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

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0736n.06

No. 14-4263

FILED
UNITED STATES COURT OF APPEALS Nov 04, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
SIMCO PEABODY COAL COMPANY, )
)
Petitioner, )
)
v. )
) ON PETITION FOR REVIEW FROM
DIRECTOR, OFFICE OF WORKERS’ ) THE UNITED STATES DEPARTMENT
COMPENSATION PROGRAMS, UNITED ) OF LABOR, BENEFITS REVIEW
STATES DEPARTMENT OF LABOR and ) BOARD
JOHN W. RUBY, )
)
Respondents.

BEFORE: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Simco Peabody Coal Company

petitions for review of a decision by the Benefits Review Board that upheld an administrative

law judge’s grant of black lung payments to John Ruby, a former coal miner, based upon a

finding that Ruby was totally disabled due to legal pneumoconiosis. Simco Peabody relies upon

the opinions of physicians who perform the company’s consulting work in black lung cases on

behalf of coal companies to argue that Ruby did not establish his entitlement to benefits under

the Black Lung Benefits Act, 30 U.S.C. §§ 901-944, and its accompanying regulations.

Although Simco Peabody’s appellate brief purports to raise seven distinct issues for this court’s

consideration, those assignments of error can be distilled into a claim that the administrative law

judge erred in giving inappropriate weight to the opinions of physicians who determined that
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Ruby was entitled to the challenged benefits. For the reasons set out below, we conclude that

substantial evidence supported the award of benefits and, therefore, affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Claimant’s Employment History

John Ruby, born in May 1955, was employed as a miner by the Peabody Coal Company

for two different stints. According to Ruby, he first began working at Peabody’s Coshocton,

Ohio, mine in the fall of 1974. As he explained:

It was an underground mine with three sections. 12 men worked each section. I
worked at the face of the mine, shooting and loading coal. I was responsible for
drilling into the coal, loading the shot, firing it and then loading the coal into
buggies which took the coal to the beltline. At various times, I had to also shovel
coal back onto the belt when it spilled and sometimes I was required to rockdust
by hand. I worked six days a week, and sometimes on Sunday. About one-
quarter of the time I was at the mine during this period, I worked a double shift. I
ate a lot of coal dust on this job. We shot and loaded 500 tons of coal per day and
therefore had to work fast. We were issued masks, which I wore, but they quickly
plugged up with coal mine dust, which made them ineffective. The mine shut
down on October 28, 1978.

Following the closing of the Coshocton mine, Ruby obtained other employment outside

the mining industry. In the spring of 1980, however, the mining company called Ruby back to

work, this time at its Sunnyhill mine in New Lexington, Ohio, where the claimant worked until

that mining operation shut down in early 1982. Under penalty of perjury, Ruby described his

work at the Sunnyhill mine as follows:

This also was an underground mine, where the coal was 38-40 inches high. I
worked at the face of the mine, drilling into the coal, operating the cutting
machine and sometimes running the buggy loaded with coal. I also did some
maintenance work here. When I drilled coal, I used a machine called a coal drill,
which included a ten-foot long auger. After I drilled holes in the coal, I loaded
the holes with dynamite. As part of my job, I had to haul explosives into the site
where we were drilling. The explosives came in fifty pound boxes. Because the
coal was low, I had to haul these boxes of explosives in while on my knees or by
duckwalking. I hauled other equipment as well. When I operated the cutting
machine, it was very dusty. My face was about four feet from where the dust was

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being generated by the cutting machine. When I ran the cutting machine, I had to
personally lift and maneuver the electrical cables that supplied power to the
machine. These had to be lifted and pushed out of the way as the cutting machine
operated. The cables were in mud and water and they were very heavy. It took
all the strength I could muster in order to move these cables. When I drove the
buggies, it was also dusty as the coal from the buggies would fly into your face as
you drove the coal to the beltline. I also had to shovel spillage from the buggies.
I worked one shift, usually six days a week at the mine. I was regularly required
to lift and carry fifty pounds in these jobs and do a lot of shoveling at a fast pace.

B. Medical Evidence Presented to the Administrative Law Judge

Although Ruby did not engage in further mining activities after 1982, and although he

never smoked cigarettes, cigars, or pipes, he developed severe respiratory problems, such that he

has been unable to work since 2009. Thus, in September 2009, he filed a claim for black lung

benefits with the Department of Labor’s Office of Workers’ Compensation Programs, alleging

that he suffered from shortness of breath, wheezing, and chest pains. As part of the claims

procedure, Ruby submitted to a battery of tests over the years.

