Spring Creek Coal Co. v. McLean Ex Rel. McLean , 881 F.3d 1211 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 5, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SPRING CREEK COAL COMPANY,
Petitioner,
v. No. 17-9515
SUSAN McLEAN, o/b/o of Bradford
McLean, deceased; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
_________________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER
OF THE BENEFITS REVIEW BOARD
UNITED STATES DEPARTMENT OF LABOR
(No. BRB 16-0108 BLA)
_________________________________
William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, appearing for
Petitioner.
Sean G. Bajkowski , Counsel for Appellate Litigation (Nicholas C. Geale, Acting
Solicitor of Labor, Maia S. Fisher, Associate Solicitor, and Rita A. Roppolo, Attorney,
with him on the brief), United States Department of Labor, Washington, DC, appearing
for Respondent, Director, Office of Workers’ Compensation Programs, United States
Department of Labor.
Jared L. Bramwell, Kelly & Bramwell, P.C., Draper, Utah, appearing for Respondent
Susan McLean.
_________________________________
Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Spring Creek Coal Company (Spring Creek) petitions for review of a decision
by the Department of Labor (DOL) awarding survivors’ benefits to Susan McLean
under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901-944. The DOL
concluded that Bradford McLean, Mrs. McLean’s deceased husband, became
disabled and died from his exposure to coal dust during the course of his employment
at Spring Creek’s surface coal mine. Exercising jurisdiction pursuant to 33 U.S.C.
§ 921(c) and 30 U.S.C. § 932(a), we deny Spring Creek’s petition.1
I
Factual background
Bradford McLean was born in Sheridan, Wyoming, on November 23, 1943. In
October 1977, Mr. McLean began working for Wyoming-based Big Horn Coal
Company (Big Horn). During his time with Big Horn, Mr. McLean worked as a shop
laborer, plant laborer, utility oiler, drill helper, drill operator, and truck driver. In the
summer of 1986, Mr. McLean left his employment with Big Horn and began working
for Montana-based Spring Creek. At Spring Creek, Mr. McLean worked as a utility
1
Shortly after Spring Creek filed its petition, the clerk of this court directed
the parties to address the matter of this court’s jurisdiction in light of the fact that Mr.
McLean last worked at a coal mine in Montana. The parties unanimously assert, and
we agree, that we have jurisdiction over Spring Creek’s petition because, even
though Mr. McLean’s place of last exposure to coal mine dust was in Montana, he
also was exposed to coal mine dust when he worked in Wyoming. See Consolidation
Coal Co. v. Chubb, 741 F.2d 968, 970-71 (7th Cir. 1984) (holding that jurisdiction is
proper in any jurisdiction where a coal miner was employed because pneumoconiosis
“is caused by extensive, extended exposure to coal dust, and it is impossible to say
that any one exposure caused the disease.”).
2
person, an assistant driller/shooter, and a driller shooter. It is undisputed that all of
Mr. McLean’s work occurred above ground in open pit coal mines.
In approximately 2001, Mr. McLean for the first time “noted running out of
breath with heavy physical exertion.” Joint App. at 10. Mr. McLean did not
immediately seek a medical evaluation of his condition, and instead waited until
approximately 2003 to discuss the matter with his primary care physician. “[B]y
2006 he was unable to complete the requirements of employment and eventually was
unable to complete activities of daily living . . . .” Id. at 21. In 2006, Mr. McLean
was referred to Dr. Robert Merchant, a pulmonologist in Billings, Montana.
According to Mr. McLean, he was told by Dr. Merchant “that only 29% of his lungs
were working” and Dr. Merchant diagnosed him as suffering from chronic
obstructive pulmonary disease (COPD). Id. at 10.
Mr. McLean stopped working in or around coal mines on March 31, 2006, at
the advice of his doctor. On September 28, 2006, Mr. McLain was approved for
long-term disability. At that time, Dr. Merchant concluded that Mr. McLain was
suffering from “severe lung disease from a combination of tobacco use and coal mine
dust exposures.” Id. at 9. Dr. Merchant further concluded that Mr. McLain was
“severe[ly] impair[ed]” and “totally disabled.” Id. On October 1, 2008, Mr. McLean
transferred from long-term disability to retirement.
In addition to his exposure to coal dust during his employment, two other
factors potentially contributed to his COPD. First, Mr. McLean’s childhood home
lacked electricity and, therefore, “food was cooked on a wood or coal burning stove.”
3
Id. at 21. “Such an activity is associated with a very high risk for the development of
chronic obstructive pulmonary disease . . . .” Id. Second, Mr. McLean smoked for
most of his adult life. More specifically, between the ages of twenty and sixty-four,
he smoked approximately 1.5 packs of cigarettes per day. He ultimately quit
smoking in May of 2008.
Procedural background
a) The submission and initial processing of the claim
On September 7, 2010, Mr. McLean submitted a claim for benefits under the
BLBA. Mr. McLean died on June 11, 2011, while his claim for benefits was
pending. Mr. McLean’s wife, Susan McLean, succeeded him as the claimant.
The DOL’s “District Director approved the claim, because the evidence
established the elements of entitlement that Mr. . . . McLean had [coal worker’s
pneumoconiosis] and was totally disabled due to pneumoconiosis.” Id. at 242.
