Helen Mining Co. v. Director OWCP

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 09-3438
_____________

HELEN MINING COMPANY,
Petitioner

v.

DIRECTOR OWCP, UNITED STATES
DEPARTMENT OF LABOR; JOHN OBUSH,
Respondent
_______________

On Petition for Review of the Decision and Order of the
Benefits Review Board, United States Department of Labor
(BRB-1: No. 08-0671BLA)
_______________

ARGUED OCTOBER 19, 2010

BEFORE: HARDIMAN, GREENAWAY, JR., and
NYGAARD, Circuit Judges.

(Filed: April 12, 2011)
William S. Mattingly, Esq. (Argued)
Jackson Kelly
150 Clay Street, Suite 500
Morgantown, WV 26507

Counsel for Petitioner

Robert J. Bilonick, Esq. (Argued)
Pawlowski Bilonick & Long
603 North Julian Street
P. O. Box 658
Ebensburg, PA 15931

Counsel for Respondent, John Obush

Helen Hart Cox, Esq.
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W., N-2117
Washington, DC 20210

Counsel for Respondent,
U. S. Department of Labor

_______________

OPINION OF THE COURT
_______________

NYGAARD, Circuit Judge.

2
 Helen Mining petitions this Court to review the United
States Department of Labor Benefits Review Board‟s
decision that affirmed an award of disability benefits under
the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, to miner
John Obush. Helen Mining asserts that Obush‟s claim is
time-barred and that the award is not supported by substantial
evidence. We will deny the petition for review.

I.

John Obush worked in the mines for forty-two years,
retiring in 1990 at age sixty-two. Helen Mining employed
Obush from 1975 to 1990. He worked last as a shuttle car
operator. On July 11, 1989, before retiring, Obush filed a
claim for black lung benefits. In support of O‟Bush‟s claim,
Dr. Phillip Turco opined that Obush had coal worker‟s
pneumoconiosis from exposure to coal dust during his
employment in the mines that resulted in permanent
disability. On May 23, 1991, however, Administrative Law
Judge Gerald Tierney denied the claim, pursuant to 20 C.F.R.
§ 718.202(a)(1)-(4), discrediting Dr. Turco‟s medical opinion
and relying upon two doctors with “qualifications superior to
Dr. Turco” who attributed Obush‟s pulmonary impairment to
smoking. Obush did not contest this decision.

Obush filed a subsequent claim for black lung benefits
on January 31, 2006.1 Five doctors examined Obush and/or

1
Department of Labor regulations specify that subsequent
claims may be filed where “there has been a material change
in conditions.” 20 C.F.R. § 725.309(d).

3
his medical records in connection with this claim. Three
doctors opined that Obush had a severe respiratory
impairment causing total disability arising from work-related
exposure to coal dust.2 Of the remaining two doctors, one
opined that he could neither find nor rule out that Obush‟s
severe respiratory impairment was due to his exposure to coal
dust. The last doctor opined that there was no evidence of
either clinical pneumoconiosis or legal pneumoconiosis.3

Helen Mining conceded that Obush has a totally
disabling respiratory impairment and that his condition
changed since the denial of his prior claim, but asserted his
claim was time-barred based upon the prior denial of benefits.
ALJ Thomas Burke issued a decision on May 29, 2008. He
determined that the claim was not time-barred, holding that
the statute of limitations does not apply to claims subsequent
to the initial claim. He then concluded that, although the x-
rays did not evince pneumoconiosis, the weight of medical

2
Two of these doctors found that the exam and records
supported a diagnosis of clinical pneumoconiosis, but made
separate conclusions that Obush‟s condition met the
definition of legal pneumoconiosis. The third doctor
diagnosed only legal pneumoconiosis. These exams occurred
between December, 2005 and March, 2006.
3
„“Legal pneumoconiosis‟ includes 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.” 20 C.F.R. § 718.201.

4
opinion evidence supported a determination of legal
pneumoconiosis. ALJ Burke awarded benefits.

Although the Board affirmed the award of benefits, it
concluded that the claim was not time-barred for reasons
different from those of ALJ Burke. The Board held that the
statute of limitations applies to all claims (initial and
subsequent), but concluded that Dr. Turco‟s finding of
pneumoconiosis, which was the basis of Obush‟s 1989 claim,
was legally insufficient to trigger the statute of limitations as
to the present case because ALJ Tierney discredited Dr.
Turco‟s finding and denied the claim.

