Big Branch Resources, Inc. v. John Ogle , 737 F.3d 1063 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0348p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BIG BRANCH RESOURCES, INCORPORATED, as X
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Petitioner, --
insured by The West Virginia CWP Fund,
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No. 13-3251
,
>
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v.
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JOHN A. OGLE; DIRECTOR, OFFICE OF
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WORKERS’ COMPENSATION PROGRAMS,
Respondents. N
Upon Petition for Review of an Order
of the Benefits Review Board.
No. 12-0194 BLA.
Decided and Filed: December 17, 2013
Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: William S. Mattingly, Jeffrey R. Soukup, JACKSON & KELLY PLLC,
Morgantown, West Virginia, for Petitioner. Joseph E. Wolfe, Ryan C. Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia for
Respondent Ogle. Sean G. Bajkowski, Maia S. Fisher, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In this case, the Benefits Review
Board (“the Board”) affirmed the decision of the administrative law judge (“ALJ”)
granting John A. Ogle’s claim for federal black lung benefits. The West Virginia Coal
Workers’ Pneumoconiosis Fund (“the Fund”) as insurer of the defunct Big Branch
Resources, Inc. petitions for review of that decision, claiming that the ALJ erred on
several grounds. In particular, the Fund argues that the ALJ improperly restricted the
1
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Fund’s ability to rebut the fifteen-year presumption and that the ALJ applied the wrong
standard for rebutting the causation presumption. The Fund further alleges that the
ALJ’s conclusion that the Fund did not rebut the fifteen-year presumption was
erroneous. Finally, the Fund posits that the ALJ wrongly discredited the medical
opinions of two experts. Because there is no evidence that the ALJ improperly restricted
the Fund’s ability to rebut the fifteen-year presumption or that the ALJ applied the
wrong standard, and because the ALJ’s other decisions are supported by substantial
evidence, we DENY the petition for review.
I. BACKGROUND
Ogle, born in 1954, worked in various jobs in underground coal mines for
twenty-one years. Jt. App’x at 269–70 (ALJ Dec. at 5–6). His last coal mine
employment was in 1996 in Kentucky. Jt. App’x at 269 (ALJ Dec. at 5). Ogle has been
a long-term smoker, beginning at the age of twelve. Jt. App’x at 270 (ALJ Dec. at 6).
He submitted this claim for benefits on November 5, 2007. Jt. App’x at 266 (ALJ Dec.
at 2). On May 5, 2009, an ALJ1 conducted a formal hearing at which the parties also
submitted exhibits. Jt. App’x at 266, 267–68 (ALJ Dec. at 2, 3–4).
After the record closed but before the ALJ issued a decision, Congress enacted
legislation reviving a rebuttable statutory presumption that a coal miner who worked in
an underground coal mine for at least fifteen years and suffers from a total respiratory
or pulmonary disability is presumed to be totally disabled due to pneumoconiosis. See
Patient Protection and Affordable Care Act (“PPACA”), Pub. L. No. 111-148, § 1556,
124 Stat. 119 (2010); see also 30 U.S.C. § 921(c)(4). The presumption applied
retroactively to claims filed after January 1, 2005, and pending at the time the PPACA
was enacted. PPACA, Pub. L. No. 111-148, § 1556(c).
Because Ogle’s claim fit the timing criteria for the statutory presumption, the
ALJ solicited additional evidence related to the new law and position statements
1
ALJ Miller conducted the hearing at the Bristol Public Library in Bristol, Virginia. ALJ Miller
retired before reaching a decision in this case. ALJ Colwell took over the case and issued a decision. The
parties did not object to the change.
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 3
regarding the applicability of the rebuttable presumption to this claim. Jt. App’x at 267
(ALJ Dec. at 3). The Fund submitted supplemental medical reports and a position
statement. Id.
