Cumberland River Coal Company v. Billie Banks

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
CUMBERLAND RIVER COAL COMPANY,
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v. -
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No. 11-3500
,
>
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BILLIE BANKS; DIRECTOR, OFFICE OF
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WORKERS’ COMPENSATION PROGRAMS,
Respondents. --
UNITED STATES DEPARTMENT OF LABOR,
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N
On Petition for Review of an Order
of the Benefits Review Board.
No. 10-0410 BLA.
Decided and Filed: August 8, 2012
Before: SILER and WHITE, Circuit Judges; REEVES, District Judge.*
_________________
COUNSEL
ON BRIEF: Ronald E. Gilbertson, HUSCH BLACKWELL LLP, Washington, D.C., for
Petitioner. Joseph E. Wolfe, Ryan C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD
& REYNOLDS, Norton, Virginia, Emily Goldberg-Kraft, Sean G. Bajkowski, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
_________________
OPINION
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DANNY C. REEVES, District Judge. This case arises from a series of petitions
for benefits under the federal Black Lung Benefits Act. After two unsuccessful attempts,
Appellee Billie Banks filed a claim for benefits in 2003, presenting new evidence of
pneumoconiosis. An administrative law judge (ALJ) found that Banks had established
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 2
a change in his condition and that he suffered from legal pneumoconiosis which
substantially contributed to his total disability. Banks was awarded benefits and the
Benefits Review Board affirmed. Cumberland River Coal Company appeals this
determination, arguing that Banks failed to establish a change in his condition under
20 C.F.R. § 725.309(d). Additionally, it argues that Banks failed to establish that he
suffers from pneumoconiosis or that he is disabled due to this impairment. Having
reviewed the record of this proceeding, we will affirm the judgment of the Benefits
Review Board. In reaching this decision, we adopt the regulatory interpretation urged
by the Director of the Office of Workers’ Compensation Programs.
I.
Billie Banks worked as a coal miner for seventeen years. He was employed by
Cumberland River Coal Company (Cumberland) in 1991 when he ended his coal mine
employment. Banks smoked cigarettes most of his life: roughly one pack a day for
thirty-eight years, followed by one half-pack a day from 2004 through 2007. Banks filed
his first claim for black lung benefits on February 3, 1992. The claim was ultimately
denied in 1996 by ALJ Richard L. Malamphy, who concluded that Banks’s respiratory
disease was due to his history of smoking, rather than his employment as a coal miner.
Banks filed a second claim for benefits on January 5, 2000. That claim was denied by
the district director in May 2002, and Banks did not request a hearing before an ALJ.
Banks filed his third claim on July 11, 2003. In support, he presented medical
evidence from Dr. Forehand and Dr. Rasmussen, both of whom diagnosed
pneumoconiosis by x-ray. Conversely, Cumberland’s expert, Dr. Jarboe, stated that
Banks’s disability was due solely to smoking. Following an administrative hearing, ALJ
Thomas F. Phalen, Jr., entered an order awarding benefits. However, the Benefits
Review Board (the Board) vacated the award and remanded the claim for
reconsideration.1
1
Specifically, the Board took issue with ALJ Phalen’s finding that Banks “established a change
in an applicable condition of entitlement pursuant to Section 725.309(d), based on new evidence of total
respiratory disability,” because the prior denial was actually based on the conclusion that Banks had failed
to establish the existence of pneumoconiosis. The Board also vacated the ALJ’s finding that “the existence
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 3
On March 5, 2010, ALJ Larry Merck awarded benefits.2 He found that Banks
had established a change in one of the applicable conditions of entitlement since his last
claim because the new evidence established the existence of legal pneumoconiosis. And
after weighing all of the evidence in the record, ALJ Merck concluded that Banks had
established legal pneumoconiosis. Finally, the ALJ found that Banks had established
total disability due to his legal pneumoconiosis.
Cumberland appealed the decision to the Board, arguing that ALJ Merck failed
to compare the evidence in the prior, rejected claim to the new evidence when
determining whether there was a change in condition. The Board rejected this argument
based on the plain language of the current version of the regulation governing
subsequent claims, which provides that a claimant must “show that one of the applicable
conditions of entitlement has changed . . . by submitting new evidence.” 20 C.F.R.
