Zeigler Coal Co. v. Office of Workers' Compensation Programs

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1248
ZEIGLER COAL COMPANY,
Petitioner,
and,
ST. PAUL TRAVELERS INSURANCE
COMPANY,
Intervening Petitioner,
v.
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, United States Department
of Labor, and EDWARD GRISKELL,
Respondents.
____________
Petition for Review of an Order
of the Benefits Review Board.
No. 04-BLA-0404
____________
ARGUED JANUARY 4, 2007—DECIDED JUNE 19, 2007
____________
Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Edward Griskell first applied for
black lung benefits on January 19, 1976, when he was 39
years old. His claim went through several administrative
iterations. Finally, the ALJ awarded benefits and the Board
2 No. 06-1248
affirmed. Zeigler Coal Company (“Zeigler”) timely peti-
tioned for review by this court.1 For the reasons set forth
in this opinion, we affirm the decision of the Board.
1
On February 9, 2007, The St. Paul Travelers Insurance Co. (“St.
Paul”) filed a Motion for Leave to Intervene with this court. In
this motion, St. Paul submits that Zeigler Coal Company
(“Zeigler”) and its parent company, Horizon Natural Resources
Co. (“Horizon”), were liquidated in bankruptcy proceedings in
2004 and that Zeigler’s surety, St. Paul, petitioned for review on
Zeigler’s behalf. St. Paul did not move to intervene in the
petition at that time. St. Paul now contends, however, that this
court’s opinion in Old Ben Coal Co. v. Office of Workers’ Compensa-
tion Programs, 476 F.3d 418 (7th Cir. 2007), establishes good
cause to excuse the untimeliness of their motion to intervene.
This court held in Old Ben that, because Old Ben had no
“palpable existence or successor,” it was not a real party in
interest and thus dismissed the case. Id. at 419, 420. We stated
further that “[a]ny entity, such as an insurance company or a
surety, that would be prejudiced by an award of black lung
benefits is entitled to intervene in the administrative proceeding
with the rights of a party. 20 C.F.R. §§ 725.360(a)(4), (d). It can
seek intervention in this court as well. Fed. R. App. P. 15(d).”
Old Ben, 476 F.3d at 420. Old Ben certainly countenances inter-
vention in a case such as this, where Zeigler no longer has any
financial interest in the outcome of this case and St. Paul, as
Zeigler’s surety, clearly has such an interest. St. Paul showed
good cause to intervene because, until our decision in Old Ben,
St. Paul had no reason to believe that intervention was neces-
sary to protect this interest. Therefore, we granted St. Paul’s
motion. For convenience, because all of the briefings and other
court documents were filed prior to the granting of this motion,
we shall continue to reference Zeigler as the petitioner through-
out this opinion.
No. 06-1248 3
I
BACKGROUND
A. Facts
Mr. Griskell began working for a coal mining company
in 1960. This coal mine eventually was succeeded by
Zeigler. Mr. Griskell worked in the mines until 1974 in a
variety of capacities. In 1976, he filed a claim for black lung
benefits under Title IV of the Federal Coal Mine Health and
Safety Act of 1969, as amended by the Black Lung Benefits
Act of 1977. His claim progressed through the admin-
istrative system; it was reviewed multiple times by both
an administrative law judge (“ALJ”) and the Benefits
Review Board (“Board” or “BRB”). Finally, the Board
affirmed the ALJ’s award of benefits on July 11, 2005.
Before the ALJ, Mr. Griskell supported his claim with
several reports that contained a diagnosis that he had
probable coal workers’ pneumoconiosis. He presented
five positive x-ray readings for pneumoconiosis that had
been read by four radiologists, all of whom were certified
B-readers, and by one internist who was also a B-reader.
He also submitted three medical opinions that concluded
that he was disabled due to coal workers’ pneumoconiosis.
First, Dr. Barnett submitted reports indicating Mr.
