Westmoreland Coal Company v. Herskel Stallard , 876 F.3d 663 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1460
WESTMORELAND COAL COMPANY,
Petitioner,
v.
HERSKEL D. STALLARD; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board. (15-0156 BLA)
Argued: September 12, 2017 Decided: November 29, 2017
Before KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.
Petition denied by published opinion. Judge Wynn wrote the opinion, in which Judges
Keenan and Gibney joined.
ARGUED: Fazal Afaque Shere, BOWLES RICE LLP, Charleston, West Virginia, for
Petitioner. Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondents. ON BRIEF: Paul E. Frampton, BOWLES RICE LLP,
Charleston, West Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor, Maia S.
Fisher, Acting Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
Rebecca J. Fiebig, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent Director, Office of Workers’ Compensation
Programs.
2
WYNN, Circuit Judge:
Petitioner Westmoreland Coal Company challenges a final decision and order by
the U.S. Department of Labor Benefits Review Board (the “Board”) granting federal
disability benefits to Respondent Herskel Stallard, a retired coal miner, under the Black
Lung Benefits Act (the “Black Lung Act”), 30 U.S.C. § 901 et seq. The Board affirmed a
decision by the Administrative Law Judge (“ALJ”) concluding that Stallard timely
brought his claim and that Westmoreland failed to rebut the statutory presumption that
Stallard was entitled to benefits. Because substantial evidence supports the award of
benefits and the award accords with applicable law, we deny Westmoreland’s petition for
review.
I.
A.
Herskel Stallard worked as a coal miner throughout much of his adult life. In
total, Stallard’s career included more than thirty years of mining employment either
underground or in conditions that were substantially similar to underground mines.
Throughout much of this time, Stallard also smoked cigarettes. In particular, he testified
that on workdays he smoked “one cigarette, maybe two”—and as much as half a pack per
day otherwise—for thirty-nine years before quitting in 1993. J.A. 450.
Near the end of Stallard’s career, several physicians advised him not to return to
work due to breathing difficulties. In particular, around 1990 Dr. Charles P. Maine told
Stallard that he had black lung disease that was “not real severe” but would continue
3
progressing the longer he worked in the mines. Id. at 447. Several years later, in March
1993, Stallard experienced carbon monoxide poisoning while working in a Westmoreland
machine shop. Upon seeking treatment for the poisoning, two other physicians—Drs.
Estocino and Dorman—each advised him not to return to work due to breathing
difficulties. Dr. Estocino determined that the carbon monoxide poisoning would
dissipate, but nonetheless advised Stallard to stop working in the mines to prevent further
damage to his lungs. Dr. Dorman told Stallard that he was “permanently disabled” as a
result of his impaired respiratory function. Id. at 448. Soon thereafter, on Dr. Dorman’s
advice, Stallard retired from the coal industry.
Nearly twenty years later, on March 22, 2011, Stallard filed a claim for Black
Lung Act benefits. In connection with this claim, three physicians examined Stallard—
Drs. Ronald Jay Klayton, James Gallai, and David M. Rosenberg. A fourth doctor, Dr.
George L. Zaldivar, provided a medical opinion without conducting his own examination.
Drs. Klayton and Gallai diagnosed Stallard with black lung disease. 1 Although Dr. Gallai
opined that exposure to coal dust caused Stallard’s condition, Dr. Klayton said that he
could not “quantitate the relative contributions” of Stallard’s exposure to coal dust and
cigarette smoke in reaching his diagnosis. Id. at 223.
1
Strictly speaking, Dr. Klayton diagnosed Stallard with “clinical” black lung
disease, whereas Dr. Gallai found no basis for such a diagnosis and instead diagnosed
Stallard with “legal” black lung disease. The distinction between these respective
diagnoses is briefly discussed below, but is largely inconsequential to the present petition
for review.
4
By contrast, Drs. Rosenberg and Zaldivar diagnosed Stallard not with black lung
disease, but instead with severe chronic obstructive pulmonary disease (“COPD”). Based
on his review of Stallard’s treatment history, as well as his suspicion that Stallard
concealed the true extent of his smoking habit, Dr. Rosenberg concluded that cigarette
smoke was the “sole culprit” responsible for Stallard’s breathing difficulties. Id. at 406.
