Filed: Oct. 17, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1210 WESTMORELAND COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; GERALD W. MABE, Respondents. On Petition for Review of an Order of the Benefits Review Board. (15-0028-BLA) Submitted: September 30, 2016 Decided: October 17, 2016 Before WILKINSON, KING, and WYNN, Circuit Judges. Petition for review granted; affirmed in part, vacated in part, and remanded by
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1210 WESTMORELAND COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; GERALD W. MABE, Respondents. On Petition for Review of an Order of the Benefits Review Board. (15-0028-BLA) Submitted: September 30, 2016 Decided: October 17, 2016 Before WILKINSON, KING, and WYNN, Circuit Judges. Petition for review granted; affirmed in part, vacated in part, and remanded by ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1210
WESTMORELAND COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; GERALD W. MABE,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(15-0028-BLA)
Submitted: September 30, 2016 Decided: October 17, 2016
Before WILKINSON, KING, and WYNN, Circuit Judges.
Petition for review granted; affirmed in part, vacated in part,
and remanded by unpublished per curiam opinion.
Paul E. Frampton, Michael J. Schessler, BOWLES RICE LLP,
Charleston, West Virginia, for Petitioner. Evan B. Smith,
APPALACHIAN CITIZENS’ LAW CENTER, Whitesburg, Kentucky; H.
Ronnie Montgomery, MONTGOMERY LAW OFFICE, Jonesville, Virginia,
for Respondent Gerald W. Mabe. M. Patricia Smith, Solicitor of
Labor, Rae Ellen James, Associate Solicitor, Gary K. Stearman,
Counsel for Appellate Litigation, Rita A. Roppolo, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent DOWCP.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gerald W. Mabe filed a claim for benefits under the Black
Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901-944 (2012).
Following a hearing, the Administrative Law Judge (“ALJ”) found
Mabe’s claim timely and awarded benefits after concluding that
the responsible operator, Westmoreland Coal Company
(“Employer”), failed to rebut the presumption of total
disability due to pneumoconiosis applied to Mabe’s claim
pursuant to 30 U.S.C. § 921(c)(4) (the “15-year presumption”).
The Benefits Review Board (“Board”) affirmed the ALJ’s
determination as to the merits of Mabe’s claim but vacated the
ALJ’s timeliness determination and remanded for further
proceedings. Although the ALJ found the claim untimely on
remand, the Board later vacated this determination, concluding
that Employer failed, as a matter of law, to rebut the
presumption of timeliness accorded Mabe’s claim. The Board
therefore remanded for entry of an award of benefits. Employer
now petitions for review of the Board’s decision awarding
benefits.
At the outset, we note that the scope of our review of an
agency decision involving the BLBA is strictly circumscribed.
We review a decision awarding black lung benefits to determine
“whether substantial evidence supports the factual findings of
the ALJ and whether the legal conclusions of the [Board] and ALJ
3
are rational and consistent with applicable law.” Hobet Mining,
LLC v. Epling, 783 F.3d 498, 504 (4th Cir. 2015) (alteration in
original omitted). In so doing, we review legal conclusions of
the Board and ALJ de novo but must defer to the ALJ’s factual
findings if they are supported by substantial evidence. Harman
Mining Co. v. Dir., Office of Workers’ Comp. Programs,
678 F.3d
305, 310 (4th Cir. 2012). “Substantial evidence” is defined as
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Island Creek Coal Co. v.
Compton,
211 F.3d 203, 207-08 (4th Cir. 2000).
Employer first challenges the Board’s determination that,
as a matter of law, it failed to meet its burden to rebut the
presumption of timeliness accorded Mabe’s claim under 20 C.F.R.
§ 725.308(c) (2016). Our review of the record leads us to
conclude that the Board’s decision as to the timeliness of
Mabe’s claim is based upon substantial evidence and is without
reversible error. Westmoreland Coal Co. v. Mabe, No. 15-0028
BLA (B.R.B. Dec. 29, 2015).
Turning to the merits of Mabe’s claim, the ALJ determined,
and the Board ultimately affirmed, that Mabe was entitled to the
benefit of the 15-year presumption, which Employer failed to
rebut. If a miner was employed in underground coal mines for 15
years or more, has had a chest x-ray interpreted as negative for
complicated pneumoconiosis, and demonstrates that he has a
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totally disabling respiratory or pulmonary impairment, he is
entitled to a rebuttable presumption that he is totally disabled
due to pneumoconiosis. 30 U.S.C. § 921(c)(4); 20 C.F.R. §
718.305(b)(1) (2016). When the presumption applies, the ALJ
must “presume both prongs of the showing required for benefits
eligibility: that the claimant has pneumoconiosis arising from
coal mine employment, and that this disease is a substantially
contributing cause of his disability.” Epling, 783 F.3d at 502.
To rebut the presumption, the employer either must demonstrate
that the miner does not have legal pneumoconiosis or clinical
pneumoconiosis “arising from coal mine employment” (the
“pneumoconiosis prong”), 20 C.F.R. § 718.305(d)(1)(i) (2016), or
must affirmatively “rule out” the mining-related disease as a
cause of disability by demonstrating that “no part of the
miner’s respiratory or pulmonary total disability was caused by
pneumoconiosis” (the “disability causation prong”), 20 C.F.R.
