Consolidation Coal Co. v. Director, Office of Workers' Compensation Programs

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-3637

C ONSOLIDATION C OAL C OMPANY,
Petitioner,
v.

D IRECTOR, O FFICE OF W ORKERS’
C OMPENSATION P ROGRAMS,
U NITED S TATES D EPARTMENT OF L ABOR and
G EORGE B AILEY,
Respondents.

Petition for Review of a Decision
of the Benefits Review Board,
United States Department of Labor.
BRB No. 11-0142 BLA.

A RGUED S EPTEMBER 10, 2012—D ECIDED JUNE 27, 2013

Before E ASTERBROOK, Chief Judge, and C UDAHY and
K ANNE, Circuit Judges.
C UDAHY, Circuit Judge. This is a case about a black lung
benefits claim. The main issue is the application of the
recently revived “15-year presumption” that the total
pulmonary or respiratory impairment of a coal worker
2 No. 11-3637

with 15 years experience in the mines is due to pneumoco-
niosis (commonly known as “black lung”) for the
purposes of the Black Lung Benefits Act (the Act). 30
U.S.C. §§ 901 et seq.
The Act was enacted in 1972 as an amendment to the
Health and Safety Act to compensate coal miners who
were totally disabled due to pneumoconiosis. See Usery v.
Turner Elkhorn Mining Co., 428 U.S.1, 8-9 (1976). For the
purposes of the Act, the miner may either have “clini-
cal” or “legal” pneumoconiosis. 20 C.F.R. § 718.201. The
latter is defined as “any chronic lung disease or impair-
ment . . . arising out of coal mine employment.” Any
chronic lung disease that is “significantly related to, or
substantially aggravated by” exposure to coal mine dust
is legal pneumoconiosis; dust need not be the sole or
even primary cause of the disease. 20 C.F.R. §§ 718.201
(a)(1)-(b).
In 1972, the Act contained a provision creating a
rebuttable presumption that coal miners who had
worked for at least 15 years in underground mines or
in surface mines with similar conditions and who
suffered from a totally disabling respiratory or
pulmonary impairment were totally disabled due to
pneumoconiosis. See Pub. L. No. 92-303, § 4(c) (1972). In
1981, Congress removed this presumption for new
claims. See Pub. L. No. 97-119, § 202(b)(1) (1981). In 2010,
Congress revived the presumption for “claims filed
after January 1, 2005, that were still pending on or after
March 23, 2010.” Keene v. Consolidation Coal Co., 645 F.3d
844, 847 (7th Cir. 2011); see 30 U.S.C. § 921(c)(4).
No. 11-3637 3

George Bailey was employed by Consolidation Coal
(Coal) at a surface mine for 26 years. He primarily
operated bulldozers to load coal in very dusty condi-
tions. He also smoked several cigarettes each day for
many years; the actual number of pack years is disputed
by the parties. Bailey has been diagnosed with chronic
obstructive pulmonary disease (COPD) and is seeking
benefits under the Act. In order to be awarded benefits
under the Act, Bailey must satisfy four elements:
(1) that he suffers from pneumoconiosis; (2) that his
pneumoconiosis was caused by coal mine employment;
(3) that he is totally disabled by a pulmonary or
respiratory impairment; and (4) that impairment is
caused, at least in part, by pneumoconiosis. Keene, 645
F.3d at 848.
He has filed four claims for black lung benefits. The
first three claims were considered during the decades-
long interval when the 15-year presumption was absent
from the Act. The first two claims were denied, and
he withdrew his third claim.
Bailey filed his first claim in 2000. In connection to
that claim, Bailey was examined by Dr. Rhody Eisenstein.
Eisenstein diagnosed Bailey with COPD, which was
attributed to “inherited factors” and “mining exposure.”
Eisenstein noted that Bailey’s disability was minor. The
Director denied this claim, noting that the evidence
did not show “the presence of pneumoconiosis”; or
“that the disease was caused at least in part by coal
mine work”; or that Bailey was “totally disabled.”
Bailey filed his second claim in 2003 and he was exam-
ined by Dr. P. B. Sanjabi. Sanjabi diagnosed Bailey with
4 No. 11-3637

