Consolidation Coal Co v. Director OWCP

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2067
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CONSOLIDATION COAL COMPANY,
Petitioner
v.
DIRECTOR OFFICE OF WORKERS COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR;
FRANCES FUNKA, on behalf of and as survivor of
JOHN FUNKA,
Respondents
______________
On Petition for Review of a Decision and
Order of the Benefits Review Board
(BRB No. 16-0184 BLA)
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2018
Before: JORDAN, ROTH, Circuit Judges and MARIANI*, District Judge
(Filed: July 12, 2018)
_______________
OPINION
_______________
*
Honorable Robert D. Mariani, United States District Court Judge for the Middle
District of Pennsylvania, sitting by designation.

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MARIANI, District Judge
Consolidation Coal Company (“Consolidation”) petitions for review of a decision
of the United States Department of Labor Benefits Review Board (“BRB”), affirming an
award of disability benefits to a deceased miner, John Funka, and an award of survivor’s
benefits to Mr. Funka’s widow, Frances Funka, under the Black Lung Benefits Act
(“BLBA”), 30 U.S.C. §§ 901-944. For the reasons discussed below, we will deny
Consolidation’s Petition for Review.
I. Background
John Funka worked underground in coal mines for at least forty years. Mr. Funka
spent the first twenty years of his career as a maintenance supervisor and section
mechanic for Matthews Coal Company, now owned by Consolidation, before becoming a
deep mine electrical inspector for the Office of Deep Mine Safety. Prior to retiring on
December 13, 1991, Mr. Funka began experienced breathing difficulties. The problem
steadily worsened and, by 1993, Mr. Funka was receiving medical treatment to address
his breathing.
On June 5, 2003, Mr. Funka filed a claim for benefits under the BLBA. After the
district director proposed awarding benefits, Consolidation requested a formal hearing.
On September 23, 2005, after conducting a formal hearing, Administrative Law Judge
(“ALJ”) Michael Lesniak issued a Decision and Order denying benefits. Mr. Funka
appealed ALJ Lesniak’s decision to the BRB. On December 11, 2005, before the BRB
issued a decision on his appeal, Mr. Funka died. Mrs. Funka then filed a survivor’s claim
on August 7, 2006.
2
In a Decision and Order issued on November 15, 2006, the BRB affirmed in part,
vacated in part, and remanded the matter. On remand, Mr. Funka’s claim was
consolidated with Mrs. Funka’s claim and ALJ Lesniak remanded both claims to the
district director to reopen the evidentiary record and consider, among other things, the
autopsy evidence and death certificate. The district director proposed awarding benefits
on both claims and Consolidation timely requested a formal hearing. The case was
reassigned to ALJ Ralph Romano, who held a formal hearing and issued a Decision and
Order awarding benefits on March 4, 2008. Consolidation appealed the decision to the
BRB and, on March 26, 2009, the BRB vacated the award of benefits and remanded the
matter for further consideration.
In a Decision and Order issued on December 20, 2011, ALJ Romano once again
awarded benefits on both the miner’s claim and the survivor’s claim. Consolidation
appealed. During the proceedings before the BRB, Mrs. Funka raised the issue of
whether Consolidation improperly exceeded the evidentiary limitations found in 20
C.F.R. § 725.414 by submitting three medical opinions. On January 30, 2013, the BRB
affirmed in part, vacated in part, and remanded. As part of its order, the BRB directed
the ALJ to evaluate whether a report authored by Dr. Oesterling constituted rebuttal
autopsy evidence pursuant to 20 C.F.R. § 725.414.
On remand, the matter was reassigned to ALJ Theresa Timlin. ALJ Timlin
directed the parties to submit “an evidence summary form designating evidence in the
living miner’s claim and a separate evidence summary form designating evidence in the
survivor’s claim.” (App. at 79.) Over Consolidation’s objections, ALJ Timlin issued an
3
order on November 12, 2015, identifying what evidence would be considered in
connection with the pending claims.
