PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-1460


WESTMORELAND COAL COMPANY,

                    Petitioner,

             v.

HERSKEL D. STALLARD; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR,

                    Respondents.



On Petition for Review of an Order of the Benefits Review Board. (15-0156 BLA)


Argued: September 12, 2017                                 Decided: November 29, 2017


Before KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.


Petition denied by published opinion. Judge Wynn wrote the opinion, in which Judges
Keenan and Gibney joined.


ARGUED: Fazal Afaque Shere, BOWLES RICE LLP, Charleston, West Virginia, for
Petitioner. Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondents. ON BRIEF: Paul E. Frampton, BOWLES RICE LLP,
Charleston, West Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor, Maia S.
Fisher, Acting Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
Rebecca J. Fiebig, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent Director, Office of Workers’ Compensation
Programs.




                                       2
WYNN, Circuit Judge:

      Petitioner Westmoreland Coal Company challenges a final decision and order by

the U.S. Department of Labor Benefits Review Board (the “Board”) granting federal

disability benefits to Respondent Herskel Stallard, a retired coal miner, under the Black

Lung Benefits Act (the “Black Lung Act”), 30 U.S.C. § 901 et seq. The Board affirmed a

decision by the Administrative Law Judge (“ALJ”) concluding that Stallard timely

brought his claim and that Westmoreland failed to rebut the statutory presumption that

Stallard was entitled to benefits. Because substantial evidence supports the award of

benefits and the award accords with applicable law, we deny Westmoreland’s petition for

review.



                                            I.

                                           A.

      Herskel Stallard worked as a coal miner throughout much of his adult life. In

total, Stallard’s career included more than thirty years of mining employment either

underground or in conditions that were substantially similar to underground mines.

Throughout much of this time, Stallard also smoked cigarettes. In particular, he testified

that on workdays he smoked “one cigarette, maybe two”—and as much as half a pack per

day otherwise—for thirty-nine years before quitting in 1993. J.A. 450.

      Near the end of Stallard’s career, several physicians advised him not to return to

work due to breathing difficulties. In particular, around 1990 Dr. Charles P. Maine told

Stallard that he had black lung disease that was “not real severe” but would continue


                                            3
progressing the longer he worked in the mines. 

Several years later, in March

1993, Stallard experienced carbon monoxide poisoning while working in a Westmoreland

machine shop. Upon seeking treatment for the poisoning, two other physicians—Drs.

Estocino and Dorman—each advised him not to return to work due to breathing

difficulties.   Dr. Estocino determined that the carbon monoxide poisoning would

dissipate, but nonetheless advised Stallard to stop working in the mines to prevent further

damage to his lungs. Dr. Dorman told Stallard that he was “permanently disabled” as a

result of his impaired respiratory function. 

Soon thereafter, on Dr. Dorman’s

advice, Stallard retired from the coal industry.

       Nearly twenty years later, on March 22, 2011, Stallard filed a claim for Black

Lung Act benefits. In connection with this claim, three physicians examined Stallard—

Drs. Ronald Jay Klayton, James Gallai, and David M. Rosenberg. A fourth doctor, Dr.

George L. Zaldivar, provided a medical opinion without conducting his own examination.

Drs. Klayton and Gallai diagnosed Stallard with black lung disease. 1 Although Dr. Gallai

opined that exposure to coal dust caused Stallard’s condition, Dr. Klayton said that he

could not “quantitate the relative contributions” of Stallard’s exposure to coal dust and

cigarette smoke in reaching his diagnosis. 

       1
         Strictly speaking, Dr. Klayton diagnosed Stallard with “clinical” black lung
disease, whereas Dr. Gallai found no basis for such a diagnosis and instead diagnosed
Stallard with “legal” black lung disease. The distinction between these respective
diagnoses is briefly discussed below, but is largely inconsequential to the present petition
for review.



                                              4
       By contrast, Drs. Rosenberg and Zaldivar diagnosed Stallard not with black lung

disease, but instead with severe chronic obstructive pulmonary disease (“COPD”). Based

on his review of Stallard’s treatment history, as well as his suspicion that Stallard

concealed the true extent of his smoking habit, Dr. Rosenberg concluded that cigarette

smoke was the “sole culprit” responsible for Stallard’s breathing difficulties. 

Similarly, Dr. Zaldivar testified that Stallard did not have black lung disease, attributing

his severe lung impairment to a lifetime of asthma and smoking.

