Eastern Associated Coal Corp. v. Director, Office of Workers' Compensation Programs

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1923

EASTERN ASSOCIATED COAL CORPORATION,

Petitioner,

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CLARA SUE TOLER, Administratrix
of the Estate of Arvis R. Toler,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(13-0531 BLA)

Argued: September 17, 2015 Decided: November 6, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Petition for review denied by published opinion. Judge King
wrote the opinion, in which Judge Motz and Judge Gregory joined.

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, LLP,
Washington, D.C., for Petitioner. Evan Barret Smith,
APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky; Jeffrey
Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG
TRAURIG, LLP, Washington, D.C., for Petitioner. M. Patricia
Smith, Solicitor of Labor, Rae Ellen Frank James, Associate
Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director, Office of Workers’
Compensation Programs.

2
KING, Circuit Judge:

Eastern Associated Coal Corporation petitions for review of

the 2014 decision of the Benefits Review Board (the “BRB”)

affirming an award of black lung benefits to Arvis R. Toler.

Toler first applied for black lung benefits in 1993, but that

claim was denied. In granting Toler’s second claim for

benefits, which was filed in 2008, an administrative law judge

(“ALJ”) invoked the rebuttable presumption that a coal miner

with a fifteen-year work history of underground coal mining and

a totally disabling pulmonary impairment is disabled due to

pneumoconiosis (the “fifteen-year presumption”). Eastern

contends that, by applying the fifteen-year presumption to

Toler’s second claim, the ALJ contravened the Black Lung

Benefits Act, 30 U.S.C. §§ 901-945 (the “Act”), and its

regulations, as well as principles of finality and separation of

powers. As explained below, we deny the petition for review and

thereby affirm the BRB’s decision.

Congress created the black lung benefits program in 1969

“to provide benefits . . . to coal miners who are totally

disabled due to pneumoconiosis and to the surviving dependents

3
of miners whose death was due to such disease.” 30 U.S.C.

§ 901(a). Pneumoconiosis is defined as “a chronic dust disease

of the lung and its sequelae, including respiratory and

pulmonary impairments, arising out of coal mine employment.”

Id. § 902(b).

The Act empowers the Secretary of Labor (the “Secretary”)

to implement its provisions and promulgate appropriate standards

for determining whether a coal miner is entitled to benefits

thereunder. See 30 U.S.C. §§ 902(c), 921(b), 936(a). Pursuant

to the regulations, a miner must “establish[]” four

“[c]onditions of entitlement” to obtain black lung benefits:

(1) that he has pneumoconiosis; (2) that his pneumoconiosis

arose out of coal mine employment; (3) that he is totally

disabled; and (4) that pneumoconiosis contributes to his total

disability. See 20 C.F.R. § 725.202(d); see also W. Va. CWP

Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015).

The applicable regulations identify two types of

pneumoconiosis: legal and clinical. 20 C.F.R. § 718.201(a).

Clinical pneumoconiosis “consists of those diseases recognized

by the medical community as pneumoconioses, 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 employment.” Id. § 718.201(a)(1). Legal pneumoconiosis is

4
defined more broadly to “include[] any chronic pulmonary disease

or respiratory or pulmonary impairment significantly related to,

or substantially aggravated by, dust exposure in coal mine

employment.” Id. § 718.201(a)(2). Clinical pneumoconiosis can

be further classified as either “simple” or “complicated.” See

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976).

Complicated pneumoconiosis, sometimes referred to as

“progressive massive fibrosis,” see Lisa Lee Mines v. Dir.,

OWCP, 86 F.3d 1358, 1359-60 (4th Cir. 1996) (en banc), is

characterized by the presence of “massive lesions” in the lungs

that resolve on imaging as opacities at least one centimeter in

diameter. See 30 U.S.C. § 921(c)(3).

Congress has occasionally “recalibrated” the applicable

standards for entitlement to benefits under the Act. See W. Va.

CWP Fund v. Stacy, 671 F.3d 378, 381 (4th Cir. 2011). In 1972,

responding to mounting evidence that meritorious claims were

being unjustifiably denied, Congress amended the Act to afford a

presumption of total disability due to pneumoconiosis to a coal

miner who could show that he had worked underground for at least

fifteen years and was suffering from a totally disabling

respiratory or pulmonary impairment. See Black Lung Benefits

Act of 1972, Pub. L. No. 92-303, § 4(c), 86 Stat. 150, 154

(codified as amended at 30 U.S.C. § 921(c)(4)); Bozwich v.

Mathews, 558 F.2d 475, 478-79 (8th Cir. 1977). The fifteen-year

5
presumption could be rebutted “only by establishing that (A)

such miner does not, or did not, have pneumoconiosis, or that

(B) his respiratory or pulmonary impairment did not arise out

of, or in connection with, employment in a coal mine.” See 30

U.S.C. § 921(c)(4). 1 In 1981, Congress repealed the fifteen-year

presumption for claims filed on or after January 1, 1982. See

Black Lung Benefits Revenue Act of 1981, § 202(b)(1), Pub. L.

