MATHESON, Circuit Judge.
Rolland E. Goodin worked at surface coal mines for 25 years and smoked cigarettes for more than 40 years. He developed a respiratory condition and filed for benefits under the Black Lung Benefits Act ("BLBA"). 30 U.S.C. §§ 901, et seq. An Administrative Law Judge ("ALJ") awarded Mr. Goodin benefits. His employer, Antelope Coal Company/Rio Tinto Energy America ("Antelope"), appealed, and the Department of Labor Benefits Review Board ("Review Board") affirmed the grant of benefits. Antelope filed this petition for review of the Review Board's order.
Antelope's primary argument is that the ALJ wrongly limited its options to rebut a regulatory presumption that Mr. Goodin's work as a coal miner caused his respiratory condition. Specifically, it argues 20 C.F.R. § 718.305(d),
We begin with the relevant statutes and regulations and then turn to the facts and procedural history of Mr. Goodin's case.
Congress enacted the BLBA in 1969 to compensate miners who develop pneumoconiosis — black lung disease. The BLBA provides benefits to coal miners who become totally disabled from pneumoconiosis. Five parts of the BLBA and regulations are particularly relevant here.
To obtain benefits under the BLBA, a claimant must prove: (1) he or she suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment; (3) he or she is totally disabled due to a respiratory or pulmonary impairment; and (4) pneumoconiosis is a substantially contributing cause of his or her total disability. See 20 C.F.R. §§ 725.202(d)(2), 718.204(c)(1); 30 U.S.C. §§ 902, 921; Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir.2009).
The BLBA recognizes two types of pneumoconiosis: clinical and legal. Clinical pneumoconiosis refers to diseases the medical community recognizes as pneumoconiosis, which includes "conditions characterized by ... the fibrotic reaction of the lung tissue to ... deposition [of particulate matter] caused by dust exposure in coal mine employment." 20 C.F.R. § 718.201(a)(1).
Legal pneumoconiosis, added in 1978, 30 U.S.C. § 902(b), is "any chronic lung disease or impairment and its sequelae
The BLBA created a presumption that a miner is disabled due to pneumoconiosis when he or she has worked for 15 years in underground coal mines or substantially similar conditions and is totally disabled from a respiratory or pulmonary condition (the "15-year presumption"). In other words, a miner who proves 15 years of coal mine work and total disability is entitled to a presumption that the remaining elements of his claim are established. This presumption expired in 1982. 30 U.S.C. § 921(c)(4) (2006).
Section 921 provides that the Secretary of Labor can rebut the 15-year presumption only by proving (1) the claimant does not have pneumoconiosis, or (2) the claimant's impairment "did not arise out of, or in connection with, employment in a coal mine." Id. § 921(c)(4). In 1976, the Supreme Court ruled the rebuttal limitations apply only to the Secretary and do not apply to coal mine operators. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 34-37, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976).
The U.S. Department of Labor (the "Department") maintains that a rule-out standard applies to the second method of rebuttal, requiring proof that rules out any connection between the claimant's disability and coal mine employment. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits, 78 Fed.Reg. 59,-101, 59,107 (Sept. 25, 2013). Some courts have agreed. See, e.g., Peabody Coal Co. v. Hill, 123 F.3d 412, 417-18 & n. 9 (6th Cir.1997); Rose v. Clinchfield Coal Co., 614 F.2d 936, 939 (4th Cir.1980). This standard derives from 20 C.F.R. § 718.305(d) (2010), which, before its revision in 2013, stated, "Where the cause of death or total disability did not arise in whole or in part out of dust exposure in the miner's coal mine employment ... the presumption will be considered rebutted." Id. (emphasis added).
Although we have not addressed whether the rule-out standard applies to rebuttal of the 15-year presumption, we have held that a rule-out standard applied to a similar presumption of pneumoconiosis arising from proof of total disability
After Congress enacted the ACA, the Department issued a Notice of Proposed Rulemaking to implement the Byrd Amendments. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits, 77 Fed.Reg. 19,455 (proposed Mar. 30, 2012). The comment period closed May 29, 2012. Id. at 19,456. The Department issued its Final Rule on September 25, 2013, with an effective date of October 25, 2013. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits, 78 Fed.Reg. 59,101 (Sept. 25, 2013).
