Blue Mountain Energy v. Director OWCP , 805 F.3d 1254 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
November 13, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
BLUE MOUNTAIN ENERGY; OLD
REPUBLIC INSURANCE
COMPANY, INCORPORATED,
Petitioners,
v. No. 14-9561
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT
OF LABOR; TERRY O.
GUNDERSON,
Respondents.
APPEAL FROM THE BENEFITS REVIEW BOARD
(Benefits No. 13-0412 BLA)
Mark E. Solomons (Laura Metcoff Klaus, with him on the briefs), of Greenberg
Traurig LLP, Washington D.C., for Petitioners.
Barry H. Joyner, Attorney (M. Patricia Smith, Solicitor of Labor; Rae Ellen
James, Associate Solicitor; Gary K. Stearman, Counsel for Appellate Litigation,
with him on the brief) of United States Department of Labor, Office of the
Solicitor, Washington, D.C., for Respondent, Director, Office of Workers’
Compensation Programs, United States Department of Labor.
Anne Megan Davis (Thomas E. Johnson with her on the brief), of Johnson, Jones,
Snelling, Gilbert & Davis, PC, Chicago, Illinois, for Respondent, Terry
Gunderson.
Before BRISCOE, HOLMES and MORITZ, Circuit Judges.
BRISCOE, Circuit Judge.
Blue Mountain Energy (Blue Mountain) petitions for review of a Benefits
Review Board (the Board) decision affirming an award of black lung benefits to
Terry Gunderson. An administrative law judge (ALJ) originally denied benefits
under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901–945, and
Gunderson appealed to the Board and then to this court. We remanded for further
proceedings because the ALJ did not sufficiently explain the basis for the denial.
See Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013, 1027 (10th Cir. 2010)
(Gunderson I). The ALJ again denied benefits, and the Board vacated and
remanded the ALJ’s decision because it did not comply with our remand. On the
second remand, the ALJ awarded benefits, and the Board affirmed.
Blue Mountain petitions for review, arguing that the ALJ violated the
Administrative Procedure Act (APA). Specifically, Blue Mountain contends the
ALJ gave the preamble to the regulations redefining compensable pneumoconiosis
in 20 C.F.R. § 718.201 1 the force and effect of law, even though the preamble had
not been subject to APA notice and comment. Blue Mountain also contends its
1
The preamble at issue in this case can be found at 65 Fed. Reg.
79920–80045 (Dec. 20, 2000).
2
rights under the APA were violated when the ALJ refused to reopen the
proceedings to allow it to submit evidence challenging the medical literature cited
in the preamble. Exercising jurisdiction pursuant to 33 U.S.C. § 921(c), as
incorporated into the BLBA via 30 U.S.C. § 932(a), we deny Blue Mountain’s
petition.
I
Fourteen years ago, Terry Gunderson filed a claim under the BLBA,
seeking benefits for his chronic obstructive pulmonary disease (COPD). He has
been in litigation with his former employer, Blue Mountain, ever since. The
parties’ dispute centers on whether Gunderson’s COPD was caused at least in part
by his working as a coal miner for more than thirty years, or whether, as Blue
Mountain argues, his COPD was caused solely by his smoking a pack of
cigarettes a day for thirty-four years.
Statutory and regulatory background
The BLBA provides benefits to “to coal miners who are totally disabled
due to pneumoconiosis and to the surviving dependents of miners whose death
was due to such disease.” 30 U.S.C. § 901(a). Pneumoconiosis is defined as “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(b). “To obtain benefits under the Act, a miner must demonstrate that he
satisfies three conditions: (1) he or she suffers from pneumoconiosis; (2) the
3
pneumoconiosis arose out of coal mining employment; and (3) the
pneumoconiosis is totally disabling.” Energy W. Mining Co. v. Oliver, 555 F.3d
1211, 1214 (10th Cir. 2009).
“[P]ursuant to its authority to implement the [BLBA], see [30 U.S.C.] §
936(a), the Department of Labor has promulgated regulations interpreting §
902(b)’s definition of pneumoconiosis to encompass two distinct types of
compensable lung diseases: clinical pneumoconiosis and legal pneumoconiosis.”
