Energy W. Mining Co. v. Lyle Ex Rel. Lyle

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 9, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ENERGY WEST MINING
COMPANY,
Petitioner,
No. 18-9537
v.
JOANN H. LYLE, on behalf of
JAMES E. LYLE; DEPARTMENT
OF LABOR,
Respondents.
_________________________________
Petition for Review from an Order of the Benefits Review Board
(Benefits No. 13-05233 BLA)
_________________________________
William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for
Petitioner.
Victoria S. Herman (Joseph E. Wolfe, with her on the brief), Norton,
Virginia, for Joann H. Lyle, Respondent.
Edward Waldman, Attorney, Department of Labor (Kate S. O’Scannlain,
Solicitor of Labor; Kevin Lyskwoski, Acting Associate Solicitor; Gary K.
Stearman, Counsel for Appellate Litigation; and Ann Marie Scarpino,
Attorney, Department of Labor, on the brief), Washington, D.C., for
Department of Labor, Respondent.
_________________________________
Before TYMKOVICH, Chief Judge, and BACHARACH and MORITZ,
Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Mr. James Lyle worked as a coal miner for roughly 28 years. After
retiring, he sought benefits under the Black Lung Benefits Act. See 30
U.S.C. § 901 et seq. An administrative law judge concluded that Mr. Lyle
was entitled to benefits, and the U.S. Department of Labor’s Benefits
Review Board affirmed. Energy West has filed a petition for review of the
Board’s decision.
We reject most of Energy West’s arguments but agree with its
challenge to the administrative law judge’s analysis of an opinion by Dr.
Joseph Tomashefski, Jr. In this analysis, the judge discounted Dr.
Tomashefski’s medical opinion for a reason unsupported by the record. We
thus vacate the award of benefits 1 and remand to the Board for
reconsideration of Dr. Tomashefski’s opinion.
I. Because Energy West did not invoke the Appointments Clause in
proceedings before the Benefits Review Board, we lack
jurisdiction to consider the validity of the administrative law
judge’s appointment.
Energy West argues that the administrative law judge lacked
authority to award benefits because he
 was subject to the Constitution’s Appointments Clause and
1
During the pendency of this appeal, Mr. Lyle died, resulting in
substitution of his surviving spouse as the respondent.
2
 was not properly appointed under this clause. 2
But Energy West admittedly did not present this challenge to the Benefits
Review Board.
Energy West contends that the Benefits Review Board couldn’t have
remedied the problem by appointing an administrative law judge. 3 But the
Board could have remedied a violation of the Appointments Clause by
vacating the administrative law judge’s decision and remanding for
reconsideration by a constitutionally appointed officer. See, e.g., Miller v.
Pine Branch Coal Sales, Inc., BRB No. 18-0323 BLA, 2018 WL 8269864(Oct. 22, 2018) (per curiam) (en banc) (granting this relief). Given the
availability of a remedy, Energy West needed to present this challenge to
the Benefits Review Board. Energy West didn’t, precluding our exercise of
jurisdiction over the issue. See Big Horn Coal Co. v. Sadler, 924 F.3d
1317, 1325–26 (10th Cir. 2019) (holding that we lacked jurisdiction to
2
Under this clause, “Officers of the United States” must be appointed
by the President, courts, or department heads. U.S. Const. art II, § 2, cl. 2.
The Supreme Court has held that the SEC’s administrative law judges are
“Officers of the United States” subject to the clause. Lucia v. SEC, 138 S.
Ct. 2044, 2055 (2018).
3
For this argument, Energy West relies on Jones Bros., Inc. v. Sec’y of
Labor, 898 F.3d 669 (6th Cir. 2018), which addressed a provision specific
to the Federal Mine Safety and Health Amendments Act of 1977, Pub. L.
No. 95-164, 91 Stat. 1290. Our case does not concern that statute.