§ 725.309(d). It concluded that the amendment of this section marked a departure from
the previous test for establishing a change in condition, so that an ALJ no longer needed
to compare the new evidence to the evidence in the record. Turning to the merits, the
Board determined that ALJ Merck had properly weighed the opinion evidence before
him. And while it agreed with Cumberland that ALJ Merck should not have considered
a medical report from 2001 because it was written before Banks’s second claim was
denied, it found the error to be harmless. Thus, the Board affirmed the award of
benefits.
II.
The Black Lung Benefits Act (the Act) provides benefits to coal miners who
become disabled due to pneumoconiosis. 30 U.S.C. § 901. Pneumoconiosis is a
“chronic dust disease of the lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment.” 30 U.S.C. § 902. It is caused by
the “long-term inhalation of coal dust” associated with work in coal mines. Gray v. SLC
of pneumoconiosis was established by x-ray and medical opinion evidence.”
2
The case was assigned to ALJ Merck on remand due to Judge Phalen’s retirement.
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 4
Coal Co., 176 F.3d 382, 386 (6th Cir. 1999). It is “latent and progressive,” and thus
“may first become detectable only after the cessation of coal mine dust exposure.”
20 C.F.R. § 718.201(c). The Act directs the Department of Labor (the Department) to
“make payments of benefits in respect of total disability of any miner due to
pneumoconiosis.” 30 U.S.C. § 921(a). To that end, it authorizes the Department to
promulgate regulations to “prescribe standards for determining . . . whether a miner is
totally disabled due to pneumoconiosis.” 30 U.S.C. § 921(b); see also 30 U.S.C.
§ 923(a) (providing that claims be filed “in such manner, in such form, and containing
such information, as the Secretary [of Labor] shall by regulation prescribe”).
To prove entitlement to benefits under the Act, a miner must file a claim proving
that: (1) he suffers from pneumoconiosis; (2) the pneumoconiosis “arose out of coal
mine employment”; (3) he is totally disabled; and (4) the pneumoconiosis contributes
to his total disability. 20 C.F.R. § 725.202(d)(2). The first prong may be met by
establishing that the miner suffers from either “clinical” or “legal” pneumoconiosis.
“Clinical pneumoconiosis” is defined as a condition “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.” 20 C.F.R. § 718.201(a)(1). It is typically diagnosed using x-ray
evidence. See Eastover Mining Co. v. Williams, 338 F.3d 501, 509 (6th Cir. 2003)
(describing clinical pneumoconiosis as a “lung disease caused by fibrotic reaction of the
lung tissue to inhaled dust that is generally visible on chest x-ray films”). “Legal
pneumoconiosis,” on the other hand, includes “any chronic restrictive or obstructive
pulmonary disease arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2).
Thus, legal pneumoconiosis “‘encompasses a wider range of afflictions than does the
more restrictive medical definition of pneumoconiosis.’” Cornett v. Benham Coal, Inc.,
227 F.3d 569, 575 (6th Cir. 2000) (quoting Kline v. Director, OWCP, 877 F.2d 1175,
1178 (3d Cir. 1989)).
Due to the “latent and progressive” nature of pneumoconiosis, a miner is
permitted to file a subsequent claim even after the entry of a final order denying a
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 5
previously filed claim. 20 C.F.R. § 725.309. A miner filing a subsequent claim does not
start from scratch, however. A subsequent claim must be denied unless the miner
“demonstrates that one of the applicable conditions of entitlement . . . has changed since
the date upon which the order denying the prior claim became final.” 20 C.F.R.
§ 725.309(d). If the miner seeks to prove that his physical condition has changed, he
must submit “new evidence” to that effect. 20 C.F.R. § 725.309(d)(3). Once the miner
establishes a change in condition through the newly submitted evidence, the ALJ must
consider all the evidence in the record — old and new — to determine whether the
claimant is entitled to benefits. 20 C.F.R. § 725.309(d)(4). A miner who succeeds on
a subsequent claim cannot recover benefits for the period prior to any previous denial.
20 C.F.R. § 725.309(d)(5).
III.
This court has a “limited scope of review over the decisions of the Benefits
Review Board and the ALJ.” Saginaw Mining Co. v. Ferda, 879 F.2d 198, 205 (6th Cir.
1989). Our “task ‘is limited to correcting errors of law and ensuring that the Board
adhered to the substantial evidence standard in its review of the ALJ’s factual findings.’”