On December 10, 2015, ALJ Timlin issued a Decision and Order awarding
benefits on both the miner’s claim and the survivor’s claim. Noting that no regulatory
presumption of pneumoconiosis applied to Mr. Funka’s claim1 and that the BRB had
already affirmed ALJ Romano’s finding that pneumoconiosis was not established through
X-ray evidence, ALJ Timlin evaluated the autopsy evidence. After reviewing the autopsy
report of Dr. James Holimon and Dr. Everett Oesterling, ALJ Timlin credited Dr.
Oesterling’s opinion that the autopsy did not reveal pneumoconiosis. Turning to the
physician opinion evidence, ALJ Timlin outlined the findings of the three doctors who
submitted medical reports: Dr. Joseph Tomashefski, Dr. Gregory Fino, and Dr. Francis
Green.
Dr. Tomashefski, who is board-certified in anatomic and clinical pathology,
reviewed twenty of Mr. Funka’s autopsy slides and Mr. Funka’s medical records. Dr.
Tomashefski concluded that Mr. Funka died as a result of diffuse end state interstitial
1
Twenty C.F.R. § 718.305 creates a regulatory presumption that a miner has
pneumoconiosis if certain criteria are met. This presumption, however, applies only to
claims filed after January 1, 2005. 20 C.F.R. § 718.305(a). As ALJ Timlin correctly
concluded, Mr. Funka was not entitled to the § 718.305 presumption because Mr. Funka
filed his claim on June 5, 2003. Further, although this presumption did apply to Mrs.
Funka’s claim, which was filed on August 7, 2006, ALJ Timlin never analyzed the merits
of the survivor’s claim. Instead, after awarding benefits on Mr. Funka claim, ALJ Timlin
automatically awarded benefits on Mrs. Funka’s claim. See 30 U.S.C. § 932(l) (“In no
case shall the eligible survivors of a miner who was determined to be eligible to receive
benefits under this subchapter at the time of his or her death be required to file a new
claim for benefits, or refile or otherwise revalidate the claim of such miner.”).
4
fibrosis. The doctor opined that Mr. Funka did not have coal workers’ pneumoconiosis
based upon the lack of coal macules and micronodules. Dr. Tomashefski also noted
minimal black pigment in the slides of Mr. Funka’s lungs and observed that the
pigmentation was consistent with the amount one would expect to find in the lungs of
someone who had never worked in coal mines. Ultimately, Dr. Tomashefski diagnosed
Mr. Funka with idiopathic pulmonary fibrosis. Dr. Tomashefski cited to several articles
to support his conclusion, including articles authored by Dr. Green. At his deposition,
Dr. Tomashefski testified that several rationales supported his diagnosis, including that
(1) Mr. Funka’s pulmonary function decreased more rapidly between 2003 and 2005 than
would be expected in a retired coal miner, (2) the honeycombing in Mr. Funka’s lungs
was inconsistent with coal mine dust exposure, and (3) the regional variability of fibrosis
in Mr. Funka’s lungs was inconsistent with pneumoconiosis.
Dr. Fino, who is board-certified in internal medicine and pulmonary medicine,
offered his opinion based on a review of Mr. Funka’s medical records and two pathology
reports. Dr. Fino also diagnosed Mr. Funka with idiopathic pulmonary fibrosis because
Mr. Funka had diffuse interstitial pulmonary fibrosis and Dr. Fino’s review of the
medical literature found no support for a link between this type of fibrosis and coal dust
inhalation. Dr. Fino noted that in the few studies that connect pulmonary fibrosis to
pneumoconiosis, the fibrosis was heavily pigmented. Thus, because Dr. Fino found
minimal anthracotic pigment, he opined that coal mine dust did not cause Mr. Funka’s
disability or death. Dr. Fino supported his conclusion with citation to the medical
literature including a book and article authored by Dr. Green. At his deposition, Dr. Fino
5
also noted that Mr. Funka’s disease progressed rapidly, unlike what would be expected
with pulmonary fibrosis induced by coal dust exposure. Dr. Fino also noted the presence
of honeycombing in Mr. Funka’s lungs and testified that coal mine dust does not cause
honeycombing.
