Eastern Associated Coal Corp v. DOWCP , 805 F.3d 502 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1923
EASTERN ASSOCIATED COAL CORPORATION,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CLARA SUE TOLER, Administratrix
of the Estate of Arvis R. Toler,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(13-0531 BLA)
Argued: September 17, 2015 Decided: November 6, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Petition for review denied by published opinion. Judge King
wrote the opinion, in which Judge Motz and Judge Gregory joined.
ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, LLP,
Washington, D.C., for Petitioner. Evan Barret Smith,
APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky; Jeffrey
Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG
TRAURIG, LLP, Washington, D.C., for Petitioner. M. Patricia
Smith, Solicitor of Labor, Rae Ellen Frank James, Associate
Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director, Office of Workers’
Compensation Programs.
2
KING, Circuit Judge:
Eastern Associated Coal Corporation petitions for review of
the 2014 decision of the Benefits Review Board (the “BRB”)
affirming an award of black lung benefits to Arvis R. Toler.
Toler first applied for black lung benefits in 1993, but that
claim was denied. In granting Toler’s second claim for
benefits, which was filed in 2008, an administrative law judge
(“ALJ”) invoked the rebuttable presumption that a coal miner
with a fifteen-year work history of underground coal mining and
a totally disabling pulmonary impairment is disabled due to
pneumoconiosis (the “fifteen-year presumption”). Eastern
contends that, by applying the fifteen-year presumption to
Toler’s second claim, the ALJ contravened the Black Lung
Benefits Act, 30 U.S.C. §§ 901-945 (the “Act”), and its
regulations, as well as principles of finality and separation of
powers. As explained below, we deny the petition for review and
thereby affirm the BRB’s decision.
I.
A.
1.
Congress created the black lung benefits program in 1969
“to provide benefits . . . to coal miners who are totally
disabled due to pneumoconiosis and to the surviving dependents
3
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.”
Id. § 902(b).
The Act empowers the Secretary of Labor (the “Secretary”)
to implement its provisions and promulgate appropriate standards
for determining whether a coal miner is entitled to benefits
thereunder. See 30 U.S.C. §§ 902(c), 921(b), 936(a). Pursuant
to the regulations, a miner must “establish[]” four
“[c]onditions of entitlement” to obtain black lung benefits:
(1) that he has pneumoconiosis; (2) that his pneumoconiosis
arose out of coal mine employment; (3) that he is totally
disabled; and (4) that pneumoconiosis contributes to his total
disability. See 20 C.F.R. § 725.202(d); see also W. Va. CWP
Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015).
The applicable regulations identify two types of
pneumoconiosis: legal and clinical. 20 C.F.R. § 718.201(a).
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.” Id. § 718.201(a)(1). Legal pneumoconiosis is
4
defined more broadly to “include[] any chronic pulmonary disease
or respiratory or pulmonary impairment significantly related to,
or substantially aggravated by, dust exposure in coal mine
employment.” Id. § 718.201(a)(2). Clinical pneumoconiosis can
be further classified as either “simple” or “complicated.” See
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976).
Complicated pneumoconiosis, sometimes referred to as
“progressive massive fibrosis,” see Lisa Lee Mines v. Dir.,
OWCP, 86 F.3d 1358, 1359-60 (4th Cir. 1996) (en banc), is
characterized by the presence of “massive lesions” in the lungs
that resolve on imaging as opacities at least one centimeter in
diameter. See 30 U.S.C. § 921(c)(3).
Congress has occasionally “recalibrated” the applicable
standards for entitlement to benefits under the Act. See W. Va.
CWP Fund v. Stacy, 671 F.3d 378, 381 (4th Cir. 2011). In 1972,
responding to mounting evidence that meritorious claims were
being unjustifiably denied, Congress amended the Act to afford a
presumption of total disability due to pneumoconiosis to a coal
miner who could show that he had worked underground for at least
fifteen years and was suffering from a totally disabling
respiratory or pulmonary impairment. See Black Lung Benefits
Act of 1972, Pub. L. No. 92-303, § 4(c), 86 Stat. 150, 154
(codified as amended at 30 U.S.C. § 921(c)(4)); Bozwich v.
Mathews, 558 F.2d 475, 478-79 (8th Cir. 1977). The fifteen-year
5
presumption could be rebutted “only by establishing that (A)
such miner does not, or did not, have pneumoconiosis, or that
(B) his respiratory or pulmonary impairment did not arise out
of, or in connection with, employment in a coal mine.” See 30
U.S.C. § 921(c)(4). 1 In 1981, Congress repealed the fifteen-year
presumption for claims filed on or after January 1, 1982. See
Black Lung Benefits Revenue Act of 1981, § 202(b)(1), Pub. L.
No. 97-119, 95 Stat. 1635, 1643 (repealed 2010); Bender, 782
F.3d at 134.
