Westmoreland Coal Company, Incorporated v. DOWCP

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1879

WESTMORELAND COAL COMPANY, INCORPORATED,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; JAMES E. SIZEMORE,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(11-0544-BLA)

Submitted: August 20, 2013 Decided: September 6, 2013

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Paul E. Frampton, BOWLES RICE LLP, Charleston, West Virginia,
for Petitioner. Joseph E. Wolfe, Ryan C. Gilligan, WOLFE,
WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondent James E. Sizemore.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Westmoreland Coal Company (“Employer”) petitions for

review of the Benefits Review Board’s (“Board”) decision and

order affirming the administrative law judge’s (“ALJ”) award of

benefits to former employee James E. Sizemore under the Black

Lung Benefits Act (“Act”), 30 U.S.C.A. §§ 901-945 (West 2007 &

Supp. 2013). We deny the petition for review.

Employer does not dispute the ALJ’s finding that

Sizemore was entitled to the rebuttable fifteen-year presumption

that he is totally disabled due to pneumoconiosis, which was

resurrected by the Patient Protection and Affordable Care Act

(PPACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010). *

An employer “may rebut such presumption only by establishing

that (A) [the] miner does 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

*
Section 1556 of the PPACA, 124 Stat. at 260, amends the
Act by restoring the “fifteen-year presumption” contained in
Section 411(c)(4) of the Act, 30 U.S.C.A. § 921(c)(4). The
presumption provides that if a miner has been employed in an
underground coal mine for fifteen years or more, and if other
evidence demonstrates that he has “a totally disabling
respiratory or pulmonary impairment,” he is entitled to a
rebuttable presumption that he is totally disabled due to
pneumoconiosis. 30 U.S.C.A. § 921(c)(4). The renewed fifteen-
year presumption applies to claims filed under parts B and C of
the Act after January 1, 2005, that are pending after the
effective date of the PPACA, March 23, 2010. 124 Stat. at 260,
§ 1556(c).

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U.S.C.A. § 921(c)(4); see 20 C.F.R. § 718.305(a) (2013);

Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479-80 (6th

Cir. 2011).

Employer contends that the ALJ erred in his decision

to discredit its expert physicians’ opinions, which were offered

to rebut the fifteen-year presumption afforded to Sizemore. We

review the BRB’s and the ALJ’s legal conclusions de novo and

“independent[ly] review . . . the record to determine whether

the ALJ’s findings of fact were supported by substantial

evidence.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 207-

08 (4th Cir. 2000) (internal quotation marks omitted). Subject

to the substantial evidence requirement, this Court defers to

the ALJ’s credibility determinations and “evaluation of the

proper weight to accord conflicting medical opinions.” Harman

Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d

305, 310 (4th Cir. 2012) (internal quotation marks omitted).

The ALJ is not bound to accept any medical expert opinion but

“must evaluate the evidence, weigh it, and draw his own

conclusions,” giving consideration to “the qualifications of the

experts, the opinions’ reasoning, their reliance on objectively

determinable symptoms and established science, their detail of

analysis, and their freedom from irrelevant distractions and

prejudices.” Underwood v. Elkay Mining, Inc., 105 F.3d 946,

949, 951 (4th Cir. 1997), superseded on other grounds as stated

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in Elm Grove Coal Co. v. Dir., Office of Workers’ Comp.

Programs, 480 F.3d 278, 287 (4th Cir. 2007).

It is the ALJ’s responsibility to make credibility

determinations. Harman Mining, 678 F.3d at 310. In this case,

the ALJ discredited Employers’ physicians on the issue of

whether Sizemore suffered from legal pneumoconiosis because

their explanations for discounting his lengthy history in the

coal mines as a cause of his emphysema were insufficient in

light of the science underlying the preamble to the regulations

implementing the Act. We have, in two recent cases, held that

an ALJ is permitted to rely on this preamble to assess

physicians’ credibility. Westmoreland Coal Co. v. Cochran, 718

F.3d 319, 323-34 (4th Cir. 2013); Harman Mining, 678 F.3d at

314-15. Thus, we conclude that the ALJ did not err in

consulting the preamble to discredit Employer’s experts on the

issue of legal pneumoconiosis. We also conclude that the ALJ

did not transform the rebuttable presumption into an

irrebuttable presumption by his reliance on the preamble.

Moreover, because the ALJ did not find Employer’s

physicians credible on the issue of legal pneumoconiosis, he

could not credit their opinions on the causation of total

disability absent “specific and persuasive reasons for

concluding that the doctor[s’] judgment on the question of

disability causation does not rest upon [their] disagreement

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with the ALJ’s finding . . . .” Toler v. E. Assoc. Coal Co., 43

F.3d 109, 116 (4th Cir. 1995). Thus, we conclude that the ALJ

did not err in finding that Employer failed to rebut the

fifteen-year presumption afforded to Sizemore. See 30 U.S.C.A.

§ 921(c)(4); 20 C.F.R. § 718.305(a).

Accordingly, we deny Employer’s petition for review.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

PETITION DENIED

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