§ 718.305(d)(1)(ii) (2016).
A claimant may establish the existence of pneumoconiosis,
among other methods, through chest x-rays or medical opinions.
20 C.F.R. § 718.202(a)(1), (4) (2016). Additionally, “[t]he
results of any medically acceptable test or procedure,” such as
a CT scan, “which tends to demonstrate the presence or absence
of pneumoconiosis . . . may be submitted in connection with a
claim and shall be given appropriate consideration.” See 20
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C.F.R. § 718.107(a) (2016); Sea “B” Mining Co. v. Addison, 831
F.3d 244, 249 (4th Cir. 2016). “Although the regulations group
the forms of permissible evidence into discrete categories, an
ALJ must weigh all of the evidence together when determining
whether the miner has established the presence of
pneumoconiosis.”
Addison, 831 F.3d at 249. By implication,
such evidence also is relevant in considering whether an
employer has met its burden to disprove pneumoconiosis on
rebuttal.
Employer posits various errors committed in concluding that
it failed to rebut both prongs of the 15-year presumption. As
to the pneumoconiosis prong, our review of the record leads us
to reject Employer’s arguments that the ALJ improperly weighed
or failed to consider the x-ray and CT scan evidence in
determining that the radiographic evidence of clinical
pneumoconiosis was in equipoise. However, we conclude that the
ALJ’s stated reasons for weighing the medical opinions of Drs.
Basheda and Hippensteel as to the existence of clinical
pneumoconiosis are not in accordance with law or supported by
substantial evidence.
First, the ALJ’s opinion appears to be based on a
fundamental mischaracterization of Dr. Basheda’s and Dr.
Hippensteel’s opinions. Contrary to the ALJ’s opinion, neither
Dr. Hippensteel nor Dr. Basheda assumed that the x-ray evidence
6
was negative for the presence of pneumoconiosis. Rather, each
reviewed both positive and negative x-ray interpretations and
reached an independent conclusion regarding this imaging. Dr.
Basheda’s opinion, in particular, provided detailed reasoning
for his determination that the x-rays and CT scan evidence did
not support a finding of pneumoconiosis. While the ALJ was not
required to adopt this reasoning, he was required to consider it
and to provide a valid basis for discrediting it. See Mingo
Logan Coal Co. v. Owens, 724 F.3d 550, 557 (4th Cir. 2013)
(recognizing discretion accorded ALJ in evaluating evidence but
that ALJ must analyze all relevant evidence and sufficiently
explain his rationale).
The parties appear to construe the ALJ’s decision as
discounting the opinions of Drs. Basheda and Hippensteel because
their conclusion that the x-ray evidence was negative regarding
the presence of pneumoconiosis directly conflicted with the
ALJ’s determination that the imaging was inconclusive. We do
not read the ALJ’s opinion to adequately articulate such a
finding and are obliged to confine our review to the bases
actually stated by the ALJ. See Addison, 831 F.3d at 256-57.
Thus, we decline to consider at this juncture the parties’
arguments regarding whether such a conclusion would be legally
supportable had the ALJ reached it.
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Second, the ALJ declined to credit the opinions of Drs.
Hippensteel and Basheda after concluding that they relied
heavily upon “unreliable facts.” However, nowhere in his
decision did the ALJ identify those facts he found unreliable.
In so doing, the ALJ failed to fully comply with his obligation
to “include a statement of . . . findings and conclusions, and
the reasons or basis therefor, on all the material issues of
fact, law, or discretion present on the record.” Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 536 (4th Cir. 1998)
(quoting 5 U.S.C. § 557(c)(3)(A) (1996)). Although Mabe asks us
to speculate as to the facts on which the ALJ relied, we are not
permitted to guess at the ALJ’s reasoning but may review only
the reasoning the agency provided.
Addison, 831 F.3d at 256-57.
Given the ALJ’s cursory explanation for its evaluation of the
opinions of Drs. Basheda and Hippensteel as to the existence of
clinical pneumoconiosis, we conclude that the ALJ’s reasoning
thwarts effective appellate review and is simply insufficient to
justify his decision on the pneumoconiosis prong absent further
development.
Employer also challenges the ALJ’s conclusion that it
failed to rebut the 15-year presumption under the disability
causation prong. Because the ALJ’s determination as to this
prong relied exclusively on his disagreement with Drs. Basheda
and Hippensteel as to the existence of pneumoconiosis-—the
8
reasoning of which is called into question for the reasons we
have already discussed—-we decline to address that issue at this
juncture.
Accordingly, we grant Employer’s petition for review and
vacate the Board’s decision in part, insofar as it addresses the
operation of the 15-year presumption. We decline to disturb the
Board’s decision with respect to the timeliness of Mabe’s claim
and affirm that portion of the decision. We remand with
instructions for the Board to return Mabe’s case to the ALJ for
further proceedings consistent with this opinion. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION FOR REVIEW GRANTED;
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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