Filed: Jul. 31, 2013
Latest Update: Mar. 28, 2017
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2418 MINGO LOGAN COAL COMPANY, Petitioner, v. ERMA JEAN OWENS, widow of DALLAS R. OWENS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. On Petition for Review of an Order of the Benefits Review Board. (11-0154 BLA) Argued: March 21, 2013 Decided: July 31, 2013 Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges. Petition for review denied by published opinion. Judge Niemeyer w
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2418 MINGO LOGAN COAL COMPANY, Petitioner, v. ERMA JEAN OWENS, widow of DALLAS R. OWENS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. On Petition for Review of an Order of the Benefits Review Board. (11-0154 BLA) Argued: March 21, 2013 Decided: July 31, 2013 Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges. Petition for review denied by published opinion. Judge Niemeyer wr..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2418
MINGO LOGAN COAL COMPANY,
Petitioner,
v.
ERMA JEAN OWENS, widow of DALLAS R. OWENS; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(11-0154 BLA)
Argued: March 21, 2013 Decided: July 31, 2013
Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges.
Petition for review denied by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Davis and Judge Diaz joined.
Judge Niemeyer wrote a separate concurring opinion.
ARGUED: William Steele Mattingly, JACKSON KELLY, PLLC,
Morgantown, West Virginia, for Petitioner. John Crawford Cline,
Piney View, West Virginia; Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Ashley M. Harman, Jeffrey R. Soukup, JACKSON KELLY,
PLLC, Morgantown, West Virginia, for Petitioner. M. Patricia
Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor,
Sean G. Bajkowski, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent.
2
NIEMEYER, Circuit Judge:
After nearly 30 years of coal mine employment, Dallas Owens
became totally disabled because of breathing difficulties, and
in April 2008, he filed a claim for black lung benefits. An
Administrative Law Judge (“ALJ”) found that Owens’ claim
triggered the rebuttable presumption for benefits under 30
U.S.C. § 921(c)(4), available to miners who are totally disabled
and have worked 15 years or more in underground coal mines, and
that Mingo Logan Coal Company, Owens’ former employer, failed to
rebut the presumption. The ALJ therefore awarded benefits to
Owens, and the Benefits Review Board affirmed.
On appeal, Mingo Logan contends that the ALJ and the Board
applied the wrong legal standard in evaluating whether it had
met its rebuttal burden, erroneously limiting it to the two
methods that the text of the statute specifies are the only
means by which the Secretary may rebut the presumption. See 30
U.S.C. § 921(c)(4) (providing, “The Secretary may rebut such
presumption only by establishing that (A) such miner does not,
or did not, have pneumoconiosis, or that (B) his respiratory or
pulmonary impairment did not arise out of, or in connection
with, employment in a coal mine”). Mingo Logan contends that
limiting it to these two methods of rebuttal violated not only
the clear language of § 921(c)(4), which makes the rebuttal
limitations applicable to the Secretary, but also the Supreme
3
Court’s holding in Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 35 (1976) (construing the statute to place no limitations on
the means by which an employer may satisfy its burden on
rebuttal).
Both Owens and the Director of the Office of Workers’
Compensation Programs argue that even though the statute does
not, by its terms, limit employers to the two specified methods
of rebuttal, logic does, and therefore the ALJ and the Board
articulated the correct legal standard.
We do not reach Mingo Logan’s challenge to the standard
announced by the Board to rebut the § 921(c)(4) presumption of
entitlement to benefits, because we conclude that the ALJ did
not in fact apply rebuttal limitations to Mingo Logan, and the
Board affirmed the ALJ’s analysis. Because we also find that
Mingo Logan’s other challenges to the ALJ’s factual findings
lack merit, we affirm the Board’s award of benefits.
Accordingly, we deny Mingo Logan’s petition for review.
I
Owens worked in West Virginia coal mines for close to 30
years, beginning in 1974, and he spent the last 10 of those
years working in coal mines as an electrician for Mingo Logan
Coal Company. He stopped working in 2003 when he developed
difficulty breathing, a problem that got worse with time. In
4
April 2008, Owens filed a claim under the Black Lung Benefits
Act, which awards benefits to coal miners who are totally
disabled due to pneumoconiosis. See 30 U.S.C. § 901 et seq.
