Robert Coal Co. v. OWCP ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0575n.06
Case No. 17-3947
FILED
Nov 16, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT COAL COMPANY and OLD )
REPUBLIC INSURANCE COMPANY, )
)
Petitioners, ) On Petition for Review of an
) Order of the Benefits Review
v. ) Board, United States Department
) of Labor
DIRECTOR, OFFICE OF WORKERS’ )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR and )
RICHARD CRUM, )
)
Respondents. )
____________________________________
BEFORE: GUY, WHITE, and STRANCH, Circuit Judges.
PER CURIAM. Richard Crum is a former coal miner who suffers from a respiratory
malady that completely disables him. He contends that he developed it from working in coal
mines. His former employer, Robert Coal Company (or, the Company), agrees that he has a totally
disabling lung condition—but it disagrees on the cause. The Company believes Crum’s
longstanding smoking habit caused his affliction. This case arose because Crum sought and
received benefits under a federal program for miners who develop black lung disease as a
consequence of their occupation. The Company challenged Crum’s benefits, but Crum prevailed
at the agency level. The Company appeals the final decision of the agency. For the reasons below,
we AFFIRM the Board’s decision.
Case No. 17-3947, Robert Coal Co. v. Dir., OWCP
I.
Congress passed the Black Lung Benefits Act (the Act) to provide benefits to coal miners
who, through their trade, become totally disabled due to pneumoconiosis—the technical term for
black lung disease. 30 U.S.C. § 901(a) (2012); Brandywine Explosives & Supply v. Dir., OWCP,
790 F.3d 657, 661 (6th Cir. 2015). The Act empowers the Secretary of Labor to issue regulations
to effectuate its provisions. 30 U.S.C. § 936(a). The regulations provide detailed requirements
that a miner must satisfy to be eligible for benefits. Under the regulations, a miner must prove
four things by a preponderance of the evidence: “(1) he has pneumoconiosis; (2) his
pneumoconiosis arose at least in part out of his coal mine employment; (3) he is totally disabled;
and (4) the total disability is due to pneumoconiosis[.]” Greene v. King James Coal Mining, Inc.,
575 F.3d 628, 634 (6th Cir. 2009) (citing 20 C.F.R. §§ 718.202–204 (2000) and Adams v. Dir.,
OWCP, 886 F.2d 818, 820 (6th Cir. 1989)).
Although the Act itself simply refers to “pneumoconiosis,” the regulations provide two
different definitions for the term: one “clinical,” the other “legal.” As we have explained:
“Clinical pneumoconiosis” refers to certain lung diseases that the medical
community recognizes to be caused by exposure to coal dust—in the words of the
applicable regulation, diseases “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.” 20 C.F.R. § 718.201(a)(1). “Legal pneumoconiosis” is a broader
and less definite term that refers to any chronic lung disease that was caused in this
instance by exposure to coal dust. 20 C.F.R. § 718.201(a)(2).
Cent. Ohio Coal Co. v. Dir., OWCP, 762 F.3d 483, 486 (6th Cir. 2014). As its name suggests,
“legal pneumoconiosis” is not a medical term, but a legal fiction “designed to facilitate the
remedial purposes of the Black Lung Benefits Act.” Sunny Ridge Mining Co. v. Keathley, 773 F.3d
734, 738 (6th Cir. 2014). A chronic lung disease constitutes legal pneumoconiosis only if it is
“significantly related to, or substantially aggravated by, dust exposure in coal mine employment.”
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20 C.F.R. § 718.201(b) (2018). A miner may receive benefits if he suffers from either clinical or
legal pneumoconiosis. Id. § 718.201(a).
II.
Around 1973, at about age 19, Crum became both a cigarette smoker and a coal miner. His
coal-mine employment was sporadic and he worked for various companies including Robert Coal.
