Midland Coal Co. v. Director, Office of Workers' Compensation Programs , 358 F.3d 486 ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2734
MIDLAND COAL COMPANY and
OLD REPUBLIC INSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS ’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
and GEORGE W. SHORES,
Respondents.
____________
Petition for Review of Decision and Order
of the Benefits Review Board,
United States Department of Labor, BRB No. 01-0316.
____________
ARGUED APRIL 18, 2003—DECIDED FEBRUARY 18, 2004
____________
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. George W. Shores worked
for Midland Coal Company as a miner for 26 years. He now
suffers from a variety of respiratory and pulmonary prob-
lems. On three separate occasions, he was unsuccessful in
his efforts to obtain benefits under the Black Lung Benefits
Act, 30 U.S.C. §§ 901 et seq. His luck changed the fourth
2 No. 02-2734
time around when an administrative law judge (ALJ) ruled
in his favor and the Benefits Review Board affirmed.
Midland now appeals.
I
Shores worked for Midland as a coal miner from 1954
until his retirement in 1982. Much of his time was spent
above ground working as a welder at strip or surface mines,
but even there, he was exposed to substantial amounts of
coal dust. He also smoked for some thirty years, but he quit
in 1971, eleven years before he retired. When Shores began
to suffer from various respiratory problems, he applied for
benefits under the Black Lung Benefits Act. He was
rejected three times, in 1981, 1994, and 1996. Meanwhile,
his respiratory symptoms worsened and his overall health
deteriorated. Shores suffered his third heart attack in 1997,
and in 1998 he applied for benefits for a fourth time.
This time, the ALJ relied on the duplicate-claim provi-
sions of 20 C.F.R. § 725.309(d)(4) and found that there
had been a material change in condition that justified
an award of benefits. In reaching that conclusion, the
ALJ had to decide which of the eight medical opinions be-
fore him were persuasive. He rejected five opinions for
various flaws: Dr. Marder (understating Shores’s smoking
history), Drs. Dengelman, Shima, and Sanchez (black lung
disease mentioned only in passing), and Dr. Dababneh (no
explanation for the medical basis of his conclusion). Of the
three remaining physicians, Drs. Skillrud and Selby con-
cluded that Shores did not have an impairment related to
coal-dust exposure, but instead suffered only from simple
asthma. Dr. Cohen, in contrast, found that Shores was
suffering from pneumoconiosis.
The ALJ decided that Dr. Cohen’s opinion was the best-
reasoned of the three that were worthy of consideration,
largely because Drs. Skillrud and Selby had relied on an
No. 02-2734 3
unduly narrow definition of pneumoconiosis by requiring
chest x-ray evidence of coal-dust exposure. This, the ALJ
noted, was a standard component of a medical diagnosis,
but was merely one of several ways to establish eligibility
for benefits under the “legal” or “regulatory” definition of
the ailment. See 20 C.F.R. § 718.202. In addition, the ALJ
found that the two nay-saying physicians had not inte-
grated all of the objective evidence as well as Dr. Cohen had
done, particularly test results showing diffusion impair-
ment, reversibility studies, and blood-gas readings. The
ALJ concluded that Shores had met the requirements for an
award of benefits; the Board affirmed, and Midland now
appeals.
II
Midland offers two ambitious arguments at the outset,
but both fall short. Because they involve purely legal prop-
ositions, our review is de novo. Freeman United Coal
Mining Co. v. Summers, 272 F.3d 473, 478 (7th Cir. 2001).
Midland first urges that Shores’s claim for benefits was
barred on res judicata grounds. It argues that nothing in
the Act overrides ordinary principles of finality and claim
preclusion or authorizes the re-filing of claims that have
finally been denied after an opportunity for a full and fair
adjudication. This is not, however, an accurate statement of
the special preclusion rules that apply in this area. At the
time of Shores’s fourth filing, an en banc decision of this
court had interpreted the regulations contained at 20 C.F.R.