In March 2010, Congress restored the fifteen-year
presumption — after a twenty-nine-year hiatus — by enacting
§ 1556(a) of the Patient Protection and Affordable Care Act (the
“ACA”), Pub. L. No. 111-148, 124 Stat. 119, 260 (2010) (codified
at 30 U.S.C. § 921(c)(4)). Section 1556(c) of the ACA provided
that the fifteen-year presumption “shall apply with respect to
claims filed . . . after January 1, 2005, that are pending on or
after the date of enactment” of the ACA — that is, March 23,
2010.
In 2013, the Secretary promulgated regulations implementing
the revived fifteen-year presumption. See 20 C.F.R. § 718.305;
Bender, 782 F.3d at 134-35. Under those regulations, a party
1 A coal miner with complicated pneumoconiosis is entitled
to an irrebuttable presumption of total disability due to
pneumoconiosis. See 30 U.S.C. § 921(c)(3).
6
opposing a claim for benefits is entitled to rebut the fifteen-
year presumption by establishing either (1) that the miner has
neither legal pneumoconiosis nor clinical pneumoconiosis arising
out of coal mine employment, or (2) “that no part of the miner’s
respiratory or pulmonary total disability was caused by
pneumoconiosis.” 20 C.F.R. § 718.305(d)(1). In other words, to
rebut the fifteen-year presumption, the opposing party is
obliged to “‘rule out’ any connection between [the] miner’s
pneumoconiosis and his disability.” See Bender, 782 F.3d at
135.
2.
Under the regulations governing subsequent black lung
benefits claims, a coal miner who has had an earlier claim for
benefits denied must establish “that one of the applicable
conditions of entitlement” specified in § 725.202(d) “has
changed since the date upon which the order denying the prior
claim became final.” See 20 C.F.R. § 725.309(c). The
regulations limit the “applicable conditions of entitlement” to
“those conditions upon which the prior denial was based.” Id.
§ 725.309(c)(3). If the applicable conditions of entitlement
“relate to the miner’s physical condition,” then “the subsequent
claim may be approved only if new evidence submitted in
connection with the subsequent claim establishes at least one
applicable condition of entitlement.” Id. § 725.309(c)(4). If
7
a claimant fails to show a change in an applicable condition of
entitlement, the claim must be denied. Id. § 725.309(c). But,
if the claimant shows a change in an applicable condition of
entitlement, none of the findings from the prior adjudication
are binding, and the new claim must be evaluated de novo, based
on all of the evidence. Id. § 725.309(c)(5). Even if the
claimant prevails on the subsequent claim, no benefits may be
awarded for the period adjudicated by the prior claim. Id.
§ 725.309(c)(6).
Prior to 2000, § 725.309 required a coal miner whose
earlier claim was denied to show a “material change in
conditions” in order to pursue a subsequent claim. See Lisa Lee
Mines, 86 F.3d at 1360. During that period, the Director of the
Office of Workers’ Compensation Programs (the “Director”), the
BRB, and the courts of appeals rendered conflicting
interpretations of the regulatory phrase “material change in
conditions.” To resolve that conflict and clarify the
applicable standard, the Secretary initiated notice-and-comment
rulemaking pursuant to the Administrative Procedure Act, 5
U.S.C. § 553. See Regulations Implementing the Federal Coal
Mine Health and Safety Act of 1969, as Amended, 62 Fed. Reg.
3338-01, 3351-52 (proposed Jan. 22, 1997). At the conclusion of
that rulemaking process, the Secretary promulgated a final rule
(the “2000 Final Rule”) establishing the standard currently
8
specified in § 725.309. See Regulations Implementing the
Federal Coal Mine Health and Safety Act of 1969, as Amended, 65
Fed. Reg. 79,920-01, 79,968, 80,067-68 (Dec. 20, 2000) (to be
codified at 20 C.F.R. § 725.309).
The Secretary’s 2000 Final Rule expressly adopted our
Court’s en banc 1996 decision in Lisa Lee Mines on the meaning
of a “material change in conditions.” In the preamble to the
2000 Final Rule, the Secretary explained that she was
“effectuat[ing]” Lisa Lee Mines. See 2000 Final Rule, 65 Fed.
Reg. at 79,968; see also Regulations Implementing the Federal
Coal Mine Health and Safety Act of 1969, as Amended, 64 Fed.
Reg. 54,966-01, 54,984 (proposed Oct. 8, 1999) (“The
[Secretary]’s subsequent claims provision gives full effect to
the Fourth Circuit’s decision in Lisa Lee Mines . . . .”).
Because the Secretary expressly endorsed and adopted Lisa Lee
Mines when she promulgated the 2000 Final Rule, Lisa Lee Mines
remains the law of this Circuit and guides our interpretation of
§ 725.309. 2
2
As we recognized in Harman Mining Co. v. Director, OWCP,
the preamble to the 2000 Final Rule “may serve as a source of
evidence concerning contemporaneous agency intent.” See 678
F.3d 305, 316 (4th Cir. 2012) (internal quotation marks
omitted).
9
3.