Mr. Goodin worked at surface coal mines, including the Antelope Coal Mine in Wyoming, from 1981 to 2006, when he retired because of respiratory health issues. On May 14, 2007, Mr. Goodin applied
At the hearing, Mr. Goodin testified in person about his working conditions at surface coal mines in the various positions he held, which included warehouse worker for four to five years, equipment operator for 11-12 years, and equipment oiler in the mine pit for nine years. We will discuss Mr. Goodin's working conditions in more detail later in the opinion. He also testified about his forty-year smoking history, stating that he started smoking in his 20s, tried to quit multiple times, and successfully quit in 2004 or 2005. He smoked, on average, a pack of cigarettes each day.
The parties introduced conflicting medical evidence regarding (1) readings of chest x-rays and CT scans; (2) results from pulmonary function tests and arterial blood gas studies; (3) interpretations of patient history; (4) statistical reasoning; and (5) diagnoses.
Mr. Goodin submitted Dr. Andras Bodoni's and Dr. Cecile Rose's medical reports and deposition testimony, Dr. Donald Smith's treatment records, and additional x-ray and CT scan interpretations.
Dr. Bodoni, board-certified in internal medicine, examined Mr. Goodin to satisfy the Department's obligation under 30 U.S.C. § 923(b) to provide each claimant-miner with "an opportunity to substantiate his or her claim by means of a complete pulmonary evaluation." See 30 U.S.C. § 923(b). Dr. Bodoni diagnosed Mr. Goodin with pneumoconiosis from exposure to coal dust and with total disability from a combination of pneumoconiosis and another respiratory disease. Appx., Vol. I at 17. He based this diagnosis on a physical examination, patient history, and his positive x-ray reading. Id. at 41. Dr. Bodoni opined that although Mr. Goodin had other respiratory conditions, none of them constituted the entire disability without pneumoconiosis. Id. Dr. Bodoni testified it was impossible to tell the difference in impact between coal mine exposure and smoking. Id. at 32-33.
Dr. Rose — board-certified in pulmonary medicine, general preventive/occupational medicine, and internal medicine, as well as a B-reader
Dr. Smith was Mr. Goodin's treating physician. Mr. Goodin submitted Dr.
Mr. Goodin submitted additional interpretations of his tests. Dr. Afzal Ahmed examined three admissible x-rays
Antelope submitted Drs. Lawrence Repsher's and Robert Farney's reports and deposition testimony as well as additional interpretations of Mr. Goodin's x-rays and CT scans.
Dr. Repsher, board-certified in internal medicine and pulmonary disease and a B-reader, examined Mr. Goodin at Antelope's request. He concluded that Mr. Goodin's respiratory disease was chronic obstructive pulmonary disease ("COPD") due to heavy smoking, noting that Mr. Goodin's chest x-ray showed no evidence of pneumoconiosis. Appx., Vol. II at 262. He based his opinion on Mr. Goodin's chest x-ray and a CT scan showing opacities consistent with smoking but not typical of pneumoconiosis. Id. He also explained that although a few coal miners will develop COPD from coal mine dust, statistically "in this individual coal miner, to an overwhelming probability, any detectable COPD would be the result of cigarette smoking and/or asthma, but not the result of the inhalation of coal mine dust." Appx., Vol. I at 48. He thought Dr. Rose's pulmonary function tests were not reliable and probably invalid because the results were unlikely. Dr. Repsher also concluded Mr. Goodin's pulmonary capacity is likely sufficient to perform his last coal mining job, and therefore Mr. Goodin is not totally disabled. Appx., Vol. II at 275.