On December 8, 2011, the ALJ issued his Decision and Order Awarding Benefits
(“ALJ Dec.”). Jt. App’x at 265–99. In the decision, the ALJ first determined that Ogle
filed the claim after January 1, 2005, and the claim was pending at the time the
rebuttable presumption provision was enacted. Jt. App’x at 267 (ALJ Dec. at 3). The
ALJ then found that Ogle suffered from a totally disabling respiratory impairment, a
finding with which all medical opinions submitted agreed. Jt. App’x at 289 (ALJ Dec.
at 25). Based on this finding of total disability, the filing of the claim after January 1,
2005, and the agreement that the miner had over fifteen years of underground coal mine
employment, the ALJ found that the fifteen-year, rebuttable presumption under 30
U.S.C. § 921(c)(4) and 20 C.F.R. § 718.305 applied. Jt. App’x at 289 (ALJ Dec. at 25).
Next, the ALJ noted that the rebuttable presumption shifts the burden to the Fund
“to demonstrate by a preponderance of the evidence either: (1) the miner’s disability
does not, or did not, arise out of coal mine employment; or (2) the miner does not, or did
not, suffer from pneumoconiosis.” Jt. App’x at 290 (ALJ Dec. at 26). After reviewing
medical opinions regarding x-ray evidence, the ALJ concluded that the Fund did
demonstrate by a preponderance of the evidence that Ogle did not suffer from clinical
pneumoconiosis. Jt. App’x at 291–93 (ALJ Dec. at 27–29). However, the Fund failed
to rebut the presumption that Ogle suffers from legal pneumoconiosis. Jt. App’x at 296
(ALJ Dec. at 32).
The ALJ noted that the medical opinions of Dr. Forehand, Dr. Baker, and Dr.
Agarwal all concluded that Ogle’s impairment is due to heavy smoking as well as
exposure to coal dust, while the opinions of Dr. Jarboe and Dr. Castle attribute the
impairment to smoking alone. Jt. App’x at 293 (ALJ Dec. at 29). The ALJ discredited
the opinions of Dr. Jarboe and Dr. Castle because they failed to “adequately address the
qualifying FEV1 values on the miner’s pre- and post- bronchodilator testing documenting
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 4
the presence of obstructive lung disease.”2 Jt. App’x at 295 (ALJ Dec. at 31). Apart
from their failure to “adequately explain the cause of the irreversible and totally
disabling component of the miner’s lung disease,” id., these two physicians’ opinions
“lose probative value” because they “rely on negative chest x-ray findings to preclude
a finding of legal pneumoconiosis,” id., which contradicts Department of Labor
determinations. The other three doctors diagnosed legal pneumoconiosis. Jt. App’x at
296 (ALJ Dec. at 32). Their opinions were not based on views “inconsistent” with the
Department of Labor’s position. Id. Therefore, the ALJ found that the Fund had not
rebutted the presumption of legal pneumoconiosis. Id.
In determining whether the Fund had rebutted the causation presumption, the
ALJ, after stating the rule-out standard,3 discussed why he credited some medical
opinions and discredited others. Jt. App’x at 296–97 (ALJ Dec. at 32–33). He gave less
weight to the disability causation opinions of Dr. Jarboe and Dr. Castle because they had
not diagnosed legal pneumoconiosis. Jt. App’x at 297 (ALJ Dec. at 33). Based on the
opinions of Dr. Baker, Dr. Forehand, and Dr. Agarwal, whose opinions the ALJ found
to be “sufficiently reasoned and documented,” Jt. App’x at 297 (ALJ Dec. at 33), the
ALJ concluded that Ogle’s total disability stems from both smoking and coal dust
exposure. Id. Having determined that the Fund failed to rebut the causation
presumption as well, the ALJ awarded benefits. Id.