On July 21, 2011, Spring Creek requested a hearing before an administrative
law judge (ALJ). Consequently, the case was referred to the Office of Administrative
Law Judges for a formal hearing. The case was assigned to a specific ALJ on June
27, 2013. On September 23, 2013, the ALJ held an evidentiary hearing in Denver,
Colorado. Both Mrs. McLean and her son testified about Mr. McLean’s experiences
as a coal miner. Spring Creek presented its own witnesses who testified about the
working conditions at the mine where Mr. McLean was employed.
4
b) The ALJ’s decision and order
On October 6, 2015, the ALJ issued a decision and order awarding benefits to
Mrs. McLean under the BLBA. In doing so, the ALJ first found “that for at least 15
years of his coal-mine employment at Spring Creek . . . , Mr. McLean worked in dust
conditions substantially similar to those found in underground mining.” Id. at 247.
The ALJ explained that “[e]ven though Mr. McLean worked inside a cab with an
attached dust collector, he was regularly exposed to coal dust when he worked for
Spring Creek.” Id. “Furthermore,” the ALJ noted, “Mr. McLean’s wife’s and son’s
testimony of his daily appearance after work suggest[ed] Mr. McLean was regularly
exposed to dust.” Id. As for the evidence submitted by Spring Creek regarding the
dust exposure that Mr. McLean likely encountered during his employment,2 the ALJ
concluded that it was “insufficient to show that Mr. McLean was not regularly
exposed to coal mine dust.” Id. The ALJ therefore concluded that “the first
condition necessary to invoke the [applicable statutory and regulatory] presumption
of total disability due to pneumoconiosis” had been met. Id. The ALJ in turn noted
that “[t]he parties stipulated that [Mr. McLean] had a totally disabling pulmonary or
respiratory impairment.” Id. at 247-48. Thus, the ALJ concluded that Mrs. McLean
“ha[d] established the applicability of the rebuttable presumption that [Mr. McLean]
was totally disabled due to pneumoconiosis.” Id. at 248.
2
Spring Creek’s witnesses reported that approximately twenty-three dust
samples were taken at the driller position over a twenty-year period and that those
samples showed the dust levels to be lower than the maximum limit established by
the Mine Safety and Health Administration (MSHA).
5
To rebut this presumption, the ALJ noted, Spring Creek was required to show
either (1) that Mr. McLean “did not have any form of pneumoconiosis under the
pertinent statutory and regulatory standards,” i.e., that he did not suffer from either
“clinical pneumoconiosis” or “legal pneumoconiosis,”3 or (2) “that ‘his respiratory or
pulmonary impairment did not arise out of, or in connection with, employment in a
coal mine.’” Id. (quoting 30 U.S.C. § 921(c)(4)). Addressing the evidence in the
record, the ALJ found “that the x-ray evidence and Dr. [Peter] Tuteur’s medical
opinion establish[ed] that [Mr. McLean] did not have clinical pneumoconiosis.” Id.
at 251. And, “[t]here being no evidence to the contrary,” the ALJ “f[ou]nd that
[Spring Creek] . . . disproved the existence of clinical pneumoconiosis pursuant to
Section 718.305(d)(1)(i)(B).” Id. As for legal pneumoconiosis, however, the ALJ
found “that the medical opinion evidence [offered by Spring Creek][wa]s insufficient
to disprove the existence of legal pneumoconiosis.” Id. More specifically, the ALJ
found that “[t]here [wa]s simply no well-reasoned, documented opinion, consistent
with the regulatory standards and their scientific bases, establishing that [Mr.
McLean] did not suffer from legal pneumoconiosis.” Id. at 258. Thus, the ALJ
concluded that Spring Creek “failed to establish by a preponderance of the credible
medical evidence that [Mr. McLean] d[id] not suffer from pneumoconiosis.” Id. at
259.
3
As the ALJ noted, ““[c]linical pneumoconiosis consists of those diseases
recognized by the medical community as pneumoconiosis such as coal workers’
pneumoconiosis or silicosis” while “[l]egal pneumoconiosis is defined as ‘any
chronic lung disease or impairment and its sequelae arising out of coal mine
employment.’” Aplt. App. at 248 (quoting 20 C.F.R. § 718.201(a)(2)).
6
The ALJ in turn found that Spring Creek “ha[d] failed to rebut the presumption
that [Mr. McLean] was totally disabled due to legal pneumoconiosis.” Id.
Consequently, the ALJ concluded that Mrs. McLean “[wa]s entitled to benefits under
the Act.” Id. at 260. Because it was unclear from the record when Mr. McLean
“became totally disabled due to pneumoconiosis,” the ALJ ordered that “benefits
sh[ould] commence from September 2010, the month in which [Mr. McLean] filed
the claim.” Id.
c) The Board’s decision and order
Spring Creek appealed the ALJ’s decision to the DOL’s Benefits Review
Board (the Board). Spring Creek asserted two general arguments: (1) that the ALJ
“erred in finding that [Mr. McLean] established at least fifteen years of qualifying
coal mine employment,” and in turn erred in finding that Mr. McLean “invoked the
Section 411(c)(4) presumption”; and (2) that the ALJ “erred in finding that [Spring
Creek] did not rebut the presumption.” Id. at 264. On February 16, 2017, the Board
issued a written decision and order rejecting Spring Creek’s arguments and affirming
the ALJ’s decision. In doing so, the Board first rejected Spring Creek’s argument
that the ALJ “applied an incorrect standard” in deciding to credit Mr. McLean “with
at least fifteen years of qualifying coal mine employment.” Id. at 267. The ALJ, the
Board noted, “applied the correct standard, requiring claimant to establish that [Mr.
