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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13804
Non-Argument Calendar
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Agency No. BRB 14-0382 BLA
CHEVRON MINING, INC.,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
HENRY CHERRY,
Respondents.
________________________
Petition for Review of a Decision of the
Benefits Review Board
________________________
(June 21, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:
Chevron Mining, Inc. petitions for review of the Benefit Review Board’s
decision affirming the administrative law judge’s (“ALJ’s”) award of benefits to
Henry Cherry, III (“Claimant”), under the Black Lung Benefits Act, 30 U.S.C. §
901 et. seq. (“Act”). We deny the petition.
In a petition for review under the Act, we review a decision by the ALJ
under a deferential standard, determining only whether the ALJ’s decision is in
accordance with the law and is supported by substantial evidence in the light of the
entire record. Pittsburg & Midway Coal Mining Co. v. Dir., OWCP, 508 F.3d 975,
980 (11th Cir. 2007). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
The Act provides benefits to miners who are totally disabled due to coal
workers’ pneumoconiosis. 30 U.S.C. § 901(a). Pneumoconiosis is “a chronic dust
disease of the lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a). This
definition encompasses both “clinical” and “legal” pneumoconiosis. Id. “Clinical
pneumoconiosis” includes “those diseases recognized by the medical community
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as pneumoconioses,” including, among other things, coal workers’
pneumoconiosis. Id. § 718.201(a)(1). “Legal pneumoconiosis” means “any
chronic lung disease or impairment and its sequelae arising out of coal mine
employment” including, but “not limited to, any chronic restrictive or obstructive
pulmonary disease arising out of coal mine employment.” Id. § 718.201(a)(2).
A miner is presumed to be totally disabled due to pneumoconiosis if he (1)
worked in an underground coal mine for 15 years or more and (2) suffers from a
totally disabling respiratory or pulmonary impairment. 20 C.F.R. § 718.305(b)(1),
(c). Once a miner demonstrates total disability and invokes the 15-year
presumption, the burden shifts to the employer to rebut the presumption by proving
either (1) that the miner suffers no legal or clinical pneumoconiosis or (2) that the
miner’s totally disabling impairment is wholly unrelated to his pneumoconiosis.
Id. § 718.305(d).
That Claimant meets the criteria for eligibility under the 15-year
presumption is undisputed. The issue in this appeal is on whether substantial
evidence supports the ALJ’s determination that Chevron failed to rebut the
presumption.
In a detailed written order granting Claimant benefits, the ALJ described the
contents of Claimant’s medical records and the medical opinions of several
doctors. Based on this evidence, the ALJ first determined that Claimant had no
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clinical pneumoconiosis. Applying the 15-year presumption, however, the ALJ
concluded that Chevron failed to satisfy its burden of demonstrating that Claimant
suffered from no legal pneumoconiosis. About causation, the ALJ noted that,
where a miner is found to have legal pneumoconiosis, the ALJ need not determine
separately whether the disease “arose out of” the miner’s coal mine employment.
To rebut the regulatory presumption that a miner has pneumoconiosis, the
employer must present “affirmative proof that pneumoconiosis does not and did
not exist”: mere silence or the absence of an express diagnosis of pneumoconiosis
is not enough. Black Diamond Coal Mining Co. v. Benefits Review Rd., 758 F.2d
1532, 1534 (11th Cir. 1985) (discussing rebuttal of interim entitlement
presumption under 20 C.F.R. § 727.203(b)(4)). To rebut the presumption on
causal grounds, “the employer must show that no part of the claimant’s disability
arose out of mine employment.” Id. Thus, “[e]ven where pneumoconiosis is only
a ‘contributing cause’ of claimant’s total disability, benefits must be awarded as
long as no other ground for rebuttal has been established.” Id.
As an initial matter, Chevron urges this Court to consider whether the
preponderance of the evidence in this case demonstrates the existence of
Claimant’s pneumoconiosis. The scope of our review, however, is limited to
whether the ALJ’s decision is supported by substantial evidence on the record.
The weight to be afforded the evidence is a matter within the ALJ’s discretion; and
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we are precluded from reweighing the evidence. See Bradberry v. Dir., OWCP,
117 F.3d 1361, 1367 (11th Cir. 1997) (“The ALJ is responsible for making
credibility determinations and for weighing conflicting evidence”); Vintson v.
Califano, 592 F.2d 1353, 1357 (5th Cir. 1979) (when reviewing for substantial
evidence, “[i]t is not the task of a reviewing court to reweigh the evidence”).
On this record, we conclude that substantial evidence supports the ALJ’s
determination that Chevron failed to satisfy its burden of rebutting the 15-year
presumption. Chevron has identified no “affirmative proof” that Claimant’s
respiratory condition does not qualify as a chronic lung disease arising out of his
coal mine employment: that is, legal pneumoconiosis. That Claimant has never
been diagnosed formally with pneumoconiosis, in and of itself, is insufficient
rebuttal evidence. See Black Diamond Coal Mining Co., 758 F.2d at 1534.
Although Dr. Lipscomb and Dr. Bailey opined that Claimant suffered no
coal workers’ pneumoconiosis, each doctor based his or her opinion largely on
Claimant’s negative chest x-rays and CT scans. As a result, the ALJ noted
correctly that Dr. Lipscomb’s and Dr. Bailey’s opinions were limited to whether
Claimant had clinical pneumoconiosis and failed to address -- and, thus, to rebut --
the issue of legal pneumoconiosis. And substantial evidence supports the ALJ’s
finding that Dr. Bailey’s opinion was incomplete and unclear in the light of Dr.
Bailey’s reliance on negative x-rays, and on inaccurate information about
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Claimant’s lung resection. See 20 C.F.R. § 718.202(a)(4) (“notwithstanding a
negative X-ray,” a physician may find, based on sound medical judgment, that a
miner suffers from pneumoconiosis).
The ALJ also acted in a reasoned manner in giving little weight to Dr.
Goldstein’s opinion that Claimant’s condition was “consistent with” Claimant’s
smoking history and lung surgery (and, implicitly, not a result of pneumoconiosis).
First, Dr. Goldstein’s report included the wrong date for Claimant’s lung resection
surgery and failed to discuss the impact Claimant’s lung surgery may have had on
Claimant’s respiratory condition. Dr. Goldstein’s report also failed to discuss the
significance of the non-reversibility of Claimant’s condition and of Claimant’s
post-bronchodilator pulmonary function tests. Moreover, in the light of the
deficiencies in Dr. Goldstein’s report, the ALJ acted reasonably in determining that
Dr. Goldstein’s opinion failed to establish that no part of Claimant’s impairment
was due to pneumoconiosis.
Because we conclude that the ALJ’s decision is both in accordance with the
law and supported by substantial evidence, we deny the petition for review. In
addition, we note that the record contains evidence of Claimant’s pneumoconiosis.
Both Dr. Barney and Dr. Hawkins opined that Claimant’s coal dust exposure
contributed, at least to some extent, to Claimant’s impairments. Dr. Goldstein also
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noted pleural abnormalities consistent with pneumoconiosis in Claimant’s May
2011 x-ray.
DENIED.
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