Alva Rutter, the coal miner-claimant in Lisa Lee Mines,
unsuccessfully sought black lung benefits in 1986. See 86 F.3d
at 1360. Three years thereafter, he filed a second claim,
supported by more recent x-rays that indisputably established
his entitlement to benefits. Id. at 1359-60. Lisa Lee Mines,
the responsible operator, contested Rutter’s claim solely on the
ground that Rutter had not shown a “material change in
conditions.” Id. at 1360. An ALJ ruled that Rutter had shown
such a change, reasoning that the medical evidence showed “a
definite progression” of Rutter’s disease “resulting in
[Rutter’s] reduced capacity to do his former coal mine work.”
Id. The ALJ further concluded that, even if Rutter failed to
show a material change in conditions, the 1986 denial was
“erroneous on its face and ‘null and void ab initio.’” Id.
Accordingly, the ALJ awarded benefits effective on the date that
Rutter’s first claim was filed. Id. The BRB affirmed the award
of benefits, but concluded that the ALJ was not entitled to
reopen the 1986 denial. Id. It therefore modified the award to
provide that benefits would be payable only as of the date
Rutter filed his second claim. Id.
Lisa Lee Mines then sought review in this Court. In our en
banc decision, we agreed that the BRB had properly reversed the
ALJ’s reopening of the 1986 denial. See Lisa Lee Mines, 86 F.3d
10
at 1361. We explained that, because the 1986 decision was
“final,” that decision “and its necessary factual underpinning”
must be accepted as “correct.” Id. We emphasized, however,
that the first BRB decision did not bar a subsequent claim “as a
matter of ordinary res judicata,” because “[t]he health of a
human being is not susceptible to a once-in-a-lifetime
adjudication.” Id. at 1362. Rutter’s second claim for black
lung benefits required an assessment of his condition when that
claim was filed, an issue which neither was — nor could have
been — litigated in connection with Rutter’s first claim. Id.
We then addressed the appropriate standard for evaluating
subsequent claims for black lung benefits, and we adopted the
“one element” standard advanced by the Director. See Lisa Lee
Mines, 86 F.2d at 1362-64. That rule required the claimant “to
prove, under all of the probative medical evidence of his
condition after the prior denial, at least one of the elements
previously adjudicated against him.” Id. at 1362. We rejected
a more stringent standard, drawn from the Seventh Circuit’s
decision in Sahara Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir.
1991), that would have required the claimant to show a change in
condition on every element previously decided against him,
because it did not “account for the frailty of alternative
holdings,” and because it required “a plenary review of the
evidence behind the first claim.” Lisa Lee Mines, 86 F.3d at
11
1363. We also rejected the standard sponsored by the BRB in
Spese v. Peabody Coal Co., 11 BLR 1-174, 1-176 (Ben. Rev. Bd.
1988), which would have allowed a coal miner’s subsequent claim
to proceed if the miner presented new evidence that raised a
reasonable possibility of changing the result, deeming such a
standard vague, illogical, and “arguably” too lenient. Lisa Lee
Mines, 86 F.3d at 1363.
B.
1.
For twenty-seven years, Arvis Toler worked in and about
Eastern’s coal mines in southern West Virginia, primarily as an
electrician. For sixteen of those years, Toler toiled
underground, where he was exposed to high concentrations of coal
dust. Between approximately 1966 and 1997, he generally smoked
a pack of cigarettes each day. Toler began to experience
shortness of breath in the mid-1980s. His breathing problems
worsened, and, in 1993, at age fifty-five, Toler’s failing
health caused him to quit his job as a coal miner.
In 1993, shortly before he left Eastern, Toler filed his
first claim for black lung benefits. An ALJ found that Toler
was totally disabled by severe obstructive pulmonary disease,
but also that Toler had failed to show that his work in the coal
mines (rather than his smoking habit) caused his pulmonary
illness. As such, the ALJ denied Toler’s claim for benefits.
12
The BRB affirmed the ALJ’s decision, explaining that the ALJ had
properly weighed the evidence and permissibly found that Toler
had not shown by a preponderance of the evidence that he
suffered from pneumoconiosis. Toler thereafter petitioned this
Court for review of the BRB’s adverse decision. In 1998, we
denied Toler’s petition for review and affirmed the BRB. See
Toler v. E. Assoc. Coal Corp., No. 97-2148 (4th Cir. Aug. 19,
1998) (unpublished).
2.
a.
Despite leaving his coal mine work and abandoning his
smoking habit, Toler’s respiratory condition continued to
decline. By 2000, Toler required supplemental oxygen, and he
began using oxygen twenty-four hours per day in 2008.
Toler filed his second claim for black lung benefits on
February 26, 2008. In April 2008, the Director had Toler
undergo a complete pulmonary evaluation. See 20 C.F.R.
§ 725.406(a). As part of that evaluation, Toler had a chest x-
ray, which a radiologist read as positive for simple
pneumoconiosis, as well as blood gas and pulmonary function
tests, which indicated that Toler was permanently disabled due
to a pulmonary impairment. Based on those tests, and on his own
examination of Toler, Dr. John Burrell diagnosed “[s]imple
pneumoconiosis category s/t, 1/0; severe chronic obstructive
13
pulmonary disease; [and] [arteriosclerotic heart disease] with
[coronary artery disease], based on history, physical, chest x-
ray, [arterial blood gas test results] & [pulmonary function
studies].” See J.A. 243. 3 Dr. Burrell identified smoking and
occupational exposure to coal dust as causes of Toler’s
pulmonary impairments.