No. 97-119, 95 Stat. 1635, 1643 (repealed 2010); Bender, 782

F.3d at 134.

In March 2010, Congress restored the fifteen-year

presumption — after a twenty-nine-year hiatus — by enacting

§ 1556(a) of the Patient Protection and Affordable Care Act (the

“ACA”), Pub. L. No. 111-148, 124 Stat. 119, 260 (2010) (codified

at 30 U.S.C. § 921(c)(4)). Section 1556(c) of the ACA provided

that the fifteen-year presumption “shall apply with respect to

claims filed . . . after January 1, 2005, that are pending on or

after the date of enactment” of the ACA — that is, March 23,

2010.

In 2013, the Secretary promulgated regulations implementing

the revived fifteen-year presumption. See 20 C.F.R. § 718.305;

Bender, 782 F.3d at 134-35. Under those regulations, a party

1 A coal miner with complicated pneumoconiosis is entitled
to an irrebuttable presumption of total disability due to
pneumoconiosis. See 30 U.S.C. § 921(c)(3).

6
opposing a claim for benefits is entitled to rebut the fifteen-

year presumption by establishing either (1) that the miner has

neither legal pneumoconiosis nor clinical pneumoconiosis arising

out of coal mine employment, or (2) “that no part of the miner’s

respiratory or pulmonary total disability was caused by

pneumoconiosis.” 20 C.F.R. § 718.305(d)(1). In other words, to

rebut the fifteen-year presumption, the opposing party is

obliged to “‘rule out’ any connection between [the] miner’s

pneumoconiosis and his disability.” See Bender, 782 F.3d at

135.

Under the regulations governing subsequent black lung

benefits claims, a coal miner who has had an earlier claim for

benefits denied must establish “that one of the applicable

conditions of entitlement” specified in § 725.202(d) “has

changed since the date upon which the order denying the prior

claim became final.” See 20 C.F.R. § 725.309(c). The

regulations limit the “applicable conditions of entitlement” to

“those conditions upon which the prior denial was based.” Id.

§ 725.309(c)(3). If the applicable conditions of entitlement

“relate to the miner’s physical condition,” then “the subsequent

claim may be approved only if new evidence submitted in

connection with the subsequent claim establishes at least one

applicable condition of entitlement.” Id. § 725.309(c)(4). If

7
a claimant fails to show a change in an applicable condition of

entitlement, the claim must be denied. Id. § 725.309(c). But,

if the claimant shows a change in an applicable condition of

entitlement, none of the findings from the prior adjudication

are binding, and the new claim must be evaluated de novo, based

on all of the evidence. Id. § 725.309(c)(5). Even if the

claimant prevails on the subsequent claim, no benefits may be

awarded for the period adjudicated by the prior claim. Id.

§ 725.309(c)(6).

Prior to 2000, § 725.309 required a coal miner whose

earlier claim was denied to show a “material change in

conditions” in order to pursue a subsequent claim. See Lisa Lee

Mines, 86 F.3d at 1360. During that period, the Director of the

Office of Workers’ Compensation Programs (the “Director”), the

BRB, and the courts of appeals rendered conflicting

interpretations of the regulatory phrase “material change in

conditions.” To resolve that conflict and clarify the

applicable standard, the Secretary initiated notice-and-comment

rulemaking pursuant to the Administrative Procedure Act, 5

U.S.C. § 553. See Regulations Implementing the Federal Coal

Mine Health and Safety Act of 1969, as Amended, 62 Fed. Reg.

3338-01, 3351-52 (proposed Jan. 22, 1997). At the conclusion of

that rulemaking process, the Secretary promulgated a final rule

(the “2000 Final Rule”) establishing the standard currently

8
specified in § 725.309. See Regulations Implementing the

Federal Coal Mine Health and Safety Act of 1969, as Amended, 65

Fed. Reg. 79,920-01, 79,968, 80,067-68 (Dec. 20, 2000) (to be

codified at 20 C.F.R. § 725.309).

The Secretary’s 2000 Final Rule expressly adopted our

Court’s en banc 1996 decision in Lisa Lee Mines on the meaning

of a “material change in conditions.” In the preamble to the

2000 Final Rule, the Secretary explained that she was

“effectuat[ing]” Lisa Lee Mines. See 2000 Final Rule, 65 Fed.

Reg. at 79,968; see also Regulations Implementing the Federal

Coal Mine Health and Safety Act of 1969, as Amended, 64 Fed.

Reg. 54,966-01, 54,984 (proposed Oct. 8, 1999) (“The

[Secretary]’s subsequent claims provision gives full effect to

the Fourth Circuit’s decision in Lisa Lee Mines . . . .”).

Because the Secretary expressly endorsed and adopted Lisa Lee

Mines when she promulgated the 2000 Final Rule, Lisa Lee Mines

remains the law of this Circuit and guides our interpretation of

§ 725.309. 2

2
As we recognized in Harman Mining Co. v. Director, OWCP,
the preamble to the 2000 Final Rule “may serve as a source of
evidence concerning contemporaneous agency intent.” See 678
F.3d 305, 316 (4th Cir. 2012) (internal quotation marks
omitted).