In November 2009, Ruby was seen by Dr. Paul Knight, who is board-certified in internal

medicine. During that visit, Ruby underwent a chest x-ray, a pulmonary function test, an arterial

blood-gas test, an electrocardiogram, and a physical examination. Knight noted that Ruby

claimed he became short of breath after walking only one block, after climbing just five or six

stairs, and after moderate exertion, and that, although Ruby was able to lift and carry his

groceries, he “couldn’t do that repetitively.” Ruby also reported that he suffered from diabetes,

occasional wheezing, coughing, chest pain, and sensitivity to smoke and perfumes. Although the

results of Ruby’s chest x-ray, blood-gas test, and electrocardiogram all were within normal

limits, Knight documented “[m]oderate obstruction and mild to moderate restriction” in the

pulmonary function test.

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Almost three years later, Dr. William Clapp, the medical director of the pulmonary

physiology laboratory at a Chicago hospital, reviewed the results of that 2009 pulmonary

function test and noted that Knight had overseen five spirometric1 trials on Ruby prior to treating

him with bronchodilators and three additional post-bronchodilator trials. According to Clapp’s

analysis of the results of the five pre-bronchodilator trials, although there was no evidence that

Ruby hesitated during his breathing, three of the results were not acceptable under Department of

Labor standards—one because Ruby coughed during the trial, one due to “glottis closure,” and

one because of the “poor effort” made by the claimant. Clapp also found that one of the three

post-bronchodilator trials was unacceptable, both because of some hesitation in Ruby’s breathing

and because Ruby’s effort during the test was “variable.” Nevertheless, Clapp offered his

opinion that the studies were valid under Department of Labor criteria because of the minimal

variability in the FEV12 values in three of the four acceptable trials.3

Based upon his physical examination of Ruby and upon the results of the valid

pulmonary function test, Knight concluded that Ruby suffered from chronic obstructive

pulmonary disease (COPD) of moderate severity. Furthermore, noting that Ruby is a non-

smoker, Knight noted that “[t]he only apparent etiology for [Ruby’s] lung disease is dust

exposure in the course of work over several years,” and that the “impairment is quite significant

and would be considered totally disabling for his last significant job in the coal mines, both from

an exertion standpoint and from the ability to tolerate more atmospheric exposure.”

1
“Spirometry” is defined as the “[m]easurement of breathing-power or lung-capacity.” Oxford English Dictionary
(2015), www.oed.com.
2
FEV1 values denote the “forced expiratory volume in one second” exhaled by the patient. See 20 C.F.R.
§ 718.103(a). In the four “acceptable” 2009 trials, Knight documented FEV1 values for Ruby of 1.46 liters, 1.54
liters, 1.56 liters, and 1.57 liters.
3
In March 2010, in order to ensure the validity of the earlier pulmonary testing, the Department of Labor had Dr.
Adi Gerblich, a physician with board certification in internal medicine, pulmonary medicine, and critical care,
examine the results of Knight’s 2009 pulmonary function studies. After Gerblich reviewed the documentary
evidence supplied to him, he also concluded that the “[v]ents are acceptable.”

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Rather than concur in the medical opinion offered by Knight, Simco Peabody hired two

medical experts of its own in an effort to defeat Ruby’s claim for benefits. Dr. David Rosenberg

undertook his own evaluation of John Ruby in March 2011 to determine whether Ruby had coal

workers’ pneumoconiosis caused by past exposure to coal mine dust. Rosenberg concurred in

large part with the medical and occupational background that Knight reported for the miner.

However, Rosenberg challenged the validity of the pulmonary function tests conducted in 2009,

suggesting that the results of those tests “revealed incomplete efforts” on Ruby’s part.

Rosenberg also administered his own pulmonary function test, noting that Ruby’s “efforts were

incomplete and quite variable” on that test as well, and that Ruby “had a fair amount of coughing

during the evaluation.” Nevertheless, prior to the administration of any bronchodilators, Ruby’s

FEV1 value on Rosenberg’s test was 2.27 liters, a value significantly greater than the highest

(1.57-liter) result recorded by Knight in 2009. When, after the administration of

bronchodilators, which should have increased Ruby’s exhalation abilities, Ruby recorded an

FEV1 value of only 1.55 liters, Rosenberg aborted the study.

Rosenberg concluded that Ruby “possibly has a degree of airflow obstruction,” but that,

in any event, “Ruby does not have clinical or legal” pneumoconiosis, and “he is not disabled

from performing his previous coal mine job or other similarly arduous types of labor.”

Rosenberg did concede that Ruby potentially suffered from asthma, which “would explain the

improvement in his spirometric values from several years ago to the present time.”

Rosenberg also offered deposition testimony that was considered by the administrative

law judge in this matter. In that testimony, he reiterated his opinion that Ruby does not suffer

from a totally disabling pulmonary impairment, that Knight’s 2009 pulmonary function tests

must be deemed invalid due to incomplete effort on Ruby’s part, and that a diagnosis of legal

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pneumoconiosis cannot be substantiated given the fact that Ruby’s pulmonary-function-test

values improved dramatically between 2009 and 2011. He did admit, however, that “virtually all

of [his] consulting expert work in the black lung area is done on behalf of coal operators or their

insurers,” and that if Knight’s 2009 tests were considered valid, the FEV1 values obtained in

those tests would indicate severe airway obstruction.