The statute’s implementing regulations define the term
pneumoconiosis to include not only those diseases medically
recognized as pneumoconiosis (“clinical pneumoconiosis”), but
also “any chronic lung disease or impairment and its sequelae
arising out of coal mine employment” (“legal pneumoconiosis”).
20 C.F.R. § 718.201(a). A claims examiner found that Owens was
eligible for benefits and ordered Mingo Logan to pay him
$1,048.10 a month. Mingo Logan contested the award and
requested a formal hearing with an ALJ. The hearing was
conducted on December 9, 2009.
At the hearing, Owens testified about his employment
history and his breathing problems, for which he had been
prescribed oxygen. He also testified that he had smoked about a
quarter of a pack of cigarettes a day when he was in his late
teens and early twenties but that he had not smoked since 1965.
In addition to Owens’ testimony, the parties introduced various
forms of medical evidence concerning his condition, including
(1) conflicting interpretations of two chest X-rays and three CT
scans; (2) the results from pulmonary function tests and
arterial blood gas studies; (3) notes of observations from two
of his treating physicians, Dr. Maria Boustani and Dr. Oscar
5
Figueroa, indicating that Owens had pneumoconiosis; and (4)
conflicting medical opinions from three physicians, Dr. D.L.
Rasmussen (offered by the Director), Dr. George Zaldivar
(offered by Mingo Logan), and Dr. Kirk Hippensteel (offered by
Mingo Logan), all three of whom agreed that Owens was totally
disabled by a pulmonary impairment but disagreed as to its
diagnosis and cause. Dr. Rasmussen diagnosed Owens as having
both clinical pneumoconiosis and interstitial fibrosis and
opined that both conditions were attributable to Owens’ exposure
to coal mine dust. Dr. Zaldivar diagnosed Owens with idiopathic
interstitial fibrosis or, in his words, “an interstitial
fibrosis of undetermined cause,” but unrelated to coal mining.
Dr. Hippensteel essentially reached the same conclusion, opining
that Owens’ “type of lung disease is a disease of the general
public unrelated to his prior coal mine dust exposure” and that
he “would be just as impaired by the same pulmonary problem had
he never worked in a coal mine.” ∗
∗
After the hearing but before the ALJ issued her decision,
Congress enacted the Patient Protection and Affordable Care Act
(“PPACA”), which contained a section amending the Black Lung
Benefits Act. See Pub. L. No. 111-148, § 1556, 124 Stat. 119,
260 (2010). As relevant here, for pending claims filed after
January 1, 2005, the PPACA reinstated a presumption that had
lapsed in 1982, specifying that a miner with at least 15 years
of underground coal mine employment who “demonstrates the
existence of a totally disabling respiratory or pulmonary
impairment” is entitled to a rebuttable presumption that he is
“totally disabled due to pneumoconiosis.” 30 U.S.C.
6
In October 2010, the ALJ awarded Owens benefits. She
concluded that because Owens had more than 15 years of
underground coal mine employment and because the evidence
established that he was totally disabled by a respiratory
impairment, the rebuttable presumption of § 921(c)(4) arose that
he was totally disabled due to pneumoconiosis. The ALJ also
found that Mingo Logan did not rebut that presumption. In this
respect, the ALJ considered seven interpretations of two chest
X-rays, giving more weight to the readings that interpreted the
films as positive for pneumoconiosis based on the physicians’
relative qualifications. The ALJ also gave greater weight to
Dr. Rasmussen’s opinion as to the cause of Owens’ disability
than to the opinions offered by Dr. Zaldivar and Dr.
Hippensteel, emphasizing that Dr. Rasmussen’s opinion was better
§ 921(c)(4). In response to the amendment, the ALJ reopened the
record to allow both parties an opportunity to submit new
evidence, and Mingo Logan submitted supplemental reports from
both Dr. Zaldivar and Dr. Hippensteel.