Griskell’s respiratory problems primarily were due to
coal dust exposure and secondarily were due to cigarette
smoking. He concluded that Mr. Griskell’s pulmonary
function reports indicated a moderate obstructive defect
and Grade III dyspnea; these pulmonary problems ren-
dered Mr. Griskell totally disabled. He also diagnosed
Mr. Griskell with coal workers’ pneumoconiosis based on
chronic bronchitis and a fourteen year history of heavy
exposure to coal dust while on the job. The ALJ determined
4 No. 06-1248
Dr. Barnett’s opinion set forth his clinical observations and
findings and that his reasoning was supported by ade-
quate data. Therefore, the ALJ accorded probative weight
to Dr. Barnett’s opinion.
The ALJ devoted the largest portion of his opinion to a
discussion of Dr. Hessl’s examinations of Mr. Griskell. Dr.
Hessl first examined Mr. Griskell in 1989 and determined
that the miner had chronic bronchitis, mild obstructive
lung disease and probable coal workers’ pneumoconiosis.
Dr. Hessl believed that all these conditions primarily
were caused by coal dust exposure and determined their
secondary etiology was Mr. Griskell’s smoking history. He
made similar findings when he saw Mr. Griskell in 1991
and 1993. Each time, he considered an account of Mr.
Griskell’s coal mine employment and smoking history and
conducted a variety of medical tests. In 1996, Dr. Hessl
submitted reports containing a positive diagnosis for
coal workers’ pneumoconiosis and chronic obstructive
pulmonary disease. He further stated that the primary
etiology for this diagnosis was exposure to coal dust
during Mr. Griskell’s coal mine employment. He deter-
mined that Mr. Griskell had mild to moderate respiratory
impairment and Grade III-IV dyspnea and that Mr. Griskell
was totally disabled for any work requiring physical
ability, including his coal mine job. Dr. Hessl’s report also
included reviews of x-rays of Mr. Griskell from 1989, 1991
and 1993, all of which were negative for changes com-
patible with pneumoconiosis.
Dr. Hessl submitted an updated report in 1997 after again
reviewing chest x-rays from 1995 and 1996, which he
determined were positive for pneumoconiosis. He attrib-
uted this change to the fact that coal workers’ pneumoconi-
osis is a chronic, progressive disease. The ALJ found Dr.
No. 06-1248 5
Hessl’s opinions to be reasoned, documented, supported
by adequate data and thus entitled to probative weight.
In order to establish rebuttal of the interim presumption
of total disability accorded Mr. Griskell, Zeigler presented
the reports of Drs. Andracki, Nay, Bass, Castle and Cugell
to the ALJ. Zeigler also contended that the opinions of Drs.
Hessl and Barnett were not well-reasoned and docu-
mented. Dr. Andracki diagnosed Mr. Griskell with mild
emphysema that was not related to coal dust exposure. Dr.
Andracki merely checked a box marked “no” in response
to whether Mr. Griskell’s emphysema was linked to coal
dust exposure; the ALJ therefore determined that, because
Dr. Andracki’s opinion was neither reasoned nor docu-
mented, it was entitled to a lesser degree of probative
weight. Dr. Bass diagnosed Mr. Griskell with insignificant
obstructive pulmonary disease and determined this disease
was not due to coal dust exposure. The ALJ stated that
Dr. Bass did not set forth observations or findings to
support his conclusions and that therefore this opinion was
entitled to a lesser degree of probative weight. Dr. Nay
opined that Mr. Griskell suffered from only mild bronchitis
consistent with his smoking history. Noting Dr. Nay’s
board certification in internal medicine, the ALJ deter-
mined this opinion to be both well-reasoned and docu-
mented and thus accorded it probative weight. Dr. Castle
provided a consultative opinion after examining the
reports and x-rays taken and submitted by other physi-
cians. He determined that Mr. Griskell had mild obstruc-
tive airways disease with no evidence of coal workers’
pneumoconiosis. Noting Dr. Castle’s credentials as a
board-certified pulmonologist, the ALJ found this opin-
ion entitled to probative weight.