McLean’s] surface coal mine employment regularly exposed him to coal-mine dust.”
Id. The Board in turn rejected Spring Creek’s argument that the ALJ “erred in
finding the evidence established that [Mr. McLean] was regularly exposed to coal-
7
mine dust while working at his surface coal mine employment.” Id. at 268. Thus,
the Board in turn affirmed the ALJ’s “determination that claimant invoked the
rebuttable presumption of total disability due to pneumoconiosis at Section
411(c)(4).” Id. Finally, the Board rejected Spring Creek’s argument that the ALJ
“erred in finding that [Spring Creek] failed to establish that [Mr. McLean] did not
have legal pneumoconiosis.” Id. at 269. In doing so, the Board concluded that the
ALJ “permissibly discredited the opinions of [Spring Creek’s experts] Drs. [Robert]
Farney and [Peter] Tuteur, the only opinions supportive of a finding that [Mr.
McLean] did not suffer from legal pneumoconiosis.” Id. at 270. Accordingly, the
Board affirmed the ALJ’s decision and order awarding benefits to Mrs. McLean.
II
Spring Creek now petitions for review of the Board’s decision and order.
“Once the Board makes a merits determination, the [BLBA] 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.’” Westmoreland Coal Co. v. Stallard,
876 F.3d 663, 668 (4th Cir. 2017) (quoting Hobet Mining, LLC v. Epling, 783 F.3d
498, 504 (4th Cir. 2015)). As a result, “we review the ALJ’s factual findings for
‘substantial evidence’ . . . and the Board’s legal conclusions de novo.” Id. Further,
“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.” Antelope Coal
Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1341 (10th Cir. 2014). “‘[T]he
8
task of weighing conflicting medical evidence is within the sole province of the
ALJ.’” Id. (quoting Hansen v. Dir., OWCP, 984 F.2d 364, 368 (10th Cir. 1993)
(alteration in original)).
a) The BLBA and its statutory and regulatory framework
The stated purpose of the BLBA is “to provide benefits . . . to coal miners who
are totally disabled due to pneumoconiosis [(black lung disease)] and to the surviving
dependents of miners whose death was due to such disease.” 30 U.S.C. § 901(a).
Pneumoconiosis, according to DOL regulations implementing the BLBA, is “a
chronic dust disease of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment.” 20 C.F.R.
§ 718.201(a). “This definition includes both medical, or ‘clinical’, pneumoconiosis
and statutory, or ‘legal’, pneumoconiosis.” Id. Clinical pneumoconiosis “consists
of” a number of “diseases recognized by the medical community as pneumoconiosis”
that are “characterized by permanent deposition of substantial amounts of particulate
matter in the lungs and the fibrotic reaction of the lung tissue to that deposition
caused by dust exposure in coal mine employment.” Id. § 718.201(a)(1). Legal
pneumoconiosis “includes any chronic lung disease or impairment and its sequelae
arising out of coal mine employment.” Id. § 718.201(a)(2).
To establish entitlement to benefits under the BLBA, a claimant must
demonstrate that: (1) he is a miner as defined in the applicable regulation; (2) he has
pneumoconiosis (either form); (3) the pneumoconiosis arose out of coal mine
9
employment; (4) he is totally disabled; and (5) the pneumoconiosis contributes to the
total disability. 20 C.F.R. § 725.202(d).
The BLBA adopts several presumptions that apply for purposes of determining
whether a miner is totally disabled due to pneumoconiosis and whether the death of a
miner was due to pneumoconiosis. See 30 U.S.C. § 921(c)(1)-(5). One of those
presumptions, the fifteen-year presumption, is central to the outcome in this case and
states:
[I]f a miner was employed for fifteen years or more in one
or more underground coal mines, and if there is a chest
roentgenogram submitted in connection with such miner’s,
his widow’s, his child’s, his parent’s, his brother’s, his
sister’s, or his dependent’s claim under this subchapter and
it is interpreted as negative with respect to the
requirements of paragraph (3) of this subsection, and if
other evidence demonstrates the existence of a totally
disabling respiratory or pulmonary impairment, then there
shall be a rebuttable presumption that such miner is totally
disabled due to pneumoconiosis, that his death was due to
pneumoconiosis, or that at the time of his death he was
totally disabled by pneumoconiosis. In the case of a living
miner, a wife’s affidavit may not be used by itself to
establish the presumption. The Secretary shall not apply
all or a portion of the requirement of this paragraph that
the miner work in an underground mine where he
determines that conditions of a miner’s employment in a
coal mine other than an underground mine were
substantially similar to conditions in an underground mine.
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.
10
30 U.S.C. § 921(c)(4).4
The fifteen-year presumption outlined in § 921(c)(4) “was [first] created in
1972” and later “repealed in 1981.” Consolidation Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 864 F.3d 1142, 1145 (10th Cir. 2017). “In 2010,
however, Congress revived the presumption as to all claims filed after January 1,
2005, and pending on or after March 23, 2010.” Id.
