In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐1330
CONSOLIDATION COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COM‐
PENSATION PROGRAMS and JAMES
BURRIS,
Respondents.
Petition for Review of an Order of
the Benefits Review Board.
No. 11‐BLA‐0317
ARGUED NOVEMBER 1, 2012 — DECIDED OCTOBER 8, 2013
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
ROVNER, Circuit Judge. James Burris worked in various
capacities in coal mines for twenty‐three years. He twice
sought benefits under the Black Lung Benefits Act, 30 U.S.C.
§ 901 et seq. (“the Act”), abandoning his first claim in 2001, and
then pursuing a second claim in 2006. Following a hearing for
2 No. 12‐1330
the second claim, an Administrative Law Judge (“ALJ”)
determined that Burris was totally disabled by pneumoconiosis
arising from his coal mining employment and that he qualifies
for benefits under the Act. The Benefits Review Board
(“Board”) affirmed that decision. The employer, Consolidation
Coal Company (“Consolidation”), seeks review of that deci‐
sion, contending that (1) the ALJ erred in finding that Burris
established a material change in condition following his first,
abandoned claim; (2) the ALJ erred in concluding that Burris
proved fifteen years of surface mine employment in conditions
substantially similar to those that exist in underground mines;
and (3) the ALJ’s review of the employer’s evidence rebutting
a presumption of pneumoconiosis was not supported by
substantial evidence. We deny the petition for review.
I.
The Act provides federal benefits for coal miners who are
totally disabled by pneumoconiosis, “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). See also 20 C.F.R. § 718.202 (“Determining the exis‐
tence of pneumoconiosis”). To establish eligibility for benefits,
a coal miner must demonstrate that (1) he or she has pneumo‐
coniosis; (2) the pneumoconiosis arose out of coal mine
employment; (3) he or she is totally disabled; and (4) the
pneumoconiosis contributes to the total disability. 20 C.F.R.
§ 725.202(d). Together these are called “the conditions of
entitlement.” Because a miner’s physical condition can change
over time, a miner whose initial claim for benefits was denied
may bring a subsequent claim if he establishes that his condi‐
tion has changed. See 20 C.F.R. § 718.201(c) (noting that “‘pneu‐
No. 12‐1330 3
moconiosis’ is recognized as a latent and progressive disease
which may first become detectable only after the cessation of
coal mine dust exposure”). The regulations provide that a
subsequent claim “shall be denied unless the claimant demon‐
strates that one of the applicable conditions of entitlement …
has changed since the date upon which the order denying the
prior claim became final.” 20 C.F.R. § 725.309(d). See also
Consolidation Coal Co. v. Director, Office of Workers’ Compensation
Programs, 721 F.3d 789, 793 (7th Cir. 2013); Peabody Coal Co. v.
Spese, 117 F.3d 1001, 1008 (7th Cir. 1997) (en banc). For the
purposes of determining whether to allow a subsequent claim,
“a denial by reason of abandonment shall be deemed a finding
that the claimant has not established any applicable condition
of entitlement.” 20 C.F.R. § 725.409(c).
A coal miner may have either “clinical” or “legal” pneumo‐
coniosis. Consolidation Coal, 721 F.3d at 791; 20 C.F.R.
§ 718.201(a). Clinical pneumoconiosis “consists of those
diseases recognized by the medical community as pneumo‐
conioses, 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 employ‐
ment.” 20 C.F.R. § 718.201(a)(1). Legal pneumoconiosis is a
broader category that “includes any chronic lung disease or
impairment and its sequelae arising out of coal mine employ‐
ment.” 20 C.F.R. § 718.201(a)(2). A chronic lung disease can be
said to “arise out of coal mine employment” if it is “any
chronic pulmonary disease or respiratory or pulmonary
impairment significantly related to, or substantially aggravated
by, dust exposure in coal mine employment.” 20 C.F.R.
4 No. 12‐1330
§ 718.201(b). An earlier version of the Act contained a provi‐
sion creating a rebuttable presumption that coal miners (1)
with fifteen years’ employment in underground mines (or
surface mines with similar conditions), and (2) who suffered
from a totally disabling respiratory impairment, were totally
disabled due to pneumoconiosis. Consolidation Coal, 721 F.3d at
791; Pub. L. No. 92–303, § 4(c) (1972). In 1981, Congress
removed this presumption for new claims, but in 2010,
Congress revived the presumption for claims filed after
January 1, 2005 that were still pending on or after March 23,
2010. Consolidation Coal, 721 F.3d at 791‐92; Keene v. Consolida‐
tion Coal Co., 645 F.3d 844, 847 (7th Cir. 2011); 30 U.S.C.