                                            B.

       On July 10, 2014, the ALJ presiding over Stallard’s claim conducted a hearing to

consider the medical and other evidence regarding Stallard’s eligibility for Black Lung

Act benefits. In addition to Stallard’s live testimony at the hearing, the ALJ considered

various exhibits, including transcripts of the depositions of Drs. Rosenberg and Zaldivar.

       Roughly six months later, the ALJ issued a decision and order granting Stallard

Black Lung Act benefits. The ALJ first found Stallard’s claim timely filed. 30 U.S.C.

§ 932(f); see also 20 C.F.R. § 725.308(a). Next, in light of Stallard’s long career in the

mining industry, the ALJ applied a statutory presumption that Stallard’s work in the

mines caused or substantially contributed to any disabling lung disease he experienced.

30 U.S.C. § 921(c)(4); see also 20 C.F.R. § 718.305(b). The ALJ then concluded that:

(1) the medical evidence demonstrated that Stallard suffered from a disabling lung

disease; and (2) Westmoreland failed to rebut the statutory presumption that Stallard’s

disease was caused by exposure to coal dust. Accordingly, the ALJ determined that




                                             5
Stallard was entitled to benefits under the Black Lung Act and found Westmoreland

liable for those benefits as of March 1, 2011.

       The Board affirmed the ALJ’s decision on February 24, 2016. As to timeliness,

the Board upheld the ALJ’s finding that the medical advice Stallard received in the early

1990s did not put him on notice that he was totally disabled due to black lung disease.

Likewise, the Board agreed that substantial evidence supported the ALJ’s conclusion that

the opinions of Drs. Rosenberg and Zaldivar were insufficient to rebut the presumption

that Stallard’s chronic lung disease was caused by his long-term exposure to coal dust.

Westmoreland timely petitioned this Court for review.



                                            II.

       The Black Lung Act provides disability benefits to former coal miners suffering

from black lung disease (known medically as “pneumoconiosis”). 30 U.S.C. § 901(a).

To be eligible for such benefits, miners must demonstrate that: (1) they have black lung

disease; (2) the disease arose out of coal mine employment; (3) they are totally disabled;

and (4) their black lung disease contributes to that total disability.         20 C.F.R.

§ 725.202(d).

       Under applicable Department of Labor (“Labor Department”) regulations, black

lung disease is defined as “a chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal mine employment.” 

The disease manifests in two forms: (1) “clinical” black lung disease,

which includes a number of specific diagnoses associated with the accumulation of


                                             6
particulate matter in the lungs; and (2) “legal” black lung disease, which is defined as

“any chronic lung disease or impairment and its sequelae arising out of coal mine

employment.” 

      As revised in 2000, the Labor Department regulations are preceded by an

extensive Preamble that “sets forth the medical and scientific premises relied on by the

Department in coming to [its medical] conclusions in [crafting] its regulations.” Harman

Mining Co. v. Dir., Office of Workers’ Comp. Programs, 

, 314 (4th Cir.

2012). The product of notice-and-comment rulemaking, this Court must accord these

conclusions substantial deference. E. Associated Coal Corp. v. Dir., Office of Workers’

Comp. Programs, 

, 512 (4th Cir. 2015). Accordingly, we repeatedly have

held that ALJs may look to the Preamble in weighing medical opinions addressing the

cause of a claimant’s disabling lung disease. See, e.g., Harman Mining 

–16; Westmoreland Coal Co. v. Cochran, 

, 323 (4th Cir. 2013).

      Once the Board makes a merits determination, the Black Lung Act allows for only

“limited” judicial review to determine “whether substantial evidence supports the factual

findings of the ALJ and whether the legal conclusions of the [Board] and ALJ are rational

and consistent with applicable law.” Hobet Mining, LLC v. Epling, 

, 504

(4th Cir. 2015) (alteration in original) (quoting Harman Mining 

).

Accordingly, we review the ALJ’s factual findings for “substantial evidence”—i.e., “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion[,]” Consol. Edison Co. of N.Y. v. NLRB, 

, 217 (1938)—and the

Board’s legal conclusions de novo, Harman Mining 

. To this end,


                                           7
“we must be careful not to substitute our judgment for that of the ALJ,” and thus “defer

to the ALJ’s evaluation of the proper weight to accord conflicting medical opinions.”