The Fund appealed the award of benefits to the Board which affirmed the ALJ’s
decision as legally sound and based on substantial evidence. Jt. App’x at 307 ( Benefits
Review Board Decision and Order (“Bd. Dec.”) at 8). In its opinion, the Board first
reviewed the ALJ’s findings and the assertions of error made by the Fund. See Jt. App’x
at 301–05 (Bd. Dec. at 2–6). The Board analyzed the ALJ’s findings under the same
substantial evidence standard that we use. Jt. App’x at 302 (Bd. Dec. at 3) (noting that
2
FEV1 (forced expiratory volume in one second) is a measure of lung function. The test results
are a percentage of predicted values based on characteristics such as the subject’s age, height, weight, and
gender. See Peabody Coal Co. v. Lowis, 708 F.2d 266, 270 (7th Cir. 1983).
3
This standard is consistently applied for rebutting disability causation by the Fourth Circuit. See,
e.g., Stiltner v. Island Creek Coal Co., 86 F.3d 337, 339 (4th Cir. 1996).
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 5
the Board must affirm the ALJ’s opinion “if it is rational, supported by substantial
evidence, and in accordance with applicable law”). The Board rejected the Fund’s
arguments that the ALJ “failed to provide valid reasons for discounting the opinions of
Drs. Jarboe and Castle.” Jt. App’x at 305 (Bd. Dec. at 6). The Board affirmed the ALJ’s
weighing of the evidence and noted that “whether a medical opinion is sufficiently
documented and reasoned is a credibility matter within the purview of the [ALJ].” Jt.
App’x at 306 (Bd. Dec. at 7). As a result, the Board affirmed the ALJ’s finding that the
Fund failed to prove that Ogle did not suffer from legal pneumoconiosis. Id. Turning
to disability causation, the Board found that the ALJ “accurately noted that all of the
physicians agree that [Ogle]’s disability is due to his pulmonary impairment,” Jt. App’x
at 307 (Bd. Dec. at 7), thus leaving only the question whether Ogle’s impairment is due
to his coal mine employment. The Board agreed with the ALJ that the physicians’
opinions on this question were closely related to their opinions on the existence of legal
pneumoconiosis, and the Board approved of the ALJ discounting the opinions of Dr.
Jarboe and Dr. Castle for the same reasons. Id. Consequently, the Board affirmed the
ALJ’s conclusion that the Fund had failed to disprove disability causation, that the Fund
had not rebutted the presumption, and that benefits ought be awarded. Id.
This petition for review followed.
II. ANALYSIS
A. Standard of Review
In reviewing an appeal from the Board, we review the Board’s legal conclusions
de novo. Paducah Marine Ways v. Thompson, 82 F.3d 130, 133 (6th Cir. 1996). While
we will not vacate the Board’s decision unless the Board has committed legal error or
exceeded its scope of review, Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742 (6th Cir.
1997), we review the ALJ’s decision to determine whether the ALJ applied the
applicable law correctly to reach a conclusion supported by substantial evidence. Tenn.
Consol. Coal Co. v. Kirk, 264 F.3d 602, 606 (6th Cir. 2001). “‘Substantial evidence’
means ‘such relevant evidence as a reasonable mind might accept as adequate to support
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 6
a conclusion.’” Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.
1985) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “We do not reweigh
the evidence or substitute our judgment for that of the ALJ.” Kirk, 264 F.3d at 606.
Therefore, we may affirm an ALJ’s decision even though “we would have taken a
different view of the evidence were we the trier of facts.” Ramey v. Kentland Elkhorn
Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985).
If the ALJ has adequately explained why he weighed the evidence as he did, then
he has satisfied the substantial evidence standard. Morrison v. Tenn. Consol. Coal Co.,
644 F.3d 473, 478 (6th Cir. 2011). “A remand or reversal is only appropriate when the
ALJ fails to consider all of the evidence under the proper legal standard or there is
insufficient evidence to support the ALJ’s finding.” McCain v. Director, Office of
Workers Compensation Programs, 58 F. App’x 184, 201 (6th Cir. 2003).
B. Legal Structure
The Black Lung Benefits Act (“BLBA”) provides benefits to coal miners who
have become totally disabled due to their exposure to coal dust and resulting
pneumoconiosis. See 30 U.S.C. § 901(a). Under the BLBA, an individual is entitled to
benefits if he is (1) a coal miner (2) who suffers from pneumoconiosis (3) arising out of
his coal mine employment and (4) causing (5) his total disability. See 20 C.F.R.