COPD and possibly coal workers’ pneumoconiosis, attrib-
utable to smoking and exposure. Sanjabi noted with respect
to Bailey’s condition that “some limitation is expected due
to COPD.” The Director denied this claim, concluding
that the evidence did “not show that the miner is
totally disabled by the disease.”
Bailey filed his current claim in 2007. He was examined
by Drs. William Houser and Peter G. Tuteur, and his
medical file was reviewed by Dr. Byron T. Westerfield. All
three doctors agreed that Bailey is totally disabled by
COPD. Bailey and Coal submitted four pulmonary function
tests. In a pulmonary function test, the examinee’s condi-
tion is measured first before the application of a
bronchodilator and subsequently after the application of a
bronchodilator. The height, age and sex of the examinee
establish the benchmarks for evaluating results. However,
examiners did not list height consistently for Bailey, listing
him on subsequent measurements as 68, 69, 71, and 69
inches respectively. All four tests that were conducted
before the application of a bronchodilator returned results
establishing total disability for a male 69 to 71 inches
tall. However, only the two most recent tests that were
conducted after the application of the bronchodilator
returned results establishing disability for a male 69 to
71 inches tall.
Due to the fact that he had previously filed rejected
claims, Bailey was required to show a change in condi-
tion in his fourth claim. The Director must first complete
a subsequent claim inquiry before moving to an overall
claim analysis. Evidence collected after the prior rejec-
No. 11-3637 5

tion must show that the claimant now satisfies a
previously deficient element. While Bailey’s fourth
claim was under consideration, Congress restored the
15-year presumption. The main issue in this case is what
impact this restoration has on subsequent claim analysis.
The Director issued a proposed decision awarding
benefits. Coal requested a hearing before an administrative
law judge (ALJ). Upon review, the ALJ first conducted a
subsequent claim inquiry and determined that Bailey’s
medical condition had worsened to the point that he was
now totally disabled.1 The ALJ, using the 15-year pre-
sumption, held that Bailey can now establish pneumoconi-
osis caused in part by exposure to coal dust, two elements
that had been deficient in his previous claims. The
ALJ proceeded to analyze Bailey’s overall claim, applied
the 15-year presumption, and awarded the benefits on
the basis of total pulmonary impairment. However, the
ALJ did not determine Bailey’s height, nor did it consider
if Coal had rebutted the 15-year presumption in the
subsequent claim analysis.

1
On the record before us, it is difficult to determine if
the Director, in rejecting the second claim, found that Bailey
was not totally disabled. The Director noted that evidence
did “not show that the miner is totally disabled by the disease.”
This could mean that the Director found that Bailey was not
totally disabled or that Bailey was totally disabled but not
due to COPD. Because it is unclear if the finding of total
disability was deficient in the second claim, we will instead
focus on the subsequent inquiry findings of pneumoconiosis
and a relationship to coal dust exposure.
6 No. 11-3637

Coal appealed to the Benefits Review Board. The board
affirmed. Coal petitioned this court for review of the
decision of the Benefits Review Board and argues that
the ALJ first incorrectly applied the 15-year presump-
tion to find a change in Bailey’s condition during the
subsequent claim inquiry and second that the ALJ erred
in finding that Bailey satisfies the elements for benefits
under the Act without considering whether Coal had
rebutted the 15-year presumption.
The Board had jurisdiction under 33 U.S.C. § 921(b)(3).
This court has jurisdiction under 33 U.S.C. § 921(c). We
review the ALJ decision and cannot overturn that
decision if it is “rational, supported by substantial evi-
dence, and consistent with governing law.” Freeman
United Coal Co. v. Hunter, 82 F.3d 764, 767 (7th Cir. 1996).