Harman Mining 

(quoting Stiltner v. Island Creek Coal Co., 

, 342 (4th Cir. 1996)).



                                             III.

       In the instant petition, Westmoreland lodges four separate objections to the

Board’s determination that Stallard is entitled to Black Lung Act benefits. As a threshold

matter, the company contends that Stallard’s Black Lung Act application, which he filed

nearly two decades after retiring from the coal industry due to breathing difficulties, is

untimely under the statute’s three-year limitations period. Next, assuming Stallard’s

claim was timely filed, the company argues that the ALJ improperly ignored evidence

regarding the extent of Stallard’s smoking history prior to his retirement. Along similar

lines, Westmoreland contends that the ALJ erroneously discounted the opinion of one of

its medical experts who claimed that a particular measure of Stallard’s lung function

demonstrated that his disability was caused by his smoking. And, finally, the company

argues that the ALJ misapplied the so-called “rule out” standard in determining that

Stallard’s exposure to coal dust—and not his smoking—caused his disabling lung

disease.

       We address each contention in turn.




                                              8
                                              A.

       Westmoreland first argues the ALJ erred in concluding that Stallard timely filed

his 2011 claim for benefits, i.e., within three years of becoming aware of his permanent

disability due to black lung disease. According to Westmoreland, the ALJ used an

incorrect standard to determine whether Stallard was informed of his disability in

sufficient detail so as to trigger the statute of limitations, and thus incorrectly weighed the

evidence regarding timeliness. We disagree.

       Miners seeking benefits under the Black Lung Act must file a claim “within three

years after . . . a medical determination of total disability due to pneumoconiosis.” 30

U.S.C. § 932(f). Labor Department regulations provide that the three-year filing window

begins to run when a qualifying medical determination “has been communicated to the

miner or a person responsible for the care of the miner.” 20 C.F.R. § 725.308(a). The

regulations further establish a “rebuttable presumption that every claim for benefits is

timely filed.” 

If a respondent overcomes this presumption, however,

the three-year limitations period is “mandatory and may not be waived or tolled except

upon a showing of extraordinary circumstances.” 

present case, Westmoreland first contends that the ALJ applied a different

standard—one that requires a claimant to “be told that his breathing impairment and

resulting disability was due solely to pneumoconiosis.” Pet’r’s Br. 10 (emphasis added).

However, Westmoreland fails to specify any language in the ALJ’s analysis that

articulates or applies such a standard. To the contrary, the ALJ’s decision tracks the




                                              9
language of the relevant statutory and regulatory provisions, nowhere suggesting a

heightened standard. Accordingly, we reject this argument.

       This therefore leaves as the sole remaining question whether substantial evidence

supports the ALJ’s timeliness determination. On this front, Westmoreland argues that the

opinions of the three physicians who treated Stallard in the early 1990s, when taken

together, put him on notice that he was totally disabled due to black lung disease.

However, the ALJ appropriately found otherwise.         No one doctor communicated to

Stallard a diagnosis of both total disability and black lung disease. Instead, around 1990

Dr. Maine told Stallard that he had not-yet-serious black lung disease that would continue

to progress.   Only later, as part of Stallard’s 1993 treatment for carbon monoxide

poisoning, did Dr. Estocino advise Stallard to stop working in the mines to prevent

further damage to his lungs and Dr. Dorman tell Stallard that he was permanently

disabled as a result of his impaired respiratory function. Notably absent from the 1993

doctors’ diagnoses is any mention of black lung disease, and therefore any explicit

medical determination of total disability due to pneumoconiosis.

       Furthermore, even if Stallard had considered the doctors’ disparate diagnoses in

concert, he reasonably could have concluded that his black lung disease was not totally

disabling during the relevant time period. As noted, Dr. Maine was the only one who

diagnosed Stallard with black lung disease. However, according to Stallard, in rendering

this diagnosis Dr. Maine explicitly indicated that the disease was not, at that time, severe

and would continue to progress the more he worked in the mines. That Dr. Maine left

open the possibility of Stallard returning to work suggests that he did not view Stallard as


                                            10
totally disabled.    And although Dr. Dorman subsequently told Stallard he was

permanently disabled as a result of impaired respiratory function, Dr. Dorman did not

identify any underlying cause. Even Dr. Estocino’s diagnosis—rendered around the

same time—merely “advised” Stallard to stop working in the mines to prevent further

damage to his lungs. Given the imprecise nature of these medical opinions, substantial

evidence supports the ALJ’s conclusion that Stallard was never legally notified that he

was totally disabled due to black lung disease. See Tenn. Consol. Coal Co. v. Kirk, 

, 607 (6th Cir. 2001) (upholding ALJ’s determination that claim was timely filed

in part because “[a]lthough [one doctor] did diagnose [the claimant] with the initial stages

of pneumoconiosis, he did not label him as ‘totally disabled’ on that basis or any other”),

superseded by regulation on other grounds as stated in Cumberland River Coal Co. v.