§ 725.309 to the contrary, squarely holding that traditional
principles of res judicata do not bar a subsequent applica-
tion for black lung benefits where a miner demonstrates a
material change in at least one of the conditions of entitle-
ment. See Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008-
09 (7th Cir. 1997) (en banc). And while it is true that Spese
interpreted an earlier version of § 725.309, and that the
4 No. 02-2734
new version does not have retroactive effect, see 20 C.F.R.
§ 725.2(c), the revised regulations explicitly codified the
holding of Spese. See 65 Fed. Reg. 79,920, 79,974 (Dec. 20,
2000). Midland’s general claim of preclusion is therefore
without merit.
Midland also assaults the ALJ’s finding that pneumo-
coniosis can be progressive and latent. The ALJ relied
on the implementing regulation set forth at 20 C.F.R.
§ 718.201(c), which recognizes pneumoconiosis “as a latent
and progressive disease which may first become detectable
only after the cessation of coal mine dust exposure.” The
Department of Labor adopted this regulation after Shores
filed his fourth application for benefits; it was to take effect
on January 19, 2001.
Whether pneumoconiosis (including the condition de-
scribed for these purposes as “legal” pneumoconiosis) is
a disease that can be latent and progressive is a scientific
question. The Department of Labor’s regulation reflects the
agency’s conclusion on that point. Midland is now chal-
lenging that scientific finding, but we see no reason to sub-
stitute our scientific judgment, such as it is, for that of the
responsible agency. Prior to the adoption of § 718.201(c),
this court repeatedly noted that it would credit the position
adopted in benefits proceedings by the Department of Labor
on the progressivity and latency question, unless the mine
operators produced the type and quality of medical evidence
that would invalidate a regulation. See Old Ben Coal Co. v.
Scott, 144 F.3d 1045, 1048 (7th Cir. 1998); see also Spese,
117 F.3d at 1010; Freeman United Coal Mining Co. v.
Hilliard, 65 F.3d 667, 669-70 (7th Cir. 1995).
At that time, because the agency had not gone through
formal rule-making procedures, this deference was not
compelled under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), but it was ap-
propriate under United States v. Mead Corp., 533 U.S. 218,
No. 02-2734 5
234-35 (2001). See Alaska Dep’t of Envtl. Conservation v.
EPA, 2004 WL 86284, at *16 (U.S. Jan. 21, 2004); Wash.
State Dep’t of Soc. & Health Servs. v. Guardianship Estate
of Keffeler, 537 U.S. 371, 385 (2003). Now that the agency
has issued a formal regulation using full notice-and-com-
ment procedures, Chevron imposes on the mine operators
the heavy burden of showing that the agency was not en-
titled to use its delegated authority to resolve the scientific
question in this manner. Midland has not undertaken to
show why the Department’s conclusion was not itself
supported by substantial evidence (a somewhat different
question from whether it had the authority to adopt a
general rule on the point). Unless and until Midland did so,
Shores was fully entitled to rely on the rule without the
need to prop it up by introducing yet more independent
scientific evidence tending to show that it is scientifically
valid. We note as well that our colleagues in the D.C.
Circuit concluded in National Mining Association v. Depart-
ment of Labor, 292 F.3d 849, 863 (D.C. Cir. 2002), that §
718.201(c) was entitled to retroactive application.
Taking a more modest tack, Midland also argues that
a claimant must now show that she suffers from one of
the particular kinds of pneumoconiosis that are likely to
manifest latent and progressive forms. Midland gleans
this new requirement from the D.C. Circuit’s National
Mining Association opinion. Along the way to upholding
§ 718.201(c), the court noted that the Secretary of Labor
had acknowledged that “latent and progressive pneumoconi-
osis is rare, occurring in a small percentage of cases by all
accounts.” 292 F.3d at 863. Midland interprets this lan-
guage as a positive command that a claimant bringing a
subsequent application must prove that she suffers from the
particular kinds of pneumoconiosis that have been found in
the medical literature to be progressive and/or latent. But
that is not what the D.C. Circuit said, and more impor-
tantly, the regulation itself is not so limited. The rule is
6 No. 02-2734
instead designed to “prevent[ ] operators from claiming that
pneumoconiosis is never latent and progressive.” Id.