Similarly, Dr. Zaldivar testified that Stallard did not have black lung disease, attributing
his severe lung impairment to a lifetime of asthma and smoking.
B.
On July 10, 2014, the ALJ presiding over Stallard’s claim conducted a hearing to
consider the medical and other evidence regarding Stallard’s eligibility for Black Lung
Act benefits. In addition to Stallard’s live testimony at the hearing, the ALJ considered
various exhibits, including transcripts of the depositions of Drs. Rosenberg and Zaldivar.
Roughly six months later, the ALJ issued a decision and order granting Stallard
Black Lung Act benefits. The ALJ first found Stallard’s claim timely filed. 30 U.S.C.
§ 932(f); see also 20 C.F.R. § 725.308(a). Next, in light of Stallard’s long career in the
mining industry, the ALJ applied a statutory presumption that Stallard’s work in the
mines caused or substantially contributed to any disabling lung disease he experienced.
30 U.S.C. § 921(c)(4); see also 20 C.F.R. § 718.305(b). The ALJ then concluded that:
(1) the medical evidence demonstrated that Stallard suffered from a disabling lung
disease; and (2) Westmoreland failed to rebut the statutory presumption that Stallard’s
disease was caused by exposure to coal dust. Accordingly, the ALJ determined that
5
Stallard was entitled to benefits under the Black Lung Act and found Westmoreland
liable for those benefits as of March 1, 2011.
The Board affirmed the ALJ’s decision on February 24, 2016. As to timeliness,
the Board upheld the ALJ’s finding that the medical advice Stallard received in the early
1990s did not put him on notice that he was totally disabled due to black lung disease.
Likewise, the Board agreed that substantial evidence supported the ALJ’s conclusion that
the opinions of Drs. Rosenberg and Zaldivar were insufficient to rebut the presumption
that Stallard’s chronic lung disease was caused by his long-term exposure to coal dust.
Westmoreland timely petitioned this Court for review.
II.
The Black Lung Act provides disability benefits to former coal miners suffering
from black lung disease (known medically as “pneumoconiosis”). 30 U.S.C. § 901(a).
To be eligible for such benefits, miners must demonstrate that: (1) they have black lung
disease; (2) the disease arose out of coal mine employment; (3) they are totally disabled;
and (4) their black lung disease contributes to that total disability. 20 C.F.R.
§ 725.202(d).
Under applicable Department of Labor (“Labor Department”) regulations, black
lung disease 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.
§ 718.201(a). The disease manifests in two forms: (1) “clinical” black lung disease,
which includes a number of specific diagnoses associated with the accumulation of
6
particulate matter in the lungs; and (2) “legal” black lung disease, which is defined as
“any chronic lung disease or impairment and its sequelae arising out of coal mine
employment.” Id. § 718.201(a)(1)–(2).
As revised in 2000, the Labor Department regulations are preceded by an
extensive Preamble that “sets forth the medical and scientific premises relied on by the
Department in coming to [its medical] conclusions in [crafting] its regulations.” Harman
Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 314 (4th Cir.
2012). The product of notice-and-comment rulemaking, this Court must accord these
conclusions substantial deference. E. Associated Coal Corp. v. Dir., Office of Workers’
Comp. Programs, 805 F.3d 502, 512 (4th Cir. 2015). Accordingly, we repeatedly have
held that ALJs may look to the Preamble in weighing medical opinions addressing the
cause of a claimant’s disabling lung disease. See, e.g., Harman Mining Co., 678 F.3d at
314–16; Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 323 (4th Cir. 2013).
Once the Board makes a merits determination, the Black Lung Act allows for only
“limited” judicial review to determine “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.” Hobet Mining, LLC v. Epling, 783 F.3d 498, 504
(4th Cir. 2015) (alteration in original) (quoting Harman Mining Co., 678 F.3d at 310).
Accordingly, we review the ALJ’s factual findings for “substantial evidence”—i.e., “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion[,]” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938)—and the
Board’s legal conclusions de novo, Harman Mining Co., 678 F.3d at 310. To this end,
7
“we must be careful not to substitute our judgment for that of the ALJ,” and thus “defer
to the ALJ’s evaluation of the proper weight to accord conflicting medical opinions.”
Harman Mining Co., 678 F.3d at 310 (quoting Stiltner v. Island Creek Coal Co., 86 F.3d
337, 342 (4th Cir. 1996)).