Gunderson I, 601 F.3d at 1018. The regulations state that clinical
pneumoconiosis “consists of those diseases recognized by the medical community
as pneumoconioses, i.e., the conditions characterized by permanent deposition of
substantial amounts of particulate matter in the lungs and the fibrotic reaction of
the lung tissue to that deposition caused by dust exposure in coal mine
employment,” including several enumerated diseases. 20 C.F.R. § 718.201(a)(1).
Legal pneumoconiosis is defined more broadly as “any chronic lung disease or
impairment and its sequelae arising out of coal mine employment,” which
“includes, but is not limited to, any chronic restrictive or obstructive pulmonary
disease arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2). “[A]
disease ‘arising out of coal mine employment’ includes any chronic pulmonary
disease or respiratory or pulmonary impairment significantly related to, or
substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §
718.201(b).
4
Procedural background
In the initial hearing on Gunderson’s claim, both sides presented expert
testimony addressing the cause of his condition. Not surprisingly, the experts
reached different conclusions. The ALJ found the experts well qualified and their
reports both well reasoned and well documented. Finding the opinions to be
“evenly balanced” and deserving “equal weight,” the ALJ concluded that
Gunderson had failed to carry his burden of proof and denied his claim for
benefits. Pet. App. at 30. The Board affirmed. Gunderson then appealed to this
court and contended the ALJ failed to comply with 5 U.S.C. § 557(c)(3)(A) of the
APA because the ALJ did not provide “the reasons or basis” for rejecting his legal
pneumoconiosis. We reversed and remanded and instructed the ALJ to provide “a
more detailed, scientifically-grounded explanation” for weighing the expert
testimony presented. Gunderson I, 601 F.3d at 1024, 1027. In doing so, we noted
that “an ALJ has the benefit of a substantial inquiry by the Department of Labor”
in resolving disputes concerning the existence and cause of pneumoconiosis. As
an example, we cited the Department’s regulations which characterize
pneumoconiosis “as a latent and progressive disease which may first become
detectable only after the cessation of coal mine dust exposure.” Id. at 1024–25
(quoting 20 C.F.R. § 718.201(c)).
On the first remand, the ALJ stated that “the Circuit Court has required that
the undersigned choose one party’s argument over the other” and that “Drs.
5
Repsher, Renn, and Cohen have given extensive explanations as to their reasoning
in this case.” Pet. App. at 79–80. The ALJ noted that Gunderson has “significant
blood gas abnormality,” which Dr. Cohen attributed “in part to coal dust
exposure,” while Dr. Renn stated “five enumerated factors” that could be the
cause of the abnormality. Id. at 80. Overall, the ALJ found “Dr. Renn’s opinion
to be persuasive” because “Dr. Cohen has not adequately explained why these
other facts are not responsible for the blood gas abnormality.” Id. Thus, the ALJ
concluded that Gunderson “has failed to establish that he is totally disabled by a
respiratory impairment due to [coal workers’ pneumoconiosis].” Id.Gunderson appealed to the Board, which vacated and remanded the case to
the ALJ. Among other issues, the Board stated that the ALJ “conflated the issues
of legal pneumoconiosis, total respiratory disability and disability causation, and
misconstrued the Tenth Circuit’s remand instructions,” which “did not require
that the administrative law judge choose one party’s argument over the other’s,
but instructed him to fully explain his reasoning and offer a scientific basis for his
evaluation and weighing of the conflicting medical opinions.” Id. at 85. The
Board directed the ALJ on remand to “evaluate all of the medical opinions of
record; determine if they are adequately reasoned and documented; assign each
opinion appropriate weight; and provide valid reasons for each of his credibility
determinations, while clearly explaining his rationale as to each medical expert.”