Simco Peabody’s second expert, Dr. George Zaldivar, concurred with Rosenberg that if

the 2009 pulmonary function tests were considered valid, the results obtained would indicate a

significant, even disabling, pulmonary obstruction. Zaldivar claimed, however, that Knight’s

pulmonary function tests on Ruby were “absolutely invalid” because Ruby’s effort on exhalation

was “dismal,” inconsistent, and not performed with maximum effort. He also believed that

Rosenberg’s pulmonary function test must be considered invalid, especially because it was

unlikely that Ruby’s post-bronchodilator test values could be lower than the values obtained

during testing before administration of the medication.

Ignoring the results of the 2009 and 2011 pulmonary function tests, Zaldivar still

concluded that Ruby did not suffer from pneumoconiosis, but rather from mild asthma that

would not prevent him from performing his past coal-mine work. Zaldivar based that opinion on

the fact that Ruby had been taking asthma medications that are used to treat inflammatory

diseases between the time of the 2009 and 2011 pulmonary function tests, and that his 2011 test

results were “practically normal.”

Following the submission of reports by both Rosenberg and Zaldivar, Dr. Knight

responded by letter to the criticisms raised by the other two physicians. He first countered

Zaldivar’s claim that Ruby’s effort on the 2009 pulmonary function tests was “dismal” by

indicating that he (Knight) had contacted the technician who performed the 2009 tests and that

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the technician “found Mr. Ruby’s effort to be full, meaning acceptable.” Knight also disputed

the claims made by the coal company doctors that the results of the 2009 testing showed that

Ruby hesitated during expiration. Knight’s review of the test results confirmed his belief that

any hesitation shown was “very minor” and did not affect the validity of the results.

Additionally, Knight disputed the validity of Rosenberg’s 2011 tests for the same reason

expressed by Zaldivar, namely that the test must be called into question because Ruby’s

expiration results were significantly worse after administering bronchodilators. Knight further

explained that Ruby’s improved performance on part of the 2011 pulmonary function test did not

necessarily mean that Ruby’s condition had not deteriorated, but only that Ruby had been taking

medicine that “opens the lungs and permits better lung function” immediately prior to submitting

to the testing.

Finally, Knight expressed disagreement with Rosenberg’s conclusion that Ruby must be

considered an asthmatic simply because he had been prescribed certain medications that

Rosenberg believed were used only to treat asthma. Knight reaffirmed that neither he nor any

other doctor has treated Ruby for asthma and that the medications used by Ruby have been

prescribed “for many patients with obstructive lung disease, like Mr. Ruby, who are not

asthmatics. The effect of these medicines is to open the airways and this has proved valuable for

patients who have coal-dust induced obstruction, cigarette smoke induced obstruction, as well as

other forms of obstruction, including asthma.”

The parties also placed before the administrative law judge a report prepared in May

2012 by Dr. Shirley Conibear, a medical review officer who is board-certified in occupational

medicine. Of relevance to the disputes at issue before this court, Conibear stated that she had

reviewed the letters and data provided by both Knight and Rosenberg before noting that the

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supposed improvement in Ruby’s pulmonary-function-test values in 2011 can be explained by

the fact that the claimant “was being treated with bronchodilators and inhaled steroids at the time

Dr. Rosenberg saw him in March[ ] 2011.” Conibear then concluded that her review of the

records indicated that Ruby was then “totally disabled from his last job in the coal mine” “due to

COPD/emphysema which is a direct result of his work in the coal mines.”

C. Administrative Law Judge’s Decision

Presented with this information, the administrative law judge issued lengthy and thorough

findings of fact and conclusions of law. Despite the fact that Ruby claimed to have worked in

the coal mines for eight years, the administrative law judge used Social Security records to

calculate percentages of years actually worked by dividing Ruby’s total earnings for particular

years by his base annual wage. Doing so, the administrative law judge credited Ruby with

5.44 years of underground coal mine employment, rather than the eight years that all parties

accepted as an appropriate calculation.4

After detailing the evidence before him and the framework for deciding black-lung-

benefits cases, the administrative law judge concluded that Ruby could not establish that he

suffered from “clinical pneumoconiosis” as that condition is defined by the relevant regulations.

Turning to an examination of whether Ruby nevertheless could support a showing of “legal

pneumoconiosis,” the administrative law judge accorded full probative weight to the opinions of

Drs. Knight and Conibear that Ruby suffered from the legal, nonclinical form of the debilitating

pulmonary condition. In addition, he gave no probative weight to the determinations of Drs.

Rosenberg and Zaldivar that Ruby did not suffer from legal pneumoconiosis. He discounted

4
Ruby asserts that the administrative law judge inappropriately failed to consider his coal mine employment during
the years 1974-1977 in arriving at the figure of 5.44 years. However, the administrative law judge stated clearly in
his decision that he credited “Claimant with three years and three months of coal mine employment from 1974
through 1977.” In any event, Ruby recognizes that whether his creditable service is 5.44 years or eight years is
irrelevant, “given the result reached” by the administrative law judge.

