Amax Coal Company v. OWCP

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4226
AMAX COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
and JACK CHUBB,
Respondents.
____________
Petition for Review of a Decision and
Order of the Benefits Review Board,
United States Department of Labor.
99-BLA-397
____________
ARGUED SEPTEMBER 27, 2002—DECIDED DECEMBER 6, 2002
____________
Before POSNER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Amax Coal Co. (“Amax”) appeals
from a grant of benefits by an administrative law judge
(“ALJ”) under the Black Lung Benefits Act, 30 U.S.C. § 901et seq. (“BLBA”), in favor of Jack L. Chubb. The Benefits
Review Board (“BRB” or “Board”) affirmed the ALJ’s de-
cision on initial review and again on reconsideration. Amax
asserts the ALJ and BRB erred on multiple grounds. It
asserts that it was denied due process of law because of
the delay in the litigation, that the ALJ’s decision is with-
2 No. 01-4226
out substantial evidence, that the statutory presumption
for date of onset violates the Administrative Procedure Act
(“APA”) and is thus invalid, and that the attorneys’ fees
requested by Mr. Chubb’s counsel are unreasonable. For
the reasons set forth in the following opinion, we affirm
in part and reverse in part.
I
BACKGROUND
Jack L. Chubb worked as a coal miner for twenty-eight
years. On August 22, 1978, he filed for black lung benefits
under the BLBA. A district director awarded benefits and
identified Amax as the company liable to pay the benefits.
Amax sought a hearing. By the time of the hearing, Mr.
Chubb indicated through counsel that he had returned to
coal mining on September 1, 1981, and wished to withdraw
his claim. In April 1982, the ALJ issued an order approv-
ing Mr. Chubb’s request to withdraw and dismissing Amax
as a party. However, on a motion by the Department of
Labor (“DOL”) for reconsideration, Amax was reinstated
as a party. Mr. Chubb requested a hearing on his entitle-
ment to benefits between August 1, 1978, and August 30,
1981; if it was determined that he was not entitled to ben-
efits from 1978 to 1981, he would be required to reimburse
the benefits he had received during that time period.
After experiencing episodes of shortness of breath and
some chest pain, Mr. Chubb retired from coal mining on
September 16, 1982. Amax contends that Mr. Chubb left
because of heart problems.
After multiple proceedings, the BRB, in 1992 stated that
the case was a “morass of procedural errors.” Petitioner’s
App. at 89. The BRB determined that, because
No. 01-4226 3
[the] procedural errors in this case go as far back as
claimant’s motion to withdraw his claim, justice re-
quires that we vacate this case in its entirety, and
remand it to the administrative law judge with in-
structions to convene a new hearing. At the hearing,
the administrative law judge should determine wheth-
er claimant wishes to pursue his previous request to
withdraw his 1978 claim.
Id. at 90. Amax sought reconsideration, which was denied
in 1994.
On remand, in November 1995, Mr. Chubb decided
to pursue his 1978 claim. In 1996, the ALJ concluded that
the x-rays, pulmonary function studies, and physicians’
opinions invoked the interim presumption of entitle-
ment under three of the alternative methods. See 20 C.F.R.
1
§ 727.203(a)(1),(2),(4). The ALJ found that Amax had not
rebutted the presumption under the applicable rebuttal
1
As will be discussed more fully infra, with regard to claims
filed after 1980, there are five methods by which a claimant
may invoke a rebuttable presumption of entitlement to benefits,
namely, by establishing any of the following: (1) pneumoco-
niosis as shown by x-ray, biopsy, or autopsy evidence under
§ 727.203(a)(1); (2) a totally disabling respiratory impairment,
as shown by pulmonary function tests under § 727.203(a)(2);
(3) a specified impairment in transfer of oxygen to the blood
as demonstrated by blood gas tests under § 727.203(a)(3); (4)
a totally disabling respiratory or pulmonary impairment as
shown by physicians’ opinions under § 727.203(a)(4); or (5) if
the miner is deceased and no medical evidence is available, by
affidavit of the miner’s physical condition under § 727.203(a)(5).
The ALJ here found that Mr. Chubb had invoked the presump-
tion under three of those methods: subsections (a)(1), (a)(2)
and (a)(4).
4 No. 01-4226
2
provisions. See 20 C.F.R. § 727.203(b)(1)-(4). The ALJ
found onset on April 23, 1984, and awarded benefits be-
ginning April 1, 1984.