3
consider an argument that the petitioner had not presented to the Benefits
Review Board); McConnell v. Dir., Office of Workers’ Comp. Programs,
U.S. Dep’t of Labor, 993 F.2d 1454, 1460 n.8 (10th Cir. 1993) (concluding
that the petitioner’s “failure to raise [an] argument with the [Benefits
Review] Board ‘constitutes failure to exhaust administrative remedies and
deprives the Court of Appeals of jurisdiction to hear the matter’” (quoting
Rivera-Zurita v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991))). 4
II. We reverse the administrative law judge’s award of benefits
based on an error in discounting Dr. Tomashefski’s opinion.
The administrative law judge concluded that Mr. Lyle was entitled to
benefits under the Black Lung Benefits Act. Energy West challenges this
conclusion, arguing in part that the judge erroneously discounted Dr.
Tomashefski’s opinion on legal pneumoconiosis. We agree with this part of
Energy West’s argument but reject its other arguments.
A. We engage in limited review of the agency’s determination.
The Black Lung Benefits Act permits judicial review to determine
whether
 the legal conclusions of the agency are rational and consistent
with the law and
4
In Big Horn, we observed that “[t]here may be some question about
the long-term viability of McConnell describing the exhaustion
requirement as jurisdictional in light of subsequent Supreme Court
authority.” 924 F.3d at 1325. But we added that McConnell remains
binding precedent. Id. at 1326.
4
 substantial evidence supports the agency’s factual findings.
Spring Creek Coal Co. v. McLean, 881 F.3d 1211, 1217 (10th Cir. 2018).
We engage in de novo review of the administrative law judge’s legal
conclusions and consider whether substantial evidentiary support exists for
his factual findings. Id.Evidence is substantial if a reasonable person might view it “as
adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. N.L.R.B.,
305 U.S. 197, 229 (1938). We do not reweigh the evidence; we instead ask
whether the administrative law judge’s determination is supported by
substantial evidence. Antelope Coal Co./Rio Tinto Energy Am. v. Goodin,
743 F.3d 1331, 1341 (10th Cir. 2014). The task of evaluating medical
evidence lies solely with the administrative law judge, who is ideally
positioned to assess credibility and balance conflicting evidence.
Rockwood Cas. Ins. Co. v. Dir., Off. of Workers’ Comp. Programs, U.S.
Dep’t of Labor, 917 F.3d 1198, 1214 (10th Cir. 2019).
B. If a miner worked in a coal mine for at least fifteen years
and becomes disabled from a respiratory or pulmonary
impairment, a rebuttable presumption would support an
award of benefits.
The Black Lung Benefits Act provides benefits to coal miners who
become disabled from pneumoconiosis (commonly known as black-lung
disease) arising from coal-mine employment. Goodin, 743 F.3d at 1335. To
be eligible for benefits, a miner must establish four elements:
5
1. Disease: The miner suffers from pneumoconiosis.
2. Disease causation: The pneumoconiosis arose out of coal-
mine employment.
3. Disability: The miner is totally disabled because of a
respiratory or pulmonary impairment.
4. Disability causation: The pneumoconiosis substantially
contributes to the miner’s total disability.
Energy West Mining Co. v. Estate of Blackburn, 857 F.3d 817, 821 (10th
Cir. 2017).
But if a miner has worked in a coal mine for at least fifteen years and
establishes the disability element, we would presume satisfaction of the
remaining three elements. Id. at 822; see 30 U.S.C. § 921(c)(4); 20 C.F.R.
§ 718.305(b)–(c). The burden would then shift to the employer to rebut the
presumption on at least one of the three remaining elements. Estate of
Blackburn, 857 F.3d at 822; see 30 U.S.C. § 921(c)(4); 20 C.F.R.
§ 718.305(d).
Applying this burden-shifting framework, the administrative law
judge concluded that
 the presumption applied because Mr. Lyle had worked in a coal
mine for at least fifteen years and had established the disability
element and
 Energy West had not rebutted the presumption.
6
Energy West concedes that Mr. Lyle worked in a coal mine for at
least fifteen years. But Energy West challenges the evidentiary support for
the administrative law judge’s findings regarding
 a total disability from a respiratory or pulmonary impairment
and
 a failure to rebut the presumption of legal pneumoconiosis.
C. The disability element: Substantial evidence supports the
administrative law judge’s finding of a total disability from
a respiratory or pulmonary impairment.
