West Virginia CWP Fund v. Page Bender, Jr. , 782 F.3d 129 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2034
WEST VIRGINIA CWP FUND, as insurer for Logan Coals, Inc.,
Petitioner,
v.
PAGE BENDER, 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.
(11-0683-BLA; 10-BLA-5257)
Argued: January 29, 2015 Decided: April 2, 2015
Before KEENAN, FLOYD, and HARRIS, Circuit Judges.
Petition for review denied by published opinion. Judge Keenan
wrote the opinion, in which Judge Floyd and Judge Harris joined.
ARGUED: William Steele Mattingly, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Petitioner. Sean Gregory
Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.;
Roger Daniel Forman, LAW OFFICE OF ROGER D. FORMAN, Buckeye,
West Virginia, for Respondents. ON BRIEF: M. Patricia Smith,
Solicitor of Labor, Rae Ellen James, Associate Solicitor, Maia
S. Fisher, Deputy 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, United States
Department of Labor.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the validity of an
administrative regulation and its evidentiary standard under
which coal mine operators may rebut a presumption of disability
that otherwise qualifies certain coal miners for benefits under
the Black Lung Benefits Act, 30 U.S.C. §§ 901 through 945.
Logan Coals, Inc. 1 (the operator) seeks review of a decision of
the Benefits Review Board affirming an administrative law
judge’s (ALJ) award of benefits to Page Bender, Jr. under the
Act. Because Bender had worked as an underground coal miner for
21 years and suffered from a totally disabling respiratory
condition, the ALJ applied to Bender’s claim a rebuttable
presumption of total disability due to pneumoconiosis, as
provided by 30 U.S.C. § 921(c)(4) and 20 C.F.R. § 718.305. 2
After considering the medical evidence, the ALJ concluded that
the operator had not rebutted the presumption of total
disability due to pneumoconiosis by “ruling out” any causal
1
The named petitioner in this appeal is the West Virginia
Coal Workers’ Pneumoconiosis Fund, insurer for Logan Coals, Inc.
2
As discussed further below, at the time the ALJ and the
Board rendered their decisions, the current version of Section
718.305 was not yet in effect. The parties agree that the
current version of the regulation applies to this case and is
substantively identical to the standard used by the ALJ. See 20
C.F.R. § 718.305(a) (explaining that the presumption applies to
“all claims filed after January 1, 2005, and pending on or after
March 23, 2010”).
2
relationship between Bender’s pneumoconiosis and his disability.
The ALJ therefore awarded black lung benefits to Bender, and the
Benefits Review Board affirmed the ALJ’s decision.
In its petition for review, the operator argues that the
ALJ erred in applying the “rule-out” rebuttal standard. We
disagree and hold that the Department of Labor acted within its
regulatory authority in requiring coal mine operators to show,
in the case of miners who meet the statutory criteria for the
presumption, that “no part of the miner’s respiratory or
pulmonary total disability was caused by pneumoconiosis.” 20
C.F.R. § 718.305(d). We also hold that the ALJ’s decision is
supported by substantial evidence. Accordingly, we affirm the
award of benefits and deny the operator’s petition for review.
I.
We begin by stating the statutory and regulatory framework,
including certain pertinent history. The Black Lung Benefits
Act (the Act), 30 U.S.C. §§ 901 through 945, was first enacted
in 1969. 3 See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,
683-84 (1991) (describing history of the Act). The Act is
intended “to provide benefits . . . to coal miners who are
totally disabled due to pneumoconiosis [(black lung disease)]
3
The Act was originally titled the Federal Coal Mine Health
and Safety Act of 1969, 91 Pub. L. No. 173, 83 Stat. 792.
3
and to the surviving dependents of miners whose death was due to
such disease.” 30 U.S.C. § 901(a).
In general, to establish an entitlement to black lung
benefits, a miner must show: “(1) that he has pneumoconiosis, in
either its ‘clinical’ or ‘legal’ form; (2) that the
pneumoconiosis arose out of coal mine employment; (3) that he is
totally disabled by a pulmonary or respiratory impairment; and
(4) that his pneumoconiosis is a substantially contributing
cause of his total disability.” Mingo Logan Coal Co. v. Owens,
724 F.3d 550, 555 (4th Cir. 2013) (citing 20 C.F.R.
§§ 725.202(d)(2), 718.204(c)(1)). Pneumoconiosis is a
“substantially contributing cause” of a miner’s disability if
the pneumoconiosis (1) “[h]as a material adverse effect on the
miner’s respiratory or pulmonary condition” or (2) “[m]aterially
worsens a totally disabling respiratory or pulmonary impairment
which is caused by a disease or exposure unrelated to coal mine
employment.” 20 C.F.R. § 718.204(c)(1).
In 1972, Congress added to the Act a rebuttable presumption
of total disability due to pneumoconiosis (the presumption).
See Black Lung Benefits Act of 1972, 92 Pub. L. No. 303, 86
Stat. 150, 154; 30 U.S.C. § 921(c)(4) (2012). 4 The presumption
4
When referencing prior versions of the Act and certain
regulations, our citations refer to the date of the latest
(Continued)
4
is applicable to a miner’s claim if he worked for at least 15
years in underground coal mines, if a chest x-ray does not show
the presence of complicated pneumoconiosis, 5 and “if other
evidence demonstrates the existence of a totally disabling
respiratory or pulmonary impairment.” § 921(c)(4). Section
921(c)(4) also specifies the manner in which the Secretary of
Labor 6 (the Secretary) can rebut the presumption:
publication of the United States Code or Code of Federal
Regulations in which the relevant language appeared.