§ 725.202(d); see also Buck Creek Coal Co. v. Sexton, 706 F.3d 756, 758 (6th Cir.
2013). In 2010, Congress reinstated a fifteen-year rebuttable presumption by striking
the last sentence of § 411(c)(4) of the BLBA, 30 U.S.C. § 921(c)(4). See PPACA, Pub.
L. No. 111-148, § 1556(a). Under the presumption, “if a miner was employed for fifteen
years or more in one or more underground coal mines” and “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.” 30
U.S.C. § 921(c)(4).
Thus, after a showing that the miner (1) was employed for at least fifteen years
in underground coal mines and (2) is totally disabled due to a respiratory or pulmonary
impairment, then the rest of the elements outlined in 20 C.F.R. § 725.202(d) are
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 7
presumed and the burden shifts to the employer to rebut them. Proof sufficient to invoke
the presumption proves the first element—that the individual is a coal miner—and the
fifth element—that the individual is totally disabled. The other three elements—that the
individual suffers from pneumoconiosis arising out of his coal mine employment and
causing this disability—are presumed. According to the statute, “[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).
The Fund claims that the ALJ and the Board improperly restricted its ability to
rebut the fifteen-year presumption by limiting the Fund to only the two methods through
which the Secretary may rebut the presumption. The Fund points to Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1 (1976), to argue that the final sentence of 30 U.S.C.
§ 921(c)(4) does not restrict private operators.
A prior panel of this court has held that to rebut the presumption, the employer
“must establish 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.” Morrison, 644 F.3d at 479 (quoting 30 U.S.C.
§ 921(c)(4)). The ALJ here stated that the rebuttable presumption shifts the burden to
the Fund “to demonstrate by a preponderance of the evidence either: (1) the miner’s
disability does not, or did not, arise out of coal mine employment; or (2) the miner does
not, or did not, suffer from pneumoconiosis.” Jt. App’x at 290 (ALJ Dec. at 26).
Therefore, ALJ properly followed published Sixth Circuit precedent in stating the
methods available for rebuttal.
The two rebuttal methods were properly identified and analyzed by the ALJ. The
ALJ stated that the Fund can show that the miner does not suffer from pneumoconiosis.
Id. Such a showing rebuts the first of the three “presumed” elements—that the
individual suffers from pneumoconiosis arising out of his coal mine employment and
causing his disability. The ALJ concluded that the Fund failed to show that the miner
did not suffer from pneumoconiosis. Jt. App’x at 296 (ALJ Dec. at 32).
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 8
The ALJ then explained why the Fund did not rebut what the ALJ labels
“disability causation.” Jt. App’x at 296–97 (ALJ Dec. at 32–33). Disability causation
rebuttal, according to the ALJ, can be accomplished by proving that the miner’s
disability does not arise out of coal mine employment. Jt. App’x at 296 (ALJ Dec. at
32). This formulation encompasses both of the remaining causation elements. The Fund
could have proven that the miner’s disability does not arise out of coal mine employment
by showing either that the miner’s pneumoconiosis does not arise out of his coal mine
employment or that his pneumoconiosis does not cause his disability. The ALJ did not
err by collapsing the two-step causal chain—that coal mine employment caused
pneumoconiosis which in turn caused total disability—into a single question: did the
miner’s disability arise out of his coal mine employment?
Furthermore, proving that there is no causal link between a miner’s coal mine
employment and his pneumoconiosis would have shown that the miner does not suffer
legal pneumoconiosis. After all, “‘legal pneumoconiosis’ includes any chronic lung
disease or impairment and its sequelae arising out of coal mine employment.” 20 C.F.R.
§ 718.201(a)(2). To conclude that Ogle suffered from legal pneumoconiosis, the ALJ
determined that Ogle’s chronic lung disease or impairment did arise out of his coal mine
employment. Thus, the Fund had failed to disprove the first link in the causal chain.