9
3.

Alva Rutter, the coal miner-claimant in Lisa Lee Mines,

unsuccessfully sought black lung benefits in 1986. See 86 F.3d

at 1360. Three years thereafter, he filed a second claim,

supported by more recent x-rays that indisputably established

his entitlement to benefits. Id. at 1359-60. Lisa Lee Mines,

the responsible operator, contested Rutter’s claim solely on the

ground that Rutter had not shown a “material change in

conditions.” Id. at 1360. An ALJ ruled that Rutter had shown

such a change, reasoning that the medical evidence showed “a

definite progression” of Rutter’s disease “resulting in

[Rutter’s] reduced capacity to do his former coal mine work.”

Id. The ALJ further concluded that, even if Rutter failed to

show a material change in conditions, the 1986 denial was

“erroneous on its face and ‘null and void ab initio.’” Id.

Accordingly, the ALJ awarded benefits effective on the date that

Rutter’s first claim was filed. Id. The BRB affirmed the award

of benefits, but concluded that the ALJ was not entitled to

reopen the 1986 denial. Id. It therefore modified the award to

provide that benefits would be payable only as of the date

Rutter filed his second claim. Id.

Lisa Lee Mines then sought review in this Court. In our en

banc decision, we agreed that the BRB had properly reversed the

ALJ’s reopening of the 1986 denial. See Lisa Lee Mines, 86 F.3d

10
at 1361. We explained that, because the 1986 decision was

“final,” that decision “and its necessary factual underpinning”

must be accepted as “correct.” Id. We emphasized, however,

that the first BRB decision did not bar a subsequent claim “as a

matter of ordinary res judicata,” because “[t]he health of a

human being is not susceptible to a once-in-a-lifetime

adjudication.” Id. at 1362. Rutter’s second claim for black

lung benefits required an assessment of his condition when that

claim was filed, an issue which neither was — nor could have

been — litigated in connection with Rutter’s first claim. Id.

We then addressed the appropriate standard for evaluating

subsequent claims for black lung benefits, and we adopted the

“one element” standard advanced by the Director. See Lisa Lee

Mines, 86 F.2d at 1362-64. That rule required the claimant “to

prove, under all of the probative medical evidence of his

condition after the prior denial, at least one of the elements

previously adjudicated against him.” Id. at 1362. We rejected

a more stringent standard, drawn from the Seventh Circuit’s

decision in Sahara Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir.

1991), that would have required the claimant to show a change in

condition on every element previously decided against him,

because it did not “account for the frailty of alternative

holdings,” and because it required “a plenary review of the

evidence behind the first claim.” Lisa Lee Mines, 86 F.3d at

11
1363. We also rejected the standard sponsored by the BRB in

Spese v. Peabody Coal Co., 11 BLR 1-174, 1-176 (Ben. Rev. Bd.

1988), which would have allowed a coal miner’s subsequent claim

to proceed if the miner presented new evidence that raised a

reasonable possibility of changing the result, deeming such a

standard vague, illogical, and “arguably” too lenient. Lisa Lee

Mines, 86 F.3d at 1363.

For twenty-seven years, Arvis Toler worked in and about

Eastern’s coal mines in southern West Virginia, primarily as an

electrician. For sixteen of those years, Toler toiled

underground, where he was exposed to high concentrations of coal

dust. Between approximately 1966 and 1997, he generally smoked

a pack of cigarettes each day. Toler began to experience

shortness of breath in the mid-1980s. His breathing problems

worsened, and, in 1993, at age fifty-five, Toler’s failing

health caused him to quit his job as a coal miner.

In 1993, shortly before he left Eastern, Toler filed his

first claim for black lung benefits. An ALJ found that Toler

was totally disabled by severe obstructive pulmonary disease,

but also that Toler had failed to show that his work in the coal

mines (rather than his smoking habit) caused his pulmonary

illness. As such, the ALJ denied Toler’s claim for benefits.

12
The BRB affirmed the ALJ’s decision, explaining that the ALJ had

properly weighed the evidence and permissibly found that Toler

had not shown by a preponderance of the evidence that he

suffered from pneumoconiosis. Toler thereafter petitioned this

Court for review of the BRB’s adverse decision. In 1998, we

denied Toler’s petition for review and affirmed the BRB. See

Toler v. E. Assoc. Coal Corp., No. 97-2148 (4th Cir. Aug. 19,

1998) (unpublished).

Despite leaving his coal mine work and abandoning his

smoking habit, Toler’s respiratory condition continued to

decline. By 2000, Toler required supplemental oxygen, and he

began using oxygen twenty-four hours per day in 2008.

Toler filed his second claim for black lung benefits on

February 26, 2008. In April 2008, the Director had Toler

undergo a complete pulmonary evaluation. See 20 C.F.R.