III.
In the instant petition, Westmoreland lodges four separate objections to the
Board’s determination that Stallard is entitled to Black Lung Act benefits. As a threshold
matter, the company contends that Stallard’s Black Lung Act application, which he filed
nearly two decades after retiring from the coal industry due to breathing difficulties, is
untimely under the statute’s three-year limitations period. Next, assuming Stallard’s
claim was timely filed, the company argues that the ALJ improperly ignored evidence
regarding the extent of Stallard’s smoking history prior to his retirement. Along similar
lines, Westmoreland contends that the ALJ erroneously discounted the opinion of one of
its medical experts who claimed that a particular measure of Stallard’s lung function
demonstrated that his disability was caused by his smoking. And, finally, the company
argues that the ALJ misapplied the so-called “rule out” standard in determining that
Stallard’s exposure to coal dust—and not his smoking—caused his disabling lung
disease.
We address each contention in turn.
8
A.
Westmoreland first argues the ALJ erred in concluding that Stallard timely filed
his 2011 claim for benefits, i.e., within three years of becoming aware of his permanent
disability due to black lung disease. According to Westmoreland, the ALJ used an
incorrect standard to determine whether Stallard was informed of his disability in
sufficient detail so as to trigger the statute of limitations, and thus incorrectly weighed the
evidence regarding timeliness. We disagree.
Miners seeking benefits under the Black Lung Act must file a claim “within three
years after . . . a medical determination of total disability due to pneumoconiosis.” 30
U.S.C. § 932(f). Labor Department regulations provide that the three-year filing window
begins to run when a qualifying medical determination “has been communicated to the
miner or a person responsible for the care of the miner.” 20 C.F.R. § 725.308(a). The
regulations further establish a “rebuttable presumption that every claim for benefits is
timely filed.” Id. § 725.308(c). If a respondent overcomes this presumption, however,
the three-year limitations period is “mandatory and may not be waived or tolled except
upon a showing of extraordinary circumstances.” Id.
In the present case, Westmoreland first contends that the ALJ applied a different
standard—one that requires a claimant to “be told that his breathing impairment and
resulting disability was due solely to pneumoconiosis.” Pet’r’s Br. 10 (emphasis added).
However, Westmoreland fails to specify any language in the ALJ’s analysis that
articulates or applies such a standard. To the contrary, the ALJ’s decision tracks the
9
language of the relevant statutory and regulatory provisions, nowhere suggesting a
heightened standard. Accordingly, we reject this argument.
This therefore leaves as the sole remaining question whether substantial evidence
supports the ALJ’s timeliness determination. On this front, Westmoreland argues that the
opinions of the three physicians who treated Stallard in the early 1990s, when taken
together, put him on notice that he was totally disabled due to black lung disease.
However, the ALJ appropriately found otherwise. No one doctor communicated to
Stallard a diagnosis of both total disability and black lung disease. Instead, around 1990
Dr. Maine told Stallard that he had not-yet-serious black lung disease that would continue
to progress. Only later, as part of Stallard’s 1993 treatment for carbon monoxide
poisoning, did Dr. Estocino advise Stallard to stop working in the mines to prevent
further damage to his lungs and Dr. Dorman tell Stallard that he was permanently
disabled as a result of his impaired respiratory function. Notably absent from the 1993
doctors’ diagnoses is any mention of black lung disease, and therefore any explicit
medical determination of total disability due to pneumoconiosis.
Furthermore, even if Stallard had considered the doctors’ disparate diagnoses in
concert, he reasonably could have concluded that his black lung disease was not totally
disabling during the relevant time period. As noted, Dr. Maine was the only one who
diagnosed Stallard with black lung disease. However, according to Stallard, in rendering
this diagnosis Dr. Maine explicitly indicated that the disease was not, at that time, severe
and would continue to progress the more he worked in the mines. That Dr. Maine left
open the possibility of Stallard returning to work suggests that he did not view Stallard as
10
totally disabled. And although Dr. Dorman subsequently told Stallard he was
permanently disabled as a result of impaired respiratory function, Dr. Dorman did not
identify any underlying cause. Even Dr. Estocino’s diagnosis—rendered around the
same time—merely “advised” Stallard to stop working in the mines to prevent further
damage to his lungs. Given the imprecise nature of these medical opinions, substantial
evidence supports the ALJ’s conclusion that Stallard was never legally notified that he
was totally disabled due to black lung disease. See Tenn. Consol. Coal Co. v. Kirk, 264
F.3d 602, 607 (6th Cir. 2001) (upholding ALJ’s determination that claim was timely filed
in part because “[a]lthough [one doctor] did diagnose [the claimant] with the initial stages
of pneumoconiosis, he did not label him as ‘totally disabled’ on that basis or any other”),
superseded by regulation on other grounds as stated in Cumberland River Coal Co. v.