Helen Mining now petitions this Court to review the
decision of the Benefits Review Board, arguing that the 2006
claim was time-barrred and, in the alternative, that substantial
evidence does not support an award of benefits. We will
deny the petition.
II.

We first address the statute of limitations, which reads
as follows:4
Any claim for benefits by a miner
under this section shall be filed

4
The Benefits Review Board had jurisdiction to review the
final decision of the ALJ under 33 U.S.C. § 921(b)(3), as
incorporated into the Black Lung Benefits Act, 30 U.S.C. §§
901-945, by 30 U.S.C. § 932(a). “We have jurisdiction over
the [Benefit Review Board's] final order pursuant to 33
U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a).”
Labelle Processing Co. v. Swarrow, 72 F.3d 308, 310 (3d Cir.
1995). Our review of questions of law is plenary. Id. at 313.

5
 within three years after whichever
of the following occurs later—(1)
a medical determination of total
disability due to pneumoconiosis .
...

30 U.S.C. § 932(f) (emphasis added). The implementing
regulation states the following:

(a) A claim for benefits filed
under this part by, or on behalf of,
a miner shall be filed within three
years after a medical
determination of total disability
due to pneumoconiosis which has
been communicated to the miner
or a person responsible for the
care of the miner, or within three
years after the date of enactment
of the Black Lung Benefits
Reform Act of 1977, whichever is
later. There is no time limit on
the filing of a claim by the
survivor of a miner.

20 C.F.R. § 725.308 (emphasis added). At issue is whether
the phrase “a medical determination of medical disability due
to pneumoconiosis”—a phrase that is not defined in either the
statute or the regulation—mandates a conclusion that Obush‟s
claim is time-barred.

The Board, relying upon the reasoning of three courts
of appeals, held that “a medical determination of total

6
disability due to pneumoconiosis predating a prior, final
denial of benefits is deemed a misdiagnosis and thus, cannot
trigger the statute of limitations for filing a subsequent
claim.” J.O. v. Helen Mining, 24 B.L.R. 1-119, 1-122 (Ben.
Rev. Bd. June 24, 2009); see Arch of Kentucky, Inc. v.
Director, Officer of Workers’ Compensation Programs, 556
F.3d 472, 483 (6th Cir. 2009); Consolidated Coal Co. v.
Williams, 453 F.3d 609, 618 (4th Cir. 2006); Wyoming Fuel
Co. v. Director, Office of Workers’ Compensation Programs,
90 F.3d 1502, 1507 (10th Cir. 1996). Upon this basis, the
Board decided that Obush‟s 2006 claim was not time-barred.
We are persuaded by the analyses of these courts of appeals
and agree with the Board‟s conclusion that the statute of
limitations does not bar Obush‟s 2006 claim.

Though the time-bar issue is one of first impression,
we have already addressed a related issue with respect to
black lung benefit claims, and so we begin there. In Labelle
Processing Co. v. Swarrow, the employer asserted—based
upon the denial of the miner‟s initial claim—that res judicata
barred an award of benefits on the subsequent claim. 72 F.3d
308 (3d Cir. 1995). Noting that a subsequent claim must be
grounded in evidence of a material change in the miner‟s
condition, we held that “new facts (i.e., events occurring after
the events giving rise to the earlier claim) may give rise to a
new claim, which is not precluded by the earlier judgment.”
Id. at 314. We then concluded that:

Although it is true that Swarrow is
now precluded from collaterally
attacking the prior denial of
benefits, Swarrow may file a new
claim, asserting that he is now

7
 eligible for benefits because he
has become totally disabled due to
coal miner‟s pneumoconiosis and
that his disability occurred
subsequent to the prior
adjudication.

Id. By the same reasoning, because we are required to respect
the factual findings and legal conclusions in earlier
adjudicated claims, we must accept an ALJ‟s conclusion that
a medical opinion offered in support of that claim is
discredited. On this basis, we regard such a medical opinion
as a misdiagnosis. See Arch of Kentucky, 556 F.3d at 483.

Helen Mining argues that construing section 932 in a
manner that is consistent with Arch of Kentucky is contrary to
the plain language of the statute and contravenes
Congressional intent. Quoting United States v. Kubrick,
Helen Mining states that “[i]t goes without saying that
statutes of limitations often make it impossible to enforce
what were otherwise perfectly valid claims.” 444 U.S. 111,
125 (1979). However, as acknowledged in Kubrick, statutes
of limitations must be given effect in a manner that is
consistent with legislative intent. Id.