The BRB affirmed as uncontested the ALJ’s finding of
invocation, that is, that the claimant had invoked the in-
terim presumption of entitlement, under § 727.203(a)(2)
by establishing a totally disabling respiratory impairment
3
as shown by pulmonary function tests. See Petitioner’s
App. at 62 n.2. The BRB nevertheless reviewed the ALJ’s
other findings that claimant had invoked the interim
presumption under § 727.203(a)(1) and § 727.203(a)(4)
because they affected the ALJ’s findings on rebuttal. The
Board determined that the ALJ’s other invocation find-
ings based on his weighing of the x-ray interpretations
and medical opinions could not stand and, consequently,
vacated the rebuttal findings on disability causation and
2
As will be discussed more fully infra, once the coal miner
has established a presumption of entitlement through any of
the five methods under § 727.203(a), the burden shifts to the
coal company to rebut that presumption. The coal company
rebuts the presumption of entitlement by establishing any of
the following facts: (1) the miner is, in fact, doing his usual
coal mine work or comparable work; (2) the miner is able to
do his usual coal mine work or comparable work; (3) the evi-
dence establishes that the miner’s disability is unrelated to his
mine employment; or (4) the evidence establishes that the miner
does not have pneumoconiosis. See 20 C.F.R. § 727.203(b)(1)-(4).
Amax unsuccessfully attempted to rebut the presumption un-
der subsections (b)(3) and (b)(4).
3
“Invocation” refers to a finding by the ALJ that the claimant
invoked the interim presumption under one of the methods
outlined in § 727.203(a) and thus the burden of production is
shifted to the employer to rebut the presumption of entitlement
under § 727.203(b).
No. 01-4226 5
the existence of pneumoconiosis. Based on contentions of
Amax that the April 1984 onset date was “arbitrary” and
contentions by Mr. Chubb that the record did not estab-
lish a date of onset, the BRB vacated the ALJ’s determina-
tion of an onset date. Id. at 64-65. The BRB advised the
ALJ that “where claimant was employed in coal mine em-
ployment subsequent to the filing of his claim, if the
evidence of record does not establish a particular date
of onset, the date of claimant’s last coal mine employment
is the date for the commencement of benefits.” Id. at 65.
On remand, the ALJ again awarded benefits. As to the
x-ray evidence, the ALJ explained:
I observe that a majority of the most highly qualified
physicians, those who are both B-readers and board
certified radiologists, found the presence of pneumoco-
niosis. Pneumoconiosis is a progressive disease and
since the 1982 film was taken, the positive readings
among dually qualified physicians constitute a size-
able majority of the readings by physicians possessing
the most impressive credentials. It is proper to cred-
it the opinions of dually qualified physicians over
B-readers and I do so here. I do not lend added weight
to the November 24, 1995 negative readings based
on recency, because of the majority findings.
Id. at 52 (citations omitted). The ALJ also found the med-
ical opinions established the presence of a totally disabling
respiratory impairment under § 727.203(a)(4). The ALJ
accepted the medical opinions that diagnosed Mr. Chubb
as totally disabled by a respiratory impairment because:
(1) Dr. Lenyo is board certified in internal medicine and
repeatedly examined and diagnosed Mr. Chubb with res-
piratory disability due to pneumoconiosis; (2) the opin-
ions of Drs. Lenyo, Combs and Rader were all “reasoned
and documented”; and (3) the opinions of Drs. Deppe and
6 No. 01-4226
Jacobson were otherwise consistent with the opinions
finding disability present. Id. at 53. The ALJ afforded ad-
ditional credence to these opinions because the pulmonary
function studies supported the physicians’ conclusions.
The ALJ discredited the opinions of Dr. Tuteur, because
Dr. Tuteur did not believe that Mr. Chubb had pneumoco-
niosis, and Dr. Myers, because of the equivocal and vague
expression of her conclusions.
The ALJ also determined that Amax had not rebutted
this evidence. Although Drs. Tuteur and Myers had of-
fered opinions in favor of rebuttal, the ALJ did “not find
their opinions to be sufficient to establish rebuttal in the
face of five physicians who believe the contrary, one of
whom is also board certified.” Id. at 54. Additionally, the
ALJ gave Drs. Tuteur and Myers less weight for the “same
reasons” that he had stated earlier. Id. The ALJ also dis-
missed reconsideration of the rebuttal evidence under
§ 727.203(b)(4) as “unnecessary” because the finding under
§ 727.203(a)(1) that the disease had been established by
x-ray evidence precluded a finding of rebuttal premised
on the absence of the disease. Id.
The ALJ awarded benefits beginning September 1, 1982,
the month in which Mr. Chubb had retired from coal min-
ing. The ALJ noted that the testimony of various physi-
cians and other medical evidence had provided differ-
ing dates ranging from 1980 to 1995. The ALJ did not find
that any of these established a specific date of onset of
when Mr. Chubb first became totally disabled. While
under 20 C.F.R. § 725.503 the date of filing is the default
date of onset when a specific date of onset is not estab-
lished by the evidence, the ALJ explained that because
Mr. Chubb returned to work after the date of filing,
pursuant to 20 C.F.R. § 725.503A(c) and Order of the
Board, I must find that the date of the Claimant’s last
No. 01-4226 7
coal mine employment is the date for the commence-
ment of benefits, unless credited medical evidence
establishes that Claimant was not totally disabled at
some point post retirement. I do not find credited
medical evidence which establishes that the Claimant
was not totally disabled after his retirement. Indeed,
Dr. Lenyo opined that the Claimant was totally dis-
abled prior to leaving coal mine employment. I must
therefore use Mr. Chubb’s last date of coal mine em-
ployment as the onset date.