Dr. Green, who is board-certified in anatomic pathology, offered an opinion based
upon his review of Mr. Funka’s autopsy slides and medical records. Dr. Green described
fibrosis that had been present for many years and showed some, but minimal,
pigmentation. He opined that the lack of pigmentation was likely due to Mr. Funka’s
lungs clearing the coal mine dust. The doctor noted the presence of coal dust macules
and micronodules in parts of the lungs and rounded opacities in the upper lung consistent
with pneumoconiosis. Dr. Green diagnosed minimally severe simple coal worker
pneumoconiosis and opined that pneumoconiosis was the direct cause of Mr. Funka’s
death. Based upon the advanced state of the interstitial fibrosis in 2003, Dr. Green
estimated a “conservative” onset date of 1998. (App. at 102.) The doctor noted that
idiopathic pulmonary fibrosis is rare in the general population. Citing to the medical
literature, Dr. Green provided three reasons why idiopathic pulmonary fibrosis was an
improper diagnosis: (1) several experts have determined that idiopathic pulmonary
fibrosis is an inappropriate diagnosis for those who have a history of fibrogenic dust
exposure; (2) Mr. Funka lived significantly longer than would be typical for someone
diagnosed with idiopathic pulmonary fibrosis; and (3) recent studies have indicated that
idiopathic pulmonary fibrosis is usually due to dust and fume exposure. At his
deposition, Dr. Green explained that coal mine induced fibrosis and idiopathic pulmonary
6
fibrosis are clinically indistinguishable. That is, doctors cannot distinguish the two
conditions “radiologically or by pulmonary function testing.” (App. at 397.) According
to Dr. Green, the only notable difference is that a longer survival rate is associated with
coal mine induced fibrosis.
ALJ Timlin found that “Dr. Green’s opinion on legal and clinical pneumoconiosis
merits significant probative weight because it is well reasoned and well documented.”
(App. at 105.) The ALJ afforded less weight to the opinions of Dr. Tomashefski and Dr.
Fino, finding that both doctors’ opinions were contrary to the BLBA’s regulations and
ignored the possibility of legal pneumoconiosis. Thus, based on Dr. Green’s opinion,
ALJ Timlin concluded that Mr. Funka suffered from pneumoconiosis. Next, finding that
Mr. Funka’s years of coal mine employment entitled him to a regulatory presumption that
his pneumoconiosis arose out of his coal mine employment,2 the ALJ concluded that
Consolidation failed to rebut this presumption. Finally, the ALJ concluded that Mr.
Funka was totally disabled due to pneumoconiosis caused pulmonary fibrosis. Having
made these findings, ALJ Timlin awarded benefits both on Mr. Funka’s claim and Mrs.
Funka’s survival claim.
2
This regulatory presumption, found in 20 C.F.R. § 718.203(b), should not be
confused with the § 718.305 regulatory presumption discussed above. Section 718.305
concerns a rebuttable presumption that miners who meet certain criteria have established
that they have pneumoconiosis. Section 718.203(b), in contrast, provides that once a
miner establishes that he or she has pneumoconiosis, there is “a rebuttable presumption
that the pneumoconiosis arose out of” coal mine employment if the miner “was employed
for ten years or more in one or more coal mine.”
7
Consolidation appealed the ALJ’s decision to the BRB. The BRB affirmed the
award of benefits on March 15, 2017, finding that the ALJ did not abuse her discretion in
ordering the evidence re-designated and that she did not err in weighing the respective
medical opinions. Consolidation then petitioned for review by this Court.
II. Standard of Review
We have jurisdiction under 30 U.S.C. § 932(a), which incorporates the review
procedures of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §
921(c), in pneumoconiosis cases involving coal miners. See Labelle Processing Co. v.
Swarrow, 72 F.3d 308, 310 (3d Cir. 1995). “We review the [BRB]’s decision to
determine whether it committed an error of law and whether it adhered to its scope of
review. In performing the latter function, we must independently review the record and
decide whether the ALJ’s findings are supported by substantial evidence.” Wensel v.
Dir., Office of Workers’ Comp. Programs, 888 F.2d 14, 16 (3d Cir. 1989) (quotation
marks omitted). “Substantial evidence has been defined as ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Hill v. Dir., Office
of Workers’ Comp. Programs, 562 F.3d 264, 268 (3d Cir. 2009) (quoting Mancia v. Dir.,
Office of Workers’ Comp. Programs, 130 F.3d 579, 584 (3d Cir. 1997)). “The [BRB]’s
decisions on matters of law are subject to plenary review.” Marmon Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 726 F.3d 387, 391 (3d Cir. 2013).