“The courts have repeatedly recognized that the
remedial nature of the statute requires a liberal construction of
the Black Lung entitlement program to ensure widespread
benefits to miners and their dependents.” Keating v.
Director, Office of Workers’ Compensation Programs, 71
F.3d 1118, 1122 (3d Cir. 1995). Consequently, “the Act must
be applied in a manner which assures compensation to every
miner who suffers from any of the several lung impairments

8
covered by the Black Lung Benefits Act.” Pavesi v. Director,
Office of Workers’ Compensation Programs, 758 F.2d 956,
965 (3d Cir. 1985). As the Court of Appeals for the Sixth
Circuit has stated, the Act must be read “to include the largest
numbers of miners as benefit recipients.” Peabody Coal Co.
v. Hill, 123 F.3d 412, 415 (6th Cir. 1997).

Moreover, with regard to the implementing
regulations, 20 C.F.R. § 718.201 states that “[f]or purposes of
this definition, „pneumoconiosis‟ is recognized as a latent and
progressive disease which may first become detectable only
after the cessation of coal mine dust exposure.” Helen
Mining cites a decision of the Court of Appeals for the
District of Columbia for the proposition that pneumoconiosis
cannot be properly characterized as latent and progressive.
See National Mining Association v. Department of Labor, 292
F.3d 849, 863-64 (D.C. Cir. 2002). However, Helen Mining
misreads the decision. See Midland Coal Co. v. Director,
Office of Workers’ Compensation Programs, 358 F.3d 486,
490-91 (7th Cir. 2004).5 Moreover, this regulation provides

5
“Midland interprets this language as a positive command
that a claimant bringing a subsequent application must prove
that she suffers from the particular kinds of pneumoconiosis
that have been found in the medical literature to be
progressive and/or latent. But that is not what the D.C.
Circuit said, and more importantly, the regulation itself is not
so limited. The rule is instead designed to „prevent[ ]
operators from claiming that pneumoconiosis is never latent
and progressive.‟” Midland Coal Co. v. Director, Office of
Workers’ Compensation Programs, 358 F.3d at 491 (quoting
National Mining Association, 292 F.3d at 863).

9
solid support for reading the statute of limitations in an
expansive manner to ensure that any miner who has been
afflicted with the disease, including its progressive form, is
given every opportunity to prove he is entitled to benefits.

Finally, a restrictive interpretation of the statute of
limitations, as suggested by Helen Mining, would be in
tension with the regulation that enables miners to file
subsequent claims. See 20 C.F.R. § 725.309(d).6 The very
fact that successive claims are permitted—on evidence of
material changes to the health of a miner—makes an
interpretation of the statute of limitations that effectively
precludes such claims untenable.7 Therefore, we regard the
analysis of section 932 provided in Consolidated Coal, Arch

6
20 CFR § 725.309(d). “A subsequent claim shall be
processed and adjudicated in accordance with the provisions
of subparts E and F of this part, except that the claim shall be
denied unless the claimant demonstrates that one of the
applicable conditions of entitlement (see §§ 725.202(d)
(miner), 725.212 (spouse), 725.218 (child), and 725.222
(parent, brother, or sister)) has changed since the date upon
which the order denying the prior claim became final.”
7
Moreover, as stated by the Court of Appeals for the Fourth
Circuit: “[W]e note that [the doctor‟s] diagnosis, which
related solely to [the miner‟s] condition in 1995, could not
have sustained a subsequent claim that his condition had
materially worsened since the initial denial of benefits in
1996. It would be illogical and inequitable to hold that a
diagnosis that could not sustain a subsequent claim could
nevertheless trigger the statute of limitations for such a
claim.” Consolidated Coal Co., 453 F.3d at 617-18.

10
of Kentucky, and Wyoming Fuel as consistent with, both, a
legislative intent to favor miners and the regulatory provision
that allows subsequent claims.

Here, the ALJ denied Obush‟s 1989 claim, explicitly
discrediting the diagnosis of pneumoconiosis by Dr. Turco.
Because Dr. Turco‟s medical opinion was repudiated, we
conclude as a matter of law that it is a misdiagnosis and
cannot be a “medical determination” of pneumoconiosis, as
set out in section 923. Therefore, the final denial of Obush‟s
1989 claim for black lung benefits reset the limitations clock
as to subsequent claims.8 Accordingly, we will hold that the
Board correctly decided that Dr. Turco‟s medical opinion did
not trigger the three-year statute of limitations in section 923
as to Obush‟s subsequent 2006 claim for benefits. Obush‟s
instant claim is not time-barred.

