Mingo Logan Coal Company v. Erma Owens

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2418

MINGO LOGAN COAL COMPANY,

Petitioner,

v.

ERMA JEAN OWENS, widow of DALLAS R. OWENS; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(11-0154 BLA)

Argued: March 21, 2013 Decided: July 31, 2013

Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges.

Petition for review denied by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Davis and Judge Diaz joined.
Judge Niemeyer wrote a separate concurring opinion.

ARGUED: William Steele Mattingly, JACKSON KELLY, PLLC,
Morgantown, West Virginia, for Petitioner. John Crawford Cline,
Piney View, West Virginia; Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Ashley M. Harman, Jeffrey R. Soukup, JACKSON KELLY,
PLLC, Morgantown, West Virginia, for Petitioner. M. Patricia
Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor,
Sean G. Bajkowski, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent.

2
NIEMEYER, Circuit Judge:

After nearly 30 years of coal mine employment, Dallas Owens

became totally disabled because of breathing difficulties, and

in April 2008, he filed a claim for black lung benefits. An

Administrative Law Judge (“ALJ”) found that Owens’ claim

triggered the rebuttable presumption for benefits under 30

U.S.C. § 921(c)(4), available to miners who are totally disabled

and have worked 15 years or more in underground coal mines, and

that Mingo Logan Coal Company, Owens’ former employer, failed to

rebut the presumption. The ALJ therefore awarded benefits to

Owens, and the Benefits Review Board affirmed.

On appeal, Mingo Logan contends that the ALJ and the Board

applied the wrong legal standard in evaluating whether it had

met its rebuttal burden, erroneously limiting it to the two

methods that the text of the statute specifies are the only

means by which the Secretary may rebut the presumption. See 30

U.S.C. § 921(c)(4) (providing, “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”). Mingo Logan contends that

limiting it to these two methods of rebuttal violated not only

the clear language of § 921(c)(4), which makes the rebuttal

limitations applicable to the Secretary, but also the Supreme

3
Court’s holding in Usery v. Turner Elkhorn Mining Co., 428 U.S.

1, 35 (1976) (construing the statute to place no limitations on

the means by which an employer may satisfy its burden on

rebuttal).

Both Owens and the Director of the Office of Workers’

Compensation Programs argue that even though the statute does

not, by its terms, limit employers to the two specified methods

of rebuttal, logic does, and therefore the ALJ and the Board

articulated the correct legal standard.

We do not reach Mingo Logan’s challenge to the standard

announced by the Board to rebut the § 921(c)(4) presumption of

entitlement to benefits, because we conclude that the ALJ did

not in fact apply rebuttal limitations to Mingo Logan, and the

Board affirmed the ALJ’s analysis. Because we also find that

Mingo Logan’s other challenges to the ALJ’s factual findings

lack merit, we affirm the Board’s award of benefits.

Accordingly, we deny Mingo Logan’s petition for review.

I

Owens worked in West Virginia coal mines for close to 30

years, beginning in 1974, and he spent the last 10 of those

years working in coal mines as an electrician for Mingo Logan

Coal Company. He stopped working in 2003 when he developed

difficulty breathing, a problem that got worse with time. In

4
April 2008, Owens filed a claim under the Black Lung Benefits

Act, which awards benefits to coal miners who are totally

disabled due to pneumoconiosis. See 30 U.S.C. § 901 et seq.

The statute’s implementing regulations define the term

pneumoconiosis to include not only those diseases medically

recognized as pneumoconiosis (“clinical pneumoconiosis”), but

also “any chronic lung disease or impairment and its sequelae

arising out of coal mine employment” (“legal pneumoconiosis”).

20 C.F.R. § 718.201(a). A claims examiner found that Owens was

eligible for benefits and ordered Mingo Logan to pay him

$1,048.10 a month. Mingo Logan contested the award and

requested a formal hearing with an ALJ. The hearing was

conducted on December 9, 2009.