Petitioner’s App. at 55. The ALJ ordered benefits com-
mencing on September 1, 1982, the month that Mr. Chubb
retired.
Amax appealed and the BRB affirmed. The BRB noted that
the ALJ had not merely relied on a head count of the
testifying physicians, but had adequately explained his
crediting and discrediting of the various physicians’
opinions. The BRB also rejected Amax’s arguments con-
cerning any due process violation, noting that Amax had
been timely notified of the claim and had been an active
participant in all of the proceedings. On reconsideration, the
BRB again affirmed. Mr. Chubb died in 2000. His wife,
Madge Chubb, is pursuing his claim.
II
DISCUSSION
A. Standard of Review
Although we review questions of law de novo, we ac-
cord “the ALJ’s factual findings considerable deference.”
Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 478
(7th Cir. 2001). In fact, “[w]e ask only whether the ALJ’s
decision is rational, supported by substantial evidence,
and in accordance with the law. Substantial evidence is
8 No. 01-4226
such relevant evidence as a rational mind might accept
as adequate to support a conclusion.” Id. (internal quota-
tion marks and citations omitted). Moreover, “[w]e do
not reweigh the evidence, resolve inconsistencies in the
record, make credibility determinations, or substitute
our inferences for those drawn below.” Id.B. Due Process
Amax claims that the sixteen-year delay in this proceed-
ing (from the time of the 1978 filing to the 1994 order to
start afresh) was sufficient to deny it due process of law.
It relies on the decisions of the Fourth Circuit in Consolida-
tion Coal Co. v. Borda, 171 F.3d 175, 183 (4th Cir. 1995),
and Lane Hollow Coal Co. v. Director, Office of Workers’
Compensation Programs, 137 F.3d 799 (4th Cir. 1998).
As the Second Circuit has noted, the Borda and Lane
Hollow decisions dealt with delay “in the [defendant’s]
receipt of notification that proceedings would be insti-
gated, not delay in actually litigating the matter once
both parties were on notice of the proceedings.” New York
State Nat’l Org. for Women v. Pataki, 261 F.3d 156, 167 (2d
Cir. 2001). In Lane Hollow, the DOL failed to inform the
coal company of the proceedings against it for seventeen
years after it could have notified it and eleven years after
it was required to notify it. Lane Hollow, 137 F.3d at 802.
Similarly, in Borda, the DOL failed to process a miner’s
claim when it was filed in 1978. Ten years later upon a
resubmission by the miner, the DOL informed the coal
company of the 1988 resubmission, but did not mention
any potential validity of a 1978 claim. The day before the
1994 hearing before the ALJ, the coal company was in-
formed that the 1978 claim was still viable. Indeed, the
Fourth Circuit itself stated in Betty B Coal Co. v. Director,
No. 01-4226 9
Office of Workers’ Compensation Programs, 194 F.3d 491, 501
(4th Cir. 1999), that Borda and Lane Hollow dealt with de-
nial of due process rights when the defendants had not
4
received “timely notice of the proceeding.” In contrast,
Amax received notice of, and participated in, all of the
proceedings dealing with Mr. Chubb’s claim since 1978.
In our view, the decision of the Third Circuit in C & K Coal
Co. v. Taylor, 165 F.3d 254 (3d Cir. 1999), provides more
appropriate guidance in evaluating the present case. There,
the DOL delayed twenty-three years in making its determi-
nation. Yet the Third Circuit refused to transfer the respon-
sibility from the coal company to the Black Lung Trust
Fund because of the lack of significant prejudice to either
party. It noted that the delay was “inexcusable,” but that
the claimant had been receiving benefits from the Trust
Fund and the coal company had been able to procure
medical evidence before the death of the miner. Id. at 258-59.
The Third Circuit concluded, “we see no prejudice other
than that attendant on the failure to confirm the liability
that had been asserted years earlier.” Id. at 259. Addition-
ally, the Third Circuit saw no reason to shift payment
onto the Trust Fund, an innocent party that did not cause
the delay, “when there is an operator legally responsible
and financially capable of assuming payments.” Id.; see
also Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir.
1987) (noting that Congress “intended to ensure that
individual coal operators rather than the trust fund bear
the liability for claims arising out of such operators’ mines
4
“Betty B complain[ed] about the course of the administrative
proceedings; the respondents in Borda [and] Lane Hollow . . . were
unaware that proceedings were even under way.” Betty B Coal
Co. v. Dir., Office of Workers’ Comp. Programs, 194 F.3d 491, 501
(4th Cir. 1999).
10 No. 01-4226
to the maximum extent feasible” (internal quotation marks
and citations omitted)).