Crockett Colleries, Inc. v. Barrett, 478 F.3d 350, 352 (6th Cir. 2007) (quoting Creek
Coal Co. v. Bates, 134 F.3d 734, 737 (6th Cir.1997)). “Substantial evidence is defined
as relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Martin v. Ligon Preparation Co., 400 F.3d 302, 305 (6th Cir. 2005) (citing
Peabody Coal Co. v. Groves, 277 F.3d 829, 833 (6th Cir. 2002)). A decision that
“rest[s] within the realm of rationality” is supported by substantial evidence. Morrison
v. Tenn. Consol. Coal Co., 644 F.3d 473, 478 (6th Cir. 2011) (internal quotation marks
omitted). “We should not re-weigh the evidence or substitute our judgment for that of
the ALJ.” Gray v. SLC Coal Co., 176 F.3d 382, 387 (6th Cir. 1999).
“Change in Condition” Under 20 C.F.R. § 725.309(d)
Cumberland argues that the ALJ erred in finding that Banks had established a
change in his condition. It asserts that ALJ Merck improperly applied the amended
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 6
version of 20 C.F.R. § 725.309(d) because he did not compare the old and new evidence
to determine whether Banks’s condition had changed since his last claim was denied.
The federal appellee, the Director of the Office of Workers’ Compensation Programs
(the Director), contests this proposed interpretation of the regulation. He urges the court
not to graft the Sixth Circuit’s old test — which required the ALJ to evaluate the full
record to determine whether the new evidence differs qualitatively from the old evidence
— onto the new version of 20 C.F.R. § 725.309(d). Thus, both the Director and Banks
assert that ALJ Merck properly applied the regulation when he evaluated only the new
evidence to find that Banks’s physical condition had changed.
Cumberland also disputes the ALJ’s findings regarding the existence of legal
pneumoconiosis and the contribution of that condition to Banks’s total disability. It
asserts that these findings must be reversed because the ALJ “failed to provide a valid
basis for weighing the conflicting evidence.” Banks, on the other hand, contends that
the ALJ’s findings are supported by substantial evidence and should be upheld.
ALJ Merck found that Banks “established legal pneumoconiosis by a
preponderance of the newly-submitted medical report evidence.” Because Banks
established “a condition of entitlement previously adjudicated against him,” the ALJ
concluded that there was a “change in [an] applicable condition of entitlement.” The
Board affirmed, rejecting Cumberland River’s “contention that the administrative law
judge was required to conduct a comparison of the old and new evidence.”
The current version of 20 C.F.R. § 725.309(d) became effective on January 19,
2001. It provides:
If a claimant files a claim under this part more than one year after the
effective date of a final order denying a claim previously filed by the
claimant under this part, the later claim shall be considered a subsequent
claim for benefits. A subsequent claim . . . shall be denied unless the
claimant demonstrates that one of the applicable conditions of
entitlement (see §§ 725.202(d) (miner), 725.212 (spouse), 725.218
(child), and 725.222 (parent, brother, or sister)) has changed since the
date upon which the order denying the prior claim became final.
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 7
20 C.F.R. § 725.309(d) (2012) (full citations omitted). The previous version of this
section required that a subsequent claim be denied unless “there has been a material
change in conditions.” 20 C.F.R. § 725.309(d) (1999) (emphasis added).
According to the Department, the original regulation was intended to create a
“one-element test,” under which a miner could demonstrate a change in condition by
submitting new evidence to prove the existence of a single element of entitlement
decided against him in the earlier, unsuccessful claim.3 In Sharondale Corp. v. Ross,
42 F.3d 993 (6th Cir. 1994), this court adopted the one-element test advocated by the
Department. Id. at 997-98. The court found that “to assess whether a material change
is established, the ALJ must consider all of the new evidence, favorable and unfavorable,
and determine whether the miner has proven at least one of the elements of entitlement
previously adjudicated against him.” Id. at 997.