The Fund mistakenly argues that there is a third rebuttal method which was
denied to the Fund; specifically, the Fund posits that it ought be able to contend that a
miner’s pneumoconiosis is mild and that the totally disabling respiratory impairment is
the product of another disease. This argument, however, is not a unique third rebuttal
method, but merely a specific way to attack the second link in the causal chain—that
pneumoconiosis caused total disability. Nothing in the record suggests that the Fund
was prevented from making this argument.
The Fund also argues that the ALJ applied the incorrect standard for rebutting
disability causation. The ALJ applied the Fourth Circuit’s “rule-out” standard. See
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir. 1984) (holding that “the
employer must rule out the causal relationship between the miner’s total disability and
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 9
his coal mine employment in order to rebut the interim presumption”).4 Instead, the
Fund argues that the proper standard is a “contributing cause” standard that allows the
Fund to rely on a showing that coal mine employment was not a contributing cause of
the miner’s disability.
The regulation implementing the fifteen-year presumption states that “the
presumption will be considered rebutted” if the “total disability did not arise in whole
or in part out of dust exposure in the miner’s coal mine employment.” 20 C.F.R.
§ 718.305(d). A prior panel of this court equated this language with showing “that the
disease is not related to coal mine work.” Morrison, 644 F.3d at 480. Other panels of
this court, when interpreting identical language in an interim regulation, have not
distinguished meaningfully between a “play no part” or a “rule-out” standard and the
“contributing cause” standard. See, e.g., Tennessee Consol. Coal Co. v. Crisp, 866 F.2d
179, 186 (6th Cir. 1989) (discussing how a doctor’s opinion was “insufficient to rule out
occupational coal dust exposure as a ‘contributing cause’ to [claimant]’s respiratory
disability” (emphasis added) to rebut a presumption under 20 C.F.R § 727.203(b)(3)
which had an identical “did not arise in whole or in part out of coal mine employment”
standard); Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1120 (6th Cir. 1984) (“If an
employer is able to prove that pneumoconiosis played no part in causing a miner’s
disability, then the employer has satisfied the requirements of [20 C.F.R. §]
727.203(b)(3). Where, however, pneumoconiosis is a contributing cause to a miner’s
total disability, he is conclusively entitled to benefits.” (emphasis added)).
Simply put, the “play no part” or “rule-out” standard and the “contributing
cause” standard are two sides of the same coin. Where the burden is on the employer
to disprove a presumption, the employer must “rule-out” coal mine employment as a
cause of the disability. Where the employee must affirmatively prove causation, he must
4
The ALJ applied Fourth Circuit law while the Board applied Sixth Circuit law. Jt. App’x at 266
(ALJ Dec. at 2); Jt. App’x at 301 n.2 (Bd. Dec. at 2 n.2). Because Ogle’s last coal mine employment and,
thus, last coal dust exposure was in Kentucky, in the Sixth Circuit, this court has jurisdiction. Walker v.
Bethenergy Mines, Inc., 4 F. App’x 218, 220 (6th Cir. 2001) (holding that the Sixth Circuit had jurisdiction
over a claim and applying Sixth Circuit law where a miner last worked in Southern Ohio despite the “great
majority” of his mine employment taking place in West Virginia and the ALJ’s and the Board’s analysis
being formulated under Fourth Circuit law). We also apply Sixth Circuit law as we did in Walker.
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 10
do so by showing that his occupational coal dust exposure was a contributing cause of
his disability. Because the burden here is on the Fund, the Fund must show that the coal
mine employment played no part in causing the total disability. See Gibas, 748 F.2d at
1120 (“If an employer is able to prove that pneumoconiosis played no part in causing
a miner’s disability, then the employer has satisfied the [rebuttal] requirements.”