Dr. Cugell, who examined Mr. Griskell, did not find
evidence of coal workers’ pneumoconiosis, although he did
6 No. 06-1248
find that Mr. Griskell suffered from chronic bronchitis. Dr.
Cugell did not provide an etiology for this disease. The
ALJ accorded Dr. Cugell’s opinion probative weight but,
because his opinion did not address the etiology of Mr.
Griskell’s chronic bronchitis, the ALJ did not believe the
physician’s opinion was sufficient to rebut the interim
presumption of eligibility for benefits.
On July 22, 1974, before leaving his job with Zeigler, Mr.
Griskell pleaded guilty to a charge of petty theft. This petty
theft involved property belonging to the coal company. He
also suffered a back injury in 1981 that required surgery.2
B. Proceedings Before the ALJ and the Board
As noted previously, Mr. Griskell first applied for black
lung benefits on January 19, 1976, when he was 39 years
old. His claim was denied administratively on February 27,
1981. Mr. Griskell, acting pro se, requested reconsidera-
tion of his claim in December 1981. On March 26, 1982,
Mr. Griskell filed a new application for benefits; he had a
hearing before an ALJ on January 24, 1990. At this hear-
ing, the Department of Labor conceded that Mr. Griskell
had 15 years of coal mine employment, which met the
minimum required to obtain black lung benefits. The ALJ
denied this claim on April 13, 1990. On January 28, 1993,
the Board issued a decision determining that Mr. Griskell’s
1976 claim was still viable and remanded the case to the
ALJ for further findings. In that order, the Board deter-
mined that Mr. Griskell’s December 2, 1981 request for
reconsideration should have been considered a petition for
2
The evidence relating to Mr. Griskell’s back injury comes
from Mr. Griskell’s statements to his healthcare professionals.
No. 06-1248 7
modification. The Board also determined that the ALJ
should have determined whether entitlement to benefits
could be established under 20 C.F.R. § 727 by inquiring
whether the claimant had made a preliminary showing
of total disability and therefore was entitled to the interim
presumption that he was eligible for benefits.
On July 15, 1997, a new ALJ took over Mr. Griskell’s case,
and determined that the medical evidence in the record
was sufficiently old that the parties should have an op-
portunity to submit updated medical evidence. After
taking that evidence, the ALJ, invoking the presumption
and finding it unrebutted, awarded benefits to commence
retroactive to November 1989. Zeigler appealed this
decision, and Mr. Griskell filed a cross-appeal asserting
that the ALJ had miscalculated the date upon which the
benefits should begin. On January 7, 1999, the Board
vacated the ALJ’s decision, and on April 27, 1999, the ALJ
reinstated benefits to begin retroactive to September 1,
1993, invoking the interim presumption and finding that
Zeigler had failed to rebut this presumption. On September
7, 2000, the Board affirmed in part and vacated in part the
ALJ’s decision, requesting that the ALJ reassess the med-
ical opinions on remand. The Board then denied Zeigler’s
motion to reopen the record on December 6, 2000. On
remand on May 24, 2001, the ALJ denied Mr. Griskell’s
claim, finding that his disability was completely due to his
1981 back injury and not pneumoconiosis. Mr. Griskell
appealed this ruling on June 12, 2002 and the Board
reversed in part and vacated in part the ALJ’s decision,
instructing the ALJ to consider rebuttal evidence on
remand. Zeigler appealed this decision and on September
7, 2002, the Board vacated the award of benefits, but did
not disturb the September 1, 1993 date of onset determina-
8 No. 06-1248
tion. The Board stated that Mr. Griskell was entitled to the
interim presumption, but stated that the ALJ should have
considered rebuttal evidence before making the final
determination to award benefits.
Then, on January 29, 2004, the ALJ again awarded
benefits, finding that Mr. Griskell was entitled to the
interim presumption and that Zeigler failed to rebut this
presumption. In this order, the ALJ determined the date
of onset to be December 1981; the date of onset is deter-
mined by 20 C.F.R. § 725.503(b) (2000), which states that the
date of onset of benefits shall correspond with the date of
onset of total disability due to pneumoconiosis. If the
record does not establish that date, then benefits are
payable from the month in which the claim was filed. Mr.
