Hobet Mining, LLC v. Carl Epling, Jr. , 783 F.3d 498 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1738
HOBET MINING, LLC,
Petitioner,
v.
CARL R. EPLING, JR.; DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(12-0404-BLA; 12-0404-A-BLA)
Argued: January 29, 2015 Decided: April 17, 2015
Before KEENAN, FLOYD, and HARRIS, Circuit Judges.
Petition for review denied by published opinion. Judge Harris
wrote the opinion, in which Judge Keenan and Judge Floyd joined.
ARGUED: William Steele Mattingly, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Petitioner. Sean Gregory
Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.;
Leonard Joseph Stayton, Inez, Kentucky, for Respondents. ON
BRIEF: Ashley M. Harman, JACKSON KELLY PLLC, for Petitioner.
M. Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Sarah M. Hurley, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director, Office of Workers' Compensation Programs, United
States Department of Labor.
PAMELA HARRIS, Circuit Judge:
Hobet Mining, LLC (“Hobet”) petitions for review of a
decision awarding black lung benefits to Carl R. Epling, Jr.
(“Epling”). The administrative law judge (“ALJ”) found that
Epling was entitled to the benefit of the so-called “fifteen-
year presumption,” a statutory provision that presumes
eligibility for benefits when a claimant suffers from a totally
disabling respiratory or pulmonary impairment and has fifteen
years of qualifying coal mine employment. See 30 U.S.C.
§ 921(c)(4). Because Hobet had failed to rebut that
presumption, the ALJ concluded, Epling was entitled to benefits.
We find that the ALJ’s determinations were supported by
substantial evidence, and we therefore deny the petition for
review.
I.
A.
The Black Lung Benefits Act (“Act”) provides benefits to
“coal miners who are totally disabled due to pneumoconiosis,”
popularly known as black lung disease. 30 U.S.C. § 901(a). To
prove entitlement to black lung benefits in the absence of the
fifteen-year presumption, an individual must show that he has
2
pneumoconiosis arising from coal mine employment, 1 and that this
disease is a substantially contributing cause of his totally
disabling respiratory or pulmonary impairment. See Mingo Logan
Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013). 2
“[T]he existence and causes of pneumoconiosis are difficult
to determine,” and Congress accordingly has “established a
number of evidentiary presumptions to assist miners in proving
their claims.” Broyles v. Dir., Office of Workers’ Comp.
Programs, 824 F.2d 327, 328 (4th Cir. 1987). Among them is the
fifteen-year presumption at issue in this case, 30 U.S.C.
§ 921(c)(4), which was enacted in 1972, eliminated in 1981, and
then restored in 2010. 3 The fifteen-year presumption is
1
Since the 1978 amendments to the Act, the statutory
definition of “pneumoconiosis” has encompassed not only the
diseases medically known as pneumoconiosis, but also any chronic
lung disease or impairment arising from coal mine employment, as
well as the impairments that result from any such disease. See
30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).
2
In some cases, we have further subdivided these elements
of a black lung claim into four separate components. See Mingo
Logan, 724 F.3d at 555 (a claimant must show (1) that he has
pneumoconiosis; (2) that his pneumoconiosis arises from coal
mining employment; (3) that he is totally disabled by a
respiratory or pulmonary impairment; and (4) that pneumoconiosis
is a substantially contributing cause of his disability).
However the elements are counted, the substance of the claim is
the same.
3
Black Lung Benefits Act of 1972, Pub. L. No. 92-303,
§ 4(c), 86 Stat. 150, 154 (1972); Black Lung Revenue Act of
1981, Pub. L. No. 97-119, § 202(b)(1), 95 Stat. 1635, 1643
3
expressly intended to “[r]elax” the “often insurmountable
burden” of proving a black lung claim for the special class of
“miners with 15 years experience who are disabled by a
respiratory or pulmonary impairment.” S. Rep. 92-743 (1972),
reprinted in 1972 U.S.C.C.A.N. 2305, 2306. Through the
presumption, Congress has “singled out” this group of miners for
“special treatment,” making it easier for them to show their
entitlement to benefits. Regulations Implementing the Byrd
Amendments to the Black Lung Benefits Act: Determining Coal
Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg.