Following Congress’s revival of the fifteen-year presumption, the DOL, at
Congress’s express direction, revised and adopted a regulation, 20 C.F.R. § 718.305,
providing further guidance on the implementation of the presumption.5 Subsection
(b) of the regulation addresses when and how the statutory presumption may be
invoked by a claimant and provides, in pertinent part:
(1) The claimant may invoke the presumption by
establishing that—
(i) The miner engaged in coal-mine employment for fifteen
years, either in one or more underground coal mines, or in
coal mines other than underground mines in conditions
4
Subsection 921(c)(3), which is referred to in subsection 921(c)(4), provides,
in essence, that a miner suffering from a chronic dust disease of the lung shall be
entitled to an irrebuttable presumption that he is totally disabled due to
pneumoconiosis if chest x-ray opacities indicate the presence of complicated
pneumoconiosis. 30 U.S.C. § 921(c)(3); see Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1, 7 (1976) (noting that “pneumoconiosis is customarily classified as
‘simple’ or ‘complicated’”). In this case, it is undisputed that Mr. McLean had
simple, rather than complicated, pneumoconiosis.
5
In 30 U.S.C. § 921(b), Congress expressly directed the Secretary to adopt
regulations “prescrib[ing] standards for determining . . . whether a miner is totally
disabled due to pneumoconiosis and for determining whether the death of a miner
was due to pneumoconiosis.”
11
substantially similar to those in underground mines, or in
any combination thereof; and
(ii) The miner or survivor cannot establish entitlement
under § 718.304 by means of chest x-ray evidence; and
(iii) The miner has, or had at the time of his death, a totally
disabling respiratory or pulmonary impairment established
pursuant to § 718.204, except that § 718.204(d) does not
apply.
(2) 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) (emphasis added).
Subsection (d) of the regulation, entitled “Rebuttal,” in turn acknowledges that
a party opposing a miner’s claim “may rebut the presumption” and states, in pertinent
part:
(2) Survivor’s claim. In a claim filed by a survivor, the
party opposing entitlement may rebut the presumption
by—
(i) Establishing both that the miner did not have:
(A) Legal pneumoconiosis as defined in § 718.201(a)(2);
and
(B) Clinical pneumoconiosis as defined in § 718.201(a)(1),
arising out of coal mine employment (see § 718.203); or
(ii) Establishing that no part of the miner’s death was
caused by pneumoconiosis as defined in § 718.201.
12
20 C.F.R. § 718.305(d)(2).6
b) Spring Creek’s challenge to the regulation
Spring Creek challenges the legitimacy of 20 C.F.R. § 718.305(b)(2).
According to Spring Creek, the “regularly exposed to coal-mine dust” standard
adopted in that part of the regulation for assessing claims of above-ground coal
miners, such as Mr. McLean, fails to satisfy the statutory standard that is outlined in
30 U.S.C. § 921(c)(4), i.e., that “conditions of a miner’s employment in a coal mine
other than an underground mine were substantially similar to conditions in an
underground mine.” Simply put, Spring Creek contends the regulation’s “regularly
exposed to coal-mine dust” standard does not equate to the statute’s standard which
requires a showing of conditions “substantially similar” to those in an underground
mine. Spring Creek argues that an above-ground mining position is not
“substantially similar” to an underground mining position merely because a miner in
an above-ground position is “regularly” exposed to coal mine dust. Aplt. Br. at 25.
Indeed, Spring Creek argues, “[a] ‘regular exposure to dust’ standard eliminates any
inquiry into whether the quantity of dust exposure was ‘substantially similar’ or if the
dust exposure essentially resembled underground mining without being identical.”
Id. Thus, Spring Creek argues, the DOL’s “§ 718.305(b)(2) regulation provides a
definition different from the statute by looking only for regular dust exposure to find
work in conditions other than an underground mine sufficient to invoke the 15-year
6
Although the “regulation went into effect on October 25, 2013, it applies to
all claims covered by the statutory amendment.” Consolidation Coal Co., 864 F.3d at
1145 (citation omitted).
13
presumption.” Id. at 26. Spring Creek also argues that, even though the regulation
allows operators to introduce dust sampling and other information to attempt to rebut
the presumption, the regulation provides “no guidance” as to “how the introduction
of such technical data is relevant or may be used in analyzing the ‘inherently
anecdotal’ lay evidence” that will inevitably be introduced by a claimant. Id. at 29.
Spring Creek’s arguments, however, are undercut by our prior decision in
Antelope Coal. In that case, we dealt with a BLBA claim and, in doing so, had to
decide as a threshold matter whether the revised versions of 20 C.F.R.
§§ 718.305(b)(2) and (d)(1) applied to the case since they became effective after the
claim was filed. We held that the revised subsections did in fact “apply because they
do not change existing law and are substantially consistent with prior regulations and
agency practices.” 743 F.3d at 1342. With respect to § 718.305(b)(2) in particular,
we noted that it “addresses when a surface miner’s working conditions are
substantially similar to underground mining working conditions.” Id. Further, we
noted that the Seventh Circuit was “[t]he only circuit to address this issue” and it
“has long held that surface miners do not need to provide evidence of underground
mining conditions to compare with their own working conditions.” Id. (citing
decisions from the Seventh Circuit). “These [Seventh Circuit] decisions,” we held,
“validate the [DOL]’s longstanding position that consistently dusty working
conditions are sufficiently similar to underground mining conditions.”7 Id. And, we
7
The ALJ in this case also relied on Seventh Circuit case law in expressly
noting: “Courts have found that, for the § 718.305 presumption to be applicable to
14
held, “[t]he revised regulation,” i.e., § 718.305(b)(2), “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.” Id.
