S.C. § 921(c)(3); see also 20 C.F.R. § 718.304
Regarding the second of these, the Act does not define the term "massive lesions" for purposes of applying clause (B) of the § 921(c)(3) presumption. Two other circuits have considered the showing necessary for a claimant to obtain the benefit of the presumption using autopsy evidence. The Fourth Circuit has held § 921(c)(3) implicitly requires an "equivalency determination," i.e., a claimant seeking to prove complicated pneumoconiosis under the "massive lesions" clause of § 921(c)(3) must show that such lesions would show up as one-centimeter-or-greater opacities if detectable by chest x-ray. See, e.g., E. Associated Coal Corp. v. Dir., Office of Workers' Comp. Programs, 220 F.3d 250, 255-56 (4th Cir.2000), Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 243 (4th Cir.1999). The Eleventh Circuit, by contrast, rejects the "equivalency determination"
Lambright filed a claim for black lung benefits on March 19, 1998, while he was still employed as a coal mine welder by Bridger. His last day of work was June 26, 1998, and he died on January 31, 2002. Upon Lambright's death, Dr. Michael J. Dobersen, the medical examiner for Arapahoe County, Colorado, conducted an autopsy. Dr. Dobersen is board certified in anatomic, clinical, and forensic pathology. His macroscopic examination of Lambright's lungs revealed "extensive anthracosis with focal irregular areas of anthracotic scarring, some of which measure up to 2½ inches in greatest dimension." He attributed Lambright's death "to complications of complicated coal workers' pneumoconiosis (progressive massive fibrosis) also known as black lung disease. A component of silicosis was also apparent. Evidence of severe cor pulmonale was also apparent."
Bridger retained two pathologists to review Dr. Dobersen's findings, Drs. Erika Crouch and Joseph Tomashefski. Dr. Crouch is board certified in anatomic pathology. She reviewed Dr. Dobersen's report, autopsy slides, and other of Lambright's medical records before issuing an opinion on December 3, 2002. Dr. Crouch concluded Lambright suffered from "simple coal workers' pneumoconiosis and simple siderosis arising from welding as well as centriacinar emphysema, acute bronchopneumonia, and changes consistent with severe pulmonary hypertension." Reviewing the autopsy slides, she observed "no areas of `massive fibrosis or complicated silicosis'" and described the lesions she did observe as "relatively small in size and number." Dr. Crouch ruled out Lambright's pneumoconiosis as a significant contributing factor to his death. Dr. Tomashefski is board certified in clinical and anatomical pathology. He concluded Lambright suffered from mild simple coal workers' pneumoconiosis and mild centracinar emphysema, and that the simple pneumoconiosis did not cause or contribute to Lambright's death. Dr. Tomashefski ruled out complicated pneumoconiosis because the largest coalescent, pneumoconiotic lesion he observed from the autopsy slides measured less than two centimeters in diameter, which was below the minimum size required for a diagnosis of complicated pneumoconiosis. See 20 C.F.R. § 718.304.
The 2005 ALJ decision credited the opinion of Dr. Dobersen over the contrary opinions of Drs. Crouch and Tomashefski for four reasons. First, Dr. Dobersen was the prosector, and therefore the only reviewing pathologist who made first-hand observations of Lambright's lungs.
Bridger appealed the 2005 ALJ decision to the Board. Pursuant to 33 U.S.C. § 921(5), Bridger's appeal was heard by a three-member panel. This court had not yet decided what showing was necessary for a claimant to be entitled to the irrebutable presumption created by § 921(c)(3) of the Act. The panel therefore looked to Fourth Circuit law for guidance in deciding this issue. See Shuff v. Cedar Coal Co., 967 F.2d 977, 980 (4th Cir.1992) (concluding board did not act in good faith by completely ignoring out-of-circuit precedent simply because it was out-of-circuit). Applying the Fourth Circuit's Eastern Associated Coal and Double B Mining opinions, the panel vacated the 2005 ALJ decision because it "did not determine that the medical evidence established that the node seen on CT scan, or the lesion seen on autopsy, would be seen on x-ray as an opacity greater than one centimeter, and there is no evidence in the record which would support such a determination." The panel remanded the case to the ALJ to determine whether Lambright suffered from total disability and/or death due to pneumoconiosis, 20 C.F.R. §§ 718.204(b), (c), 718.205(c), notwithstanding the unavailability of the § 921(c)(3) irrebutable presumption.
In a 2008 decision on remand, the ALJ concluded Ashmore failed to prove either total disability or death due to pneumoconiosis by a preponderance of the evidence. The 2008 ALJ decision relied principally on the opinions of Drs. Crouch, Tomashefski, and Tuteur.