§ 921(c)(4). Burris’s second claim (the one at issue here) fell
within this time period.
II.
In April 2001, ten years after stopping coal mine work,
Burris first applied for Social Security retirement benefits. The
clerk who assisted him in applying for Social Security benefits
also prepared a black lung benefits application for him, telling
him that it was customary to file these claims for retired
miners. The claim was filed pro se and when the Department of
Labor (“Department”) requested additional information from
Burris, he felt intimidated by the process and let the claim
lapse. He did not respond to any requests by the Department’s
district director (“Director”) that he submit medical evidence,
authorize medical testing and release medical records. The
Director considered the claim abandoned after Burris failed to
respond to an order to show cause why the claim should not be
denied by reason of abandonment, and the claim was dis‐
missed in November 2001.
No. 12‐1330 5
In February 2006, Burris filed a second claim, the one at
issue here. The Director issued a proposed decision awarding
benefits in January 2007. Consolidation then requested a
hearing before an ALJ, which was held in October 2009.
Because this was a “subsequent” claim, before it could be
decided on the merits, Burris was required by the regulations
we described above to demonstrate that one of the applicable
conditions of entitlement had changed since the date upon
which the order denying the prior claim became final. Because
Burris’s first claim resulted in a denial by reason of abandon‐
ment, Burris was deemed not to have “established any applica‐
ble condition of entitlement.” 20 C.F.R. § 725.409(c). Thus, he
could meet this burden by establishing a change in any of the
applicable conditions of entitlement after November 2001,
when his first claim was denied. In its Employer’s Post‐Hearing
Memorandum to the ALJ, Consolidation conceded that, having
abandoned his prior claim, Burris needed only to demonstrate
a change in any of the conditions of entitlement, and that
Burris had met the burden by demonstrating that he was
totally disabled. Employer’s Post‐Hearing Memorandum, at 27.
See also 20 C.F.R. § 725.202(d) (noting that one of the conditions
of entitlement is that the miner is totally disabled). Unsurpris‐
ingly, the ALJ took Consolidation at its word and determined
that, in light of the employer’s concession, as well as in
consideration of the record evidence, Burris “has established
a material change in condition from his first claim, denied on
November 26, 2001,” and his claim could thus proceed. In re
Burris, Decision and Order Awarding Benefits (hereafter “Deci‐
sion”), January 6, 2011, at 4.
6 No. 12‐1330
With Burris having met the standard for bringing a subse‐
quent claim, the ALJ proceeded to consider the claim on the
merits. At the hearing, Burris established that he worked for
Consolidation between 1974 and 1991. His employment with
Consolidation was not continuous; he was laid off twice and
worked for coal construction companies intermittently. He
worked for Bollmeier Construction from 1966 to 1970, and
again in 1975 and 1976. H&H Construction employed Burris
intermittently between 1972 and 1975. In 1976, he worked for
McNally Wellman for four months. Burris performed a variety
of duties during his coal mine employment including pan
operator, welder, truck driver, machine operator, driller and
repairman.1 The work he performed often did not match his
1
We take this opportunity to remind lawyers that federal judges are
generalists who are not necessarily familiar with the industry‐specific
jargon that lards the briefs in this case. See Chicago Truck Drivers, Helpers &
Warehouse Workers Union (Independent) Pension Fund v. CPC Logistics, Inc.,
698 F.3d 346, 350 (7th Cir. 2012) (“Many appellate lawyers write briefs and
make oral arguments that assume that judges are knowledgeable about
every field of law, however specialized. The assumption is incorrect.
Federal judges are generalists.”). Briefs should include definitions of
industry‐specific terms on their first use. The briefs here declare without
context or explanation that the claimant “worked at the tipple,” was a “pan
or scraper operator,” drove a “gob truck,” was a welder “on the dragline,”
and conducted repairs at the “underground hopper,” for example. To
provide context, we offer this background on the common use of these
terms in the coal industry: A tipple is a structure where coal is cleaned and
loaded in railroad cars or trucks. Webster’s Unabridged Dictionary of the
English Language, RHR Press (2001). The tipple is “a notoriously dusty area
where coal is crushed for shipment to customers.” Consolidation Coal Co. v.
Director, Office of Workers’ Compensation Programs, 294 F.3d 885, 888 (7th Cir.
(continued...)