5
A miner suffering from complicated pneumoconiosis is
entitled to an irrebuttable presumption that he is totally
disabled due to pneumoconiosis. 30 U.S.C. § 921(c)(3).
6
At the time the presumption first was added to the
statute, the reference in Section 921(c)(4) to the “Secretary”
likely referred to the Secretary of Health, Education, and
Welfare, who was responsible for claims filed until June 30,
1973. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8, 35
(1976).
Such claims filed on or before June 30, 1973 were processed
by the Social Security Administration, and successful claims
were paid by the federal government. Mullins Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 484 U.S. 135, 138-39 (1987).
Claims filed on or after July 1, 1973 “are paid by private
employers or by a fund to which the employers contribute, and
they are administered by the Director of the Office of Workers’
Compensation Programs pursuant to regulations promulgated by the
Secretary of Labor.” Id. at 139.
Since January 31, 2003, the Department of Labor has been
responsible for administering the entirety of the black lung
benefits program. See Black Lung Consolidation of
Administrative Responsibility Act, 107 Pub. L. No. 275, 116
Stat. 1925 (2002). The current version of the Act specifies
that the term “Secretary” in the Act refers to the Secretary of
Labor. 30 U.S.C. § 902(c). Today, the federal government
through the Black Lung Disability Trust Fund pays black lung
(Continued)
5
The Secretary may rebut such presumption 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.
Four years after the presumption was added to the statute,
the Supreme Court decided Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1, 35-37 (1976), holding that the rebuttal provision in
Section 921(c)(4) applied by its plain terms only to the
Secretary, not to coal mine operators opposing a miner’s claim
for benefits. Later, in 1980, the Department of Labor
promulgated a regulation implementing the statutory presumption
and clarifying the rebuttal standard for both the Secretary and
the coal mine operators (the original regulation). See
Standards for Determining Coal Miners’ Total Disability or Death
Due To Pneumoconiosis, 45 Fed. Reg. 13,678, 13,692 (Feb. 29,
1980); 20 C.F.R. § 718.305 (2012). The original regulation set
forth the rebuttal standard as follows:
Where the cause of death or total disability did not
arise in whole or in part out of dust exposure in the
miner’s coal mine employment or the evidence
establishes that the miner does not or did not have
pneumoconiosis, the presumption will be considered
rebutted. However, in no case shall the presumption
be considered rebutted on the basis of evidence
demonstrating the existence of a totally disabling
benefits to miners when, among other reasons, “there is no
operator who is liable for the payment of such benefits.” 26
U.S.C. § 9501(d)(1)(B).
6
obstructive respiratory or pulmonary disease of
unknown origin.
§ 718.305(d) (2012) (emphasis added).
In 1981, however, Congress entirely eliminated the
statutory presumption from Section 921(c)(4) for claims filed on
or after January 1, 1982. See Black Lung Benefits Revenue Act
of 1981, 97 Pub. L. No. 119, 95 Stat. 1635. The original
regulation was amended in 1983 to reflect this statutory change,
but remained in effect as originally written for claims filed
before January 1, 1982. 7
The presumption was restored to the statute in March 2010,
as part of the Patient Protection and Affordable Care Act. See
Patient Protection and Affordable Care Act, 111 Pub. L. No. 148,
124 Stat. 119, § 1556 (2010). In reenacting this provision,
Congress used language identical to that employed in the
original statute. See 30 U.S.C. § 921(c)(4) (2012). This
revived statutory presumption remains in effect at the time of
this appeal.
In 2013, the Department of Labor promulgated a revised
regulation (the revised regulation, or the regulation), which is
7
Standards for Determining Coal Miner’s Total Disability or
Death Due to Pneumoconiosis; Claims for Benefits Under Part C of
Title IV of the Federal Mine Safety and Health Act, as Amended,
48 Fed. Reg. 24,272, 24,289 (May 31, 1983); see 20 C.F.R.
§ 718.305(e) (2013). The original regulation otherwise remained
unchanged until 2013.
7
at issue in this case. The revised regulation states the
following evidentiary standard that is required to rebut the
presumption:
In a claim filed by a miner, the party opposing
entitlement may rebut the presumption by--
(i) Establishing both that the miner does not, or
did not, have:
(A) Legal pneumoconiosis . . . ; and
(B) Clinical pneumoconiosis . . . , arising
out of coal mine employment . . . ; or
(ii) Establishing that no part of the miner’s
respiratory or pulmonary total disability was
caused by pneumoconiosis . . . .
20 C.F.R. § 718.305(d)(1) (2014) (emphasis added). Although the
language of the revised regulation differs in some respects from
the original regulation, both versions require that any party,
including a coal mine operator, who seeks to rebut the
presumption by disproving disability causation, “rule out” any
connection between a miner’s pneumoconiosis and his disability.
The validity of this “rule-out standard” as applied to coal mine
operators is the primary issue presented in this appeal.
II.