Dr. Farney, board-certified in internal medicine, pulmonary medicine, and sleep medicine, examined Mr. Goodin at Antelope's request. Unlike Dr. Repsher, he agreed with Dr. Rose that Mr. Goodin is totally and permanently disabled, but stated that Mr. Goodin does not have pneumoconiosis. Appx., Vol. II at 264. Instead, he diagnosed Mr. Goodin with COPD from smoking. Id. He stated that coal dust exposure can cause COPD, but the degree of COPD from coal dust is usually mild unless the dust exposure was high, in which case a chest x-ray would be abnormal. Id. at 264-65. Dr. Farney ruled out pneumoconiosis from coal dust exposure because "the risk of developing coal worker's [pneumoconiosis] is less in surface mining," Appx., Vol. I at 64, smoking has a higher risk of respiratory conditions than coal dust exposure, and Mr. Goodin's chest x-ray was negative for pneumoconiosis.
In summary, three of the four doctors, Drs. Bodoni, Rose, and Repsher, agreed Mr. Goodin was totally disabled. They disagreed as to the cause. Mr. Goodin's experts, Drs. Bodoni and Rose, concluded his disability resulted, at least in part, from pneumoconiosis due to coal mining. Antelope's experts, Drs. Repsher and Farney, concluded Mr. Goodin's disability may have resulted from COPD caused by heavy smoking. They based this conclusion on test results not typical for pneumoconiosis and Mr. Goodin's health history. They also opined that Mr. Goodin's work at a surface mine made pneumoconiosis statistically improbable because (1) most miners will not develop chronic COPD from coal dust exposure, and (2) because the risk of developing pneumoconiosis from surface mining is less than from underground mining due to lower coal dust exposure.
The ALJ found Mr. Goodin (1) had worked for more than 15 years in surface mining conditions substantially similar to underground mining and (2) was totally disabled from his respiratory impairment. Appx., Vol. II at 271, 275. These findings established the 15-year presumption. The ALJ stated Antelope had the burden under § 921 to rebut this presumption by a preponderance of the evidence showing (1) Mr. Goodin did not have pneumoconiosis or (2) his disability did not arise out of coal mine employment. Id. at 276.
The ALJ held that Antelope had failed to rebut the presumption and awarded Mr. Goodin BLBA benefits. Id. at 283. He found the x-ray evidence to be in equipoise and Dr. Rose's report and conclusions to be persuasive.
The Benefits Review Board affirmed the ALJ's decision on September 27, 2012. It
Antelope petitioned this court, challenging the legal standard applied to its rebuttal evidence, the test for determining substantial similarity to underground coal mining conditions, the completeness of Mr. Goodin's Department-provided pulmonary exam, the ALJ's consideration of medical evidence, and the completeness of the ALJ's analysis.
On the day of oral argument, September 25, 2013, the Department issued its Final Rule implementing and interpreting statutory changes made by the ACA, which became effective on October 25, 2013. The parties submitted supplemental briefing on the applicability and impact of the Final Rule on this case.
For questions of fact, we determine whether the Review Board "properly concluded that the ALJ's decision was supported by substantial evidence." Hansen v. Dir., OWCP, 984 F.2d 364, 368 (10th Cir.1993).
We do not reweigh the evidence, but instead ask if, based on the record as a whole, substantial evidence is present to support the ALJ's decision. See Energy West Min. Co. v. Oliver, 555 F.3d 1211, 1217 (10th Cir.2009). "[T]he task of weighing conflicting medical evidence is within the sole province of the ALJ." Hansen, 984 F.2d at 368. "[W]here medical professionals ... disagree[], the trier of fact is in a unique position to determine credibility and weigh the evidence." Id. at 370.
For questions of law, we review the Review Board's decision de novo. See Mangus v. Dir., OWCP, 882 F.2d 1527, 1530 (10th Cir.1989). We give no deference to the Review Board's interpretation, see Lukman v. Dir., OWCP, 896 F.2d 1248, 1251 (10th Cir.1990), "however, we give `considerable weight' to the Department['s]... construction of the statute it is entrusted to administer and `substantial deference' to the agency's reasonable interpretation of its own regulations," Andersen, 455 F.3d at 1103 (citations omitted), unless such interpretation is "plainly erroneous or inconsistent with the regulation," Mullins Coal Co. v. Dir., OWCP, 484 U.S. 135, 159, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987); see also Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).
Before we discuss the ALJ's and Review Board's determinations, we first address whether relevant provisions of the Final Rule, which became effective October 25, 2013, apply to this case. They do.