C. Interim and Rebuttal Findings
In awarding benefits in 1996, the ALJ relied on the in-
terim presumption, 20 C.F.R. § 727.203(a), which was
repealed in 1980, but which applies to claims that were
5
filed before that date. This interim presumption pro-
vides a rebuttable presumption of entitlement (that is,
total disability due to pneumoconiosis arising out of coal
mine employment). The claimant may invoke this rebut-
table presumption by establishing any of the following:
(1) pneumoconiosis as shown by x-ray, biopsy, or autopsy
evidence under § 727.203(a)(1); (2) a totally disabling
respiratory impairment, as shown by pulmonary function
tests under § 727.203(a)(2); (3) a specified impairment in
transfer of oxygen to the blood as demonstrated by blood
gas tests under § 727.203(a)(3); or (4) a totally disabling
respiratory or pulmonary impairment as shown by phy-
sicians’ opinions under § 727.203(a)(4). Upon invocation
of the presumption through any of these bases, the bur-
den shifts to the coal company to rebut the entitlement.
This rebuttal can be accomplished by showing by a prepon-
derance of the evidence any of the following facts: (1) the
miner is, in fact, doing his usual coal mine work or com-
parable work; (2) the miner is able to do his usual coal
mine work or comparable work; (3) the evidence estab-
lishes that the miner’s disability is unrelated to his mine
employment; or (4) the evidence establishes that the
5
Because it was repealed, Part 727 is no longer in the Code
of Federal Regulations but may be found at 43 Fed. Reg. 36,818-
36,831 (Aug. 18, 1978).
No. 01-4226 11
miner does not have pneumoconiosis. See 20 C.F.R.
§ 727.203(b)(1)-(4).
The ALJ found invocation of the presumption of bene-
fits under § 727.203(a)(2) (a totally disabling respiratory
impairment, as shown by pulmonary function tests). Amax
did not dispute this invocation. Consequently, Amax’s
assertions of error concerning the ALJ’s findings of in-
vocation under other subsections of § 727.203(a) are mostly
not relevant because the presumption is invoked through
§ 727.203(a)(2). However, as Amax correctly points out,
the ALJ’s finding that invocation was established under
§ 727.203(a)(1) by x-ray evidence is still relevant because
a finding of invocation under § 727.203(a)(1) precludes a
coal company from being able to rebut the interim pre-
sumption under § 727.203(b)(4) using a theory that Mr.
Chubb did not have pneumoconiosis. See Mullins Coal Co.
v. Dir., Office of Workers’ Comp. Programs, 484 U.S. 135, 150
& n.26 (1987). Amax also contends that the ALJ erred in
finding that Amax did not rebut the presumption under
§ 727.203(b)(3) using a theory that the miner’s disability is
unrelated to his coal mine employment.
1.
The ALJ’s finding that the x-ray evidence supported
invocation of the presumption (see § 727.203(a)(1)) is sup-
ported by substantial evidence. The ALJ stated that “a
majority of the most highly qualified physicians, those
who are both B-readers and board certified radiologists,
found the presence of pneumoconiosis.” Petitioner’s App.
at 52. As stated by Amax itself, of the thirteen films, “there
are nine readings by doctors dually qualified as board-
certified radiologists and B-readers. Six of the nine read-
ings were positive.” Petitioner’s Br. at 22. Amax argues
12 No. 01-4226
that these six positive readings are insufficient because
they take into account only four of the thirteen films; but
six positive readings out of nine by the most qualified
physicians is substantial evidence.
Amax submits that, in evaluating the x-ray evidence
and the accompanying medical opinions, the ALJ imper-
missibly ruled by a head count. We cannot accept this
contention. Our review of the record makes it clear that the
ALJ adequately explained his credibility determinations.
The ALJ did not rely on a mere head count. Rather, he
gave weight to the readings taken by the “physicians pos-
sessing the most impressive credentials.” Petitioner’s App.
at 52. Amax submits that Zeigler Coal Co. v. Office of Work-
ers’ Compensation Programs, 23 F.3d 1235 (7th Cir. 1994),
overruled on other grounds by Dir., Office of Workers’ Comp.
Programs v. Greenwich Colleries, 512 U.S. 267 (1994), is “vir-
tually identical” to this case. Petitioner’s Br. at 23. Howev-
er, in Zeigler Coal, the only medical evidence that the
claimant brought forward consisted of seven x-ray read-
ings, five of which were negative, and two of which were
positive. The claimant had no other evidence. None of the
pulmonary studies or other tests resulted in a qualifying
or positive diagnosis of pneumoconiosis. Nor did the
claimant even have an examining physician’s opinion
stating that the physician believed claimant had pneumo-
coniosis. See id. The court held that the two positive x-ray
readings standing alone (and contradicted by five negative
readings) did not constitute “substantial evidence.” Id. at
1239. In stark contrast, Mr. Chubb has six positive x-ray
readings out of nine readings by dually qualified B-readers
6
and radiologists. The ALJ’s finding that the interim pre-
6
Additionally, while not related to invocation under
§ 727.203(a)(1), Mr. Chubb has corroborating evidence of five
(continued...)