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Rosenberg’s opinion because the doctor based it in large part on the improved pulmonary-

function-test scores in the 2011 testing, even though Rosenberg himself admitted in his

deposition that Ruby’s use of bronchodilators prior to the administration of the test could account

for the change in FEV1 values. He refused to give any probative weight to Zaldivar’s opinion

because Zaldivar had concluded, contrary to the administrative law judge’s own determination,

that the 2009 pulmonary function test was invalid.

Furthermore, the administrative law judge concluded that Ruby’s legal pneumoconiosis

arose out of coal mine employment. In doing so, the administrative law judge relied upon the

fact that a finding of “legal pneumoconiosis,” as defined in 20 C.F.R. § 718.201(a)(2), inherently

presumes that medical evidence and reasoned medical opinion establish that the disease arose at

least in part out of coal mine employment. Finally, giving more weight to the opinions of Knight

and Conibear, the administrative law judge determined that Ruby had established by a

preponderance of the evidence that he was totally disabled from pneumoconiosis, and thus

granted Ruby black lung benefits forward from September 2009, “the month and year in which

Claimant filed this claim for benefits.”

Simco Peabody appealed the administrative law judge’s decision to the Benefits Review

Board, contending that the administrative law judge erred in his evaluation of the pulmonary

function tests, in his evaluation of the medical-opinion evidence, in his determination of total

disability, and in his conclusion that Ruby’s disability was due to pneumoconiosis. The Board,

however, unanimously affirmed the administrative law judge’s decision in all respects, leading

Simco Peabody to file a petition for review with this court.

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II. DISCUSSION

A. Standard of Review

In reviewing administrative decisions rendered pursuant to the Black Lung Benefits Act,

we examine the legal conclusions of the Benefits Review Board de novo. Brandywine

Explosives & Supply v. Dir., Office of Workers’ Comp. Programs, 790 F.3d 657, 664 (6th Cir.

2015). “On factual issues, the court, like the Board, determines whether the ALJ—not the

Board—had substantial evidence upon which to base his or her decision.” Id. (internal quotation

marks and citations omitted). The United States Supreme Court defines “substantial evidence”

to mean “more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

477 (1951) (internal quotation marks and citations omitted). Here, because Simco Peabody does

not challenge any legal determination of the Board, we need decide only whether the

administrative law judge’s findings “are supported by substantial evidence and accord with the

applicable law.” Greene v. King James Coal Mining, Inc., 575 F.3d 628, 633 (6th Cir. 2009).

B. Framework of Black-Lung-Benefits Cases

The Black Lung Benefits Act was passed and enacted to “provide benefits . . . to coal

miners who are totally disabled due to pneumoconiosis.” 30 U.S.C. § 901(a). “Pneumoconiosis”

is defined succinctly in the Act as “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). As might be expected, however, deciding whether a miner suffers from

pneumoconiosis and whether the miner is entitled to receipt of benefits is not a straightforward

determination.

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Generally, in order “[t]o establish entitlement to benefits, the claimant must prove by a

preponderance of the evidence that (1) he has pneumoconiosis, (2) his pneumoconiosis arose in

whole or in part out of his coal mine employment, (3) he is totally disabled, and (4) the total

disability is due to pneumoconiosis.” Cent. Ohio Coal Co. v. Dir., Office of Workers Comp.

Programs, 762 F.3d 483, 486 (6th Cir. 2014). In this case, Simco Peabody challenges the

administrative law judge’s determination that Ruby has satisfied each of these claim elements.

1. Does Ruby Suffer from Pneumoconiosis Arising from Coal Mine Employment?

Although 30 U.S.C. § 902(b) defines “pneumoconiosis” broadly, the implementing

regulations promulgated by the Department of Labor’s Office of Workers’ Compensation

Programs add sufficient details to aid in determining entitlement to benefits under the Act.

Pursuant to those regulations, the statutory definition of “pneumoconiosis” is considered to

include both medical, or “clinical,” pneumoconiosis and statutory, or “legal,” pneumoconiosis.

“Clinical pneumoconiosis” “refers to a specific set of enumerated diseases,” Brandywine

Explosives & Supply, 790 F.3d at 661, that are “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 employment.” 20 C.F.R.

§ 718.201(a)(1). “Legal pneumoconiosis” is defined more broadly, however, to include, but not

be limited to, “any chronic restrictive or obstructive pulmonary disease arising out of coal mine

employment.” 20 C.F.R. § 718.201(a)(2). When considering whether such a pulmonary disease

arose out of coal mine employment, a finder of fact examines whether “any chronic pulmonary

disease or respiratory or pulmonary impairment [was] significantly related to, or substantially

aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201(b).