Bender, who was 60 years old at the time of the ALJ’s
decision, was employed in an underground coal mine for 21 years
and ended his work in the mines around 1995. Bender also smoked
8
between one and one half and two packs of cigarettes daily for
over 40 years, and continues to smoke three or four cigarettes
per day. Bender is in poor overall health, and was diagnosed
with lung cancer in 2007. As a result of his lung cancer,
Bender has undergone radiation and chemotherapy treatments, as
well as the removal of a portion of his lung. He also suffers
from diabetes, has undergone several bypass surgeries, and
receives oxygen at night and after physical exertion.
Bender filed a claim for black lung benefits in 2009. 8
After a hearing conducted in August 2010, the ALJ applied the
presumption to Bender’s claim in light of Bender’s 21-year
history of underground coal mine employment and the consensus of
all the medical experts that Bender suffers from a totally
disabling respiratory condition. Under the presumption, the
burden therefore shifted to the operator to disprove Bender’s
entitlement to benefits.
At the time of the ALJ’s decision, the Department of Labor
had not yet promulgated the revised regulation imposing the
current version of the rule-out standard for rebuttal of the
presumption. However, the ALJ applied an analogous rule-out
standard that this Court had used in the context of a previous
8
Bender had filed an earlier claim for benefits in 2003,
which was denied due to his failure to prove that he suffered
from a disability.
9
“interim” presumption, which required the operator to “rule out
any causal relationship between the miner’s disability and his
coal mine employment by a preponderance of the evidence” in
order to rebut the presumption. See Stiltner v. Island Creek
Coal Co., 86 F.3d 337, 339 (4th Cir. 1996); see also infra at
26-27 (discussing the interim presumption).
At the hearing before the ALJ in 2010, the operator offered
the expert opinions of three physicians to rebut the presumption
of Bender’s total disability due to pneumoconiosis. All three
agreed that Bender suffers from simple clinical pneumoconiosis.
The operator thus sought to rebut the presumption by
demonstrating that Bender’s respiratory disability was not
caused by his pneumoconiosis.
The first of the operator’s experts, Dr. Peter Tuteur,
chronicled Bender’s extensive medical history, including a
“multiplicity of cigarette smoke induced health problems.” Dr.
Tuteur opined that Bender’s lung cancer and other medical
conditions, including emphysema and chronic obstructive
pulmonary disease, were not “in any way related to, aggravated
by, or caused by the inhalation of coal mine dust or the
development of coal workers’ pneumoconiosis.” Dr. Tuteur
explained that he would have expected to find “decreased lung
expansion” and “inspiratory crackling sounds” if Bender’s
pneumoconiosis had been advanced enough to “produce
10
abnormalities on physical examination,” but that these
anticipated symptoms were not present. Dr. Tuteur therefore
concluded that Bender’s pneumoconiosis was “present but [had] no
clinical effect.”
Dr. Tuteur also stated that Bender’s disability was “not
caused in whole or in part by coal workers’ pneumoconiosis or
any other chronic lung disease arising out of coal mine
employment,” but instead resulted from Bender’s history of
smoking, lung cancer, and cancer treatments. In applying the
rule-out standard, the ALJ accorded Dr. Tuteur’s opinion little
weight because Dr. Tuteur failed to “explain how he can
determine that none of [Bender’s] impairment is due to coal dust
exposure.”
The operator’s second medical expert, Dr. George Zaldivar,
similarly testified that “all” of Bender’s impairment was
attributable to Bender’s lung surgery, cancer treatments, and
cigarette use. Dr. Zaldivar based his opinion in part on an
examination conducted seven years earlier by another doctor. At
that earlier time, Bender already had stopped working in the
mines and was exhibiting early signs of simple pneumoconiosis,
but had no pulmonary abnormalities. Because Bender had not
worked in a coal mine since that earlier examination, Dr.
Zaldivar attributed Bender’s respiratory deterioration to
smoking and lung cancer. Dr. Zaldivar concluded that “zero
11
percent” of Bender’s respiratory abnormalities were caused by
his coal mine employment. As with Dr. Tuteur, the ALJ accorded
little weight to Dr. Zaldivar’s analysis, because Dr. Zaldivar
did not “adequately explain why the worsened results could not
also be due to coal workers’ pneumoconiosis, which is a
progressive disease.”
And, finally, the operator offered the report of Dr. P.
Raphael Caffrey, who reviewed some surgical pathology slides
that included tissue taken from Bender’s lung in 2008. Dr.
Caffrey noted that lesions caused by pneumoconiosis occupied
less than five percent of Bender’s observed lung tissue. Dr.
Caffrey therefore concluded that Bender’s respiratory disability
was caused by the removal of lung tissue in treatment of his
cancer, not by pneumoconiosis.
Bender presented expert medical evidence from Dr. Donald
Rasmussen, who directly contradicted Dr. Caffrey’s opinion that
the presence of pneumoconiosis was too minimal to cause Bender’s
impairment. Dr. Rasmussen explained that “[a] finding of
limited pneumoconiosis certainly does not exclude Mr. Bender’s
coal mine dust exposure as a contributing cause of his disabling
lung disease. There is no basis for a conclusion that the
extent of pneumoconiosis is related to pulmonary function
impairment induced by coal mine dust exposure.” Dr. Rasmussen
further opined that although multiple factors could have
12
contributed to Bender’s respiratory impairment, including lung
surgery, cancer treatments, and smoking, Bender’s exposure to
coal dust was a “material contributor.”