To establish the disability element, a coal miner must prove a total
disability from a respiratory or pulmonary impairment. Energy West
Mining Co. v. Estate of Blackburn, 857 F.3d 817, 821 (10th Cir. 2017).
Miners are considered “totally disabled” if the pulmonary or respiratory
impairment prevents them from performing
 their customary coal-mine work and
 other jobs in the community that require skills resembling those
used in the prior coal-mine work.
20 C.F.R. § 718.204(b)(1).
“In the absence of contrary probative evidence,” certain types of
evidence “shall” establish the disability element. 20 C.F.R.
§ 718.204(b)(2). Such evidence includes
 arterial blood-gas studies and
7
 medical-opinion evidence regarding the impact of a pulmonary
or respiratory impairment on a miner’s employment. 5
20 C.F.R. § 718.204(b)(2)(ii), (iv).
Arterial blood-gas studies gauge the lungs’ ability to oxygenate the
blood. Rockwood Cas. Ins. Co. v. Dir., Off. of Workers’ Comp. Programs,
U.S. Dep’t of Labor, 917 F.3d 1198, 1209 (10th Cir. 2019). For an arterial
blood-gas study to establish the disability element, the results must show
that the blood’s oxygen-pressure level dipped below the regulatory
threshold. See 20 C.F.R. pt. 718, App. C.
The regulatory threshold varies based on
 the altitude where the study is conducted and
 the carbon-dioxide pressure level of the miner’s blood.
See id. For example, if the study is conducted between 3,000 and 5,999
feet above sea level, a miner with a carbon-dioxide pressure level of 26
should have an oxygen-pressure level exceeding 69; if the oxygen-pressure
level of the miner’s blood is 69 or below, the oxygen-pressure level would
be considered too low, indicating a “total disability.” Id.5
Evidence establishing the disability element also includes
 pulmonary function tests and
 medical evidence of cor pulmonale with right-sided congestive
heart failure.
20 C.F.R. § 718.204(b)(2)(i), (iii).
8
If an arterial blood-gas study yields qualifying values, the
administrative law judge must find a total disability “in the absence of
rebutting evidence.” Id.; see Regulations Implementing the Byrd
Amendments to the Black Lung Benefits Act: Determining Coal Miners’
and Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19456, 19464 (Mar.
30, 2012) (“A test that produces ‘qualifying’ values is deemed, in the
absence of contrary evidence, indicative of a totally disabling respiratory
or pulmonary impairment.”).
Applying the regulatory thresholds, the administrative law judge
concluded that Mr. Lyle had established the disability element based on
 arterial blood-gas studies in 2011 and 2012 and
 a written report by Dr. Shane Gagon after examining Mr. Lyle.
As the judge explained, the arterial blood-gas studies in 2011 and 2012
showed qualifying values under the applicable regulations. In his report,
Dr. Gagon opined that
 Mr. Lyle had a mild-to-moderate respiratory or pulmonary
impairment and
 chronic bronchitis was the primary contributor to Mr. Lyle’s
impairment. 6
6
In his report, Dr. Gagon also opined that the impairment had caused
abnormal blood-gas levels and shortness of breath when Mr. Lyle walked
less than half a mile.
9
In arriving at these opinions, Dr. Gagon relied partly on the 2011 arterial
blood-gas study. According to Dr. Gagon, this study showed “abnormal
blood gases.” Joint App’x at 12.
Energy West argues that the administrative law judge
 erroneously discounted three medical opinions stating that Mr.
Lyle’s level of oxygen pressure was normal,
 mistakenly credited Dr. Gagon’s written report over his
deposition testimony,
 failed to weigh the significance of a third arterial blood-gas
study, and
 erroneously discounted Dr. Robert Farney’s opinion as to a
total disability. 7
7
In addition, Energy West argues that the administrative law judge
erred in discounting Dr. Tomashefski’s opinion on total disability. But this
argument is not adequately developed. Energy West’s discussion of Dr.
