Harman Mining Corporation v. Emma Bartley ( 2024 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-2283
HARMAN MINING CORPORATION; VIRGINIA PROPERTY AND
CASUALTY INSURANCE GUARANTY ASSOCIATION,
Petitioners,
v.
EMMA RAYETTA BARTLEY, o/b/o widow of Jerry W. Bartley; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board. (21-0497-BLA; 21-
0498-BLA).
Submitted: July 30, 2024 Decided: August 20, 2024
Before NIEMEYER, WYNN, and QUATTLEBAUM, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ON BRIEF: James M. Poerio, POERIO & WALTER, INC., Pittsburgh, Pennsylvania, for
Petitioners. Brad A. Austin, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for
Respondent Bartley. Seema Nanda, Solicitor of Labor, Barry H. Joyner, Associate
Solicitor, Jennifer Feldman Jones, Deputy Associate Solicitor, Michael P. Doyle, Counsel
for Appellate Litigation, Ann Marie Scarpino, Attorney, UNITED STATES
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DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Harman Mining Corporation and the Virginia Property and Casualty Insurance
Guaranty Association (collectively, “Employer”) petition for review of the Benefits
Review Board’s (BRB or “Board”) decision and order affirming the Administrative Law
Judge’s (ALJ) award of miner’s and survivor’s benefits to Emma Rayetta Bartley (“Mrs.
Bartley”) under the Black Lung Benefits Act (“the Act”), 30 U.S.C. §§ 901-944. Employer
argues that the District Director violated its due process rights when deciding that it was
the operator liable for payment of benefits to Mrs. Bartley or “the responsible operator.”
Employer further contends that the ALJ improperly concluded that it failed to rebut the
presumption that the totally disabling respiratory impairment of Mrs. Bartley’s late
husband, Jerry W. Bartley, was due to pneumoconiosis. We deny the petition.
I.
We review de novo Employer’s contention that the District Director violated its due
process rights when deciding that it was the responsible operator. See Kirk v. Comm’r of
Soc. Sec. Admin., 987 F.3d 314, 320 (4th Cir. 2021); Am. Energy, LLC v. Dir., Office of
Workers’ Comp. Programs, 106 F.4th 319, 330 (4th Cir. 2024) (“Goode”). The regulations
define the responsible operator as the “potentially liable operator . . . that most recently
employed the miner.” 20 C.F.R. § 725.495(a)(1) (2024). There are five requirements for
an operator to be deemed a potentially liable operator, including that the operator or its
successor must have employed the miner for a cumulative period of at least one year.
20 C.F.R. § 725.494 (2024).
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The regulations set forth a detailed procedure for identifying the responsible
operator. Upon receipt of the miner’s claim, the district director must first “investigate
whether any operator may be held liable for the payment of benefits as a responsible
operator”—that is, whether any of the miner’s employers qualify as a potentially liable
operator. 20 C.F.R. § 725.407(a) (2024). The district director then notifies any potentially
liable operator of the existence of the claim. 20 C.F.R. § 725.407(b) (2024). After
receiving that notice, the operator has 30 days to accept or contest its designation as a
potentially liable operator. 20 C.F.R. § 725.408(a)(1) (2024). If the operator contests its
designation, it must “state the precise nature of the disagreement by admitting or denying”
each of the five requirements for being designated a responsible operator. 20 C.F.R.
§ 725.408(a)(2) (2024). A potentially liable operator also “may submit documentary
evidence in support of its position” regarding liability within 90 days. 20 C.F.R.
§ 725.408(b)(1) (2024). “[N]o documentary evidence relevant to [whether the operator is
potentially liable] may be admitted in any further proceedings unless it is submitted within
the time limits set forth in this section.” 20 C.F.R. § 725.408(b)(2) (2024).
After the potentially liable operators have responded and the district director has
completed the initial development of evidence relevant to the claimant’s entitlement to
benefits, the district director issues a Schedule for the Submission of Additional Evidence
(SSAE). 20 C.F.R. § 725.410(a) (2024). The SSAE contains the district director’s
designation of the responsible operator and his decision as to whether the claimant is
entitled to benefits. Id. If “the district director has designated as the responsible operator
an employer other than the employer who last employed the claimant as a miner, the district
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director shall include, with the [SSAE],” his reasons for doing so. 20 C.F.R.
§ 725.410(a)(3); see 20 C.F.R. § 725.495(d) (2024).
The potentially liable operator designated as the responsible operator then has 30
days to accept or contest the designation. 20 C.F.R. § 725.412(a)(1) (2024). The
contesting operator is also afforded at least 60 days to submit additional evidence relevant
to the claimant’s eligibility for benefits and the operator’s liability for the claim. 20 C.F.R.