However, the Sharondale court departed from the agency’s interpretation when
it found that the ALJ erred when he failed to discuss “how the later [medical records]
differ[ed] qualitatively from those submitted” earlier. Id at 999 (emphasis added). In
remanding the claim on this ground, the court adopted an intrinsically more stringent test
than that advocated by the Department. Applying this modified one-element test in
Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001), the court
explained that an ALJ examining a miner’s subsequent claim may only find a material
change “if the new evidence both establishes the element and is substantially more
supportive” of the miner’s position. Id. at 609. The court held that to establish a
material change in physical condition, the new evidence presented must have the
“capability of converting an issue determined against the claimant into one determined
in his favor.” Id. at 609 n.6. Thus, under the Sixth Circuit’s version of the one-element
test, an ALJ was required to “compare the sum of the new evidence with the sum of the
3
Some courts rejected this interpretation and held that “to bring a duplicate claim, a claimant must
prove for each element that actually was decided adversely to the claimant in the prior denial that there
has been a material change in that condition since the prior claim was denied.” Wyoming Fuel Co. v.
Director, OWCP, 90 F.3d 1502, 1511 (10th Cir. 1996) (emphasis added). The new version of 20 C.F.R.
§ 725.309(d) expressly overruled this interpretation. 65 Fed. Reg. 79920, 79968 (Dec. 20, 2000)
(explaining that the revision was intended to codify the one-element test advocated by the Department);
see Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1223 (10th Cir. 2009).
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 8
earlier evidence on which the denial of the claim had been premised” to find the
existence of a material change in a miner’s condition. Id. at 609.
The Fourth Circuit disagreed with this interpretation of 20 C.F.R. § 725.309(d)
in Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996), stating that it did
not “endorse . . . the closing paragraph of Sharondale Corp., where, after adopting the
Director’s standard, the Sixth Circuit seems to have required consideration of the
evidence behind the earlier denial to determine whether it ‘differ[s] qualitatively’ from
the new evidence.” Id. at 1363 n.11 (quoting Sharondale, 42 F.3d at 999). Instead, the
Fourth Circuit “adopted a standard that presumed that the factual determinations
underlying a prior denial are correct and simply required the miner to disprove the
‘continuing validity’ of at least one of the elements previously adjudicated against him
in showing a material change in conditions.” Consolidation Coal Co. v. Williams,
453 F.3d 609, 616 (4th Cir. 2006) (quoting Lisa Lee Mines, 86 F.3d at 1363).
Other circuits have joined Lisa Lee Mines in rejecting this court’s addition to the
one-element test. See, e.g., U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 988
n.12 (11th Cir. 2004); Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 n.7 (8th Cir. 1997).
Moreover, questions have been raised within this circuit regarding the Sharondale test’s
propriety:
It strikes me as rather schizophrenic of us in Sharondale to painstakingly
analyze and weigh the competing “material change” interpretations,
choose the Director’s test, and then immediately afterwards, depart from
the test that we have chosen to adopt. Because of this, I believe that the
interpretation of Sharondale that the majority endorses is wrong.
Furthermore, despite the fact that the ambiguous language of Sharondale
leaves the meaning of the last paragraph open to multiple interpretations,
the rest of the decision does acknowledge the principle that it is
inappropriate to compare the evidence in a new claim with the evidence
submitted in connection with a previously denied claim in assessing
whether a “material change” has been established.
Grundy Mining Co. v. Flynn, 353 F.3d 467, 490 (6th Cir. 2003) (Moore, J., concurring).
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 9
The regulation was amended in 2000. Among other changes, the Department
removed the modifier “material,” so that now a claimant must only demonstrate a change
in condition. See 20 C.F.R. § 725.309(d). The Department addressed the alteration in
the preamble to the amended regulations, explaining that the section created “a threshold
test which allowed the miner to litigate his entitlement to benefits without regard to any
previous findings by producing new evidence that established any of the elements of
entitlement previously resolved against him.” 65 Fed. Reg. at 79,968. Further, the
Department explicitly stated that the regulation was intended to codify the one-element
test as articulated in Lisa Lee Mines. Id.
Cumberland asserts that it “does not take any issue with the ‘one element’ test
adopted in the latest version of Section 725.309.” However, it “submits that the ‘one
element’ must be established by reasoned medical evidence establishing an actual
‘change’ in that element” since the denial of the prior claim. Otherwise, it contends that
“the requirement for ‘change’ is meaningless.” Cumberland maintains that the only way
to give proper effect to the language of the regulation is to require the ALJ to compare
the newly submitted evidence to the evidence in the record. Thus, Cumberland urges the
Court to maintain the one-element test from Sharondale and Kirk.