Tomashefski’s opinion focuses mostly on his opinion involving legal
pneumoconiosis (rather than total disability). For example, Energy West
does not discuss the administrative law judge’s reasons for discounting Dr.
Tomashefski’s opinion as to the presence of a total disability. We thus
decline to consider the administrative law judge’s assessment of this
opinion.
Energy West also argues that the Benefits Review Board erroneously
added to the administrative law judge’s justification for discounting Dr.
Tomashefski’s opinion as to a total disability. This argument does not
support reversal. Our question is whether substantial evidence exists for
the administrative law judge’s decision, and evidence presented to the
administrative law judge was either substantial or it wasn’t. Our evaluation
of that evidence is unaffected by the Benefits Review Board’s additional
justifications for the administrative law judge’s decision. See Energy West
Mining Co. v. Estate of Blackburn, 857 F.3d 817, 822 (10th Cir. 2017)
(noting that we review decisions of the Benefits Review Board de novo and
focus on the administrative law judge’s evaluation of the evidence).
10
We reject these arguments.
Following the applicable regulations over contrary medical opinions.
At his deposition, Dr. Gagon testified that the 2011 arterial blood-gas
study had yielded normal results. Similarly, Dr. Farney testified at his
deposition that the 2012 arterial blood-gas study had shown “blood gases”
within “normal limits.” Id. at 185. And Dr. Tomashefski opined in a
written report that the 2011 and 2012 arterial blood-gas studies had shown
oxygen pressure “in the low normal range” given the altitudes at the test
sites. Id. at 100.
The administrative law judge rejected the doctors’ opinions because
the arterial blood-gas studies had shown that Mr. Lyle’s oxygen-pressure
level was too low under the applicable regulations. Energy West contends
that the judge erred in rejecting the doctors’ opinions. We disagree.
An agency must follow its own regulations. Cherokee Nation of Okla.
v. Norton, 389 F.3d 1074, 1087 (10th Cir. 2004). The administrative law
judge thus rejected inadequately supported medical opinions that conflicted
with these regulations. See Rockwood Cas. Ins. Co. v. Dir., Off. of
Workers’ Comp. Programs, U.S. Dep’t of Labor, 917 F.3d 1198, 1218–19
(10th Cir. 2019) (upholding the administrative law judge’s decision to
follow the applicable regulations over contrary medical testimony).
Energy West contends that the administrative law judge should have
discounted the results under the regulations in light of the contrary
11
opinions presented by Drs. Farney, Tomashefski, and Gagon. But the judge
determined that these opinions were entitled to little probative weight, and
this assessment was reasonable. Neither Dr. Gagon nor Dr. Tomashefski
explained how he had assessed a normal oxygen-pressure level for Mr.
Lyle. Dr. Farney was different, for he stated that he had relied on research
by his colleagues. But Energy West did not submit this research to the
agency or to us. 8 And none of the three doctors explained why they had
deviated from the applicable regulations.
Crediting Dr. Gagon’s written report and rejecting his deposition
testimony. In his written report, Dr. Gagon opined that Mr. Lyle had a
mild-to-moderate respiratory or pulmonary impairment primarily because
of chronic bronchitis. See p. 9, above. But Dr. Gagon testified differently
at his deposition, stating that Mr. Lyle had no pulmonary impairment that
prevented a return to his most recent coal-mine work.
The administrative law judge credited Dr. Gagon’s written report
over his deposition testimony. Energy West contends that the
administrative law judge failed to explain why he had credited the written
report over the deposition testimony. We disagree.
8
At oral argument, Energy West pointed to a document that allegedly
cites the research. The citation, however, is not self-explanatory and does
not substitute for the research itself.
12
In relying on the written report, the administrative law judge noted
that Dr. Gagon had
 examined Mr. Lyle before producing the report and
 relied on “objective medical evidence” for his “examination
findings.”
Joint App’x at 293. In considering the deposition testimony, the
administrative law judge stated that Dr. Gagon had
 “contradicted” his own report without any explanation and
 stated that the 2011 arterial blood-gas study had shown a
normal oxygen-pressure level even though that level had fallen
below the regulatory thresholds.