Both Toler and Eastern submitted additional evidence to the
Director regarding the second claim. Toler furnished a
radiologist’s reading of a July 14, 2008 x-ray that was also
positive for simple pneumoconiosis, and Eastern introduced a
negative reading of the April 2, 2008 x-ray.
On October 23, 2008, the district director issued a
proposed decision and order granting Toler’s second claim.
Because Eastern objected to the decision, Toler’s second claim
was scheduled for a March 17, 2010 hearing before an ALJ. Toler
testified at the hearing and introduced several new exhibits.
Toler’s exhibits included a second reading of the July 14, 2008
x-ray as positive for pneumoconiosis, as well as additional
pulmonary function and blood gas studies. Toler also submitted
a letter from his treating physician advising that Toler “has
severe obstructive lung disease with pulmonary nodule and
3 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.
14
intermittent infiltrates” and opining that “it is quite probable
given the severity of Mr. Toler’s disease that coal dust played
an integral role in [its] development.” J.A. 103.
Eastern introduced several other exhibits into evidence,
including negative readings of the April and July 2008 x-rays, a
December 11, 2009 digital x-ray, and five CT scans taken between
December 2006 and November 2008. In addition, Eastern furnished
reports by Dr. David Rosenberg and Dr. Joseph Renn concluding
that Toler did not have pneumoconiosis. Finally, Eastern took
the uncontested depositions of Drs. Rosenberg and Renn and
introduced those depositions.
b.
On June 15, 2010, the ALJ issued his Decision and Order
(the “2010 ALJ Order”) granting Toler’s claim for benefits. The
ALJ accepted the parties’ stipulations that Toler was a coal
miner, that Toler was totally disabled from a pulmonary
impairment, and that Eastern was the responsible operator.
Based thereon, the ALJ applied the newly restored fifteen-year
presumption to Toler’s claim and identified the only remaining
issue as “[w]hether [Eastern] can establish that [Toler] does
not suffer from pneumoconiosis.” See 2010 ALJ Order 3. The ALJ
then examined the opinions of Drs. Rosenberg and Renn, rejecting
both because they were grounded in a misinterpretation of a
medical study and because those experts had failed to consider
15
Toler’s twenty-seven-year history of coal mine employment.
Accordingly, the ALJ concluded that Eastern had failed to
demonstrate that Toler did not have pneumoconiosis or that his
pulmonary impairment did not arise out of, or in connection
with, Toler’s coal mine employment.
Eastern appealed the 2010 ALJ Order to the BRB, which
promptly remanded to the ALJ to afford Eastern the opportunity
to submit new evidence aimed at rebutting the fifteen-year
presumption. On remand, Eastern submitted to the ALJ an
additional report from Dr. Rosenberg, and both Eastern and Toler
submitted briefs supporting their respective positions.
On August 1, 2013, the ALJ issued his second Decision and
Order (the “2013 ALJ Order”) granting Toler’s claim for black
lung benefits. Relying on the Seventh Circuit’s decision in
Consolidation Coal Co. v. Director, OWCP, 721 F.3d 789 (7th Cir.
2013) (hereinafter “Bailey”), the ALJ again applied the fifteen-
year presumption to Toler’s second claim. In assessing whether
Eastern had rebutted that presumption, the ALJ discussed the
evidence in some detail. The ALJ first concluded that the
radiological evidence was inconclusive as to pneumoconiosis, and
thus insufficient to meet Eastern’s burden. Turning to the
expert evidence, the ALJ again rejected Drs. Rosenberg’s and
Renn’s opinions for much the same reasons specified in the 2010
ALJ Order. The ALJ evaluated and rejected Dr. Rosenberg’s
16
supplemental report, reasoning, inter alia, that Dr. Rosenberg’s
conclusions were “inconsistent with the [Secretary]’s findings
in the preamble to” the 2000 Final Rule. See 2013 ALJ Order 10. 4
Thus, the ALJ concluded that Eastern had failed to rebut the
fifteen-year presumption and that Toler was entitled to
benefits.
Eastern thereafter appealed the 2013 ALJ Order to the BRB,
which affirmed the ALJ by its Decision and Order of July 7, 2014
(the “BRB Decision”). The BRB considered and rejected Eastern’s
arguments that principles of finality and res judicata precluded
application of the fifteen-year presumption to Toler’s second
claim. In rejecting Eastern’s contention that Toler improperly
sought to relitigate or reopen his first claim, the BRB invoked
our teaching in Lisa Lee Mines, 86 F.3d at 1362, that a
subsequent claim is not the same as a prior claim and is not
barred by the denial of the earlier claim. Because the
adjudication of Toler’s second claim did not disturb either the
denial of benefits on his first claim or this Court’s
4In the preamble to the 2000 Final Rule, the Secretary
explained that “[e]pidemiological studies have shown that coal
miners have an increased risk of developing COPD.” 2000 Final
Rule, 65 Fed. Reg. 79,973. The Secretary’s review of the
medical literature revealed that the severity of COPD among coal
miners “was related to the amount of dust in the lungs,” and
that this correlation “held even after controlling for age and
smoking habits.” Id. at 79,941.