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The applicable regulations offer four ways in which a claimant can establish the existence

of pneumoconiosis. 20 C.F.R. § 718.202(a)(1)-(4). Three of these four alternatives—chest x-

rays, biopsies or autopsies, and certain regulatory presumptions—are not relied upon by Ruby in

this litigation to support his claim for benefits. However, pneumoconiosis also can be shown by

“objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function

studies, physical performance test, physical examination, and medical and work histories,” if

“supported by a reasoned medical opinion.” 20 C.F.R. § 718.202(a)(4).

All parties and decision-makers in this litigation concur that Ruby’s blood-gas studies

and electrocardiogram did not yield results supporting a finding of legal pneumoconiosis.

Nevertheless, Dr. Knight still was able to diagnose Ruby with “COPD of moderate severity,

based on history and physical examination, [and] pulmonary functions.” In doing so, Knight

took into account the fact that Ruby was a lifelong non-smoker, yet after working in coal mines

for portions of eight years, suffered from wheezing, shortness of breath, coughing, and

occasional chest pain. Knight also relied on pulmonary-function-test results that indicated a mild

restriction of total lung capacity and an obstruction to airflow. Similarly, Dr. Conibear

concluded that Ruby suffered from legal pneumoconiosis, based upon her review of his medical

and employment history, his productive cough and shortness of breath, and his “abnormal lung

volumes,” as determined by use of the Hankinson reference range preferred by the American

Thoracic Society to interpret pulmonary-function-test results.5

Even Rosenberg and Zaldivar, Simco Peabody’s own medical experts, did not dispute

Ruby’s employment history or medical symptoms. Furthermore, both Rosenberg and Zaldivar

conceded that, if the pulmonary function test conducted by Knight in 2009 is considered to be

5
The other medical experts who offered testimony or opinions in this matter used instead the Knudson reference
range that is used more commonly in black lung examinations to interpret pulmonary-function-test results.

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valid—a concession they were not willing to make, other than for hypothetical purposes—Ruby

suffered from severe, significant, or disabling pulmonary obstruction. Given that information,

especially if the 2009 test is considered valid, the administrative law judge had before him

substantial evidence to conclude that Ruby established that he suffered from legal

pneumoconiosis.

Rosenberg argued, however, that the 2009 test was invalid because the results revealed

that Ruby hesitated during expiration and that his effort in the study was “incomplete.”

Likewise, Zaldivar based his belief that Knight’s testing was not valid on his opinion that Ruby’s

effort was “dismal,” inconsistent, and less than optimal. The administrative law judge

considered the coal company’s evidence offered to show the invalidity of the 2009 testing but

ultimately concluded that the test was nevertheless valid. In doing so, the administrative law

judge simply chose, as was his prerogative, to give less credence to Rosenberg’s and Zaldivar’s

claims of invalidity that were based on allegations of Ruby’s lack of effort even in light of the

countervailing evidence both from Dr. Clapp, who determined that the test was valid, and from

Knight, who contacted the technician who conducted the test and who stated that Ruby exhibited

full effort during the examination. Moreover, the administrative law judge credited Knight’s

statement that the doctor had reviewed the 2009 study results and found no evidence of

hesitation on Ruby’s part. Knight also maintained that the test results satisfied Department of

Labor standards and explained:

Mr. Ruby exhaled for longer than seven seconds and reached a plateau at the end
of his expiration. There was no hesitation at all on the pre-bronchodilator
maneuvers at all and so both the pre-bronchodilator FEV1 and FVC values are
valid. There was only some very minor hesitation during the post-bronchodilator
maneuvers but long after the first second (which is the only time period that
matters for the post-bronchodilator FEV1) and well before the last two seconds so
that the post-bronchodilator FVC value is also valid. This hesitation is very minor
and does not affect the validity of the FEV1 and FVC values.

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Substantial evidence in the record thus supports the administrative law judge’s

conclusion that the 2009 pulmonary function test was valid. Evidence of that validity, in

conjunction with the opinions of. Knight and Conibear and the begrudging concessions of.

Rosenberg and Zaldivar, is sufficient to affirm the administrative law judge’s finding that Ruby

suffered from severe pulmonary obstruction.

However, for such a pulmonary condition to constitute “legal pneumoconiosis” requires

proof that the disease or impairment actually arose out of coal mine employment. Simco

Peabody claims that the administrative law judge erred in crediting Knight and Conibear’s

opinions regarding the existence of legal pneumoconiosis because those doctors claimed that

exposure to coal mine dust only “potentially” caused Ruby’s pulmonary obstruction. According

to the coal company, “Both physicians referenced the fact that the Claimant was a non-smoker,

but did no further analysis.” That assertion is based, in large part, on the company’s misguided

implication that Knight and Conibear believed that coal dust is responsible “for every instance of

non-tobacco related lung disease.”