The preexisting regulation that implemented former
§ 921(c)(4), 20 C.F.R. § 718.305, remains inapplicable by its
terms. See 20 C.F.R. § 718.305(e) (providing that the
regulation “is not applicable to any claim filed on or after
January 1, 1982”). The Department of Labor, however, asserts
that the substance of that regulation “remains the Department’s
definitive interpretation of Section 921(c)(4),” and it has
proposed a new version of the regulation, which has not yet gone
into effect. See Regulations Implementing the Byrd Amendments
to the Black Lung Benefits Act: Determining Coal Miners’ and
Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19,456
(proposed Mar. 30, 2012).
7
supported by the objective medical evidence and “the opinions of
two pulmonary experts who treated [Owens],” while Dr. Zaldivar
and Dr. Hippensteel “chose to totally eliminate consideration of
[Owens’] 29 years of coal dust exposure as a potential
environmental factor in the development of his interstitial
fibrosis.” The ALJ therefore concluded that “the preponderance
of the best documented and reasoned evidence of record
establishes the presence of clinical and legal pneumoconiosis.”
She also found that Dr. Zaldivar and Dr. Hippensteel’s diagnosis
of idiopathic interstitial fibrosis was “not sufficient to
establish a cause of [Owens’] disability other than [coal
workers’ pneumoconiosis].” She concluded, at bottom, that Mingo
Logan failed to rebut the § 921(c)(4) presumption.
The Benefits Review Board affirmed by a decision and order
dated October 28, 2011. The Board concluded that the ALJ’s
findings were supported by substantial evidence and that the ALJ
properly explained her finding that the positive X-ray readings
outweighed the negative X-ray readings and “properly found that
Dr. Rasmussen’s opinion was better documented and reasoned than
the opinions of Drs. Zaldivar and Hippensteel.”
Mingo Logan filed this petition for review, challenging
both the legal standard applied to its rebuttal evidence, as
well as the sufficiency of the analysis and the evidence.
8
Owens died on July 8, 2012, but his widow continues to
pursue his claim on behalf of his estate.
II
Mingo Logan contends that the ALJ and the Benefits Review
Board applied the wrong legal standard in assessing whether it
rebutted the presumption established by 30 U.S.C. § 921(c)(4).
Under § 921(c)(4), if the miner shows that he worked 15 years or
more in underground coal mines and that he suffers from a
totally disabling respiratory or pulmonary impairment, a
rebuttable presumption arises that the miner “is totally
disabled due to pneumoconiosis.” In the absence of credible
rebuttal evidence, the miner would then be entitled to benefits.
In its opinion affirming the ALJ’s award of benefits, the
Board stated that Mingo Logan could rebut the § 921(c)(4)
presumption only by showing either (1) that Owens did not have
pneumoconiosis or (2) that his respiratory or pulmonary
impairment did not arise out of, or in connection with, his coal
mine employment. In support of this statement, the Board cited
the statutory language: “The Secretary may rebut such
presumption only by establishing that (A) such miner does not,
or did not, have pneumoconiosis, or that (B) his respiratory or
pulmonary impairment did not arise out of, or in connection
with, employment in a coal mine.” 30 U.S.C. § 921(c)(4).
9
Mingo Logan argues that the Board improperly applied to it
the rebuttal limitations of § 921(c)(4) even though the plain
text shows that those limitations apply only when the
“Secretary” seeks to rebut the presumption. See Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 35 (1976) (“[I]t [is] clear as a
matter of statutory construction that the [provision’s]
limitation on rebuttal evidence . . . applies only to ‘the
Secretary’ and not to an operator seeking to avoid liability
. . .”). By applying the rebuttal limitations to it, Mingo
Logan argues, the Board denied it the chance to rebut the
presumption with evidence that pneumoconiosis did not
substantially contribute to Owens’ total disability.
Owens and the Director of the Office of Workers’
Compensation Program contend that the standard announced by the
Board was appropriate even if the statutory language does not
directly apply to the employer, because the methods of rebuttal
articulated in § 921(c)(4) are the only logical methods by which
the presumption can be rebutted. In short, they argue that the
statute’s “rebuttal limitations” are actually not limitations at
all.