17
disposition of his petition for review, the BRB concluded that
granting the second claim did not offend any constitutional
principles relating to separation of powers. Relying on the
Seventh Circuit’s Bailey decision, the BRB also rejected
Eastern’s contention that the fifteen-year presumption cannot be
used to establish a change in an applicable condition of
entitlement. Finally, the BRB rejected Eastern’s contentions
that the ALJ had applied an improper rebuttal standard and erred
in ruling that Eastern failed to rebut the fifteen-year
presumption.
Eastern has filed a timely petition for review of the BRB
Decision, in which the Director and Toler’s widow are presently
the respondents. 5 We possess jurisdiction to consider Toler’s
petition for review pursuant to 30 U.S.C. § 932(a) and 33 U.S.C.
§ 921(c).
II.
We review an ALJ decision that has been affirmed by the BRB
to determine whether it is in accordance with the law and
supported by substantial evidence. See Island Creek Coal Co. v.
5
On March 19, 2015, after this matter was fully briefed,
Toler passed away. His widow, Clara Sue Toler, as
administratrix of her husband’s estate, has been substituted as
a respondent in his place and stead.
18
Compton, 211 F.3d 203, 207-08 (4th Cir. 2000). In so doing, we
confine our review to the grounds upon which the BRB based its
decision. See Grigg v. Dir., OWCP, 28 F.3d 416, 418 (4th Cir.
1994). As always, we review de novo the BRB’s conclusions of
law. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th
Cir. 1998).
III.
Eastern presses two primary assignments of error in its
petition for review: (1) that, by applying the fifteen-year
presumption to Toler’s second claim, the ALJ reopened a final
judgment of an Article III court, in contravention of separation
of powers principles; and (2) that the ALJ improperly used the
fifteen-year presumption to establish that one of the applicable
conditions of entitlement had changed since the denial of
Toler’s first claim. 6 Because Eastern’s first contention
6
In its briefs in this Court, Eastern also contended that
the ALJ erred in requiring Eastern to “rule out” either
pneumoconiosis or disability due to pneumoconiosis in order to
rebut the fifteen-year presumption. Eastern conceded at oral
argument, however, that our recent decision in West Virginia CWP
Fund v. Bender forecloses that contention. See 782 F.3d 129,
143 (4th Cir. 2015) (upholding “rule-out” standard). Our
precedent also readily dispatches Eastern’s complaints about the
ALJ’s consideration of the preamble to the 2000 Final Rule in
evaluating the opinions of Drs. Rosenberg and Renn. See Harman
Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir. 2012)
(concluding that ALJ did not err in invoking regulatory preamble
in assessing medical expert’s credibility); see also
(Continued)
19
requires us to pass on the constitutionality of agency action,
we are obliged to first address its second contention. See
Marshall v. Stevens People & Friends for Freedom, 669 F.2d 171,
175 (4th Cir. 1981) (resolving statutory challenges to
administrative subpoenas before addressing constitutional issues
(citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (Brandeis, J., concurring))).
A.
First, Eastern maintains that utilizing the fifteen-year
presumption to show a change in a condition of entitlement
pursuant to 20 C.F.R. § 725.309(c) contravenes the Act and the
implementing regulations. We disagree.
Both the Act and the regulations show plainly that a coal
miner armed with new evidence may invoke the fifteen-year
presumption to establish a change in an applicable condition of
entitlement. Section 725.309(c) requires a coal miner to show
that an “applicable condition[] of entitlement” has changed
since the prior denial. “If the applicable condition(s) of
entitlement relate to the miner’s physical condition,” then the
miner may rely only on new evidence to show a change in an
Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 323 (4th Cir.
2014) (explaining that ALJ “may consider” regulatory preamble
“in assessing medical expert opinions”).
20
applicable condition of entitlement. See id. § 725.309(c)(4);
see also Consol. Coal Co. v. Williams, 453 F.3d 609, 617 (4th
Cir. 2006) (“[O]nly new evidence following the denial of the
previous claim, rather than evidence predating the denial, can
sustain a subsequent claim.”). Section 725.202(d) lists the
“conditions of entitlement” for a coal miner’s claim, including
that the miner must have “pneumoconiosis” as it is defined in
§ 718.202. Section 718.202 identifies several ways a miner can
establish pneumoconiosis, including by use of the fifteen-year
presumption described in § 718.305. See 20 C.F.R.
§ 718.202(a)(3) (requiring the decisionmaker to presume that the
coal miner has pneumoconiosis “[i]f the presumptions described
in § 718.304 or § 718.305 are applicable”). And § 718.305
tracks the fifteen-year presumption revived in 2010 by § 1556(a)
of the ACA, which, pursuant to § 1556(c), applies to Toler’s
second claim because that claim was “filed . . . after January
1, 2005,” and was “pending on or after” March 23, 2010.