All told, he spent 8.62 years working in coal mines, eventually putting in his last day in 1983. His
smoking habit lasted much longer. Although the evidence of Crum’s smoking history varies
widely, Crum seems to have smoked around half of a pack each day until the year 2000, at which
point he cut back a bit. Ultimately, the ALJ found that by 2015, Crum had accumulated “at least
10 pack-years1 of smoking and continue[d] to smoke several cigarettes per day.”
Crum filed for benefits in September 2010—27 years after his last stint in the mines. The
District Director issued a proposed decision and award of benefits to Crum, which led the
Company to request a hearing before an ALJ. The ALJ held a hearing in November 2014, and in
June 2015 he issued a decision granting Crum benefits. The Company appealed, but a panel of
the Benefits Review Board affirmed the ALJ’s decision the following May. When the Review
Board subsequently denied the Company’s motion for reconsideration on July 12, 2017, the
decision became final and the Company filed the instant appeal.
III.
We review the Benefits Review Board’s legal conclusions de novo and we must affirm its
decision “if the Board has not committed any legal error or exceeded its statutory scope of review
of the ALJ’s factual determinations[.]” Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 477–
78 (6th Cir. 2011) (quoting Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742 (6th Cir. 1997)). Our
1
One “pack-year” is equivalent to smoking one pack of cigarettes each day for one year. Thus, a person who smoked
half of a pack every day for four years would rack up two pack-years.
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review therefore focuses on “whether the ALJ—not the Board—had substantial evidence upon
which to base his . . . decision.” Id. (quoting Jonida Trucking, 124 F.3d at 742). Evidence is
substantial if “a reasonable mind might accept [it] as adequate to support a conclusion.” Big
Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1068–69 (6th Cir. 2013) (quoting Kolesar v.
Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir. 1985)).
IV.
Over the course of Crum’s pursuit of benefits, he routinely underwent three procedures
often used by doctors to diagnose respiratory problems: x-rays, pulmonary function tests (PFTs),
and arterial blood gas studies (ABGs). All three of the procedures are permissible forms of
objective medical evidence under the regulations, but they measure different things. See 20 C.F.R.
§ 718.202(a)(1), (4). X-rays are used to identify specific obstructions in the lungs, while PFTs and
ABGs measure lungs’ performance. The Merck Manual of Diagnosis and Therapy 521–25, 528,
532–33 (Mark H. Beers, M.D., et al. eds., 17th ed. 1999). Specifically, a PFT measures how well
a person can exhale—thereby revealing the severity of airway obstruction—while an ABG
measures how well gases are being exchanged between the lungs and blood. Id. at 522–23, 528.
PFTs and ABGs produce numeric values (e.g., an FEV1/FVC ratio of 55), and by comparing those
numbers to tables promulgated by the Department of Labor, one can determine whether a person
is “totally disabled.” 20 C.F.R. § 718.204(b)(2). When a PFT or ABG suggests a person is totally
disabled, the test is said to be “qualifying.” See Crockett Colleries, Inc. v. Barrett, 478 F.3d 350,
356–57 (6th Cir. 2007). In contrast, x-rays are pictorial and must therefore be interpreted by
experts, called “B-readers.” See 20 C.F.R. § 718.102(e). A B-reader can study an x-ray, determine
the types of obstructions and then, with varying confidence, conclude whether a person has clinical
pneumoconiosis. Id. § 718.102(e)(2)(iii).
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All told, Crum underwent five x-rays, four PFTs, and four ABGs. Every PFT Crum
underwent was qualifying, but only half of the ABGs were. Even so, all the doctors—and
consequently the ALJ—concluded that Crum’s respiratory condition is totally disabling and no
one disputes this on appeal. The x-ray results were also mixed. Every B-reader who looked at
Crum’s first three x-rays read them as negative for clinical pneumoconiosis. Dr. Alexander was
the first B-reader to read Crum’s final two x-rays (both taken in 2012) and he read them as positive
for clinical pneumoconiosis. But when another B-reader, Dr. Tarver, reviewed them, he read them
as negative for clinical pneumoconiosis.