While the dispute over the correct rebuttal standard could
affect whether a miner receives benefits, in this case we
conclude that Mingo Logan was not in fact restricted in the
evidence it offered in rebuttal, and the ALJ did not apply the
10
rebuttal limitations in considering the evidence. Rather, the
ALJ analyzed whether Mingo Logan presented credible evidence to
rebut any aspect of the miner’s claim covered by the
presumption.
The Black Lung Benefits Act awards benefits to miners who
are totally disabled due to pneumoconiosis. 30 U.S.C.
§§ 901(a), 921; 20 C.F.R. §§ 718.204(a), 725.1(a),
725.201(a)(1). This language defining when benefits are
available is the same as the language defining the scope of the
presumption created by § 921(c)(4). To establish an entitlement
to benefits, a claimant must show (1) that he has
pneumoconiosis, in either its “clinical” or “legal” form; (2)
that the pneumoconiosis arose out of coal mine employment; (3)
that he is totally disabled by a pulmonary or respiratory
impairment; and (4) that his pneumoconiosis is a substantially
contributing cause of his total disability. 20 C.F.R. §§
725.202(d)(2), 718.204(c)(1). “Pneumoconiosis is a
‘substantially contributing cause’ of the miner’s disability if
it (i) [h]as a material adverse effect on the miner’s
respiratory or pulmonary condition; or (ii) [m]aterially worsens
a totally disabling respiratory or pulmonary impairment which is
caused by a disease or exposure unrelated to coal mine
employment.” Id. § 718.204(c)(1).
11
Relating these claim elements to § 921(c)(4)’s presumption,
when a miner proves 15 years of coal mine employment and element
(3), i.e., the total disability element, a rebuttable
presumption arises that the miner is totally disabled due to
pneumoconiosis. Thus, with this provision, the miner
presumptively satisfies claim elements (1) (the existence of
pneumoconiosis), (2) (pneumoconiosis arose out of coal mine
employment), and (4) (pneumoconiosis caused the total
disability). Although Mingo Logan argues that the ALJ limited
its ability to rebut the presumption by applying to it the
rebuttal methods applicable only to the Secretary, the record in
fact shows that the ALJ did no such thing. Rather, the ALJ
considered all of the evidence that Mingo Logan presented and
found that it did not rebut any of the three elements covered by
the presumption.
Specifically, as to element (1) (the presence of
pneumoconiosis), the ALJ considered Mingo Logan’s evidence,
together with the evidence presented by Owens, and concluded, “I
find that the preponderance of the best documented and reasoned
evidence of record establishes the presence of clinical and
legal pneumoconiosis.” As to element (2) (that pneumoconiosis
arose out of coal mine employment), the ALJ pointed to another
rebuttable presumption, as stated in 20 C.F.R. § 718.203(b),
which establishes this element if the miner had at least 10
12
years of coal mine employment. She then concluded that because
Mingo Logan “ha[d] not presented evidence to rebut the
presumption,” Owens “ha[d] established the presence of
pneumoconiosis arising out of coal mine employment.” And
finally as to element (4) (that pneumoconiosis caused the total
disability), the ALJ understood that the presumption could be
rebutted by the employer. The ALJ considered the causation
evidence submitted by both sides and concluded that Mingo Logan
“has failed to establish that [Owens’] respiratory disability is
due to a condition other than pneumoconiosis.” The ALJ thus
effectively rejected the evidence offered by Mingo Logan to
rebut element (4) by showing that pneumoconiosis was not a
substantially contributing cause of Owens’ total disability.
In affirming the ALJ, the Benefits Review Board recited the
ALJ’s holding, explicitly referring to the ALJ’s conclusion that
Mingo Logan did not rebut element (4):
The administrative law judge also found that employer
failed to establish that claimant does not have
clinical or legal pneumoconiosis, or that claimant’s
total disability was not due to pneumoconiosis.
Consequently, the administrative law judge found that
employer failed to rebut the presumption of total
disability due to pneumoconiosis at Section 411(c)(4)
of the Act, 30 U.S.C. § 921(c)(4).