III
Midland also argues that the ALJ’s decision was in any
event not supported by substantial evidence. Here, we apply
the familiar rule that requires us to uphold the ALJ’s
findings if they are supported by relevant evidence that a
“ ‘rational mind might accept as adequate to support a con-
clusion.’ ” Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th
Cir. 1992) (quoting Peabody Coal Co. v. Helms, 859 F.2d
486, 489 (7th Cir. 1988)).
In order to be entitled to an award of benefits, a claimant
must prove (1) a totally disabling form of (2) pneumoconio-
sis (3) caused by coal mine employment. See Pittston Coal
Group v. Sebben, 488 U.S. 105, 114 (1988). In addition, in
order to proceed on a subsequent claim, a claimant must
show that her condition has changed with respect to at least
one of the elements of entitlement. See 20 C.F.R. § 725.309;
Spese, 117 F.3d at 1008; Sahara Coal Co. v. OWCP, 946
F.2d 554, 556 (7th Cir. 1991). A claimant may not show a
material change by presenting new evidence that merely
addresses her condition at the time of the earlier denial.
Hilliard, 65 F.3d at 669; Spese, 117 F.3d at 1008.
Midland first attacks the ALJ’s decision to credit the
positive diagnosis of Dr. Cohen and to discount the contrary
diagnoses of Drs. Skillrud and Selby. Shores relied on
physician opinion to establish the existence of pneumoconio-
sis, which is one of the ways permitted in 20 C.F.R. §
718.202(a)(4). As a result, the ALJ’s decision to credit the
opinion of Dr. Cohen over that of the other physicians was
a pivotal one, since Shores was unable to point to either of
the other two acceptable forms of evidence, biopsy evidence,
20 C.F.R. § 718.202(a)(2), or positive x-rays, 20 C.F.R. §
718.202(a)(1), and was ineligible for the regulatory pre-
No. 02-2734 7
sumptions set forth at 20 C.F.R. §§ 718.202(a)(3) and
718.305. Midland’s argument here is that the ALJ
impermissibly rejected the opinions of Drs. Skillrud and
Selby because they were based on a medical philosophy
inconsistent with the Act, rather than because of their
scientific reliability.
Midland fails to acknowledge, however, that this court
has “ ‘allow[ed] an ALJ to disregard medical testimony
when a physician’s testimony is affected by [her] subjective
personal opinions about pneumoconiosis which are contrary
to the congressional determinations implicit in the Act’s
provisions.’ ” Blakley v. Amax Coal Co., 54 F.3d 1313, 1321
(7th Cir. 1995) (quoting Pancake v. Amax Coal Co., 858 F.2d
1250, 1257 (7th Cir. 1988)); see also Lane v. Union Carbide
Corp., 105 F.3d 166, 173 (4th Cir. 1997) (“[A] physician’s
opinion based on a premise ‘antithetical’ to the Act is not
probative.”). In Blakley, we specifically noted that a medical
opinion can be discredited as hostile where “a physician
states that he will never diagnose the existence of pneumo-
coniosis in the absence of a positive x-ray.” 54 F.3d at 1321.
This is precisely the reason advanced by the ALJ in support
of his decision to credit the opinion of Dr. Cohen over that
of Dr. Skillrud. The ALJ discounted Dr. Selby’s opinion for
similar reasons: that Dr. Selby referenced parts of the
medical literature that deny that coal dust exposure can
ever cause pneumoconiosis, that Dr. Selby “stressed” the
absence of chest x-ray evidence, and that Dr. Selby’s
reliance on the absence of pulmonary problems at the time
of Shores’s retirement from coal mining in 1982 is contrary
to the notion that pneumoconiosis is a progressive disease.