The record does not support Simco Peabody’s leap of logic. In fact, both Knight and

Conibear considered, but rejected, asthma—a non-tobacco-related lung disease—as a potential

cause of Ruby’s condition. Then, relying upon the concrete evidence of Ruby’s pulmonary

symptoms and the lack of any evidence that past or present smoking could have contributed to

the verifiable discomfort the claimant experienced, Knight concluded that “[t]he only apparent

etiology for this person’s lung disease is dust exposure in the course of work over several years.”

Such an analysis is far removed from a complete failure to consider alternatives and a belief that

coal dust exposure is the cause of all lung diseases found in non-smoking miners.

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Furthermore, the administrative law judge did not err in giving no credence to

Rosenberg’s assertion in his deposition that Ruby’s pulmonary issues were unrelated to his coal

mine employment because “any cough or sputum production [Ruby] has two decades after he

has left the coal mine exposure would not [be] related to past coal mine dust exposure.”

Applicable regulations dispute the legitimacy of Rosenberg’s suggestion. Indeed, 20 C.F.R.

§ 718.201(c) provides explicitly that pneumoconiosis is “a latent and progressive disease which

may first become detectable only after the cessation of coal mine dust exposure.” (Emphasis

added.)

The administrative law judge’s finding that Ruby suffered from legal pneumoconiosis is

supported by substantial evidence in the record. Consequently, Simco Peabody’s efforts to

undermine that determination are without merit.

2. Does the Record Establish That Ruby Is Totally Disabled?

The bulk of Simco Peabody’s petition for review involves challenges to the

administrative law judge’s determination that Ruby was totally disabled. In contesting that

factual finding, Simco Peabody argues that the administrative law judge erred: (1) in ignoring

the 2011 pulmonary function test’s finding of no disability; (2) in not applying the “later-is-

better” rule to the 2011 test results; (3) in crediting the testimony of Dr. Conibear even though

she used disability standards that differed from those approved by the Department of Labor;

(4) in crediting the testimony of doctors who relied on information gained from review of the

non-qualifying, yet valid, 2009 test; (5) in crediting opinions of total disability that were not

based on objective medical testing; and (6) in rejecting the opinions of Rosenberg and Zaldivar

simply because they found the 2009 test invalid when the administrative law judge himself

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determined that the results of that test would not qualify, in the absence of other findings, as

evidence of total disability.

For purposes of this litigation, the parties agree that Ruby should be considered totally

disabled if he suffers from “a pulmonary or respiratory impairment which, standing alone,

prevents [him] . . . [f]rom performing his . . . usual coal mine work.” 20 C.F.R.

§ 718.204(b)(1)(i). The regulations again provide four methods for establishing such a disability.

Two of those methods—arterial blood-gas-test values and medical evidence of “cor pulmonale

with right-sided congestive heart failure”—are not relevant here. However, a claimant also may

seek to prove total disability through pulmonary-function-test results or through other diagnostic

techniques. 20 C.F.R. § 718.204(b)(2)(i) and (iv).

a. Use of Pulmonary-Function-Test Results

As a prerequisite to relying upon pulmonary-function-test results to establish total

disability in black lung cases, a claimant must be able to point to results showing FEV1 values

equal to or less than base values listed in a Code of Federal Regulations table for individuals “of

the miner’s age, sex, and height.” 20 C.F.R. § 718.204(b)(2)(i). For a male of Ruby’s age and

height, the FEV1 value of any pulmonary function test must not exceed a level of 1.91 liters if

the test if to qualify as a method of showing total disability. See 20 C.F.R. Pt. 718, App. B

(Table B1). Ruby easy met this threshold requirement. In fact, the highest FEV1 values for the

trials deemed acceptable from Knight’s 2009 test were 1.54 liters (pre-bronchodilator) and

1.57 liters (post-bronchodilator).6

In addition, however, in order to establish total disability, a claimant must submit test

results that meet one of three other benchmarks: (1) values equal to or less than those listed in

6
Rosenberg recorded FEV1 values in his 2011 test of 2.27 liters (pre-bronchodilator) and 1.55 liters (post-
bronchodilator).

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the appropriate table “for an individual of the miner’s age, sex, and height for the FVC test” 7;

(2) values equal to or less than those listed in the appropriate table “for an individual of the

miner’s age, sex, and height for the MVV test”8; or (3) “[a] percentage of 55 or less when the

results of the FEV1 test are divided by the results of the FVC test.” 20 C.F.R.

§ 718.204(b)(2)(i)(A), (B), and (C). The evidence presented to the administrative law judge

indicates that Ruby failed to establish total disability by any of these three methods.

b. Reliance Upon Diagnostic Techniques

Because Ruby was unable to rely upon pulmonary function testing, arterial blood-gas

tests, or the presence of cor pulmonale to establish total disability, the success of his claim for

black lung benefits hinged upon his ability to comply with the provisions of 20 C.F.R.

§ 718.204(b)(2)(iv). Pursuant to that subsection of the regulation:

When total disability cannot be shown under paragraphs (b)(2)(i), (ii), or (iii) of
this section, or where pulmonary function tests and/or blood gas studies are
medically contraindicated, total disability may nevertheless be found if a
physician exercising reasoned medical judgment, based on medically acceptable
clinical and laboratory diagnostic techniques, concludes that a miner’s respiratory
or pulmonary condition prevents or prevented the miner from engaging in [his
usual coal mine work].