No. 12‐1330 7
job title, however. At Consolidation, Burris worked at surface
rather than underground mines. The parties agreed that he
should be credited with twenty‐three years of coal mine
employment but disagreed regarding the degree to which he
was exposed to coal dust at the surface mines. The ALJ
credited Burris’s testimony regarding the dusty conditions at
Consolidation and at Bollmeier. At Consolidation, the ALJ
found, Burris was exposed to coal and rock dust during
extensive work on the hopper, which was located under‐
ground. He was also exposed to a significant amount of coal
dust while conducting repairs at the tipple, where he fre‐
quently worked. The ALJ also credited Burris’s testimony that
he was exposed to rock and coal dust more than fifty percent
of the time during his five years at Bollmeier. Combined with
his nearly seventeen years of significant coal dust exposure at
Consolidation, the ALJ concluded that Burris established more
than fifteen years of underground coal mine employment or its
equivalent. Decision, at 12. Burris was also a regular cigarette
1
(...continued)
2002). The government tells us without contradiction from the parties that
a pan or scraper machine is “an earth mover used in reclamation.” Brief for
the Federal Respondent, at 13. “Gob” refers to “refuse from the coal,
consisting of coal and impurities, such as sulphur balls.” Old Ben Coal Co.
v. Luker, 826 F.2d 688, 689 (7th Cir. 1987). “A dragline is a large stripping
machine that removes surface materials, such as rock and dirt, which cover
the coal, in order to access and remove the coal from the mine pit.” Amax
Coal Co. v. United Mine Workers of America, Intern. Union, 92 F.3d 571, 572
(7th Cir. 1996). A hopper is a funnel‐shaped chamber or bin in which coal
is stored temporarily; it is filled through the top and dispensed through the
bottom. Webster’s Unabridged Dictionary of the English Language, RHR
Press (2001).
8 No. 12‐1330
smoker. The ALJ resolved the conflicting evidence in the
record regarding the number of “pack years” that Burris
smoked by crediting Burris’s testimony under oath that he
smoked a pack a day for forty‐five years.2
Eventually, Burris developed a number of health problems
including heart and lung disease. In determining whether
Burris established total disability, the ALJ first noted that
Consolidation conceded that Burris was totally disabled. For
the sake of completeness, the ALJ then considered record
evidence including x‐rays, pulmonary function tests, arterial
blood gas studies, CT scans and the opinions of five doctors.
See 20 C.F.R. § 718.204(b)(2) (setting forth the medical criteria
for establishing a miner’s total disability). The ALJ concluded
that the “overwhelming majority” of the pulmonary function
tests in the record (ten out of fourteen) established that Burris
suffers from a totally disabling respiratory impairment. See 20
C.F.R. § 718.202(b)(2)(i). The arterial blood gas studies did not
meet the regulatory standards for total disability, and Burris
could not prove that he suffered from right‐sided congestive
heart failure. See 20 C.F.R. § 718.204(b)(2)(ii)‐(iii). But the ALJ
noted that total disability could also be established under the
regulations by reasoned medical opinions, and all five physi‐
2
The number of pack years is calculated by multiplying the number of
packs of cigarettes smoked per day by the number of years the claimant
smoked. For example, if a claimant smokes two packs a day for twenty
years, that is considered forty pack years. A smoker who consumed one
pack a day for forty years would also be credited with forty pack years.
No. 12‐1330 9
cians3 who assessed Burris concluded that he was totally
disabled by a pulmonary or respiratory ailment and that he is
unable to return to work as a miner. See 20 C.F.R.
§ 718.202(b)(2)(iv). Based on all of this evidence (as well as the
employer’s concession), the ALJ concluded that Burris estab‐
lished that he was totally disabled and was entitled to the
benefit of the presumption in 30 U.S.C. § 921(c)(4). That is, the
ALJ concluded that Burris was presumed to have a totally
disabling respiratory impairment caused by pneumoconiosis,
a presumption the employer could attempt to rebut, as we will
discuss below.
III.
Notwithstanding its concession before the ALJ, Consolida‐
tion now claims that the ALJ erred in finding that Burris met
his burden of demonstrating a change in condition following
the denial of his prior claim. In effect, Consolidation argues
that, because abandoned claims are treated as if the claimant
failed to establish any applicable condition of entitlement, a
miner who was totally disabled by pneumoconiosis at the time
the first claim was abandoned could unfairly bring a second
claim even though no material change in the conditions of
entitlement had taken place. In this case, Consolidation
contends, Burris’s lung function actually improved between
the time he abandoned his first claim and the filing of the
subsequent claim. Although Consolidation concedes that
Burris currently is totally disabled, the company also maintains
3
One of the doctors examined Burris on the Director’s behalf, two were
hired by the employer, one was Burris’s treating physician, and the fifth
was retained by Burris to assess the medical records.