Id. With these statements, the administrative law judge adequately
explained his decision to credit Dr. Gagon’s written report over his
contrary deposition testimony.
Failure to weigh a third arterial blood-gas study. Energy West
argues that the administrative law judge failed to weigh a third arterial
blood-gas study. 9 But Energy West concedes that it failed to present this
argument to the Benefits Review Board. Energy West thus forfeited this
argument, precluding our exercise of jurisdiction over this argument. See
Part I, above.
9
In a footnote, the administrative law judge mentioned the results of
the third study.
13
Discounting Dr. Farney’s opinion as to a total disability. Dr. Farney
opined that Mr. Lyle was not totally disabled from a respiratory
impairment, and the administrative law judge rejected this opinion. Energy
West challenges this part of the decision. But Energy West did not present
this challenge to the Benefits Review Board. We thus lack jurisdiction to
consider the argument. See Part I, above.
* * *
The administrative law judge found that Mr. Lyle was totally
disabled from a respiratory or pulmonary impairment. In making this
finding, the administrative law judge considered all of the evidence and
explained his conclusion. This explanation is supported by substantial
evidence, so we uphold the judge’s finding of a total disability from a
respiratory or pulmonary impairment.
D. The disease element: When deciding whether Energy West
had rebutted the presumption on the disease element, the
administrative law judge erroneously discounted Dr.
Tomashefski’s opinion because of a perceived lack of
explanation.
Because Mr. Lyle had established the disability element and worked
in a coal mine for at least fifteen years, the administrative law judge
presumed satisfaction of the three remaining elements for black-lung
benefits (disease, disease causation, and disability causation). Energy West
Mining Co. v. Estate of Blackburn, 857 F.3d 817, 822 (10th Cir. 2017); see
30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)–(c). The burden then shifted
14
to Energy West to rebut the presumption on at least one of the three
remaining elements. See Estate of Blackburn, 857 F.3d at 822; 30 U.S.C.
§ 921(c)(4); 20 C.F.R. § 718.305(d). On appeal, Energy West focuses on
the disease element.
To rebut the presumption on the disease element, an employer must
show that a miner does not suffer from pneumoconiosis. See Estate of
Blackburn, 857 F.3d at 821. The pneumoconiosis may be either “clinical”
or “legal.” 20 C.F.R. § 718.201(a).
This case involves legal pneumoconiosis, 10 which encompasses “any
chronic lung disease or impairment and its sequelae arising out of coal
mine employment.” Id. § 718.201(a)(2). Diseases “arising out of coal mine
employment” include “any chronic pulmonary disease or respiratory or
pulmonary impairment significantly related to, or substantially aggravated
by, dust exposure in coal mine employment.” Id. § 718.201(b).
Given this definition, Drs. Farney and Tomashefski opined that Mr.
Lyle did not have legal pneumoconiosis. The administrative law judge
regarded the probative value of these opinions as minimal to none. 11
10
The administrative law judge concluded that Energy West had
rebutted the presumption of clinical pneumoconiosis. None of the parties
has questioned this conclusion.
11
When discussing Dr. Tomashefski’s opinion on legal
pneumoconiosis, the administrative law judge referred once to the doctor’s
15
Energy West argues that the administrative law judge erred in
discounting the opinions of Drs. Farney and Tomashefski. 12 We disagree
with Energy West’s argument as to Dr. Farney and agree as to Dr.
Tomashefski.
Dr. Farney’s opinion on legal pneumoconiosis. The administrative
law judge concluded that Dr. Farney’s opinion on legal pneumoconiosis
had no probative value. 13 For this conclusion, the administrative law judge
gave four reasons:
1. Internal inconsistency: In his written report, Dr. Farney agreed
with Dr. Fernando Rodriguez’s assessment of a CT scan. Dr.
Rodriguez had opined that this CT scan showed signs of
obstructive pulmonary disease. But Dr. Farney opined that he
could not diagnose Mr. Lyle with emphysema because of a lack
of evidence involving obstructive pulmonary disease.
2. Misunderstanding of Mr. Lyle’s actual work: Dr. Farney based
his opinion partly on a belief that Mr. Lyle had worked in
conclusion on clinical pneumoconiosis. The reference to clinical
pneumoconiosis was apparently a mistake.
