November 29, 2018
Petition for Review of an Order of the Benefits Review Board.
Flaum, Ripple, and Manion, Circuit Judges.
Ross worked as a coal miner for approximately thirty years.
He smoked cigarettes for almost as long but was able to quit
after his first heart attack. Ross continued to work as a
coal miner even though he suffered another heart attack and
had difficulty breathing at work. Approximately six years
after Ross stopped working in the coal mines, his breathing
problems became severe.
January 19, 2012, Ross filed a claim for benefits under the
Black Lung Benefits Act, 30 U.S.C. § 901 et
seq. At first, the administrative law judge
("ALJ") denied Ross's claim. Ross petitioned
the United States Department of Labor's Benefits Review
Board (the "Board") for review, and the Board
vacated and remanded the ALJ's decision for further
consideration. On remand, the ALJ granted Ross's claim.
Ross's former employer, petitioner Consolidation Coal
Company (the "Employer"), petitioned the Board for
review, and the Board affirmed the ALJ's subsequent
decision. Then the Employer filed this appeal. We enforce the
decision of the Board.
Statutory and Regulatory Framework
passed the Black Lung Benefits Act (the "Act") in
light of the "significant number" of coal miners
who became "totally disabled" from working in coal
mines. 30 U.S.C. § 901(a). Under the Act, coal miners
may receive modest monetary and medical benefits to treat
their pulmonary impairments. See id. To establish
eligibility for such benefits, a coal miner must show: (1) he
has pneumoconiosis, (2) the pneumoconiosis arose out of coal
mine employment, (3) he is totally disabled, and (4) the
pneumoconiosis contributes to the total disability. 20 C.F.R.
and its implementing regulations define pneumoconiosis as
"a chronic dust disease of the lung and its sequelae,
including respiratory and pulmonary impairments, arising out
of coal mine employment." 30 U.S.C. § 902(b); 20
C.F.R. § 718.201(a). And the regulations define two
subcategories of pneumoconiosis: "Clinical
pneumoconiosis" refers to "those diseases
recognized by the medical community as pneumoconioses, i.e.,
the conditions characterized by permanent deposition of
substantial amounts of particulate matter in the lungs and
the fibrotic reaction of the lung tissue to that deposition
caused by dust exposure in coal mine employment." 20
C.F.R. § 718.201(a)(1). "Legal pneumoconiosis"
refers to "any chronic lung disease or impairment and
its sequelae arising out of coal mine employment. This
definition includes, but is not limited to, any chronic
restrictive or obstructive pulmonary disease arising out of
coal mine employment." Id. §
establish a respiratory or pulmonary impairment that is
"totally disabl[ing]" and qualifies him for
benefits under the Act, a miner must show that the impairment
prevents him from performing his usual coal mine work and
from engaging in gainful employment that requires similar
skills to his coal mining job and that is near his home.
Id. § 718.204(b)(1)(i)-(ii). Additionally, the
coal miner must satisfy certain medical criteria.
Id. § 718.204(b)(2). "In absence of
contrary probative evidence," evidence that meets any of
the standards outlined in § 718.204(b)(2)(i)-(iv)
"shall establish a miner's total disability."
Id. Under subparagraph (i), pulmonary function tests
"showing values equal to or less than those listed in
[certain tables in] Appendix B to this part for ... the FEVi
test" qualify "if, in addition, such tests also
reveal the values ... equal to or less than those listed in
... Appendix B for this part, for ... the FVC test, or ...
the MVV test, or ... [a] percentage of 55 or less when the
results of the FEVi test are divided by the results of the
FVC test (FEVi/FVC equal to or less than 55%)." Under
subparagraph (ii), arterial blood gas tests that "show
the values listed in Appendix C to this part" qualify.
Under subparagraph (iii), medical evidence showing the miner
suffers from "cor pulmonale with right-sided congestive
heart failure" qualifies. And subparagraph (iv)
Where total disability cannot be shown under paragraphs
(b)(2)(i), (ii), or (iii) of this section, or where pulmonary
function tests and/or blood gas studies are medically
contraindicated, total disability may nevertheless be found
if a physician exercising reasoned medical judgment, based on
medically acceptable clinical and laboratory diagnostic
techniques, concludes that a miner's respiratory or
pulmonary condition prevents or prevented the miner from
engaging in employment as described in paragraph (b)(1) of
intended for the Act to serve a remedial purpose and for
doubts "[i]n the absence of definitive medical
conclusion[s]" to be resolved in the miner's favor.