In considering this conflicting evidence, the ALJ credited
Dr. Rasmussen’s disability causation opinion over Dr. Caffrey’s.
In particular, the ALJ cited Dr. Rasmussen’s explanation that a
finding of limited pneumoconiosis did not exclude coal dust
exposure as a cause of Bender’s disabling respiratory
impairment. The ALJ awarded black lung benefits to Bender,
based on the ALJ’s conclusion that the operator had failed to
rebut the presumption by showing that Bender’s pneumoconiosis
did not in any way contribute to his disability. The Benefits
Review Board affirmed the ALJ’s decision, and this petition for
review followed.
III.
A.
We first address the operator’s legal challenge to the
“rule-out” rebuttal standard. As previously discussed, Section
921(c)(4) sets forth a rebuttable presumption of total
disability due to pneumoconiosis, as well as a rebuttal standard
applicable to the Secretary:
[I]f 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
13
disabling respiratory or pulmonary
impairment, then there shall be a rebuttable
presumption that such miner is totally
disabled due to pneumoconiosis. . . . The
Secretary may rebut such presumption 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.
The revised regulation implementing the statutory presumption,
which is at issue in this case, states that “the party opposing
entitlement,” which would include coal mine operators, may rebut
the presumption by
(i) Establishing both that the miner does not, or
did not, have:
(A) Legal pneumoconiosis . . . ; and
(B) Clinical pneumoconiosis . . . , arising
out of coal mine employment . . . ; or
(ii) Establishing that no part of the miner’s
respiratory or pulmonary total disability was
caused by pneumoconiosis . . . .
20 C.F.R. § 718.305(d)(1). 9
In evaluating a regulation promulgated by an executive
agency, we apply the principles of deference articulated in
Chevron v. Natural Resources Defense Council, 467 U.S. 837
9
“Clinical pneumoconiosis” is “a particular set of diseases
recognized by the medical community,” whereas “legal
pneumoconiosis” is “a broader category that includes any chronic
lung disease arising out of coal mine employment.” Collins v.
Pond Creek Mining Co., 751 F.3d 180, 182 (4th Cir. 2014); see
also 30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).
14
(1984). We first examine “whether Congress has directly spoken
to the precise question at issue.” Elm Grove Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 480 F.3d 278, 292 (4th Cir.
2007) (quoting Chevron, 467 U.S. at 842). “If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at 842-43.
However, “if the statute is silent or ambiguous with respect to
the specific issue,” we continue to the second step of the
Chevron analysis, and determine “whether the agency’s answer is
based on a permissible construction of the statute,” according
the agency considerable deference. Id. at 843 (citation
omitted).
i.
The operator argues that our analysis is resolved under the
first step of Chevron. Relying on the Supreme Court’s decision
in Usery, which addressed the plain meaning of Section
921(c)(4), the operator contends that the rebuttal standard in
the statute is unambiguous and applies only to the Secretary.
In light of this plain statutory language, the operator asserts
that the statute does not allow for the same standard to be
applied also to operators by way of an agency regulation. Thus,
the operator argues that this aspect of the agency’s regulation
should be afforded no deference, and that a lesser rebuttal
15
standard should be applicable to operators. In the operator’s
view, the proper rebuttal standard for operators would be one
that would allow the operator to rebut the statutory presumption
by showing that the claimant’s pneumoconiosis is not a
“substantially contributing cause” of his total disability. We
disagree with the operator’s arguments, because we do not think
that the holding in Usery is as broad as the operator maintains.
In applying the first step of the Chevron analysis, we
employ “the traditional tools of statutory construction to
ascertain congressional intent.” Chamber of Commerce of the
U.S. v. NLRB, 721 F.3d 152, 160 (4th Cir. 2013) (quoting
Chevron, 467 U.S. at 842 n.9) (internal quotation marks
omitted). We begin by considering the language of Section
921(c)(4) to determine whether the statute is silent or
ambiguous regarding the manner in which operators can rebut the
presumption. See Chamber of Commerce, 721 F.3d at 160.
We conclude that Section 921(c)(4) is silent regarding the
standard that an operator must meet to rebut the presumption.
The statutory presumption of total disability due to
pneumoconiosis applies both to the Secretary and to operators.
However, in addressing the method for rebutting this
presumption, the statute refers only to the Secretary. Although
operators necessarily must meet some unarticulated standard to
rebut the presumption, the statute specifies none. Thus,
16
because the statute does not speak to the standard operators
must meet to rebut the presumption, Congress has left a “gap”
for the agency to fill by using its delegated regulatory
authority.
This conclusion is not affected by the Supreme Court’s
decision in Usery, in which the Court evaluated the language of
the original statutory presumption before it was removed from
the statute and later was revived by the Patient Protection and
Affordable Care Act. In Usery, as noted above, the Court held
that it was “clear as a matter of statutory construction that
the . . . limitation on rebuttal evidence is inapplicable to
operators.” 428 U.S. at 35.