III. Discussion
“Benefits are provided under the [BLBA] for or on behalf of miners who are
totally disabled due to pneumoconiosis, or who were totally disabled due to
8
pneumoconiosis at the time of death.” 20 C.F.R. § 718.204(a). “[A] miner shall be
considered totally disabled if the miner has a pulmonary or respiratory impairment which,
standing alone,” meets certain regulatory criteria. 20 C.F.R. § 718.204(b)(1). “A miner
shall be considered totally disabled due to pneumoconiosis if pneumoconiosis . . . is a
substantially contributing cause of the miner’s totally disabling respiratory or pulmonary
impairment.” 20 C.F.R. § 718.204(c)(1). An eligible survivor is automatically entitled to
benefits if the miner was eligible for benefits at the time of the miner’s death. 30 U.S.C.
§ 932(l). Here, there is no dispute that Mr. Funka was totally disabled from a pulmonary
impairment. Instead, the dispute centers on whether Mr. Funka had pneumoconiosis and
whether his disability was due to pneumoconiosis.
The regulations enacted pursuant to the BLBA define pneumoconiosis as “a
chronic dust disease of the lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a). The
regulations recognize both “Clinical Pneumoconiosis,” defined as “those diseases
recognized by the medical community as pneumoconioses, i.e., the conditions
characterized by permanent deposition of substantial amounts of particulate matter in the
lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust
exposure in coal mine employment,” and “Legal Pneumoconiosis,” defined as “any
chronic lung disease or impairment and its sequelae arising out of coal mine
employment.” 20 C.F.R. § 718.201(a)(1)-(2). “[P]neumoconiosis may be shown through
1) a chest x-ray; 2) a biopsy; 3) statutory presumptions . . . ; 4) a physician’s evaluation.”
9
Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 23 (3d Cir. 1997) (citing 20 C.F.R. §
718.202). 3
Broadly speaking, Consolidation raises two issues on appeal. First, Consolidation
claims that ALJ Timlin committed various errors when she credited Dr. Green’s medical
opinion and rejected the medical opinions of Dr. Tomashefski and Dr. Fino. Second,
Consolidation argues that ALJ Timlin abused her discretion when she ordered certain
evidence withdrawn on remand. We will address each issue in turn.
A. Weighing of the Medical Opinions
Consolidation’s arguments largely concern whether ALJ Timlin committed errors
when she credited Dr. Green’s medical opinion that Mr. Funka had legal and clinical
pneumoconiosis and rejected the contrary opinions of Dr. Tomashefski and Dr. Fino. An
“ALJ has broad discretion to determine the weight accorded each doctor’s opinion.”
Balsavage v. Dir., Office of Workers’ Comp. Programs, 295 F.3d 390, 396 (3d Cir.
2002). “In reaching a decision, an ALJ should set out and discuss the pertinent medical
evidence presented.” Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir.
1986). “The ALJ is not bound to accept the opinion or theory of any medical expert, but
may weigh the medical evidence and draw its own inferences.” Id. “Moreover, the ALJ
3
To be eligible for benefits, a claimant must also show “that the miner’s
pneumoconiosis arose at least in part out of coal mine employment.” 20 C.F.R. §
718.203(a). “If a miner who is suffering or suffered from pneumoconiosis was employed
for ten years or more in one or more coal mines, there shall be a rebuttable presumption
that the pneumoconiosis arose out of such employment.” 20 C.F.R. § 718.203(b). ALJ
Timlin’s finding that this presumption was applicable and unrebutted by Consolidation is
not specifically challenged on appeal.
10
should reject as insufficiently reasoned any medical opinion that reaches a conclusion
contrary to objective clinical evidence without explanation.” Id.
Initially, Consolidation contends that ALJ Timlin’s decision is internally
inconsistent because it both credits Dr. Oesterling’s opinion that the autopsy evidence
does not prove that Mr. Funka had pneumoconiosis and also credits Dr. Green’s opinion
that the autopsy evidence did reveal pneumoconiosis. This argument, however,
misconstrues the ALJ’s decision.