At the hearing, Owens testified about his employment

history and his breathing problems, for which he had been

prescribed oxygen. He also testified that he had smoked about a

quarter of a pack of cigarettes a day when he was in his late

teens and early twenties but that he had not smoked since 1965.

In addition to Owens’ testimony, the parties introduced various

forms of medical evidence concerning his condition, including

(1) conflicting interpretations of two chest X-rays and three CT

scans; (2) the results from pulmonary function tests and

arterial blood gas studies; (3) notes of observations from two

of his treating physicians, Dr. Maria Boustani and Dr. Oscar

5
Figueroa, indicating that Owens had pneumoconiosis; and (4)

conflicting medical opinions from three physicians, Dr. D.L.

Rasmussen (offered by the Director), Dr. George Zaldivar

(offered by Mingo Logan), and Dr. Kirk Hippensteel (offered by

Mingo Logan), all three of whom agreed that Owens was totally

disabled by a pulmonary impairment but disagreed as to its

diagnosis and cause. Dr. Rasmussen diagnosed Owens as having

both clinical pneumoconiosis and interstitial fibrosis and

opined that both conditions were attributable to Owens’ exposure

to coal mine dust. Dr. Zaldivar diagnosed Owens with idiopathic

interstitial fibrosis or, in his words, “an interstitial

fibrosis of undetermined cause,” but unrelated to coal mining.

Dr. Hippensteel essentially reached the same conclusion, opining

that Owens’ “type of lung disease is a disease of the general

public unrelated to his prior coal mine dust exposure” and that

he “would be just as impaired by the same pulmonary problem had

he never worked in a coal mine.” ∗

∗
After the hearing but before the ALJ issued her decision,
Congress enacted the Patient Protection and Affordable Care Act
(“PPACA”), which contained a section amending the Black Lung
Benefits Act. See Pub. L. No. 111-148, § 1556, 124 Stat. 119,
260 (2010). As relevant here, for pending claims filed after
January 1, 2005, the PPACA reinstated a presumption that had
lapsed in 1982, specifying that a miner with at least 15 years
of underground coal mine employment who “demonstrates the
existence of a totally disabling respiratory or pulmonary
impairment” is entitled to a rebuttable presumption that he is
“totally disabled due to pneumoconiosis.” 30 U.S.C.

6
 In October 2010, the ALJ awarded Owens benefits. She

concluded that because Owens had more than 15 years of

underground coal mine employment and because the evidence

established that he was totally disabled by a respiratory

impairment, the rebuttable presumption of § 921(c)(4) arose that

he was totally disabled due to pneumoconiosis. The ALJ also

found that Mingo Logan did not rebut that presumption. In this

respect, the ALJ considered seven interpretations of two chest

X-rays, giving more weight to the readings that interpreted the

films as positive for pneumoconiosis based on the physicians’

relative qualifications. The ALJ also gave greater weight to

Dr. Rasmussen’s opinion as to the cause of Owens’ disability

than to the opinions offered by Dr. Zaldivar and Dr.

Hippensteel, emphasizing that Dr. Rasmussen’s opinion was better

§ 921(c)(4). In response to the amendment, the ALJ reopened the
record to allow both parties an opportunity to submit new
evidence, and Mingo Logan submitted supplemental reports from
both Dr. Zaldivar and Dr. Hippensteel.

The preexisting regulation that implemented former
§ 921(c)(4), 20 C.F.R. § 718.305, remains inapplicable by its
terms. See 20 C.F.R. § 718.305(e) (providing that the
regulation “is not applicable to any claim filed on or after
January 1, 1982”). The Department of Labor, however, asserts
that the substance of that regulation “remains the Department’s
definitive interpretation of Section 921(c)(4),” and it has
proposed a new version of the regulation, which has not yet gone
into effect. See Regulations Implementing the Byrd Amendments
to the Black Lung Benefits Act: Determining Coal Miners’ and
Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19,456
(proposed Mar. 30, 2012).