(Emphasis added). While the Board then summarized its
affirmance by referring to the sentence in § 921(c)(4) that
addresses how the Secretary may rebut the presumption, it
13
nonetheless proceeded to address substantively the ALJ’s factual
findings and evaluation of the evidence and affirmed them.
In short, while the Benefits Review Board purported to
subject the employer to the rebuttal methods applicable to the
Secretary in § 921(c)(4), it concluded in substance that no
aspect of the presumption was rebutted, affirming the ALJ’s
finding that Mingo Logan failed to show that Owens had only mild
pneumoconiosis that did not substantially contribute to his
total disability. Accordingly, because the record shows that
§ 921(c)(4)’s two methods of rebuttal did not affect the Board’s
disposition of this case, we need not address Mingo Logan’s
claim that restricting employers to those methods improperly
raised its burden on rebuttal.
III
On the merits, Mingo Logan contends that, in concluding
that it had not rebutted the § 921(c)(4) presumption, the ALJ
failed to consider the medical evidence in its entirety and
failed to provide an adequate rationale in support of her
conclusions, resulting in a decision that falls below the
minimum threshold required by the Administrative Procedure Act
(“APA”). Specifically, it argues (1) that the ALJ did not
adequately explain her weighing of the chest X-ray evidence; (2)
that she improperly discounted the medical opinions of Dr.
14
Zaldivar and Dr. Hippensteel; and (3) that Dr. Rasmussen’s
opinion, combined with Owens’ treatment records, was
insufficient to support the ALJ’s finding of legal
pneumoconiosis.
Our review of these matters assesses 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.” Harman Mining Co. v. Dir.,
Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir.
2012) (alteration in original) (internal quotation marks
omitted). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB,
305 U.S. 197, 229
(1938). As part of “determining whether substantial evidence
supports the ALJ’s factual determinations, we must . . . address
whether all of the relevant evidence has been analyzed and
whether the ALJ has sufficiently explained his rationale in
crediting certain evidence.” Milburn Colliery Co. v. Hicks,
138
F.3d 524, 528 (4th Cir. 1998). But we must also be mindful that
the ALJ, as the trier of fact, “is charged with making factual
findings, including evaluating the credibility of witnesses and
weighing contradicting evidence.” Doss v. Dir., Office of
Workers’ Comp. Programs,
53 F.3d 654, 658 (4th Cir. 1995).
15
With respect to Mingo Logan’s contention that the ALJ
failed “to provide adequate explanation under the APA for her
weighing of the chest X-ray evidence,” the APA does require ALJs
to “include a statement of . . . findings and conclusions, and
the reasons or basis therefor, on all the material issues of
fact, law, or discretion presented on the record.” 5 U.S.C.
§ 557(c)(3)(A). An adequate explanation, however, “can be a
succinct one,” Lane Hollow Coal Co. v. Dir., Office of Workers’
Comp. Programs, 137 F.3d 799, 803 (4th Cir. 1998), and the APA’s
“duty of explanation” is satisfied as long as “a reviewing court
can discern what the ALJ did and why she did it,” Harman, 678
F.3d at 316 (alterations and internal quotation marks omitted).
In this case, the ALJ had before her three interpretations
of a chest X-ray taken on May 15, 2008, and four interpretations
of an October 15, 2008 X-ray. The ALJ first explained the
relative radiological qualifications of the persons who made an
interpretation, noting that a physician becomes a “B reader”
when he passes an examination testing his “proficiency in
assessing and classifying X-ray evidence of pneumoconiosis,”
while a Board-certified radiologist has received certification
in radiology or diagnostic roentgenology by the American Board
of Radiology or the American Osteopathic Association. See 20
C.F.R. § 718.202(a)(ii)(C), (E). The ALJ then explained that a
dually qualified physician (i.e., a radiologist who was both a B
16
reader and Board-certified) and a doctor who was a B reader had
interpreted the first X-ray as positive for the presence of
pneumoconiosis, while one dually qualified physician read the
film as negative. Giving more weight to the reading that had
been corroborated, the ALJ found “that this [May 2008] film
supports finding the presence of pneumoconiosis.”