Under 20 C.F.R. § 718.202, an ALJ may find that a miner has pneumoconiosis on
the strength of one of several categories of evidence, including a chest X-ray, a biopsy or
autopsy, or a physician’s “reasoned medical opinion” if such opinion is “based on
objective medical evidence.” 20 C.F.R. § 718.202(a)(1)-(4). Here, ALJ Timlin found
that Dr. Holimon’s diagnosis of clinical pneumoconiosis based upon his autopsy findings
lacked credibility for a variety of reasons. The ALJ also found that Dr. Oesterling’s
opinion that the autopsy did not show pneumoconiosis was “well reasoned and well
documented” based in part on Dr. Oesterling’s finding that the autopsy showed “minimal
anthracotic pigment” in Mr. Funka’s lungs. (App. at 95.) Thus, the ALJ concluded that
“Claimant failed to establish that Miner had pneumoconiosis by a preponderance of the
autopsy evidence.” (App. at 96.) When evaluating the medical opinions—a wholly
separate category of evidence on which a finding of pneumoconiosis may be based under
20 C.F.R. § 718.202(a)—the ALJ credited Dr. Green’s diagnosis of clinical and legal
pneumoconiosis. In doing so, the ALJ found that Dr. Green provided a well-supported
and reasoned explanation of why Mr. Funka “could have had an advanced form of
11
interstitial fibrosis despite a limited amount of black pigment in his lungs.” (App. at
106.)
Contrary to Consolidation’s argument, these findings are not contradictory or
inconsistent. The ALJ found that the autopsy evidence alone was insufficient to establish
that Mr. Funka had pneumoconiosis but that Dr. Green’s medical opinion, which was
based upon the autopsy evidence and other medical evidence, did establish that Mr.
Funka had pneumoconiosis.
Similarly, Consolidation argues that the ALJ erred when she credited Dr. Green’s
diagnosis of coal dust-induced fibrosis based upon Dr. Green’s finding that Mr. Funka
had black pigment within his lungs. Consolidation argues that black pigment is not
sufficient to base a diagnosis of coal workers’ pneumoconiosis. Consolidation cites to 20
C.F.R § 718.202, which provides, in part, that “[a] finding in an autopsy or biopsy of
anthracotic pigmentation . . . must not be considered sufficient, by itself, to establish the
existence of pneumoconiosis.” 20 C.F.R § 718.202(a)(2). This provision, however,
relates to biopsy or autopsy evidence. As discussed above, ALJ Timlin concluded that
Mr. Funka had legal and clinical pneumoconiosis based on medical opinion evidence, not
on autopsy evidence. Further, as Consolidation admits, Dr. Green’s diagnosis was based
on the “presence of black pigment and birefringent particles, as well as the presence of
macules and micronodules consistent with pneumoconiosis in areas less affected by the
fibrosis.” (Petitioner’s Br. at 37) (emphasis added). Thus, Consolidation acknowledges
that Dr. Green did not base his opinion solely on the presence of black pigmentation in
12
Mr. Funka’s lungs, but instead considered the pigmentation in conjunction with other
evidence.4
Next, Consolidation argues that the ALJ erred when she found that Mr. Funka had
a pulmonary disability prior to 2003 based upon Mr. Funka’s testimony about his
shortness of breath in the 1990s. Pointing to 20 C.F.R. § 718.204(d)(3), Consolidation
further contends that even if the ALJ was permitted to draw this inference from the lay
evidence, it was improper for her to use this conclusion to credit Dr. Green’s diagnosis.
Under 20 C.F.R. § 718.204,
affidavits (or equivalent sworn testimony) from persons knowledgeable of
the miner’s physical condition shall be sufficient to establish total disability
due to pneumoconiosis if no medical or other relevant evidence exists which
addresses the miner’s pulmonary or respiratory condition; however, such a
determination shall not be based solely upon the affidavits or testimony of
any person who would be eligible for benefits (including augmented
benefits) if the claim were approved.
20 C.F.R. § 718.204(d)(3). This regulation was violated, Consolidation argues, because
Mr. Funka was a person eligible for benefits if his claim was approved and his testimony
was used to establish his disability.