Section 718.202 allows an ALJ to find the existence of pneumoconiosis by relying on x-
rays, biopsies or autopsies, a presumption, or a determination made by a physician. 20 C.F.R.
§ 718.202. The ALJ in this case relied on the fourth option: physicians’ reports. There are
requirements for these types of physicians’ findings. The physician must have reached the
determination by “exercising sound medical judgment,” and any finding of pneumoconiosis “must
be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary
function studies, physical performance tests, physical examination, and medical and work
histories. Such a finding must be supported by a reasoned medical opinion.” Id. § 718.202(a)(4).
The ALJ first considered whether Crum has clinical pneumoconiosis by reviewing the
reports of the five doctors who saw him. Dr. Ammisetty made no findings about clinical
pneumoconiosis so the ALJ gave little weight to his opinion on the issue. Drs. Gallai and Klayton
diagnosed Crum with clinical pneumoconiosis, but the ALJ pointed out that both of them simply
relied on positive x-ray readings made by others, so they were entitled to little weight. In contrast,
the other two doctors—Rosenberg and Jarboe—went beyond the x-rays in reaching their
conclusions that Crum does not have clinical pneumoconiosis. The ALJ therefore gave Dr.
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Rosenberg’s and Dr. Jarboe’s opinions full probative weight and found that Crum does not have
clinical pneumoconiosis. No one challenges this finding on appeal.
The ALJ next turned to legal pneumoconiosis. Here, he reached the opposite conclusion.
After reviewing all the doctors’ reports and depositions, the ALJ assigned full probative weight to
portions of the reports of Drs. Ammisetty, Gallai, and Klayton, while giving little weight to Dr.
Rosenberg’s and Dr. Jarboe’s opinions. Consequently, the ALJ found that Crum has legal
pneumoconiosis.
V.
The Company argues that the ALJ erred in finding Crum had legal pneumoconiosis because
the conclusions of Drs. Ammisetty, Klayton, and Gallai were not based on any scientifically
reliable methodology. According to the Company, none of the doctors’ opinions used objective
medical evidence to connect Crum’s coal exposure as a cause of his condition and are thus not
“competent evidence” under 20 C.F.R. § 718.203(c).
The Director2 does not precisely disagree. At the outset of her response brief, the Director
confined her argument to two legal issues: (1) whether an ALJ may credit doctors’ opinions when
they are unable to apportion causation between coal-mine work and smoking, and (2) whether an
ALJ may discredit doctors’ opinions because they are premised on beliefs contrary to the Act’s
preamble. Neither issue, however, addresses the initial question: whether there was any evidence
that coal-mine work in any way caused Crum’s condition to begin with. Even so, the Director
avers that while a medical opinion can be credited only if it is “reasoned and documented,” the
decision to credit a medical opinion that lacks an articulate rationale is a credibility matter left to
the ALJ’s discretion. In support of this proposition, the Director relies on two of our prior
2
Under the Act, the Director, Office of Workers’ Compensation Programs, is the Secretary of Labor’s designee in
reviews that come before a United States Court of Appeals. 20 C.F.R. § 802.410(b).
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decisions: Wolf Creek Collieries v. Director, OWCP, 298 F.3d 511 (6th Cir. 2002) and Peabody
Coal Co. v. Groves, 277 F.3d 829 (6th Cir. 2002). Some clarification of these and other precedents
is in order.
Thirty-five years ago, we vacated a judgment of the Benefits Review Board and remanded
the case to the Board for further proceedings after somewhat irregular agency proceedings. See
Dir., OWCP v. Rowe, 710 F.2d 251, 256 (6th Cir. 1983). The claimant miner was examined by
two doctors. Both diagnosed him with pneumoconiosis, but only one concluded that he was totally
disabled; the other doctor did not mention his level of disability one way or another. Id. at 253–
54. The ALJ found that the miner was totally disabled based solely on the doctor who did not
opine on the miner’s disability and failed to even mention the other doctor or his report. On appeal,
the Board recognized that the ALJ’s opinion was insufficient, but instead of remanding the case,
the Board affirmed the award of benefits because the unmentioned doctor’s report “was a
documented and reasoned medical opinion” in satisfaction of the relevant regulation. Id. at 254.