Banks, 

(6th Cir. 2012).

                                            B.

       Westmoreland next argues that the ALJ relied on an inaccurate smoking history in

weighing the evidence. In particular, Westmoreland contends the ALJ’s calculation of

Stallard’s smoking history at two to four pack-years 2 failed to account for contrary

evidence and, regardless, is not supported by substantial evidence. We again disagree.


       2
         A “pack-year” is calculated by multiplying the number of packs of cigarettes
smoked per day by the total number of years an individual smoked. There are twenty
cigarettes in a pack. So, a person who smoked fifteen cigarettes (3/4 pack) per day for
forty years would have a thirty pack-year smoking history. By comparison, a person who
smoked one cigarette (1/20 pack) per day over same period would have a two pack-year
smoking history.



                                            11
      As an initial matter, the ALJ’s decision addressed the relevant evidence

concerning Stallard’s smoking history, including Westmoreland’s “conten[tion] that

[Stallard’s account of his] smoking history is inaccurate or has changed over time.” J.A.

528 n.7. Ultimately, the ALJ credited Stallard’s testimony that he “only smok[ed] 1 to 2

cigarettes per day,” in part because Westmoreland elsewhere agreed that Stallard’s

“memory was excellent.” 

crux of Westmoreland’s remaining argument, then, is that the competing

evidence of a higher smoking history undermines Stallard’s credited testimony such that

substantial evidence does not support the ALJ’s two-to-four pack-year calculation. In

this regard, Westmoreland notes that Stallard apparently offered varying descriptions of

his smoking habits at other points in connection with his claim for benefits. For example,

in June 2011, Dr. Klayton reported that Stallard smoked half a pack of cigarettes per day

between 1973 and 1993, resulting in a ten pack-year smoking history. Likewise, Dr.

Gallai reported a six pack-year history in his evaluation of Stallard in March 2012, and,

in December 2013, a medical report prepared by Dr. Rosenberg mirrors the ten pack-year

estimate upon which Dr. Klayton relied.          Finally, some medical records reflecting

Stallard’s post-retirement treatment for other health problems indicate an even greater

smoking history, charting as high as forty pack-years.

      Unsurprisingly, Westmoreland focuses on the higher estimates catalogued above;

however, the totality of evidence on this front is largely inconsistent. And in finding a

two-to-four pack-year history, the ALJ expressly considered Westmoreland’s arguments

and instead chose to credit Stallard’s testimony. Such a determination is within the


                                            12
ALJ’s prerogative as fact-finder to weigh the credibility of witnesses and determine the

persuasiveness of their testimony. W. Va. CWP Fund v. Bender, 

, 144 (4th

Cir. 2015); see Hancock v. Astrue, 

, 472 (4th Cir. 2012) (“In reviewing for

substantial evidence, we do not . . . reweigh conflicting evidence [or] make credibility

determinations . . . .”).

       Furthermore, the ALJ’s determination is bolstered both by several doctors’ more

modest pack-year estimates and other medical statements indicating a minimal smoking

history, such as that Stallard “did smoke in the past, but intermittently, not heavily . . . .”

J.A. 60; see also Harman Mining 

n.2 (4th Cir. 2012) (disregarding

conflicting evidence indicating claimant smoked between one-quarter pack per day and

two packs per day beginning as early as 1968 and as late as 1980).

       In sum, although the ALJ here chose to accept the lower end of a relatively wide

range of evidence, we have stressed that we “must be careful not to substitute our

judgment for that of the ALJ.” Harman Mining 

. Under this

standard, and given the array of evidence presented, substantial evidence supports the

ALJ’s calculation of Stallard’s smoking history.

                                              C.