10 No. 12‐1330
that he was more totally disabled (if we assume for the pur‐
poses of this argument that “total disability” is a term subject
to gradation) when he filed his first claim. To allow his claim
to proceed, the company urges us to find, would be contrary
to law. For that reason, Consolidation requests that we find
that the regulations at 20 C.F.R. §§ 725.309(d) and 725.409 are
contrary to law with regard to abandoned claims, and that we
vacate the ALJ’s finding that Burris met his burden of demon‐
strating a change in one of the conditions of entitlement.
This is a remarkable argument for many reasons but we
begin with the most obvious and perhaps the most troubling:
Consolidation conceded this point in no uncertain terms before
the ALJ. In a section of its Employer’s Post‐Hearing Memorandum
titled “Claimant has proven a material change in condition
pursuant to § 725.309(d),” Consolidation stated:
Pursuant to 20 C.F.R. § 725.409, for purposes of
§ 725.309 a denial of a claim for abandonment shall
be deemed a finding that the claimant has not
established any applicable condition of entitlement.
Therefore a change in any of the conditions of
entitlement are sufficient for the § 725.309 finding of
a material change in condition.
Employer’s Post‐Hearing Memorandum, at 27. Consolidation also
conceded that “all of the physicians agreed that Mr. Burris was
totally disabled. Accordingly, Mr. Burris has proven a material
change in condition from the denial of his first claim in
November 2001.” Id.
Thus, not only did Consolidation concede the fact that
Burris was totally disabled, the company also waived the legal
No. 12‐1330 11
point regarding the proper reading of the regulations. That is,
Consolidation agreed before the ALJ that the regulations
allowed a previously abandoned claim to be brought again
under the very circumstances presented here. At no time prior
to this petition for review did Consolidation argue either (1)
that Burris is now somehow less totally disabled than he was
when he filed his first claim; or (2) that the amended regula‐
tions at 20 C.F.R. §§ 725.309(d) and 725.409 are contrary to law
with regard to abandoned claims. Having never raised these
arguments before, Consolidation waived them for the pur‐
poses of the petition for review. Spese, 117 F.3d at 1009 (when
failing to raise an issue before the ALJ and failing to develop
the record on the point, the employer waives the matter on
review). See also Pole v. Randolph, 570 F.3d 922, 937 (7th Cir.
2009) (a party may not raise an issue for the first time on
appeal). Moreover, stipulations and concessions bind those
who make them and Consolidation is therefore bound by its
concession below that Burris is totally disabled and has met his
burden of demonstrating a change in one of the conditions of
entitlement. Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063,
1068 (7th Cir. 2000) (voluntary stipulations bind the parties);
River v. Commercial Life Ins. Co., 160 F.3d 1164, 1173 (7th Cir.
1998) (same). Consolidation has offered no argument for
making an exception to these well‐established rules. In light of
Consolidation’s previous factual and legal concessions, as well
as its waiver of the issue, the argument is utterly frivolous.
The frivolousness becomes even more apparent if we look
past the obvious waiver and consider the claim on the merits.
Consolidation is asking us to conclude that two federal
regulations are contrary to law. Yet Consolidation failed to
12 No. 12‐1330
identify the statute to which the regulations are contrary in its
briefs. When asked at oral argument to identify what law the
regulations are contrary to, Consolidation’s counsel replied, “I
can’t point to a specific statute for you right now.” Oral
Argument at 5:32‐5:55. Nor has Consolidation attempted to
identify any such statute following oral argument. Moreover,
Consolidation did not cite the relevant case law or standard by
which we determine if federal regulations are contrary to law.
See Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842‐43 (1984) (if Congress has directly spoken
to the precise question at issue, then a court must follow that
clear guidance, but if the statute is silent or ambiguous, the
court must defer to authoritative agency interpretations of the
law); Cece v. Holder, — F.3d —, —; 2013 WL 4083282, *3 (7th
Cir. 2013) (en banc) (same); Spese, 117 F.3d at 1006 (we defer to
the agency’s reasonable interpretation of a statute unless the
agency’s interpretation conflicts with the statute). When asked
at oral argument whether the regulations Consolidation
challenged were permissible interpretations of the statute,
counsel replied, “Yes.” Oral Argument, at 5:55‐6:16. To this
day, Consolidation has offered no reason to forgo the usual
Chevron analysis, and has failed to withdraw its concession at
oral argument that the regulations are permissible interpreta‐
tions of the statute.
