UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1777
ISLAND CREEK COAL COMPANY,
Petitioner,
v.
CARLES DYKES; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(11-0558-BLA)
Submitted: May 11, 2015 Decided: May 21, 2015
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
George E. Roeder, III, Kathy L. Snyder, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Appellant. Joseph E. Wolfe, Ryan
C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia; M. Patricia Smith, Solicitor of Labor, Rae Ellen
James, Associate Solicitor, Sean G. Bajkowski, Helen H. Cox,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Island Creek Coal Company (employer) seeks review of the
Benefits Review Board’s (Board) decision and order affirming the
administrative law judge’s (ALJ) award of black lung benefits to
Carles Dykes pursuant to 30 U.S.C. §§ 901-945 (2012). This case
was held in abeyance pending our decisions in Hobet Mining
LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), and W. Va. CWP Fund
v. Bender, 782 F.3d 129 (4th Cir. 2015).
The ALJ found that Dykes worked for more than fifteen years
in underground coal mine employment and that he was totally
disabled from a respiratory standpoint, and invoked the
statutory presumption that Dykes was totally disabled due to
pneumoconiosis. 30 U.S.C. § 921(c)(4) (2012). The ALJ
considered employer’s rebuttal evidence and found that it failed
to rebut the existence of legal pneumoconiosis and failed to
rule out pneumoconiosis as a cause of Dykes’ disability.
Because the presumption applied and was not rebutted, the ALJ
awarded benefits. The Board affirmed, and employer timely
petitioned for review.
Employer does not assert that the ALJ erred in invoking the
§ 921(c)(4) presumption. Instead, employer first argues that
the ALJ and BRB impermissibly limited its rebuttal of the
statutory presumption to the two methods in the statute that
specifically govern rebuttal by the Secretary of Labor, in
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contravention of Usery v. Turner Elkhorn Mining Co., 428 U.S. 1
(1976). Employer also argues that the ALJ erred in applying the
“rule out” standard to its attempt to rebut the presumption.
See 20 C.F.R. § 718.305(d) (2014).
In Bender, this court recently considered and rejected
arguments identical to employer’s. The Bender court concluded
“that Section 921(c)(4) is silent regarding the standard that an
operator must meet to rebut the presumption.” Bender, 782 F.3d
at 138. Thus, the Department of Labor (DOL) possessed the
authority to promulgate regulations establishing the applicable
standard. Id. The court rejected the argument that the Supreme
Court’s decision in Usery usurped the DOL’s regulatory
authority. Id. at 138-40. Further, the court held “that the
rule-out standard set forth in Section 718.305(d) is a
reasonable exercise of the agency’s authority under Chevron,[ *]
and lawfully applies to coal mine operators as well as to the
Secretary.” Id. at 143. Accordingly, coal mine operators may
rebut the 15-year presumption of total disability “only by
proving that ‘no part of the miner’s respiratory or pulmonary
total disability was caused by pneumoconiosis.’” Id. (quoting
20 C.F.R. § 718.305(d)). Employer’s arguments regarding the
*
Chevron v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).
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available methods of rebuttal and the rule out standard are
therefore without merit.
Employer also argues that the ALJ erred in considering the
physicians’ opinions and therefore her finding that employer
failed to rebut the presumption is not supported by substantial
evidence. The ALJ found that the x-ray evidence rebutted the
existence of clinical pneumoconiosis. The ALJ summarized the
opinions of the four doctors who examined Dykes, and concluded
that the evidence supported a finding that Dykes suffered from
bronchial asthma. Considering the medical opinions offered by
employer in rebuttal of the presumption, the ALJ found that
Doctors Fino and Castle failed to explain how coal mine dust
exposure could be excluded as a causative factor in the
development of asthma. The ALJ thus concluded that employer
failed to rebut the existence of legal pneumoconiosis.
The ALJ also found that employer failed to rule out
pneumoconiosis as a cause of Dykes’ disability. The ALJ noted
that Doctors Agarwal and Baker found that Dykes’ respiratory
impairment was caused by exposure to coal dust. Addressing the
opinions of employer’s physicians, the ALJ found that “Dr. Fino
conceded that a portion of the Claimant’s impairment was likely
attributable to his coal mine employment. Although Dr. Castle
disagreed, he did not provide support for his conclusion that he
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could rule out the contribution by coal mine dust to the
Claimant’s disability.” (J.A. 44).