§ 725.406(a). As part of that evaluation, Toler had a chest x-

ray, which a radiologist read as positive for simple

pneumoconiosis, as well as blood gas and pulmonary function

tests, which indicated that Toler was permanently disabled due

to a pulmonary impairment. Based on those tests, and on his own

examination of Toler, Dr. John Burrell diagnosed “[s]imple

pneumoconiosis category s/t, 1/0; severe chronic obstructive

13
pulmonary disease; [and] [arteriosclerotic heart disease] with

[coronary artery disease], based on history, physical, chest x-

ray, [arterial blood gas test results] & [pulmonary function

studies].” See J.A. 243. 3 Dr. Burrell identified smoking and

occupational exposure to coal dust as causes of Toler’s

pulmonary impairments.

Both Toler and Eastern submitted additional evidence to the

Director regarding the second claim. Toler furnished a

radiologist’s reading of a July 14, 2008 x-ray that was also

positive for simple pneumoconiosis, and Eastern introduced a

negative reading of the April 2, 2008 x-ray.

On October 23, 2008, the district director issued a

proposed decision and order granting Toler’s second claim.

Because Eastern objected to the decision, Toler’s second claim

was scheduled for a March 17, 2010 hearing before an ALJ. Toler

testified at the hearing and introduced several new exhibits.

Toler’s exhibits included a second reading of the July 14, 2008

x-ray as positive for pneumoconiosis, as well as additional

pulmonary function and blood gas studies. Toler also submitted

a letter from his treating physician advising that Toler “has

severe obstructive lung disease with pulmonary nodule and

3 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.

14
intermittent infiltrates” and opining that “it is quite probable

given the severity of Mr. Toler’s disease that coal dust played

an integral role in [its] development.” J.A. 103.

Eastern introduced several other exhibits into evidence,

including negative readings of the April and July 2008 x-rays, a

December 11, 2009 digital x-ray, and five CT scans taken between

December 2006 and November 2008. In addition, Eastern furnished

reports by Dr. David Rosenberg and Dr. Joseph Renn concluding

that Toler did not have pneumoconiosis. Finally, Eastern took

the uncontested depositions of Drs. Rosenberg and Renn and

introduced those depositions.

On June 15, 2010, the ALJ issued his Decision and Order

(the “2010 ALJ Order”) granting Toler’s claim for benefits. The

ALJ accepted the parties’ stipulations that Toler was a coal

miner, that Toler was totally disabled from a pulmonary

impairment, and that Eastern was the responsible operator.

Based thereon, the ALJ applied the newly restored fifteen-year

presumption to Toler’s claim and identified the only remaining

issue as “[w]hether [Eastern] can establish that [Toler] does

not suffer from pneumoconiosis.” See 2010 ALJ Order 3. The ALJ

then examined the opinions of Drs. Rosenberg and Renn, rejecting

both because they were grounded in a misinterpretation of a

medical study and because those experts had failed to consider

15
Toler’s twenty-seven-year history of coal mine employment.

Accordingly, the ALJ concluded that Eastern had failed to

demonstrate that Toler did not have pneumoconiosis or that his

pulmonary impairment did not arise out of, or in connection

with, Toler’s coal mine employment.

Eastern appealed the 2010 ALJ Order to the BRB, which

promptly remanded to the ALJ to afford Eastern the opportunity

to submit new evidence aimed at rebutting the fifteen-year

presumption. On remand, Eastern submitted to the ALJ an

additional report from Dr. Rosenberg, and both Eastern and Toler

submitted briefs supporting their respective positions.

On August 1, 2013, the ALJ issued his second Decision and

Order (the “2013 ALJ Order”) granting Toler’s claim for black

lung benefits. Relying on the Seventh Circuit’s decision in

Consolidation Coal Co. v. Director, OWCP, 721 F.3d 789 (7th Cir.

2013) (hereinafter “Bailey”), the ALJ again applied the fifteen-

year presumption to Toler’s second claim. In assessing whether

Eastern had rebutted that presumption, the ALJ discussed the

evidence in some detail. The ALJ first concluded that the

radiological evidence was inconclusive as to pneumoconiosis, and

thus insufficient to meet Eastern’s burden. Turning to the

expert evidence, the ALJ again rejected Drs. Rosenberg’s and

Renn’s opinions for much the same reasons specified in the 2010

ALJ Order. The ALJ evaluated and rejected Dr. Rosenberg’s

16
supplemental report, reasoning, inter alia, that Dr. Rosenberg’s

conclusions were “inconsistent with the [Secretary]’s findings

in the preamble to” the 2000 Final Rule. See 2013 ALJ Order 10. 4

Thus, the ALJ concluded that Eastern had failed to rebut the

fifteen-year presumption and that Toler was entitled to

benefits.