Griskell filed his claim for benefits in January 1976. His
subsequent letter of December 1981 was construed as a
request for modification; therefore, the ALJ determined his
date of onset for purposes of benefits eligibility was
December 1981. The Board affirmed this decision of the
ALJ on July 11, 2005. Zeigler timely petitioned for re-
view on January 16, 2006.3
3
Zeigler, in the argument portion of its brief, refers and cites
to the 2001 and 1999 ALJ opinions rather than the most recent
opinion issued on January 29, 2004. See Appellant’s Br. at 19
(referencing the ALJ’s 2001 opinion); Appellant’s Br. at 28 (citing
the ALJ’s 1999 opinion). However, as evidenced by Zeigler’s
recitation of the procedural history in this case, Zeigler is aware
of the most recent ALJ opinion and Board affirmation. See
Appellant’s Br. at 8, 9 (“On January 24 [sic], 2004, the ALJ again
awarded benefits” . . . “The Benefits Review Board affirmed that
decision on July 11, 2005.”). Furthermore, Zeigler articulates
substantive arguments consistent with an appeal of the most
(continued...)
No. 06-1248 9
II
DISCUSSION
When the Board upholds the decision of the ALJ, it is our
task to review the ALJ’s judgment. See, e.g., Peabody Coal Co.
v. Shonk, 906 F.2d 264, 267 (7th Cir. 1990). This court must
review the decision of the ALJ to
determine if it was rational, supported by substantial
evidence on the record as a whole, and not contrary
to law. Substantial evidence is that which a reasonable
mind might accept as adequate to support a particular
conclusion. We may not set aside an inference simply
because we find the opposite conclusion more reason-
able or question the factual basis. Making credibility
determinations and resolving inconsistencies in the
evidence is within the sole province of the ALJ.
Kennellis ENergies, Inc. v. Hallmark, 333 F.3d 822, 826 (7th
Cir. 2003) (internal citations omitted). If the decision of
3
(...continued)
recent ALJ and Board decisions. Because a party may obtain
review of a final Board order in the United States Court of
Appeals in whose jurisdiction the injury occurred only within
sixty days following the issuance of the Board’s order, a chal-
lenge to the 2001 and 1999 ALJ opinions is untimely. See, e.g.,
Arch Mineral Corp. v. Office of Workers’ Comp. Programs, United
States Dep’t of Labor, 798 F.2d 215, 217 (7th Cir. 1986) (citing 33
U.S.C. § 921(c)). Zeigler filed its notice of appeal with this court
on January 16, 2006. The substance of Zeigler’s arguments
address the sufficiency of the evidence necessary both to invoke
and rebut the interim presumption. Therefore, we proceed as
though Zeigler properly challenges the most recent decision of
the ALJ and conclude that Zeigler’s petition for review was
timely filed.
10 No. 06-1248
the ALJ meets these requirements, we shall affirm the
decision of the Board. See Shonk, 906 F.2d at 267. We review
pure questions of law de novo. See, e.g., Freeman United Coal
Mining Co. v. Summers, 272 F.3d 473, 483 (7th Cir. 2001).
A. Invocation of the Interim Presumption
The Black Lung Benefits Act (“BLBA”) affords benefits
only if pneumoconiosis, known colloquially as “black lung
disease,” prevents a coal miner from performing his job at
the coal mine. 30 U.S.C. § 902(f)(1)(A).4 The governing
regulations establish an “interim presumption” of total
disability for a miner who can demonstrate disability due
to pneumoconiosis. 20 C.F.R. § 727.203(a) (4); see also
Gulley v. Dir., Office of Workers’ Comp. Programs, United
States Dep’t of Labor, et al., 397 F.3d 535, 538 (7th Cir. 2005).