Banks, 690 F.3d 477 (6th Cir. 2012).
B.
Westmoreland next argues that the ALJ relied on an inaccurate smoking history in
weighing the evidence. In particular, Westmoreland contends the ALJ’s calculation of
Stallard’s smoking history at two to four pack-years 2 failed to account for contrary
evidence and, regardless, is not supported by substantial evidence. We again disagree.
2
A “pack-year” is calculated by multiplying the number of packs of cigarettes
smoked per day by the total number of years an individual smoked. There are twenty
cigarettes in a pack. So, a person who smoked fifteen cigarettes (3/4 pack) per day for
forty years would have a thirty pack-year smoking history. By comparison, a person who
smoked one cigarette (1/20 pack) per day over same period would have a two pack-year
smoking history.
11
As an initial matter, the ALJ’s decision addressed the relevant evidence
concerning Stallard’s smoking history, including Westmoreland’s “conten[tion] that
[Stallard’s account of his] smoking history is inaccurate or has changed over time.” J.A.
528 n.7. Ultimately, the ALJ credited Stallard’s testimony that he “only smok[ed] 1 to 2
cigarettes per day,” in part because Westmoreland elsewhere agreed that Stallard’s
“memory was excellent.” Id. nn.7–8.
The crux of Westmoreland’s remaining argument, then, is that the competing
evidence of a higher smoking history undermines Stallard’s credited testimony such that
substantial evidence does not support the ALJ’s two-to-four pack-year calculation. In
this regard, Westmoreland notes that Stallard apparently offered varying descriptions of
his smoking habits at other points in connection with his claim for benefits. For example,
in June 2011, Dr. Klayton reported that Stallard smoked half a pack of cigarettes per day
between 1973 and 1993, resulting in a ten pack-year smoking history. Likewise, Dr.
Gallai reported a six pack-year history in his evaluation of Stallard in March 2012, and,
in December 2013, a medical report prepared by Dr. Rosenberg mirrors the ten pack-year
estimate upon which Dr. Klayton relied. Finally, some medical records reflecting
Stallard’s post-retirement treatment for other health problems indicate an even greater
smoking history, charting as high as forty pack-years.
Unsurprisingly, Westmoreland focuses on the higher estimates catalogued above;
however, the totality of evidence on this front is largely inconsistent. And in finding a
two-to-four pack-year history, the ALJ expressly considered Westmoreland’s arguments
and instead chose to credit Stallard’s testimony. Such a determination is within the
12
ALJ’s prerogative as fact-finder to weigh the credibility of witnesses and determine the
persuasiveness of their testimony. W. Va. CWP Fund v. Bender, 782 F.3d 129, 144 (4th
Cir. 2015); see Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (“In reviewing for
substantial evidence, we do not . . . reweigh conflicting evidence [or] make credibility
determinations . . . .”).
Furthermore, the ALJ’s determination is bolstered both by several doctors’ more
modest pack-year estimates and other medical statements indicating a minimal smoking
history, such as that Stallard “did smoke in the past, but intermittently, not heavily . . . .”
J.A. 60; see also Harman Mining Co., 678 F.3d at 311 n.2 (4th Cir. 2012) (disregarding
conflicting evidence indicating claimant smoked between one-quarter pack per day and
two packs per day beginning as early as 1968 and as late as 1980).
In sum, although the ALJ here chose to accept the lower end of a relatively wide
range of evidence, we have stressed that we “must be careful not to substitute our
judgment for that of the ALJ.” Harman Mining Co., 678 F.3d at 310. Under this
standard, and given the array of evidence presented, substantial evidence supports the
ALJ’s calculation of Stallard’s smoking history.
C.