The relevant provisions concern (1) how to establish the 15-year presumption
"If a new regulation is substantively consistent with prior regulations or prior agency practices, and has been accepted by all Courts of Appeals to consider the issue, then its application to pending cases" is proper. Nat'l Mining, 292 F.3d at 860. Here, neither provision changes the substantive law because each merely clarifies the Department's position and conforms to circuit court cases.
Section 718.305(b)(2) addresses when a surface miner's working conditions are substantially similar to underground mining working conditions. The only circuit to address this issue has long held that surface miners do not need to provide evidence of underground mining conditions to compare with their own working conditions. See, e.g., Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 479 (7th Cir.2001); Blakley v. Amax Coal Co., 54 F.3d 1313, 1319 (7th Cir. 1995); Dir., OWCP v. Midland Coal Co., 855 F.2d 509, 512 (7th Cir.1988). These decisions validate the Department's longstanding position that consistently dusty working conditions are sufficiently similar to underground mining conditions. See, e.g., Midland Coal, 855 F.2d at 511-12. The revised regulation codifies that interpretation by making regular exposure to coal mine dust the standard to determine substantial similarity of surface working conditions to those in underground mines. See 20 C.F.R. § 718.305(b)(2).
Similar reasoning applies to revised § 718.305(d)(1), which outlines the permissible methods of rebutting the 15-year presumption. The changes to § 718.305(d)(1) also comport with the Department's ongoing interpretation and do not substantively change the law. The original regulation required, for rebuttal, proof the disability did not arise from coal mine employment.
The ALJ determined and the Review Board affirmed that Mr. Goodin is entitled to the 15-year presumption because he (1) worked for at least 15 years in conditions substantially similar to underground mining and (2) was totally disabled from a respiratory or pulmonary impairment. See 30 U.S.C. § 924(c)(4). Substantial evidence supported this determination.
The ALJ found that Mr. Goodin worked as a coal miner for at least 25 years in surface mining. The question in this petition is whether the ALJ properly determined that Mr. Goodin's surface mining working conditions were substantially similar to those in underground mining.
Mr. Goodin testified he held three different jobs while working in the mines — warehouse worker, equipment operator, and equipment oiler. Appx., Vol. I at 122-23. He started as a warehouse worker for four to five years and then worked as an equipment operator for three years. Id. As an equipment operator, he drove a truck with an attached shovel, drove a water truck, and operated a machine called a scraper. Id. at 123. Although he was located in the cabs of the vehicles, and some trucks had air filtration, "there was no way [to keep the dust out], even when you closed the doors, it was just like a cloud of dust inside the cabs." Id. at 148. He also described that the truck was "always kicking up a puff of dust," and the dust would just hang in the air. Id. at 127, 148. When the wind blew, it was "like a sand blaster sometimes." Id. at 132. His duties frequently required him to get in and out of the equipment and work outside for a period of time. Id. at 125. Mr. Goodin next worked as an equipment oiler for nine years. During this time, he serviced the equipment exclusively in the mine pit while the other equipment was running, "so it would get pretty dusty out there...." Id. at 130. Finally, he returned to working as an equipment operator for eight to nine years.
The ALJ said Mr. Goodin had the burden of showing substantial similarity between his surface and underground mining conditions, but "must only establish that he was exposed to sufficient coal dust in his surface mine employment." Appx., Vol. II at 270 (quoting Blakley, 54 F.3d at 1319); see also Summers, 272 F.3d at 480.
The ALJ found Mr. Goodin to be a credible witness and said, "Based on my experience with the testimony of underground miners, I find [Mr. Goodin's] description of the conditions in the strip mines where he worked to be substantially similar." Appx., Vol. II at 271.
The ALJ's decision and most of Antelope's arguments were based on the previous version of § 718.305(b)(2). Antelope argues that the "substantial similarity" standard under that regulation, without
The revised regulation states, "The conditions in a mine other than an underground mine will be considered `substantially similar' to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coal-mine dust while working there." 20 C.F.R. § 718.305(b)(2). It instructs ALJs to find substantial similarity if the miner was regularly exposed to coal dust. The clarified standard — regular dust exposure — provides sufficient guidance to measure similarity.