7
supported by the objective medical evidence and “the opinions of

two pulmonary experts who treated [Owens],” while Dr. Zaldivar

and Dr. Hippensteel “chose to totally eliminate consideration of

[Owens’] 29 years of coal dust exposure as a potential

environmental factor in the development of his interstitial

fibrosis.” The ALJ therefore concluded that “the preponderance

of the best documented and reasoned evidence of record

establishes the presence of clinical and legal pneumoconiosis.”

She also found that Dr. Zaldivar and Dr. Hippensteel’s diagnosis

of idiopathic interstitial fibrosis was “not sufficient to

establish a cause of [Owens’] disability other than [coal

workers’ pneumoconiosis].” She concluded, at bottom, that Mingo

Logan failed to rebut the § 921(c)(4) presumption.

The Benefits Review Board affirmed by a decision and order

dated October 28, 2011. The Board concluded that the ALJ’s

findings were supported by substantial evidence and that the ALJ

properly explained her finding that the positive X-ray readings

outweighed the negative X-ray readings and “properly found that

Dr. Rasmussen’s opinion was better documented and reasoned than

the opinions of Drs. Zaldivar and Hippensteel.”

Mingo Logan filed this petition for review, challenging

both the legal standard applied to its rebuttal evidence, as

well as the sufficiency of the analysis and the evidence.

8
 Owens died on July 8, 2012, but his widow continues to

pursue his claim on behalf of his estate.

II

Mingo Logan contends that the ALJ and the Benefits Review

Board applied the wrong legal standard in assessing whether it

rebutted the presumption established by 30 U.S.C. § 921(c)(4).

Under § 921(c)(4), if the miner shows that he worked 15 years or

more in underground coal mines and that he suffers from a

totally disabling respiratory or pulmonary impairment, a

rebuttable presumption arises that the miner “is totally

disabled due to pneumoconiosis.” In the absence of credible

rebuttal evidence, the miner would then be entitled to benefits.

In its opinion affirming the ALJ’s award of benefits, the

Board stated that Mingo Logan could rebut the § 921(c)(4)

presumption only by showing either (1) that Owens did not have

pneumoconiosis or (2) that his respiratory or pulmonary

impairment did not arise out of, or in connection with, his coal

mine employment. In support of this statement, the Board cited

the statutory language: “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.” 30 U.S.C. § 921(c)(4).

9
 Mingo Logan argues that the Board improperly applied to it

the rebuttal limitations of § 921(c)(4) even though the plain

text shows that those limitations apply only when the

“Secretary” seeks to rebut the presumption. See Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 35 (1976) (“[I]t [is] clear as a

matter of statutory construction that the [provision’s]

limitation on rebuttal evidence . . . applies only to ‘the

Secretary’ and not to an operator seeking to avoid liability

. . .”). By applying the rebuttal limitations to it, Mingo

Logan argues, the Board denied it the chance to rebut the

presumption with evidence that pneumoconiosis did not

substantially contribute to Owens’ total disability.

Owens and the Director of the Office of Workers’

Compensation Program contend that the standard announced by the

Board was appropriate even if the statutory language does not

directly apply to the employer, because the methods of rebuttal

articulated in § 921(c)(4) are the only logical methods by which

the presumption can be rebutted. In short, they argue that the

statute’s “rebuttal limitations” are actually not limitations at

all.

While the dispute over the correct rebuttal standard could

affect whether a miner receives benefits, in this case we

conclude that Mingo Logan was not in fact restricted in the

evidence it offered in rebuttal, and the ALJ did not apply the

10
rebuttal limitations in considering the evidence. Rather, the

ALJ analyzed whether Mingo Logan presented credible evidence to

rebut any aspect of the miner’s claim covered by the

presumption.

The Black Lung Benefits Act awards benefits to miners who

are totally disabled due to pneumoconiosis. 30 U.S.C.

