Consolidation Coal Company v. Everett Galusky , 648 F. App'x 316 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1302
CONSOLIDATION COAL COMPANY,
Petitioner,
v.
EVERETT D. GALUSKY; DIRECTOR, OFFICE OF WORKERSʹ
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(14-0187-BLA; 11-5535-BLA)
Argued: March 22, 2016 Decided: May 10, 2016
Before SHEDD, THACKER, and HARRIS, Circuit Judges.
Petition for review denied by unpublished opinion. Judge Harris
wrote the opinion, in which Judge Shedd and Judge Thacker
joined.
ARGUED: William Steele Mattingly, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner. Heath M. Long, PAWLOWSKI,
BILONICK & LONG, Ebensburg, Pennsylvania, for Respondent. ON
BRIEF: Kevin M. McGuire, Amy Jo Holley, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner.
Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:
Consolidation Coal Company (“CONSOL”) petitions for review
of a decision awarding black lung benefits to Everett Galusky.
An administrative law judge (“ALJ”) found that Galusky was
entitled to rely on the “fifteen-year presumption,” a statutory
provision that presumes eligibility for benefits if an applicant
has worked in coal mines for at least fifteen years and suffers
from a totally disabling respiratory or pulmonary impairment.
The ALJ then held that CONSOL had failed to rebut that
presumption by showing either that Galusky does not have
pneumoconiosis — commonly known as black lung disease — or that
his pneumoconiosis did not cause his total disability. The
Benefits Review Board affirmed the ALJ’s decision.
On appeal, CONSOL argues primarily that the ALJ used the
wrong standard in considering whether it had disproved the
presence of pneumoconiosis, improperly requiring it to “rule
out” any connection between Galusky’s coal dust exposure and
Galusky’s condition. We think this reflects a misreading of the
record. Because the ALJ did not err by applying an
inappropriate standard of proof, and because substantial
evidence supports the ALJ’s decision, we deny CONSOL’s petition
for review.
2
I.
A.
The Black Lung Benefits Act, 30 U.S.C. §§ 901–44, awards
benefits to “coal miners who are totally disabled due to
pneumoconiosis,” popularly known as black lung disease. 30
U.S.C. § 901(a). Under the Act, a miner can prove entitlement
to benefits by showing through medical evidence that “he has
pneumoconiosis arising from coal mine employment, and that this
disease is a substantially contributing cause of [a] totally
disabling respiratory or pulmonary impairment.” Hobet Mining,
LLC v. Epling, 783 F.3d 498, 501 (4th Cir. 2015) (footnote
omitted). 1
For certain miners, Congress has made it easier to show an
entitlement to benefits. Id. A claimant with at least fifteen
years of underground coal employment and a “totally disabling
respiratory or pulmonary impairment,” 30 U.S.C. § 921(c)(4), may
invoke the Act’s “fifteen-year presumption,” under which “we
presume both prongs of the showing required for benefits
eligibility: that the claimant has pneumoconiosis arising from
coal mine employment, and that this disease is a substantially
1The statutory definition of “pneumoconiosis” encompasses
not only the diseases clinically known as pneumoconiosis, but
also “legal pneumoconiosis,” defined as “any chronic lung
disease or impairment” “arising out of coal mine employment.”
20 C.F.R. § 718.201(a)(2); see 30 U.S.C. § 902(b).
3
contributing cause of his disability.” See Epling, 783 F.3d at
502.
That presumption may be rebutted in two ways. First, a
coal mine operator may establish that the claimant does not have
pneumoconiosis “arising out of coal mine employment.” 20 C.F.R.
§ 718.305(d)(1)(i); see Epling, 783 F.3d at 502. Under the
governing regulations, a lung disease or impairment “arises out
of coal mine employment” if it is “significantly related to, or
substantially aggravated by,” coal dust exposure. 20 C.F.R.
§ 718.201(b). So to satisfy this first rebuttal method, an
operator must prove the converse: that a miner’s impairment is
not “significantly related to, or substantially aggravated by,”
the fifteen years or more spent in coal mines.