We vacated the Board’s judgment because “the proper course for the Board [was] to remand the
case to the ALJ[.]” Id. at 255. We explained that the “determination as to whether [the
unmentioned doctor’s] report was sufficiently documented and reasoned is essentially a credibility
matter. As such, it is for the factfinder to decide.” Id. We then went on:
[T]he mere fact that an opinion is asserted to be based upon medical studies cannot
by itself establish as a matter of law that it is documented and reasoned. Rather,
that determination requires the factfinder to examine the validity of the reasoning
of a medical opinion in light of the studies conducted and the objective indications
upon which the medical opinion or conclusion is based. Of course, the factfinder
should also consider any contrary test results or diagnosis in reaching a decision as
to whether a statutory presumption applies and ultimately whether the claimant is
totally disabled.
Id. at 255 (footnote omitted).
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The portion of our holding in Rowe about credibility determinations has been regularly
cited since then, whether directly or through a chain of reliant citations. See, e.g., Ogle, 737 F.3d
at 1073; Tenn. Consol. Coal Co. v. Crisp, 866 F.2d 179, 184–85 (6th Cir. 1989); Moseley v.
Peabody Coal Co., 769 F.2d 357, 360 (6th Cir. 1985). Both Wolf Creek Colleries and Groves
relied on the passage from Rowe. See Wolf Creek Colleries, 298 F.3d at 522; Groves, 277 F.3d at
836. We have applied the Rowe holding to differing facts and through varied phrasing. See, e.g.,
Advent Mining LLC v. Davis, 697 F. App’x 862, 865 (6th Cir. 2017); Williams v. Eastover Mining
Co., 335 F. App’x 577, 579–80 (6th Cir. 2009); Johnson Coal Co. v. Smith, 306 F. App’x 223, 224
(6th Cir. 2009); Cumberland River Coal Co. v. Caudill, 207 F. App’x 529, 532 (6th Cir. 2006).
As a result, the operation of the rule itself can be easily misconstrued. The Rowe holding therefore
bears clarifying.
Our review, first and foremost, is rooted in the laws that bind us—namely, the Act and its
attendant regulations. On the matter of evidence, the regulation is clear: if a determination of legal
pneumoconiosis is based on a physician’s finding, the physician’s finding “must be based on
objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function
studies, physical performance tests, physical examination, and medical and work histories” and it
“must be supported by a reasoned medical opinion.” 20 C.F.R. § 718.202(a)(4). On causation,
the standard is “competent evidence.” Id. § 718.203(c). Of course, sometimes two qualified
physicians will look at the same objective medical evidence and arrive at different conclusions. In
these cases, the ALJ will have to make credibility determinations and we defer to those
determinations on review. See Crisp, 866 F.2d at 184–85. But under the terms of § 718.202(a)(4),
for instance, an ALJ cannot base a finding of legal pneumoconiosis solely on a physician’s finding
that is not itself based on objective medical evidence and supported by a reasoned medical opinion.
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Accord Littlepage v. Dir., OWCP, 890 F.2d 416 (6th Cir. 1989) (Table) (“A physician’s opinion
must be documented and reasoned to constitute substantial evidence in support of a finding.”)
(citing Rowe, 710 F.2d at 255); Dir., OWCP v. Congleton, 743 F.2d 428, 430 (6th Cir. 1984)
(recognizing that the reviewing court need not defer to the ALJ’s determination when “the
evidence presented was simply too vague and conflicting to support the decision” as explained by
the ALJ). If an ALJ does so, his decision is not based on substantial evidence, contradicts the
requirements of the regulations, and warrants a remand, not deference.
This is fully consistent with Rowe and its progeny. The refrain of the cases has been that
the sufficiency of a physician’s documentation or reasoning is a credibility matter left to the ALJ.