Spring Creek acknowledges Antelope Coal in its opening brief, but attempts to
distinguish it as a factual matter. According to Spring Creek, Antelope Coal “was
more tenuous that [sic] the Board suggests and driven by the facts presented.” Aplt.
Br. at 34. In particular, Spring Creek asserts that in Antelope Creek “there was no
evidence to consider but for the miner’s testimony about his exposure to dust at
above-ground mines.” Id. Further, Spring Creek argues that “[t]here was no
§ 718.305(b)(2) to consult at the time of [the] hearing” in Antelope Creek “as it was
not published until September 25, 2013.” Id. Lastly, Spring Creek asserts that in
Antelope Creek “there was no scientific information to measure similarity and guide
the fact finder’s analysis.” Id. at 35.
We reject Spring Creek’s arguments. To begin with, it is immaterial whether
or not the employer in Antelope Creek presented evidence—scientific or otherwise—
to rebut the miner’s testimony. The important point, for purposes of the instant
appeal, is Antelope Creek’s discussion of the miner’s burden that is outlined in
§ 718.305(b)(2). And, in turn, Spring Creek is incorrect in suggesting that
non-underground employment, a claimant carries the burden of establishing
comparability of dust conditions to employment in an underground mine.” Joint
App. at 245 (citing Dir., OWCP v. Midland Coal Co., 855 F.2d 509, 512 (7th Cir.
1988)).
15
§ 718.305(b)(2) was somehow inapplicable in Antelope Creek simply because it had
not been published at the time of the October 20, 2010 evidentiary hearing before the
ALJ. Indeed, the court in Antelope Creek expressly held that § 718.305(b)(2) was
applicable to the miner’s claim. 743 F.3d at 1341-42. Thus, contrary to Spring
Creek’s assertions, we conclude that Antelope Creek is directly on point and
effectively rebuts Spring Creek’s challenge to the standard outlined in
§ 718.305(b)(2).
Moreover, Spring Creek’s position is also undercut by the various Seventh
Circuit decisions that we referred to in Antelope Coal. Most notably, in Dir.,
Workers’ Comp. Programs, U.S. Dep’t of Labor v. Midland Coal Co., 855 F.2d 509
(7th Cir. 1988), the Seventh Circuit addressed “the question whether a surface miner,
in order to qualify for the presumption of § [921(c)(4)], bears the burden of
producing evidence of conditions prevailing in an underground mine.” Id. at 511. In
answering this question in the negative, the Seventh Circuit analyzed the language of
§ 921(c)(4) and could “discern no plain meaning of [its] requirement of ‘substantial
similarity.’” Id. “Instead,” the Seventh Circuit stated, “immediately apparent is the
fact that the [BLBA] does not specify whether a claimant must establish similarity to
a particular underground mine, a hypothetical underground mine, the best, worst, or
an average underground mine.” Id. Turning to the legislative history of the BLBA,
the Seventh Circuit found “it somewhat ambiguous,” but was “persuaded” that it
“establish[ed] that Congress, at the very least, was aware that underground mines are
dusty and that exposure to coal dust causes pneumoconiosis.” Id. at 512. The
16
Seventh Circuit in turn held that “[t]his supports the conclusion that Congress
focused specifically on dust conditions in enacting the ‘substantial similarity’
provision.” Id. Ultimately, the Seventh Circuit held that “in order to qualify for the
presumption of [§ 921(c)(4)], a surface miner must only establish that he was
exposed to sufficient coal dust in his surface mine employment.” Id. “It is then the
function of the ALJ,” the Seventh Circuit held, “based on his expertise and, we would
expect, certain appropriate objective factors (such as whether the surface miner was
employed near the tipple—where conditions are apparently known to be very dusty—
or further away from the tipple), to compare the surface mining conditions
established by the evidence to conditions known to prevail in underground mines.”
Id. at 512-13 (footnote omitted).