Congress’s use of the term “claims” in § 1556(c) “without any
qualifying language . . . supports [the] position that amended
[§ 921(c)(4)] applies to all claims that comply with [§]
1556(c)’s time limitations, including subsequent claims.” Union
Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013)
(citations and internal quotation marks omitted).
21
The preamble to the 2000 Final Rule reinforces our textual
conclusion that the fifteen-year presumption, together with new
evidence, may establish a change in a condition of entitlement.
In the preamble, the Secretary rejected a comment suggesting
that a coal miner should be obliged to “submit scientific
evidence establishing that the change in his specific condition
represents latent, progressive pneumoconiosis.” See 65 Fed.
Reg. at 79,972. Instead, as the Secretary explained, “the miner
continues to bear the burden of establishing all of the
statutory elements of entitlement, except to the extent that he
is aided by [the] two statutory presumptions” in effect at the
time the Secretary promulgated the 2000 Final Rule. Id. In
other words, the preamble evinces the Secretary’s intention that
any applicable statutory presumptions may aid a miner’s
subsequent claim.
Thus, the text of the statute and regulations, as well as
the preamble to the 2000 Final Rule, demonstrate that the
fifteen-year presumption applies to subsequent claims and may be
used to establish a change in an applicable condition of
entitlement. Even if we harbored doubts about that conclusion,
we would defer to the Director’s reasonable and consistent
interpretation of the applicable regulations. See Clinchfield
Coal Co. v. Harris, 149 F.3d 307, 310 (4th Cir. 1998)
(explaining that Director’s interpretation of applicable
22
regulation is entitled to “substantial deference” and will be
respected unless “plainly erroneous or inconsistent with the
express language” thereof (quoting Mullins Coal Co. v. Dir.,
OWCP, 484 U.S. 135, 159 (1987))).
Contrary to Eastern’s suggestion, application of the
fifteen-year presumption to a coal miner’s subsequent claim does
not amount to a “double presumption.” See Br. of Petitioner 22.
Under the one-element test, the miner is required to “prove,
under all of the probative medical evidence of his condition
after the prior denial, at least one of the elements previously
adjudicated against him.” See Lisa Lee Mines, 86 F.3d at 1362;
see also 20 C.F.R. § 725.309(c) (requiring the miner to
“demonstrate[] that one of the applicable conditions of
entitlement . . . has changed”). The fifteen-year presumption
merely helps the miner to establish the conditions of
entitlement in the second claim. It does not allow the ALJ to
“waive finality by presuming that something changed.” See Br.
of Petitioner 22.
In advancing its preferred interpretation of the relevant
statutory and regulatory provisions, Eastern relies on the
Secretary’s concession in National Mining Ass’n v. Department of
Labor that “the most common forms of pneumoconiosis are not
latent,” see 292 F.3d 849, 863 (D.C. Cir. 2002). That
concession, in Eastern’s view, is simply inconsistent with
23
utilization of the fifteen-year presumption to establish a
change in a condition of entitlement. Although Eastern does not
dispute that complicated pneumoconiosis can be latent and
progressive, it insists that “simple clinical[] and legal
pneumoconiosis[] are neither latent nor progressive,” and that
the Secretary conceded as much in National Mining Ass’n. See
Br. of Pet’r 18.
Put succinctly, we are not “empowered to substitute [our]
judgment for that of the [Secretary]” on matters within the
Secretary’s area of expertise. See Hughes River Watershed
Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999); see
also Midland Coal Co. v. Dir., OWCP, 358 F.3d 486, 490 (3d Cir.
2004) (“[W]e see no reason to substitute our scientific
judgment, such as it is, for that of the responsible agency.”).
Eastern therefore bears a “heavy burden of showing that the
[Secretary] was not entitled to use [her] delegated authority to
resolve the scientific question in this manner.” Midland Coal,
358 F.3d at 490. Eastern has failed to meet that burden in this
proceeding.
The Secretary, after reviewing “all of the medical
literature referenced in the [2000 rulemaking] record,” located
“abundant evidence demonstrating that pneumoconiosis is a
latent, progressive disease.” See 65 Fed. Reg. at 79,970,
79,971. The discussion of the medical literature in the
24
preamble to the 2000 Final Rule demonstrates that both simple
and complicated pneumoconiosis can be latent and progressive.
In one study, fourteen of the thirty-three miners who showed
progression of pneumoconiosis after leaving the coal mining
industry had simple pneumoconiosis. See 65 Fed. Reg. at 79,970;
see also P.T. Donnan et al., Progression of Simple
Pneumoconiosis in Ex-Coalminers After Cessation of Exposure to
Coalmine Dust (Inst. of Occupational Med., Dec. 1997). Another
study “reported both small opacities (evidence of simple
pneumoconiosis) and large opacities (evidence of complicated
pneumoconiosis) in ex-miners who did not show evidence of coal
workers’ pneumoconiosis after the miners left the industry.”