59102, 59105-07 (Sept. 25, 2013); see also West Virginia CWP
Fund v. Bender, — F.3d — , No. 12-2034, slip op. at 23 (4th Cir.
Apr. 2, 2015).
To that end, § 921(c)(4) provides that,
if a miner was employed for fifteen years or
more in one or more underground coal mines,
. . . and if other evidence demonstrates the
existence of a totally disabling respiratory
or pulmonary impairment, then there shall be
a rebuttable presumption that such miner is
totally disabled due to pneumoconiosis.
Under the presumption, if a claimant has at least fifteen years
of underground coal mine employment and a qualifying respiratory
or pulmonary disability, a rebuttable presumption arises that he
(1981); Patient Protection and Affordable Care Act, Pub. L. No.
111-148, § 1556, 124 Stat. 119, 260 (2010).
4
is entitled to benefits. In other words, we presume both prongs
of the showing required for benefits eligibility: that the
claimant has pneumoconiosis arising from coal mine employment,
and that this disease is a substantially contributing cause of
his disability. See Mingo Logan, 724 F.3d at 555.
A coal mine operator may defeat the miner’s claim by
rebutting either of these presumptions. First, an operator may
establish that the miner does not have pneumoconiosis arising
from coal mine employment. 20 C.F.R. § 718.305(d)(1)(i).
Second, the operator may establish that “no part” of the miner’s
disability was caused by such a disease, id.
§ 718.305(d)(1)(ii), a standard under which it must “rule out”
the mining-related disease as a cause of the miner’s disability,
Bender, slip op. at 8; Rose v. Clinchfield Coal Co., 614 F.2d
936, 939 (4th Cir. 1980).
B.
After working for over twenty-one years in underground coal
mines — most recently for petitioner Hobet in 1999 — respondent
Epling is unable to exert himself at all without experiencing
shortness of breath. Because this impairment prevents Epling
from performing his previous coal mine employment, which
required heavy manual labor, it constitutes a totally disabling
respiratory impairment for purposes of the Act.
5
Epling filed this claim for benefits under the Act in 2007.
Due to Epling’s long history of coal mine employment and totally
disabling respiratory impairment, the ALJ reviewing his claim
applied the fifteen-year presumption, reinstated in 2010 while
Epling’s case was pending. As required by that provision, the
ALJ presumed both (1) that Epling has pneumoconiosis arising
from coal mine employment, and (2) that Epling’s pneumoconiosis
is a cause of his disabling respiratory impairment. Together,
those presumptions qualify Epling for benefits, absent rebuttal
by Hobet.
On the first presumption — the existence of pneumoconiosis
arising from coal mine employment — the ALJ found that Epling
does indeed have pneumoconiosis arising from his coal mine
employment. Hobet does not contest that finding on appeal.
Accordingly, only the second presumption — that Epling’s
pneumoconiosis is a cause of his disability — is at issue here.
To rebut that disability-causation presumption, Hobet
presented the ALJ with testimony from two doctors, Dr. Robert J.
Crisalli (“Crisalli”) and Dr. Kirk Hippensteel (“Hippensteel”).
The ALJ discredited Crisalli’s testimony in a finding that Hobet
does not challenge on appeal, and Hobet now relies entirely on
Hippensteel’s opinion, set forth in a number of submissions over
the course of this litigation.
6
Critically, in submissions made between 2008 and 2011,
Hippensteel was unpersuaded that Epling suffered from
pneumoconiosis at all, though he conceded that the evidence was
not unequivocal. As the ALJ explained, after reviewing chest CT
scans, Hippensteel believed “that the evidence did not indicate
pneumoconiosis.” J.A. 80. In this key respect, Hippensteel’s
opinion was directly contrary to the ALJ’s finding that Epling
did have pneumoconiosis arising from coal mine employment.
Hippensteel attributed Epling’s respiratory impairments not
to pneumoconiosis but instead entirely to obesity and sleep
apnea. Hippensteel acknowledged abnormalities in Epling’s x-
rays. He believed, however, that it would be “unusual” for
Epling to have developed pneumoconiosis over ten years after he
left work in the coal mines. See J.A. 89. And in light of the
evidence against pneumoconiosis, he reasoned, it followed that
the abnormalities were the result of the obesity and sleep
apnea.