Building on its claim that the ALJ underestimated Stallard’s smoking history,
Westmoreland next argues that the ALJ erred in discounting Dr. Rosenberg’s reliance on
a particular measure of lung function to support his conclusion that Stallard’s disability
resulted from smoking and not coal dust exposure. However, under similar
circumstances both the Sixth Circuit and unpublished opinions from this Court have
13
rejected this argument. We agree with those decisions, and therefore conclude that the
ALJ properly discounted Dr. Rosenberg’s opinion.
At the heart of this issue is a measure of lung function referred to as the
FEV1/FVC ratio. Among four pulmonary function tests identified in the Labor
Department’s Black Lung Act regulations as probative of a miner’s total disability, this
measurement compares the amount of air that a patient can forcibly exhale in the first
second of exhalation with the total amount of air the patient can exhale in a single breath.
See 20 C.F.R. § 718.204(b)(2)(i)(C). Under the regulations, a ratio of 55% or less is
indicative of total disability due to black lung disease. Id.
Westmoreland does not dispute that a reduced FEV1/FVC ratio suggests that a
patient suffers from lung impairment generally. According to the company, however, the
ALJ improperly discounted Dr. Rosenberg’s reliance on Stallard’s FEV1/FVC ratio to
further identify the specific cause—i.e., smoking, black lung disease, or both—of his
disability. In particular, Dr. Rosenberg cited medical articles indicating that FEV1 and
FVC measurements together decline in patients suffering from black lung disease such
that the corresponding FEV1/FVC ratio ordinarily remains undisturbed. By contrast,
because Stallard’s FEV1/FVC ratio decreased over time, Dr. Rosenberg posited, the
medical evidence indicated that Stallard’s history of smoking was the “sole culprit” of his
disabling lung disease. J.A. 406.
As the ALJ explained, however, Dr. Rosenberg’s hypothesis regarding FEV1/FVC
ratios runs directly contrary to the agency’s own conclusions in this regard. Specifically,
the Labor Department’s regulatory Preamble cites various studies indicating that coal
14
dust exposure does result in decreased FEV1/FVC ratios. See Regulations Implementing
the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed. Reg.
79,920-01, 79,943 (Dec. 20, 2000) (explaining that COPD stemming from exposure to
coal dust “may be detected from decrements in certain measures of lung function,
especially FEV1 and the ratio of FEV1/FVC” (emphasis added)). The Preamble is
consistent with the corresponding regulation permitting claimants to demonstrate
entitlement to Black Lung Act benefits based on a reduced FEV1/FVC ratio. 20 C.F.R.
§ 718.204(b)(2)(i)(C). It is appropriate to give “little weight . . . to medical findings that
conflict with the [Black Lung Act]’s implementing regulations.” Lewis Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 373 F.3d 570, 580 (4th Cir. 2004). And, under
substantially similar circumstances, we have held that ALJs are permitted to give less
weight to medical opinions that draw on medical studies purporting to distinguish
between smoking-induced COPD and black lung disease. See Cochran, 718 F.3d at 323–
24.
Nonetheless, Westmoreland argues that Dr. Rosenberg arrived at his medical
opinion in this case based specifically on his review of the medical literature informing
the Preamble, as well as more recent studies purportedly showing a link between reduced
FEV1/FVC ratios and smoking. However, Dr. Rosenberg’s interpretation of the studies
predating the Preamble relies on selective quotations. And the agency rejected such an
interpretation when it promulgated the existing Black Lung Act regulations, see Cent.
Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 762 F.3d 483, 491 (6th Cir.
2014), after considering “the prevailing view of the medical community [and] the
15
substantial weight of the medical and scientific literature,” 65 Fed. Reg. at 79,939.
Likewise, the more recent studies do not address black lung disease at all and thus offer
little support for Westmoreland’s argument that the ALJ erred in disregarding Dr.
Rosenberg’s opinion. See Cochran, 718 F.3d at 323–24.
Accordingly, we—along with the Sixth Circuit—repeatedly have rejected Dr.
Rosenberg’s (and others’) reliance on similar evidence to argue that Black Lung Act
claimants are not entitled to benefits. See McElroy Coal Co. v. Dir., Office of Workers’
Comp. Programs, 624 F. App’x 101, 102 (4th Cir. 2015); Westmoreland Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 540 F. App’x 152, 153–54 (4th Cir. 2013) (per
curiam); see also Cent. Ohio Coal Co., 762 F.3d at 491–92; Quarto Mining Co. v. Dir.,
Office of Workers’ Comp. Programs, 657 F. App’x 428, 432–35 (6th Cir. 2016); Quarto
Mining Co. v. Marcum, 604 F. App’x 477, 482–84 (6th Cir. 2015).
