West Virginia CWP Fund Ex Rel. Daniel Boone Coal Co. of WV, Inc. v. Gump ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2416
WEST VIRGINIA CWP FUND, as carrier for Daniel Boone Coal
Company of WV, Inc.,
Petitioner,
v.
ARDIS J. GUMP; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(11-0134-BLA)
Argued: March 19, 2014 Decided: April 15, 2014
Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
ARGUED: William Steele Mattingly, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Petitioner. Heath M. Long,
PAWLOWSKI BILONICK & LONG, Ebensburg, Pennsylvania; Sean Gregory
Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents. ON BRIEF: Ashley M. Harman, Kevin T. Gillen,
JACKSON KELLY PLLC, Morgantown, West Virginia, for Petitioner.
M. Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Ann Marie Scarpino, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director, Office of Workers’ Compensation
Programs, United States Department of Labor.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
As amended, the Black Lung Benefits Act (“the Act”)
provides to claimants a rebuttable presumption favoring the
award of benefits if they can establish fifteen years of coal
mining employment and the existence of a totally disabling
respiratory or pulmonary impairment. 30 U.S.C. § 921(c)(4). This
presumption is referred to as the “15-year rebuttable
presumption.” Here, the West Virginia Coal Workers’
Pneumoconiosis Fund (“the Fund”) challenges the Department of
Labor Benefits Review Board’s award of black lung benefits to
Ardis J. Gump, who worked as a miner in West Virginia for over
thirty years. Gump’s claim relied on the 15-year rebuttable
presumption as applied by the Administrative Law Judge (“ALJ”).
For the reasons set forth within, we deny the petition for
review.
I.
After thirty-four years as a coal miner, at least fifteen
of which were spent working underground, Ardis Gump began
suffering from obstructive lung disease sometime around 1998.
Gump’s breathing and respiratory impairments have since
worsened. At the time of the evidentiary hearing, Gump was
unable to shower or climb steps without losing his breath.
On February 27, 2008, Gump filed a sixth claim for lifetime
benefits with the Department of Labor against the Fund, the
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carrier for Daniel Boone Coal Company, one of his former
employers. He had previously filed five subsequent claims, each
of which was denied. ALJ Thomas M. Burke presided over a formal
hearing on Gump’s sixth claim on September 22, 2009. The ALJ
heard testimony from Gump’s wife (Gump’s dementia prevented him
from testifying) and he admitted and considered corroborative
medical evidence and reports from five physicians.
Gump’s previous claims had been denied because he had been
unable to establish the existence of a total disability or a
qualifying disease. Although the physicians agreed that Gump was
now totally disabled by a pulmonary impairment, they disagreed
as to the disability’s diagnosis and cause. Aside from his
exposure to coal dust, Gump was a heavy smoker, smoking about
half-a-pack per day. Three physicians, Dr. Martin, Dr. Schaaf,
and Dr. Saludes, diagnosed Gump with coal workers’
pneumoconiosis, attributable to his employment, 1 while the other
1
Although Drs. Martin, Schaaf, and Saludes diagnosed Gump
with both clinical and legal pneumoconiosis, the ALJ found that
Gump prevailed as to legal pneumoconiosis only. For purposes of
the Act, clinical pneumoconiosis consists of “those diseases
recognized by the medical community as pneumoconiosis,” whereas
legal pneumoconiosis expands the scope to encompass “any chronic
lung disease or impairment and its sequelae arising out of coal
mine employment,” including, as is relevant in this case, an
obstructive pulmonary disease arising out of coal mine
employment. 20 C.F.R. § 718.201(a) (2008).
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two, Dr. Renn and Dr. Bellotte, opined that Gump did not have
pneumoconiosis and that his disability was caused by smoking.
Before the adjudication of Gump’s claim, Congress enacted
amendments to the Act, see Patient Protection and Affordable
Care Act, Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260
(2010), which eased the path for miners to establish a claim for
benefits. Relevant here, the amendment reinstated a rebuttable
presumption of total disability due to pneumoconiosis, or the
“15-year rebuttable presumption.” Under the presumption, if a
claimant establishes the existence of a totally disabling
respiratory or pulmonary impairment and fifteen years of
underground coal mining employment, he is entitled to a
rebuttable presumption that pneumoconiosis caused his
disability. Id. at § 1556(a), codified at 30 U.S.C. § 921(c)(4).
On September 30, 2010, the ALJ issued a Decision and Order
awarding black lung benefits to Gump. Applying § 921(c)(4), the
ALJ held that Gump was entitled to the 15-year rebuttable
presumption because he had worked in coal-mining for thirty-four
years and because all five physicians agreed that he was, from a
pulmonary standpoint, totally disabled. He then addressed
whether the Fund had established either that Gump does not
suffer from pneumoconiosis or that Gump’s disability did not
arise out of coal mine employment. The ALJ concluded that, due
to inadequate presentations by its physician experts, the Fund
5
had not met its burden on either score. Upon appeal, the Board
issued a per curiam opinion accepting the ALJ’s reasoning and
affirming the ALJ’s decision.