As we have explained, however, because Section 921(c)(4)
does not address the standard for rebuttal by operators, that
standard may be set by regulation. The Court in Usery did not
address any regulation implementing the statute and, crucially,
the Court did not consider the evidentiary standard under which
parties other than the Secretary could rebut the statutory
presumption. Instead, the Court merely was required to address
the question whether the statutory rebuttal standard applied
equally to operators, when the plain language of that portion of
the statute referred only to the Secretary. See id. at 37. In
its analysis, moreover, the Court expressly left open the
17
possibility that the Secretary could promulgate regulations
under the statute. 10 Id. at 37 n.40.
We also observe that the premise of the operator’s
argument, namely, that the rule-out standard is the substantive
equivalent of the statutory rebuttal standard at issue in Usery,
is mistaken. The rebuttal provision in the statute does not
address the evidentiary standard required to show that a miner’s
impairment did not “arise out of, or in connection with,
employment in a coal mine.” § 921(c)(4). The statute merely
identifies the elements of a claim that can be rebutted. In
contrast, the rule-out standard prescribes the evidentiary
standard that a party must satisfy to rebut the presumption.
This distinction explains the Court’s analytical focus in
Usery. At the time Usery was decided, coal miners could be
compensated under the Act only if their disability was caused by
what became known as “clinical pneumoconiosis,” which is “a
particular set of diseases recognized by the medical community.”
10
The Court observed that the Secretary of Health,
Education, and Welfare had promulgated regulations imposing on
both operators and the Secretary a rebuttal standard similar to
that set forth in the statute. See Usery, 428 U.S. at 37
(citing 20 C.F.R. §§ 410.414, 410.454 (1975)). The operators in
Usery did not challenge these regulations and, accordingly, the
Court declined to address them. Id. We note that the
regulations in place at the time of Usery mirrored the rebuttal
language in Section 921(c)(4), and did not articulate a rule-out
standard for rebuttal. See 20 C.F.R. §§ 410.414, 410.454
(1975).
18
Collins v. Pine Creek Mining Co., 751 F.3d 180, 182 (4th Cir.
2014) (defining clinical pneumoconiosis); Andersen v. Dir.,
Office of Workers’ Comp. Programs, 455 F.3d 1102, 1105-06 (10th
Cir. 2006) (explaining the original definition of
“pneumoconiosis” under the Act). Therefore, in Usery, the
operators argued that the rebuttal provision in Section
921(c)(4) was unconstitutional because it permitted a miner who
qualified for the statutory presumption, but whose disability
was not caused by a compensable disease under the Act, to
receive an award of benefits. See Usery, 428 U.S. at 34-35.
The Supreme Court avoided the operators’ constitutional
challenge to Section 921(c)(4) by holding that only the
Secretary was bound by the statutory rebuttal limitations. Id.
at 35. Operators thus were permitted to rebut the statutory
presumption by showing that a miner was disabled by a disease
related to coal dust exposure that was not pneumoconiosis. Id.
Following the decision in Usery, Congress amended the Act
in 1978 to define compensable pneumoconiosis to include what is
now known as “legal pneumoconiosis,” as well as clinical
pneumoconiosis. 11 Black Lung Benefits Reform Act of 1977, 95
11
The operator maintains that the 1978 amendments to the
Act “merely codified the existing standard of practice,” under
which miners already could receive benefits for disabling legal
pneumoconiosis at the time of Usery. Even if this assertion is
accurate, however, the Supreme Court in Usery nevertheless
(Continued)
19
Pub. L. No. 239, 92 Stat. 95; see 30 U.S.C. § 902(b) (2012).
Thereafter, the agency promulgated regulations further defining
legal pneumoconiosis as “any chronic lung disease or impairment
and its sequelae arising out of coal mine employment,” including
“any chronic restrictive or obstructive pulmonary disease
arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2)
(2014). Under this new regime, the concerns animating the
Court’s decision in Usery, namely, concerns about Section
921(c)(4) preventing an operator from rebutting the presumption
by showing that a miner was not disabled due to clinical
pneumoconiosis but due to another respiratory disease caused by
his coal mine employment, are no longer present, because all
totally disabling diseases caused by coal dust exposure now are
compensable under the Act. Accordingly, the Court in Usery did
not consider whether the rule-out standard, as opposed to a more
lenient rebuttal standard, would be a permissible evidentiary
standard for rebuttal under the Act.
We therefore conclude that Usery did not answer either the
question whether Congress left a gap in Section 921(c)(4) that
the agency was permitted to fill by regulation, or the question
focused on the operators’ argument that the rebuttal limitations
in Section 921(c)(4) improperly allowed an award of benefits
even if a miner’s disability was caused by a non-compensable
disease. Usery, 428 U.S. at 34-35.
20
whether application of the rule-out standard to coal mine
operators in a regulation would be a reasonable exercise of
agency authority in filling such a gap in the statute. 12 Thus,
given the different issue before the Court in Usery, the Court’s
holding does not affect our analysis under the first step of the
Chevron standard.
ii.
Having identified the gap in Section 921(c)(4) that the
agency was permitted to fill by regulation, we proceed to the
second step of the Chevron analysis, under which we ask whether
the agency’s regulation “is a reasonable choice within [the] gap
left open by Congress.” Chevron, 467 U.S. at 866. We defer to
an agency if its “choice represents a reasonable accommodation
of conflicting policies that were committed to the agency’s care
by the statute.” Id. at 845 (citation omitted). We will not
disturb the agency’s choice “unless it appears from the statute
or its legislative history that the accommodation is not one
that Congress would have sanctioned.” Id.