In disagreeing with Cumberland’s proposed interpretation, the Director argues
that “the present regulation plainly dispenses with [the] requirement” that an ALJ
compare the new evidence with the evidence from the previously-denied claim. He
further asserts that the new regulation “does not authorize, much less compel, an ALJ
to compare new evidence with old evidence as part of the change in conditions analysis.”
Rather, the ALJ should compare the new evidence of the miner’s physical condition
“with the conclusions reached in the prior claim.” U.S. Steel Mining Co., 386 F.3d at
989 (emphasis in original).
We now adopt the Director’s interpretation of 20 C.F.R. § 725.309(d). A court
should “defer to an agency’s interpretation of its own regulation, advanced in a legal
brief, unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’”
Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (quoting Auer v. Robbins,
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 10
519 U.S. 452, 461 (1997)). Here, because the interpretation advocated by the Director
is neither plainly erroneous nor inconsistent with the language of the regulation itself,
deference to the Director’s position is appropriate. Thus, we construe the term “change”
to mean “disproof of the continuing validity” of the original denial, Lisa Lee Mines,
86 F.3d at 1363, rather than the “actual difference between the bodies of evidence
presented at different times.” Kirk, 264 F.3d at 609. Under this definition, the ALJ need
not compare the old and new evidence to determine a change in condition; rather, he will
consider only the new evidence to determine whether the element of entitlement
previously found lacking is now present.
ALJ Merck considered the new evidence submitted by Banks and Cumberland
and found the opinions of Drs. Forehand and Rasmussen to be “reasoned, documented,
and entitled to full probative weight.” Additionally, he found Dr. Jarboe’s opinion to be
“inadequately reasoned” and discounted it accordingly. Balancing this evidence, the
ALJ found that Banks suffered from legal pneumoconiosis and, therefore, had
established a condition of entitlement previously adjudicated against him. According
to Cumberland, the ALJ’s conclusions are not supported by substantial evidence. We
disagree with Cumberland’s assessment of the proof presented to the ALJ.
The ALJ’s Evaluation of the Evidence
ALJ Merck first considered the report prepared by Dr. Forehand on July 29,
2003. Dr. Forehand “diagnosed clinical pneumoconiosis based on [Banks’s] history,
physical examination, x-ray and arterial blood gas study.” The ALJ found that the x-ray
was insufficient evidence of clinical pneumoconiosis and, therefore, concluded that the
opinion was “entitled to diminished weight” on the issue. Dr. Forehand also diagnosed
chronic bronchitis “based on [Banks’s] history and his pulmonary function test results,
and opined that the resulting impairment was caused by both cigarette smoking and coal
dust exposure.” ALJ Merck found that this was “sufficient to establish that [Banks’s]
pneumoconiosis arose out of his coal mine employment.” As a result, he gave Dr.
Forehand’s report full probative weight on the issue of legal pneumoconiosis.
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 11
Banks also submitted two reports by Dr. Rasmussen: a report from February 26,
2001, and a report completed on March 29, 2004. ALJ Merck found that Dr.
Rasmussen’s 2001 report was entitled to full probative weight on the issue of legal
pneumoconiosis, despite giving the opinion “little weight on the issue of clinical
pneumoconiosis” due to Dr. Rasmussen’s reliance on a negative x-ray. Turning to the
2004 report, ALJ Merck found the “diagnosis of legal pneumoconiosis well-reasoned
and well-documented and accord[ed] it full probative weight.” This report similarly
diagnosed both clinical and legal pneumoconiosis, but the ALJ found the diagnosis of
clinical pneumoconiosis to contain an insufficient explanation of how the physical
examination, pulmonary function test, arterial blood gas study, and EKG supported the
diagnosis. Regarding legal pneumoconiosis, however, Dr. Rasmussen found that the
“pulmonary function tests showed a severe, irreversible obstructive ventilatory
impairment,” and concluded that “coal dust exposure [was] a significant contributing
factor in [Banks’s] pulmonary impairment.”
Cumberland argues that the ALJ should not have relied on the opinions of Drs.