2000 Final Rule, 65 Fed. Reg. at 79,970. Thus, “[t]he medical
literature makes it clear that pneumoconiosis” — even in its
simple form — “may be latent and progressive.” Nat’l Mining
Ass’n, 292 F.3d at 863; accord RAG Am. Coal Co. v. OWCP, 576
F.3d 418, 426-27 (7th Cir. 2009) (rejecting suggestion that
simple pneumoconiosis can never be progressive or latent absent
further exposure to coal dust); Labelle Processing Co. v.
Swarrow, 72 F.3d 308, 315 (3d Cir. 1995) (same).
None of Eastern’s other contentions against application of
the fifteen-year presumption have merit. Although Eastern
contends that Toler’s second claim is “the same claim” as his
first claim “with a new label,” see Reply Br. of Pet’r 10, we
25
rejected that very proposition in Lisa Lee Mines. See 86 F.3d
at 1362 (“A new black lung claim is not barred . . . by an
earlier denial, because the claims are not the same.”). That
precept also suffices to address Eastern’s reliance on
principles of finality, to the extent those principles bear on
our interpretation of the statutory and regulatory provisions at
issue in this matter. Furthermore, Lisa Lee Mines forecloses
Eastern’s suggestion that Toler should be compelled to prove
that the etiology of his condition has changed by comparing the
evidence pertaining to Toler’s second claim with the evidence
underlying the denial of his first claim. See id. at 1361 (“The
final decision of the ALJ (or BRB or claims examiner) on the
spot is the best evidence of the truth at the time [of the first
claim].”); id. at 1363 (explaining that “plenary review of the
evidence behind the first claim” is impermissible); accord U.S.
Steel Mining Co. v. Dir., OWCP, 386 F.3d 977, 989 (11th Cir.
2004) (“[T]he ‘one element’ test does not compel a comparison of
the evidence associated with the second claim with the evidence
presented at the first claim; rather, it mandates a comparison
of the second claim’s evidence with the conclusions reached in
the prior claim.”).
Finally, Eastern’s suggestion that Toler failed to submit
new evidence — postdating the denial of his first claim — as
required by 20 C.F.R. § 725.309(c)(4) and our decision in
26
Williams, 453 F.3d at 617, is factually incorrect. Toler
introduced two positive readings of the July 2008 x-ray, results
of two spirometry and arterial blood gas tests, and a letter
from his treating physician. In addition, the complete
pulmonary examination conducted pursuant to 20 C.F.R.
§ 725.406(a) yielded another x-ray reading that was positive for
pneumoconiosis, spirometry and blood gas tests consistent with
total disability, and Dr. Burrell’s examination report, in which
he opined that Toler’s pulmonary disability was caused in part
by coal dust exposure. Despite Eastern’s intimations to the
contrary, that evidence is new. Although Eastern may not regard
that evidence as “reliable or probative,” see Reply Br. of Pet’r
9, weighing the evidence is for the ALJ, not the court of
appeals or appellate counsel. 7
In sum, Eastern has presented no good reason why the 2010
reenactment of the fifteen-year presumption required the
Secretary to revise his subsequent-claim rule or deviate from
his longstanding interpretation of that rule. The BRB and ALJ
7
At oral argument and in a post-argument Rule 28(j) letter,
Eastern heaved a Hail Mary pass, invoking the principle that
courts should construe statutes to avoid “serious
[constitutional] doubt[s]” when such a construction is “fairly
possible.” See Ashwander, 297 U.S. at 348 (Brandeis, J.,
concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
That contention also falls short, not least because Eastern has
raised no “serious” doubt about the constitutionality of any
particular statute or regulation.
27
“must apply the law in effect at the time of a decision,” see
Bailey, 721 F.3d at 795, which is exactly what they did here.
Accordingly, we reject Eastern’s contention that the ALJ
contravened either the Act or the applicable regulations by
applying the fifteen-year presumption to Toler’s second claim.
B.
Having rejected Eastern’s statutory argument, we turn to
its remaining constitutional contention: that utilization of
the fifteen-year presumption to decide Toler’s second claim
contravened constitutional principles of separation of powers.
Eastern contends that the ALJ exercised the Article III
“judicial Power” in contravention of the Supreme Court’s
decision in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211
(1995), by permitting Toler to “relitigat[e] a final judgment of
this Court” — namely, our 1998 denial of his petition for review
of the BRB’s decision affirming the ALJ’s denial of Toler’s
first claim. See Br. of Pet’r 10.
At issue in Plaut was a 1991 amendment to the Securities
and Exchange Act of 1934 (the “Exchange Act”) adopted in
response to the Court’s decision in Lampf, Pleva, Lipkind,
Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991). In Lampf,
the Court held that actions under § 10(b) of the Exchange Act
“must be commenced within one year after the discovery of the
facts constituting the violation and within three years after
28
such violation.” 501 U.S. at 364. The Lampf Court overruled
several courts of appeals that had applied state statutes of
limitations to § 10(b) actions. See Plaut, 514 U.S. at 216. In
Lampf’s wake, several actions pending in the lower courts were
dismissed because of Lampf’s holding. See Plaut, 514 U.S. at
214, 216. Six months after the Court decided Lampf, Congress
enacted a statute requiring the district courts to reinstate
certain § 10(b) actions dismissed based on Lampf and to treat
those actions as being timely filed. See Plaut, 514 U.S. at
214-15.