(emphasis added)). This approach follows and applies the language found in
20 C.F.R. § 718.305(d).
No meaningful difference exists between this “played no part” standard and the
ALJ’s statement that “rebuttal is established by ‘ruling out’ the causal nexus between the
miner’s totally disabling lung impairment and his coal dust induced lung disease.” Jt.
App’x at 296 (ALJ Dec. at 32). Consequently, we hold that the ALJ did not apply an
improper standard.5
C. ALJ’s Determinations
The Fund does not challenge the ALJ’s determination that Ogle is entitled to the
fifteen-year presumption. However, the Fund does challenge the ALJ’s conclusion that
it did not rebut that presumption of total disability due to pneumoconiosis. The Fund
points to various, specific alleged errors committed by the ALJ. First, the Fund contends
that the ALJ erred because he did not account for the failures of Dr. Forehand, Dr.
5
New regulations implementing the 2010 legislative changes were released on September 25,
2013, with an effective date of October 25, 2013. See 78 Fed. Reg. 59102 (Sept. 25, 2013). This opinion
is in accord with those new regulations.
The new regulations make clear that three elements in the fifteen-year presumption are susceptible
to rebuttal. See id. at 59106 (“The Department has revised § 718.305(d) in this final rule to more clearly
reflect that all three of the presumed elements may be rebutted.”) However, due to the definition of legal
pneumoconiosis, the three rebuttal methods are often expressed as 1) “establish[ing] that the miner does
not have a lung disease related to coal mine employment” and 2) “that the miner’s totally disabling
respiratory or pulmonary impairment is unrelated to his pneumoconiosis.” Id. Analogously, the new
regulations make clear that “proof that a miner’s disability resulted from a lung disease caused by coal dust
exposure that was not pneumoconiosis [is] no longer a valid method of rebuttal because every disabling
lung disease caused by coal dust exposure is legal pneumoconiosis.” Id. Therefore, the fifteen-year
presumption can be rebutted only in the two ways stated in the regulations “which encompass the disease,
disease-causation, and disability-causation entitlement elements.” Id.
These regulations also address many of the Fund’s arguments regarding the rebuttal standard.
See id. at 59105–06 (noting the Usery argument and laying out the rule-out versus the contributing-cause
debate). The new regulations interpret the “arise in whole or in part” rebuttal standard. See id. at 59115,
§ 718.305(d)(1) (effective Oct. 25, 2013). Disability causation can be rebutted by “[e]stablishing that no
part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis.” Id.
(emphasis added). This standard mirrors the standard that has been used by our court.
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Baker, and Dr. Agarwal to account for Ogle’s elevated or paralyzed left hemidiaphragm.
The Fund also argues that the ALJ improperly discredited the medical opinions of Dr.
Jarboe and Dr. Castle throughout his decision.
When we review determinations of credibility and the weight afforded to various
medical opinions, we defer to the ALJ whenever his conclusions are supported by
substantial evidence. Consolidation Coal Co. v. Worrell, 27 F.3d 227, 231 (6th Cir.
1994). This deference extends to whether a medical opinion is well-reasoned—a
determination ordinarily left to the ALJ. Director, Office of Workers’ Compensation
Programs v. Rowe, 710 F.2d 251, 255 (6th Cir. 1983). In fact, determining whether a
“doctor’s report was ‘sufficiently documented and reasoned[]’ [is] a credibility decision
we have expressly left to the ALJ.” Crisp, 866 F.2d at 185.
1. ALJ’s Assessments of Dr. Forehand, Dr. Baker, and Dr. Agarwal
First, the Fund asserts that the ALJ erred by crediting the opinions of Dr.
Forehand, Dr. Baker, and Dr. Agarwal despite these three physicians’ opinions failing
to account for Ogle’s elevated or paralyzed left hemidiaphragm. While the Fund is
correct that the ALJ did not account for the lack of discussion of Ogle’s potentially
elevated or paralyzed left hemidiaphragm in the opinions of these three physicians, we
do not require the ALJ to remark on every piece of evidence and every omission by a
physician. Our review is whether the ALJ’s decision rests on substantial evidence. See
Kirk, 264 F.3d at 606. Here, the ALJ was determining whether the Fund had rebutted
the fifteen-year presumption. Nothing in the evidence presented by these three
physicians supported rebuttal of that presumption. Furthermore, the ALJ, as required,
did consider all relevant evidence, which includes the physicians’ reports in whole and
the deposition testimony of Dr. Agarwal. See McCain, 58 F. App’x at 201. During Dr.