The question remains, however, whether the opinions of
Drs. Skillrud and Selby were so compelling that the only
permissible choice for the ALJ was to rely on them. We
think not. For example, the ALJ based his conclusion that
Dr. Skillrud was insisting on x-ray evidence on Dr.
Skillrud’s citation of a study from the medical literature
8 No. 02-2734
finding that “significant airways obstruction is indeed rare
in coal miners in the absence of progressive massive fibrosis
or cigarette smoking.” The ALJ reasoned that, because
massive fibrosis can only be diagnosed via x-ray evidence,
Dr. Skillrud’s statement was equivalent to a finding that
pneumoconiosis is not diagnosable without x-ray evidence.
Such a position is contrary to the Act’s allowance of means
other than radiographic evidence to establish the existence
of the disease. We agree with Midland that it is possible to
understand Dr. Skillrud’s statement in a different way,
namely, simply as support for his conclusion that it was
Shores’s smoking history, and not pneumoconiosis, that was
causing his obstructive impairment. Nevertheless, on
substantial evidence review we would have to find that the
latter interpretation was the only permissible one, not that
it was one of several. In that light, the ALJ’s inference of
hostility to the Act was permissible.
The ALJ decided to discount Dr. Selby’s opinion for
several reasons: his reference to the absence of medical
literature supporting the proposition that coal dust ex-
posure can cause pneumoconiosis, his emphasis on the
absence of chest x-ray evidence, and his reliance on the
absence of pulmonary problems at the time of Shores’s re-
tirement from coal mining in 1982. Each of these points, the
ALJ concluded, runs contrary to the notion that pneu-
moconiosis is a progressive disease. Once again, we do not
disagree with Midland that the better reading of Dr. Selby’s
opinion might be merely that latent or progressive pneumo-
coniosis is rare. Furthermore, Midland may be correct that
the ALJ’s treatment of the relative contribution to the
disease made by Shores’s former smoking and his exposure
to coal dust could have been more careful. Dr. Selby thought
that cigarettes, and not coal dust, were the most likely
cause of Shores’s obstructive impairment, but the ALJ
criticized this finding because it did not confront the fact
that Shores quit smoking in 1971, more than a decade
before his retirement.
No. 02-2734 9
Nevertheless, the record as a whole shows that the ALJ
was within bounds when he chose to credit the opinion of
Dr. Cohen over those of Drs. Skillrud and Selby. As the ALJ
pointed out, Dr. Cohen did a better job of integrating all of
the available evidence—particularly blood-gas test results
showing significant diffusion impairment as well as test
results showing little reversibility, both of which tend to
disprove bronchial asthma—and he also had the advantage
of reading through, commenting on, and specifically
refuting the alternate diagnoses of both Dr. Skillrud and
Dr. Selby. Even if another finder of fact might have made
the opposite choice, the ALJ’s decision to credit the opinion
of Dr. Cohen was supported by substantial evidence that a
rational mind might accept as adequate. See Summers, 272
F.3d at 483.
Midland next attacks the ALJ’s finding that Shores
established a material change in at least one condition of
entitlement. See 20 C.F.R. § 725.309. It suggests that Dr.
Cohen’s opinion establishes only that Shores had pneumo-
coniosis all along, and that this is insufficient to establish
the requisite material change under § 725.309. Our problem
with this line of argument is that a finding that Shores had
some degree of pneumoconiosis all along would not neces-
sarily undercut an award of benefits in this case. As the
ALJ noted, a claimant can show a material change in either
of two ways: by proving that he “ ‘did not have black lung
disease at the time of the first application but has since
contracted it and become totally disabled by it,’ ” or that
“ ‘his disease has progressed to the point of becoming totally
disabling although it was not at the time of the first applica-
tion.’ ” See Spese, 117 F.3d at 1007 (quoting Sahara Coal
Co., 946 F.2d at 556). Either showing would suffice here
because Shores was unable to prove any of the elements of
entitlement in his 1996 benefits application. See 20 C.F.R.