Under this standard, Antelope argues the evidence fails to show that Mr. Goodin's surface mine working conditions were substantially similar to those in an underground mine. We do not reweigh the evidence, but merely ask if there is substantial evidence to support the ALJ's determination. See Energy West, 555 F.3d at 1217.
Mr. Goodin testified at length about the working conditions in his various positions.
The ALJ determined that Mr. Goodin is totally disabled from a respiratory condition. Appx., Vol. II at 275. Although Antelope presented the ALJ with evidence to rebut Mr. Goodin's disability, it does not, as the Review Board noted, challenge the ALJ's determination of total disability. See id. at 287 n. 3.
For the foregoing reasons, we conclude the ALJ did not err in finding that Mr. Goodin is entitled to the 15-year presumption. The Review Board properly concluded there was sufficient evidence to support the ALJ's determination.
The ALJ correctly stated that Mr. Goodin had the burden to establish by a preponderance of the evidence that "(1) he suffers from pneumoconiosis; (2) arising out of coal mine employment; (3) he is totally disabled; and (4) his total disability is caused by pneumoconiosis." Appx., Vol. II at 256; see 20 C.F.R. §§ 725.202(d)(2), 718.204(c)(1). The ALJ determined Mr. Goodin was totally disabled (element (3)) and the 15-year presumption satisfied the remaining three elements ((1), (2), and (4)).
We first review (1) whether there is substantial evidence to support the ALJ's conclusion that Antelope failed to rebut the 15-presumption under these two methods. We conclude there was. We then address (2) whether Mr. Goodin can prevail even if the ALJ erred in determining that an operator such as Antelope is limited to the two rebuttal methods. We conclude Antelope failed to rebut Mr. Goodin's claim even without the rebuttal limitations and therefore any error in applying the rebuttal limitations was harmless.
We review the ALJ's determination that Antelope failed to rebut the presumption under the substantial evidence standard. See Hansen, 984 F.2d at 368. This analysis is divided between the two rebuttal limitations — the presence of pneumoconiosis and whether pneumoconiosis caused the total disability.
The ALJ concluded Antelope failed to rebut the presumption that Mr. Goodin suffered from legal pneumoconiosis because the medical tests were inconclusive and Antelope's experts were unpersuasive.
First, as to the medical tests, the ALJ found the x-ray evidence "in equipoise for the existence of pneumoconiosis" and "not sufficient for [Antelope] to show that [Mr. Goodin] does not have pneumoconiosis." Appx., Vol. II at 278. Although Mr. Goodin's "CT scan[s were] not typical of pneumoconiosis," they did show that Mr. Goodin "does have some lung disease" and Antelope failed to show why this lung disease was not pneumoconiosis because Antelope's experts were not persuasive. Id. at 283.
Second, as to Antelope's experts, Dr. Repsher stated that "to an overwhelming probability, any detectable COPD would be the result of cigarette smoking and/or asthma, but not the result of the inhalation of coal mine dust." Id. at 263. Dr. Farney's main reason that smoking and not coal dust caused Mr. Goodin's lung disease "is the absence of a significant risk factor for coal dust. He worked on a surface mine, which statistically has less risk." Id. at 266. The ALJ found the Antelope's experts' reliance on statistical probabilities undermined their ultimate conclusion that Mr. Goodin did not have pneumoconiosis
We do not reweigh the evidence on appellate review, see Energy West, 555 F.3d at 1217, and conclude the record adequately supports the ALJ's determination.
The ALJ, applying the rule-out standard, concluded Antelope did not show that "no part" of Mr. Goodin's respiratory disability "was caused by pneumoconiosis." 20 C.F.R. § 718.305(d)(1)(ii); see Appx., Vol. II at 282-83. To rebut the presumption using this method, Antelope needed to rule out any connection between Mr. Goodin's disability and his pneumoconiosis. The relevant medical evidence is the same evidence the ALJ considered in determining whether Antelope rebutted the presumption that Mr. Goodin has pneumoconiosis.