This is a separate question from whether the physician began with the minimum raw materials
demanded by § 718.202(a)(4), § 718.203(c), or any other provision. An ALJ’s decision must be
supported by substantial evidence and the regulations define what is required. The regulations
cannot be bypassed simply because an ALJ credited a physician’s demonstrably unsupported
opinion. With this clarification in mind, we evaluate the ALJ’s findings and the doctors’ opinions
that undergird them.
Crum saw Dr. Ammisetty first. At the time of the examination, Crum had received one x-
ray, two ABGs, and one PFT. Dr. Ammisetty reviewed the results of the tests and personally
examined Crum. He diagnosed Crum with severe chronic obstructive pulmonary disease (COPD),
bronchial asthma, cor pulmonale, and legal pneumoconiosis. Ultimately, the ALJ found that the
COPD diagnosis was well-reasoned and documented, but the bronchial asthma and legal
pneumoconiosis diagnoses were not. The ALJ pointed out that Dr. Ammisetty’s formal diagnosis
of legal pneumoconiosis was apparently based on nothing more than Crum’s symptoms and thus
found it not well-reasoned. Similarly, the ALJ found that the bronchial asthma diagnosis was
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based only on Crum’s reported history and was therefore unreasoned and entitled to little weight.
The COPD diagnosis, however, was well-reasoned, according to the ALJ. He explained that Dr.
Ammisetty’s finding was based on “both objective medical evidence as well as [Crum’s] smoking
and coal dust history[.]” And because COPD can fall within the definition of legal
pneumoconiosis, the ALJ gave that portion of the report full probative weight.
Crum saw Dr. Gallai a little more than a year after the Ammisetty exam. In the interim,
Crum had received two more x-rays (both negative for clinical pneumoconiosis), another ABG
(non-qualifying), and another PFT (qualifying). On the day Dr. Gallai examined him, Crum also
underwent another ABG, PFT, and x-ray. Dr. Gallai diagnosed Crum with hypoxia, bronchitis,
and COPD. Hypoxia is not necessarily a chronic lung disease, so the ALJ found it inadequate to
constitute legal pneumoconiosis under § 718.201(a)(2). And the ALJ determined that the
bronchitis diagnosis was based only on Crum’s reported history and symptoms, so it did not pass
muster under § 718.202(a)(4). The ALJ found, however, that the COPD diagnosis was based on
Crum’s reported symptoms, work and smoking histories, an x-ray, an ABG, and a PFT.
Accordingly, the ALJ found this portion of the report well-reasoned and documented and gave it
full probative weight.
A month after the Gallai exam, Crum saw Dr. Klayton. He underwent three final tests that
day: an x-ray, an ABG, and a PFT. Dr. Klayton formally diagnosed Crum with legal
pneumoconiosis, but the constituent conditions of the diagnosis were COPD and hypoxemia.
Ultimately, the ALJ gave Dr. Klayton’s opinion full probative weight based on the COPD finding.
As the foregoing attests, there was substantial evidence to support a finding that Crum has
COPD. And there is no question that COPD can constitute legal pneumoconiosis. When coal-
mine employment contributed “at least in part” to a miner’s COPD, then the COPD is properly
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considered pneumoconiosis. See Arch on the Green, Inc. v. Groves, 761 F.3d 594, 597–98 (2014).
But the regulations require the factfinder to make this additional causal connection between coal
mining and the COPD, and that inquiry is governed by § 718.203.