§§ 901(a), 921; 20 C.F.R. §§ 718.204(a), 725.1(a),

725.201(a)(1). This language defining when benefits are

available is the same as the language defining the scope of the

presumption created by § 921(c)(4). To establish an entitlement

to benefits, a claimant 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. 20 C.F.R. §§

725.202(d)(2), 718.204(c)(1). “Pneumoconiosis is a

‘substantially contributing cause’ of the miner’s disability if

it (i) [h]as a material adverse effect on the miner’s

respiratory or pulmonary condition; or (ii) [m]aterially worsens

a totally disabling respiratory or pulmonary impairment which is

caused by a disease or exposure unrelated to coal mine

employment.” Id. § 718.204(c)(1).

11
 Relating these claim elements to § 921(c)(4)’s presumption,

when a miner proves 15 years of coal mine employment and element

(3), i.e., the total disability element, a rebuttable

presumption arises that the miner is totally disabled due to

pneumoconiosis. Thus, with this provision, the miner

presumptively satisfies claim elements (1) (the existence of

pneumoconiosis), (2) (pneumoconiosis arose out of coal mine

employment), and (4) (pneumoconiosis caused the total

disability). Although Mingo Logan argues that the ALJ limited

its ability to rebut the presumption by applying to it the

rebuttal methods applicable only to the Secretary, the record in

fact shows that the ALJ did no such thing. Rather, the ALJ

considered all of the evidence that Mingo Logan presented and

found that it did not rebut any of the three elements covered by

the presumption.

Specifically, as to element (1) (the presence of

pneumoconiosis), the ALJ considered Mingo Logan’s evidence,

together with the evidence presented by Owens, and concluded, “I

find that the preponderance of the best documented and reasoned

evidence of record establishes the presence of clinical and

legal pneumoconiosis.” As to element (2) (that pneumoconiosis

arose out of coal mine employment), the ALJ pointed to another

rebuttable presumption, as stated in 20 C.F.R. § 718.203(b),

which establishes this element if the miner had at least 10

12
years of coal mine employment. She then concluded that because

Mingo Logan “ha[d] not presented evidence to rebut the

presumption,” Owens “ha[d] established the presence of

pneumoconiosis arising out of coal mine employment.” And

finally as to element (4) (that pneumoconiosis caused the total

disability), the ALJ understood that the presumption could be

rebutted by the employer. The ALJ considered the causation

evidence submitted by both sides and concluded that Mingo Logan

“has failed to establish that [Owens’] respiratory disability is

due to a condition other than pneumoconiosis.” The ALJ thus

effectively rejected the evidence offered by Mingo Logan to

rebut element (4) by showing that pneumoconiosis was not a

substantially contributing cause of Owens’ total disability.

In affirming the ALJ, the Benefits Review Board recited the

ALJ’s holding, explicitly referring to the ALJ’s conclusion that

Mingo Logan did not rebut element (4):

The administrative law judge also found that employer
failed to establish that claimant does not have
clinical or legal pneumoconiosis, or that claimant’s
total disability was not due to pneumoconiosis.
Consequently, the administrative law judge found that
employer failed to rebut the presumption of total
disability due to pneumoconiosis at Section 411(c)(4)
of the Act, 30 U.S.C. § 921(c)(4).

(Emphasis added). While the Board then summarized its

affirmance by referring to the sentence in § 921(c)(4) that

addresses how the Secretary may rebut the presumption, it

13
nonetheless proceeded to address substantively the ALJ’s factual

findings and evaluation of the evidence and affirmed them.

In short, while the Benefits Review Board purported to

subject the employer to the rebuttal methods applicable to the

Secretary in § 921(c)(4), it concluded in substance that no

aspect of the presumption was rebutted, affirming the ALJ’s

finding that Mingo Logan failed to show that Owens had only mild

pneumoconiosis that did not substantially contribute to his

total disability. Accordingly, because the record shows that

§ 921(c)(4)’s two methods of rebuttal did not affect the Board’s

disposition of this case, we need not address Mingo Logan’s

claim that restricting employers to those methods improperly

raised its burden on rebuttal.