I.
Coal’s primary argument is that the 15-year presump-
tion cannot be used to establish an element of entitle-
ment for purposes of demonstrating a change in medical
condition. An examination of the relevant statutory
language does not support this contention, especially in
light of our previous analysis of subsequent claims
under the Act and the deference this court gives to the
Director’s interpretation.
We addressed the proper handling of subsequent
applications for benefits under the Act in Peabody Coal
No. 11-3637 7

Co. v. Spese, 117 F.3d 1001 (7th Cir. 1997) (en banc).2 We
concluded in Spese 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. Id. at 1008. “To prevail
on the new claim, therefore, the miner must show that
something capable of making a difference has changed
since the record closed on the first application.” Id.
In Spese, we dealt with a material change in the
miner’s physical condition; x-rays taken after his first
claim denial returned positive results. In the case
before us, it is primarily the change of the law has
allowed Bailey to establish a previously deficient ele-
ment. Under the reasoning of Spese, we see 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 benefits.
Our treatment of a material change predicated on a
change in the applicable law comports with the text of
the Act. A subsequent claim inquiry must show that “one
of the applicable conditions of entitlement” as set out in
20 C.F.R. § 725.202(d) has changed since the denial of the
earlier claim. 20 C.F.R. § 725.309(d). Section 725.202(d) lists

2
We note that “[w]hile it is true that Spese interpreted an earlier
version of § 725.309, . . . the revised regulations explicitly
codified the holding of Spese.” Midland Coal Co. v. Dir., Office
of Workers’ Comp. Programs, 358 F.3d 486, 489-90 (7th Cir. 2004).
8 No. 11-3637

the elements of a claim, including that the claimant has
pneumoconiosis, as set out in § 718.202, and that
this pneumoconiosis contributes to the claimant’s total
disability, as set out in § 718.204. These sections set out
the elements of entitlement and incorporate regulatory
definitions of those elements.
There is nothing in any of these sections that
precludes the use of the 15-year presumption to show a
change in condition. Indeed, these sections specifically
mention that the elements of pneumoconiosis and disa-
bility causation, respectively, can be established by the
15-year presumption. This point is incorporated in 20
C.F.R. § 718.305. See 20 C.F.R. § 718.202(a)(3) (“If the
presumption[] described in § . . . 718.305. . . [is] applicable,
it shall be presumed that the miner is or was suffering
from pneumoconiosis.”); 20 C.F.R. § 718.204(c)(2) (“Except
as provided in § 718.305 . . . proof that the miner suffers . . .
from a totally disabling respiratory pulmonary im-
pairment . . . shall not, by itself, be sufficient to
establish that the miner’s impairment is or was due to
pneumoconiosis.”). As the 15-year presumption is now
built into the definitions of elements, the 15-year pre-
sumption can be used to show a change in condition.
Even if the language regarding the use of the 15-year
presumption were susceptible to other readings, we
would defer to the Director’s reasonable interpretation
of the statute. See Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 845 (1984); Midland Coal Co. v.
Dir., Office of Workers’ Comp. Programs, 358 F.3d 486, 490
(7th Cir. 2004).
No. 11-3637 9

Coal also argues that by applying a new presumption
to old facts, the ALJ essentially violated the principle of
res judicata. This argument is similarly without merit.
The ALJ did not simply reevaluate old claims but
followed the approach we set out in Spese. See Midland
Coal Co., 358 F.3d at 489 (“[T]raditional principles of res
judicata do not bar a subsequent application for black
lung benefits where a miner demonstrates a material
change in at least one of the conditions of entitlement.”).
Indeed, the ALJ cannot exercise “plenary review of the
evidence behind the [previous] claim.” Lisa Lee Mines v.
Dir., Office of Workers’ Comp. Programs, U.S. Dep't of
Labor, 86 F.3d 1358, 1363 (4th Cir. 1996) (en banc). Instead,
the ALJ merely compared the evidence in the previous
claim to the subsequent claim, as instructed by 20
C.F.R. § 725.309. The ALJ first determined that Bailey’s
condition had worsened to the point of total disability
and that, in light of the 15-year presumption, he can
show pneumoconiosis caused in part by exposure to
coal dust. Then the ALJ assessed the entirety of the evi-
dence (including earlier findings) and concluded that,
again in light of the 15-year presumption, Bailey was
due benefits.
Both of Coal’s arguments involve the same anomalous
situation: Bailey enjoys a 15-year presumption in the
evaluation of the present claim but not in previous claims.
But this cannot be a meritorious objection—of course,
Bailey’s adjudicators must apply the law in effect at the
time of a decision. Congress has reintroduced the pre-
sumption and Bailey can utilize that presumption, re-
gardless of the law in effect at previous evaluations.
10 No. 11-3637

Having determined that the ALJ can apply the 15-year
presumption to a subsequent claim, we must now
analyze whether the ALJ correctly concluded that Bailey
satisfied the requirements for the presumption. The ALJ
found that Bailey worked in conditions comparable to
underground mine work and that he was totally dis-
abled. Both findings are supported by substantial evidence.