The ALJ similarly evaluated the conflicting interpretations
of the October 2008 X-ray, noting that it had been read as
positive by two dually qualified physicians and negative by one
dually qualified physician and by one physician, Dr. Zaldivar,
who had subsequently lost his B reader certification. She then
explained that she was giving “more weight to the jointly held
opinions of the dually qualified physicians who interpreted the
film as positive.” She thus concluded that “the preponderance
of the X-ray evidence supports a finding of the presence of
pneumoconiosis.”
On this record, the Board found that the ALJ adequately
explained her assessment of the X-ray evidence. And we agree.
The applicable regulation specifies that “where two or more
X-ray reports are in conflict,” the ALJ must consider “the
radiological qualifications of the physicians interpreting such
X-rays.” 20 C.F.R. § 718.202(a)(1). Because the ALJ did just
that here, we conclude that she sufficiently explained why she
found the X-ray evidence on the whole indicated that Owens had
17
pneumoconiosis and that substantial evidence supported that
finding.
Next, with respect to Mingo Logan’s contention that the ALJ
incorrectly disregarded the opinions of its experts, the ALJ
gave a number of reasons in support of her decision to “accord
less weight to the opinions of Drs. Zaldivar and Hippensteel.”
She found that they both “dismissed in a cursory [fashion] the
medical literature that associated coal dust exposure with
interstitial fibrosis;” that they both “maintained that
idiopathic interstitial fibrosis exists in the general
population, but neither adequately addressed the fact that
[Owens] is not a member of the general population” based on his
extensive coal-dust exposure; and that they “[b]oth acknowledged
that the diagnosis of idiopathic interstitial fibrosis depended
on ruling out all suspected factor[s], but neither doctor gave
an adequate explanation for why coal dust inhalation could not
have caused at least some of [Owens’] impairment.” The ALJ also
found their opinions “compromised by not being fully
documented,” noting (1) that “[n]either doctor fully addressed
the fact that two treating pulmonary specialist[s] found
sufficient evidence to diagnose [coal workers’ pneumoconiosis]
rather than idiopathic interstitial fibrosis;” (2) that “[b]oth
doctors relied upon negative readings of X-rays and CT scans,
regardless of contrary interpretations by dually qualified
18
physicians, or by the doctor who read the films during
treatment;” (3) that neither addressed one of the treating
pulmonologists’ “findings of a mixed obstructive and restrictive
defect;” and (4) that neither “gave adequate consideration to
whether the evidence established legal pneumoconiosis.”
At bottom, the ALJ found that Dr. Zaldivar and Dr.
Hippensteel did not adequately explain why, in their view,
Owens’ interstitial fibrosis was not “significantly related to,
or substantially aggravated by,” his exposure to dust through
his coal mine employment. 20 C.F.R. § 718.201(b). In other
words, the ALJ found that these doctors’ reports and testimony
did not adequately explain why Owens’ interstitial fibrosis --
which they identified as the cause of his total disability --
did not constitute legal pneumoconiosis.
Nonetheless, Mingo Logan challenges this finding by
pointing to places in the record where it contends Dr. Zaldivar
and Dr. Hippensteel did indeed explain “how and why they
eliminated Mr. Owens’ coal dust exposure as the cause of his
interstitial fibrosis.” But the ALJ never said that these
doctors failed to provide any explanation for their views on
this critical point. Instead, she found that the explanations
they gave were inadequate and ultimately unconvincing.
Having fully reviewed the record, we conclude that the ALJ
acted within her factfinding role in deciding to give less
19
weight to the opinions of Dr. Zaldivar and Dr. Hippensteel. See
Westmoreland Coal Co. v. Cochran, __ F.3d __, No. 11-1893, slip
op. at 13 (4th Cir. June 4, 2013) (noting that “[i]t is the role
of the ALJ -- not the appellate court -- to resolve” the “battle
of the experts”).
Finally, Mingo Logan contends that Dr. Rasmussen’s opinion,
combined with the notes of Owens’ treating pulmonary
specialists, did not amount to substantial evidence to support
the ALJ’s finding that Owens had both clinical and legal
pneumoconiosis or her finding that Mingo Logan failed to show
that Owens’ pulmonary disability was not due to these diseases.