       Building on its claim that the ALJ underestimated Stallard’s smoking history,

Westmoreland next argues that the ALJ erred in discounting Dr. Rosenberg’s reliance on

a particular measure of lung function to support his conclusion that Stallard’s disability

resulted from smoking and not coal dust exposure.                  However, under similar

circumstances both the Sixth Circuit and unpublished opinions from this Court have


                                              13
rejected this argument. We agree with those decisions, and therefore conclude that the

ALJ properly discounted Dr. Rosenberg’s opinion.

       At the heart of this issue is a measure of lung function referred to as the

FEV1/FVC ratio.       Among four pulmonary function tests identified in the Labor

Department’s Black Lung Act regulations as probative of a miner’s total disability, this

measurement compares the amount of air that a patient can forcibly exhale in the first

second of exhalation with the total amount of air the patient can exhale in a single breath.

See 20 C.F.R. § 718.204(b)(2)(i)(C). Under the regulations, a ratio of 55% or less is

indicative of total disability due to black lung disease. 

not dispute that a reduced FEV1/FVC ratio suggests that a

patient suffers from lung impairment generally. According to the company, however, the

ALJ improperly discounted Dr. Rosenberg’s reliance on Stallard’s FEV1/FVC ratio to

further identify the specific cause—i.e., smoking, black lung disease, or both—of his

disability. In particular, Dr. Rosenberg cited medical articles indicating that FEV1 and

FVC measurements together decline in patients suffering from black lung disease such

that the corresponding FEV1/FVC ratio ordinarily remains undisturbed. By contrast,

because Stallard’s FEV1/FVC ratio decreased over time, Dr. Rosenberg posited, the

medical evidence indicated that Stallard’s history of smoking was the “sole culprit” of his

disabling lung disease. J.A. 406.

       As the ALJ explained, however, Dr. Rosenberg’s hypothesis regarding FEV1/FVC

ratios runs directly contrary to the agency’s own conclusions in this regard. Specifically,

the Labor Department’s regulatory Preamble cites various studies indicating that coal


                                              14
dust exposure does result in decreased FEV1/FVC ratios. See Regulations Implementing

the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed. Reg.

79,920-01, 79,943 (Dec. 20, 2000) (explaining that COPD stemming from exposure to

coal dust “may be detected from decrements in certain measures of lung function,

especially FEV1 and the ratio of FEV1/FVC” (emphasis added)).              The Preamble is

consistent with the corresponding regulation permitting claimants to demonstrate

entitlement to Black Lung Act benefits based on a reduced FEV1/FVC ratio. 20 C.F.R.

§ 718.204(b)(2)(i)(C). It is appropriate to give “little weight . . . to medical findings that

conflict with the [Black Lung Act]’s implementing regulations.” Lewis Coal Co. v. Dir.,

Office of Workers’ Comp. Programs, 

, 580 (4th Cir. 2004). And, under

substantially similar circumstances, we have held that ALJs are permitted to give less

weight to medical opinions that draw on medical studies purporting to distinguish

between smoking-induced COPD and black lung disease. See 

–

24.

       Nonetheless, Westmoreland argues that Dr. Rosenberg arrived at his medical

opinion in this case based specifically on his review of the medical literature informing

the Preamble, as well as more recent studies purportedly showing a link between reduced

FEV1/FVC ratios and smoking. However, Dr. Rosenberg’s interpretation of the studies

predating the Preamble relies on selective quotations. And the agency rejected such an

interpretation when it promulgated the existing Black Lung Act regulations, see Cent.

Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 

, 491 (6th Cir.

2014), after considering “the prevailing view of the medical community [and] the


                                             15
substantial weight of the medical and scientific literature,” 65 Fed. Reg. at 79,939.

Likewise, the more recent studies do not address black lung disease at all and thus offer

little support for Westmoreland’s argument that the ALJ erred in disregarding Dr.

Rosenberg’s opinion. See 

–24.

       Accordingly, we—along with the Sixth Circuit—repeatedly have rejected Dr.

Rosenberg’s (and others’) reliance on similar evidence to argue that Black Lung Act

claimants are not entitled to benefits. See McElroy Coal Co. v. Dir., Office of Workers’

Comp. Programs, 624 F. App’x 101, 102 (4th Cir. 2015); Westmoreland Coal Co. v. Dir.,

Office of Workers’ Comp. Programs, 540 F. App’x 152, 153–54 (4th Cir. 2013) (per

curiam); see also Cent. Ohio Coal 

–92; Quarto Mining Co. v. Dir.,

Office of Workers’ Comp. Programs, 657 F. App’x 428, 432–35 (6th Cir. 2016); Quarto

Mining Co. v. Marcum, 604 F. App’x 477, 482–84 (6th Cir. 2015).