Importantly, the DOL expressly relied on the Seventh Circuit’s decision in
Midland Coal when it revised and adopted the current and reinstated version of
§ 718.305(b)(2) in 2013. In discussing the regulation, the DOL stated, in pertinent
part:
The final rule’s revised language clarifies the
Department’s intent about how the substantial similarity
analysis should be conducted. The final rule
acknowledges, as the Seventh Circuit recognized in
Midland Coal, a fundamental premise underlying the
BLBA, as demonstrated by the legislative history, i.e., that
“underground mines are dusty.” Midland Coal, 855 F.2d
at 512. Given that legislative fact, it is unnecessary for a
claimant to prove anything about dust conditions existing
at an underground mine for purposes of invoking the 15-
year presumption. Instead, the claimant need only focus
on developing evidence addressing the dust conditions
prevailing at the non-underground mine or mines at which
17
the miner worked. The objective of this evidence is to
show that the miner’s duties regularly exposed him to coal
mine dust, and thus that the miner’s work conditions
approximated those at an underground mine. The term
“regularly” has been added to clarify that a demonstration
of sporadic or incidental exposure is not sufficient to meet
the claimant’s burden. The fact-finder simply evaluates
the evidence presented, and determines whether it credibly
establishes that the miner’s non-underground mine
working conditions regularly exposed him to coal mine
dust. If that fact is established to the fact-finder’s
satisfaction, the claimant has met his burden of showing
substantial similarity. And if the periods of regular
exposure in non-underground mine employment (combined
with any underground mine employment) total 15 years or
more, the claimant will be entitled to invoke the
presumption if a total respiratory or pulmonary disability is
also established. This procedure will also alleviate one
commenter’s concern that some administrative law judges
may not be knowledgeable about conditions in
underground mines.
To the extent the comments urge the Department to adopt
technical comparability criteria, such as requiring a
claimant to produce scientific evidence specifically
quantifying the miner’s exposure to coal mine dust during
non-underground mining, the Department rejects the
suggestion. Benefit claimants, who must bear the burden
of proving substantial similarity to invoke the
presumption, generally do not control this type of technical
information about the mines in which the miner worked.
See generally Usery, 428 U.S. at 29 (noting that “showing
of the degree of dust concentration to which a miner was
exposed [is] a historical fact difficult for the miner to
prove.”). Instead, the coal mine operators control dust-
sampling and similar information about their mines. While
this information is publicly available from the Mine Safety
and Health Administration for some mines, it may not be
relevant or available in any particular case. Dust sampling
in non-underground mines is done on a designated-position
basis (e.g., bulldozer operator, driller). See generally 30
CFR 71.201 et seq. Thus, the results may not be relevant
to miners doing other jobs and certainly would not be an
18
adequate basis for the Department to adopt an exposure
rule for all non-underground miners.
Instead, the Department believes the standard should be
one that may be satisfied by lay evidence addressing the
individual miner’s experiences. Congress enacted the
Section 411(c)(4) presumption to assist miners and their
survivors in establishing entitlement to benefits, and also
permitted certain claimants to prove entitlement by lay
evidence. 30 U.S.C. 923(b). Putting insurmountable
hurdles in claimants’ paths does not comport with that
intent. Moreover, because a claimant’s dust exposure
evidence will be inherently anecdotal, it would serve no
purpose for the Department to develop an objective, and
therefore dissimilar, benchmark of underground mine
conditions for comparison purposes. The legislative fact
that underground coal mines are dusty is fully sufficient
for this purpose. Of course, nothing would preclude a coal
mine operator from introducing evidence—including any
technical data within its control—showing that the
particular miner was not regularly exposed to coal mine
dust during his non-underground coal mine employment.
Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act:
Determining Coal Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg.
59102, 59104-59105 (Sept. 25, 2013). As these comments make clear, the DOL
clearly considered and rejected the same argument that Spring Creek is asserting in
this case.
Of course, we are not bound by the DOL’s determination that its own
regulation is consistent with the BLBA. But we must defer to the DOL’s reasonable
interpretation of the BLBA. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842-45 (1984); Andersen v. Dir., Office of Workers’ Comp.
Programs, 455 F.3d 1102, 1103 (10th Cir. 2006) (noting that courts must give
19
“considerable weight” to the DOL’s interpretation of the BLBA). And the DOL’s
explanation reasonably and persuasively indicates why the standard adopted in
§ 718.305(b)(2) is consistent with § 921(c)(4)’s “substantial similarity” standard.
Moreover, the DOL’s explanation undercuts Spring Creek’s argument on appeal that
“[a] ‘regular exposure to dust’ standard eliminates any inquiry into whether the
quantity of dust exposure was ‘substantially similar’ or if the dust exposure
essentially resembled underground mining without being identical.” As the DOL
notes, that is precisely what an ALJ must do in analyzing an above-ground miner’s
claim to the presumption, i.e., the ALJ must, based upon the evidence presented by
the miner and the coal company, determine how much coal dust the miner was
exposed to during his/her career and decide whether that exposure was substantially
similar to what a miner would have been exposed to in an underground mine.
Finally, and relatedly, it is simply unclear what Spring Creek would have an ALJ do
in assessing an above-ground miner’s claim. Really all that an ALJ can do is
precisely what the DOL indicates they must do: “simply evaluate[] the evidence
presented, and determine[] whether it credibly establishes that the miner’s non-
underground mine working conditions regularly exposed him to coal mine dust.” 78
Fed. Reg. 59,105 (Sept. 25, 2013).
Thus, in sum, we reject Spring Creek’s challenge to the legitimacy of
§ 718.305(b)(2).
20
c) Did the ALJ err in his analysis of the medical opinions?
Spring Creek also argues that the case must be remanded because the ALJ
“err[ed] in his analysis of the medical opinions” that were offered at the evidentiary
hearing. Aplt. Br. at 45. In support, Spring Creek first asserts that “if the 15-year
presumption is inapplicable” (as it argues in its first issue), “the ALJ must be
instructed to reweigh the evidence for proof pneumoconiosis and [whether]
pneumoconiosis significantly caused disability rather than determining if the
evidence disproves legal pneumoconiosis and disproves disability due to
pneumoconiosis.” Id. For the reasons outlined above, however, we conclude that the
ALJ properly applied the 15-year presumption. Consequently, we reject Spring
Creek’s argument that the case must be remanded.