No. 01-4226 13
sumption was invoked under § 727.203(a)(1) by x-ray
evidence was supported by substantial evidence, and,
consequently, Amax cannot rebut the existence of pneu-
moconiosis under § 727.203(b)(4). See Mullins Coal Co., 484
U.S. at 150 & n.26.
2.
Amax also submits that it rebutted the presumption
of entitlement pursuant to § 727.203(b)(3) (that is, the
evidence establishes that the miner’s disability is unre-
lated to his coal mine employment) because Mr. Chubb’s
disability was caused by a heart problem and not pneumo-
coniosis. The standard for § 727.203(b)(3) rebuttal is that
the coal company “must demonstrate that the claimant’s
total disability was caused entirely by an impairment
other than pneumoconiosis.” Zeigler Coal Co. v. Kelley, 112
F.3d 839, 844 (7th Cir. 1997) (internal quotation marks and
citations omitted). Although the record shows that Mr.
Chubb had heart problems, it also is replete with evidence,
including the opinions of five physicians, pulmonary
studies, and x-rays, that Mr. Chubb’s disability was at
least in part due to pneumoconiosis. Amax’s only evi-
dence to the contrary is the testimony of Drs. Tuteur and
Myers.
Amax argues that the ALJ impermissibly discredited
the opinions of Drs. Tuteur and Myers and credited the
opinions of five other physicians, one of whom was board
certified in internal medicine and repeatedly examined
and diagnosed Mr. Chubb with pneumoconiosis. Again,
the ALJ did not merely rely on a head count, but ex-
6
(...continued)
positive opinions by doctors, including one certified in inter-
nal medicine, and positive pulmonary studies.
14 No. 01-4226
plained his reasons for discrediting the testimonies of Drs.
Tuteur and Myers. He discredited Dr. Tuteur’s argument
that pneumoconiosis was not a contributing cause be-
cause Dr. Tuteur did not believe the patient even had
pneumoconiosis and the ALJ had found under multiple
presumptions that Mr. Chubb did have it. See Peabody Coal
Co. v. Shonk, 906 F.2d 264, 271 (7th Cir. 1990) (“Since Pea-
body’s physicians rejected the possibility that Mr. Shonk
had anthracosis at all, the ALJ distrusted their opinions
as to whether the miner’s lungs were impaired by any
pulmonary or respiratory disease.”). The ALJ discredited
Dr. Myers because her testimony was “equivocal” and
“vague.” Petitioner’s App. at 53. For example, while ad-
mitting that Mr. Chubb has “a significant limitation,” she
stated that it “appeared more cardiac than pulmonary.”
Employer’s Ex.24. In conclusion, the ALJ noted that
[a]lthough the opinions of Drs. Meyer [sic] and Tuteur
are entitled to added weight based on their board certi-
fications, I find that they are not sufficient to over-
come the overwhelming weight of the opinion evi-
dence and objective medical evidence to the contrary.
7
Petitioner’s App. at 53. It is not our province to weigh
expert opinions; that is the province of the ALJ. See
Livermore v. Amax Coal Co., 297 F.3d 668, 672 (7th Cir. 2002).
The ALJ’s findings of no rebuttal under § 727.203(b)(3) are
supported by substantial evidence.
7
Although the ALJ makes this statement in discussing invoca-
tion of the interim presumption under § 727.203(a)(4), see Pe-
titioner’s App. at 53, he states in discussing rebuttal under
§ 727.203(b)(3) that “I give less weight to the opinions of Drs.
Tuteur and Myers for the same reasons that I did in the dis-
cussion of 727.203(a)(4).” Id. at 54.
No. 01-4226 15
Accordingly, we affirm the ALJ’s findings of invocation
of the interim presumption under § 727.203(a) with no
rebuttal by Amax under § 727.203(b).
D. Date of Onset
1. The Correct Default Date
8
The ALJ, at the direction of the BRB, determined that
8
As noted previously, the BRB instructed the ALJ that “the
date of claimant’s last coal mine employment is the [default] date
for the commencement of benefits.” Petitioner’s App. at 65. The
BRB cites to two BRB opinions for this proposition, see id.,
but neither case establishes a rule that the date of retirement
should be used as the default date of onset. See Williams v.
Dir., Office of Workers’ Comp. Programs, 13 BLR 1-28, No. 87-3611
BLA, 1989 WL 245234, at *1 (Ben. Rev. Bd. 1989); Donadi v. Dir.,
Office of Workers’ Comp. Programs, 12 BLR 1-166, No. 87-2354, 1989
WL 245204, at *1-2 (Ben. Rev. Bd. 1989).