Moreover, Consolidation’s suggested approach is contrary
to that taken by our colleagues in the Sixth Circuit. See Cumber‐
land River Coal Co. v. Banks, 690 F.3d 477 (6th Cir. 2012).
Consolidation urges us to hold that the ALJ, in determining
whether a claimant demonstrates a material change in one of
the conditions of entitlement, should compare the evidence of
No. 12‐1330 13
the miner’s medical condition at the time of filing the earlier
claim with subsequent medical records to determine if the
miner’s condition has improved or deteriorated. In Cumberland,
the Director argued that 20 C.F.R. § 725.309(d) plainly dis‐
penses with the requirement that an ALJ compare the new
evidence with the evidence from the previously‐denied claim.
The Director instead asserted that the regulation “does not
authorize, much less compel, an ALJ to compare new evidence
with old evidence as part of the change in conditions analysis.”
Cumberland, 690 F.3d at 485. “Rather, the ALJ should compare
the new evidence of the miner’s physical condition ‘with the
conclusions reached in the prior claim.’” Cumberland, 690 F.3d
at 485 (quoting U.S. Steel Mining Co., LLC v. Director, OWCP,
386 F.3d 977, 989 (11th Cir.2004)). The Sixth Circuit adopted the
agency’s reasonable interpretation of the regulation and
construed the term “change” to mean disproof of the continu‐
ing validity of the original denial, rather than the actual
difference between the bodies of evidence presented at
different times:
Under this definition, the ALJ need not compare the
old and new evidence to determine a change in
condition; rather, he [or she] will consider only the
new evidence to determine whether the element of
entitlement previously found lacking is now pres‐
ent.
Cumberland, 690 F.3d at 486. We see no reason to create a circuit
split over the ill‐formed argument that Consolidation presses
here.
14 No. 12‐1330
Finally, we note that our recent decision in another case
involving Consolidation provides an additional basis for
concluding that Burris has met his burden of demonstrating a
change in one of the conditions of entitlement. See Consolidation
Coal Co. v. Director, Office of Workers’ Compensation Programs,
721 F.3d 789 (7th Cir. 2013). In that case, we considered the
impact of the restoration of the fifteen year presumption on the
subsequent claim analysis. Consolidation Coal, 721 F.3d at 793.
We noted that “a new application for benefits is permissible
when a grant of a new application would be consistent with
the conclusion that the denial of the earlier application was
correct.” Consolidation Coal, 721 F.3d at 793 (citing Spese, 117
F.3d at 1008). We saw “no reason why a subsequent change
analysis should treat a change in the applicable law any
differently than a material change in the physical condition of
the miner. In either situation, it is possible to say that the initial
denial was correct but that the miner is now entitled to bene‐
fits.” Consolidation Coal, 721 F.3d at 794. We concluded,
therefore, that the fifteen year presumption could be used to
show a change in condition. As we will discuss below, Burris
met the conditions for the fifteen year presumption and thus
met the subsequent claim requirements on that basis alone.
IV.
We find no merit in Consolidation’s remaining arguments.
The company contends that the ALJ’s finding that Burris
proved fifteen years of surface mine employment in conditions
substantially similar to underground mines was not supported
by substantial evidence. Consolidation also maintains that the
ALJ erred in concluding that the company failed to rebut the
fifteen year presumption. We will not overturn the ALJ’s
No. 12‐1330 15
decision if it is rational, supported by substantial evidence, and
consistent with governing law. Consolidation Coal, 721 F.3d at
793; Keene, 645 F.3d at 848.
A.
As we noted above, section 921(c)(4) of the Act creates a
rebuttable presumption of total disability due to pneumoconio‐
sis for miners who meet certain conditions. In particular, even
if the miner had a chest x‐ray that was interpreted as negative
for pneumoconiosis, if the miner demonstrates (1) that he was
employed for fifteen years or more in one or more under‐
ground coal mines; and (2) if other evidence demonstrates the
existence of a totally disabling respiratory or pulmonary
impairment, then “there shall be a rebuttable presumption that
such miner is totally disabled due to pneumoconiosis.” 30
U.S.C. § 921(c)(4). For miners who worked in surface rather
than underground mines, the miner may meet the first
requirement by demonstrating that the conditions of a miner’s
employment in a surface mine “were substantially similar to
conditions in an underground mine.” 30 U.S.C. § 921(c)(4).