S. Rep. No. 92-743, at 2315. Accordingly, the Act includes a
rebuttable presumption that a miner may invoke if the miner
can establish that he has spent at least fifteen years
working in a coal mine and establish pursuant to §
718.204 that he suffers from a totally disabling respiratory
or pulmonary impairment. See 30 U.S.C. §
921(c)(4); 20 C.F.R. § 718.305. If the miner can make
that showing, the miner is presumed to be totally disabled by
pneumoconiosis. 20 C.F.R. § 718.305(c)(1). The
miner's employer may rebut that presumption either by
disproving the existence of legal and clinical
pneumoconiosis, or by ruling out pneumoconiosis as a partial
cause of the miner's disability. Id. §
spent thirteen years working underground in the mine and at
least seventeen years working on the surface of the mine.
Throughout his career, the dust from the mine was
inescapable. After a day's work, his clothes were
"too nasty" to take inside his home, so he would
shower at work, change into different clothes, and leave his
work clothes hanging in his garage. Cleaning his work clothes
required using the laundromat's special washer for coal
miner's clothes, and even then, it took two wash cycles
to remove the dust and grease from the coal mine.
at the age of twenty and for approximately the next thirty
years, Ross smoked between one-half to two packs of
cigarettes per day, though sometimes he would begin smoking a
cigarette, but would be too busy with work to finish it, so
he'd extinguish it and go back to work. He quit smoking
in 1989 after suffering his first heart attack.
Unfortunately, Ross had another serious heart attack in 1995,
and he suspects he had a third heart attack in 1998.
had breathing problems while working in the coal mines. He
struggled to carry his tools while climbing the stairs and he
often had to take breaks to catch his breath. And yet, Ross
kept working. That is, he kept working until his employer
"let [him] go" in 2000 because he "got blinded
in the right eye." At that time, Ross said he felt he
could still do his job from a cardiac standpoint and that
from a pulmonary standpoint, he "was trying." Since
his coal mining career ended, Ross has not held steady
employment. To stay busy, Ross volunteered by cutting
firewood with a chainsaw, mowing lawns with a riding
lawnmower, and putting up hay with a square baler.
said his breathing problems became severe in 2006 or 2007. He
has testified that since that time, he cannot walk around his
house and yard like he used to, and it takes him longer to
complete daily tasks, namely feeding his animals and mowing
the lawn. Although he takes medication for his breathing
problems, he can only perform fifteen to twenty minutes of
work before he has to sit down to take a break for
thirty-five to forty minutes. Ross uses an oxygen monitor to
make sure his oxygen does not fall so low as to risk stroke
or death. When his oxygen levels get too low, Ross uses
The ALJ's Firs t Decision
January 19, 2012, Ross filed a claim for benefits under the
Act. The District Director awarded Ross benefits in October
2012; the Employer requested a hearing before the Office of
Administrative Law Judges. In preparation for that hearing,
the Director of the Office of Workers' Compensation
Programs in the United States Department of Labor (the
"Director"), Ross, and the Employer gathered
medical evidence to present to the ALJ. The hearing occurred
on October 23, 2013; Ross and his wife both testified. After
the hearing, Ross and the Employer submitted briefs and the
ALJ issued a decision denying benefits on September 8, 2014.
determined that Ross had over fifteen years of qualifying
coal mine employment, and in turn, focused on whether Ross
was entitled to invoke the fifteen-year presumption by
establishing a totally disabling respiratory or pulmonary
impairment using qualifying medical evidence. Beginning with
the pulmonary function tests, the ALJ noted that the parties
submitted three such exams for Ross. Dr. Taz-baz, on behalf
of the Department of Labor, performed the first exam on Ross
on February 13, 2012, and that exam produced qualifying
values prebronchodilator. Dr. Tuteur, on behalf of the
Employer, performed two more exams on Ross on June 28, 2012,
and those exams produced nonqualifying values
prebronchodilator and postbronchodilator. Since the ALJ found
the more recent results to be the best indicator of
Ross's pulmonary condition, the ALJ concluded that the
pulmonary function testing, standing alone, did not support a
finding of total disability under 20 C.F.R. §
the ALJ discussed the blood gas studies: Ross underwent four
such studies, two at rest and two after exercise. In both
"after exercise" studies, Ross's PCCh increased
and his PO2 decreased, thereby producing qualifying values.