Williams was not decided under the interim presumption
at issue here; rather, in Williams, the ALJ had determined that
the evidence established that the claimant suffered from compli-
cated pneumoconiosis, and thus invocation of the irrebuttable
presumption of total disability due to pneumoconiosis was
established pursuant to 30 U.S.C. § 921(c)(3). Consequently,
in discussing a default date of onset, the BRB stated that the
onset date “is the month during which the claim was filed . . .
unless the evidence affirmatively establishes that claimant had
only simple pneumoconiosis for any period subsequent to the
date of filing . . . in which case benefits must commence following
the period of simple pneumoconiosis.” Williams, 13 BLR at 1-30,
1989 WL 245234, at *2 (emphasis added). The statement does
not establish that the date of onset should be the date of retire-
ment when the interim presumption is used. Rather, it is mere-
ly an application, to the irrebuttable presumption, of the gen-
(continued...)
16 No. 01-4226
the date of onset was the date of Mr. Chubb’s retirement,
September 16, 1982, and thus Mr. Chubb was entitled to
benefits beginning September 1, 1982. The ALJ erred in
selecting the date of retirement, rather than the date of
filing, as the default date. See Green v. Dir., Office of Work-
ers’ Comp. Programs, 790 F.2d 1118, 1119 (4th Cir. 1986)
(finding that where evidence did not establish a default
date and where miner worked after filing his claim, the
ALJ’s selection of the retirement date as a default date
of onset was “neither supported by the substantial evi-
dence nor in accordance with the law”).
When the evidence does not establish a date of onset,
20 C.F.R. § 725.503 applies. That section provides that
“[w]here the evidence does not establish the month of onset,
8
(...continued)
eral rule that the filing date is the default onset date unless
credible medical evidence indicates that claimant was not
totally disabled at some point subsequent to his filing date.
In Donadi, the BRB stated that the ALJ “made an error of
law” in awarding benefits beginning on the date of filing, which
was the default date of onset. Donadi, 12 BLR at 1-168, 1989
WL 245204, at *1. The evidence was uncontradicted that the
miner was engaged in coal mine employment from the date
of filing until the date of his death. Consequently, under
§ 725.503A, which requires that benefits be suspended during
the time of any coal mine employment, the miner could not
receive benefits during the time of his coal mine employment. In
contrast, Mr. Chubb was not engaged in work at the time of
his filing in 1978 and did not return to work until September
1981. Donadi does not address the issue where the miner re-
turns to work for a short time, after a period of leave, before
finally retiring permanently. As discussed in the opinion prop-
er, Green v. Director, Office of Workers’ Compensation Programs,
790 F.2d 1118 (4th Cir. 1986), addresses this issue.
No. 01-4226 17
benefits shall be payable to such miner beginning with
the month during which the claim was filed.” 20 C.F.R.
§ 725.503(b). The coal company can refute that date by
bringing forth credible medical evidence that the miner
was not disabled on the date of filing. See Rochester &
Pittsburgh Coal Co. v. Krecota, 868 F.2d 600, 603-04 (3d Cir.
1989). Because the ALJ correctly found that the evidence
did not establish a month of onset, the onset date is the
date of Mr. Chubb’s filing, namely, August 22, 1978.
The matter, however, is complicated by Mr. Chubb’s
return to work in September 1981 for a year. The ALJ
correctly cited 20 C.F.R. § 725.503A (now codified at 20
C.F.R. § 725.504) as covering this issue. That section pro-
vides that “the payments to the miner shall be suspended
and no benefits shall be payable . . . for the period during
which the miner continues to work.” The ALJ misapplied
the section by determining that the date of onset was
the date of Mr. Chubb’s retirement. When correctly ap-
plied, the section dictates that the onset date is the date of
filing with benefits suspended during the period of Mr.
Chubb’s employment.
The decision of the Fourth Circuit in Green is illustrative.
In Green, the miner was engaged in non-coal mine em-
ployment for many years after his date of filing. Green, 790
F.2d at 1118-19. The ALJ and BRB determined that the date
of the miner’s retirement from his non-coal mining jobs
should be the default date of onset. The Fourth Circuit
reversed, stating that selection of the date of retirement
as the default date of onset was not “in accordance with
applicable law” and that “the onset date is determined
pursuant to 20 C.F.R. § 725.503(b), and thus is December 2,
1974, the day Green filed his claim.” Id. at 1118-19. The
Fourth Circuit explained that, even though benefits are
suspended for periods during which a coal miner is em-
18 No. 01-4226
ployed in coal mine employment or comparable and gain-
ful employment under 20 C.F.R. § 725.503A, the ALJ’s
selection of the wrong default onset date could not be
excused because the ALJ had failed to examine the claim-
ant’s employment from December 2, 1974, to June 1, 1981,
to determine whether it was comparable and gainful. Id.
at 1120. The court held that the date of onset was the date
of filing, and the benefits were to be suspended only dur-
ing periods where the miner was engaged in coal mine
employment or in other comparable and gainful employ-
ment. Id.Thus the correct default onset date under § 725.503 is
9
the filing date, August 22, 1978. Benefits will be sus-
pended during the year that Mr. Chubb worked accord-
ing to § 725.503A (now § 725.504) and will commence
again beginning August 1, 1982, the month Mr. Chubb
retired.