This court reviews decisions of the Board to determine
whether the Board properly found the ALJ’s decision supported by
substantial evidence and in accordance with law. Consolidation
Coal Co. v. Held, 314 F.3d 184, 186 (4th Cir. 2002). In making
this determination, the court conducts an independent review of
the record to decide whether the ALJ’s findings are supported by
substantial evidence. Dehue Coal Co. v. Ballard, 65 F.3d 1189,
1193 (4th Cir. 1995). Substantial evidence is more than a
scintilla, but only such evidence that a reasonable mind could
accept as adequate to support a conclusion. Lane v. Union
Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997). Subject to
the substantial evidence requirement, the ALJ has the sole
authority to make credibility determinations and resolve
inconsistencies or conflicts in the evidence. Grizzle v.
Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993). “As
long as substantial evidence supports an ALJ’s findings, we must
sustain the ALJ’s decision, even if we disagree with it.”
Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs,
678 F.3d 305, 310 (4th Cir. 2012) (internal quotation marks and
brackets omitted).
Employer argues that the ALJ erred in applying selected
passages of the Preamble to the 2000 amendments to the black
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lung benefits regulations to discredit Dr. Fino’s opinion. The
ALJ noted that Dr. Fino opined that Dykes had only minimal
respiratory obstruction that was not disabling when he left the
mines in 1994. The ALJ then stated:
To the extent that Dr. Fino may be suggesting that,
because Claimant was not disabled after leaving the
coal mines, his present disability is unrelated to
coal mine employment, his opinion is at odds with the
Department of Labor’s findings that pneumoconiosis is
a progressive disease that can worsen after cessation
of coal mine dust exposure. 20 C.F.R. § 718.201(c).
Indeed, in the Preamble to the amended regulations,
the Department of Labor specifically rejected Dr.
Fino’s position that pneumoconiosis was not
progressive. See Preamble, Regulations Implementing
the Federal Coal Mine Health and Safety Act of 1969,
65 Fed. Reg. 79920, 79969-79971 (Dec. 20, 2000).
(J.A. 41). Employer argues that the ALJ erred because this
statement implies her belief that pneumoconiosis is always
progressive, and it is the ALJ’s statement, rather than Dr.
Fino’s, that is contrary to the Preamble.
Employer’s argument is without merit. The ALJ did not
explicitly discredit Dr. Fino’s opinion based on this conflict
with the Preamble. Moreover, in the Preamble, the Department
clearly rejected Dr. Fino’s opinion that pneumoconiosis is not
latent or progressive, and cited medical studies supporting its
position. Although the Preamble does not state that
pneumoconiosis is always progressive, the Department retained
its regulatory provisions specifying that pneumoconiosis is
latent and progressive. In his deposition, Dr. Fino explained
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that he believed pneumoconiosis can be progressive, but only in
a small portion of miners, “maybe 10 to 15 percent at most, but
it clearly can be progressive.” (J.A. 177). The ALJ properly
evaluated Dr. Fino’s opinion.
Employer finally argues that the ALJ applied a more
demanding standard of review to the opinions of employer’s
physicians than she applied to claimant’s physicians,
particularly regarding the existence of legal pneumoconiosis.
We disagree. Once the § 921(c)(4) presumption was invoked,
employer bore the burden of establishing that Dykes did not
suffer from pneumoconiosis or that his disability was not caused
by pneumoconiosis. Thus, the ALJ’s focus on the opinions of
Doctors Fino and Castle was appropriate. Indeed, she relied on
their opinions to find that the evidence supported a diagnosis
of bronchial asthma. She properly found, however, that their
opinions fell short of establishing that Dykes’ coal dust
exposure was not a contributing factor in his disabling
respiratory impairment because both doctors acknowledged that
Dykes could suffer from pneumoconiosis and asthma.
Our review of the record discloses that the Board’s
decision is based upon substantial evidence and is without
reversible error. Accordingly, we deny the petition for review.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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