12
Energy West also argues that the administrative law judge erred in
discounting Dr. Farney’s opinion on clinical pneumoconiosis. But the
administrative law judge concluded that Energy West had rebutted the
presumption of clinical pneumoconiosis, and no party has challenged this
conclusion. See note 10, above. Thus, even if we were to conclude that the
administrative law judge had erred in discounting Dr. Farney’s opinion on
clinical pneumoconiosis, the error would have been harmless. See
Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013, 1021 (10th Cir. 2010).
13
The administrative law judge had earlier stated that Dr. Farney’s
opinion on legal pneumoconiosis was entitled to “minimal probative
value.” Joint App’x at 301. Ultimately, however, the administrative law
judge gave no weight to the opinion.
16
mines primarily when coal was not being extracted. But Mr.
Lyle had spent 23 of his 28 years working in mines while coal
was being extracted.
3. Infrequency of coal workers’ pneumoconiosis in the western
states: Dr. Farney based his opinion in part on a belief that coal
workers’ pneumoconiosis is relatively infrequent in the western
United States. 14 But data on the general prevalence of coal
workers’ pneumoconiosis did not explain whether Mr. Lyle was
among the small group of western miners affected by exposure
to coal dust.
4. Failure to explain the preclusive effect of a diagnosis of usual
interstitial pneumonia: At his deposition, Dr. Farney testified
that he had not diagnosed pneumoconiosis because he believed
that Mr. Lyle’s symptoms were consistent with usual interstitial
pneumonia, which is not caused by exposure to coal dust. But
Dr. Farney did not explain why a diagnosis of usual interstitial
pneumonia precluded a diagnosis of legal pneumoconiosis.
Energy West challenges the administrative law judge’s first three
reasons for discounting Dr. Farney’s opinion on legal pneumoconiosis. 15
We reject these challenges.
First, Energy West argues that Dr. Farney’s deposition testimony
explained his reasoning concerning obstructive lung disease. But when Dr.
Farney testified about the CT scan, he relied on Dr. Christopher Meyer’s
interpretation (rather than Dr. Rodriguez’s). So Dr. Farney never explained
the discrepancy between his opinions that
14
Coal workers’ pneumoconiosis is a type of clinical pneumoconiosis.
20 C.F.R. § 718.201(a)(1).
15
Energy West does not challenge the fourth reason on appeal and
didn’t do so in its appeal to the Benefits Review Board.
17
 Mr. Lyle didn’t have obstructive pulmonary disease and
 the CT scan showed air trapping consistent with obstructive
pulmonary disease.
Second, Energy West argues that the administrative law judge failed
to consider the relevance of Mr. Lyle’s history of working when coal
wasn’t being extracted. The judge did not conclude that this history was
irrelevant; rather, he concluded that (1) Dr. Farney had misunderstood Mr.
Lyle’s employment history and (2) this misunderstanding had undercut Dr.
Farney’s opinion.
Energy West argues that Dr. Farney knew that Mr. Lyle (1) had
worked as a coal miner for nearly three decades and (2) had worked most
recently as a belt installer. For the sake of argument, let’s assume that
Energy West is correct. Even with this knowledge, Dr. Farney appears to
have mistakenly thought that Mr. Lyle spent most of his mining career
working when the coal was not being extracted. 16
16
Dr. Farney stated:
His total years of work in the coal industry was almost 30 years,
all of which was spent underground at or near the face. Based
upon this duration he would appear to have a substantial risk for
developing pulmonary disease related to coal dust exposure.
However, his job was consistently performed during the “down
shift” from 11:00 PM until 9:00 AM at which time coal
extraction was not being performed. His duties involved repair
and maintenance of equipment which may have created some
dust exposure but this would be considerably less than during
active mining.
18
Lastly, Energy West argues that the administrative law judge erred
by discounting Dr. Farney’s opinion based on his reliance on the
prevalence of coal workers’ pneumoconiosis in the western United States.