Second, an employer may show that “no part of the miner’s
respiratory or pulmonary total disability was caused by
pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii) (emphasis
added). Known as the “rule-out” standard, this burden is a
heavy one. It is not enough for an operator to show that
pneumoconiosis is a “minor or even an incidental cause” of a
miner’s disability. W. Va. CWP Fund v. Bender, 782 F.3d 129,
143 (4th Cir. 2015). Instead, an operator must show that the
miner’s disability is caused exclusively by something other than
pneumoconiosis, “rul[ing] out any connection between a miner’s
4
pneumoconiosis and his disability.” Id. at 135 (emphasis added)
(internal quotation marks omitted).
B.
Galusky was a coal miner for at least 26 years, last
working in coal mines in 1995 for CONSOL. 2 After unsuccessfully
applying for black lung benefits about a decade before, Galusky
reapplied in 2010, and this time the Department of Labor
approved his claim. CONSOL opposed Galusky’s claim and
requested a hearing in front of an ALJ.
In the proceedings before the ALJ, the parties presented
evidence that included medical tests and studies, x-ray
readings, and, most critically, the reports and opinions of four
physicians: Doctors Andrzej J. Jaworski; Joseph J. Renn, III;
Christopher Begley; and Stephen G. Basheda. While all four
agreed that Galusky suffered from a totally disabling
impairment, only Jaworski diagnosed Galusky with pneumoconiosis.
Renn, Begley, and Basheda instead diagnosed Galusky with
conditions like pulmonary emphysema, chronic obstructive
pulmonary disease, and asthma, and all three attributed
Galusky’s impairment either entirely or primarily to Galusky’s
2 As Galusky’s last coal employer, CONSOL is liable for
benefits potentially owed to Galusky, a fact that it does not
contest. See generally 20 C.F.R. §§ 725.490, 725.495.
5
decades-long smoking habit, rather than his coal mine
employment.
After conducting a hearing and reviewing the medical
evidence, the ALJ awarded benefits. Because Galusky had worked
for more than fifteen years in coal mines and suffered from a
totally disabling respiratory impairment, the ALJ invoked the
fifteen-year presumption. CONSOL does not dispute that this
presumption applies, and so we presume, as did the ALJ, both
that Galusky has pneumoconiosis arising from coal mine
employment and that his total disability is substantially caused
by his pneumoconiosis.
The ALJ went on to find that based on the medical evidence
and physician opinions, CONSOL had failed to rebut the
presumption. According to the ALJ, CONSOL could not satisfy the
first rebuttal method: showing that Galusky did not suffer from
legal pneumoconiosis, or a lung impairment “significantly
related to, or substantially aggravated by, dust exposure in
coal mine employment.” J.A. 297 (defining legal
pneumoconiosis); see id. at 296 n.23 (same). The ALJ
acknowledged that doctors Begley, Basheda, and Renn had not
diagnosed Galusky with pneumoconiosis. But neither Begley nor
Basheda, the ALJ noted, had been able to “rule out” coal dust as
a contributing cause to Galusky’s impairment. See J.A. 290
(quoting Begley’s deposition testimony that he “could not ‘rule
6
out’ exposure to coal dust as a contributor”); J.A. 301
(discussing Begley’s testimony); J.A. 303 (discussing Basheda’s
testimony). Moreover, though both Basheda and Renn had
diagnosed Galusky with asthma, the ALJ observed, neither had
considered the possibility that coal dust exposure could have
aggravated that asthma, which might bring it within the
definition of legal pneumoconiosis. Finally, the ALJ
discredited the opinions of Basheda and Renn on the ground that
the doctors had made statements questioning the progressive
nature of pneumoconiosis that were inconsistent with the Act and
the preamble to its regulations, and, in Basheda’s case, for
suggesting without record support that most of Galusky’s mining
work occurred only after certain coal dust controls had been
implemented.
The ALJ then determined that CONSOL could not satisfy the
second rebuttal method: demonstrating that Galusky’s
pneumoconiosis did not contribute to his total disability.