Forehand and Rasmussen. It asserts that ALJ Merck’s explanation for crediting the
diagnosis of legal pneumoconiosis while simultaneously discrediting the diagnosis of
clinical pneumoconiosis “is not supported by the record.” This argument is unavailing
because the definition of legal pneumoconiosis is significantly broader than that of
clinical pneumoconiosis. See Cornett, 227 F.3d at 575. Dr. Forehand diagnosed both
pneumoconiosis and chronic bronchitis. Dr. Rasmussen found that Banks suffered from
respiratory impairments that he attributed, in part, to coal dust exposure. The ALJ
adequately explained his reliance on the diagnoses, finding that each doctor “based his
diagnosis on objective medical evidence, considered [Banks’s] employment history and
his smoking history, and explained the basis for his opinion.” Rather than showing that
he erred in finding these reports to be well-reasoned and well-documented, ALJ Merck’s
rejection of the diagnoses of clinical pneumoconiosis demonstrates careful examination
of the record.
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 12
Cumberland also maintains that, because Drs. Forehand and Rasmussen relied
on positive x-ray interpretations that were later discredited by the ALJ, there was not
substantial evidence to support the conclusion that Banks suffers from legal
pneumoconiosis. The Board rejected this argument, because both doctors merely relied
on the x-rays to diagnose clinical pneumoconiosis, and the “additional diagnoses of legal
pneumoconiosis [were based] on pulmonary function and blood gas studies showing
obstructive ventilatory impairments and hypoxemia, together with [Banks’s] coal mine
employment and smoking histories.” The doctors’ use of the x-rays to diagnose clinical
pneumoconiosis does not render ALJ Merck’s reliance on their opinions to support his
finding of legal pneumoconiosis unreasonable. The ALJ’s findings of fact concerning
the reports by Drs. Forehand and Rasmussen are within the “realm of rationality” and,
therefore, are supported by substantial evidence. Morrison, 644 F.3d at 478.
ALJ Merck also considered a report dated September 24, 2003 from Dr. Jarboe,
who relied upon patient history, an x-ray, a pulmonary function test, and an arterial
blood gas study to diagnose Banks with chronic bronchitis and severe pulmonary
emphysema. However, Dr. Jarboe concluded that Banks did not suffer from
pneumoconiosis and averred that Banks’s “pulmonary impairment was caused entirely
by his smoking history.”4 ALJ Merck found that the reasons he provided for this
conclusion were “inadequately reasoned on the issue of legal pneumoconiosis.” As a
result, he found that Dr. Jarboe’s opinion had limited value.
First, Dr. Jarboe opined that [Banks’s] emphysema could not have been
caused by coal dust exposure, because there is not enough dust retention
shown on his x-rays. The Department of Labor and the Board have made
clear that a miner can be found to have legal pneumoconiosis, even in the
absence of clinical pneumoconiosis. . . . Further, the Board has found it
proper to discredit a physician’s opinion based on the notion that
emphysema caused by coal dust does not occur absent clinical
pneumoconiosis. Therefore, I find that the negative x-rays and CT scan
are an inadequate basis for determining whether coal mine dust
contributed to [Banks’s] chronic bronchitis and emphysema.
4
Dr. Jarboe submitted three supplemental medical reports reiterating his conclusion that Banks’s
emphysema was solely the result of cigarette smoking.
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 13
Second, Dr. Jarboe opined that [Banks’s] total lung capacity showed that
there was no true restrictive component to his respiratory impairment.
Legal pneumoconiosis may result from an obstructive impairment,
regardless of any restrictive component. Physicians’ opinions may be
discredited if they find no pneumoconiosis due to an obstructive versus
restrictive impairment. Here, the obstructive nature of [Banks’s]
impairment is not an appropriate basis for finding that smoking, alone,
contributed to [his] chronic bronchitis and empysema.
These are proper reasons for finding Dr. Jarboe’s reports unpersuasive.
ALJ Merck also found that “Dr. Jarboe’s statement regarding the period of time
since [Banks’s] coal mine employment ceased is at odds with the Department of Labor’s
determination that coal mine dust exposure can cause a chronic pulmonary impairment
after a latent period.” As a result, the ALJ concluded that “his reasoning is unsound on
the issue of whether coal dust exposure played a contributing or aggravating role in [his]
disabling lung disease.” Thus, the ALJ afforded Dr. Jarboe’s opinions less probative
weight than those of Drs. Forehand and Rasmussen on the issue of legal
pneumoconiosis.