The ALJ noted that Dr. Tazbaz concluded that these studies
showed that Ross had a "pulmonary limitation to exercise
with hypoxemia that requires oxygen," and that Dr.
Tuteur indicated that the "after exercise"
qualifying result was abnormal, but a reflection of a
development of oxygen gas exchange impairment after exercise.
The ALJ found that the blood gas studies, standing alone,
supported a finding of total disability under §
the ALJ briefly noted that there was no evidence that Ross
had cor pulmonale with right-sided congestive heart failure,
so total disability could not be supported on that basis.
See id. § 718.204(b)(2)(iii).
the ALJ considered the medical opinion evidence of three
doctors. First, Dr. Tazbaz opined that Ross was
"severely impaired with desaturation on exercise
test" and "cannot do his activities in last year of
employment." He diagnosed Ross with chronic obstructive
pulmonary disease, coal workers' pneumoconiosis, coronary
artery disease, and hypoxemia with exercise. He opined that
the cause of these conditions was exposure to coal mine dust
and cigarette smoke. Second, Dr. Tuteur indicated that Ross
had a "minimal obstructive abnormality and some air
trapping," but he opined that this was "not
clinically meaningful and ... is [in] no way associated with
any disability or reduced function." Dr. Tuteur
explained that Ross's hypoxemia and blood gas results
were "most likely ... due to a right to left
intracardiac shunt unrelated to the inhalation of coal mine
dust, but consistent with complications of the coronary
artery disease, myocardial infarctions, surgical treatment
and their sequelae." And Dr. Tuteur opined that there was no
evidence to support legal or clinical coal workers'
pneumoconiosis or any coal-mine-dust-related pulmonary
process. Finally, Dr. Selby reviewed Ross's medical
records and submitted a report of his findings. In that
report, dated March 18, 2013, Dr. Selby opined that Ross was
not totally disabled from a pulmonary or respiratory
standpoint. Dr. Selby also testified at a deposition on
September 10, 2013: In his opinion, Ross's minor
pulmonary impairment was due to his extensive cigarette
smoking and prior history of histoplasmosis or tuberculosis.
He explained that Ross's post-exercise levels
demonstrated serious hypoxia, which "might cause some
limitation." But Dr. Selby testified that the cause of
Ross's drop in oxygen was not pulmonary in nature because
his pulmonary function tests were normal, which "is
virtually 100 percent predictive of no lung disease." He
testified that the evidence is "exactly to the
contrary" of a finding of total disability due to a
summarized the medical opinion evidence, in relevant part, as
All three physicians are board-certified in pulmonary and
internal medicine, and only one physician, Dr. Tazbaz, opined
that [Ross] was totally disabled from a pulmonary standpoint.
Dr. Tuteur opined that [Ross] was totally disabled from a
cardiac standpoint, and Dr. Selby did not find that [Ross]
was totally disabled at all. With regard to the issue of
total disability, Drs. Selby and Tuteur's opinions were
well reasoned, documented, and supported by the totality of
the medical evidence. Dr. Tazbaz's very minimal opinion
did not consider [Ross's] other testing and medical
evidence, or [Ross's] severe cardiac issues as ...
potential causes of his impairment. Greater weight may be
accorded an opinion supported by more extensive documentation
over an opinion supported by limited medical data....
Accordingly, I find Dr. Tazbaz's opinion is entitled to
less weight and it is not sufficiently documented. A
doctor's opinion that is both reasoned and documented and
is supported by objective medical tests and consistent with
all the documentation in the record, is entitled to greater
probative weight.... Therefore, based on the abovementioned
discussion, I find that the medical opinion evidence,
standing alone, does not support a finding of total
disability. [See id. § 718.204(b)(2)(iv).]
the ALJ considered all the probative evidence and found that
the preponderance of the evidence did not establish that Ross
had a totally disabling respiratory or pulmonary impairment.
As a result, the ALJ concluded that Ross was not entitled to
invoke the fifteen-year presumption. Ultimately, the ALJ
denied Ross's claim for benefits.
The First Petition for Review
petitioned the Board to review the ALJ's decision. The
Director filed a response, asking the Board to vacate the
denial of benefits and to remand the case for further
consideration. The Employer also filed a response, and it
moved to strike the Director's brief as violating 20
C.F.R. § 802.212(b), which limits the Board's
consideration of arguments in response briefs to those that