Id. at 86–87. In a footnote to these instructions, the Board stated that “[t]here is
6
no merit to claimant’s assertion that an administrative law judge is required to
determine the credibility of an expert’s opinion in light of the preamble to the
revised regulations.” Id. at 87 n.5. However, the Board stated that it is
“permissible for an administrative law judge to discuss the preamble to the
regulations when weighing the medical opinions relevant to the issue of legal
pneumoconiosis” and that this court had acknowledged the Department of Labor’s
“substantial inquiry” on the subject. Id.On the second remand, the ALJ concluded that Gunderson had
demonstrated that he had legal pneumoconiosis and that he was totally disabled
by it, entitling him to benefits. After conducting an extensive review of the
medical evidence, the ALJ concluded that “[a]ll the physicians’ reports in the
record are well documented, relying on Claimant’s employment, social, and
medical histories as well as extensive medical testing.” Id. at 112. However, the
ALJ concluded that “the brevity of Dr. Shockey’s report [finding legal
pneumoconiosis] causes it to be less probative in light of the comprehensiveness
of the other medical opinions of record.” Id. at 112–13. The ALJ further stated
that he found “Dr. Repsher’s opinion that Claimant’s COPD is not related to coal
dust exposure based predominately, if not totally, on articles Dr. Repsher cites for
the proposition that coal dust exposure is significantly less likely to cause COPD
than cigarette smoking to be entitled to less weight because it does not focus on
Claimant’s specific symptoms and conditions, but on statistics.” Id. at 113.
7
Moreover, the ALJ noted that Dr. Repsher did not “address whether coal dust
exposure and smoking could have been additive causes of Claimant’s lung
disease, an etiology clearly adopted in the Preamble to the Regulations.” Id. The
ALJ also gave Dr. Renn’s opinion “that he could distinguish between coal dust
induced COPD and that caused by smoking” less weight because Dr. Cohen had
explained that one measurement used by Dr. Renn “has been found to have no
useful interpretation” and that another measurement Dr. Renn used had been
adjusted in a manner not in accordance with American Medical Association
guidance. Id.Overall, the ALJ concluded that he found “most probative the opinions of
Drs. Cohen and Parker” because “Drs. Parker and Cohen more thoroughly
evaluated Claimant’s specific condition when determining that Claimant’s
obstructive lung disease was caused by coal mine dust exposure.” Id. The ALJ
noted that Dr. Parker had “specifically linked Claimant’s symptoms to the
documented effects of coal mine dust exposure and cited to literature that has
been approved by the Department in the Preamble” and that Dr. Parker’s
“explanation that Claimant’s lung function continued to deteriorate after the
cessation of both smoking and coal mining reflects the acknowledged view that
pneumoconiosis is a latent and progressive condition.” Id.Blue Mountain moved for reconsideration, requested that the ALJ reopen
the record “to permit it to respond with proof to the statements relied on by the
8
ALJ,” and argued that the ALJ had improperly determined the date on which
benefits should commence. 2 Id. at 118. The ALJ denied Blue Mountain’s request
to reopen the record, noting that the Board “has held that the Preamble does not
constitute evidence outside the record with respect to which the administrative
law judge must give notice and an opportunity to respond,” but agreed that he had
erred in determining the benefits award date and modified the order accordingly.
Id. at 131–32.
Blue Mountain then appealed to the Board, which upheld the ALJ’s third
and final decision. The Board concluded that the ALJ had not “applied an
incorrect legal standard in determining whether claimant established the existence
of legal pneumoconiosis” and had “permissibly relied on the preamble to the
revised 2001 regulations as a statement of medical principles accepted by the
Department of Labor when it revised the definition of pneumoconiosis to include
obstructive impairments arising out of coal mine employment.” Id. at 143–44.
The Board reiterated that “the preamble does not constitute evidence outside the
record with respect to which the administrative law judge must give notice and an
opportunity to respond.” Id. at 144. The Board also concluded that the ALJ had
2
Blue Mountain also requested that the record be reopened in a letter to the
ALJ dated September 25, 2012, prior to briefing on the remand. Pet. App. at
89–90. The ALJ denied that request obliquely by stating that the record was open
for submission of briefs. Gunderson Br., Addendum 3. Blue Mountain renewed
that request in its brief on second remand. Pet. App. at 93.