Cumberland asserts that ALJ Merck erred in finding Dr. Jarboe’s conclusions to
be inconsistent with Department regulations that recognize pneumoconiosis as a latent
and progressive disease. It argues that the ALJ’s interpretation of these regulations
would “improperly convert[] every obstructive lung disease into ‘legal’
pneumoconiosis.” Cumberland’s argument mischaracterizes the ALJ’s opinion. ALJ
Merck did not imply that every respiratory impairment contracted after working in a
mine will necessarily qualify as legal pneumoconiosis. He merely pointed out that Dr.
Jarboe relied on an impermissible factor. Dr. Jarboe’s opinion was indeed inconsistent
with the regulations that recognize that pneumoconiosis “may first become detectable
only after the cessation of coal mine dust exposure.” 20 C.F.R. § 718.201(c). The ALJ
did not err in discounting the opinion on this basis.
ALJ Merck erred in considering Dr. Rasmussen’s 2001 report because it pre-
dates the denial of his last claim and, therefore, cannot constitute new evidence.
However, we find the error to be harmless because the ALJ’s decision was supported by
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 14
two other medical opinions that were afforded full probative weight. There is no reason
to believe that the ALJ would have given more weight to Dr. Jarboe’s “inadequately
reasoned” opinion in the absence of Dr. Rasmussen’s 2001 report. The ALJ’s finding
that the newly-submitted evidence established legal pneumoconiosis was supported by
substantial evidence. Thus, Banks succeeded in establishing a change in condition.
After ALJ Merck found that Banks had established the existence of legal
pneumoconiosis through new evidence, he reviewed the entire record to determine if
Banks could prove each element of entitlement by a preponderance of the evidence. On
the issue of legal pneumoconiosis, the ALJ compared the medical evidence from Banks’s
two prior claims to the newly submitted evidence. ALJ Merck gave the medical
evidence from the second claim probative weight, but afforded little weight to the
medical evidence submitted in the first claim, which was filed in 1992. Therefore, he
analyzed the 2000 reports by Dr. Rasmussen and Dr. Dahhan along with the newly
submitted evidence to determine whether the balance of the evidence favored a finding
of legal pneumoconiosis. The ALJ found that “the previously-submitted evidence does
not contain a well-reasoned and well-documented opinion as to clinical or legal
pneumoconiosis.” As a result, he gave controlling weight to the new evidence.
ALJ Merck discounted the report provided by Dr. Dahhan because it “provided
no credible basis for his opinion that cigarette smoking, alone, caused” Banks’s
impairment.5 And like Dr. Jarboe, Dr. Dahhan based his opinion, in part, on the length
of time since Banks left his coal mine employment. Thus, the ALJ discounted the
opinion because it was “at odds with the Department of Labor’s determination that coal
mine dust exposure can cause a chronic pulmonary impairment after a latent period.”
Moreover, he found the opinion to be poorly reasoned because Dr. Dahhan “found it
significant that [Banks] was prescribed bronchodilators by his treating physician,
indicating that his respiratory condition is reversible.” The ALJ found that “treatment
5
The ALJ also found Dr. Rasmussen’s 2000 opinion that diagnosed clinical and legal
pneumoconiosis on the basis of an incorrect medical history as well as x-ray evidence that the previous
ALJ had found to be negative, to be “inadequately reasoned and entitled to less probative weight on the
issue of legal pneumoconiosis.”
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 15
with bronchodilator agents and partial reversibility are not credible evidence,” to support
an opinion that coal dust did not contribute to Banks’s respiratory impairment. Finally,
because Dr. Dahhan relied on the lack of evidence of clinical pneumoconiosis to “rule
out coal dust exposure as a cause” of Banks’s condition – a position that is inconsistent
with Department regulations – ALJ Merck accorded his opinion little probative weight
regarding the issue of legal pneumoconiosis.
Cumberland also argues that ALJ Merck failed to give valid reasons for
discounting Dr. Dahhan’s contrary evidence. It asserts that “Dr. Dahhan based his
medical judgment on the issue of pneumoconiosis upon all of the objective medical
evidence” and, therefore, the ALJ erred in his assessment of the report. Even though the
facts might permit an alternative conclusion, we cannot “substitute our judgment for that
of the ALJ.” Gray, 176 F.3d at 387. ALJ Merck gave three rational reasons for his
decision to discount the opinion. Therefore, he “adequately explained the reasons for”
discrediting the evidence. Morrison, 644 F.3d at 478. The ALJ did not err in
discounting Dr. Dahhan’s opinion. Instead, the ALJ’s conclusion is supported by
substantial evidence.