Citing longstanding Fourth Circuit precedent, the ALJ
discredited the disability-causation opinions of the experts who
had failed to diagnose pneumoconiosis, contrary to his own
determination — Basheda, Renn, and Begley. The ALJ also
reiterated his concerns about statements by Basheda and Renn
deemed inconsistent with the Act and the preamble to its
regulations. Having accorded little weight to these physicians’
7
opinions, the ALJ determined that CONSOL had failed to rebut the
presumption that Galusky’s pneumoconiosis caused his total
disability, and accordingly held that Galusky was entitled to
benefits.
On appeal, the Benefits Review Board affirmed the ALJ’s
decision. As to the first presumption — that Galusky suffers
from pneumoconiosis — the Board rejected CONSOL’s argument that
the ALJ provided invalid reasons for discounting the views of
doctors Renn and Basheda. According to the Board, the ALJ acted
within his discretion in concluding that both doctors failed to
explain why Galusky’s many years of coal dust exposure were not
an aggravating cause of his asthma. The Board also endorsed the
ALJ’s rationale for discrediting the views of doctors Renn and
Basheda as to the existence of pneumoconiosis. Both doctors,
the Board determined, had made statements inconsistent with the
principle that pneumoconiosis is a progressive and irreversible
disease, as reflected in the Act and the preamble to its
regulations; and Basheda’s claim that Galusky’s work occurred
primarily after the imposition of dust-control measures was
“factually unsupported by any evidence in the record,” J.A. 321.
Finally, as to the second presumption — that Galusky’s
pneumoconiosis is a substantial cause of his total disability —
the Board held that the ALJ properly analyzed the question under
the rule-out standard, and appropriately discounted the
8
disability-causation views of doctors who had failed to diagnose
pneumoconiosis in the first instance. CONSOL timely petitioned
this court for review.
II.
In black lung cases, our review is highly deferential. We
ask only “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.”
Bender, 782 F.3d at 144 (internal quotation marks omitted). We
are mindful that “it is for the ALJ, as the trier of fact, to
make factual and credibility determinations, and we therefore
defer to the ALJ’s evaluation of the proper weight to accord
conflicting medical opinions.” Epling, 783 F.3d at 504
(citation and internal quotation marks omitted).
A.
As described above, an operator may rebut the fifteen-year
presumption in one of two ways: (1) by showing that a claimant
does not have pneumoconiosis arising out of coal mine employment
(“pneumoconiosis rebuttal”), or (2) by showing that even if the
claimant does have pneumoconiosis, that disease did not cause
his total disability (“disability-causation rebuttal”). See 20
C.F.R. § 718.305(d)(1). Under the first rebuttal prong, the
standard of proof requires an operator to show that a miner’s
9
respiratory or pulmonary condition is not “significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment.” Id. § 718.201. But under the second, the standard
of proof is higher: Here, the rule-out standard requires an
operator to show that “no part” of a miner’s disability is
caused by pneumoconiosis. Id. § 718.305(d)(1)(ii); see Bender,
782 F.3d at 141 (describing application of rule-out standard to
second rebuttal prong).
Before this court, CONSOL’s primary argument is that the
ALJ committed legal error by applying the rule-out standard to
its efforts to disprove pneumoconiosis, extending the rule-out
standard from the second rebuttal prong to the first. 3 We read
the ALJ’s opinion differently. The regulatory framework here is
technical and a bit cumbersome, and the ALJ’s opinion is long
and complex. Nevertheless, it is clear that the ALJ correctly
distinguished the governing standards of proof, applying each to
the appropriate inquiry. In the section of his opinion devoted
to pneumoconiosis rebuttal, the ALJ required CONSOL to
demonstrate the absence of legal pneumoconiosis, properly
3 Before the Board, CONSOL’s argument was that the ALJ
improperly applied the strict rule-out standard to the second
rebuttal prong, and that it should have been permitted to rebut
disability causation under a more lenient standard. Our court
recently affirmed the regulatory rule-out standard in West
Virginia CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015), and
CONSOL no longer presses that argument.