III.

Helen Mining argues in the alternative that ALJ Burke
failed to adequately evaluate the evidence in Obush‟s 2006
claim, thereby errantly concluding that he had legal
pneumoconiosis. “We review the decisions of the [Benefits
Review] Board for errors of law and to assure that it has
adhered to its own standard of review.” BethEnergy Mines,
Inc. v. Director, Office of Workers’ Compensation Programs,
39 F.3d 458, 462-63 (3d Cir. 1994). We have plenary review

8
See Arch of Kentucky, 556 F.3d at 483 (“[I]f a positive
medical diagnosis, though found wanting by the adjudicator,
was deemed to be sufficient to start the clock, the correctness
of the adjudicator‟s denial would be called into question, at
least implicitly.”).

11
of the Board‟s legal determinations. Id. at 463. The Benefits
Review Board is bound by an ALJ's factual findings “if they
are rational, supported by substantial evidence, and consistent
with applicable law.” Labelle Processing Co., 72 F.3d at 313.
In instances where a party challenges a finding of fact by the
Board or the ALJ, “we must independently review the record
„and decide whether the ALJ‟s findings are supported by
substantial evidence.‟” Kertesz v. Crescent Hills Coal Co.,
788 F.2d 158, 163 (3d Cir. 1986) (quoting Walker v.
Universal Terminal & Stevedoring Corp., 645 F.2d 170, 172
(3d Cir. 1981)); see also Soubik v. Director, Office of
Workers’ Compensation Programs, 366 F.3d 226, 233 (3d
Cir. 2004) (“Substantial evidence has been defined as such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”). As a result, we begin by
looking at the decision of the ALJ.

The record contains reports from five physicians
submitted with respect to Obush‟s 2006 claim: Dr. Schaaf
and Dr. Begley, who examined Obush at his request; Dr. Fino
and Dr. Renn, who examined Obush at the request of Helen
Mining; and Dr. Martin, whose examination of Obush was
sponsored by the Department of Labor. ALJ Burke generally
found that the x-rays did not establish the existence of
pneumoconiosis, undermining diagnoses of clinical
pneumoconiosis made by Dr. Schaaf and Dr. Begley.

Curiously, however, Helen Mining argues that the lack
of x-ray evidence of clinical pneumoconiosis also undermines
the opinions of those physicians who separately concluded
that Obush‟s condition meets the definition of legal
pneumoconiosis. Helen Mining fundamentally misreads both

12
the record and the words of the ALJ. ALJ Burke stated the
following:

The medical opinion evidence
supports a finding of legal
pneumoconiosis. All of the
doctors of record have concluded
that the Claimant suffers from
emphysema, and the weight of the
evidence shows that the
emphysema arose from, was
significantly related to, or
substantially aggravated by his
significant coal dust exposure.

The findings of Drs. Schaaf and
Begley are well documented and
reasoned and accorded
determinative weight on the issue
of the cause of the emphysema.
Fields v. Island Creek Coal Co.,
10 B.L.R. 1-19 (1987). Drs.
Schaaf and Begley, both board
certified in pulmonary medicine,
have concluded that the miner‟s
coal dust was significantly related
to his development of
emphysema. Both relied upon the
miner‟s long-term occupational
exposure to coal dust as well as
the remoteness and moderation of
the miner‟s prior smoking habit to
justify their attribution of the

13
 miner‟s disabling obstructive
impairment to his work as a coal
miner. Though both found
clinical pneumoconiosis, they
both concluded that their
diagnosis of COPD arising from
coal dust exposure did not depend
upon radiographic evidence of
coal workers‟ pneumoconiosis.
Their findings were echoed by Dr.
Martin. Moreover, Dr. Fino could
not rule out the Claimant‟s
significant dust exposure as a
cause of his respiratory disease.

In contrast to Drs. Begley and
Schaaf, Dr. Fino's opinion on the
presence of pneumoconiosis is
equivocal. see [sic] e.g., Griffith
v. Director, OWCP, 49 F.3d 184
(6th Cir. 1995).