In 2009, Ashmore, proceeding pro se, appealed the 2008 ALJ decision. By this time, the Eleventh Circuit had decided Pittsburg & Midway, which created a circuit split on the issue of whether equivalency determinations were necessary in applying the irrebutable presumption of pneumoconiosis set forth in § 921(c)(3) and its implementing regulation, 20 C.F.R. § 718.304. The Board, again acting through a three-member panel, ordered supplemental briefing on what standard it should apply in reviewing the ALJ's 2008
Bridger filed a motion for reconsideration and suggestion for reconsideration en banc of the 2009 panel decision, which the full five-member Board considered. The en banc panel could not reach a disposition in which at least three permanent members of the Board concurred. Two members of the en banc Board would have affirmed the 2009 panel decision, two members of the en banc Board would have reversed the 2009 panel decision, and one member of the en banc Board would have affirmed the 2009 panel's adoption of the Eleventh Circuit's § 921(c)(3) standard but remanded the case to the ALJ to apply it in the first instance. Therefore, pursuant to 20 C.F.R. § 802.407(d), the 2009 three-member panel decision was left undisturbed.
Bridger's appeal presents issues of statutory and regulatory interpretation as well as challenges to the factual findings of the ALJ. The issues of statutory and regulatory interpretation are reviewed de novo. Andersen v. Dir., Office of Workers' Comp. Programs, 455 F.3d 1102, 1103 (10th Cir.2006). However, "[o]ur review of alleged errors of law, and the effect they may have had on the benefits decision, must be made in light of the premise that the Act is intended to be remedial in nature, and doubts should be resolved in favor of the disabled miner or his or her survivors." Bosco v. Twin Pines Coal Co., 892 F.2d 1473, 1476 (10th Cir.1989) (quotations and alterations omitted). In reviewing the challenges to the factual findings of the ALJ, this court's task is to determine whether the Board properly concluded the decision of the ALJ was supported by substantial evidence. Energy W. Mining Co., 555 F.3d at 1217. On substantial evidence review, the court "will not reweigh the evidence considered by the agency, but only inquire into the existence of evidence in the record that a reasonable mind might accept as adequate to support its conclusion." Id. (quotation and emphasis omitted). "Additionally, the task of weighing conflicting medical evidence is within the sole province of the ALJ." Hansen v. Director, Office of Workers' Comp. Programs, 984 F.2d 364, 368 (10th Cir.1993).
Bridger first argues the 2009 panel decision is invalid because a majority of the full Board did not vote for its outcome. Because the 2009 panel decision was based on a 2-1 majority, and because no additional members of the en banc Board voted to affirm the panel decision, Bridger argues, it would be improper to allow two members of a five-member board to control the outcome of the case. Bridger's argument misconstrues the statutory structure governing the Board's review authority. The Board is composed of five members and is empowered to "hear and determine appeals ... from decisions with respect to claims of employees" under the Act. 33 U.S.C. § 921(b)(1), (3)
Id. § 921(b)(5). Here, the Board delegated its power to hear Ashmore's appeal from the 2008 ALJ decision to a three-member panel. On the affirmative vote of two members of the panel, the 2008 ALJ decision was reversed and the 2005 ALJ decision was reinstated. Bridger petitioned the entire permanent five-member Board for review of the panel's decision.
Bridger next argues the 2009 panel lacked authority to review and reinstate the 2005 ALJ decision after it concluded its prior reversal of that decision, and the subsequent 2008 ALJ decision on remand, was erroneous. We reject this argument. 33 U.S.C. § 921(b)(3) provides:
The relevant regulations further describe the scope of the Board's review authority:
20 C.F.R. § 802.301(a). Bridger's reading of these provisions restricting the Board's authority elevates form over substance. Reviewing the 2008 ALJ decision in light of what it considered new developments in the law on the § 921(c)(3) presumption, the Board determined that decision was not "in accordance with law." Although the Board went on to "reconsider whether the administrative law judge's 2005 Decision and Order ... is supported by substantial evidence and in accordance with applicable law," such "reconsideration" necessarily occurred within the scope of its initial review of the ALJ's 2008 order.