Eastern thereafter appealed the 2013 ALJ Order to the BRB,

which affirmed the ALJ by its Decision and Order of July 7, 2014

(the “BRB Decision”). The BRB considered and rejected Eastern’s

arguments that principles of finality and res judicata precluded

application of the fifteen-year presumption to Toler’s second

claim. In rejecting Eastern’s contention that Toler improperly

sought to relitigate or reopen his first claim, the BRB invoked

our teaching in Lisa Lee Mines, 86 F.3d at 1362, that a

subsequent claim is not the same as a prior claim and is not

barred by the denial of the earlier claim. Because the

adjudication of Toler’s second claim did not disturb either the

denial of benefits on his first claim or this Court’s

4In the preamble to the 2000 Final Rule, the Secretary
explained that “[e]pidemiological studies have shown that coal
miners have an increased risk of developing COPD.” 2000 Final
Rule, 65 Fed. Reg. 79,973. The Secretary’s review of the
medical literature revealed that the severity of COPD among coal
miners “was related to the amount of dust in the lungs,” and
that this correlation “held even after controlling for age and
smoking habits.” Id. at 79,941.

17
disposition of his petition for review, the BRB concluded that

granting the second claim did not offend any constitutional

principles relating to separation of powers. Relying on the

Seventh Circuit’s Bailey decision, the BRB also rejected

Eastern’s contention that the fifteen-year presumption cannot be

used to establish a change in an applicable condition of

entitlement. Finally, the BRB rejected Eastern’s contentions

that the ALJ had applied an improper rebuttal standard and erred

in ruling that Eastern failed to rebut the fifteen-year

presumption.

Eastern has filed a timely petition for review of the BRB

Decision, in which the Director and Toler’s widow are presently

the respondents. 5 We possess jurisdiction to consider Toler’s

petition for review pursuant to 30 U.S.C. § 932(a) and 33 U.S.C.

§ 921(c).

II.

We review an ALJ decision that has been affirmed by the BRB

to determine whether it is in accordance with the law and

supported by substantial evidence. See Island Creek Coal Co. v.

5
On March 19, 2015, after this matter was fully briefed,
Toler passed away. His widow, Clara Sue Toler, as
administratrix of her husband’s estate, has been substituted as
a respondent in his place and stead.

18
Compton, 211 F.3d 203, 207-08 (4th Cir. 2000). In so doing, we

confine our review to the grounds upon which the BRB based its

decision. See Grigg v. Dir., OWCP, 28 F.3d 416, 418 (4th Cir.

1994). As always, we review de novo the BRB’s conclusions of

law. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th

Cir. 1998).

III.

Eastern presses two primary assignments of error in its

petition for review: (1) that, by applying the fifteen-year

presumption to Toler’s second claim, the ALJ reopened a final

judgment of an Article III court, in contravention of separation

of powers principles; and (2) that the ALJ improperly used the

fifteen-year presumption to establish that one of the applicable

conditions of entitlement had changed since the denial of

Toler’s first claim. 6 Because Eastern’s first contention

6
In its briefs in this Court, Eastern also contended that
the ALJ erred in requiring Eastern to “rule out” either
pneumoconiosis or disability due to pneumoconiosis in order to
rebut the fifteen-year presumption. Eastern conceded at oral
argument, however, that our recent decision in West Virginia CWP
Fund v. Bender forecloses that contention. See 782 F.3d 129,
143 (4th Cir. 2015) (upholding “rule-out” standard). Our
precedent also readily dispatches Eastern’s complaints about the
ALJ’s consideration of the preamble to the 2000 Final Rule in
evaluating the opinions of Drs. Rosenberg and Renn. See Harman
Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir. 2012)
(concluding that ALJ did not err in invoking regulatory preamble
in assessing medical expert’s credibility); see also
(Continued)
19
requires us to pass on the constitutionality of agency action,

we are obliged to first address its second contention. See

Marshall v. Stevens People & Friends for Freedom, 669 F.2d 171,

175 (4th Cir. 1981) (resolving statutory challenges to

administrative subpoenas before addressing constitutional issues

(citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347

(1936) (Brandeis, J., concurring))).

First, Eastern maintains that utilizing the fifteen-year

presumption to show a change in a condition of entitlement

pursuant to 20 C.F.R. § 725.309(c) contravenes the Act and the

implementing regulations. We disagree.

Both the Act and the regulations show plainly that a coal

miner armed with new evidence may invoke the fifteen-year

presumption to establish a change in an applicable condition of

entitlement. Section 725.309(c) requires a coal miner to show

that an “applicable condition[] of entitlement” has changed

since the prior denial. “If the applicable condition(s) of

entitlement relate to the miner’s physical condition,” then the

miner may rely only on new evidence to show a change in an

Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 323 (4th Cir.
2014) (explaining that ALJ “may consider” regulatory preamble
“in assessing medical expert opinions”).

20
applicable condition of entitlement. See id. § 725.309(c)(4);

see also Consol. Coal Co. v. Williams, 453 F.3d 609, 617 (4th

Cir. 2006) (“[O]nly new evidence following the denial of the

previous claim, rather than evidence predating the denial, can

sustain a subsequent claim.”). Section 725.202(d) lists the

“conditions of entitlement” for a coal miner’s claim, including

that the miner must have “pneumoconiosis” as it is defined in

§ 718.202. Section 718.202 identifies several ways a miner can

establish pneumoconiosis, including by use of the fifteen-year

presumption described in § 718.305. See 20 C.F.R.