In light of these authorities, as well as an ALJ’s general prerogative to discount
medical opinions at odds with the conclusions adopted by the agency itself, we conclude
that the ALJ did not err in rejecting Dr. Rosenberg’s opinion regarding the FEV1/FVC
ratio’s ability to show particularized causation. 3 Cent. Ohio Coal Co., 762 F.3d at 491–
92 (“The sole issue presented here is whether the ALJ was entitled to discredit Dr.
Rosenberg’s medical opinion because it was inconsistent with the [Labor Department]
position set forth in the preamble, and the answer to that question is unequivocally yes.”).
3
Known in the medical profession as “etiology.”
16
D.
Finally, Westmoreland argues that the ALJ misapplied the so-called “rule out”
standard in considering whether the company sufficiently rebutted the presumption that
black lung disease caused Stallard’s disability. As Westmoreland sees it, various errors
in framing and application led the ALJ to apply a standard which was nearly impossible
for the company to meet and led the ALJ to improperly discount the medical opinions of
Drs. Rosenberg and Zaldivar. We disagree.
When a Black Lung Act claim is timely filed, the claimant generally bears the
burden of demonstrating benefits eligibility. See 20 C.F.R. § 725.103. In some cases,
however, the Black Lung Act shifts the burden to the party opposing eligibility. For
instance, when a miner has more than fifteen years of below-ground mining experience, a
chest x-ray fails to show the presence of complicated pneumoconiosis, and other
evidence demonstrates a totally disabling respiratory or pulmonary impairment, there is a
rebuttable presumption that he or she is disabled due to black lung disease and thus
entitled to benefits. 30 U.S.C. § 921(c)(4). To rebut this presumption, an employer bears
the burden of showing either that the miner did not have black lung disease or that “no
part of the miner’s respiratory or pulmonary total disability was caused by” the disease.
20 C.F.R. § 718.305(d)(1)(i)–(ii).
As a threshold matter, Westmoreland does not dispute that Stallard’s long history
of employment in the coal mining industry and diagnosis with a totally disabling lung
disease make him presumptively eligible for Black Lung Act benefits under the statute’s
“15-year” presumption. Under Labor Department regulations, Westmoreland may
17
overcome this presumption either by showing that Stallard does not suffer from black
lung disease or by proving that “no part of [Stallard]’s respiratory or pulmonary total
disability was caused by” the disease. 20 C.F.R. § 718.305(d)(1). The second prong—
known as the “rule out” standard—is the prong here at issue. See Bender, 782 F.3d at
135, 137–44 (tracing history of rule out standard and explaining that under latest
regulations it requires an operator opposing benefits to “establish that the miner’s
disability is attributable exclusively to a cause or causes other than pneumoconiosis”).
Consistent with Congress’s purpose, the “rule out” standard imposes a “strict” and
“significant burden on operators seeking to rebut the statutory presumption.” Id. at 141.
In arguing that the ALJ’s flawed articulation of the rule out standard led him to
improperly discount Dr. Rosenberg’s and Zalidvar’s opinions, Westmoreland advances
numerous objections. These include that the ALJ failed to account for Dr. Rosenberg’s
reliance on the FEV1/FVC ratio; improperly decided to discount Drs. Rosenberg’s and
Zaldivar’s consideration of more extensive smoking histories than the ALJ’s two-to-four
pack-year calculation; and improperly rejected these experts’ conclusion that Stallard
would have been equally disabled had he never worked in the coal mining industry. We
conclude that none have merit.