In determining Burris’s level of exposure to coal dust
during his nearly seventeen years at Consolidation, the ALJ
credited Burris’s testimony that he worked extensively on the
hopper and the tipple, and that he was exposed to coal and
rock dust “all the time” during that work. Burris also testified
that, during his five years at Bollmeier, he was exposed to coal
and rock dust at least fifty percent of the time, and the ALJ
credited that testimony as well. The ALJ concluded from
Burris’s testimony that his exposure to coal and rock dust
during those twenty‐two combined years was substantially
16 No. 12‐1330
similar to conditions in an underground mine. Consolidation
parses the evidence differently. It contends that the ALJ should
have multiplied the five years at Bollmeier by fifty percent, for
example, and credited Burris with no more than two and a half
years of underground conditions for that period of employ‐
ment. The employer also complains that during more than nine
years of his employment at Consolidation, Burris was classified
as a pan operator, a job that involved no exposure to dust, and
that the ALJ should not have counted that time towards the
presumption.
Consolidation’s arguments amount to nothing more than a
request that we reweigh the evidence. But we do not reweigh
the evidence, resolve inconsistencies in the record, make
credibility determinations, or substitute our inferences for
those drawn below. Freeman United Coal Mining Co. v. Summers,
272 F.3d 473, 478 (7th Cir. 2001); Blakley v. Amax Coal Co., 54
F.3d 1313, 1322 (7th Cir. 1995). Moreover, we will not overturn
an ALJ’s decision if it is rational, supported by substantial
evidence, and consistent with governing law. Consolidation
Coal, 721 F.3d at 793; Keene, 645 F.3d at 848. We have reviewed
the miner’s testimony and find that the ALJ’s decision met this
standard. Burris testified credibly that, no matter what his job
title, he was often called upon to perform repair jobs at the
hopper and tipple, two particularly dusty areas. When asked
if he worked on the hopper, for example, he replied, “Yes, all
the time. The biggest part of the time I was down there. That’s
where they have the most breakage.” Transcript of Hearing,
October 6, 2009, at 15. The hopper was, in fact, underground
and when working around the hopper, Burris testified that he
was exposed to coal dust “practically all the time.” Id. He
No. 12‐1330 17
worked at two mines for Consolidation, the No. 2 mine, where
he testified he was also exposed to rock and coal dust “all the
time,” and the No. 5 mine, where he had constant exposure to
coal dust whenever he conducted repairs at the tipple, a job he
was frequently called to perform. Tr. at 27‐28. That is more
than enough evidence to support the ALJ’s conclusion:
[A] surface or “strip” miner was not required to
directly compare his work environment to condi‐
tions underground. Rather, the miner could estab‐
lish similarity simply by proffering “sufficient
evidence of the surface mining conditions in which
he worked.” It would then be “the function of the
ALJ, based on his expertise and, we would expect,
certain appropriate objective factors … to compare
the surface mining conditions established by the
evidence to conditions known to prevail in under‐
ground mines.”
Summers, 272 F.3d at 479 (quoting Director, Office Workers’
Compensation Programs v. Midland Coal Co., 855 F.2d 509, 512
(7th Cir. 1988)). The ALJ appropriately analyzed the miner’s
testimony here, and we see no reason to disturb the conclusion
that Burris worked at least fifteen years in conditions substan‐
tially similar to those in underground mines.
B.
We turn to the challenge to the ALJ’s conclusion that
Consolidation failed to rebut the presumption that Burris was
totally disabled due to pneumoconiosis arising from coal mine
employment. “The Secretary may rebut such presumption only
by establishing that (A) such miner does not, or did not, have
18 No. 12‐1330
pneumoconiosis, or that (B) his respiratory or pulmonary
impairment did not arise out of, or in connection with, employ‐
ment in a coal mine.” 30 U.S.C. § 921(c)(4); Blakley, 54 F.3d at
1320. Once the claimant qualifies for the presumption of
pneumoconiosis by establishing both prongs of the proof (as
Burris has here), the burden of rebutting that presumption
shifts to the employer, who must show a lack of pneumoconio‐
sis or a lack of relationship between disability and employ‐
ment. Mitchell v. Office of Workers’ Compensation Programs, 25
F.3d 500, 505‐06 (7th Cir. 1994). See also Blakley, 54 F.3d at 1320.