In Plaut, the Court held that the mandatory reinstatement
provision of the 1991 amendment contravened the doctrine of
separation of powers by requiring the federal courts to reopen
closed cases that were not pending on direct appeal. See 514
U.S. at 219, 225. The Court reasoned that the “judicial Power”
includes the power to render final judgments in cases, subject
to review only by superior courts, and that, by retroactively
requiring courts to reopen such judgments, Congress was
infringing on that authority. Id. at 218-19.
Simply put, Plaut presents no obstacle to the ALJ’s
consideration of Toler’s second claim under post-ACA legal
standards. The ALJ’s award of benefits on Toler’s second claim
did not “retroactively . . . reopen” anything, much less a final
judgment of an Article III court. As we explained in Lisa Lee
29
Mines, a subsequent claim based on new evidence is not the same
claim as the one previously denied. See 86 F.3d at 1362.
Indeed, pursuant to Lisa Lee Mines, the ALJ was required to, and
did, accept the correctness of the administrative denial of
Toler’s 1993 claim — and, by necessary extension, our 1998
denial of Toler’s petition for review. Moreover, as in Lisa Lee
Mines, Toler’s second claim required the ALJ to assess his
pulmonary impairment and its etiologies at the time that claim
was filed, an issue which neither was nor could have been
litigated in connection with Toler’s first claim.
Notably, Eastern has identified no authority extending
Plaut to these or similar circumstances. Indeed, in
Consolidation Coal Co. v. Maynes, 739 F.3d 323, 326, 328 (6th
Cir. 2014), the Sixth Circuit rejected a coal mine operator’s
contention that Plaut applied to bar a widow’s claim for
survivor’s benefits under § 1556(b) of the ACA, where a federal
court of appeals had previously affirmed the Secretary’s denial
of a prior claim for survivor’s benefits under pre-ACA law. 8
8
Section 1556(b) of the ACA restored to the Act a statutory
provision making the payment of benefits to “eligible survivors”
automatic upon the death of a coal miner “who was determined to
be eligible” for miner’s benefits “at the time of his or her
death.” See 30 U.S.C. § 932(l). Like the fifteen-year
presumption, the automatic survivor’s benefits provision had
been repealed by Congress in the 1981 amendments to the Act.
See Stacy, 671 F.3d at 381-82 (outlining history of automatic
survivor’s benefits provision).
30
Maynes is closer to Plaut than this proceeding is, as the widow
in Maynes was not required to show a change in any condition of
entitlement. See 20 C.F.R. § 725.309(c)(1) (providing that
survivor whose claim was denied under pre-ACA law but would be
granted under current law need not show change in condition of
entitlement). 9
In sum, we reject Eastern’s suggestion that the ALJ
exercised “the judicial Power” when he granted Toler’s second
claim. The ALJ in this matter simply considered Toler’s second
claim based on new evidence under the law in effect at the time
of the second claim. In doing so, the ALJ did not reopen
Toler’s first claim; he accepted that decision and “its
necessary factual predicate” as correct. See Lisa Lee Mines, 86
F.3d at 1362. And the ALJ certainly did not reopen our 1998
denial of Toler’s petition for review. 10
9 In its reply brief and at oral argument, Eastern
encouraged us to reject Maynes on the basis of a two-judge
concurrence in a default denial of rehearing en banc in Peabody
Coal Co. v. Director, OWCP, No. 12-4366 (6th Cir. Dec. 23,
2014). The operator in Peabody presented the same contention
the Maynes court rejected, and the Peabody panel relied on
Maynes to deny the petition for review. See 577 F. App’x 469,
470 (6th Cir. 2014), cert. denied, No. 14-1278, __ S. Ct. ___
(Oct. 5, 2015). We have reviewed the Peabody concurrence in the
denial of rehearing en banc and deem it unpersuasive.
10Although Eastern asserted at oral argument that its
constitutional argument relates to separation of powers, it
summarily suggested in its opening brief that, by allowing Toler
to use the fifteen-year presumption in conjunction with new
(Continued)
31
IV.
Pursuant to the foregoing, we deny Eastern’s petition for
review.
PETITION FOR REVIEW DENIED
evidence to establish a change in a condition of entitlement,
the Director denied Eastern due process. We are satisfied to
reject Eastern’s scantily developed due process contention. As
legislation “adjusting the burdens and benefits of economic
life,” § 1556(a) enjoys “a presumption of constitutionality, and
. . . the burden is on one complaining of a due process
violation to establish that the legislature has acted in an
arbitrary and irrational way.” See Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 15, 20 (1976) (rejecting coal company’s
due process challenge to fifteen-year presumption).
32