10
defined as a lung impairment “significantly related to, or
substantially aggravated by, dust exposure in coal mine
employment.” J.A. 297. In analyzing disability causation, on
the other hand, the ALJ expressly invoked the rule-out standard,
explaining that an operator “must ‘rule out’ any causal
relationship between a miner’s disability and his coal mine
employment” under the second rebuttal prong. J.A. 308 (emphasis
added). All of that is indisputably correct.
To suggest that the ALJ nevertheless applied the rule-out
standard to pneumoconiosis rebuttal, improperly requiring CONSOL
to disprove even the slightest connection between Galusky’s coal
mine employment and his lung impairment, CONSOL points to two
references to the phrase “rule out” in the ALJ’s discussion of
the existence of pneumoconiosis. In the first, the ALJ notes
that Begley “could not rule out a coal dust etiology,” or cause,
for Galusky’s lung impairment, J.A. 301, and in the second, that
Basheda “could not 100% rule out a coal dust contribution” to
Galusky’s lung condition, J.A. 303. In context, however, it is
apparent that the ALJ is not referring to the so-called rule-out
standard of 20 C.F.R. § 718.305(d)(1)(ii), but instead using
“rule out” in its everyday sense — precisely as it was used by
the two doctors in their depositions, in the very passages from
which the ALJ is quoting when he in turn uses the phrase in his
opinion. See J.A. 201 (Begley testifying that “we can’t rule
11
out that [Galusky’s] exposure to coal dust could have
contributed” to his lung disease); J.A. 242 (Basheda testifying
that “you can never a hundred percent rule out” a different
causal factor, “but [Galusky’s] medical condition and findings
are [very] typical of tobacco use”). The ALJ’s allusions to
“ruling out,” in other words, come directly from the doctors’
testimony as to the causes of Galusky’s lung disease, and not
from the regulatory rule-out standard.
Nor do we detect any substantive error in the ALJ’s
consideration of the doctors’ testimony on this point. It is
indeed the case that under the first rebuttal prong, the burden
is on the operator to “rule out,” colloquially speaking, the
possibility that coal mine employment is “significantly related
to” or has “substantially aggravated” a lung disease or
impairment. 20 C.F.R. § 718.201(b). And while Begley and
Basheda opined that Galusky’s smoking habit was the “majority,”
J.A. 246 (Basheda), or “primar[y],” J.A. 202 (Begley), cause of
Galusky’s lung condition, neither could say that coal dust
exposure might not also play a contributing or aggravating part,
J.A. 241 (Basheda), J.A. 201 (Begley). “It was within the ALJ’s
prerogative” to “determine the persuasiveness of [these
experts’] testimony,” Bender, 782 F.3d at 144, and to take
account of the doctors’ uncertainty on this point in determining
whether CONSOL had met its burden of demonstrating that coal
12
mine employment was not significantly related to and did not
substantially aggravate Galusky’s lung disease.
B.
In the alternative, CONSOL argues that the ALJ and Board
erred as a factual matter in assessing the strength of its
rebuttal showing. According to CONSOL, substantial evidence
does not support the determination that it failed to meet its
burden under either of the rebuttal prongs. Again, we disagree.
As to the first rebuttal prong — disproving pneumoconiosis
— CONSOL argues that the opinions of doctors Renn and Basheda
are sufficient to show that Galusky’s lung condition is not
significantly related to or substantially aggravated by coal
mine employment, pursuant to 20 C.F.R. § 718.201(b). Both Renn
and Basheda diagnosed Galusky with a tobacco-induced condition —
for Renn, pulmonary emphysema and a severe obstructive
ventilatory defect; and for Basheda, severe chronic obstructive
pulmonary disease (“COPD”) — with an asthma component.
According to CONSOL, by tying Galusky’s lung impairment to
emphysema and COPD arising from tobacco use rather than coal
dust, this expert testimony disproves coal mine employment as a
significant contributor to Galusky’s impairment.