12
This Court recently was presented with the question
whether the rebuttal standard in Section 921(c)(4) applies to
operators, after the presumption was revived by the Patient
Protection and Affordable Care Act. See Mingo Logan Coal Co.,
724 F.3d 550. Although the majority opinion did not address the
question, our colleague Judge Niemeyer considered the language
of the statutory presumption, but did not consider the language
of any regulation, in a concurring opinion, concluding that,
under Usery, the rebuttal standard in the statute does not bind
operators. Id. at 560-61 (Niemeyer, J., concurring).
21
Additionally, to uphold application of the regulation under
Chevron, we are not required to conclude that the agency’s
construction was the only one that the agency permissibly could
have adopted under the statute, or was the construction a court
would have placed on the statute if presented with the question
in the first instance. Id. at 843 n.11. Instead, we evaluate
only whether the regulation is a reasonable exercise of agency
authority. Id. at 844.
In making this determination, we first observe that the
rule-out standard was made a part of the Act’s regulatory scheme
in 1980, in the original version of 20 C.F.R. § 718.305. See
Standards for Determining Coal Miners’ Total Disability or Death
Due To Pneumoconiosis, 45 Fed. Reg. 13,678, 13,692 (Feb. 29,
1980); 20 C.F.R. § 718.305 (2012) (“Where the cause of death or
total disability did not arise in whole or in part out of dust
exposure . . . the presumption will be considered rebutted.”)
(emphasis added). Although Congress necessarily was aware of
this regulation when reenacting the statutory presumption in
2010, Congress did not insert a different rebuttal standard for
coal mine operators into the statute, or otherwise amend the
statutory language to signal its disagreement with the agency’s
earlier construction of the statute. We therefore may assume,
in the absence of a contrary showing, that Congress intended to
retain the agency’s interpretation of the prior version of the
22
statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978)
(“Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”).
The rule-out standard unquestionably advances Congress’
purpose in enacting the statutory presumption. Congress
instituted the statutory presumption to make it easier for those
miners most likely to be disabled due to coal dust exposure to
obtain benefits, in response to the high rate of claim denials
that miners experienced without the statutory presumption. See
Pauley, 501 U.S. at 685-86 (discussing the original statutory
presumption as passed in 1972); Regulations Implementing the
Byrd Amendments to the Black Lung Benefits Act: Determining Coal
Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg.
59,102, 59,106-07 (2013) (“Congress adopted the presumption to
relax the often insurmountable burden of proving eligibility
these miners faced.”) (citation, internal quotation marks, and
alteration omitted). The strict nature of the regulatory rule-
out standard furthers this goal by placing a significant burden
on operators seeking to rebut the statutory presumption. 13
13
The operator also contends that the rule-out standard
violates the principle articulated in Director, Office of
Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267
(1994), which held that under the Administrative Procedure Act,
the proponent of a rule or order must meet his burden by a
(Continued)
23
We further observe that, in practice, operators will be
required to satisfy the rule-out standard only in a clearly
defined class of black lung claims. The rule-out standard
applies only when (1) a miner has worked for 15 years or more in
an underground coal mine, (2) he suffers from a totally
disabling respiratory or pulmonary impairment, and (3) the
operator cannot satisfy the first method of rebuttal under
Section 718.305(d), namely, disproving the presence of
pneumoconiosis. This class of cases is indisputably serious and
encompasses claimants whose disabilities likely are attributable
at least in part to pneumoconiosis.
And, critically, the intent of Congress in enacting the
presumption would be thwarted if the operator’s proposed
“alternative” rebuttal standard were applied. As noted above,
in place of the rule-out standard, the operator asserts that it
should be allowed to rebut the statutory presumption by showing
preponderance of the evidence. Id. at 277-78. However, “the
preponderance standard goes to how convincing the evidence in
favor of a fact must be . . . before that fact may be found, but
does not determine what facts must be proven as a substantive
part of a claim or defense.” Metro. Stevedore Co. v. Rambo, 521
U.S. 121, 139 n.9 (1997). Here, the rule-out standard
articulates “only what facts must be established to rebut the
presumption,” and is therefore consistent with Collieries.
Regulations Implementing the Byrd Amendments to the Black Lung
Benefits Act: Determining Coal Miners’ and Survivors’
Entitlement to Benefits, 78 Fed. Reg. 59,102, 59,107 (Sept. 25,
2013).
24
that the claimant’s pneumoconiosis is not a “substantially
contributing cause” of his total disability.
This “alternative” rebuttal standard, however, effectively
would nullify the statutory presumption for coal miners such as
Bender whom Congress intended to assist. Instead of shifting
the burden of proof to the operator to rule out pneumoconiosis
as a cause of the miner’s disability, the operator’s proposed
rebuttal standard would track, in the negative, the evidentiary
burden placed on a miner who has not qualified for the statutory
presumption, namely, to show that pneumoconiosis is a
“substantially contributing cause” of his total disability. See
20 C.F.R. § 718.204(c)(1); Mingo Logan Coal Co., 724 F.3d at
555. Thus, to counter an operator’s evidence that
pneumoconiosis was not “a substantially contributing cause” of
the miner’s disability, a miner entitled to the statutory
presumption nevertheless would be placed back at “square one,”
forced to prove the “substantial” impact of pneumoconiosis on
his disability, which is the very situation that Congress
intended to eliminate in enacting the presumption. See Pauley,
501 U.S. at 685-86.
Next, we observe that one of our sister circuits recently
considered the present issue whether the regulatory rule-out
standard lawfully applies to coal mine operators, and reached
the same conclusion that we do. See Big Branch Res., Inc. v.