§ 725.309(d)(2); Spese, 117 F.3d at 1009. It follows that a
finding that Shores is now totally disabled by pneumoconio-
10 No. 02-2734
sis is sufficient to find a material change in Shores’s
condition, whether that finding reflects a change from no
disease at all to a totally disabling condition, or it rests on
a change from a mild form of the disease to a totally
disabling condition. Whether Dr. Cohen thought that
Shores has been suffering from some form of pneumoconio-
sis all along is therefore not necessarily dispositive of this
appeal. We agree with the Department of Labor that at a
minimum there is substantial evidence to show material
change in the “total disability” element of the inquiry.
Midland’s third and final argument is that substantial
evidence does not support the ALJ’s finding that Shores
proved total disability. A miner is “totally disabled” within
the meaning of the statute and implementing regulations if
the miner has a pulmonary or respiratory impairment
which, standing alone, prevents or prevented the miner:
(i) From performing his or her usual coal mine
work; and
(ii) From engaging in gainful employment in the
immediate area of his or her residence requiring
the skills or abilities comparable to those of any
employment in a mine or mines in which he or she
previously engaged with some regularity over a
substantial period of time.
See 20 C.F.R. § 718.204(b)(1); see also Poole v. Freeman
United Mining Co., 897 F.2d 888, 893-94 (7th Cir. 1990). In
addition, “[i]n determining whether total disability has been
established, an ALJ must consider all relevant evidence on
the issue of disability including medical opinions which are
phrased in terms of total disability or provide a medical
assessment of physical abilities or exertional limitations
which lead to that conclusion.” See Poole, 897 F.2d at 894.
The claimant has the burden of proving total disability by
a preponderance of the evidence. See 20 C.F.R. § 725.103;
65 Fed. Reg. 79,920, 79,935 (Dec. 20, 2000) (citing Dir.,
OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).
No. 02-2734 11
Midland first claims that there was insufficient evidence
in the record to support the conclusion that Shores’s pneu-
moconiosis prevents him from working. Shores relied on 20
C.F.R. § 718.204(b)(2)(iv), which allows a claimant to
establish the “total disability” element “if a physician
exercising reasoned medical judgment, based on medically
acceptable clinical and laboratory diagnostic techniques,
concludes that a miner’s respiratory or pulmonary condition
prevents or prevented the miner from engaging in [her
usual coal-mining work or other comparable employment].”
(Emphasis added.) Dr. Cohen, however, provided the
necessary evidence. He both stated his knowledge of the
physical efforts that Shores’s last coal-mining job required
and related those efforts to his diagnosis of Shores’s im-
pairment. This is sufficient to meet the requirements of
§ 718.204(b)(2)(iv). See Cornett v. Benham Coal, Inc., 227
F.3d 569, 577-78 (6th Cir. 2000). Cf. Lane, 105 F.3d at 172.
Midland’s other argument is that Shores cannot show the
requisite “total disability” because his affliction by a variety
of non-respiratory, non-pulmonary ailments— including his
advanced age (83), history of three heart attacks, severe
coronary artery disease, prostate cancer, degenerative joint
disease, and peptic ulcer disease—would now prevent him
from working as a coal miner in any event. Midland points
to several decisions of this court that seem to suggest as
much. See, e.g., Freeman United Coal Mining Co. v. Foster,
30 F.3d 834, 839 (7th Cir. 1994) (claimant disabled by back
injury not entitled to black lung benefits); Peabody Coal Co.
v. Vigna, 22 F.3d 1388, 1394 (7th Cir. 1994) (miner disabled
by stroke not entitled to black lung benefits); Shelton v.
Dir., OWCP, 899 F.2d 690, 693 (7th Cir. 1990) (remanding,
but suggesting that a miner disabled by pulmonary disease
unrelated to coal mining not entitled to black lung benefits);
Wetherill v. Dir., OWCP, 812 F.2d 376, 382-83 (7th Cir.