The Board agreed with the ALJ’s conclusion that the Fund
failed to disprove the existence of legal pneumoconiosis. It
pointed out that the two physicians who had disputed the
diagnosis had not sufficiently accounted for Gump’s positive
response to bronchodilator medications, a reaction typically
consistent with coal-related disease and not tobacco. In
addition, one of the experts demonstrated an incomplete grasp of
relevant legal definitions, in that he attributed his diagnosis
of no legal pneumoconiosis to other physicians’ diagnosis of no
clinical pneumoconiosis.
The Board also accepted the ALJ’s finding that the Fund had
failed to disprove that Gump’s disability arose out of his
employment in a coal mine. The same two physicians who had
disputed the diagnosis also questioned disability causation;
because their analyses of the latter rested on their conclusion
on the former, the Board agreed with the ALJ’s decision to
discredit their testimony.
II.
The Fund challenges the Board’s decision on three grounds.
First, it contends that the ALJ’s application of the 15-year
rebuttable presumption violated the Supreme Court’s decision in
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Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), by
limiting its rebuttal options to the text of § 921(c)(4).
Second, it asserts that the ALJ erroneously discredited its
physicians’ conclusions as to disability causation. Finally, it
asks for a review of the sufficiency of the evidence presented
to rebut the presumption of Gump’s legal pneumoconiosis.
In reviewing administrative decisions regarding benefit
claims under the Act, we 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.” Harman Mining Co. v. Dir., Office of
Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012)
(internal citation omitted). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB,
305 U.S. 197, 229 (1938).
A.
The Fund first argues that the ALJ misapplied the 15-year
rebuttable presumption established by 30 U.S.C. § 921(c)(4)
because he improperly restricted its efforts to rebut it. We
disagree.
In order to establish an entitlement to benefits under the
Act, a claimant must demonstrate by a preponderance of the
evidence that he is totally disabled due to pneumoconiosis
7
arising out of coal mine employment. 30 U.S.C. § 901(a); Dehue
Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th Cir. 1995). In
other words, the Act requires that a claimant demonstrate
(1) that he has pneumoconiosis, in either its
“clinical” or “legal” form [“disease”]; (2) that the
pneumoconiosis arose out of coal mine employment
[“disease causation”]; (3) that he is totally disabled
by a pulmonary or respiratory impairment
[“disability”]; and (4) that his pneumoconiosis is a
substantially contributing cause of his total
disability [“disability causation”].
Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013)
(citing 20 C.F.R. § 725.202(d)(2)); see also Buck Creek Coal Co.
v. Sexton, 706 F.3d 756, 758 (6th Cir. 2013).
If a claimant qualifies for the 15-year rebuttable
presumption under 30 U.S.C. § 921(c)(4), however, the burden
shifts. The 15-year rebuttable presumption tracks the
requirements of § 901(a): if a claimant establishes the
existence of a qualifying disability (element 3) and 15 years of
coal mining employment, then he is entitled to a rebuttable
presumption that he suffers from pneumoconiosis and that the
pneumoconiosis caused his disability (elements 1, 2, and 4).
Mingo, 724 F.3d at 555. It thus follows that a party may defeat
the presumption by rebutting any one of those three elements:
existence of pneumoconiosis (1), disease causation (2), or
disability causation (4).
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Here, the ALJ analyzed all three issues in turn. As to
element (1), the existence of pneumoconiosis, the ALJ
comprehensively examined the evidence presented by the Fund and
found that it had successfully refuted the presence of clinical
pneumoconiosis but did not refute the presence of legal
pneumoconiosis. The ALJ also considered disease causation,
element (2), as part of his analysis regarding legal
pneumoconiosis, concluding that “Employer has failed to rebut
the presumption that Claimant’s lung disease is caused in part
by his exposure to coal dust.” J.A. 45. Finally, the ALJ looked
to the Fund’s evidence on disability causation, element (4).
Rejecting the Fund’s experts as unpersuasive on whether Gump’s
disability was caused by pneumoconiosis, the ALJ concluded that
the Fund failed to rebut the presumption.
Likewise, the Board also duly examined all three avenues of
rebuttal. The Board considered whether the evidence disproved
the existence of legal pneumoconiosis, element (1), and held
that the ALJ properly discounted the physicians’ testimony
because they failed to disassociate Gump’s disease from his
exposure to coal dust, element (2). It also considered, and
ultimately agreed with, the ALJ’s conclusion of sufficient
evidence of disability causation (4). We conclude that the ALJ’s
findings of fact and conclusions of law, as well as the Board’s
9
subsequent affirmance of his findings, appropriately scrutinized
each aspect of rebuttal evidence offered by the Fund.
The Fund’s argument to the contrary relies primarily on the
Supreme Court’s decision in Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1 (1976), in which the Court held that the language of
30 U.S.C. § 921(c)(4) delineating methods of rebuttal applies
only to the Secretary of the Department of Labor and “is
inapplicable to operators.” Id. at 35. According to the Fund,
the ALJ improperly limited its rebuttal options to those listed
in § 921(c)(4) even though it is a private mine operator.