III

On the merits, Mingo Logan contends that, in concluding

that it had not rebutted the § 921(c)(4) presumption, the ALJ

failed to consider the medical evidence in its entirety and

failed to provide an adequate rationale in support of her

conclusions, resulting in a decision that falls below the

minimum threshold required by the Administrative Procedure Act

(“APA”). Specifically, it argues (1) that the ALJ did not

adequately explain her weighing of the chest X-ray evidence; (2)

that she improperly discounted the medical opinions of Dr.

14
Zaldivar and Dr. Hippensteel; and (3) that Dr. Rasmussen’s

opinion, combined with Owens’ treatment records, was

insufficient to support the ALJ’s finding of legal

pneumoconiosis.

Our review of these matters assesses 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) (alteration in original) (internal quotation marks

omitted). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). As part of “determining whether substantial evidence

supports the ALJ’s factual determinations, we must . . . address

whether all of the relevant evidence has been analyzed and

whether the ALJ has sufficiently explained his rationale in

crediting certain evidence.” Milburn Colliery Co. v. Hicks, 138

F.3d 524, 528 (4th Cir. 1998). But we must also be mindful that

the ALJ, as the trier of fact, “is charged with making factual

findings, including evaluating the credibility of witnesses and

weighing contradicting evidence.” Doss v. Dir., Office of

Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995).

15
 With respect to Mingo Logan’s contention that the ALJ

failed “to provide adequate explanation under the APA for her

weighing of the chest X-ray evidence,” the APA does require ALJs

to “include a statement of . . . findings and conclusions, and

the reasons or basis therefor, on all the material issues of

fact, law, or discretion presented on the record.” 5 U.S.C.

§ 557(c)(3)(A). An adequate explanation, however, “can be a

succinct one,” Lane Hollow Coal Co. v. Dir., Office of Workers’

Comp. Programs, 137 F.3d 799, 803 (4th Cir. 1998), and the APA’s

“duty of explanation” is satisfied as long as “a reviewing court

can discern what the ALJ did and why she did it,” Harman, 678

F.3d at 316 (alterations and internal quotation marks omitted).

In this case, the ALJ had before her three interpretations

of a chest X-ray taken on May 15, 2008, and four interpretations

of an October 15, 2008 X-ray. The ALJ first explained the

relative radiological qualifications of the persons who made an

interpretation, noting that a physician becomes a “B reader”

when he passes an examination testing his “proficiency in

assessing and classifying X-ray evidence of pneumoconiosis,”

while a Board-certified radiologist has received certification

in radiology or diagnostic roentgenology by the American Board

of Radiology or the American Osteopathic Association. See 20

C.F.R. § 718.202(a)(ii)(C), (E). The ALJ then explained that a

dually qualified physician (i.e., a radiologist who was both a B

16
reader and Board-certified) and a doctor who was a B reader had

interpreted the first X-ray as positive for the presence of

pneumoconiosis, while one dually qualified physician read the

film as negative. Giving more weight to the reading that had

been corroborated, the ALJ found “that this [May 2008] film

supports finding the presence of pneumoconiosis.”

The ALJ similarly evaluated the conflicting interpretations

of the October 2008 X-ray, noting that it had been read as

positive by two dually qualified physicians and negative by one

dually qualified physician and by one physician, Dr. Zaldivar,

who had subsequently lost his B reader certification. She then

explained that she was giving “more weight to the jointly held

opinions of the dually qualified physicians who interpreted the

film as positive.” She thus concluded that “the preponderance

of the X-ray evidence supports a finding of the presence of

pneumoconiosis.”

On this record, the Board found that the ALJ adequately

explained her assessment of the X-ray evidence. And we agree.