J.O. v. Helen Mining, 2007 BLA No. 5205, 11 (May 29,
2008) (footnote omitted).9

9
http://www.oalj.dol.gov/Decisions/ALJ/BLA/2007/JO_v_HE
LEN_MINING_CO_DIR-
_2007BLA05205_(MAY_29_2008)_095355_CADEC_SD_fi
les/css/JO_v_HELEN_MINING_CO_DIR-
_2007BLA05205_(MAY_29_2008)_095355_CADEC_SD.H
TM

14
 We read in this decision a clear statement that the
award of black lung benefits is based solely on a finding of
legal pneumoconiosis. We also regard the statements of Dr.
Schaaf and Dr. Begley as unequivocally establishing that their
medical opinions of legal pneumoconsiosis exist independent
of their finding of clinical pneumoconiosis and their
interpretation of the x-ray evidence. Nonetheless, citing to
Island Creek Coal Co. v. Compton, 211 F.3d 203, 211-12 (4th
Cir. 2000), Helen Mining insists that the discredited readings
of the x-ray evidence entirely discredit not only their
diagnoses of clinical pneumoconiosis, but also their
conclusions that the record supports legal pneumoconiosis.

In Island Creek, however, the x-ray was the sole basis
for the doctor‟s diagnosis of coal worker‟s pneumoconiosis.
Id. Here, both physicians not only stated that their opinion of
legal pneumoconiosis was not based upon x-rays, but they
also provided data from physical examinations, pulmonary
function tests, blood gas studies, as well as analyses of
Obush‟s smoking habit, medical history, and employment
history that supported the determination of legal
pneumoconiosis. Helen Mining‟s argument cannot be
reconciled with the record.

Helen Mining makes the same mistake when it asserts
that the ALJ neglected his obligation to state the reasons for
his decision, creating instead a “silent presumption” that coal
mine employment causes pulmonary disease. To the
contrary, ALJ Burke explains in detail his rationale for
crediting the doctors‟ findings of legal pneumoconiosis,
noting the qualifications of the doctors and the data from the

15
examinations of Dr. Schaaf, Dr. Begley, and Dr. Martin.10
The ALJ states that Dr. Schaaf, Dr. Begley, and Dr. Martin
ruled out bronchitis and asthma due to the medically
insignificant response Obush showed to bronchodilators and
the lack of any other significant clinical indicia of these
ailments. Dr. Schaaf explicitly stated that his conclusion was
consistent with the standards of the American Thoracic
Society. The ALJ summarized Dr. Schaaf‟s assessment of
Obush‟s smoking history as follows:

Dr. Schaaf noted that as between
coal dust exposure and smoking,
it is not possible to ascertain the
cause of the miner‟s obstructive
impairment from objective
testing, but he discounted the
influence of smoking, concluding
that the smoking was too remote
and of insufficient severity to be
more than a small contributor to
the miner‟s severe air flow
obstruction. Dr. Schaaf
concluded that the Claimant‟s
pulmonary deterioration as
evidenced by his declining FEV-1
and FEV-1/FVC results during
1989, 1990 and the present were

10
We note also that Dr. Fino‟s opinion was equivocal on
whether the record supported a finding of legal
pneumoconiosis.

16
 consistent with a disease resulting
from coal dust exposure . . . .

J.O. v. Helen Mining, 2007 BLA No. 5205, 8. The ALJ
documented that Dr. Begley and Dr. Martin both regarded
Obush‟s smoking history as significant. However, Dr. Martin
cited a respected medical text in support of his conclusion
that respiratory deterioration due to smoking ends once
smoking ends. Both doctors assessed their clinical findings in
light of Obush‟s history and concluded that his pulmonary
impairment arose from work-related coal dust exposure based
upon their clinical observations. Dr. Martin‟s opinion was
also based upon his years of treating patients with this
condition.

From all of this, we conclude that the ALJ did not
create any “silent presumption,” but rather detailed a
collection of evidence—physical exams, pulmonary function
and blood gas tests, and analyses of other possible causes that
included Obush‟s smoking history—to support his conclusion
that Obush had a chronic lung disease arising out of his
exposure to coal dust from his coal mine employment. As
such, we conclude that the ALJ did consider the relevant
medical evidence and that the ALJ's finding of legal
pneumoconiosis was supported by substantial evidence.11 See
20 C.F.R. § 718.202(a)(4).

11
Helen Mining also argues that the ALJ failed to resolve
conflicts between the opinions of Drs. Schaaf, Begley, and
Martin, and the opinion of Dr. Renn. However, as we
conclude below that the ALJ did not err in his review of Dr.
Renn‟s opinion, we do not find any merit in this argument.