Additionally, Spring Creek argues that “the ALJ’s use of the Preamble [to the
DOL’s regulations] is flawed.” Id. “The Preamble,” Spring Creek asserts,
“explained why the [DOL] found coal mine dust can cause COPD in some instances”
and “its purpose was not to establish that coal mine dust is the cause of all COPD in
all coal miners.” Id. at 45-46. Spring Creek in turn argues that “[t]he Preamble, the
regulations, and the case law recognize that miners can have COPD that is not due to
coal mine dust exposure.” Id. at 46. Spring Creek argues that the ALJ in this case,
however, essentially treated the “Preamble standards” as standing “for the
proposition that any disabled miner with COPD has legal pneumoconiosis.” Id. at 52.
“Such a reading of the regulation,” Spring Creek argues, “flies in the face of the
definition of legal pneumoconiosis, as well as portions of the preamble.” Id. Spring
21
Creek also argues that the ALJ effectively fashioned, based upon the Preamble,
“rule[s] of law that physicians are unable to use parameters of pulmonary function
studies to determine disease causation” and “that decrements in the FEV1/FVC ratio
are always due to coal dust.” Id. at 46 (emphasis in original).
Spring Creek is mistaken. “As revised in 2000, the [DOL] regulations are
preceded by an extensive Preamble that ‘sets forth the medical and scientific
premises relied on by the [DOL] in coming to [its medical] conclusions in [crafting]
its regulations.’” Westmoreland Coal, 876 F.3d at 667 (quoting Harman Mining Co.
v. Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 314 (4th Cir. 2012)).
These conclusions, which are “[t]he product of notice-and-comment rulemaking,”
must be accorded “substantial deference” by this court. Id. Consequently, courts
have “repeatedly held that ALJs may look to the Preamble in weighing medical
opinions addressing the cause of a claimant’s disabling lung disease.” Id.
In this case, the ALJ, after concluding that Mr. McLean was entitled to the
statutory/regulatory presumption of pneumoconiosis, in turn analyzed the medical
evidence to determine whether Spring Creek had rebutted that presumption. The ALJ
first concluded that, in light of the x-ray evidence in the record, there was no
evidence that Mr. McLean suffered from clinical pneumoconiosis and thus “f[ou]nd
that [Spring Creek] ha[d] disproved the existence of clinical pneumoconiosis.” Aplt.
App. at 251. The ALJ then examined the “medical opinion evidence” and concluded
that it was “insufficient to disprove the existence of legal pneumoconiosis.” Id.
22
In reaching this conclusion, the ALJ first noted that Dr. Eva Gottschall, who
actually examined Mr. McLean for the DOL prior to Mr. McLean’s death, “opined
that [his] coal dust exposure during 29 years of employment in open pit coal mines in
Wyoming and Montana and his 66 pack-year smoking history [we]re ‘substantially
contributing factors to his COPD/emphysema, resulting in lung function
abnormalities and oxygen requirements.’” Id. at 252. Dr. Gottschall “stated that
above-ground strip mining was a ‘substantial contributor’ to the disabling
impairment.” Id. She “diagnosed legal pneumoconiosis based on Mr. McLean’s
smoking history and his coal mine dust exposure.” Id. The ALJ concluded that Dr.
Gottschall’s conclusions and diagnosis were “supported by the underlying data,”
“well-reasoned,” and “entitled to full probative weight.” Id.
The ALJ in turn rejected the opinions of Drs. Farney and Tuteur, both of
whom were offered by Spring Creek. Dr. Farney, who did not examine Mr. McLean
and instead reviewed only the medical records, “found that Mr. McLean’s chronic
tobacco smoke exposure was the overwhelming cause of his emphysema and severe
obstructive airway disease and that the probability that coal dust had any etiologic
role was miniscule.” Id. at 253. Dr. Farney stated in his deposition “that Mr.
McLean’s COPD, due to emphysema, [wa]s one hundred percent related to his
tobacco smoke exposure and that it d[id] not have anything to do with coal-dust
exposure.” Id. at 254. Dr. Farney also “stated that Mr. McLean’s FEV1 levels would
not typically be associated with occupational exposure to coal mine dust as a surface
miner.” Id.
23
Dr. Tuteur, who likewise did not examine Mr. McLean and instead reviewed
only the medical records, “opined that Mr. McLean’s respiratory disease was caused
by chronic inhalation of tobacco smoke, not coal mine dust.” Id. at 255. Dr. Tuteur
“cited to studies discussing that exposure to coal mine dust is insignificant when
considering the cause of an average of FEV1 loss.” Id. “Since Mr. McLean was a
cigarette smoking coal miner with advanced [COPD], dominantly emphysema, Dr.
Tuteur concluded that the etiology of the COPD was chronic inhalation of tobacco
smoke not coal mine dust.” Id.