The ALJ correctly noted that there are several means of
establishing the existence of pneumoconiosis, including (1) a
valid chest x‐ray, with due consideration given to the qualifica‐
tions of persons interpreting the x‐ray; (2) a biopsy or autopsy;
(3) application of the irrebuttable presumption for complicated
pneumoconiosis (which did not apply here); or (4) a determi‐
nation of the existence of pneumoconiosis as defined in section
718.201 made by a physician exercising sound judgment, based
on objective medical evidence and supported by a reasoned
medical opinion. 20 C.F.R. § 718.202(a)(1)–(4). The ALJ also
noted the correct standard for determining whether the
employer rebutted the presumption that the disability arose
from coal mine employment. In particular, the ALJ considered
whether the employer could demonstrate by a preponderance
of the evidence that pneumoconiosis was not a “contributing
cause” of the miner’s total disability. Summers, 272 F.3d at 482
(the proper question is whether, had it not been for his pneu‐
moconiosis, the claimant would have been able to continue
working in the mines); Patrich v. Old Ben Coal Co., 926 F.2d
1482, 1490 (7th Cir. 1991) (in considering the “contributing
No. 12‐1330 19
cause” standard in connection with benefits under section 718,
pneumoconiosis must be a necessary condition for a miner’s
total disability, even though it need not be a sufficient condi‐
tion). In rebutting the presumption, we have noted that the
employer faces an uphill battle. R&H Steel Buildings, Inc. v.
Director, Office of Workersʹ Compensation Programs, 146 F.3d 514,
518 (7th Cir. 1998). See also 20 C.F.R. § 718.204 (“A miner shall
be considered totally disabled due to pneumoconiosis if
pneumoconiosis, as defined in § 718.201, is a substantially
contributing cause of the miner’s totally disabling respiratory
or pulmonary impairment. Pneumoconiosis is a “substantially
contributing cause” of the miner’s disability if it: (i) Has a
material adverse effect on the miner’s respiratory or pulmo‐
nary condition; or (ii) Materially worsens a totally disabling
respiratory or pulmonary impairment which is caused by a
disease or exposure unrelated to coal mine employment.”).
In light of these standards, the ALJ carefully considered the
entire medical record in assessing whether the employer
rebutted the presumption that Burris suffered from either
clinical or legal pneumoconiosis as defined in 20 C.F.R.
§ 718.201, or that his total disability did not arise out of coal
mine employment. We need not repeat that evidence here.
Consolidation’s main complaint is that the ALJ found that the
x‐ray evidence and CT scan evidence were in equipoise, and
that the ALJ improperly broke the tie in resolving the differ‐
ences among the five medical opinions given. Consolidation
also asserts that Burris’s disability was due to his extensive
cigarette smoking rather than his coal mine employment.
According to Consolidation, a finding that certain evidence
is in equipoise is virtually never appropriate because the ALJ
20 No. 12‐1330
is obliged to resolve scientific disputes. We have certainly held
that an ALJ must resolve scientific disputes on scientific
grounds. See Stalcup v. Peabody Coal Co., 477 F.3d 482, 484 (7th
Cir. 2007). The ALJ must therefore “articulate a reason and
provide support for favoring one opinion over another. Id. We
have also held that “when an ALJ is faced with conflicting
evidence from medical experts, he cannot avoid the scientific
controversy by basing his decision on which side has more
medical opinions in its favor.” Stalcup, 477 F.3d at 484. But the
ALJ here appropriately considered the qualifications of the
physicians interpreting the x‐rays and CT scans, and gave
more weight to those physicians who were board certified
radiologists and those who had received special certification as
“B‐readers.”4 The ALJ nevertheless concluded that the evi‐
dence was in equipoise. There is nothing inherently wrong
with this finding; evidence is sometimes equally balanced, as
was the case here with the x‐rays and CT scans, and nothing in
the record leads us to believe that the ALJ abandoned his fact‐
finding obligations.
As unhappy as the company was with the ALJ’s finding
that some of the evidence was in equipoise, Consolidation was,
4
B‐readers are doctors who pass an examination administered by the
National Institute for Occupational Safety and Health, a federal agency
operating under the auspices of the U.S. Centers for Disease Control and
Prevention, in the U.S. Department of Health and Human Services. See
http://www.cdc.gov/niosh/topics/chestradiography/breader‐info.html (last
visited September 29, 2013). “B Reader approval is granted to physicians
with a valid U.S. state medical license who demonstrate proficiency in the
classification of chest radiographs for pneumoconioses using the Interna‐
tional Labour Office (ILO) Classification System.”