9
When asked at oral argument what onset date it proposed
should be used, Amax selected November 1995, explaining
that it was the date of the evidence that was principally relied
upon by the ALJ in invoking the interim presumptions. How-
ever, the date on which a report is made cannot be equated
with the date of onset of the disease diagnosed or referenced in
that report. The Fourth Circuit stated in Green, “medical evi-
dence showing total disability does not establish the onset of
disability but is merely indicative that the claimant became
disabled at some time prior to that date, and . . . ‘[w]here the
onset date of total disability cannot be determined from the
evidence of record, benefits are awarded from the month in
which the claim was filed.’ ” Green, 790 F.2d at 1119-20 n.4
(citations omitted).
No. 01-4226 19
2. The Validity of a Default Date
Amax argues that 20 C.F.R. § 725.503 is invalid, as is
any “[u]se of a default date for onset” because it conflicts
with § 7(c) of the APA. Petitioner’s Br. at 29. Section 7(c)
states that “[e]xcept as otherwise provided by statute, the
proponent of a rule or order has the burden of proof.”
5 U.S.C. § 556(d). Amax argues that having a default
date, even if it can be rebutted by medical evidence,
impermissibly shifts the burden of proof from the claim-
ant to the employer—which is contrary to § 7(c). Amax
states that the claimant must be able to prove by a prepon-
derance of evidence the date of onset or fail on his claim.
As noted by the Supreme Court in Director, Office of
Workers’ Compensation Programs v. Greenwich Colleries, 512
U.S. 267, 271 (1994), the BLBA incorporates the APA, “but
it does so ‘except as otherwise provided . . . by regula-
tions of the Secretary.’ 30 U.S.C. § 932(a).” Section 725.503
is a regulation by the Secretary. Therefore, under the ex-
press language of the BLBA, the APA does not trump the
10
regulation.
10
The Supreme Court found it unnecessary to decide whether
such a provision was valid; rather, the Court assumed “arguendo,
that the Department has the authority to displace § 7(c) through
regulation,” but determined that the “true doubt” rule, at
issue in Greenwich Colleries, was not contained in a regulation
by the Secretary. Dir., Office of Workers’ Comp. Programs v.
Greenwich Colleries, 512 U.S. 267, 271 (1994).
We have held elsewhere that “if the Secretary of Labor has
promulgated regulations which expressly provide” for the
resolution of some matter also covered by the APA, then the
APA provision “does not apply.” Midland Coal Co. v. Dir., Office
of Workers’ Comp. Programs, 149 F.3d 558, 563 (7th Cir. 1998).
20 No. 01-4226
In any event, Greenwich Colleries makes plain that the
designation “burden of proof” in § 7(c) refers only to “the
burden of persuasion” and not to “the burden of produc-
tion or the burden of going forward with the evidence.”
Id. at 274-76. Section 725.503 “shift[s] the burden of pro-
duction, rather than the burden of proof,” as it is merely
a “rebuttable evidentiary presumption[] enacted to ease
the burden on claimants in black lung claims adjudica-
tions.” Nat’l Mining Ass’n v. Chao, 160 F. Supp. 2d 47, 70-71
(D.D.C. 2001), rev’d in part on other grounds and aff’d in part
by Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 871-
72 (D.C. Cir. 2002) (failing to address the district court’s
ruling on § 727.503, but noting that another DOL eviden-
tiary presumption for the BLBA was not invalid under
§ 7(c) of the APA or Greenwich Colleries because the reg-
ulation “shifted the burden of production, not the burden
of proof; it requires nothing more than that operators
must submit evidence rebutting an assertion of liability”).
The Fourth Circuit has noted that other similar rebut-
table presumptions concern the burden of production
and not the burden of proof and thus are permitted by
Greenwich Colleries. For example, concerning the rebut-
11
table Doris Coal presumption, the Fourth Circuit ex-
plained that
[t]hough the miner’s burden of proving his claim is
not onerous, it does not follow that it is non-existent
11
Under the Doris Coal presumption, once a miner has proven
that he is totally disabled due to pneumoconiosis, the medical
bills supplied by the miner for treatment of any pulmonary
disorder will be presumed to be necessary for the treatment
of pneumoconiosis. See Gulf & W. Indus. v. Ling, 176 F.3d 226, 232-
34 (4th Cir. 1999); Doris Coal Co. v. Dir., Office of Workers’
Comp. Programs, 938 F.2d 492, 496-97 (4th Cir. 1991).
No. 01-4226 21
or that it has somehow been shifted to the employ-
er. . . . If the party opposing the claim produces credible
evidence that the treatment rendered [is not related
to the pneumoconiosis] . . . the mere existence of a
medical bill without more, shall not carry the day. . . .
“We hold that the Doris Coal presumption merely
reallocates the burden of production, and does not
affect the burden of proof.”