To support his claim for benefits, Ruby highlighted the medical reports of Knight and

Conibear. Simco Peabody counters the assertion of total disability with the contrary opinions of

Rosenberg and Zaldivar. As has been detailed previously, Knight and Conibear based their

determinations of total disability on the results of Knight’s physical examination of Ruby and on

the doctors’ review of the claimant’s complaints of wheezing, coughing, and chest pain, as well

as on Ruby’s description of his prior coal mine work. In light of their medical findings and the

fact that Ruby asserted that he had difficulty climbing stairs, could not walk even one block on a

7
“FVC” stands for “forced vital capacity.”
8
“MVV” stands for “maximum voluntary ventilation.”

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level sidewalk without becoming short of breath, and could not lift a bag of groceries repeatedly,

Knight and Conibear made reasoned medical judgments that the claimant no longer could crawl

or duckwalk through dust-filled coal mines carrying or dragging 50-pound boxes of explosives.

Furthermore, even though the 2009 pulmonary function study performed on Ruby at Knight’s

direction was determined to be non-qualifying for purposes of the Act, both Knight and Conibear

considered that Ruby’s FEV1/FVC percentage of 56 was as close to a qualifying pulmonary

function study as possible without actually qualifying. The administrative law judge noted the

bases for the opinions of Knight and Conibear and concluded that they adequately supported the

findings of total disability.

c. Simco Peabody’s Objections to the Finding of Total Disability

Simco Peabody argues that the administrative law judge erred in crediting the medical

opinions of Knight and Conibear when those doctors considered the results of the

2009 pulmonary function study in forming their medical diagnoses. According to the coal

company, because the administrative law judge correctly determined that the study did not meet

the qualifying standards set forth in the regulations to support, on its own, a finding of total

disability, reliance by Knight and Conibear upon that 2009 test was improper. However, Simco

Peabody’s disagreement with the administrative law judge’s recognition of the validity of the

non-qualifying study’s results in formulating a reasoned medical opinion is ill-founded and

contrary to established circuit precedent. In Cornett v. Benham Coal, Inc., 227 F.3d 569, 577

(6th Cir. 2000), for example, we reviewed a denial of benefits to a miner that had been based

upon an administrative law judge’s rejection of a physician’s determination of total disability

that “relied, in part, on a pulmonary function study that ‘yielded numbers above the qualified

amount.’” According to our analysis in Cornett:

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This is clearly an inappropriate reason to reject a physician’s opinion because, as
the regulations explicitly provide, a doctor can make a reasoned medical judgment
that a miner is totally disabled even “where pulmonary function tests and/or
blood-gas studies are medically contraindicated.” 20 C.F.R. § 718.204(c)(4).
Under the regulations, [the physician] was entitled to base a reasonable opinion
on non-qualifying test results, see Jonida Trucking, Inc. v. Hunt, 124 F.3d 739,
744 (6th Cir. 1997), and the ALJ erred by rejecting his opinion for this reason.

Thus, substantial evidence in the record supports the decision of the administrative law judge

that the opinions of Knight and Conibear were reasoned, valid, and based on objective medical

testing.

Similarly, because the valid, although non-qualifying, 2009 test results properly could be

considered in forming a reasoned medical opinion regarding Ruby’s total disability, the

administrative law judge was justified in questioning the validity of the medical opinions of.

Rosenberg and Zaldivar. Both Rosenberg and Zaldivar had testified during their depositions that

if the 2009 test was valid—a factual finding actually made by the administrative law judge—they

would consider Ruby to be suffering from severe, even disabling, pulmonary obstructions.

Nevertheless, when pressed, they concluded that Ruby was not totally disabled due to

pneumoconiosis. Thus, once the administrative law judge concluded that the 2009 test indeed

was valid, he was justified, if not compelled, to conclude that Rosenberg’s and Zaldivar’s

opinions regarding Ruby’s total disability were entitled to little credence or weight.

Nor is there any merit to Simco Peabody’s argument that the administrative law judge

improperly ignored the results of the 2011 pulmonary function test conducted during

Rosenberg’s examination of Ruby. Far from ignoring the results of that study, the administrative

law judge engaged in extensive analysis of that test and a discussion of why the test results were

of little value in determining whether Ruby was totally disabled as a result of pulmonary

obstruction. Significantly, even though the pre-bronchodilator studies in 2011 resulted in non-

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qualifying levels, Rosenberg admitted that Ruby’s efforts during the test were “incomplete and

quite variable.” In addition, Ruby suffered from “a fair amount of coughing during the

evaluation,” further skewing the results. Then, when post-bronchodilator results proved

significantly worse than the pre-bronchodilator readings—an illogical development—Rosenberg

aborted the entire test. Furthermore, Rosenberg admitted that medical records showed that Ruby

was using bronchodilators and inhaled steroids for some unspecified period of time prior to the

initiation of the 2011 test. Not surprisingly, he also conceded such usage could explain why the

claimant performed better on that later evaluation than he did in 2009. Clearly, the

administrative law judge did not ignore the results of the 2011 pulmonary function test; rather, he

recognized the flaws inherent in its administration, found it invalid, and gave little credence to its

results or to the opinion of physicians who sought to use those results as a valid medical

evaluator.