The ALJ concluded that “the opinions by Drs. Farney and Tuteur [we]re not
consistent with the scientific evidence accepted by the [DOL].” Id. at 256. The ALJ
explained that “the prevailing view of the medical community as expressed by the
[DOL] in the Preamble to its regulations is that the effects of cigarette smoke and
coal dust on [COPD] and chronic bronchitis are additive” and “that dust-induced
emphysema and smoke-induced emphysema occur through similar mechanisms.” Id.
Also, the ALJ noted, the DOL “cited with approval the National Institute of
Occupational Safety and Health (‘NIOSH’) findings ‘that coal miners have an
increased risk of developing COPD’ and that ‘COPD may be detected from
decrements in certain measures of lung function, especially FEV1 and the ratio of
FEV1/FVC.’” Id. (quoting 65 Fed. Reg. 79,943 (Dec. 20, 2000)). “Both Drs. Farney
and Tuteur,” the ALJ noted, “expressed views contrary to these positions.” Id.
The ALJ also noted that “Drs. Farney and Tuteur” failed to “explain[] why
coal mine dust could not have been a contributing or aggravating factor.” Id. at 257.
24
More specifically, the ALJ concluded that “neither physician explain[ed] or
adequately support[ed] his opinion, that the Miner’s coal mine dust exposure did not
contribute to his respiratory disability, with the science underlying the Preamble,
which stands for the proposition that coal mine dust exposure, even in the absence of
clinical pneumoconiosis, may contribute to an obstructive impairment reflected in a
reduced FEV1 and FEV1/FVC ratio in an additive fashion with smoking.” Id. The
ALJ in turn noted that “under the regulations, coal mine dust need only make a
substantial or significant contribution to an impairment or condition for the condition
to constitute legal pneumoconiosis, and it does not need to be the most significant
cause or factor.” Id. In Mr. McLean’s case, the ALJ noted, Spring Creek’s “experts
have failed to explain why coal mine dust could not have contributed to or
substantially aggravated his condition, even if it was primarily due to cigarette
smoking.” Id.
Thus, in sum, the ALJ’s findings and decision in this case were case-specific
and confined to the specific flaws in the testimony of Drs. Farney and Tuteur. The
ALJ did not, as Spring Creek argues in its appeal, interpret the Preamble standards as
indicating “that any disabled miner with COPD has legal pneumoconiosis.” Aplt. Br.
at 52. Instead, the ALJ simply recognized, as he was required to do by the Preamble,
(1) “that the effects of cigarette smoke and coal dust on [COPD] and chronic
bronchitis are additive,” (2) “that dust-induced emphysema and smoke-induced
emphysema occur through similar mechanisms,” (3) “that coal miners have an
increased risk of developing COPD,” and (4) “that COPD may be detected from
25
decrements in certain measures of lung function, especially FEV1and the ratio of
FEV1/FVC.” Aplt. App. at 256 (internal quotations omitted). Nor did the ALJ, as
Spring Creek now asserts, fashion new rules “that physicians are unable to use
parameters of pulmonary function studies to determine disease causation” or “that the
Preamble posits that decrements in the FEV1/FVC ratio are always due to coal dust.”
Aplt. Br. at 46 (emphasis in original). Instead, the ALJ simply noted that neither Dr.
Farney nor Dr. Tuteur explained why decrements in Mr. McLean’s FEV1/FVC ratio
were caused solely by his smoking and not at all from his work-related exposure to
coal dust. In short, the ALJ, properly taking into account the medical conclusions
adopted by the DOL in the Preamble (as he was required to do), simply and correctly
pointed out the flaws in the opinions of Drs. Farney and Tuteur, i.e., their absolute
failure to explain why coal dust exposure could not have contributed in some
measure to Mr. McLean’s COPD.
Spring Creek criticizes the ALJ’s reliance on the testimony from Dr. William
Houser, who testified that Mr. McLean did suffer from legal pneumoconiosis.
According to Spring Creek, Dr. Houser’s ultimate conclusion should have been
“discredit[ed]” because it “was not consistent with the facts of this case.” Aplt. Br. at
51. But Spring Creek mischaracterizes “the facts of this case” in making that
argument. In particular, Spring Creek asserts that Mr. McLean experienced “minimal
dust exposure.” Id. But that is clearly contrary to the findings of the ALJ.
Moreover, Spring Creek’s arguments ignore the medical conclusions in the Preamble,
26
particularly the conclusion that the effects of cigarette smoking and coal dust
exposure are additive—a conclusion that its own doctors effectively ignored.
Finally, Spring Creek makes a passing reference to the ALJ “confus[ing] the
disability causation definition with legal pneumoconiosis and the burden incumbent
to establish its absence with the ‘rule out’ standard for determining disability is due
to coal dust exposure.” Aplt. Br. at 52. But, contrary to Spring Creek’s arguments,
the ALJ did not require its physician-experts to “rule out” the possibility that Mr.
McLean’s coal dust exposure contributed to his COPD. Instead, the ALJ simply took
those physicians to task for failing to support their proffered opinions that that was
the case. In other words, it was Drs. Farney and Tuteur who opined that coal dust
exposure played no role in Mr. McLean’s COPD, and the ALJ found those opinions
lacking in evidentiary support. The ALJ’s approach to this opinion evidence was not
improper.
Thus, we conclude that the ALJ did not err in his analysis of the proffered
medical opinions, and that there is no need to remand this case for further
proceedings.
III
The petition for review is DENIED.
27