9
not erred in his analysis of each physician’s opinion. In particular, it stated that
the ALJ “reasonably credited Dr. Parker’s diagnosis of legal pneumoconiosis
because Dr. Parker linked claimant’s impairment to the documented effects of
coal mine dust exposure, based on studies that were cited with approval in the
preamble to the revised 2001 regulations” and because Dr. Parker’s reasoning was
“consistent with the regulation recognizing pneumoconiosis ‘as a latent and
progressive disease.’” Id. at 145. The Board also stated that the ALJ
rationally discounted Dr. Repsher’s opinion because he found that
Dr. Repsher did not adequately explain why both coal mine dust
exposure and smoking did not contribute to claimant’s COPD,
considering that the Department of Labor accepted medical literature
stating that smoking and coal mine dust exposure are additive in
causing COPD.
Id. Blue Mountain petitions for review of that decision.
II
Blue Mountain argues that the ALJ violated the APA by (1) relying on the
preamble, thereby giving the preamble the “force and effect of law;” and (2)
refusing to reopen the record to allow Blue Mountain to submit evidence
challenging the science of the preamble. 3 Blue Mountain’s first argument raises a
3
Blue Mountain’s statement of the issues also includes the question of
“[w]hether DOL was required to republish the relevant regulations because the
agency changed its interpretation of its rules without complying with the [APA].”
Pet. Br. at 3. Though the brief touches on the alleged change of interpretation, it
does not argue that republication is required. “It is well-settled in this Circuit
that an issue listed, but not argued in the opening brief is waived.” Gaither v.
(continued...)
10
question of law, see Peabody Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 746 F.3d 1119, 1125–26 (9th Cir. 2014), which we review de novo,
Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1341 (10th
Cir. 2014). Its second argument challenges the exclusion of evidence, and is
therefore reviewed for abuse of discretion. Gunderson I, 601 F.3d at 1021.
Reliance on the preamble
In evaluating whether the ALJ was justified in relying on the preamble, we
note the very limited extent to which the ALJ referenced the preamable: the ALJ
merely included the preamble as one of the tools he employed in evaluating the
credibility of two expert reports. The preamble is referenced only twice in the
ALJ’s ruling. Though this circuit has yet to determine whether an ALJ can use
the preamble in this way, many other circuits have considered the matter and
concluded that such reliance is lawful. See Peabody Coal Co., 746 F.3d at 1125
(concluding that an ALJ “simply–and not improperly–considered the regulatory
preamble to evaluate conflicting expert medical opinions”); Arch on the Green,
Inc. v. Groves, 761 F.3d 594, 601 (6th Cir. 2014) (noting that an ALJ may consult
3
(...continued)
Aetna Life Ins. Co, 394 F.3d 792, 810 (10th Cir. 2004). Similarly, Blue
Mountain’s brief is replete with “scattered” and “perfunctory” statements that
appear to raise additional issues, but Blue Mountain has “failed to frame and
develop” them. Cf. Holmes v. Colo. Coal. for Homeless Long Term Disability
Plan, 762 F.3d 1195, 1199 (10th Cir. 2014) (internal quotations omitted). Those
too are waived. Id.11
the preamble “to test whether the theories of . . . doctors [are] consistent with
medical literature,” at least where the ALJ does not “treat[] the preamble as
binding”); Harman Mining Co. v. Dir., Office of Workers’ Compensation
Programs, 678 F.3d 305, 314–15 (4th Cir. 2012) (concluding that an ALJ was
“entitled” to cite to the preamble to discredit the opinion of a doctor whose
opinion was hostile to the “medical and scientific premises relied on by the
Department in coming to the[] conclusions in its regulations”); Helen Mining Co.
v. Dir., OWCP, 650 F.3d 248, 256–57 (3d Cir. 2011) (concluding that an ALJ’s
“reference to the preamble to the regulations . . . unquestionably supports the
reasonableness of his decision to assign less weight to [a doctor’s] opinion”
because the doctor’s position was at odds with the Department of Labor’s
regulations regarding the causes of legal pneumoconiosis); Consolidation Coal
Co. v. Dir., Office of Workers’ Comp. Programs, 521 F.3d 723, 726 (7th Cir.
2008) (concluding that the ALJ had permissibly discredited a physician’s opinion
that conflicted with the Department of Labor’s finding, as expressed in the
preamble, “that there is consensus among scientists and researchers that coal
dust-induced COPD is clinically significant” and “that nonsmoking miners
develop moderate and severe obstruction at the same rate as smoking miners”).