4
Nor did the ALJ engage in inconsistent reasoning by discrediting the opinions of
Dr. Tomashefski and Dr. Fino that Mr. Funka did not have coal workers’ pneumoconiosis
because those opinions were based on the absence of black pigmentation and macules or
micronodules in Mr. Funka’s lungs. As the ALJ correctly noted, the regulations do not
require anthracotic pigment or pneumoconiotic macules or micronodules to support a
pneumoconiosis finding. Thus, even if Mr. Funka did not have anthracotic pigment or
pneumoconiotic macules or micronodules in his lungs, it would not necessarily follow
that Mr. Funka did not have coal workers’ pneumoconiosis. Therefore, the ALJ
permissibly concluded that the opinions of Dr. Tomashefski and Dr. Fino were not well-
reasoned.
13
Consolidation’s argument once again misconstrues the ALJ’s decision. ALJ
Timlin did not establish that Mr. Funka was disabled based upon his lay testimony.
Indeed, the ALJ did not even determine Mr. Funka’s disability onset date based upon lay
testimony. The ALJ specifically noted, “[t]he record does not disclose when Miner first
became totally disabled due to pneumoconiosis.” (App. at 111.) ALJ Timlin simply
credited Dr. Green’s medical opinion that Mr. Funka was disabled due to pneumoconiosis
and then found that the doctor’s opinion about the disease’s progression was consistent
with Mr. Funka’s testimony about when he started experiencing symptoms. Section
718.204(d)(3) provides that a total disability cannot be established based solely on a
claimant’s testimony; it does not prohibit an ALJ from using lay testimony to determine
when a claimant first became symptomatic. Thus, it was entirely permissible for the ALJ
to evaluate whether Dr. Green’s medical opinion was corroborated by Mr. Funka’s lay
testimony. See Soubik v. Dir., Office of Workers’ Comp. Programs, 366 F.3d 226, 230,
238 (3d Cir. 2004).
Relying on United States Steel Mining Company, Inc. v. Director, Office of
Workers’ Compensation Programs, 187 F.3d 384 (4th Cir. 1999), Consolidation next
argues that the ALJ erred in crediting Dr. Green’s “highly speculative” opinion about the
absence of black pigment in Mr. Funka’s lungs. (Opening Br. at 41-43.) In United States
Steel, the Fourth Circuit held that a doctor’s statement that “it is possible that [the
claimant’s] death could have occurred as a consequence of his pneumonia superimposed
upon . . . his occupational pneumoconiosis” was insufficient “to establish by a
preponderance of the evidence that there was a causal link between [the claimant]’s
14
pneumoconiosis and his death.” United States Steel, 187 F.3d at 390, 391 (second
alteration in original). Consolidation argues that Dr. Green’s opinion regarding the lack
of significant amounts of black pigment in Mr. Funka’s lungs is similarly speculative as
he used uncertain words and phrases such as “can” and “could in part be due to.”
(Opening Br. at 41-43.)
This argument, however, relies on a selective reading of Dr. Green’s report and
deposition testimony and ignores Dr. Green’s overall conclusions. Dr. Green explained
that
[t]he most likely diagnosis, in my opinion, is that this is the variant of simple
coal worker’s pneumoconiosis characterized by interstitial fibrosis (Green
and Vallyathan, 1998). . . . [A]lthough some of the interstitial fibrosis was
pigmented (as shown in Figures 5 and 6), a majority was not (Figure 1). The
lack of pigmentation could in part be due to clearance of coal mine dust from
the lungs following retirement from the mining industry in 1992, a period of
13 years. In addition, episodes of congestive cardiac failure can enhance
clearance of a dust from the interstitium (Green and Vallyathan, 1998).
Variability of pigmentation appears to be a feature of this form of coal
worker’s pneumoconiosis (Green and Vallyathan, 1998; McConnochie et al.,
1998).
Silica exposure can also produce interstitial fibrosis (Craighead et al., 1982;
Honma et al., 1993) and evidence of significant silica exposure was shown
by the presence of large confluent silicotic nodules in the tracheo-bronchial
lymph nodes. Thus, it is my opinion that the interstitial fibrosis was causally
related to coal mine dust exposure which included the silica component.