Finally, Cumberland argues that the ALJ erred by finding total disability due to
pneumoconiosis. To establish his entitlement to benefits under the Act, a miner must
prove by a preponderance of the evidence that his pneumoconiosis is a “substantially
contributing cause” of his disabling respiratory ailment. 20 C.F.R. § 718.204(c)(1).
Pneumoconiosis is considered to substantially contribute to a miner’s disability if it has
a “material adverse effect on the miner’s respiratory or pulmonary condition” or it
“[m]aterially worsens a totally disabling respiratory or pulmonary impairment which is
caused by a disease or exposure unrelated to coal mine employment.” 20 C.F.R.
§ 718.204(c)(1)(i)-(ii).
Here, ALJ Merck considered all of the medical opinion evidence before
concluding that Banks had established total disability due to pneumoconiosis. He
discounted the opinions of Drs. Jarboe and Dahhan because they based their disability
causation opinions on the premise that Banks did not suffer from any form of
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 16
pneumoconiosis. However, he gave full probative weight to the opinions of Drs.
Forehand and Rasmussen, both of whom concluded that Banks’s disability was caused
partly by his history of smoking and partly by his coal mine employment. Specifically,
Dr. Rasmussen opined that Banks’s “cigarette smoking and his coal mine dust exposure”
both contributed to his disabling lung disease. And Dr. Forehand found that “[w]ere it
not for claimant’s coal mine employment, respiratory impairment would not be to the
same degree.”
Cumberland asserts that the opinions of Drs. Forehand and Rasmussen are “too
conclusory and general to establish that Banks’[s] disability is substantially caused by
‘legal’ pneumoconiosis.” Citing this court’s opinion in Conley v. National Mines Corp.,
595 F.3d 297 (6th Cir. 2010), Cumberland contends that “such a conclusory medical
opinion cannot suffice.” However, Conley dealt specifically with a claim for survivor’s
benefits. In that context, a “substantially contributing cause” is one that “hastens the
miner’s death.” Id. at 303 (citing 20 C.F.R. § 718.205(c)(5)). The Conley court was
bound by previous precedents that held that “pneumoconiosis only ‘hastens’ a death if
it does so through a specifically defined process that reduces the miner’s life by an
estimable time.” Eastover Mining Co., 338 F.3d at 518. Based on this definition of the
term “hasten,” the Conley court found that the doctor’s opinion — that pneumoconiosis
makes a person more susceptible to lung cancer — was conclusory and unsupported,
and therefore “insufficient to support the determination that Mr. Conley’s legal
pneumoconiosis hastened his death.” 595 F.3d at 303. In the present case, because
Banks seeks benefits for himself, the standard for evaluating the medical evidence
supporting ALJ Merck’s finding of causation is not as stringent as that employed by the
Conley court. See Crockett Colleries, 478 F.3d at 356 (affirming ALJ’s finding of
disability due to legal pneumoconiosis based on doctor’s opinion that “coal dust
exposure probably contributes to some extent in an undefinable proportion” (internal
quotation marks omitted)).
In a claim for benefits brought by a miner, the opinions on which the ALJ relies
“must reflect reasoned medical judgment” to support a finding of total disability due to
No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 17
pneumoconiosis. Flynn, 353 F.3d at 483; see 20 C.F.R. § 718.204(c)(2) (“[T]he cause
or causes of a miner’s total disability shall be established by means of a physician’s
documented and reasoned medical report.”). ALJ Merck correctly concluded that the
opinions of Drs. Forehand and Rasmussen reflect reasoned medical judgment. Dr.
Rasmussen based his opinion on the fact that both smoking and coal dust inhalation
“cause lung tissue destruction even sharing some cellular and biochemical mechanisms.”
Additionally, as ALJ Merck notes, Dr. Rasmussen “rendered his opinion after he
examined [Banks] on three occasions, obtained a history of [his] coal mine employment
and cigarette smoking, and reviewed results from several objective medical tests.” Dr.
Forehand’s opinion was similarly based on a physical examination, patient history, and
objective medical test results. These opinions reflect reasoned medical judgments and
the ALJ did not err in relying on them to conclude that Banks’s legal pneumoconiosis
was a substantially contributing cause of his total disability.
IV.
For the foregoing reasons, we affirm the award of benefits.