4
30 U.S.C. § 902 (f)(1)(A) provides:
(f)(1) The term “total disability” has the meaning given it by
regulations of the Secretary of Health and Human Services
for claims under part B of this subchapter, and by regula-
tions of the Secretary of Labor for claims under part C of
this subchapter, subject to the relevant provisions of
subsections (b) and (d) of section 923 of this title, except
that—
(A) in the case of a living miner, such regulations shall
provide that a miner shall be considered totally dis-
abled when pneumoconiosis prevents him or her from
engaging in gainful employment requiring the skills
and abilities comparable to those of any employment
in a mine or mines in which he or she previously
engaged with some regularity and over a substantial
period of time[.]
No. 06-1248 11
This “interim presumption” applies to claims for black
lung benefits filed between July 1, 1973, and April 1, 1980.5
See Mullins Coal Co. v. Dir., Office of Workers’ Comp. Pro-
grams, United States Dep’t of Labor, et al., 484 U.S. 135, 137
(1987). In order to invoke the rebuttable presumption in the
case of a living miner, the claimant must have been en-
gaged in coal mine employment for at least ten years and
meet one of the physical conditions set forth in the regula-
tion.6 Zeigler conceded that Mr. Griskell had worked in the
5
The black lung benefits program was developed through
several statutory enactments and thus various rules govern
individual claims depending upon when the initial claim was
filed. See Mullins Coal Co. v. Dir., Office of Workers’ Comp. Pro-
grams, United States Dep’t of Labor, 484 U.S. 135, 138 n.1 (1987).
6
20 C.F.R. § 727.203(a) provides:
(a) Establishing interim presumption. A miner who engaged
in coal mine employment for at least 10 years will be
presumed to be totally disabled due to pneumoconiosis, or
to have been totally disabled due to pneumoconiosis at the
time of death, or death will be presumed to be due to
pneumoconiosis, arising out of that employment, if one of
the following medical requirements is met:
(1) A chest roentgenogram (X-ray), biopsy, or autopsy
establishes the existence of pneumoconiosis (see
§ 410.428 of this title);
(2) Ventilatory studies establish the presence of a
chronic respiratory or pulmonary disease (which
meets the requirements for duration in § 410.412(a)(2)
of this title) as demonstrated by values which are equal
to or less than the values specified in the following
table:
(continued...)
12 No. 06-1248
6
(...continued)
Equal to or
less than—
FEV MVV
67” or less. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 92
68”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 96
69”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 96
70”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 100
71”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 104
72”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 104
73” or more. . .. . . . . . . . . . . . . . . . . . . . . . . . . 2.7 108
(3) Blood gas studies which demonstrate the presence
of an impairment in the transfer of oxygen from the
lung alveoli to the blood as indicated by values which
are equal to or less than the values specified in the
following table:
Arterial pCO2
equal to or
less than
(mm.Hg.)
Arterial pO2.
30 or below. . . . . . . . . . . . . . . . . . . . . . . . . . . 70
31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
(continued...)
No. 06-1248 13
coal mines for fourteen years.7 Therefore, in order to find
that Mr. Griskell merited the interim presumption, the ALJ
only needed to find that he met one of the medical require-
ments set forth in the regulation.
Zeigler submits that it was error for the ALJ to invoke the
interim presumption of total disability under 20 C.F.R.
§ 727.203(a). Zeigler attempts to support this contention
with two arguments. Zeigler submits that the ALJ improp-
erly weighed the opinions of the various physicians,
impermissibly according too much weight to the opinions
of Dr. Hessl and too little weight to the opinions of some
of the other physicians who reached a different conclu-
6
(...continued)
36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
40-45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Above 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Any value.
(4) Other medical evidence, including the documented
opinion of a physician exercising reasoned medical
judgment, establishes the presence of a totally disabling
respiratory or pulmonary impairment;
(5) In the case of a deceased miner where no medical
evidence is available, the affidavit of the survivor of
such miner or other persons with knowledge of the
miner’s physical condition, demonstrates the presence
of a totally disabling respiratory or pulmonary impair-
ment.