At the same time, Hippensteel asserted that even if,
hypothetically, Epling did have pneumoconiosis arising from coal
mine employment, that disease would not be the cause of his
impairment. By way of explanation, Hippensteel offered only his
agreement with the views of Crisalli, the now-discredited
expert, reciting Crisalli’s opinion as to the cause of Epling’s
gas exchange impairment.
7
In February of 2012, upon review of additional CT scans,
Hippensteel’s diagnostic opinion changed, and he concluded that
Epling did indeed suffer from pneumoconiosis arising from coal
mine employment. But Hippensteel did not revisit his causation
analysis in light of this new finding. Instead, he simply
recited again his prior conclusion that Epling’s respiratory
problems were not caused by pneumoconiosis.
Reviewing this evidence, the ALJ made the determination —
central to this appeal — that Hippensteel’s opinion that
pneumoconiosis did not cause Epling’s disability was entitled to
“little weight” because (1) the doctor had failed to diagnose
pneumoconiosis, in direct contradiction to the ALJ’s own
finding; and (2) Hippensteel’s position “that it would be
unusual for [Epling] to have pneumoconiosis ten years after he
ended his coal mine employment” was “not in accord with the
accepted view that [coal workers’ pneumoconiosis] is both latent
and progressive.” J.A. 89; see also J.A. 98. Having discounted
that key testimony, the ALJ went on to find that Hobet could not
rebut the presumption that Epling’s pneumoconiosis is a cause of
his disability, and awarded benefits to Epling.
The Benefits Review Board (“Board”) affirmed the ALJ’s
decision. On the weight to be given Hippensteel’s opinion, the
Board, citing Scott v. Mason Coal Co., 289 F.3d 263 (4th Cir.
2002), invoked the well-established rule discrediting causation
8
testimony by a doctor who fails to diagnose pneumoconiosis when,
as here, an ALJ has made a contrary finding. In such cases, a
doctor’s opinion as to causation may not be credited at all
unless there are “‘specific and persuasive reasons’” for
concluding that the doctor’s view on causation is independent of
his or her mistaken belief that the claimant does not have
pneumoconiosis, in which case it may be assigned, at most,
“little weight.” Scott, 289 F.3d at 269-70 (quoting Toler v. E.
Associated Coal Co., 43 F.3d 109, 116 (4th Cir. 1995)).
Applying that standard, the Board held that the ALJ had
“rationally discounted” Hippensteel’s opinion. J.A. 98.
Hippensteel’s failure to diagnose pneumoconiosis could not be
salvaged, the Board explained, by his hypothetical “assumption
of the existence” of pneumoconiosis in deposition testimony.
J.A. 99. And though Hippensteel ultimately accepted the
diagnosis of pneumoconiosis in 2012, the Board reasoned, all of
his discussion of his causation opinion predated that change of
mind, and was coupled with his former unwillingness to diagnose
pneumoconiosis. The Board therefore affirmed the ALJ’s findings
as to causation and the award of benefits to Epling.
Hobet timely filed this petition for review, arguing that
the ALJ and the Board improperly discredited Hippensteel’s
9
opinion regarding the cause of Epling’s disability. 4 For the
reasons that follow, we disagree.
II.
A.
Our review of a decision awarding black lung benefits is
“limited.” Harman Mining Co. v. Dir., Office of Workers’ Comp.
Programs, 678 F.3d 305, 310 (4th Cir. 2012). We ask only
“whether substantial evidence supports the factual findings of
the ALJ and whether the legal conclusions of the [Board] and ALJ
are rational and consistent with applicable law.” Id.
To determine whether this standard has been met, we
consider “whether all of the relevant evidence has been analyzed
and whether the ALJ has sufficiently explained his rationale in
crediting certain evidence.” Mingo Logan, 724 F.3d at 557. But
it is for the ALJ, as the trier of fact, to make factual and
4
Hobet also argues that the ALJ and Board erred by holding
its rebuttal evidence on causation to the rule-out standard of
20 C.F.R. § 718.305(d)(1). According to Hobet, the rule-out
standard is unduly strict and inconsistent with the Act, which
must be read to allow rebuttal by a showing that pneumoconiosis
is not a “substantially contributing” cause of a claimant’s
disability. Because we conclude that Hippensteel’s opinion was
properly discredited, leaving Hobet with insufficient rebuttal
evidence under either standard, resolution of that issue is not
dispositive here. We note, however, that the same challenge to
the rule-out standard was addressed and rejected by our recent
decision in West Virginia CWP Fund v. Bender, — F.3d —, No. 12-
2034, slip op. at 28-29 (4th Cir. Apr. 2, 2015).