§ 718.202(a)(3) (requiring the decisionmaker to presume that the

coal miner has pneumoconiosis “[i]f the presumptions described

in § 718.304 or § 718.305 are applicable”). And § 718.305

tracks the fifteen-year presumption revived in 2010 by § 1556(a)

of the ACA, which, pursuant to § 1556(c), applies to Toler’s

second claim because that claim was “filed . . . after January

1, 2005,” and was “pending on or after” March 23, 2010.

Congress’s use of the term “claims” in § 1556(c) “without any

qualifying language . . . supports [the] position that amended

[§ 921(c)(4)] applies to all claims that comply with [§]

1556(c)’s time limitations, including subsequent claims.” Union

Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013)

(citations and internal quotation marks omitted).

21
The preamble to the 2000 Final Rule reinforces our textual

conclusion that the fifteen-year presumption, together with new

evidence, may establish a change in a condition of entitlement.

In the preamble, the Secretary rejected a comment suggesting

that a coal miner should be obliged to “submit scientific

evidence establishing that the change in his specific condition

represents latent, progressive pneumoconiosis.” See 65 Fed.

Reg. at 79,972. Instead, as the Secretary explained, “the miner

continues to bear the burden of establishing all of the

statutory elements of entitlement, except to the extent that he

is aided by [the] two statutory presumptions” in effect at the

time the Secretary promulgated the 2000 Final Rule. Id. In

other words, the preamble evinces the Secretary’s intention that

any applicable statutory presumptions may aid a miner’s

subsequent claim.

Thus, the text of the statute and regulations, as well as

the preamble to the 2000 Final Rule, demonstrate that the

fifteen-year presumption applies to subsequent claims and may be

used to establish a change in an applicable condition of

entitlement. Even if we harbored doubts about that conclusion,

we would defer to the Director’s reasonable and consistent

interpretation of the applicable regulations. See Clinchfield

Coal Co. v. Harris, 149 F.3d 307, 310 (4th Cir. 1998)

(explaining that Director’s interpretation of applicable

22
regulation is entitled to “substantial deference” and will be

respected unless “plainly erroneous or inconsistent with the

express language” thereof (quoting Mullins Coal Co. v. Dir.,

OWCP, 484 U.S. 135, 159 (1987))).

Contrary to Eastern’s suggestion, application of the

fifteen-year presumption to a coal miner’s subsequent claim does

not amount to a “double presumption.” See Br. of Petitioner 22.

Under the one-element test, the miner is required to “prove,

under all of the probative medical evidence of his condition

after the prior denial, at least one of the elements previously

adjudicated against him.” See Lisa Lee Mines, 86 F.3d at 1362;

see also 20 C.F.R. § 725.309(c) (requiring the miner to

“demonstrate[] that one of the applicable conditions of

entitlement . . . has changed”). The fifteen-year presumption

merely helps the miner to establish the conditions of

entitlement in the second claim. It does not allow the ALJ to

“waive finality by presuming that something changed.” See Br.

of Petitioner 22.

In advancing its preferred interpretation of the relevant

statutory and regulatory provisions, Eastern relies on the

Secretary’s concession in National Mining Ass’n v. Department of

Labor that “the most common forms of pneumoconiosis are not

latent,” see 292 F.3d 849, 863 (D.C. Cir. 2002). That

concession, in Eastern’s view, is simply inconsistent with

23
utilization of the fifteen-year presumption to establish a

change in a condition of entitlement. Although Eastern does not

dispute that complicated pneumoconiosis can be latent and

progressive, it insists that “simple clinical[] and legal

pneumoconiosis[] are neither latent nor progressive,” and that

the Secretary conceded as much in National Mining Ass’n. See

Br. of Pet’r 18.

Put succinctly, we are not “empowered to substitute [our]

judgment for that of the [Secretary]” on matters within the

Secretary’s area of expertise. See Hughes River Watershed

Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999); see

also Midland Coal Co. v. Dir., OWCP, 358 F.3d 486, 490 (3d Cir.

2004) (“[W]e see no reason to substitute our scientific

judgment, such as it is, for that of the responsible agency.”).

Eastern therefore bears a “heavy burden of showing that the

[Secretary] was not entitled to use [her] delegated authority to

resolve the scientific question in this manner.” Midland Coal,

358 F.3d at 490. Eastern has failed to meet that burden in this

proceeding.

The Secretary, after reviewing “all of the medical

literature referenced in the [2000 rulemaking] record,” located

“abundant evidence demonstrating that pneumoconiosis is a

latent, progressive disease.” See 65 Fed. Reg. at 79,970,

79,971. The discussion of the medical literature in the

24
preamble to the 2000 Final Rule demonstrates that both simple

and complicated pneumoconiosis can be latent and progressive.

In one study, fourteen of the thirty-three miners who showed

progression of pneumoconiosis after leaving the coal mining

industry had simple pneumoconiosis. See 65 Fed. Reg. at 79,970;

see also P.T. Donnan et al., Progression of Simple

Pneumoconiosis in Ex-Coalminers After Cessation of Exposure to

Coalmine Dust (Inst. of Occupational Med., Dec. 1997). Another

study “reported both small opacities (evidence of simple

pneumoconiosis) and large opacities (evidence of complicated

pneumoconiosis) in ex-miners who did not show evidence of coal

workers’ pneumoconiosis after the miners left the industry.”