7
See Petitioner’s Br. at 10.
14 No. 06-1248
sion regarding the etiology of Mr. Griskell’s impairment.
Zeigler also contends that Mr. Griskell was disabled due
to a back injury and prevented from working due to his
criminal conduct, not as a result of pneumoconiosis.
We have stated that “[w]hether a medical opinion is
reasoned . . . is a decision that rests ultimately with the
ALJ, not with us.” Summers, 272 F.3d at 483. Furthermore,
the ALJ needs only to be persuaded, judging from all
available evidence, that pneumoconiosis is a contributing
cause of the miner’s disability. Compton v. Inland Steel Coal
Co., 933 F.2d 477, 483 (7th Cir. 1991). In determining
whether substantial evidence supports the ALJ’s determi-
nations regarding Mr. Griskell’s benefits “[w]e cannot
reweigh the evidence or make credibility determinations.”
Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1393 (7th Cir. 1994).
Zeigler submits that the ALJ improperly gave additional
weight to Dr. Hessl’s opinion merely because Dr. Hessl
was Mr. Griskell’s treating physician. We “have disap-
proved any mechanical rule that the views of a treating
physician prevail.” Peabody Coal Co. v. McCandless, 255 F.3d
465, 469 (7th Cir. 2001). However, the fact that a particular
opinion comes from a treating physician certainly does
not bar an ALJ from crediting this opinion. We simply
stated in McCandless that “the treating physician’s views
may not be accepted unless there is a good reason to
believe that they are accurate.” 255 F.3d at 469-70. Con-
versely, when the views of the treating physician are
accurate and supported by medical evidence, those
views may be accepted.
We have acknowledged that, in selecting from opposing
medical viewpoints, the ALJ instead “’must have a medical
reason for preferring one physician’s conclusion over
another’s.’ ” Stalcup v. Peabody Coal Co., 477 F.3d 482, 484
No. 06-1248 15
(7th Cir. 2007) (quoting McCandless, 255 F.3d at 469)
(emphasis in original). We think it clear that the ALJ
properly weighed the various medical opinions, and we
therefore conclude that his decision to invoke the interim
presumption is supported by substantial medical evidence.
In his decision, the ALJ stated that “[t]hroughout his
opinions, Dr. Hessl set forth clinical observations and
findings, and his reasoning is supported by adequate
data. His opinions are reasoned and documented. I find
that Dr. Hessl’s opinion is entitled to probative weight
enhanced by his board-certification in internal medicine.”
A.R. at 146. The ALJ also stated that Dr. Hessl’s reports
demonstrate “superior reasoning.” A.R. at 147.
The ALJ’s conclusions regarding Dr. Hessl also find
support in the record. In his reports, Dr. Hessl took an
extensive medical history and described in detail Mr.
Griskell’s chief complaints and symptoms. Relying on chest
x-rays, ventilation studies, arterial blood gas studies, an
EKG and a GXT, Dr. Hessl diagnosed Mr. Griskell with
chronic bronchitis and coal workers’ pneumoconiosis. His
reports stated that the primary etiology for both diagnoses
was coal dust exposure, and that the secondary etiology
was tobacco use. The ALJ was on solid ground in character-
izing Dr. Hessl’s reports as well-reasoned and as reflecting
a careful examination of Mr. Griskell and a thoughtful
evaluation of diagnostic tests. It is clear that the ALJ did
not credit Dr. Hessl’s medical opinions merely because
he was a treating physician.
Furthermore, substantial evidence clearly supports the
ALJ’s decision to invoke the interim presumption of total
disability. The ALJ explicitly stated that he was accord-
ing more weight to Dr. Hessl’s opinion based on “the
strength of his reasoning.” Id. Though Zeigler fervently
16 No. 06-1248
contends that the ALJ was engaging in impermissible
“head counting,” it is not the role of this court to reweigh
evidence or to make credibility determinations. The ALJ
clearly found Dr. Hessl to be credible, and Dr. Hessl’s
opinions demonstrate that Mr. Griskell is totally disabled
due to pneumoconiosis. These conclusions do not rely
solely on Dr. Hessl’s status as a treating physician, but
rather draw from the well-reasoned reports he prepared.