10
credibility determinations, see id., and we therefore “defer to
the ALJ’s evaluation of the proper weight to accord conflicting
medical opinions,” Harman, 678 F.3d at 310. So long as an ALJ’s
findings in this regard are supported by substantial evidence,
they must be sustained. See id.
B.
The question in this appeal is whether Hippensteel’s
opinion regarding the cause of Epling’s disability was properly
discredited. In particular, we consider whether the ALJ and the
Board erred by discrediting Hippensteel’s causation analysis on
the basis of his failure to diagnose pneumoconiosis arising from
coal mine employment.
As the Board recognized, we are not writing on a clean
slate. Long-standing precedent establishes that a medical
opinion premised on an erroneous finding that a claimant does
not suffer from pneumoconiosis is “not worthy of much, if any,
weight,” particularly with respect to whether a claimant’s
disability was caused by that disease. Grigg v. Dir., Office of
Workers’ Comp. Programs, 28 F.3d 416, 419 (4th Cir. 1994). This
is a common-sense rule, for the credibility of a doctor’s
judgment as to whether pneumoconiosis is a cause of a miner’s
disability is necessarily influenced by the accuracy of his
underlying diagnosis, which lies at the heart of any claim for
black lung benefits. See Toler, 43 F.3d at 116. “It is usually
11
exceedingly difficult for a doctor to properly assess the
contribution, if any, of pneumoconiosis to a miner’s death [or
disability] if [the doctor] does not believe [pneumoconiosis]
was present.” Soubik v. Dir., Office of Workers’ Comp.
Programs, 366 F.3d 226, 234 (3d Cir. 2004).
Thus, opinions that erroneously fail to diagnose
pneumoconiosis may not be credited at all, unless an ALJ is able
to “identify specific and persuasive reasons for concluding that
the doctor’s judgment on the question of disability causation
does not rest upon” the “predicate[]” misdiagnosis. Toler, 43
F.3d at 116 (vacating ALJ finding on disability causation where
ALJ relied upon the opinions of doctors who erroneously failed
to diagnose pneumoconiosis); see also Scott, 289 F.3d at 269-70
(same). And even when those opinions are credited, they may
carry only “little weight” in the decision-maker’s causation
analysis. Scott, 289 F.3d at 269 (even if there were specific
and persuasive reasons to credit opinions failing to diagnose
pneumoconiosis, ALJ impermissibly “accorded those opinions far
more than the little weight they are allowed”).
In this case, we agree with the Board that Hippensteel’s
opinion was entitled to no more than the “little weight”
assigned it by the ALJ. First and most critically, Hippensteel
failed to diagnose Epling’s pneumoconiosis, directly contrary to
the finding of the ALJ. Under cases like Scott and Toler, that
12
failure, by itself, would bar the ALJ from giving Hippensteel’s
opinion as to disability causation anything more than the
“little weight” he accorded it. See Scott, 289 F.3d at 269-70;
Toler, 43 F.3d at 116.
Moreover, this is not a case in which there are “specific
and persuasive reasons” for thinking that a doctor’s view of
disability causation is independent from any misdiagnosis. See
Toler, 43 F.3d at 116. On the contrary, substantial evidence
supports the conclusion that Hippensteel’s disability-causation
opinion was closely tied to his belief that Epling did not
suffer from pneumoconiosis arising from coal mine employment.
Indeed, Hippensteel himself explained that it was because the
evidence in the record did not substantiate a diagnosis of
pneumoconiosis that he attributed the irregularities in Epling’s
x-rays to obesity and sleep apnea instead. That reasoning is
irreconcilable with the ALJ’s conclusion that Epling does in
fact have pneumoconiosis. See id. at 115 (finding it difficult
“to understand how the ALJ could credit” the causation analysis
of doctors who failed to diagnose pneumoconiosis “while
simultaneously finding that [the claimant] did suffer from
pneumoconiosis”). And it leaves no space between Hippensteel’s
failure to diagnose pneumoconiosis and his assessment that
pneumoconiosis was not a cause of Epling’s disability. Under
those circumstances, the ALJ properly discredited Hippensteel’s
13
opinion. See id. at 116 (ALJ “may not credit” doctor’s opinion
on causation absent “specific and persuasive” showing that it is
not linked to an erroneous failure to diagnose pneumoconiosis).