Blue Mountain attempts to distinguish these cases, but does so
unpersuasively. First, it contends that this case, unlike those cited above, “deal[s]
with a setting in which the preamble undeniably changed the outcome.” Pet. Br.
12
at 25. Blue Mountain relies on the procedural history of this case as support for
this proposition, suggesting that the only difference between the ALJ decision in
the first two opinions, which denied benefits, and the last one, which granted
benefits, is the ALJ’s citation to the preamble. Id. at 12. We disagree. Our
review of these opinions demonstrates that the third opinion more rigorously
analyzed the content of the expert reports than the prior opinions did, which
reasonably led to a different outcome. 4 Moreover, the ALJ provided other
reasons, independent of the preamble, for crediting the expert reports as he did.
Blue Mountain also claims that this case is distinguishable because, as
employed here, the preamble “undeniably had the force and effect of law.” Id. at
16, 25. And, if that is the case, and the ALJ used the preamble in that way, Blue
4
Blue Mountain also relies on the procedural history to suggest that the
ALJ was forced to use the preamble to decide the case because it would be
remanded until he did. Nothing in the record supports this contention. Although
this court’s decision in Gunderson I referenced the “substantial inquiry”
performed by the Department of Labor, it also more generally stated that
providing a “detailed, scientifically-grounded explanation” “may be accomplished
by careful consideration of many factors, including ‘the qualifications of the
respective physicians, the explanation of their medical opinions, the
documentation underlying their medical judgments, and the sophistication and
bases of their diagnoses.’” Gunderson I, 601 F.3d at 1024–25 (citing Sterling
Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997)). No mention is
made of the preamble in Gunderson I. When remanding the case a second time,
the Board explicitly disclaimed that the ALJ must look to the preamble; rather,
the focus of the remand was to obtain explication of the ALJ’s brief order which
failed to weigh the opinions of all of the medical experts in the case and also
“appear[ed] to have mischaracterized” one doctor’s opinion. Pet. App. at 85–87
& n.5.
13
Mountain argues its use was “illegal” because the preamble was never subject to
notice and comment, as required by the APA, 5 U.S.C. § 553(b). Id. at 20. Blue
Mountain argues that the ALJ imbued the preamble with the “force and effect of
law,” by declaring and/or relying on a “consistency with the Preamble” rule to
determine which opinion will be afforded greater weight. We do not read the
ALJ’s ruling as invoking the preamble as his only guide. There is no indication
in the ALJ’s final opinion that he was effecting some sort of change in the law or
relying on a broadly-applicable rule premised on the preamble. Rather, the ALJ
appears merely to have used the preamble’s summary of medical and scientific
literature as one of his tools in determining whether the experts’ medical analyses
of Gunderson’s condition were credible. Language used in both sentences that
reference the preamble demonstrate that the ALJ was merely analyzing the
evidence in this case rather than declaring or applying some broader legal
principle:
Dr. Repsher’s opinion fails to address whether coal dust exposure
and smoking could have been additive causes of Claimant’s lung
disease, an etiology clearly adopted in the Preamble to the
Regulations. . . . Dr. Parker specifically linked Claimant’s symptoms
to the documented effects of coal mine exposure and cited to
literature that has been approved by the Department in the Preamble.
Pet. App. at 113 (emphasis added). We fail to see how this use of the preamble
transforms a summary of “the prevailing view of the medical community” into
binding law. Blue Mountain always had the ability to counter the medical
14
opinion of Dr. Parker, as well as the medical literature cited in the preamble. The
potential impact of any general principles that may be gleaned from the preamble
can always be lessened by evidence that is more case specific or more medically
relevant.