The coal company puts forward two other arguments in its attempt to validate some of the

results of the 2011 pulmonary function test that even its own experts found flawed. First, the

company proposes that the administrative law judge improperly considered the prior use of

bronchodilators to invalidate the 2011 study because the post-bronchodilator results in the 2009

study did not show significant improvement in Ruby’s lung capacity. Consequently, argues

Simco Peabody, Ruby’s use of bronchodilators prior to the 2011 test cannot alone be used to

explain the claimant’s improved test levels. The company fails to take into account, however,

the logical explanation that prolonged use of bronchodilators and inhaled steroids can, over time,

ease breathing in individuals suffering from pulmonary afflictions.9

9
Even if use of bronchodilators led to a lessening of Ruby’s breathing difficulties, such a fact would not call into
question the validity of the administrative law judge’s finding of total disability. As the Benefits Review Board has
ruled, “In making disability determinations, the question is whether the miner is able to perform his job, not whether

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Second, the company insists that application of a “later-is-better rule” necessarily would

lead to the conclusion that the results of the 2011 test, not the 2009 test, should be given greater

weight. The shortest and best reply to this contention is that the 2011 test was deemed invalid

and, therefore, never could be considered “better” than another valid test, regardless of its timing.

Simco Peabody’s final challenge to the administrative law judge’s finding of total

disability in this case involves its disagreement with standards of interpretation used by Dr.

Conibear in her review and analysis of the 2009 and 2011 pulmonary function tests. The coal

company surmises that in concluding that Ruby suffered from legal pneumoconiosis and was

totally disabled from it, Conibear erroneously relied upon the so-called Hankinson reference

range that “uses Lower Limit of Normal values,” rather than upon the Department of Labor-

approved Knudson reference range that “uses fixed cut off limits for normal values.”

Consequently, argues Simco Peabody, the administrative law judge erred in crediting Conibear’s

opinion on total disability.

It is true that Conibear questioned Rosenberg’s use of the Knudson reference range to

interpret the results of the 2011 pulmonary function test and offered that, “[a]pplying the

American Thoracic Society’s preferred Hankinson 1999 reference range . . ., it can be seen that

even though there was improvement compared to the Nov. 12, 2009 [test], Mr. Ruby still has

levels below the population-based lower limit of normal value.” Significantly, however,

Conibear neither stated nor implied that reference to the Hankinson values provided the sole, or

even the most important, basis for her medical opinions of Ruby’s condition. Instead, her

finding of total disability was based more inclusively upon Ruby’s “[s]ymptoms of dyspnea on

exertion with sedentary activities [and] [o]bjective findings on his spirometry, lung volumes,

he is able to perform his job after he takes medication.” Maynard v. Pen Coal Corp., BRB No. 09-0599 BLA, 2010
WL 3073532, at *4 n.3 (BRB July 27, 2010).

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blood gasses, physical examination, and METs developed during the stress test that would

preclude the kind of exertion required in his last coal mine job.” Thus, as the Benefits Review

Board concluded on its review, “the administrative law judge’s error, if any, in failing to address

Dr. Conibear’s use of the Hankinson standards, is harmless.” (Emphasis added.)

3. Was Ruby’s Total Disability Due to Pneumoconiosis?

The final element of a claimant’s case for benefits under the Black Lung Benefits Act is

the requirement that the miner establish by a preponderance of the evidence that total disability

was due to pneumoconiosis. The standards for making such a determination are set forth in

20 C.F.R. § 718.204(c)(1):

A miner shall be considered totally disabled due to pneumoconiosis if
pneumoconiosis . . . 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 pulmonary
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.

Both Knight and Conibear concluded that exposure to coal mine dust caused Ruby’s

COPD and other pulmonary problems. The reasoned opinions of those medical experts provide

the substantial evidence necessary to affirm the conclusion reached by the administrative law

judge that Ruby was totally disabled due to pneumoconiosis. The contrary opinions of

Rosenberg and Zaldivar do not detract from that finding given the fact that the coal company

experts failed even to find that Ruby suffered from pneumoconiosis.

III. CONCLUSION

For the reasons set out above, we conclude that substantial evidence in the record

supports the finding of the administrative law judge both that John Ruby is totally disabled due

to pneumoconiosis caused by his prior coal mine employment and that he is entitled to black

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lung benefits to be paid by Simco Peabody. We therefore DENY the coal company’s petition for

review in this matter.

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