Westmoreland Coal Company, Inc v. DOWCP

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1198

WESTMORELAND COAL COMPANY, INCORPORATED,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; HASKELL SWINEY,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(12-0126-BLA)

Submitted: September 19, 2013 Decided: September 27, 2013

Before MOTZ, KEENAN, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Paul E. Frampton, Thomas M. Hancock, BOWLES RICE LLP,
Charleston, West Virginia, for Petitioner. Joseph E. Wolfe,
Ryan C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS,
Norton, Virginia, for Respondent Haskell Swiney.

Unpublished opinions are not binding precedent in this circuit.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 Haskell Swiney under the Black Lung

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

2013). We deny the petition for review.

We review the Board’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). “‘Substantial evidence is more than a mere

scintilla’; it is ‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id.

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

In conducting this review, we confine ourselves to the grounds

on which the Board based its decision. Daniels Co. v. Mitchell,

479 F.3d 321, 329 (4th Cir. 2007).

Subject to the substantial evidence requirement, we

defer 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,

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678 F.3d 305, 310 (4th Cir. 2012). 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 in Elm Grove

Coal Co. v. Dir., Office of Workers’ Comp. Programs, 480 F.3d

278, 287 (4th Cir. 2007).

If a miner was employed in underground coal mines for

fifteen or more years, has had a chest x-ray interpreted as

negative for complicated pneumoconiosis, and 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 (“fifteen-year presumption”). * 30

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

miner has established entitlement to the presumption, the

employer “may rebut such presumption only by establishing that

*
This presumption was restored by the Patient Protection
and Affordable Care Act, Pub. L. No. 111-148, § 1556, 124 Stat.
119, 260 (2010).

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(A) such 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 U.S.C.A.

§ 921(c)(4); see 20 C.F.R. § 718.305(a).

Employer does not dispute that Swiney was employed in

underground coal mines for fifteen or more years and that all of

the chest x-rays were interpreted as negative for complicated

pneumoconiosis. Employer does dispute that Swiney demonstrated

that he has a totally disabling respiratory or pulmonary

impairment. Specifically, Employer argues that the ALJ erred in

discounting the contrary medical opinions of its expert

physicians on the issue of total disability.

A miner may prove total disability through qualifying

pulmonary function tests, qualifying arterial blood gas studies,

a showing of cor pulmonale with right-sided congestive heart

failure, or medical opinions. 20 C.F.R. § 718.204(b)(2)(i)-(iv)

(2013); see 20 C.F.R. § 718.305(c) (requiring miner to prove

total disability in accordance with § 718.204). The ALJ must,

however, consider any contrary probative evidence in deciding

whether the miner has met his burden. 20 C.F.R.

§ 718.204(b)(2); see 30 U.S.C. § 923 (b) (“In determining the

validity of claims . . ., all relevant evidence shall be

considered . . . .”). “If contrary evidence does exist, the ALJ

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must assign the contrary evidence appropriate weight and

determine whether it outweighs the evidence that supports a

finding of total disability.” Lane v. Union Carbide Corp., 105

F.3d 166, 171 (4th Cir. 1997).

Upon review, we conclude that the ALJ complied with

the Administrative Procedure Act and fully discussed and

considered the opinions of Employer’s physicians in finding that

the medical opinions were insufficient contrary evidence to

outweigh the qualifying arterial blood gas studies that the ALJ

found established Swiney’s total disability. See Milburn

Colliery Co. v. Hicks, 138 F.3d 524, 532 n.9 (4th Cir. 1998)

(“An ALJ has discretion to disregard an opinion unsupported by a

sufficient rationale.”). We are not permitted to reweigh the

medical evidence. Id. at 536. Thus, we conclude that the ALJ

did not err in finding that Swiney was entitled to the fifteen-

year presumption.

The burden then shifted to Employer to affirmatively

“rebut such presumption only by establishing that (A) such 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 U.S.C.A. § 921(c)(4); see

20 C.F.R. 718.305(a); Morrison v. Tenn. Consol. Coal Co., 644

F.3d 473, 479-80 (6th Cir. 2011). Upon review of the evidence

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submitted in this case, we conclude that substantial evidence

supports the ALJ’s finding that Employer failed to affirmatively

rebut the presumption. See 20 C.F.R. 718.201(a)(2); Harman

Mining Co., 678 F.3d at 311. Thus, the ALJ did not err in

awarding benefits under the Act.

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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