Blue Mountain also cites Christensen v. Harris County, 529 U.S. 576(2000) for the proposition that courts should not defer to an agency’s views that
were “not subject to notice and comment rulemaking.” Pet. Br. at 24 (citing
Christensen, 529 U.S. at 588). Christensen is distinguishable in at least two
ways. First, Christensen involved an opinion letter that provided a legal
interpretation of a statute; this case, in contrast, involves a preamble that provides
a scientific justification for amending a regulation. Compare Christensen, 529
U.S. at 1659 with 65 Fed. Reg. 79920, 79937–45 (Dec. 20, 2000). Second, the
question presented in Christensen was whether the Court should give Chevron
deference 5 to the opinion letter; the question we face here is whether the ALJ was
entitled to use the preamble as one of his tools in evaluating the scientific
credibility of experts. Cf. Christensen, 529 U.S. at 1662–63. Because of these
distinctions, Christensen is not helpful in resolving the issue before us.
5
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 841–44 (1984), the Supreme Court held that courts must defer to an
agency's regulation reasonably interpreting an ambiguous statute.
15
In sum, we view the preamble as a scientific primer that helps explain why
the agency amended the regulation to add “legal pneumoconiosis” to the
definition of “pneumoconiosis.” As such, it seems like a reasonable and useful
tool for ALJs to use in evaluating the credibility of the science underlying expert
reports that address the cause of pneumoconiosis. Accordingly, we join our sister
circuits in holding that an ALJ may—but need not—rely on the preamble to 20
C.F.R. § 718.201 for this purpose. This holding does not, as Blue Mountain
contends, remove claimants’ burden of proving causation. It merely permits ALJs
to use the science described in the preamble to weigh the evidence that the parties
offer to prove (or disprove) causation. Of course, parties remain free to offer
other scientific materials for the ALJ to consider for the same purpose, including
but not limited to, materials challenging the continued validity of the science
described in the preamble.
Reopening the record
Blue Mountain also argues on appeal that the preamble constitutes evidence
not in the record and that the APA required the ALJ to reopen the record so that
Blue Mountain could respond to the findings of the preamble. Pet. Br. at 29–33
(citing 5 U.S.C. §§ 554(b)(3), 554(c), 556(d)(3)). As aptly stated by the Fourth
Circuit in Harman, “the APA does not provide that public law documents, like the
Act, the regulations, and the preamble, need be made part of the administrative
record.” 678 F.3d at 316. Blue Mountain was well aware of the preamble’s
16
scientific findings, e.g., Nat’l Mining. Ass’n v. Dep’t of Labor, 292 F.3d 849(D.C. Cir. 2002) (industry challenge to the validity of the relevant regulatory
amendments, including the preamble), and had ample opportunity prior to the
close of this record to submit evidence or expert opinions to persuade the ALJ
that the preamble’s findings were no longer valid or were not relevant to the facts
of this case. Moreover, its requests to reopen the record—particularly in its
motion for reconsideration, when it had the benefit of knowing what in the
preamble the ALJ had considered 6—for the most part did not point to anything in
the preamble that it considered no longer scientifically valid.
Blue Mountain also argues that reopening the record is required because the
legal standards have changed in that the Department of Labor now contends that
miners do not have to prove that their obstructive lung disease was caused by
mine work. Yet Blue Mountain does not point to anywhere in the record where
the Department contended that Gunderson did not have to prove that his COPD
was caused by his mine work.
6
Blue Mountain argues that it did not know what in the preamble was
relied on by the ALJ. This argument is unconvincing in part because it is
inaccurate. The ALJ cited specifically to the page of the preamble that dealt with
cigarette smoking and mine work as additive causes of COPD. Pet. App. at 113.
At his most vague, the ALJ states that Dr. Parker “cited to literature that has been
approved by the Department in the Preamble,” id., but given that Dr. Parker's
report is only seven pages long and provides clear citations to the literature in
question, it is not difficult to ascertain what the ALJ meant. Admin. Rec.,
Claimant's Ex. 6 (April 26, 2006).
17
For these reasons, we conclude that the ALJ did not abuse his discretion by
refusing Blue Mountain’s requests to reopen the record for new evidence.
III
While Blue Mountain contends the ALJ violated the APA by relying too
heavily on the preamble when determining the weight to be given two medical
opinions, we conclude the ALJ did not err. Nor did the ALJ abuse his discretion
in denying Blue Mountain’s request to reopen the record. Blue Mountain’s
petition for review is denied.
18