Indeed, in a similarly well-reasoned report, Dr. Barnett
concluded that Mr. Griskell is totally disabled due to coal
workers’ pneumoconiosis. We have no trouble concluding
that there is substantial evidence in the record to support
invocation of the interim presumption that his total
disability is due to coal workers’ pneumoconiosis.
B. Rebuttal of the Interim Presumption
Zeigler further submits that the interim presumption
was rebutted, and, therefore, it was error to award benefits
to Mr. Griskell. The regulations provide four means by
which an employer may rebut the interim presumption.8 If
the evidence establishes that the total disability of the
miner did not arise in whole or in part out of coal mine
8
The first two means by which an employee may rebut the
interim presumption, by (1) demonstrating that the miner is
engaged in his usual coal mine or comparable work; or (2)
showing that he is capable of performing his usual or compara-
ble duties, 20 C.F.R. § 727.203(b), are not available to Zeigler in
this case. It is uncontested, on this record, that Mr. Griskell no
longer works in a coal mine and further that he is disabled
permanently. Therefore, we consider only the third and fourth
means by which Zeigler may rebut the interim presumption
in this opinion.
No. 06-1248 17
employment, the presumption is rebutted. 20 C.F.R.
§ 727.203(b)(3). If the evidence establishes that the miner
does not have pneumoconiosis, the interim presumption
also falls. 20 C.F.R. § 727.203(b)(4). The employer bears the
burden of presenting evidence to rebut the interim pre-
sumption by a preponderance of the evidence. 20 C.F.R.
§ 727.203(b). Therefore, Zeigler must demonstrate either
that Mr. Griskell’s disability is not due in whole or in part
to his exposure to coal dust or that he in fact does not
have pneumoconiosis. See Vigna, 22 F.3d at 1393.
Zeigler submits that Mr. Griskell ceased working in the
coal mines because he stole from his employer and not
due to pneumoconiosis.9 Though Mr. Griskell may have
been fired from Zeigler due to this theft, the regulations
require only that the disability of the miner arise in part out
of coal mine employment. 20 C.F.R. § 727.203(b)(3). There-
fore, even if Mr. Griskell was fired for stealing from
Zeigler, this does not preclude the possibility that Mr.
Griskell is disabled permanently by pneumoconiosis as
required under the BLBA. This evidence might explain
why Mr. Griskell’s employment with Zeigler was termi-
nated, but, on this record, Mr. Griskell is incapable of
working at any coal mine due to his pneumoconiosis.
Zeigler also claims that Mr. Griskell was totally disabled
by a back injury and not by pneumoconiosis. We must bear
in mind, however, that the miner’s pneumoconiosis need
be only a “contributing cause of his total disability.” Shonk,
906 F.2d at 271-72 (internal citations and quotation marks
omitted); see also Compton, 933 F.2d at 483 (stating that “so
long as the ALJ concludes that, based on the medical
9
Appellant’s Br. at 22.
18 No. 06-1248
evidence, pneumoconiosis is a contributing cause of a
miner’s disability, the miner will recover benefits”).
Zeigler relies upon two decisions of this court in sup-
port of its contention that, because Mr. Griskell suffered a
back injury, he is ineligible to receive black lung benefits.
See Vigna, 22 F.3d at 1394 (holding that a miner disabled by
stroke could not receive benefits under the BLBA where
medical opinions in the record cited the stroke as the cause
of the miner’s disability); see also Freeman United Coal
Mining Co. v. Foster, 30 F.3d 834, 839 (7th Cir. 1994) (involv-
ing medical evidence demonstrating that miner was not
disabled by respiratory impairments but rather that
disability was due to only a back injury). Unlike Vigna
and Foster, the medical evidence in this record, as dis-
cussed above, supports the contention that Mr. Griskell has
been disabled permanently due to pneumoconiosis. Dr.