The problem, as both the ALJ and Board noted, is that
neither expert explained why the asthma component of Galusky’s
condition was not aggravated by exposure to coal dust. CONSOL
13
does not dispute that whether coal mine employment substantially
exacerbated Galusky’s asthma is relevant to its burden on
rebuttal. Rather, it argues that the ALJ misread the record,
and that its experts in fact did assess whether Galusky’s asthma
was aggravated by coal dust, and explained why it was not. But
as noted above, it is for the ALJ to determine the
persuasiveness of expert testimony, see Bender, 782 F.3d at 144,
and we cannot say that the ALJ erred in concluding that Renn and
Basheda failed to explain whether coal dust exposure could have
aggravated Galusky’s asthma. CONSOL directs us to deposition
passages in which an expert distinguishes Galusky’s asthma from
pneumoconiosis or from emphysema caused by coal dust, see J.A.
124–25, 127; diagnoses asthma, J.A. 231; or states without
discussion that Galusky’s conditions are caused by tobacco use
rather than coal dust exposure, J.A. 139. Nowhere, however, is
there anything that an ALJ would be obliged to treat as a
reasoned and persuasive explanation of why Galusky’s prolonged
exposure to coal dust did not “substantially aggravate[]” the
asthma component of his impairment.
We have explained already that in analyzing pneumoconiosis
rebuttal, the ALJ was entitled to consider that experts Begley
and Basheda were unable to state definitively that coal mine
employment, while not in their view the primary cause of
Galusky’s lung condition, did not play some significant
14
contributing role. And for the reasons given above, the ALJ
also was entitled to discount the testimony of Basheda and Renn
because they failed to provide a reasoned explanation of whether
coal dust exposure might have aggravated Galusky’s asthma.
Finally, CONSOL does not challenge on appeal the ALJ’s decision,
affirmed by the Board, to discredit Basheda’s opinion because
there is no factual support for Basheda’s claim that Galusky
performed most of his mining work after dust-control measures
were imposed. In light of all of those factors, and under our
deferential standard of review, we find that substantial
evidence supports the determination of the ALJ that CONSOL
failed to rebut the fifteen-year presumption by disproving the
existence of pneumoconiosis. 4
As to the second rebuttal prong — showing that “no part” of
Galusky’s total disability was caused by his pneumoconiosis
under 20 C.F.R. § 718.305(d)(1)(ii) — CONSOL offers the same
arguments discussed above, contending that the ALJ simply
incorporated by reference his flawed analysis of its experts’
4
Accordingly, we need not decide whether the ALJ properly
discredited doctors Basheda and Renn on the additional ground
that they had made statements questioning the progressive nature
of pneumoconiosis that were inconsistent with the Act and the
preamble to its regulations. With or without that alternative
reason for discounting the opinions of Basheda and Renn, there
is substantial record evidence to support the ALJ’s
determination that CONSOL did not meet its burden under the
first rebuttal prong.
15
testimony regarding the existence of pneumoconiosis. We have
addressed those arguments already. And in any event, the ALJ’s
analysis under this prong rests critically on a different point:
Under well-established Fourth Circuit law, an expert’s opinion
on whether a claimant’s disability is caused by pneumoconiosis
“can carry little weight” if that expert does not believe the
claimant even has pneumoconiosis, contrary to a determination by
the ALJ. See J.A. 311 (quoting Toler v. E. Associated Coal Co.,
43 F.3d 109, 116 (4th Cir. 1995)). In fact, “opinions that
erroneously fail to diagnose pneumoconiosis may not be credited
at all, unless an ALJ is able to identify specific and
persuasive reasons for concluding that the doctor’s judgment on
the question of disability causation does not rest upon the
predicate misdiagnosis.” Epling, 783 F.3d at 505 (internal
quotation marks and alterations omitted). Here, there is
nothing to suggest that the view of Renn, Basheda, and Begley
that pneumoconiosis did not cause Galusky’s disability is
independent of their view that Galusky does not have
pneumoconiosis at all, and CONSOL does not argue otherwise.
Accordingly, the ALJ was well within his discretion in assigning
little or no weight to these experts’ views on disability
causation, and the ALJ’s determination that CONSOL failed to
meet its rebuttal burden is supported by substantial evidence.
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III.
For the foregoing reasons, we deny CONSOL’s petition for
review.
PETITION FOR REVIEW DENIED
17