Westmoreland Coal Company, Incorporated v. DOWCP ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1879
WESTMORELAND COAL COMPANY, INCORPORATED,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; JAMES E. SIZEMORE,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(11-0544-BLA)
Submitted: August 20, 2013 Decided: September 6, 2013
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Paul E. Frampton, BOWLES RICE LLP, Charleston, West Virginia,
for Petitioner. Joseph E. Wolfe, Ryan C. Gilligan, WOLFE,
WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondent James E. Sizemore.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Westmoreland Coal Company (“Employer”) petitions for
review of the Benefits Review Board’s (“Board”) decision and
order affirming the administrative law judge’s (“ALJ”) award of
benefits to former employee James E. Sizemore under the Black
Lung Benefits Act (“Act”), 30 U.S.C.A. §§ 901-945 (West 2007 &
Supp. 2013). We deny the petition for review.
Employer does not dispute the ALJ’s finding that
Sizemore was entitled to the rebuttable fifteen-year presumption
that he is totally disabled due to pneumoconiosis, which was
resurrected by the Patient Protection and Affordable Care Act
(PPACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010). *
An employer “may rebut such presumption only by establishing
that (A) [the] miner does 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.” 30
*
Section 1556 of the PPACA, 124 Stat. at 260, amends the
Act by restoring the “fifteen-year presumption” contained in
Section 411(c)(4) of the Act, 30 U.S.C.A. § 921(c)(4). The
presumption provides that if a miner has been employed in an
underground coal mine for fifteen years or more, and if other
evidence demonstrates that he has “a totally disabling
respiratory or pulmonary impairment,” he is entitled to a
rebuttable presumption that he is totally disabled due to
pneumoconiosis. 30 U.S.C.A. § 921(c)(4). The renewed fifteen-
year presumption applies to claims filed under parts B and C of
the Act after January 1, 2005, that are pending after the
effective date of the PPACA, March 23, 2010. 124 Stat. at 260,
§ 1556(c).
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U.S.C.A. § 921(c)(4); see 20 C.F.R. § 718.305(a) (2013);
Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479-80 (6th
Cir. 2011).
Employer contends that the ALJ erred in his decision
to discredit its expert physicians’ opinions, which were offered
to rebut the fifteen-year presumption afforded to Sizemore. We
review the BRB’s and the ALJ’s legal conclusions de novo and
“independent[ly] review . . . the record to determine whether
the ALJ’s findings of fact were supported by substantial
evidence.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 207-
08 (4th Cir. 2000) (internal quotation marks omitted). Subject
to the substantial evidence requirement, this Court defers to
the ALJ’s credibility determinations and “evaluation of the
proper weight to accord conflicting medical opinions.” Harman
Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d
305, 310 (4th Cir. 2012) (internal quotation marks omitted).
The ALJ is not bound to accept any medical expert opinion but
“must evaluate the evidence, weigh it, and draw his own
conclusions,” giving consideration to “the qualifications of the
experts, the opinions’ reasoning, their reliance on objectively
determinable symptoms and established science, their detail of
analysis, and their freedom from irrelevant distractions and
prejudices.” Underwood v. Elkay Mining, Inc., 105 F.3d 946,
949, 951 (4th Cir. 1997), superseded on other grounds as stated
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in Elm Grove Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 480 F.3d 278, 287 (4th Cir. 2007).
It is the ALJ’s responsibility to make credibility
determinations. Harman Mining, 678 F.3d at 310. In this case,
the ALJ discredited Employers’ physicians on the issue of
whether Sizemore suffered from legal pneumoconiosis because
their explanations for discounting his lengthy history in the
coal mines as a cause of his emphysema were insufficient in
light of the science underlying the preamble to the regulations
implementing the Act. We have, in two recent cases, held that
an ALJ is permitted to rely on this preamble to assess
physicians’ credibility. Westmoreland Coal Co. v. Cochran, 718
F.3d 319, 323-34 (4th Cir. 2013); Harman Mining, 678 F.3d at
314-15. Thus, we conclude that the ALJ did not err in
consulting the preamble to discredit Employer’s experts on the
issue of legal pneumoconiosis. We also conclude that the ALJ
did not transform the rebuttable presumption into an
irrebuttable presumption by his reliance on the preamble.
Moreover, because the ALJ did not find Employer’s
physicians credible on the issue of legal pneumoconiosis, he
could not credit their opinions on the causation of total
disability absent “specific and persuasive reasons for
concluding that the doctor[s’] judgment on the question of
disability causation does not rest upon [their] disagreement
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with the ALJ’s finding . . . .” Toler v. E. Assoc. Coal Co., 43
F.3d 109, 116 (4th Cir. 1995). Thus, we conclude that the ALJ
did not err in finding that Employer failed to rebut the
fifteen-year presumption afforded to Sizemore. See 30 U.S.C.A.
§ 921(c)(4); 20 C.F.R. § 718.305(a).
Accordingly, we deny Employer’s petition for review.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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