2000 Final Rule, 65 Fed. Reg. at 79,970. Thus, “[t]he medical

literature makes it clear that pneumoconiosis” — even in its

simple form — “may be latent and progressive.” Nat’l Mining

Ass’n, 292 F.3d at 863; accord RAG Am. Coal Co. v. OWCP, 576

F.3d 418, 426-27 (7th Cir. 2009) (rejecting suggestion that

simple pneumoconiosis can never be progressive or latent absent

further exposure to coal dust); Labelle Processing Co. v.

Swarrow, 72 F.3d 308, 315 (3d Cir. 1995) (same).

None of Eastern’s other contentions against application of

the fifteen-year presumption have merit. Although Eastern

contends that Toler’s second claim is “the same claim” as his

first claim “with a new label,” see Reply Br. of Pet’r 10, we

25
rejected that very proposition in Lisa Lee Mines. See 86 F.3d

at 1362 (“A new black lung claim is not barred . . . by an

earlier denial, because the claims are not the same.”). That

precept also suffices to address Eastern’s reliance on

principles of finality, to the extent those principles bear on

our interpretation of the statutory and regulatory provisions at

issue in this matter. Furthermore, Lisa Lee Mines forecloses

Eastern’s suggestion that Toler should be compelled to prove

that the etiology of his condition has changed by comparing the

evidence pertaining to Toler’s second claim with the evidence

underlying the denial of his first claim. See id. at 1361 (“The

final decision of the ALJ (or BRB or claims examiner) on the

spot is the best evidence of the truth at the time [of the first

claim].”); id. at 1363 (explaining that “plenary review of the

evidence behind the first claim” is impermissible); accord U.S.

Steel Mining Co. v. Dir., OWCP, 386 F.3d 977, 989 (11th Cir.

2004) (“[T]he ‘one element’ test does not compel a comparison of

the evidence associated with the second claim with the evidence

presented at the first claim; rather, it mandates a comparison

of the second claim’s evidence with the conclusions reached in

the prior claim.”).

Finally, Eastern’s suggestion that Toler failed to submit

new evidence — postdating the denial of his first claim — as

required by 20 C.F.R. § 725.309(c)(4) and our decision in

26
Williams, 453 F.3d at 617, is factually incorrect. Toler

introduced two positive readings of the July 2008 x-ray, results

of two spirometry and arterial blood gas tests, and a letter

from his treating physician. In addition, the complete

pulmonary examination conducted pursuant to 20 C.F.R.

§ 725.406(a) yielded another x-ray reading that was positive for

pneumoconiosis, spirometry and blood gas tests consistent with

total disability, and Dr. Burrell’s examination report, in which

he opined that Toler’s pulmonary disability was caused in part

by coal dust exposure. Despite Eastern’s intimations to the

contrary, that evidence is new. Although Eastern may not regard

that evidence as “reliable or probative,” see Reply Br. of Pet’r

9, weighing the evidence is for the ALJ, not the court of

appeals or appellate counsel. 7

In sum, Eastern has presented no good reason why the 2010

reenactment of the fifteen-year presumption required the

Secretary to revise his subsequent-claim rule or deviate from

his longstanding interpretation of that rule. The BRB and ALJ

7
At oral argument and in a post-argument Rule 28(j) letter,
Eastern heaved a Hail Mary pass, invoking the principle that
courts should construe statutes to avoid “serious
[constitutional] doubt[s]” when such a construction is “fairly
possible.” See Ashwander, 297 U.S. at 348 (Brandeis, J.,
concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
That contention also falls short, not least because Eastern has
raised no “serious” doubt about the constitutionality of any
particular statute or regulation.

27
“must apply the law in effect at the time of a decision,” see

Bailey, 721 F.3d at 795, which is exactly what they did here.

Accordingly, we reject Eastern’s contention that the ALJ

contravened either the Act or the applicable regulations by

applying the fifteen-year presumption to Toler’s second claim.

Having rejected Eastern’s statutory argument, we turn to

its remaining constitutional contention: that utilization of

the fifteen-year presumption to decide Toler’s second claim

contravened constitutional principles of separation of powers.

Eastern contends that the ALJ exercised the Article III

“judicial Power” in contravention of the Supreme Court’s

decision in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995), by permitting Toler to “relitigat[e] a final judgment of

this Court” — namely, our 1998 denial of his petition for review

of the BRB’s decision affirming the ALJ’s denial of Toler’s

first claim. See Br. of Pet’r 10.