25
Ogle, 737 F.3d 1063 (6th Cir. 2013). In its decision, the Sixth
Circuit rejected the operator’s argument under Usery and
affirmed application of the regulatory rule-out standard to coal
mine operators. Id. at 1069-71. The court explained that to
rebut the statutory presumption of disability, an employer must
show under the rule-out standard that “the [miner’s] coal mine
employment played no part in causing the [miner’s] total
disability. . . .” Id. at 1071 (emphasis in original).
Our analysis of an earlier regulation in Bethlehem Mines
Corp. v. Massey, 736 F.2d 120 (4th Cir. 1984), further
reinforces our conclusion that the present regulation is a
reasonable exercise of agency authority. We reviewed in Massey
an interim regulation, which established a rebuttable
presumption of total disability due to pneumoconiosis when a
miner had worked for at least 10 years in coal mine employment
and suffered from a chronic respiratory or pulmonary disease.
See id.; see also Stiltner, 86 F.3d at 339 (describing the
interim presumption); Mullins Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 484 U.S. 135, 138-39 (1987) (explaining
the applicability of interim versus permanent regulations to
certain types of claims). The presumption at issue in Massey
could be rebutted under the agency regulation by showing that
the miner’s disability did not “arise in whole or in part out of
26
coal mine employment.” Massey, 736 F.2d at 123 (quoting 20
C.F.R. § 727.203(b)(3)) (emphasis in original).
Similar to the operator’s position here, the coal mine
operator in Massey argued that it should have been allowed to
rebut the interim presumption of disability under Section
727.203(b)(3) by showing that “the claimant’s pneumoconiosis is
but one of several factors contributing to his total
disability.” Id. at 122-23. Rejecting this argument, we
explained in Massey that the rule-out standard reasonably
reflected the reality that the convergence of many medical and
environmental factors often will cause a miner’s disability.
See id. at 124. We observed that the rule-out standard was
consistent with the “letter and spirit” of the Act, by
eliminating the burden of proving causation for miners who
likely suffer from disabling pneumoconiosis. Id. Thus, we
affirmed the rule-out standard in the interim regulation,
concluding that the standard was “within [the Secretary’s]
rulemaking authority and served the broad remedial purposes of
the statute.” Id.
As reflected by our decision in Massey, deference to the
agency’s interpretation is particularly appropriate here because
Congress, through the Act, has “produced a complex and highly
technical regulatory program” in which “[t]he identification and
classification of medical eligibility criteria necessarily
27
require significant expertise and entail the exercise of
judgment grounded in policy concerns” entrusted to the agency.
Pauley, 501 U.S. at 697. Thus, in the absence of explicit
direction from Congress, the procedures under which a claimant
may establish entitlement to benefits are a quintessential
policy judgment best left to the agency. See id. at 696 (“When
Congress, through . . . the introduction of an interpretive gap
in the statutory structure, has delegated policy-making
authority to an administrative agency, the extent of judicial
review of the agency’s policy determinations is limited.”).
Although the rule-out standard undeniably places a
substantial burden on coal mine operators, we cannot say that
the agency acted unreasonably in issuing the regulation
containing the present rule-out standard. 14 Accordingly, we hold
14
The operator also argues that it lacked notice of the
rule-out standard during the administrative proceedings in this
case and, therefore, that its due process rights will be
violated if we affirm the rule-out standard without permitting
the operator to present new rebuttal evidence. The operator,
however, agrees that we should address in this appeal the
validity of the rule-out standard established in Section
718.305(d).
We conclude that the operator’s argument that it lacked
notice of the rule-out standard is without merit. The original
version of Section 718.305(d), which the agency promulgated in
1980, similarly required operators to rule out disability
causation in order to rebut the statutory presumption in Section
921(c)(4). The original regulation, applicable to claims filed
through 1981, remained intact until the 2013 amendments at issue
in this case.
(Continued)
28
that the rule-out standard set forth in Section 718.305(d) is a
reasonable exercise of the agency’s authority under Chevron, and
lawfully applies to coal mine operators as well as to the
Secretary. Therefore, as specifically provided in the
regulation, any “party opposing entitlement” to black lung
benefits, including coal mine operators, may rebut the statutory
presumption of disability under subsection (d)(1)(ii) of the
regulation only by proving that “no part of the miner’s
respiratory or pulmonary total disability was caused by
pneumoconiosis.” 20 C.F.R. § 718.305(d).
B.
The operator argues, nevertheless, that the ALJ’s decision
awarding benefits is not supported by substantial evidence,
because the ALJ improperly declined to credit the operator’s
medical experts. The operator contends that, by explaining that
Bender’s disability was caused by his history of smoking, lung
surgery, lung cancer, and cancer treatments, the operator’s
medical experts ruled out pneumoconiosis as a cause of Bender’s
We also observe that we applied the rule-out standard to
operators in a case under the original statutory presumption.