No. 12‐1330 21
ironically, equally dismayed with the ALJ’s resolution of the
difference of opinions of the five physicians regarding the
diagnosis of pneumoconiosis in favor of the claimant. Consoli‐
dation asserts that the ALJ simply counted heads, crediting the
three physicians who found that Burris suffered from pneumo‐
coniosis over the two who concluded that he did not. Consoli‐
dation also complains that the ALJ gave more weight to the
opinion of the treating physician without analyzing the factors
listed in 20 C.F.R. § 718.104(d).5 Again, our review of the ALJ’s
5
In relevant part, that regulation provides: “In weighing the medical
evidence of record relevant to whether the miner suffers, or suffered, from
pneumoconiosis, whether the pneumoconiosis arose out of coal mine
employment, and whether the miner is, or was, totally disabled by
pneumoconiosis or died due to pneumoconiosis, the adjudication officer
must give consideration to the relationship between the miner and any
treating physician whose report is admitted into the record. Specifically, the
adjudication officer shall take into consideration the following factors in
weighing the opinion of the miner’s treating physician:
(1) Nature of relationship. The opinion of a physician who has treated the
miner for respiratory or pulmonary conditions is entitled to more weight
than a physician who has treated the miner for non‐respiratory conditions;
(2) Duration of relationship. The length of the treatment relationship
demonstrates whether the physician has observed the miner long enough
to obtain a superior understanding of his or her condition;
(3) Frequency of treatment. The frequency of physician‐patient visits
demonstrates whether the physician has observed the miner often enough
to obtain a superior understanding of his or her condition; and
(4) Extent of treatment. The types of testing and examinations conducted
during the treatment relationship demonstrate whether the physician has
obtained superior and relevant information concerning the miner’s
(continued...)
22 No. 12‐1330
Decision demonstrates that the ALJ did no such thing. Al‐
though the ALJ did not neatly march through the section
718.104(d) factors in a single paragraph, the analysis is clear
enough from a review of the entire Decision. As the ALJ noted,
Burris’s treating physician was board certified in both internal
and pulmonary medicine. The ALJ also noted that the treating
physician had been overseeing Burris’s health care for five
years, had examined him every four to six months during that
period, regularly ordered (and then analyzed) chest x‐rays and
pulmonary function tests for Burris, and regularly adjusted his
medications. The decision to give more weight to the opinion
of the treating physician was thus supported by substantial
evidence and perfectly consistent with the regulations.
As for the claim that Burris’s disability was caused by
cigarette smoking rather than coal mine employment, the ALJ
properly discredited the medical opinions of the two physi‐
cians who supplied reports for the employer on this issue. In
one instance, the ALJ rejected the opinion because the doctor
relied on general statistics without relating them to Burris in
5
(...continued)
condition.
(5) In the absence of contrary probative evidence, the adjudication officer
shall accept the statement of a physician with regard to the factors listed in
paragraphs (d)(1) through (4) of this section. In appropriate cases, the
relationship between the miner and his treating physician may constitute
substantial evidence in support of the adjudication officerʹs decision to give
that physician’s opinion controlling weight, provided that the weight given
to the opinion of a minerʹs treating physician shall also be based on the
credibility of the physician’s opinion in light of its reasoning and documen‐
tation, other relevant evidence and the record as a whole.
No. 12‐1330 23
particular. That doctor had also concluded that Burris does not
have pneumoconiosis, an opinion the ALJ had already rejected.
Having denied that Burris suffered from pneumoconiosis, the
doctor was, of course, unable to opine on the cause of a disease
that he denied the claimant had. In the other case, the doctor
underestimated Burris’s exposure to coal dust, contrary to the
ALJ’s other findings. Thus, the ALJ’s determination that
neither of these opinions overcame the presumption that
Burris’s totally disabling respiratory disease was due to his
coal mine employment was rational, supported by substantial
evidence, and not contrary to the law.
V.
In sum, Consolidation waived its argument regarding a
change in the conditions of entitlement for this subsequent
claim, and the argument lacked merit in any case. We also
conclude that the ALJ’s determination that Burris labored for
at least fifteen years in surface mine conditions that were
substantially similar to underground mine conditions is
rational, supported by substantial evidence and not contrary to
law. Finally, we agree with the ALJ’s conclusion that the
employer failed to rebut the fifteen‐year presumption. The
petition for review is therefore
DENIED.