Hobet argues that Hippensteel salvaged the credibility of
his causation opinion when he asserted that he would have
reached the same conclusion even assuming that Epling did have
pneumoconiosis. We disagree. A medical expert of course may
opine credibly as to disability causation under an alternative
set of circumstances. See, e.g., Island Creek Coal Co. v.
Compton, 211 F.3d 203, 214 (4th Cir. 2000). But as we have
held, it is not enough for the expert simply to recite, without
more, that his causation opinion would not change if the
claimant had pneumoconiosis. See Scott, 289 F.3d at 268-69.
Rather, such an alternative causation analysis, like any
causation opinion, must be accompanied by some reasoned
explanation — in this context, an explanation of why the expert
would continue to believe that pneumoconiosis was not the cause
of a miner’s disability, even if pneumoconiosis were present.
That is what is missing in this case: Hippensteel does not
provide any independent analysis of the factors that would lead
him to attribute Epling’s impairment to obesity and sleep apnea
even if the factual premise for his opinion — that Epling does
not have pneumoconiosis — were overridden. Instead, he simply
endorses and paraphrases Crisalli’s view of the gas exchange
14
evidence — a view that was itself discredited by the ALJ.
Repetition of another expert’s discredited analysis does nothing
to enhance the credibility of Hippensteel’s own views, and it
does not constitute the reasoned explanation necessary to
support an alternative causation analysis. And without such an
explanation, Hippensteel’s alternative opinion is just a
“superficial hypothetical” that cannot be reconciled with the
existence of the mining-related pneumoconiosis found by the ALJ.
Soubik, 366 F.3d at 234 (quotation marks omitted).
Nor is Hippensteel’s opinion as to causation rendered sound
by his late-breaking determination, in 2012, that Epling does in
fact have pneumoconiosis. As the Board explained, the entirety
of Hippensteel’s causation reasoning predates his ultimate
diagnosis of pneumoconiosis and, as discussed, rests primarily
on the absence of that disease. At no point after diagnosing
pneumoconiosis did Hippensteel revisit his earlier opinion to
take into account the elimination of what had been the factual
predicate for his view. So again, the ALJ was left without any
explanation, in reports or testimony, of how Hippensteel might
be able to reach the same conclusion regarding the cause of
Epling’s disability in light of his changed opinion regarding
Epling’s diagnosis. Absent that explanation, Hippensteel’s 2012
restatement of his causation opinion was no more credible than
its earlier iterations, and the ALJ permissibly discounted it.
15
In short, Hippensteel’s initial failure to diagnose
pneumoconiosis was cured neither by his hypothetical assumption
of pneumoconiosis nor by his subsequent embrace of that
diagnosis. Even standing alone, this defect would have
justified the ALJ’s credibility determination. See Scott, 289
F.3d at 269-70. But in this case, Hippensteel’s failure to
diagnose pneumoconiosis did not stand alone. Instead, it came
with the doctor’s testimony that it would be unusual for Epling
to have developed pneumoconiosis over ten years after he left
work in the coal mines — a judgment, the ALJ explained, that is
“not in accord with the accepted view that [coal workers’
pneumoconiosis] is both latent and progressive.” J.A. 89. The
ALJ was entitled to take this disagreement, too, into account in
“evaluat[ing] . . . the proper weight to accord [the]
conflicting medical opinions” at issue in this case, Harman, 678
F.3d at 311 (quoting Stiltner v. Island Creek Coal Co., 86 F.3d
337, 342 (4th Cir. 1996)), further bolstering his decision to
discount Hippensteel’s opinion. When these grounds for
discrediting Hippensteel’s causation opinion are taken together,
they undoubtedly provide the substantial evidence necessary to
affirm on appeal the ALJ’s finding that Hobet had failed to
rebut the fifteen-year presumption. See id. at 310.
16
III.
For the foregoing reasons, we deny the petition for review.
PETITION FOR REVIEW DENIED
17