See Rose v. Clinchfield Coal Co., 614 F.2d 936, 939 (4th Cir.
1980). As discussed above, we similarly have applied the rule-
out standard over the years to cases involving the interim
presumption. See Stiltner, 86 F.3d at 339; Massey, 736 F.2d at
123. For these reasons, we reject the operator’s due process
argument.
29
disability. Because the ALJ applied the rule-out standard in
his analysis of the evidence from the operator’s experts, we
first explain the type of proof that the rule-out standard
requires from a party opposing a miner’s claim. We later will
address the ALJ’s evaluation of the medical evidence.
i.
To rebut the presumption of disability due to
pneumoconiosis, an operator must establish that “no part of the
miner’s respiratory or pulmonary total disability was caused by
pneumoconiosis.” 20 C.F.R. § 718.305(d). Therefore, the rule-
out standard is not satisfied by showing that pneumoconiosis was
one of several causes of a miner’s disability, or that
pneumoconiosis was a minor or even an incidental cause of the
miner’s respiratory or pulmonary impairment. See Carozza v.
U.S. Steel Corp., 727 F.2d 74, 78 (3d Cir. 1984) (comparing the
interim presumption to Section 921(c)(4), and explaining that
“Congress did not intend to exclude benefits for total
disability resulting from multiple causes, one of which is
pneumoconiosis”); Massey, 736 F.2d at 123 (“Pneumoconiosis . . .
must be a causative factor in the miner’s total disability, but
it need not be the exclusive causative factor rendering the
claimant totally disabled . . . .”).
Instead, an operator opposing an award of black lung
benefits affirmatively must establish that the miner’s
30
disability is attributable exclusively to a cause or causes
other than pneumoconiosis. See Massey, 736 F.2d at 123-24 (to
rebut the interim presumption, an operator must “rule out the
causal relationship between the miner’s total disability and his
coal mine employment”). Thus, to make the required showing when
a miner has qualified for the statutory presumption, a medical
expert testifying in opposition to an award of benefits must
consider pneumoconiosis together with all other possible causes,
and adequately explain why pneumoconiosis was not at least a
partial cause of the miner’s respiratory or pulmonary
disability.
ii.
In reviewing a decision of the Benefits Review Board, we
evaluate “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.”
Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs,
678 F.3d 305, 310 (4th Cir. 2012) (citation, internal quotation
marks, and alteration omitted). We defer to the ALJ’s
determination regarding the proper weight to be accorded
competing medical evidence, and we “must be careful not to
substitute our judgment for that of the ALJ.” Id.
In the present case, both Drs. Tuteur and Zaldivar opined
that Bender’s disability was caused by his history of smoking
31
and cancer treatments. The ALJ discredited these disability
causation opinions because the doctors did not adequately
explain, as required under the rule-out standard, why Bender’s
disability was not also partially attributable to
pneumoconiosis. The ALJ additionally found that, by emphasizing
Bender’s deteriorating condition after leaving the coal mines,
Dr. Zaldivar did not rule out pneumoconiosis as a cause of
Bender’s disability given the progressive nature of the disease.
It was within the ALJ’s prerogative as fact-finder to weigh
the credibility of the experts and to determine the
persuasiveness of their testimony. See Island Creek Coal Co. v.
Compton, 211 F.3d 203, 211 (4th Cir. 2000). “[A]s trier of
fact, the ALJ is not bound to accept the opinion or theory of
any medical expert,” but instead “must evaluate the evidence,
weigh it, and draw his own conclusions.” Underwood v. Elkay
Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997). Here, the ALJ
appropriately found that by identifying causes other than
pneumoconiosis, Drs. Tuteur and Zaldivar failed to establish
that pneumoconiosis played “no part” in causing Bender’s
disability. And, although Dr. Tuteur identified reasons for
concluding that Bender’s pneumoconiosis had no clinical effect,
the ALJ was not required to find Dr. Tuteur’s explanation
persuasive. The ALJ also reasonably determined that Dr.
Zaldivar’s causation opinion was inadequately supported.
32
With respect to Dr. Caffrey’s opinion that Bender’s
pneumoconiosis was insufficiently severe to be disabling, the
ALJ credited the contrary opinion of Bender’s medical expert,
Dr. Rasmussen, who explained that the extent of pneumoconiosis
as reflected on an x-ray has no bearing on whether the disease
was a cause of a miner’s disability. It is the prerogative of
the ALJ, rather than of a reviewing court, to resolve such a
battle of the experts. Westmoreland Coal Co. v. Cochran, 718
F.3d 319, 324 (4th Cir. 2013). Therefore, we will not disrupt
the ALJ’s decision to credit the opinion of one expert over
another.
For these reasons, we conclude that the ALJ acted within
his fact-finding role in weighing the credibility and the
persuasiveness of the medical expert opinions. Accordingly, in
view of our deferential standard of review and the high burden
imposed by the rule-out standard, we hold that the ALJ’s factual
determinations are supported by substantial evidence.
IV.
For these reasons, the operator’s petition for review is
denied.
PETITION FOR REVIEW DENIED
33