Agarwal’s deposition, the Fund had the opportunity to pin down Dr. Agarwal’s opinion
on any impact the potentially elevated or paralyzed left hemidiaphragm had on Ogle’s
condition. It failed to do so. While it is true that the ALJ did not discuss this omission
from all of the physicians’ opinions, our review cannot be so exacting as to require an
ALJ to discuss every potential finding every physician could have made in the absence
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of such findings in the physician’s report and in the absence of questions regarding the
particular matter in the deposition by the employer. Rather than review whether the ALJ
has meticulously discussed every piece of evidence that may be missing, we review
merely whether he has reviewed all relevant evidence, applied the proper legal standard,
and reached a conclusion based on substantial evidence. Here, the ALJ credited the
determinations of Dr. Forehand, Dr. Baker, and Dr. Agarwal and stated why he found
them reasonable and persuasive. Under these circumstances, the ALJ has sufficiently
explained why he relied on these opinions and did not err by relying on them.
2. ALJ’s Assessments of Dr. Jarboe and Dr. Castle
The Fund also argues that the ALJ improperly discredited the medical opinions
of Dr. Jarboe and Dr. Castle throughout his decision. The first error, according to the
Fund, stems from the ALJ discrediting the opinions of Dr. Jarboe and Dr. Castle as
contrary to the preamble to the 2001 amendments to the black lung regulations.6
Second, the Fund contends that despite the two doctors’ opinions adequately explaining
the irreversible and totally disabling component of Ogle’s impairment, the ALJ
improperly discredited them as inadequate explanations. Third, the Fund posits that the
ALJ erred in discrediting the opinions of Dr. Jarboe and Dr. Castle because they did not
find legal pneumoconiosis. While an ALJ can discredit an opinion that rules out legal
pneumoconiosis when he factually finds that the miner suffers from legal
pneumoconiosis, here legal pneumoconiosis was presumed, not found.
Each of these arguments once again asks us to ignore the ALJ’s credibility
findings and to reweigh the evidence ourselves. We decline to do so. The ALJ stated
in each instance why he has discredited the opinions on which the Fund relies. “The
ALJ’s conclusion that [one doctor]’s opinion was sufficiently reasoned but that [another
doctor’s opinion] was not is a matter of credibility, which we cannot revisit.” A & E
6
The preamble to the amended regulations explained the Department of Labor’s “medical and
scientific premises for the changes.” A & E Coal Co. v. Adams, 694 F.3d 798, 801 (6th Cir. 2012). A prior
panel of this court has approved an ALJ crediting or discrediting medical opinions based on “consisten[cy]
with the medical and scientific premises underlying the amended regulations, as expressed in the
preamble.” Id. at 802.
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 13
Coal Co. v. Adams, 694 F.3d 798, 803 (6th Cir. 2012). Additionally, the ALJ has
explained his views clearly, thereby allowing us to discern the opinions on which he
relies and the reasons for his reliance. “Thus, the ALJ accurately and specifically
referenced the evidence supporting his conclusions.” Id. His determinations to credit
or discredit these medical opinions based on whether they are sufficiently documented
and reasoned is a credibility matter that we must leave to the ALJ. See Moseley v.
Peabody Coal Co., 769 F.2d 357, 360 (6th Cir. 1985); Rowe, 710 F.2d at 255.
On the first asserted error, the Fund argues that its experts did not “rely on
negative chest x-ray findings to preclude a finding of legal pneumoconiosis, including
coal dust induced lung disease” as the ALJ found. Jt. App’x at 295 (ALJ Dec. at 31).