Gulf & W. Indus. v. Ling, 176 F.3d 226, 233-34 (4th Cir. 1999)
(quoting Glen Coal Co. v. Seals, 147 F.3d 502, 512 (6th Cir.
1998)). The Fourth Circuit further explained, “ ‘the only
thing that changes is that the claimant’s initial burden of
coming forward with evidence supporting his stage two
claim is eased by virtue of the determination in the first
stage that he has pneumoconiosis.’ ” Id. at 234 (quot-
ing Glen Coal, 147 F.3d at 512). Similarly, once the miner
has proven total disability by pneumoconiosis, if the evi-
dence is unclear as to the actual date of onset, then
§ 725.503 establishes a presumption that the miner was
disabled when he filed for benefits, unless the coal com-
pany brings forth contrary credible medical evidence. As
with the Doris Coal presumption, § 725.503 shifts the bur-
den of production and not the burden of proof, and so it
is permitted by Greenwich Colleries and § 7(c) of the APA.
E. Attorneys’ Fees
Amax argues that Mr. Chubb’s counsel, Sandra Fogel,
was awarded an unreasonable fee in her final fee request
for nineteen hours at a rate of $200 an hour. Under 30
U.S.C. § 932(a), an attorney for a successful claimant of
black lung benefits is entitled to a reasonable fee. The fee
must be “reasonably commensurate with the necessary
22 No. 01-4226
work done” and must take into account several factors,
including,
the quality of the representation, the qualifications of
the representative, the complexity of the legal issues
involved, the level of proceedings to which the claim
was raised, the level at which the representative en-
tered the proceedings, and any other information
which may be relevant to the amount of fee requested.
20 C.F.R. § 725.366. Additionally, “the rate chargeable
against the mine operator must be market-based . . . with-
out a premium for the contingent nature of the compensa-
tion.” Peabody Coal Co. v. McCandless, 255 F.3d 465, 470
(7th Cir. 2001) (remanding an ALJ’s award at a rate of $200
an hour, which the attorney claimed was his customary
fee, but where the attorney admitted that the highest he
had ever charged a paying client was $150 an hour).
Ms. Fogel stated that $200 was her “usual and customary
fee.” See Petitioner’s Supplemental App. at 16. However,
because Ms. Fogel only litigates black lung cases, she
does not have any regular fee-paying clients by which to
determine her market-based rate. Attached to her affi-
davit she included affidavits of various black lung attor-
neys throughout the country stating that they believed that
$200 was a reasonable rate in light of Ms. Fogel’s expertise
and that they had been awarded fees at a rate of $200
or more in black lung litigation. See id. at 31-36. Addition-
ally, the vice president of the local bar association in
southern Illinois stated that she believed the fee was
reasonable in light of typical fees charged in the area, the
expertise required for black lung cases and Ms. Fogel’s
experience. See id. at 24-25. In her brief, Ms. Fogel further
notes that she “has filed at least 27 applications for attor-
ney’s fees at a rate of $200.00 per hour, 22 of which have
been ruled on. All 22 have been approved at the requested
No. 01-4226 23
billing rate by different administrative law judges and the
12
Board.” Br. of Claimant-Resp’t at 30.
We recently upheld a fee award of $200 for the attorney
of a successful black lung claimant. There, as here, the
coal company asserted that the fee was unreasonable, but
we held that “[g]iven VanStone’s fee recoveries in a num-
ber of similar cases, his representation that this is his
usual fee, and the absence of any contrary information
regarding the market rate from [the coal company], we
affirm the BRB’s award of fees.” Peabody Coal Co. v. Estate
of J. T. Goodloe, 299 F.3d 666, 672 (7th Cir. 2002). Similarly,
Amax has complained that $200 is not reasonable for the
area of southern Illinois, but has not submitted any con-
trary evidence that the fee is unreasonable. Amax further
contends that Ms. Fogel cannot rely on what she has been
awarded in other black lung cases to support the reason-
ableness of her fee. However in Goodloe, we considered
the attorney’s “fee recoveries in a number of similar cases”
in determining that the attorney’s rate was reasonable. Id.In light of the affidavits submitted by Ms. Fogel and the
lack of refutation by Amax, the rate of $200 an hour, ap-
proved by the ALJ, is affirmed.
12
Pursuant to Federal Rule of Appellate Procedure 28(j), Ms.
Fogel informed us of an additional application for attorneys’ fees
at the rate of $200 an hour, which was approved by this court
in a post-opinion order for her representation in Consolidation
Coal Co. v. Stein, 294 F.3d 885 (7th Cir. 2002).
24 No. 01-4226
Conclusion
For the forgoing reasons, we affirm the decision of the
ALJ with respect to all matters except the date of onset.
We reverse the ALJ’s selection of the retirement date as
the default onset date. When the ALJ has found that no
onset date is established by the evidence, the default date
is the filing date with benefits suspended for any period
of coal mine employment in the absence of any credible
medical evidence rebutting disability at the time of filing.
The respondents may recover their costs in this court.
AFFIRMED in part, REVERSED in part
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-02