A. Dusty Conditions
Bailey “was exposed to coal dust coming up to him
on coal cars, which were within 2-3 feet of him and
the fan on which ‘kept blowing it right back in [his] face.’ ”
A-5 (quoting Tr. 18). And he described the mine’s dust-
control efforts “as consisting of a single water truck . . .
[that] was ‘pretty well insufficient to take care of any
dust.’ ” A-5 (quoting Tr. 20). Based on this and other
testimony, the ALJ concluded that Bailey’s working
“conditions were substantially similar to conditions in an
underground mine.” This finding is in line with case law
concerning outdoor but excessively dusty coal environ-
ments. See, e.g., Blakley v. Amax Coal Co., 54 F.3d 1313, 1319
(7th Cir. 1995).

B. Total disability
Medical opinion and pulmonary function tests support
a finding of total disability. Two of the recent pulmonary
tests qualify Bailey as totally disabled. Coal, relying on
Toler v. Eastern Association Coal Co., 43 F.3d 109, 114 (4th
Cir. 1995), argues that because his calculated height is
No. 11-3637 11

not uniform for these tests, the ALJ erred in considering
them. In Toler, three examinations were at issue, and
a height discrepancy meant that Toler either qualified
under two of the tests or under none of the tests. Thus, the
failure to resolve the height of the claimant in Toler was
reversible error. However, the present case is dissimilar
from Toler in two important respects. The height discrep-
ancy in this case has a far smaller impact—Bailey
would qualify prior to the application of the
bronchodilator in all four tests for the range of heights
listed, and would qualify in two tests after the applica-
tion of the bronchodilator. Further, even if Bailey’s pul-
monary function tests were muddled, the ALJ could
rightly rely on medical opinion to establish total dis-
ability. All of the physicians who evaluated Bailey in
connection with his subsequent claim—including Coal’s
own experts, Drs. Tuteur and Westerfield—reported that
he was totally disabled.

II.
Coal correctly notes that the ALJ erred by failing
to address in its subsequent claim analysis whether
Coal had rebutted the 15-year presumption, with Coal
attributing Bailey’s COPD to his smoking history rather
than his coal dust exposure. However, this omission
was harmless, since the ALJ did address this argument
in its ruling on whether Coal has successfully rebutted
Bailey’s claim on the merits.
Even if the ALJ had not addressed this argument, we
would be inclined to find this error harmless. It is no
secret that the 15-year presumption is difficult to rebut
12 No. 11-3637

and Coal has adduced no substantial evidence on
record that undermines Bailey’s claim.
Coal relied on Dr. Tuteur’s testimony that Bailey’s
pulmonary disease is of uncertain origin and
Dr. Westerfield’s testimony that Bailey’s COPD was
due to smoking. However, Tuteur’s uncertainty cannot
rebut the presumption, which specifically notes that the
unknown origin of the disease may not disqualify a
claim. 20 C.F.R. § 718.305(d) (“[I]n no case shall the pre-
sumption be considered rebutted on the basis of evi-
dence demonstrating the existence of a totally dis-
abling obstructive respiratory or pulmonary disease of
unknown origin.”). Westerfield also noted that, had
Bailey smoked for less than 10 pack years, Bailey would
have suffered little harm from smoking. The ALJ credited
Bailey’s testimony that he had only an 8.75 pack-year
smoking history, and so reasonably discounted Wester-
field’s diagnosis of COPD attributable to smoking. We
owe the ALJ considerable deference in determinations
of witness credibility. See Canteen Corp. v. NLRB, 103
F.3d 1355, 1363 (7th Cir. 1997).
The ALJ correctly determined that the 15-year pre-
sumption applied to subsequent claim inquiries. It
applied the presumption in this case and in light of the
new evidence presented, determined that Bailey suffers
from pneumoconiosis. The ALJ addressed evidence
relating to Bailey’s health and his smoking history, and
delivered a decision “rational, supported by substantial
evidence, and consistent with governing law.” We A FFIRM .

6-27-13