As a result, the ALJ concluded that such reliance is in opposition to the preamble to the
amendments to the BLBA regulations which, according to the ALJ, state that “coal dust
exposure can produce a disabling chronic obstructive lung disease, even in the absence
of clinical pneumoconiosis, i.e. x-ray correlation of the disease.” Id. The Fund argues
that the medical opinions did not rely on these findings alone. The ALJ, however,
certainly recognized that the opinions also relied on other findings as he noted that “their
opinions lose probative value” “to the extent that [they] rely on negative chest x-ray
findings to preclude a finding of legal pneumoconiosis.” Id. The ALJ reviewed the
evidence, determined that these two physicians relied heavily on negative x-ray findings,
which are used to determine whether clinical pneumoconiosis is found, to conclude a
lack of legal pneumoconiosis, and devalued the opinions to the extent they did so. We
conclude that such a decision is well-reasoned and based on substantial evidence. See
Adams, 694 F.3d at 800–01 (affirming the Board’s finding that “the ALJ permissibly
consulted the regulations’ preamble” to discredit the opinion of a physician, Dr. Jarboe,
who relied on studies discredited in the preamble).
Second, the Fund contends that despite the opinions adequately explaining the
irreversible and totally disabling component of Ogle’s impairment, the ALJ improperly
discredited them as inadequate explanations. Here, the Fund asks us to “reweigh the
evidence [and] substitute our judgment for that of the ALJ.” Kirk, 264 F.3d at 606. We
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 14
cannot do so. Id. “[E]ven if we would have taken a different view of the evidence were
we the trier of facts,” we must affirm the ALJ’s reasonable interpretation. Ramey,
755 F.2d at 486. Here, the ALJ stated precisely what he concluded the Fund’s experts
have failed to do—explain adequately the irreversible and totally disabling component
of Ogle’s impairment. The Fund cobbles together various statements by the physicians
to argue they have done so. “Determinations of whether a physician’s report is
sufficiently documented and reasoned is a credibility matter left to the trier of fact.”
Moseley, 769 F.2d at 360. We defer to the ALJ’s determination whether the
explanations are adequate and will not disturb his reasonable findings.
The Fund’s argument that the ALJ erred by discrediting an opinion that ruled out
legal pneumoconiosis where legal pneumoconiosis is only presumed, rather than
factually found, is flawed. This argument is based on the view that the ALJ merely
presumed legal pneumoconiosis. While the fifteen-year presumption did at first allow
the ALJ to presume pneumoconiosis, the Fund challenged this presumption. The Fund
fought vigorously to rebut the presumption, while Ogle strived to buttress it. The Fund
was able to disprove the existence of clinical pneumoconiosis, but failed to disprove the
existence of legal pneumoconiosis, which was its burden. Thus, while pneumoconiosis
was first presumed, not found, the ALJ nevertheless concluded that the “[e]mployer has
not rebutted the existence of legal coal workers’ pneumoconiosis by a preponderance of
the medical evidence.” Jt. App’x at 296 (ALJ Dec. at 32). Thus, the ALJ determined
that it was at least as likely as not that Ogle suffered from legal pneumoconiosis. The
ALJ did not err in using this determination to discredit the opinions of Dr. Jarboe and
Dr. Castle, neither of whom diagnosed legal pneumoconiosis.
In sum, the ALJ did not err in concluding that the Fund failed to rebut the fifteen-
year presumption.
III. CONCLUSION
We hold that the ALJ did not improperly restrict the Fund’s ability to rebut the
fifteen-year presumption. Furthermore, an employer must show that coal mine
employment played no part in the claimant’s disability in order to rebut the presumption
No. 13-3251 Big Branch Resources, Inc. v. Ogle et al. Page 15
that coal dust exposure caused the disability. The ALJ’s conclusion that the Fund did
not rebut the fifteen-year presumption was based on substantial evidence and in
accordance with applicable law. For all of the reasons expressed in this opinion, we
DENY the petition for review.