1987) (miner disabled by heart disease not entitled to black
lung benefits). In rejecting benefits claims or remanding for
12 No. 02-2734
further inquiry, these cases rely on the “contributing cause”
formulation, under which pneumoconiosis must be “neces-
sary, but not sufficient, to bring about the miner’s disabil-
ity.” Vigna, 22 F.3d at 1394; Shelton, 899 F.2d at 693.
Midland also leans heavily on the following dictum from
Meyer v. Zeigler Coal Co., 894 F.2d 902, 908 (7th Cir. 1990):
Eventually, every coal miner, whether [he] suffer[s]
from pneumoconiosis or not, will no longer be able to
engage in the level of coal mining or comparable work
as [he]could when [he was] younger. However, the Act
does not compensate disability due to age, it compen-
sates disability due to pneumoconiosis caused by coal
mining.
Meyer, 894 F.2d at 908.
While snippets of these decisions may seem to support
Midland, in the end they do not control. For one thing, all of
these cases considered benefits claimants prior to the 1997
amendments to § 718.204(a). The new regulations exclude
from the determination of total disability all evidence of
non-pulmonary or non-respiratory conditions:
For purposes of this section, any nonpulmonary or
nonrespiratory condition or disease, which causes an
independent disability unrelated to the miner’s pulmo-
nary or respiratory disability, shall not be considered in
determining whether a miner is totally disabled due to
pneumoconiosis. If, however, a nonpulmonary or
nonrespiratory condition or disease causes a chronic
respiratory or pulmonary impairment, that condition or
disease shall be considered in determining whether the
miner is or was totally disabled due to pneumoconiosis.
20 C.F.R. § 718.204(a). This language plainly excludes
consideration of old age in making the total disability deter-
mination (and thus ensures that mine operators are not
rewarded by dragging out litigation until the miner would
No. 02-2734 13
be too old to perform his prior work in any event, or even
deceased). The D.C. Circuit saw the new regulation as an
explicit rejection of this court’s position, commenting in
National Mining Association that the amendment of
§ 718.204(a) “changes the legal landscape by precluding
adjudicators from considering unrelated medical disa-
bilities, reversing the rule in the Seventh Circuit, and
precluding any other circuit from adopting the Seventh
Circuit’s interpretation.” 292 F.3d at 864.
We are not so sure that the amendment was such
a pointed reaction to our earlier decisions, even though
the commentary accompanying the amendments to
§ 718.204(a) indicated that the changes were designed “to
ensure that the Seventh Circuit’s view will not be applied
outside that circuit to cases arising under part 718.” See 62
Fed. Reg. 3,338, 3,345 (Jan. 22, 1997). More importantly,
that same commentary acknowledged that the claimant in
Vigna proceeded under the now-defunct interim presump-
tion system previously set forth at 20 C.F.R. § 727.203. Id.See also Foster, 30 F.3d at 835 (relying on the interim
presumption established in 20 C.F.R. § 727.203); Wetherill,
812 F.2d at 378-79 (same). Under that system, if a benefits
claimant could establish a presumption of total disability
under the regulations, the mine operator could rebut the
presumption by showing, inter alia, that “the individual is
able to do his usual coal mine work,” 20 C.F.R.
§ 727.203(b)(2), or “the total disability . . . did not arise in
whole or in part out of coal mine employment,” id.§ 727.203(b)(3). From the Department of Labor’s perspec-
tive, it was worth clarifying that the rule this court was
applying to interim presumption cases would not be carried
forward to § 718 cases.
It is true that in Shelton, we considered a claim under
§ 718 and stated that pneumoconiosis must be necessary,
but need not be sufficient, to establish total disability.