Bridger also argues the Board was precluded by the law of the case doctrine from reconsidering its prior approach to the complicated pneumoconiosis issue. Initially, Bridger cites no authority, and the court is unaware of any, indicating the law of the case doctrine applies between administrative courts. See Anderson v. U.S. Dep't of Labor, 422 F.3d 1155, 1180 n. 50 (10th Cir.2005). Assuming without deciding law of the case does apply, Bridger overstates the breadth of the doctrine. Bridger characterizes the law of the case doctrine as a rigid rule that "an issue once litigated and decided in a case is put to an end," absent an intervening change in controlling law which dictates a different result. Bridger is correct that, "[g]enerally, the `law of the case' doctrine dictates that prior judicial decisions on rules of law govern the same issues in subsequent phases of the same case." Been v. O.K. Indus., Inc., 495 F.3d 1217, 1224 (10th Cir.2007). However, "the rule is a flexible one that allows courts to depart from erroneous prior rulings, as the underlying policy of the rule is one of efficiency, not restraint of judicial power...." Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 823 (10th Cir.2007) (citation omitted); see also United States v. U.S. Smelting Ref. & Mining Co., 339 U.S. 186, 199, 70 S.Ct. 537, 94 L.Ed. 750 (1950) (characterizing the law of the case doctrine as "only a discretionary rule of practice").
Even if it were bound by the law of the case doctrine, therefore, the Board appropriately exercised its discretion to depart from the doctrine here. Intervening binding law from the controlling circuit is not the only circumstance in which it is reasonable for the Board to reconsider its prior interpretation of governing law. The development of a circuit split on an issue central to the Board's resolution of a case that occurs during the pendency of that case is a legitimate reason for the Board to reconsider prior rulings.
This court has not considered what showing is necessary for a claimant, like Ashmore, who relies on the "massive lesions" prong of § 921(c)(3) of the Act to claim entitlement to the irrebutable presumption of disability and/or death due to pneumoconiosis. Neither the Act itself nor its implementing regulations define the term "massive lesions." Under the approach of the Fourth Circuit,
Id. (citation omitted).
The Eleventh Circuit described "at least four basic shortcomings" with the equivalency determination requirement of the Fourth Circuit. Pittsburg & Midway, 508 F.3d at 987 n. 7. First, the Fourth Circuit's approach conflates clause (A) with clause (B) of § 921(c)(3). Congress used the term "or" when setting forth the three ways complicated pneumoconiosis could be established under § 921(c)(3), indicating alternatives were intended. Id. Second, reading clause (B) to require an equivalency determination would make it superfluous in light of clause (C), which makes the irrebutable presumption applicable where a claimant shows, by "other means," a condition which would be expected to yield results described in parts (A) and (B). Id. Third, citing Supreme Court precedent and the legislative history of the Act, the Eleventh Circuit noted autopsy examinations frequently reveal a greater prevalence of pneumoconiosis than x-ray examinations. Id. (citing Usery, 428 U.S. at 32, 96 S.Ct. 2882). Fourth, the equivalency determination requirement appears to conflict with the Act's mandate that claims not be denied solely on the basis of negative x-ray results. Id. (citing 30 U.S.C. § 923(b)).
Bridger argues the 2005 ALJ decision was not supported by substantial evidence even if no equivalency determination is required. This court disagrees. The 2005 ALJ decision involved the weighing of conflicting medical evidence, i.e., the weighing of the opinion of Dr. Dobersen against the contrary opinions of Drs. Crouch, Tomashefski, and Tuteur. Such weighing is the sole province of the ALJ and cannot be disturbed by this court on substantial evidence review. Hansen, 984 F.2d at 368. As Bridger acknowledges, Lambright's medical history was extremely complex. The opinion of the ALJ reviewed Lambright's medical history and included a detailed discussion of the opinions of Drs. Dobersen, Crouch, Tomashefski, and Tuteur, as well as more than a dozen other doctors who either treated or examined Lambright or analyzed his medical records. The ALJ found the autopsy evidence the most compelling and credited the opinion of Dr. Dobersen over the contrary opinions of Drs. Crouch and Tomashefski.
The ALJ provided four reasons for preferring the opinion of Dr. Dobersen: his board certifications in the most sub-disciplines of pathology, his position as prosector, his detailed findings, and his demonstrated understanding of complicated and simple pneumoconiosis. Dr. Dobersen's opinion included an observation of a 2.5 inch (6.35 cm) lesion of anthracotic scarring in Lambright's lung, which was consistent with one of Bridger's doctor's observation of a "large node" on earlier CT scans. Although Bridger claims this observation was unsupported by Drs. Crouch and Tomashefski, Bridger does not attempt to argue such a lesion would not qualify as "massive" under § 921(c)(3)(B). While the other reasons Bridger advances for preferring the opinions of its experts over that of Dr. Dobersen might be persuasive on de novo review, they ultimately amount to invitations to re-weigh the evidence, which this court may not do. See Energy W. Mining Co., 555 F.3d at 1217.