Mingo Logan argues that Dr. Rasmussen offered only an equivocal,
differential diagnosis. This assertion, however, takes certain
statements by Dr. Rasmussen out of context and overlooks his
clearly expressed opinion that Owens’ condition was “primarily
the result of [his] long term exposure to coal mine dust and
that he suffers from coal mine induced, totally disabling
chronic lung disease.”
Similarly, Mingo Logan argues that the ALJ relied too
heavily on Owens’ treatment records. In our view, however, the
ALJ followed the standards established in 20 C.F.R. § 718.104(d)
and gave appropriate consideration to the opinions of Dr.
Boustani and Dr. Figueroa, noting that “the record is not
developed sufficiently to allow me to accord their opinions
20
controlling weight” and instead deciding to give their opinions
“significant weight.”
We thus reject Mingo Logan’s challenge to the sufficiency
of the evidence.
* * *
In sum, we was not in fact applied by either the ALJ or
the Board. Instead, the ALJ considered all of the evidence that
Mingo Logan offered to demonstrate that pneumoconiosis did not
cause or substantially contribute to Owens’ total disability,
and the Board affirmed the substance of the ALJ’s analysis. We
also reject Mingo Logan’s challenges to the ALJ’s analysis and
the sufficiency of the evidence.
Accordingly, Mingo Logan’s petition for review is denied.
It is so ordered.
21
NIEMEYER, Circuit Judge, concurring:
I write this separate concurring opinion on my conviction
that Mingo Logan’s challenge to the standard for rebutting the
§ 921(c)(4) presumption should have been addressed. And in
addressing it, I would hold that the rebuttal standard announced
by the Board was erroneous, as demonstrated both by the explicit
language of § 921(c)(4) and the Supreme Court’s holding in
Usery.
The Board stated that it was applying to Mingo Logan the
limiting rebuttal standard applicable to the Secretary, failing
to recognize that in Usery, the Supreme Court held that the
standard applicable to the Secretary did not apply to employers.
Only because it applied the limiting standard clumsily in this
case -- and thus considered all methods of rebutting the
§ 921(c)(4) presumption that Mingo Logan offered -- have we been
able to resolve this appeal without addressing the standard.
But this quirk, which was uncovered only by a close reading of
the Board’s opinion, leaves sufficient doubt about the issue
that we should resolve it.
I now write to demonstrate why the standard announced by
the Board was erroneous.
As we point out, under § 921(c)(4), if the miner shows that
he worked 15 years or more in underground coal mines and that he
suffers from a totally disabling respiratory or pulmonary
22
impairment, a rebuttable presumption arises that the miner “is
totally disabled due to pneumoconiosis.” In the absence of
credible rebuttable evidence, the miner would then be entitled
to benefits.
The Board indicated that Mingo Logan could rebut the
§ 921(c)(4) presumption only by showing either (1) that Owens
did not have pneumoconiosis or (2) that his impairment did not
arise out of, or in connection with, his coal mine employment.
In doing so, the Board referenced the statutory language: “The
Secretary may rebut such presumption only by establishing that
(A) such miner does not, or did not, have pneumoconiosis, or
that (B) his respiratory or pulmonary impairment did not arise
out of, or in connection with, employment in a coal mine.” 30
U.S.C. § 921(c)(4).
As noted above, the parties disagree on whether the Board
announced the correct rebuttal standard for employers. Mingo
Logan argues that the Board improperly applied to it the
rebuttal limitations of § 921(c)(4) because the plain text shows
that those limitations apply only when the “Secretary” seeks to
rebut the presumption. See Usery, 428 U.S. at 35. By applying
the rebuttal limitations to it, Mingo Logan argues, the Board
denied it the chance to rebut the presumption with evidence that
pneumoconiosis did not cause the miner’s total disability.
Relying on how 20 C.F.R. § 718.204(c)(1) defines this causation
23
standard, it reasons that the Board’s standard effectively
denied it the opportunity to show that Owens’ disability was
caused by idiopathic interstitial fibrosis and that his
pneumoconiosis was so mild as not to “substantially contribute”
to his disability. Id.
