Coastal Coal-West Virginia, LLC v. Director, Office of Workers' Compensation Programs , 624 F. App'x 824 ( 2015 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2012
COASTAL COAL-WEST VIRGINIA, LLC,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; RICHARD L. MILLER,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(13-0213 BLA)
Submitted: September 29, 2015 Decided: October 5, 2015
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition for rehearing granted; petition for review granted;
vacated and remanded by unpublished per curiam opinion.
Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for
Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean
Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C.; Helen Hart Cox, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Coastal Coal-West Virginia, LLC (“Employer”) petitions for
rehearing of our May 12, 2015 decision dismissing as untimely
its petition for review of the Benefits Review Board’s (“the
Board”) decision and order affirming the Administrative Law
Judge’s (“ALJ”) award of benefits to Richard L. Miller under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (2012). We grant
the petition for rehearing, * grant the petition for review,
vacate the ALJ’s award of benefits, and remand for
reconsideration of the evidence.
We review de novo the Board’s and the ALJ’s legal
conclusions and conduct an “independent review of the record to
determine whether the ALJ’s findings of fact were supported by
substantial evidence.” Island Creek Coal Co. v. Compton, 211
F.3d 203, 207-08 (4th Cir. 2000) (internal quotation marks
omitted). “‘Substantial evidence is more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id.
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
*We conclude (contrary to our earlier opinion) that
Employer filed a timely motion for reconsideration of the
Board’s order affirming the ALJ’s award of benefits. See 20
C.F.R. §§ 802.221(b), 802.407 (2014). Accordingly, Employer’s
petition for review in this court was timely. See 33 U.S.C. §
921(c) (2012).
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“As long as substantial evidence supports an ALJ’s findings, we
must sustain the ALJ’s decision, even if we disagree with it.”
Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 322 (4th Cir.
2013) (internal quotation marks and brackets omitted). Subject
to the substantial evidence requirement, we defer to the ALJ’s
credibility determinations and “evaluation of the proper weight
to accord conflicting medical opinions.” Harman Mining Co. v.
Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th
Cir. 2012) (internal quotation marks omitted). On review, this
court is not permitted to reweigh the medical evidence. Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 536 (4th Cir. 1998).
To establish entitlement to benefits under the Act, a miner
must prove: “(1) he has pneumoconiosis; (2) the pneumoconiosis
arose out of his coal mine employment; (3) he has a totally
disabling respiratory or pulmonary condition; and
(4) pneumoconiosis is a contributing cause to his total
respiratory disability.” Id. at 529. An irrebuttable
presumption of total disability due to pneumoconiosis attaches
If such miner is suffering . . . from a chronic dust
disease of the lung which:
(a) When diagnosed by chest X–ray . . . yields one or
more large opacities (greater than one centimeter in
diameter) and would be classified in Category A, B, or
C in accordance with the classification system
established in Guidelines for the Use of the ILO
International Classification of Radiographs of
Pneumoconiosis as provided in § 718.102(d); or
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(b) When diagnosed by biopsy or autopsy, yields
massive lesions in the lung; or
(c) When diagnosed by means other than those specified
in paragraphs (a) and (b) of this section, would be a
condition which could reasonably be expected to yield
the results described in paragraph (a) or (b) of this
section had diagnosis been made as therein described .
. . .
20 C.F.R. § 718.304(a)-(c) (2014); see 30 U.S.C. § 921(c)(3).
Ultimately, although the presumption is irrebuttable once
attached, the miner bears the burden of proving the existence of
complicated pneumoconiosis. Lester v. Dir., Office of Workers’
Comp. Programs, 993 F.2d 1143, 1146 (4th Cir. 1993).
In the petition for review, Employer contends that the ALJ
erred by failing to consider the comments of Drs. Abrahams,
Alexander, and Gaziano on their x-ray interpretations in
determining that Miller proved by x-ray evidence that he suffers
from complicated pneumoconiosis under 20 C.F.R.
§§ 718.202(a)(1), 718.304(a). We agree that the ALJ erred by
failing to consider the physicians’ comments, as those comments
have direct bearing on whether the mass appearing on the x-ray
is in fact the manifestation of a chronic dust disease or is the
result of some other disease process. See 30 U.S.C.
§ 921(c)(3); 20 C.F.R. § 718.304. Because the ALJ relied
primarily on the x-ray interpretations of Drs. Abrahams,
Alexander, and Gaziano in finding that Miller suffers from
complicated pneumoconiosis without considering the credibility
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of the readings in light of the comments, we conclude that
substantial evidence does not support the award of benefits.
Accordingly, we grant Employer’s petition for review,
vacate the ALJ’s award of benefits, and remand for
reconsideration of the x-ray evidence of complicated
pneumoconiosis. If the ALJ again finds that the x-ray evidence
establishes the existence of complicated pneumoconiosis, he
should then weigh all of the evidence to determine whether
Employer provided affirmative evidence showing that the opacity
does not exist or was caused by another disease process. See
Westmoreland Coal Co. v. Cox, 602 F.3d 276, 283-84 (4th Cir.
2010); E. Assoc. Coal Corp. v. Dir., Office of Workers’ Comp.
Programs, 220 F.3d 250, 256 (4th Cir. 2000).
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION FOR REHEARING GRANTED;
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
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