Castle prepared an independent medical review of Mr.
Griskell on March 4, 1996, in which he stated that “[Mr.
Griskell] may be disabled because of back problems and
coronary artery disease.” Employer’s Ex. No. 29, Hearing
July 15, 1997, at 1. This statement alone does not suffice to
rebut the presumption of total disability due to pneumoco-
niosis. As we have stated above, the record contains more
than ample evidence that pneumoconiosis contributed to
Mr. Griskell’s permanent disability. Zeigler, therefore, has
failed to demonstrate affirmatively the proposition that
Mr. Griskell was permanently disabled by his back injury.
The ALJ, crediting the opinions of Drs. Hessl and Barnett,
concluded that Mr. Griskell was disabled, at least in part,
due to pneumoconiosis. We find this determination to be
supported by substantial evidence.
Finally, we see no problem in the ALJ’s determination of
the date of onset of Mr. Griskell’s disability as December
No. 06-1248 19
1981. This determination is governed by 20 C.F.R.
§ 727.503, which provides that benefits are payable from
the date of onset of total disability due to coal workers’
pneumoconiosis. The ALJ noted correctly that the record
does not establish the exact date of onset of Mr. Griskell’s
total disability due to pneumoconiosis. Mr. Griskell filed
his initial claim for benefits with the United States Depart-
ment of Labor in January 1976. Although the Department
of Labor initially found Mr. Griskell was entitled to
benefits, it subsequently notified him that, due to Zeigler’s
submission of an additional medical examination, it was
reversing the award of benefits. Mr. Griskell sought re-
view of this claim in December 1981. On January 28, 1993,
the Board determined that Mr. Griskell’s December 1981
letter should have been treated as a request for modifica-
tion. The regulations state that the date of request for
modification controls when determining the date upon
which benefits commence. 20 C.F.R. § 725.503(b). There-
fore, the ALJ appropriately determined December 1981
to be the date of onset.
C. Evidence on the Progressivity or Latency of Coal
Workers’ Pneumoconiosis
Finally, Zeigler contends that the ALJ impermissibly
declined to admit evidence regarding the progressivity or
latency of coal workers’ pneumoconiosis. We previously
have held that both the latency and progressivity of coal
workers’ pneumoconiosis are legislative facts. See Peabody
20 No. 06-1248
Coal v. Spese, 117 F.3d 1001, 1010 (7th Cir. 1997)10 (“In the
end, the question whether simple pneumoconiosis can
progress in the absence of further exposure to coal dust is
a question of legislative fact.”) (citing Menora v. Illinois
High Sch. Ass’n, 683 F.2d 1030, 1036 (7th Cir. 1982)). We
also have stated that “[t]he Director . . . has long believed
in the progressivity of pneumoconiosis,” and have noted
that the Board found that “pneumoconiosis is a progressive
and irreversible disease.” Id. (internal citations and quota-
tion marks omitted). Furthermore, a claimant is not re-
quired to prove that he suffers from the specific varieties
of pneumoconiosis the medical literature has found to be
progressive or latent. Midland Coal Co. v. Dir., Office of
Workers’ Comp. Programs, et al., 358 F.3d 486, 490-91 (7th Cir.
2004). We therefore conclude that the ALJ did not err in
declining to admit evidence on latency and progressivity.
Conclusion
For these reasons, we deny the petition for review and
affirm the decision of the Board.
PETITION DENIED; DECISION AFFIRMED
10
We note that this court in Peabody Coal v. Spese, 117 F.3d 1001,
1010 (7th Cir. 1997) interpreted an earlier version of the regula-
tions. However, the revised regulation explicitly codified the
holding in Spese. See Midland Coal Co. v. Dir., Office of Workers’
Comp. Programs, 358 F.3d 486, 489-90 (7th Cir. 2004) (citing
65 Fed.Reg. 79,920, 79,974 (Dec. 20, 2000)).
No. 06-1248 21
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-19-07