(App. at 265-266) (emphasis added.) Unlike United States Steel where the doctor could
not opine with any definiteness that the claimant’s pneumoconiosis was related to his
death, Dr. Green opined that Mr. Funka’s interstitial fibrosis was caused by his exposure
to coal dust and further diagnosed him with coal workers’ pneumoconiosis. He supported
his conclusions with citations to the medical literature, his own findings, and his
15
explanations of the evidence that appeared to contradict his diagnosis. The mere fact that
Dr. Green used some less than definite language before coming to his ultimate conclusion
does not mean that the ALJ was not entitled to credit his medical opinion and diagnosis.
Indeed, “a testifying physician need not express his conclusions in terms of reasonable
degree of medical certainty to be credited by the ALJ; the ALJ must instead accept a
documented opinion of a physician exercising reasoned medical judgment.” Mancia v.
Dir., Office of Workers’ Comp. Programs, 130 F.3d 579, 588 (3d Cir. 1997) (alteration
and quotation marks omitted).5
Relatedly, we find no merit in Consolidation’s contention that the ALJ
impermissibly credited Dr. Green’s interpretation of a particular research study, the
McConnochie study, over the interpretations of Dr. Fino and Dr. Tomashefski, simply
because Dr. Green was a co-author of the study. As the ALJ correctly pointed out,
neither party placed the McConnochie study in the record. While the ALJ certainly could
have directed either party to place the study into evidence, the ALJ permissibly credited
Dr. Green’s interpretation of the study over that of Dr. Fino and Dr. Tomashefski on the
basis that Dr. Green co-authored the study and therefore had a more in-depth
understanding of the study’s conclusions and implications.
5
Consolidation also argues that the ALJ improperly found legal pneumoconiosis
in connection with Mr. Funka’s bronchitis because Dr. Green only stated that Mr.
Funka’s bronchitis was “probably” related to his coal mine dust exposure. (App. at 395.)
Such a finding, however, was not necessary to award benefits because the ALJ also
concluded that Mr. Funka had both clinical and legal pneumoconiosis with respect to his
pulmonary fibrosis. Thus, even assuming the ALJ did err in this respect, any such error
was harmless.
16
Consolidation also puts forth a variety of arguments as to why the ALJ erred in
assigning little weight to the medical opinions of Dr. Tomashefski and Dr. Fino. Having
already concluded that the ALJ did not err in her analysis of Dr. Green’s medical opinion
and therefore permissibly assigned that opinion significant probative weight, we see no
error in the comparative weight that the ALJ assigned to the opinions of Dr. Tomashefski
and Dr. Fino. ALJ Timlin reviewed all the evidence in the record and explained that she
assigned little probative weight to the opinion of Dr. Tomashefski because, among other
reasons, (1) his conclusion that Mr. Funka did not have pneumoconiosis was based on the
absence of pigmentation and macules or micronodules, the presence of which are not
required to support a diagnosis of pneumoconiosis under the BLBA regulations, (2) he
provided no explanation or citation to the medical literature to support his claim that coal
mine dust induced fibrosis does not cause honeycombing, (3) his interpretation of the
McConnochie study to support his conclusion was contradicted by the study’s co-author,
and (4) he failed to address the possibility that Mr. Funka could have legal
pneumoconiosis. Further, the ALJ noted that Dr. Tomashefski’s opinion that Mr. Funka
had idiopathic pulmonary fibrosis was in conflict with Dr. Green’s explanation,
supported by citations to the medical literature, that such a diagnosis was inappropriate
for individuals with a history of coal dust exposure. Despite this conflict, the ALJ
explained that “Dr. Tomashefski did not discuss why Miner’s fibrosis was idiopathic in
light of Miner’s coal dust exposure history.” (App. at 108.)
These were all permissible considerations for ALJ Timlin to take into account
when weighing the competing medical opinions. See Kertesz, 788 F.2d at 163 (“[T]he
17
ALJ should reject as insufficiently reasoned any medical opinion that reaches a
conclusion contrary to objective clinical evidence without explanation.”). The ALJ
adequately explained why she assigned Dr. Tomashefski’s opinion less weight and
substantial evidence in the record supports the ALJ’s findings.