The applicable regulation specifies that “where two or more

X-ray reports are in conflict,” the ALJ must consider “the

radiological qualifications of the physicians interpreting such

X-rays.” 20 C.F.R. § 718.202(a)(1). Because the ALJ did just

that here, we conclude that she sufficiently explained why she

found the X-ray evidence on the whole indicated that Owens had

17
pneumoconiosis and that substantial evidence supported that

finding.

Next, with respect to Mingo Logan’s contention that the ALJ

incorrectly disregarded the opinions of its experts, the ALJ

gave a number of reasons in support of her decision to “accord

less weight to the opinions of Drs. Zaldivar and Hippensteel.”

She found that they both “dismissed in a cursory [fashion] the

medical literature that associated coal dust exposure with

interstitial fibrosis;” that they both “maintained that

idiopathic interstitial fibrosis exists in the general

population, but neither adequately addressed the fact that

[Owens] is not a member of the general population” based on his

extensive coal-dust exposure; and that they “[b]oth acknowledged

that the diagnosis of idiopathic interstitial fibrosis depended

on ruling out all suspected factor[s], but neither doctor gave

an adequate explanation for why coal dust inhalation could not

have caused at least some of [Owens’] impairment.” The ALJ also

found their opinions “compromised by not being fully

documented,” noting (1) that “[n]either doctor fully addressed

the fact that two treating pulmonary specialist[s] found

sufficient evidence to diagnose [coal workers’ pneumoconiosis]

rather than idiopathic interstitial fibrosis;” (2) that “[b]oth

doctors relied upon negative readings of X-rays and CT scans,

regardless of contrary interpretations by dually qualified

18
physicians, or by the doctor who read the films during

treatment;” (3) that neither addressed one of the treating

pulmonologists’ “findings of a mixed obstructive and restrictive

defect;” and (4) that neither “gave adequate consideration to

whether the evidence established legal pneumoconiosis.”

At bottom, the ALJ found that Dr. Zaldivar and Dr.

Hippensteel did not adequately explain why, in their view,

Owens’ interstitial fibrosis was not “significantly related to,

or substantially aggravated by,” his exposure to dust through

his coal mine employment. 20 C.F.R. § 718.201(b). In other

words, the ALJ found that these doctors’ reports and testimony

did not adequately explain why Owens’ interstitial fibrosis --

which they identified as the cause of his total disability --

did not constitute legal pneumoconiosis.

Nonetheless, Mingo Logan challenges this finding by

pointing to places in the record where it contends Dr. Zaldivar

and Dr. Hippensteel did indeed explain “how and why they

eliminated Mr. Owens’ coal dust exposure as the cause of his

interstitial fibrosis.” But the ALJ never said that these

doctors failed to provide any explanation for their views on

this critical point. Instead, she found that the explanations

they gave were inadequate and ultimately unconvincing.

Having fully reviewed the record, we conclude that the ALJ

acted within her factfinding role in deciding to give less

19
weight to the opinions of Dr. Zaldivar and Dr. Hippensteel. See

Westmoreland Coal Co. v. Cochran, __ F.3d __, No. 11-1893, slip

op. at 13 (4th Cir. June 4, 2013) (noting that “[i]t is the role

of the ALJ -- not the appellate court -- to resolve” the “battle

of the experts”).

Finally, Mingo Logan contends that Dr. Rasmussen’s opinion,

combined with the notes of Owens’ treating pulmonary

specialists, did not amount to substantial evidence to support

the ALJ’s finding that Owens had both clinical and legal

pneumoconiosis or her finding that Mingo Logan failed to show

that Owens’ pulmonary disability was not due to these diseases.

Mingo Logan argues that Dr. Rasmussen offered only an equivocal,

differential diagnosis. This assertion, however, takes certain

statements by Dr. Rasmussen out of context and overlooks his

clearly expressed opinion that Owens’ condition was “primarily

the result of [his] long term exposure to coal mine dust and

that he suffers from coal mine induced, totally disabling

chronic lung disease.”