The ALJ made such a finding, albeit in a roundabout fashion. After finding that Crum had
adequately proven that he suffers from legal pneumoconiosis under § 718.202(a)(4), the ALJ
declined to make an additional causation finding. He explained:
The Act and the regulations provide for a rebuttable presumption that
pneumoconiosis arose out of coal mine employment if a miner with
pneumoconiosis was employed in the mines for ten or more years. 30 U.S.C. §
921(c)(1); § 718.203(b). In Kiser v. L & J Equipment Co., 23 B.L.R. 1-246, 1-259
n. 18 (2006), the Board cited to Anderson v. Director, OWCP, 455 F.3d 1102 (10th
Cir. 2006) and Henley v. Cowan & Co., 21 B.L.R. 1-147, 1-151 (1999) and agreed
with the Director’s position that, if an ALJ finds the existence of legal
pneumoconiosis, then he or she need not separately determine the etiology of the
disease at § 718.203 because the findings at § 718.202(a)(4) will necessarily
subsume that inquiry. Therefore, because I have found that Claimant has
established legal pneumoconiosis, a separate finding, under § 718.203, is
unnecessary in this case.
We disagree with the ALJ: a causation finding under the strictures of § 718.203 is necessary
because § 718.202(a)(4) does not address causation, it simply defines the types of evidence
necessary to find the existence of pneumoconiosis.3 Nevertheless, the ALJ made causation
findings while discussing § 718.202(a)(4). We therefore analyze those findings to determine
whether they constitute “competent evidence” under § 718.203(c).
3
There is an admitted incongruity in the phrasing of the regulations. Section 718.201(a) limits pneumoconiosis to
diseases arising out of coal mine employment. So, in one reading of the text, if an ALJ finds the existence of
pneumoconiosis under § 718.202, she has de facto found that the condition arose from the miner’s coal-mine
employment, in satisfaction of § 718.203. Such a reading, however, would render § 718.203’s requirement that the
condition arise “at least in part” out of coal-mine employment mere surplusage and we have rejected it. See Arch on
the Green, Inc., 761 F.3d at 598. Nevertheless, this court has referred to the two causation standards interchangeably,
and we have held that a claimant can prove his COPD was “significantly related to, or [substantially] aggravated by,”
exposure to coal dust by showing that his disease was “caused [at least] in part” by coal-mine employment. Id. at
598–99.
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Dr. Ammisetty’s report. Dr. Ammisetty concluded that Crum’s pulmonary condition is
principally due to his smoking, but “coal dust exposure significantly exacerbated the symptoms.”
Yet there was nothing to support this conclusion. He was not a B-reader and conceded that the x-
ray “was negative for coal molecules,” but nevertheless speculated that aspects of the x-ray “could
be due to pneumoconiosis.” He noted that he partially based his diagnosis of legal pneumoconiosis
on the PFT results, but his discussion is devoted to linking the results with smoking, not coal dust.
And notably, he was under the impression that Crum had entirely ceased smoking ten years earlier,
when in fact he had not. His report does not, therefore, support a causation finding.
Dr. Klayton’s report. Although Dr. Klayton’s COPD diagnosis was well-documented, his
opinion on causation was considerably briefer. The etiology section read simply: “Coal dust
exposure and smoking. I cannot state the relative contributions of each, but smoking does not
cause the changes seen on chest x-ray.” Notably though, Dr. Klayton is not a B-reader and he
explained in his deposition that he did not “attempt to read” the x-ray, but simply looked at it to
“get a gestalt for what it looks like,” and then waited for the B-reader report. And the B-reader
report he did rely on was ultimately discredited by the ALJ. Moreover, Dr. Klayton based his
report on a work history of 10 years (which was too high) and a smoking history of 7.5 pack-years
(which was too low).
Some of this was cleared up during Dr. Klayton’s deposition. He was asked if his opinion
would change if the evidence was actually a negative x-ray, seven years of coal-dust exposure, and
10 pack-years of smoking. Dr. Klayton affirmed that his opinion would be the same because in
his medical opinion one can never exclude coal dust as a contributing factor when the patient
worked in a coal mine.
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Dr. Klayton’s opinion may be medically defensible, but it conflicts with the evidentiary
demands of the Act and regulations. Congress decided that, for the purpose of benefits, coal dust
is presumed to be a cause of a miner’s lung condition only if the miner was employed for ten years
or more. 30 U.S.C. § 921(c)(1); see also 20 C.F.R. § 718.203(b). If the miner worked for a shorter
period, “competent evidence” must establish a causal connection. 20 C.F.R. § 718.203(c). When
other factors like smoking are present, causal opinions based solely on a miner’s work history
cannot constitute competent evidence because they directly conflict with a policy determination
already made by Congress. Dr. Klayton’s report does not, therefore, support a causation finding.