Although the ALJ did not specifically analyze disability causation, he made findings showing that Antelope did not rebut the presumption.
Conversely, the ALJ found unpersuasive Antelope's evidence that smoking alone caused Mr. Goodin's condition. Id. at 282-83. The ALJ further said that even if Antelope's evidence had persuaded him that smoking caused Mr. Goodin's condition, Antelope still had failed to show that coal dust had not aggravated or materially worsened Mr. Goodin's condition. Id. at 283 ("Both doctors simply eliminate coat dust exposure as a cause, but do not adequately explain why it could not have contributed to [Mr. Goodin's] lung disease in addition to his history of smoking."); see 20 C.F.R. § 718.201(b).
Finally, the ALJ found that Antelope had "not rebutted the presumption by showing [Mr. Goodin's] pneumoconiosis did not arise out of his coal mine employment as the definition of legal pneumoconiosis subsumes that finding." Appx., Vol. II at 283. Because (1) the ALJ found that Mr. Goodin has legal pneumoconiosis, which Antelope failed to rebut; (2) legal pneumoconiosis by definition arises from exposure to dust in coal mining employment; and (3) Dr. Rose concluded that Mr. Goodin's total disability resulted in part from coal dust exposure, Antelope failed to rule out any connection between Mr. Goodin's pneumoconiosis and his total disability.
We conclude the record supports the ALJ's decision and the Review Board's affirmance.
Antelope argues the rebuttal limitations (1) may not be applied to operators, and (2) impermissibly restricted its ability to prove and argue that coal mining did not substantially contribute to Mr. Goodin's disability. We do not decide whether the rebuttal limitations apply to Antelope
The ALJ did not limit Antelope's presentation of rebuttal evidence, and the record contains substantial evidence that Antelope did not rebut the four elements of Mr. Goodin's prima facie case. See Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1061 n. 4 (6th Cir.2013) (stating the ALJ did not restrict the employer's rebuttal methods and the employer could not otherwise rebut the presumption); Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 555-56 (4th Cir.2013) (same).
Despite the ALJ's finding that Mr. Goodin was entitled to the 15-year presumption and that the rebuttal limitations applied, the ALJ still allowed Antelope to present rebuttal evidence without restriction, and Antelope does not contest otherwise. The ALJ did not even decide that the 15-year presumption applied until all evidence from both parties had been submitted. Antelope's evidence was insufficient to rebut any of the presumptively established elements of Mr. Goodin's claim.
First, as to Mr. Goodin suffering from pneumoconiosis, we have already upheld the ALJ's finding that Antelope did not rebut this element.
Second, as to Mr. Goodin's pneumoconiosis arising out of coal mine employment, the ALJ noted that legal pneumoconiosis by statutory definition arises from coal mining. Appx., Vol. II at 283; 20 C.F.R. § 718.201(a)(2). Because Antelope failed to rebut the first element — the presence of legal pneumoconiosis — Antelope also failed to rebut the presumption that the pneumoconiosis arose out of Mr. Goodin's coal mine employment. Appx., Vol. II at 283.
Fourth, as to pneumoconiosis having caused Mr. Goodin's total disability, Antelope needed to show that coal mining was not a "substantially contributing cause" to rebut this fourth element.
The ALJ quoted the correct standard:
Id. at 274; see 20 C.F.R. § 718.204(c)(1).
The ALJ ultimately concluded that Antelope had failed to rebut any of the presumptively established elements of Mr. Goodin's claim and that Mr. Goodin "has established that he suffers from pneumoconiosis which is totally disabling and is caused by his coal mine employment." Appx., Vol. II at 283.
After careful review of the record and the ALJ's opinion and reasoning, we conclude the rebuttal limitations did not affect the outcome. The ALJ did not limit Antelope's evidence, and any alleged error was harmless because Mr. Goodin would have prevailed even without the rebuttal limitations.
Antelope contends the Department's Office of Workers' Compensation Programs ("OWCP") did not perform a complete pulmonary exam on Mr. Goodin because the x-ray from the exam was unreadable. Antelope also maintains the ALJ erred in not considering all of the medical evidence it presented.