       In light of these authorities, as well as an ALJ’s general prerogative to discount

medical opinions at odds with the conclusions adopted by the agency itself, we conclude

that the ALJ did not err in rejecting Dr. Rosenberg’s opinion regarding the FEV1/FVC

ratio’s ability to show particularized causation. 3 Cent. Ohio Coal 

–

92 (“The sole issue presented here is whether the ALJ was entitled to discredit Dr.

Rosenberg’s medical opinion because it was inconsistent with the [Labor Department]

position set forth in the preamble, and the answer to that question is unequivocally yes.”).



       3
           Known in the medical profession as “etiology.”



                                             16
                                            D.

       Finally, Westmoreland argues that the ALJ misapplied the so-called “rule out”

standard in considering whether the company sufficiently rebutted the presumption that

black lung disease caused Stallard’s disability. As Westmoreland sees it, various errors

in framing and application led the ALJ to apply a standard which was nearly impossible

for the company to meet and led the ALJ to improperly discount the medical opinions of

Drs. Rosenberg and Zaldivar. We disagree.

       When a Black Lung Act claim is timely filed, the claimant generally bears the

burden of demonstrating benefits eligibility. See 20 C.F.R. § 725.103. In some cases,

however, the Black Lung Act shifts the burden to the party opposing eligibility. For

instance, when a miner has more than fifteen years of below-ground mining experience, a

chest x-ray fails to show the presence of complicated pneumoconiosis, and other

evidence demonstrates a totally disabling respiratory or pulmonary impairment, there is a

rebuttable presumption that he or she is disabled due to black lung disease and thus

entitled to benefits. 30 U.S.C. § 921(c)(4). To rebut this presumption, an employer bears

the burden of showing either that the miner did not have black lung disease or that “no

part of the miner’s respiratory or pulmonary total disability was caused by” the disease.

20 C.F.R. § 718.305(d)(1)(i)–(ii).

       As a threshold matter, Westmoreland does not dispute that Stallard’s long history

of employment in the coal mining industry and diagnosis with a totally disabling lung

disease make him presumptively eligible for Black Lung Act benefits under the statute’s

“15-year” presumption.      Under Labor Department regulations, Westmoreland may


                                           17
overcome this presumption either by showing that Stallard does not suffer from black

lung disease or by proving that “no part of [Stallard]’s respiratory or pulmonary total

disability was caused by” the disease. 20 C.F.R. § 718.305(d)(1). The second prong—

known as the “rule out” standard—is the prong here at issue. See 

, 137–44 (tracing history of rule out standard and explaining that under latest

regulations it requires an operator opposing benefits to “establish that the miner’s

disability is attributable exclusively to a cause or causes other than pneumoconiosis”).

Consistent with Congress’s purpose, the “rule out” standard imposes a “strict” and

“significant burden on operators seeking to rebut the statutory presumption.” 

       In arguing that the ALJ’s flawed articulation of the rule out standard led him to

improperly discount Dr. Rosenberg’s and Zalidvar’s opinions, Westmoreland advances

numerous objections. These include that the ALJ failed to account for Dr. Rosenberg’s

reliance on the FEV1/FVC ratio; improperly decided to discount Drs. Rosenberg’s and

Zaldivar’s consideration of more extensive smoking histories than the ALJ’s two-to-four

pack-year calculation; and improperly rejected these experts’ conclusion that Stallard

would have been equally disabled had he never worked in the coal mining industry. We

conclude that none have merit.

       Although many of Westmoreland’s objections impliedly ask this Court to reweigh

the medical opinions presented to the ALJ, we decline to do so. Harman Mining 

(“Because the ALJ is the trier of fact, we ‘defer to the ALJ's evaluation of the

proper weight to accord conflicting medical opinions.’” (quoting 

)). Accordingly, because two physicians who examined Stallard here determined that


                                            18
he suffered from disabling black lung disease, Westmoreland “undeniably [fac]es a

substantial burden” in challenging the underlying conclusion that Stallard is entitled to

benefits. 