17
 Helen Mining next complains that ALJ Burke errantly
discredited the medical opinion of Dr. Renn, proffered by
Helen Mining, concluding that the record did not support
evidence of legal pneumoconiosis. When asked in deposition
why Obush does not suffer from legal pneumoconiosis, the
ALJ quoted testimony of Dr. Renn:

“Well, this would have to be a
direct result of coal mine dust
exposure having either caused or
contributed to an existing
respiratory condition and there is
no causation or contribution from
coal mine dust exposure because,
number one, he doesn‟t have
radiological evidence of coal
workers‟ pneumoconiosis.
Therefore, he could not have the
focal emphysema. Without the
focal emphysema, it could not be
contributing to the emphysema
caused by his tobacco smoking
and, as I‟ve already said, the
asthma that he has is a disease of
the general population.”

J.O. v. Helen Mining, 2007 BLA No. 5205, 11-12. The ALJ
gave less weight to Dr. Renn‟s opinion because he found that
Dr. Renn‟s statement was inconsistent with 20 C.F.R. §
718.202(1)(4) and with the preamble to the regulations.
Helen Mining argues both that the ALJ misconstrued Dr.
Renn‟s statement and that the preamble to the regulations

18
lacks the force of law and cannot provide a legal basis to give
an opinion less weight.

After reviewing the entire record relating to Dr. Renn‟s
opinion, we conclude that the ALJ fairly read Dr. Renn‟s
words as stating that a finding of radiographic
pneumoconiosis is a prerequisite to a determination of legal
pneumoconiosis. Moreover, the ALJ reasonably concluded
that this position is at odds with 20 C.F.R. § 718.202(a)(4)
(“A determination of the existence of pneumoconiosis may
also be made if a physician, exercising sound medical
judgment, notwithstanding a negative X-ray, finds that the
miner suffers or suffered from pneumoconiosis as defined in
§ 718.201.”). Helen Mining never addresses this patent
conflict. Moreover, Helen Mining‟s argument regarding the
legal gravamen of the preamble misses the point. The ALJ‟s
reference to the preamble to the regulations, 65 Fed. Reg.
79941 (Dec. 20, 2000), unquestionably supports the
reasonableness of his decision to assign less weight to Dr.
Renn‟s opinion. See Midland Coal Co. v. Director, Office of
Workers’ Compensation Programs, 358 F.3d 486, 490 (7th
Cir. 2004). For these reasons, we reject Helen Mining‟s
assertion that the ALJ‟s consideration of Dr. Renn‟s opinion
was unjust.

Helen Mining finally asserts that ALJ Burke erred by
reconsidering facts that were already determined by ALJ
Tierney in Obush‟s 1989 claim. Helen Mining characterizes
ALJ Burke‟s finding that Obush smoked 25 pack years to be
error because it is at odds with prior factual findings that did
not change (since all agree that Obush stopped smoking
before the 1989 claim). We note, however, that ALJ Tierney
did not make a “pack year” finding. Rather, ALJ Tierney

19
merely gave a range for Obush‟s smoking as averaging from
1 to 1 ½ packs per day between 1944 and 1970. Similarly,
ALJ Burke estimated that Obush smoked for “approximately
25 years,” noting that he smoked 1 pack per day
“occasionally more and occasionally less.” J.O. v. Helen
Mining, 2007 BLA No. 5205, 2. We do not find any
appreciable conflict in these estimations.

ALJ Burke did state that Obush quit smoking in 1968,
while ALJ Tierney stated that he quit in 1970. It was error
for ALJ Burke to admit a different date into the record, but
we regard it—and any potential impact that it may have had
on ALJ Burke‟s finding of 25 pack years—as harmless. See
Freeman United Coal Min. Co. v. Cooper, 965 F.2d 443, 449
(7th Cir. 1992). Both decisions estimate that Obush smoked
approximately 1 pack per day for approximately 25 years and
both decisions portray Obush as having quit smoking many
years before he quit working in the coal mines. Accordingly,
ALJ Burke‟s error—stating that Obush quit smoking in 1968
rather than 1970—is not a sufficient basis to vacate the
decision of the Board.

Having determined that substantial evidence supports
the decision of the ALJ, we also conclude that the Board
adhered to its scope of review, and did not err by affirming
the ALJ‟s award of black lung benefits to Obush.

IV.

For all of these reasons, we will deny the petition for
review.

20