Dr. Gallai’s report. The causation discussion in Dr. Gallai’s report was, like Dr. Klayton’s,
quite brief. It mostly discussed Crum’s reported—and ultimately inaccurate—smoking history.
Dr. Gallai explained that, “[f]ive years ago [Crum] could walk a mile, three years ago he could
walk a half a mile and currently he can just walk across the room.” Dr. Gallai thought that Crum
had essentially stopped smoking ten years earlier, so he surmised that this decline was most
consistent with coal-dust exposure. Crum, however, had not quit smoking. The ALJ reasoned that
this was of no moment because Dr. Gallai later “testified that his diagnosis of pneumoconiosis
would not change if [Crum] had continued to smoke actively.”
We agree with the ALJ. Dr. Gallai explained that an accurate smoking history would
change his opinion only “somewhat” and that while coal-dust exposure “may not have been the
majority” cause of Crum’s condition, he continued to believe that it substantially contributed to it.
Under the regulations, coal dust need not be the majority cause—just a contributing factor. See
Greene v. King James Coal Mining, Inc., 575 F.3d 628, 634 (6th Cir. 2009). For example, in a
case where a coal company was required to disprove causation, we held that the ALJ permissibly
relied on a medical opinion that stated “[t]here is no way . . . by which a distinction can be made
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between the identical forms of COPD caused by smoking and coal mine dust,” and so concluded
that “both smoking and mine dust are important contributing causes of [the claimant’s] chronic
lung disease.” Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1060 (6th Cir. 2013). Here,
when Dr. Gallai was asked whether 10 to 12 pack-years of smoking could cause PFT scores as low
as Crum’s, Dr. Gallai answered, “[i]n general, definitely not.” Dr. Gallai thus stood by his
conclusion even when given more accurate information and the ALJ found that, on balance, Dr.
Gallai’s report and subsequent explanation of it supported a causation finding. The finding is
based upon substantial evidence and therefore we do not disturb it.
In sum, the three doctors’ findings were enough to show that Crum suffers from an acute
lung condition (in satisfaction of § 718.202(a)(4)) and Dr. Gallai’s report and testimony were
enough to show that Crum’s coal-mine employment was a cause of that condition (in satisfaction
of § 718.203(c)). If there was no further evidence, our inquiry would end, and we would be
compelled to affirm. The Company, however, insists that other evidence discredited by the ALJ
compels another result.
The Company argues that the ALJ erred by using the preamble to the Act to “discredit
competent evidence” provided by Drs. Rosenberg and Jarboe. We have encountered this argument
before. In Central Ohio Coal Co. v. Director, OWCP, the same Dr. Rosenberg provided testimony
similar to the opinions he provided here. 762 F.3d at 491–92. There, as here, Dr. Rosenberg
concluded that the miners’ PFT results were consistent with smoking-induced COPD but
inconsistent with COPD caused by coal dust. We explained that “Dr. Rosenberg may be right as
a matter of scientific fact, but his analysis plainly contradicts the DOL’s position that COPD caused
by coal-dust exposure may be associated with decrements in the FEV1/FVC ratio.” Id. at 491. We
stated “unequivocally” that “the ALJ was entitled to discredit Dr. Rosenberg’s medical opinion
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because it was inconsistent with the DOL position set forth in the preamble[.]” Id. at 491–92. The
result is no different here. The ALJ did not err in discrediting Dr. Rosenberg’s opinion. Nor did
he err in discrediting Dr. Jarboe’s opinion, which similarly contradicted the DOL’s positions on
FEV values and latent onset of legal pneumoconiosis.
VI.
For the foregoing reasons, the decision of the Board is AFFIRMED.
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