§ 725.410(b) (2024). “Documentary evidence pertaining to the liability of a potentially
liable operator and/or the identification of a responsible operator which was not submitted
to the district director shall not be admitted into the hearing record in the absence of
extraordinary circumstances.” 20 C.F.R. § 725.456(b)(1) (2024); see also 20 C.F.R.
§ 725.414(d) (2024).
When the claim proceeds to a hearing before the ALJ, the regulations clarify the
burden of proof regarding the responsible operator issue. See RB&F Coal, Inc. v. Mullins,
842 F.3d 279, 281-82 (4th Cir. 2016) (explaining burdens). “[W]ith respect to the
adjudication of the identity of a responsible operator, the Director [of the Office of
Workers’ Compensation Programs (‘the Director’)] shall bear the burden of proving that
the responsible operator initially found liable for the payment of benefits . . . is a potentially
liable operator.” 20 C.F.R. § 725.495(b) (2024). Then the burden shifts to the designated
responsible operator to prove “[t]hat it is not the potentially liable operator that most
recently employed the miner.” 20 C.F.R. § 725.495(c)(2) (2024). This “proof must include
evidence that the miner was employed as a miner after he or she stopped working for the
designated responsible operator and that the person by whom he or she was employed is a
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potentially liable operator within the meaning of § 725.494.” Id. As explained, though,
the designated responsible operator may only rely on the evidence presented to the district
director, absent extraordinary circumstances. See 20 C.F.R. §§ 725.414(d), 725.456(b)(1).
The District Director followed the proper procedure here. After identifying
Employer as a potentially responsible operator, the District Director sent Employer notice
of the claims. Employer denied that it satisfied any of the requirements to be deemed a
potentially liable operator, but it did not submit any supporting evidence. The District
Director then issued an SSAE designating Employer as the responsible operator. Because
Employer was not the operator that most recently employed Bartley, the District Director
explained that the two subsequent operators were not potentially liable because Bartley
worked for those companies for less than a year. Employer denied that it was the
responsible operator but did not provide any supporting evidence. When the case was
referred to the ALJ, however, Employer attempted to introduce evidence to satisfy its
burden of establishing that it was not the responsible operator. The ALJ denied admission
of that evidence because Employer failed to present it to the District Director and because
Bartley’s death did not qualify as an extraordinary circumstance justifying the late
admission.
In this petition for review, however, Employer maintains that the District Director
faltered at the first step, violating its due process rights by failing to perform his initial duty
to “investigate whether any operator may be held liable for the payment of benefits as a
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responsible operator.” * 20 C.F.R. § 725.407(a). We conclude that the District Director did
not violate Employer’s due process rights. Employer had notice of the claims and an
opportunity to contest its liability before the District Director. Notably, Employer had
access to the same Social Security earnings report that the District Director considered and
could have used that report as well as the evidence it sought to introduce before the ALJ to
contest its liability at the appropriate time. But Employer waited nearly two years after the
District Director issued the SSAE to contest its liability.
II.
Having concluded that Employer is liable for any benefits awarded to Mrs. Bartley,
we now address whether the ALJ properly concluded that Mrs. Bartley was entitled to
benefits. “We review the findings of the ALJ, as affirmed by Board, to determine if they
are supported by substantial evidence and in accordance with the law.” Goode, 106 F.4th
at 330(cleaned up); see W. Va. CWP Fund v. Dir., Off. of Workers’ Comp. Programs,
880 F.3d 691, 697 (4th Cir. 2018) (“Smith”) (“In black lung cases, our review is highly
deferential.”). “To determine whether this standard has been met, we consider whether all
of the relevant evidence has been analyzed and whether the ALJ has sufficiently explained
*
Employer further contends that the ALJ erred in granting the Director’s motion for
a protective order, which prohibited Employer from seeking discovery from and deposing
the District Director. Employer also maintains that Bartley’s death qualified as an
extraordinary circumstance justifying the late admission of additional evidence. We
conclude that Employer waived judicial review of these issues because it did not raise them
before the BRB. See Edd Potter Coal Co. v. Dir., Office of Workers’ Comp. Programs,
39 F.4th 202, 206-09 (4th Cir. 2022).
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h[er] rationale in crediting certain evidence.” Hobet Mining, LLC v. Epling, 783 F.3d 498,
504 (4th Cir. 2015) (internal quotation marks omitted).
But “the duty to resolve conflicts in the evidence rests with the ALJ as factfinder.
And when conflicting evidence allows reasonable minds to differ as to whether a claimant
is disabled or has pneumoconiosis, the responsibility for that decision falls on the ALJ.”
Sea “B” Mining Co. v. Addison, 831 F.3d 244, 252 (4th Cir. 2016). Accordingly, in
conducting our analysis, “we do not undertake to reweigh contradictory medical evidence,
make credibility determinations, or substitute our judgment for that [of the ALJ].” Id.Indeed, “[s]o long as an ALJ’s findings . . . are supported by substantial evidence, they
must be sustained.” Epling, 783 F.3d at 504. “Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Addison, 831 F.3d at 252 (internal quotation marks omitted).