. Nonetheless, the company takes particular issue with

the ALJ’s reliance on the Preamble in dismissing Drs. Rosenberg’s and Zaldivar’s

alternative explanations for Stallard’s disabling lung disease. 4

       Specifically, Westmoreland argues that the ALJ held Drs. Rosenberg and Zaldivar

to an impossible standard in assessing whether their opinions categorically ruled out

black lung disease as a cause of Stallard’s breathing impairment. In Westmoreland’s

view, the ALJ relied on the Preamble’s discussion of the additive effects of various risk

factors to conclude that exposure to coal dust necessarily has some effect on a miner’s

lung functioning.    So construed, Westmoreland posits, the Preamble would make it

impossible to definitively rule out black lung disease as a substantially contributing factor

to a miner-smoker’s disabling lung disease.

       Again, however, this argument contradicts both the regulations and our precedent.

In awarding benefits, the ALJ explained that the opinions given by Drs. Klayton and

       4
         Westmoreland’s threshold argument—that the ALJ improperly discounted the
opinions of Drs. Rosenberg and Zaldivar because they did not use “magic ‘rule out’
words”—is without merit. Pet’r’s Br. at 18. The ALJ repeatedly explained that he
discounted these doctors’ opinions because they failed to explain or even address why
coal mine dust could not have been a contributing or aggravating factor in this specific
case. In other words, these doctors ruled out coal dust exposure as a potential cause
simply because they viewed smoking to be the sole cause; however, because they solely
focused on smoking, they nowhere addressed why coal dust could not have been an
additional cause—a fundamental aspect of the legal inquiry. And, of course, these
doctors’ etiological conclusions also ran contrary to those rendered by Drs. Klayton and
Gallai.



                                              19
Gallai were “consistent with the prevailing view of the medical community as expressed

by the Department in the Preamble to its regulations, where it noted that the effects of

cigarette smoke and coal dust on chronic obstructive pulmonary disease and chronic

bronchitis are additive.” J.A. 545. More specifically, the ALJ cited language in the

Preamble addressing in great detail the effects of smoking and exposure to coal dust

before reaching the Preamble’s “unequivocal” conclusion that “[e]ven in the absence of

smoking, coal mine dust exposure is clearly associated with clinically significant airways

obstruction and chronic bronchitis. The risk is additive with cigarette smoking.” 65 Fed.

Reg. at 79,940. Finally, Dr. Gallai further noted that—aside from the additive risk

component—Stallard’s “rapid decline [in lung function] over the past three years . . . is

typical of . . . coal workers’ pneumoconiosis.” J.A. 300.

       By contrast, the ALJ discounted the opinions of Drs. Rosenberg and Zaldivar

because they were inconsistent with the Labor Department’s additive-risk determination

and not otherwise supported by the medical evidence in this case. In particular, both

doctors conceded that Stallard’s exposure to coal dust was sufficient to cause black lung

disease. And both doctors principally relied on evidence regarding the relative impact of

smoking and coal dust exposure on miners generally to conclude that Stallard’s

particularized exposure to coal dust did not significantly contribute to his disabling lung

disease. Finally, the ALJ additionally discounted these opinions because they relied on a

more significant smoking history than his two-to-four pack-year finding.

      “‘[A]s trier of fact, the ALJ is not bound to accept the opinion or theory of any

medical expert,’ but instead ‘must evaluate the evidence, weigh it, and draw his own


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conclusions.’” 

(4th Cir. 2015) (alteration in original) (quoting

Underwood v. Elkay Mining, Inc., 

, 949 (4th Cir. 1997)). The ALJ here did

so based on all the evidence detailed above, and he did not lightly arrive at his conclusion

that Westmoreland failed to rebut the statutory presumption.          The decision below

carefully laid out the components of each doctor’s diagnosis and underlying rationales.

The decision then meaningfully engaged with the medical science, relevant caselaw, and

applicable regulations.    Against this backdrop, the ALJ did not reversibly err in

concluding that Westmoreland failed to carry its “strict” and “substantial” burden to

completely rule out coal dust exposure as a cause of Stallard’s disability.



                                            IV.

       In sum, substantial evidence supports the ALJ’s decision and order to award

Stallard benefits and the decision otherwise accords with applicable law. The Board

therefore did not err in affirming the ALJ’s decision and order, and we accordingly deny

Westmoreland’s petition for review.

                                                       PETITION FOR REVIEW DENIED




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