Similarly, Mingo Logan argues that the ALJ relied too

heavily on Owens’ treatment records. In our view, however, the

ALJ followed the standards established in 20 C.F.R. § 718.104(d)

and gave appropriate consideration to the opinions of Dr.

Boustani and Dr. Figueroa, noting that “the record is not

developed sufficiently to allow me to accord their opinions

20
controlling weight” and instead deciding to give their opinions

“significant weight.”

We thus reject Mingo Logan’s challenge to the sufficiency

of the evidence.

* * *

In sum, we was not in fact applied by either the ALJ or

the Board. Instead, the ALJ considered all of the evidence that

Mingo Logan offered to demonstrate that pneumoconiosis did not

cause or substantially contribute to Owens’ total disability,

and the Board affirmed the substance of the ALJ’s analysis. We

also reject Mingo Logan’s challenges to the ALJ’s analysis and

the sufficiency of the evidence.

Accordingly, Mingo Logan’s petition for review is denied.

It is so ordered.

21
NIEMEYER, Circuit Judge, concurring:

I write this separate concurring opinion on my conviction

that Mingo Logan’s challenge to the standard for rebutting the

§ 921(c)(4) presumption should have been addressed. And in

addressing it, I would hold that the rebuttal standard announced

by the Board was erroneous, as demonstrated both by the explicit

language of § 921(c)(4) and the Supreme Court’s holding in

Usery.

The Board stated that it was applying to Mingo Logan the

limiting rebuttal standard applicable to the Secretary, failing

to recognize that in Usery, the Supreme Court held that the

standard applicable to the Secretary did not apply to employers.

Only because it applied the limiting standard clumsily in this

case -- and thus considered all methods of rebutting the

§ 921(c)(4) presumption that Mingo Logan offered -- have we been

able to resolve this appeal without addressing the standard.

But this quirk, which was uncovered only by a close reading of

the Board’s opinion, leaves sufficient doubt about the issue

that we should resolve it.

I now write to demonstrate why the standard announced by

the Board was erroneous.

As we point out, under § 921(c)(4), if the miner shows that

he worked 15 years or more in underground coal mines and that he

suffers from a totally disabling respiratory or pulmonary

22
impairment, a rebuttable presumption arises that the miner “is

totally disabled due to pneumoconiosis.” In the absence of

credible rebuttable evidence, the miner would then be entitled

to benefits.

The Board indicated that Mingo Logan could rebut the

§ 921(c)(4) presumption only by showing either (1) that Owens

did not have pneumoconiosis or (2) that his impairment did not

arise out of, or in connection with, his coal mine employment.

In doing so, the Board referenced the statutory language: “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.” 30

U.S.C. § 921(c)(4).

As noted above, the parties disagree on whether the Board

announced the correct rebuttal standard for employers. Mingo

Logan argues that the Board improperly applied to it the

rebuttal limitations of § 921(c)(4) because the plain text shows

that those limitations apply only when the “Secretary” seeks to

rebut the presumption. See Usery, 428 U.S. at 35. By applying

the rebuttal limitations to it, Mingo Logan argues, the Board

denied it the chance to rebut the presumption with evidence that

pneumoconiosis did not cause the miner’s total disability.

Relying on how 20 C.F.R. § 718.204(c)(1) defines this causation

23
standard, it reasons that the Board’s standard effectively

denied it the opportunity to show that Owens’ disability was

caused by idiopathic interstitial fibrosis and that his

pneumoconiosis was so mild as not to “substantially contribute”

to his disability. Id.

Owens and the Director of the Office of Workers’

Compensation Program contend that the standard announced by the

Board was appropriate even if the statutory language does not

directly apply to the employer, because the methods of rebuttal

articulated in § 921(c)(4) are the only logical methods by which

the presumption can be rebutted. In short, they argue that the

statute’s “rebuttal limitations” are actually not limitations at

all.