In discounting this opinion, the administrative law judge relied on
Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331 (10th
Cir. 2014). Energy West argues that this reliance was misguided. We
disagree. Goodin is relevant and supports the administrative law judge’s
decision to discount Dr. Farney’s opinion.
In Goodin, another administrative law judge discounted an opinion
by Dr. Farney, reasoning that he had relied on “statistical probabilities”
without explaining why a specific miner didn’t suffer from legal
pneumoconiosis. Goodin, 743 F.3d at 1345–46. We upheld the
administrative law judge’s reasoning for his decision to discount Dr.
Farney’s opinion. See id. at 1346.
Our discussion in Goodin applies here. Dr. Farney has again relied on
statistical probabilities. Under Goodin, the administrative law judge could
reasonably fault Dr. Farney for failing to explain why Mr. Lyle wasn’t
among the miners in the western United States suffering legal
pneumoconiosis from exposure to coal dust.
Joint App’x at 27. But the administrative law judge found that for 23 years,
Mr. Lyle had worked “during actual coal mine extraction.” Id. at 302.
19
Dr. Tomashefski’s opinion on legal pneumoconiosis. The
administrative law judge concluded that Dr. Tomashefski’s opinion was
entitled to “no probative value.” Joint App’x at 303. Dr. Tomashefski
acknowledged that Mr. Lyle suffered from constrictive bronchiolitis and
interstitial fibrosis, but opined that these diseases were unconnected to Mr.
Lyle’s decades of coal-dust exposure. According to the administrative law
judge, Dr. Tomashefski failed to explain why those diseases were unrelated
to coal-dust exposure.
At his deposition, however, Dr. Tomashefski was asked why he
believed that coal-dust exposure hadn’t caused Mr. Lyle’s constrictive
bronchiolitis and interstitial fibrosis. Dr. Tomashefski answered:
Well, let’s start with the constrictive bronchiolitis. In the
first place, coal dust, when it affects the small airways, produces
what I refer to as a coal macule, not constrictive bronchiolitis.
The changes of constrictive bronchiolitis are much different
from the coal macule, and furthermore, there was no histologic
evidence of dust deposition in those airways that were
constricted.
And then if we move to the interstitial fibrosis, it’s the
same thing, that the pattern of interstitial fibrosis did not qualify
as pneumoconiosis, and although coal mine dust can cause
interstitial fibrosis, to make that diagnosis, you need to see
deposition of pigment and mineral particles significantly present
in the areas of interstitial fibrosis. That was not seen here.
Id. at 151.
In finding that Dr. Tomashefski had not explained his conclusion that
the diseases were unrelated to coal-dust exposure, the administrative law
20
judge apparently overlooked this deposition testimony. In this excerpt, Dr.
Tomashefski explained why he believed that exposure to coal dust hadn’t
contributed to Mr. Lyle’s chronic bronchiolitis or interstitial fibrosis. The
judge might have had reasons to disagree, but he couldn’t simply deny the
existence of any explanation. See Peabody Coal Co. v. Helms, 859 F.2d
486, 490–91 (7th Cir. 1988) (reversing because the administrative law
judge erroneously regarded a physician’s opinion on causation as
equivocal); see also Hamlin v. Barnhart, 365 F.3d 1208, 1218–20 (10th
Cir. 2004) (reversing the denial of Social Security benefits because the
administrative law judge had erroneously regarded a physician’s opinion as
conclusory). By relying solely on the lack of any explanation, the
administrative law judge erred.
* * *
The administrative law judge discounted Dr. Tomashefski’s opinion
on legal pneumoconiosis for failing to explain why he had concluded that
coal-dust exposure had not caused Mr. Lyle’s respiratory or pulmonary
disease. But Dr. Tomashefski did explain this opinion. Because the judge’s
explanation is unsupported, we grant Energy West’s petition for review,
vacate the administrative law judge’s award of benefits, and remand the
21
matter to the Benefits Review Board to reconsider Dr. Tomashefski’s
opinion on the cause of legal pneumoconiosis. 17
17
On remand, the Board has discretion to remand to an administrative
law judge to reconsider Dr. Tomashefski’s opinion.
22