Bridger challenges the ALJ's award of benefits on Lambright's lifetime
The exact month Lambright's simple pneumoconiosis became complicated pneumoconiosis cannot be determined because the diagnosis of complicated pneumoconiosis came from Dr. Dobersen's autopsy report. Therefore, absent an affirmative showing that Lambright did not have complicated pneumoconiosis, an award of lifetime benefits as of his filing date was appropriate. Bridger argues the onset date for Lambright's lifetime benefits can be no earlier than the month of his death because Dr. Dobersen's autopsy was the first diagnosis of complicated pneumoconiosis. The autopsy evidence, however, does not establish the date of onset, but merely shows Lambright developed complicated pneumoconiosis at some point prior to his death. "It is well recognized that pneumoconiosis is often a latent, progressive and insidious disease and therefore evidence establishing total disability due to pneumoconiosis may relate backward in time to establish an earlier onset date in the absence of earlier contradictory like evidence." Gurule, 653 F.2d at 1368 (emphasis added).
In this respect, Bridger points to x-ray, CT-scan, biopsy, and medical opinion evidence produced prior to Lambright's death which did not diagnose complicated pneumoconiosis. This showing is inadequate. As both Congress and the Supreme Court have recognized, x-ray evidence is not a reliable indicator of the absence of complicated pneumoconiosis, particularly when weighed against contrary autopsy evidence. See Usery, 428 U.S. at 31-32, 96 S.Ct. 2882. The CT-scan evidence is not wholly inconsistent with Dr. Dobersen's diagnosis of complicated pneumoconiosis. As early as 2000, one of the CT-scans revealed the presence of a "large mass" which the 2005 ALJ considered consistent with Dr. Dobersen's observation of a 2.5 inch lesion of anthracotic scarring. By rule, negative biopsy evidence cannot establish the absence of pneumoconiosis. 20 C.F.R. § 718.106(c). Lastly, as set forth supra Part III.C., the decision of the ALJ to credit the opinion of Dr. Dobersen over
Bridger also attempts to avoid this result by characterizing the ALJ's award of benefits to Lambright as subsequent to a modification proceeding. After a finding of entitlement, the Act permits the district director to modify an award on his own motion or upon request of either party. 33 U.S.C. § 922; 30 U.S.C. § 932(a) (incorporating modification provisions of Longshore and Harbor Workers' Compensation Act). Modification may be granted based on a change in conditions or because of a mistake in a determination of fact. 33 U.S.C. § 922; 30 U.S.C. § 932(a); 20 C.F.R. § 725.310(a) (1999). When the grant of a modification request is based on a change in conditions and the evidence does not establish the onset date of total disability due to pneumoconiosis, benefits are payable as of the date of the modification request rather than the initial filing date. 20 C.F.R. § 725.503(d)(2). The default entitlement date does not change, however, when a modification request is granted based on mistake of fact. Bridger therefore argues the decision of the ALJ was preceded by a grant of a "change in conditions" modification request based on Lambright's death, and so benefits cannot be backdated further than the month of death.
Lambright initially filed his claim for lifetime benefits in March 1998. On December 21, 1998, the district director entered a determination of entitlement, awarding lifetime benefits to Lambright. Bridger subsequently requested modification of this award. On February 23, 2001, pursuant to Bridger's request, the director issued a "Proposed Decision and Order Approving Request for Modification After Remand." The director suspended payment of benefits pending the final adjudication of Lambright's claim. The order also specified: "If no request for a formal hearing is received within 30 ... days from the date of this Proposed Order ..., the proposed order will be deemed to have been accepted by all parties and the findings set forth herein shall become final." On March 14, 2001, within the appropriate thirty-day window, Lambright requested a hearing before an ALJ. Before that request was acted on, Lambright died.
On March 19, 2002, Ashmore filed her claim for survival benefits and submitted additional medical evidence, including Dr. Dobersen's autopsy report. The claim was not styled as a request for modification. Nonetheless, on August 3, 2002, the district director issued a new order, styled as a "Proposed Decision and Order Granting Request for Modification," which awarded Ashmore benefits on Lambright's lifetime claim and on her survivor claim. The Decision and Order thereby disposed of all pending motions, implicitly denying Bridger's original motion for modification which had not yet been finally ruled on. Thus, it appears the director interpreted Ashmore's motion as a motion for modification based on change in conditions, but only to the extent Ashmore alleged she was entitled to additional (survivor) benefits due to Lambright's death. To the extent the order granting modification was based on a change in conditions, the ruling only implicated the claim for survivor benefits, not Lambright's original claim for lifetime benefits. Therefore, there are no grounds for a change in the default entitlement date for Lambright's lifetime benefits.
For the foregoing reasons, the decision of the Board is