Owens and the Director of the Office of Workers’
Compensation Program contend that the standard announced by the
Board was appropriate even if the statutory language does not
directly apply to the employer, because the methods of rebuttal
articulated in § 921(c)(4) are the only logical methods by which
the presumption can be rebutted. In short, they argue that the
statute’s “rebuttal limitations” are actually not limitations at
all.
Resolution of the parties’ differences requires comparing
the four claim elements necessary to establish a claim for
benefits and the rebuttal methods contained in § 921(c)(4).
As we have already pointed out, to establish entitlement to
benefits, a claimant must show that (1) he has pneumoconiosis;
(2) his pneumoconiosis arose out of coal mine employment; (3) he
has a total disability; and (4) his pneumoconiosis caused the
total disability. Thus, claim elements (1) and (3) are
existential elements, requiring the existence of pneumoconiosis
and the existence of total disability, while claim elements (2)
and (4) articulate causal relationships.
24
Relating the claim elements to § 921(c)(4), when the miner
proves 15 years of coal mine employment and claim element (3),
i.e., the total disability element, a rebuttable presumption
arises that the miner is totally disabled due to pneumoconiosis.
Thus, with this provision, the miner presumptively satisfies
claim elements (1) (the existence of pneumoconiosis), (2)
(pneumoconiosis arose out of coal mine employment), and (4)
(pneumoconiosis caused the total disability). Because the
presumption is rebuttable, the coal mine operator would
logically be entitled to defeat it by introducing evidence
rebutting any of those three claim elements.
Because the statute specifies that the Secretary may rebut
the presumption only by showing that the miner does not have
pneumoconiosis (rebutting claim element (1)) or that there is no
connection between the miner’s disability and his coal mine
employment, it imposes a higher standard for rebuttal than would
otherwise be logically permissible to rebut claim element (4).
Claim element (4) could logically be rebutted by showing that
the miner’s pneumoconiosis was not a substantially contributing
cause of his total disability, even if it contributed some
minimal amount to his impairment. See 20 C.F.R.
§ 718.204(c)(1). In this way, the statute limits the
Secretary’s ability to rebut claim element (4). But the statute
is silent about the scope of an employer’s rebuttal, and the
25
employer’s methods of rebuttal are thus not limited.
Consequently, because the presumption covers claim elements (1),
(2), and (4), the employer may carry its burden by introducing
evidence rebutting any of these elements, without limitation.
Owens and the Director failed to appreciate the statutory
language and the logic of § 921(c)(4), claiming that the
Secretary’s rebuttal methods are also the employer’s only
logical rebuttal methods, especially when the various elements
of a claim are examined through their definitions. But the
straightforward language of § 921(c)(4) belies their position,
as noted. Moreover, the Supreme Court has confirmed the
existence of a limitation on the Secretary that does not apply
to the employer, necessarily recognizing that rebuttal methods
(A) and (B) identified in § 921(c)(4) are not logically
equivalent to the methods that would otherwise be available.
In Usery, the Court actually stated that the rebuttal
methods of § 921(c)(4) were limiting. Usery, 428 U.S. at 34.
And precisely because they were limiting, the coal mine
operators involved in Usery made the same argument that Mingo
Logan makes here:
The Operators contend that this limitation erects an
impermissible irrebuttable presumption, because it
establishes liability even though it might be
medically demonstrable in an individual case that the
miner’s pneumoconiosis was mild and did not cause the
disability -- that the disability was wholly a product
of other disease, such as tuberculosis or emphysema.
26
Disability due to these diseases, as the Operators
note, is not otherwise compensable under the Act.
Id. at 34-35. Accepting the legitimacy of the operators’
argument, the Court held:
[W]e think it clear as a matter of statutory
construction that the [§ 921(c)(4)] limitation on
rebuttal evidence is inapplicable to operators. By
the language of [§ 921(c)(4)], the limitation applies
only to “the Secretary” and not to an operator seeking
to avoid liability [for benefits].
Id. at 35.
Accordingly, I would conclude that the Board announced and
purported to apply to Mingo Logan rebuttal limitations that
applied only to the Secretary and that, in this respect, it
erred as a matter of law.
27