Likewise, ALJ Timlin assigned little probative weight to Dr. Fino’s opinion that
Mr. Funka did not have pneumoconiosis because (1) Dr. Fino based his conclusion on
findings of minimal to no anthracotic pigment and his assertion that coal mine induced
fibrosis is usually associated with heavy anthracotic pigment within the fibrosis, a finding
which is not required to support a diagnosis of pneumoconiosis under the BLBA
regulations, (2) Dr. Fino’s assertion that Mr. Funka’s pulmonary fibrosis began in 2003
was contradicted by both Mr. Funka’s testimony and medical reports from 2003 showing
that Mr. Funka already had advanced pulmonary fibrosis at that time, and (3) Dr. Fino did
not explain why his diagnosis of idiopathic pulmonary fibrosis was appropriate in light of
Mr. Funka’s history of significant coal dust exposure. Once again, the ALJ adequately
explained why she rejected Dr. Fino’s opinion as insufficiently reasoned and not well
supported. In light of the facts discussed above, we find that substantial evidence in the
record supports the ALJ’s findings with respect to Dr. Fino’s opinion.6
6
Additionally, Consolidation argues that ALJ Timlin failed to address matters the
BRB directed her to consider on remand. As Consolidation readily admits, however, it
did not raise this argument before the BRB. Because Consolidation did not raise this
argument before the BRB, we deem it waived. See Penn Allegheny Coal Co. v.
Mercatell, 878 F.2d 106, 110 (3d Cir. 1989).
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In sum, we find that ALJ Timlin did not err in her evaluation of the medical
opinions and that her findings were supported by substantial evidence.
B. Withdrawing Evidence
Finally, Consolidation argues that ALJ Timlin abused her discretion and violated
Consolidation’s due process rights to a full and fair hearing when it ordered certain
evidence withdrawn from the record. Pursuant to 20 C.F.R. § 725.414, parties are limited
in the amount of medical evidence they may submit in support of their cases.7 When this
matter reached the BRB for the third time, Mrs. Funka argued that Consolidation
exceeded the limitations found in § 725.414. The BRB instructed that, on remand, the
ALJ should determine whether Dr. Oesterling’s report constituted rebuttal evidence, thus
falling outside of the evidentiary limitations. In response, ALJ Timlin ordered the parties
to submit a summary which designated their evidence with respect to the § 725.414
limitations. According to Consolidation, this had the effect of forcing Consolidation to
withdraw evidence that it had relied on over the duration of the litigation. Consolidation
objected, but ALJ Timlin found that the “evidentiary limitations are mandatory and not
7
For example, under the regulation,
The claimant is entitled to submit, in support of his affirmative case, no more
than two chest X-ray interpretations, the results of no more than two
pulmonary function tests, the results of no more than two arterial blood gas
studies, no more than one report of an autopsy, no more than one report of
each biopsy, and no more than two medical reports.
20 C.F.R. § 725.414(a)(2)(i).
19
waivable” and that Consolidation failed to “show[ ] good cause for including evidence in
excess of the evidentiary limitations.” (App. at 81.) The BRB affirmed.
Consolidation argues that it was prejudiced by being forced to comply with the
limitations contained in § 725.414. To be clear, Consolidation does not argue that §
725.414 is itself problematic. Instead, Consolidation contends that it litigated this matter
over the course of many years and relied on the evidence that it submitted when
fashioning its arguments. Thus, Consolidation argues that when the § 725.414 limitations
were enforced at such a late stage, Consolidation’s right to a full and fair hearing was
violated.
We discern no error in the ALJ’s enforcement of the § 725.414 evidentiary
limitations under these facts. Although Consolidation argues that the ALJ sua sponte
ordered evidence withdrawn, the record shows that Consolidation was afforded a full
opportunity to decide what evidence it wished to submit in support of its case within the
confines of the § 725.414 limitations. Further, although Consolidation makes generalized
and conclusory allegations of prejudice, Consolidation fails to identify any specific
argument that was foreclosed to it or any other specific prejudice it suffered as a result of
ALJ Timlin’s Order.
IV. Conclusion
For the reasons discussed above, we will deny Consolidation Coal Company’s
Petition for Review.
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