Generally, to establish eligibility for benefits, a miner must demonstrate that:
(1) “he has pneumoconiosis, in either its clinical or legal form”; (2) “the pneumoconiosis
arose out of coal mine employment”; (3) “he is totally disabled by a pulmonary or
respiratory impairment”; and (4) “his pneumoconiosis is a substantially contributing cause
of his total disability.” W. Va. CWP Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015)
(internal quotation marks omitted); see 20 C.F.R. § 725.202(d)(2) (2024). “But for certain
miners, Congress has made it easier to establish eligibility for benefits.” Smith, 880 F.3d
at 695. If the miner proves that he was employed in underground coal mines or in
substantially similar conditions for at least 15 years, that he has had a chest X-ray
interpreted as negative for complicated pneumoconiosis, and that he has a totally disabling
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respiratory or pulmonary impairment, he is entitled to the rebuttable presumption that he
is totally disabled due to pneumoconiosis. 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)
(2024); see Smith, 880 F.3d at 695.
“Once the presumption is triggered, the burden shifts to the employer to demonstrate
that the miner is not in fact eligible for benefits.” Smith, 880 F.3d at 695. An employer
can rebut the 15-year presumption by establishing that the miner does not suffer from
pneumoconiosis arising out of his coal mine employment (“pneumoconiosis rebuttal”),
20 C.F.R. § 718.305(d)(1)(i) (2024), or “that no part of the miner’s respiratory or
pulmonary total disability was caused by pneumoconiosis” (“causation rebuttal”),
20 C.F.R. § 718.305(d)(1)(ii) (2024). Under the pneumoconiosis rebuttal method, the
employer must prove “that the miner’s impairment is not significantly related to, or
substantially aggravated by, the [15] years or more he has spent in the coal mines.” Smith,
880 F.3d at 695 (internal quotation marks omitted). Under the causation rebuttal method,
the employer “must ‘rule out’ the mining-related disease as a cause of the miner’s
disability.” Epling, 783 F.3d at 502. The employer cannot satisfy this “rule out” standard
by establishing that pneumoconiosis was only a minor cause or one of multiple causes of
the miner’s impairment; rather, the employer “affirmatively must establish that the miner’s
disability is attributable exclusively to a cause or causes other than pneumoconiosis.”
Bender, 782 F.3d at 144.
Employer challenges the ALJ’s conclusion that it failed to rebut the presumption
that Bartley’s totally disabling respiratory impairment was caused by pneumoconiosis on
two grounds: (1) the ALJ failed to weigh and resolve the conflicting evidence regarding
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Bartley’s smoking history; and (2) the ALJ improperly relied on Dr. Green’s medical
opinion, which Employer avers was not well-reasoned or well-documented, while
improperly discounting the opinions of Drs. Fino and Rosenberg.
Like the BRB, we conclude that any error by the ALJ in the calculation of Bartley’s
smoking history was harmless. See Addison, 831 F.3d at 253-54 (discussing harmlessness
in black lung context). Moreover, because it was Employer’s burden to rebut the
presumption of total disability due to pneumoconiosis, we need not consider whether the
ALJ properly credited Dr. Green’s opinion. Indeed, the ALJ specifically stated that, even
if she were to discount Dr. Green’s opinion, she would still find that Employer failed to
rebut the presumption.
Employer, then, may only prevail if it establishes that the ALJ erred in discounting
the opinions of Drs. Fino and Rosenberg. And we conclude that the Employer has failed
to do so. There is no doubt that Bartley suffered from multiple impairments, which made
the task of determining what exactly caused his totally disabling respiratory impairment
difficult. The ALJ discounted the opinions of Drs. Fino and Rosenberg, in part, because
they did not appear to acknowledge that difficulty. In contrast to Dr. Green, who opined
that Bartley’s respiratory impairment was caused by many factors, including lengthy
exposure to coal dust, Drs. Fino and Rosenberg were certain that Bartley’s respiratory
impairment was caused exclusively by conditions unrelated to coal dust exposure. Neither
physician, however, persuasively explained his confidence—that is, how he was able to
conclude that exposure to coal dust did not contribute to Bartley’s respiratory impairment.
Dr. Rosenberg attempted an explanation, but his opinion—that coal dust inhalation did not
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contribute to Bartley’s respiratory impairment because he did not seek medical treatment
until years after he retired from the mines—contradicts the Department of Labor’s
conclusion that pneumoconiosis is a latent and progressive disease. See E. Associated Coal
Corp. v. Dir., Office of Workers’ Comp. Programs, 805 F.3d 502, 512-13 (4th Cir. 2015).
III.
Because Employer failed to establish error in the ALJ’s findings that Mrs. Bartley
is entitled benefits and that Employer is liable for payment of those benefits, we deny
Employer’s petition for review. 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 DENIED
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