30 U.S.C. § 923(b) states, "Each miner who files a claim for benefits under this subchapter shall upon request be provided an opportunity to substantiate his or her claim by means of a complete pulmonary evaluation." "A complete pulmonary evaluation
Antelope argues that the OWCP failed to perform a complete pulmonary examination on Mr. Goodin due to the poor quality of the chest x-ray from the OWCP exam. Although the Department and Mr. Goodin agree that Mr. Goodin was entitled to a complete pulmonary exam, they argue that Antelope cannot challenge the completeness of the exam because the exam was for Mr. Goodin's benefit in establishing his claim, not for the operator's benefit in defending the claim.
Dr. Bodoni conducted the OWCP exam, including the chest x-ray interpretation. He thought the x-ray showed complicated pneumoconiosis.
Antelope's argument to the contrary fails. Mr. Goodin underwent five additional chest x-rays, including one just five months after the challenged OWCP examination, which Antelope's expert, Dr. Repsher, reviewed. Id. at 277. In fact, Mr. Goodin had so many chest x-rays interpretations that the ALJ was not able to consider them all because of evidentiary limitations.
Moreover, the chest x-ray concerns clinical pneumoconiosis, and the ALJ determined that Mr. Goodin suffers from legal pneumoconiosis. Even if the x-ray had been more readable and had shown no clinical pneumoconiosis, the ALJ's determination of legal pneumoconiosis would stand because legal pneumoconiosis can be found without evidence of clinical pneumoconiosis.
The BLBA states that "all relevant evidence shall be considered...." 30 U.S.C. § 923(b). Antelope argues that the ALJ's failure to consider some of its medical evidence calls for a remand for full consideration of the evidence.
Antelope contends the ALJ failed to consider three parts of the medical evidence. First, it argues that because the ALJ did not discuss Dr. Meyer's late-submitted interpretation of a CT scan in the analysis section of his decision, he must not have considered it. Second, Antelope
These arguments lack merit. The ALJ mentioned all of this evidence — Dr. Meyer's interpretation of the CT scan, Dr. Smith's treatment records, and the reports and depositions of Drs. Farney and Repsher. Appx., Vol. II at 255, 262-67. That the ALJ did not discuss every aspect of the evidence in his analysis does not mean he did not consider the evidence. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.1996) ("The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.").
Moreover, Antelope does not persuasively argue that this evidence would have affected the outcome. As with the challenged x-ray discussed above, the CT scan interpretation could only rebut evidence of clinical pneumoconiosis, and the ALJ found Antelope had failed to meet its burden of rebutting legal pneumoconiosis. The treatment notes also only go to clinical pneumoconiosis: Dr. Smith wrote, "The radiographic picture is certainly not typical for Coal Worker's pneumoconiosis but the patient may have a slowly active fibrosis in addition to the emphysema." Appx., Vol. II at 267.
Antelope's arguments are more a matter of disagreement with the ALJ's assessment of the evidence as opposed to whether he considered the evidence at all. We may not reweigh the evidence but can only determine whether substantial evidence supported the decision. Energy West, 555 F.3d at 1217. "[T]he task of weighing conflicting medical evidence is within the sole province of the ALJ." Hansen, 984 F.2d at 368.
Based on the foregoing, we deny Antelope's petition for review.
30 U.S.C. § 921(c)(4). We note that a claimant with a positive x-ray is eligible for a different presumption. Id. at § 921(c)(3).
20 C.F.R. § 718.305(d)(1).
The new regulation states, "In a claim filed by a miner, the party opposing entitlement may rebut the presumption by ... (i) [e]stablishing both that the miner does not, or did not, have ... [l]egal pneumoconiosis ... [and c]linical pneumoconiosis ... arising out of coal mine employment ... or (ii) [e]stablishing that no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis...." 20 C.F.R. § 718.305(d)(1) (2013).
Clinical pneumoconiosis includes "those diseases recognized by the medical community as pneumoconiosis" characterized by the "deposition [of particulate matter] caused by dust exposure in coal mine employment." Id. § 718.201(a)(1) (emphasis added).