Although many of Westmoreland’s objections impliedly ask this Court to reweigh
the medical opinions presented to the ALJ, we decline to do so. Harman Mining Co., 678
F.3d at 310 (“Because the ALJ is the trier of fact, we ‘defer to the ALJ's evaluation of the
proper weight to accord conflicting medical opinions.’” (quoting Stiltner, 86 F.3d at
342)). Accordingly, because two physicians who examined Stallard here determined that
18
he suffered from disabling black lung disease, Westmoreland “undeniably [fac]es a
substantial burden” in challenging the underlying conclusion that Stallard is entitled to
benefits. Bender, 782 F.3d at 143. Nonetheless, the company takes particular issue with
the ALJ’s reliance on the Preamble in dismissing Drs. Rosenberg’s and Zaldivar’s
alternative explanations for Stallard’s disabling lung disease. 4
Specifically, Westmoreland argues that the ALJ held Drs. Rosenberg and Zaldivar
to an impossible standard in assessing whether their opinions categorically ruled out
black lung disease as a cause of Stallard’s breathing impairment. In Westmoreland’s
view, the ALJ relied on the Preamble’s discussion of the additive effects of various risk
factors to conclude that exposure to coal dust necessarily has some effect on a miner’s
lung functioning. So construed, Westmoreland posits, the Preamble would make it
impossible to definitively rule out black lung disease as a substantially contributing factor
to a miner-smoker’s disabling lung disease.
Again, however, this argument contradicts both the regulations and our precedent.
In awarding benefits, the ALJ explained that the opinions given by Drs. Klayton and
4
Westmoreland’s threshold argument—that the ALJ improperly discounted the
opinions of Drs. Rosenberg and Zaldivar because they did not use “magic ‘rule out’
words”—is without merit. Pet’r’s Br. at 18. The ALJ repeatedly explained that he
discounted these doctors’ opinions because they failed to explain or even address why
coal mine dust could not have been a contributing or aggravating factor in this specific
case. In other words, these doctors ruled out coal dust exposure as a potential cause
simply because they viewed smoking to be the sole cause; however, because they solely
focused on smoking, they nowhere addressed why coal dust could not have been an
additional cause—a fundamental aspect of the legal inquiry. And, of course, these
doctors’ etiological conclusions also ran contrary to those rendered by Drs. Klayton and
Gallai.
19
Gallai were “consistent with the prevailing view of the medical community as expressed
by the Department in the Preamble to its regulations, where it noted that the effects of
cigarette smoke and coal dust on chronic obstructive pulmonary disease and chronic
bronchitis are additive.” J.A. 545. More specifically, the ALJ cited language in the
Preamble addressing in great detail the effects of smoking and exposure to coal dust
before reaching the Preamble’s “unequivocal” conclusion that “[e]ven in the absence of
smoking, coal mine dust exposure is clearly associated with clinically significant airways
obstruction and chronic bronchitis. The risk is additive with cigarette smoking.” 65 Fed.
Reg. at 79,940. Finally, Dr. Gallai further noted that—aside from the additive risk
component—Stallard’s “rapid decline [in lung function] over the past three years . . . is
typical of . . . coal workers’ pneumoconiosis.” J.A. 300.
By contrast, the ALJ discounted the opinions of Drs. Rosenberg and Zaldivar
because they were inconsistent with the Labor Department’s additive-risk determination
and not otherwise supported by the medical evidence in this case. In particular, both
doctors conceded that Stallard’s exposure to coal dust was sufficient to cause black lung
disease. And both doctors principally relied on evidence regarding the relative impact of
smoking and coal dust exposure on miners generally to conclude that Stallard’s
particularized exposure to coal dust did not significantly contribute to his disabling lung
disease. Finally, the ALJ additionally discounted these opinions because they relied on a
more significant smoking history than his two-to-four pack-year finding.
“‘[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
20
conclusions.’” Bender, 782 F.3d at 144 (4th Cir. 2015) (alteration in original) (quoting
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997)). The ALJ here did
so based on all the evidence detailed above, and he did not lightly arrive at his conclusion
that Westmoreland failed to rebut the statutory presumption. The decision below
carefully laid out the components of each doctor’s diagnosis and underlying rationales.
The decision then meaningfully engaged with the medical science, relevant caselaw, and
applicable regulations. Against this backdrop, the ALJ did not reversibly err in
concluding that Westmoreland failed to carry its “strict” and “substantial” burden to
completely rule out coal dust exposure as a cause of Stallard’s disability.
IV.
In sum, substantial evidence supports the ALJ’s decision and order to award
Stallard benefits and the decision otherwise accords with applicable law. The Board
therefore did not err in affirming the ALJ’s decision and order, and we accordingly deny
Westmoreland’s petition for review.
PETITION FOR REVIEW DENIED
21