We are not persuaded that the ALJ limited his analysis in
such a manner. Under § 921(c)(4), “[t]he 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). Even though the ALJ’s analysis was structured along
this two-pronged format, his analysis nevertheless examined all
three elements covered by the presumption in a substantive
manner. 2 E.g., Mingo, 724 F.3d at 555 (“Although Mingo Logan
2
It is unexceptional that the ALJ chose to collapse his
analysis of presence of disease (element 1) and disease
causation (element 2). Since at least 1978, the definition of
legal pneumoconiosis has been defined as “any chronic lung
disease or impairment . . . arising out of coal mine
(Continued)
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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.”). Here, as in Mingo, the
ALJ considered all possibilities for rebuttal; accordingly, as a
matter of law, he did not err under Usery.
The Fund argues, alternatively, that the ALJ utilized an
improper standard of proof with respect to the three rebuttal
options. It posits that as a private mine operator, not bound by
the language of § 921(c)(4), it could rebut the 15-year
presumption upon a lesser showing than could the Secretary. Cf.
Mingo, 724 F.3d at 560 (Niemeyer, J., concurring); but see
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir.
1984) (“[T]he employer must rule out the causal relationship
between the miner’s total disability and his coal mine
employment in order to rebut the interim presumption.”)
employment.” 20 C.F.R. § 718.201(a)(2) (emphasis added). Thus,
if an ALJ finds that legal pneumoconiosis has been established
(1), it logically follows that the miner’s qualifying disease
was caused by coal mining (2). As we have explained, the fact
that the ALJ employed a two-element analytical structure does
not obscure the fact that he duly considered three elements.
See, e.g., Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063,
1070 (6th Cir. 2013).
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(emphasis added). We need not resolve this issue, however,
because the record demonstrates that the Fund’s presentation
would have failed under any standard. As discussed in greater
detail below, the ALJ rejected, on sound grounds, the testimony
of the two expert physicians proffered by the Fund. Save for the
testimony of those experts, the Fund submitted minimal evidence
(if any at all) to corroborate its assertions as to existence of
disease, disease causation, and disability causation. Thus, we
find that the Fund was not restricted, either by form or by
standard, in the evidence it presented to rebut the 15-year
presumption. 3
B.
The Fund also challenges the ALJ’s conclusion that it did
not meet its burden of rebutting Gump’s disability causation, or
whether Gump’s disability arose out of his coal mine employment.
In rejecting the argument as to disability causation, the ALJ
had referred — in the Fund’s view, erroneously — to his
conclusion as to the existence of disease. The ALJ observed that
the sole evidence presented by the Fund to rebut disability
causation was comprised of the expert opinions of Dr. Renn and
3
Nor will we reach the validity of 20 C.F.R. § 718.305(2013), the DOL’s regulation implementing § 921(c)(4). Our
holding today rests on the ALJ’s application of the statutory
15-year rebuttable presumption and its interplay with Usery. On
the facts of this case, we find no reversible error.
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Dr. Bellotte, but that neither doctor had found the existence of
legal pneumoconiosis in the first instance; importantly, the
physicians’ conclusion that Gump’s disability was unrelated to
pneumoconiosis was based on their premise that Gump did not
suffer from pneumoconiosis in the first place. The ALJ thus
concluded that the experts’ conclusions as to disability
causation lacked credibility and failed to satisfy the Fund’s
burden on rebuttal. See also Board Decision, J.A. 56 (“The same
reasons for which the administrative law judge discredited the
opinions of Drs. Renn and Bellotte, that claimant does not
suffer from legal pneumoconiosis, also undercut their opinions
that claimant’s impairment is unrelated to his coal mine
employment.”).
We do not find error in the ALJ’s analysis. The ALJ noted
that these physicians in particular relied on a finding of no
legal pneumoconiosis to conclude that Gump’s disability was not
caused by his exposure to coal dust. If the premise upon which a
conclusion was based is determined to lack credibility (and thus
probative value), then it follows that the conclusion itself
lacks credibility, as well. We are also unpersuaded by the
Fund’s attempted distinction between a finding of pneumoconiosis
and a presumption of pneumoconiosis. This ostensible distinction
does not change the fact that the ALJ had legitimate reason to
13
discredit the physicians’ opinions on an issue that served as
the basis for a second and derivative opinion.
C.
Finally, after reviewing the record, we hold that the ALJ
relied on substantial evidence in concluding that the Fund did
not meet its burden to rebut the presumption that Gump suffered
from legal pneumoconiosis. The ALJ reviewed the opinions of four
physicians who had opined on whether Gump had legal
pneumoconiosis, two of whom answered in the affirmative and two
in the negative. The ALJ found, however, that the opinions of
the two physicians who found no disease were “not persuasive”
and “not well-reasoned,” in part because they failed to
disassociate Gump’s disease from his exposure to coal dust and,
as to Dr. Bellotte in particular, because he had reversed his
original opinion and displayed a flawed understanding of the
definition of legal pneumoconiosis. We agree with the Board that
the ALJ’s credibility determinations are rational and supported
by substantial evidence in the record. Doss v. Dir., Office of
Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995).
III.
For the reasons set forth above, we deny the petition for
review.
PETITION DENIED
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