At issue in Plaut was a 1991 amendment to the Securities

and Exchange Act of 1934 (the “Exchange Act”) adopted in

response to the Court’s decision in Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991). In Lampf,

the Court held that actions under § 10(b) of the Exchange Act

“must be commenced within one year after the discovery of the

facts constituting the violation and within three years after

28
such violation.” 501 U.S. at 364. The Lampf Court overruled

several courts of appeals that had applied state statutes of

limitations to § 10(b) actions. See Plaut, 514 U.S. at 216. In

Lampf’s wake, several actions pending in the lower courts were

dismissed because of Lampf’s holding. See Plaut, 514 U.S. at

214, 216. Six months after the Court decided Lampf, Congress

enacted a statute requiring the district courts to reinstate

certain § 10(b) actions dismissed based on Lampf and to treat

those actions as being timely filed. See Plaut, 514 U.S. at

214-15.

In Plaut, the Court held that the mandatory reinstatement

provision of the 1991 amendment contravened the doctrine of

separation of powers by requiring the federal courts to reopen

closed cases that were not pending on direct appeal. See 514

U.S. at 219, 225. The Court reasoned that the “judicial Power”

includes the power to render final judgments in cases, subject

to review only by superior courts, and that, by retroactively

requiring courts to reopen such judgments, Congress was

infringing on that authority. Id. at 218-19.

Simply put, Plaut presents no obstacle to the ALJ’s

consideration of Toler’s second claim under post-ACA legal

standards. The ALJ’s award of benefits on Toler’s second claim

did not “retroactively . . . reopen” anything, much less a final

judgment of an Article III court. As we explained in Lisa Lee

29
Mines, a subsequent claim based on new evidence is not the same

claim as the one previously denied. See 86 F.3d at 1362.

Indeed, pursuant to Lisa Lee Mines, the ALJ was required to, and

did, accept the correctness of the administrative denial of

Toler’s 1993 claim — and, by necessary extension, our 1998

denial of Toler’s petition for review. Moreover, as in Lisa Lee

Mines, Toler’s second claim required the ALJ to assess his

pulmonary impairment and its etiologies at the time that claim

was filed, an issue which neither was nor could have been

litigated in connection with Toler’s first claim.

Notably, Eastern has identified no authority extending

Plaut to these or similar circumstances. Indeed, in

Consolidation Coal Co. v. Maynes, 739 F.3d 323, 326, 328 (6th

Cir. 2014), the Sixth Circuit rejected a coal mine operator’s

contention that Plaut applied to bar a widow’s claim for

survivor’s benefits under § 1556(b) of the ACA, where a federal

court of appeals had previously affirmed the Secretary’s denial

of a prior claim for survivor’s benefits under pre-ACA law. 8

8
Section 1556(b) of the ACA restored to the Act a statutory
provision making the payment of benefits to “eligible survivors”
automatic upon the death of a coal miner “who was determined to
be eligible” for miner’s benefits “at the time of his or her
death.” See 30 U.S.C. § 932(l). Like the fifteen-year
presumption, the automatic survivor’s benefits provision had
been repealed by Congress in the 1981 amendments to the Act.
See Stacy, 671 F.3d at 381-82 (outlining history of automatic
survivor’s benefits provision).

30
Maynes is closer to Plaut than this proceeding is, as the widow

in Maynes was not required to show a change in any condition of

entitlement. See 20 C.F.R. § 725.309(c)(1) (providing that

survivor whose claim was denied under pre-ACA law but would be

granted under current law need not show change in condition of

entitlement). 9

In sum, we reject Eastern’s suggestion that the ALJ

exercised “the judicial Power” when he granted Toler’s second

claim. The ALJ in this matter simply considered Toler’s second

claim based on new evidence under the law in effect at the time

of the second claim. In doing so, the ALJ did not reopen

Toler’s first claim; he accepted that decision and “its

necessary factual predicate” as correct. See Lisa Lee Mines, 86

F.3d at 1362. And the ALJ certainly did not reopen our 1998

denial of Toler’s petition for review. 10

9 In its reply brief and at oral argument, Eastern
encouraged us to reject Maynes on the basis of a two-judge
concurrence in a default denial of rehearing en banc in Peabody
Coal Co. v. Director, OWCP, No. 12-4366 (6th Cir. Dec. 23,
2014). The operator in Peabody presented the same contention
the Maynes court rejected, and the Peabody panel relied on
Maynes to deny the petition for review. See 577 F. App’x 469,
470 (6th Cir. 2014), cert. denied, No. 14-1278, __ S. Ct. ___
(Oct. 5, 2015). We have reviewed the Peabody concurrence in the
denial of rehearing en banc and deem it unpersuasive.
10Although Eastern asserted at oral argument that its
constitutional argument relates to separation of powers, it
summarily suggested in its opening brief that, by allowing Toler
to use the fifteen-year presumption in conjunction with new
(Continued)
31
IV.

Pursuant to the foregoing, we deny Eastern’s petition for

review.

PETITION FOR REVIEW DENIED

evidence to establish a change in a condition of entitlement,
the Director denied Eastern due process. We are satisfied to
reject Eastern’s scantily developed due process contention. As
legislation “adjusting the burdens and benefits of economic
life,” § 1556(a) enjoys “a presumption of constitutionality, and
. . . the burden is on one complaining of a due process
violation to establish that the legislature has acted in an
arbitrary and irrational way.” See Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 15, 20 (1976) (rejecting coal company’s
due process challenge to fifteen-year presumption).