Resolution of the parties’ differences requires comparing

the four claim elements necessary to establish a claim for

benefits and the rebuttal methods contained in § 921(c)(4).

As we have already pointed out, to establish entitlement to

benefits, a claimant must show that (1) he has pneumoconiosis;

(2) his pneumoconiosis arose out of coal mine employment; (3) he

has a total disability; and (4) his pneumoconiosis caused the

total disability. Thus, claim elements (1) and (3) are

existential elements, requiring the existence of pneumoconiosis

and the existence of total disability, while claim elements (2)

and (4) articulate causal relationships.

24
 Relating the claim elements to § 921(c)(4), when the miner

proves 15 years of coal mine employment and claim element (3),

i.e., the total disability element, a rebuttable presumption

arises that the miner is totally disabled due to pneumoconiosis.

Thus, with this provision, the miner presumptively satisfies

claim elements (1) (the existence of pneumoconiosis), (2)

(pneumoconiosis arose out of coal mine employment), and (4)

(pneumoconiosis caused the total disability). Because the

presumption is rebuttable, the coal mine operator would

logically be entitled to defeat it by introducing evidence

rebutting any of those three claim elements.

Because the statute specifies that the Secretary may rebut

the presumption only by showing that the miner does not have

pneumoconiosis (rebutting claim element (1)) or that there is no

connection between the miner’s disability and his coal mine

employment, it imposes a higher standard for rebuttal than would

otherwise be logically permissible to rebut claim element (4).

Claim element (4) could logically be rebutted by showing that

the miner’s pneumoconiosis was not a substantially contributing

cause of his total disability, even if it contributed some

minimal amount to his impairment. See 20 C.F.R.

§ 718.204(c)(1). In this way, the statute limits the

Secretary’s ability to rebut claim element (4). But the statute

is silent about the scope of an employer’s rebuttal, and the

25
employer’s methods of rebuttal are thus not limited.

Consequently, because the presumption covers claim elements (1),

(2), and (4), the employer may carry its burden by introducing

evidence rebutting any of these elements, without limitation.

Owens and the Director failed to appreciate the statutory

language and the logic of § 921(c)(4), claiming that the

Secretary’s rebuttal methods are also the employer’s only

logical rebuttal methods, especially when the various elements

of a claim are examined through their definitions. But the

straightforward language of § 921(c)(4) belies their position,

as noted. Moreover, the Supreme Court has confirmed the

existence of a limitation on the Secretary that does not apply

to the employer, necessarily recognizing that rebuttal methods

(A) and (B) identified in § 921(c)(4) are not logically

equivalent to the methods that would otherwise be available.

In Usery, the Court actually stated that the rebuttal

methods of § 921(c)(4) were limiting. Usery, 428 U.S. at 34.

And precisely because they were limiting, the coal mine

operators involved in Usery made the same argument that Mingo

Logan makes here:

The Operators contend that this limitation erects an
impermissible irrebuttable presumption, because it
establishes liability even though it might be
medically demonstrable in an individual case that the
miner’s pneumoconiosis was mild and did not cause the
disability -- that the disability was wholly a product
of other disease, such as tuberculosis or emphysema.

26
 Disability due to these diseases, as the Operators
note, is not otherwise compensable under the Act.

Id. at 34-35. Accepting the legitimacy of the operators’

argument, the Court held:

[W]e think it clear as a matter of statutory
construction that the [§ 921(c)(4)] limitation on
rebuttal evidence is inapplicable to operators. By
the language of [§ 921(c)(4)], the limitation applies
only to “the Secretary” and not to an operator seeking
to avoid liability [for benefits].

Id. at 35.

Accordingly, I would conclude that the Board announced and

purported to apply to Mingo Logan rebuttal limitations that

applied only to the Secretary and that, in this respect, it

erred as a matter of law.

27