899 F.2d at 693. We have no need here to decide whether
14 No. 02-2734
there is any tension between Shelton and the amended
version of § 718.204(a). Most of the cases in this circuit that
adopt the necessary-but-not-sufficient formulation involved
claimants who suffered from totally disabling non-pulmo-
nary, non-respiratory ailments and also claimed affliction
by pneumoconiosis that was either not supported by
medical evidence or that had been declared insufficiently
severe, whether by itself or in combination with the non-
respiratory, non-pulmonary ailments, to render the miner
totally disabled. See Foster, 30 F.3d at 838; Vigna, 22 F.3d
at 1394; Wetherill, 812 F.2d at 382-83. These cases stand at
most for the proposition that non-disabling forms of pneu-
moconiosis cannot form the basis for an award of benefits
where that disease is neither a necessary nor a sufficient
component of the miner’s disability. In Shelton, the court
held that benefits are due when the black lung disease is a
necessary, though not necessarily sufficient, cause of the
miner’s total disability. There was no need to consider
another variation in that opinion—the one in which mining
and something else were each sufficient, but not necessary,
conditions of the total disability. 899 F.2d at 693.
That problem, however, had been addressed in Amax Coal
Co. v. Director, OWCP, 801 F.2d 958 (7th Cir. 1986), where
we recognized that “ ‘[t]he concurrence of two sufficient
disabling medical causes, one within the ambit of the Act,
and the other not, will in no way prevent a miner from
claiming benefits under the Act,’ ” id. at 963 (citing Peabody
Coal Co. v. Dir., OWCP, 778 F.2d 358, 363 (7th Cir. 1985)).
See also Hawkins v. Dir., OWCP, 907 F.2d 697, 704 n.11
(7th Cir. 1990) (noting that the “dual-cause issue” was not
before the court in Shelton and so it did not overrule Amax
or Peabody). Moreover, our decision in Foster explicitly
distinguished these “joint cause” cases, in which a miner
suffers from a totally disabling form of pneumoconiosis and
is also afflicted by other disabling conditions, and cases in
which a miner could work despite his pneumoconiosis but
is otherwise disabled by a condition unrelated to coal dust.
No. 02-2734 15
Foster, 30 F.3d at 838; see also Vigna, 22 F.3d at 1395;
Shelton, 899 F.2d at 693.
In short, one can imagine four different scenarios.
First, in cases in which pneumoconiosis is both necessary
and sufficient to the miner’s disability—that is, where
pneumoconiosis is unaccompanied by any other disabling
condition—a miner who satisfies the other elements of en-
titlement will receive benefits. Second, a miner whose
pneumoconiosis is necessary but not sufficient—perhaps
because her non-disabling pneumoconiosis, when combined
with another condition that is also not by itself disabling,
renders her totally disabled—is also entitled to benefits,
again so long as she can establish the other statutory
elements. Third, a miner whose pneumoconiosis is neither
necessary nor sufficient to her disability—that is, she does
not suffer from pneumoconiosis, or her mild pneumoconiosis
is accompanied by a totally disabling non-respiratory and
non-pulmonary condition—will not receive benefits. Finally,
we have the situation of a miner whose pneumoconiosis is
sufficient, but not necessary, to render her totally disabled.
In such a case, the miner suffers from multiple conditions,
including those related to exposure to coal dust and those
that are not, that are each independently sufficient to
render the miner totally disabled. As we said in Amax, the
sufficiency of the pneumoconiosis is enough, given the
purposes of this Act, to support an award of benefits in this
situation as well.
Shores fits under either scenario 2 or scenario 4, de-
pending on how one chooses to view his other ailments. The
important point, however, is the ALJ’s finding that Shores’s
pneumoconiosis is by itself totally disabling. This is enough
to meet the requirements of § 718.204, even if Shores also
suffers from non-pulmonary and non-respiratory disabilities
that would also be sufficient to render him unable to work.
See Amax Coal, 801 F.2d at 963; Peabody Coal, 778 F.2d at
363. We therefore find that the evidence supports the ALJ’s
16 No. 02-2734
conclusions here.
IV
For the reasons stated above, the Board’s order is EN-
FORCED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-18-04