NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0635n.06
Case No. 19-4098
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
ISLAND CREEK COAL COMPANY, ) Nov 06, 2020
DEBORAH S. HUNT, Clerk
)
Petitioner,
)
) ON PETITION FOR REVIEW
v.
) FROM THE BENEFITS
) REVIEW BOARD, UNITED
WILLIAM L. BELT,
) STATES DEPARTMENT OF
Respondent, ) LABOR
)
DIRECTOR, OFFICE OF WORKERS’ )
COMPENSATION PROGRAMS, UNITED ) OPINION
STATES DEPARTMENT OF LABOR, )
Party-in-Interest. )
BEFORE: McKEAGUE, THAPAR, and LARSEN, Circuit Judges.
McKEAGUE, Circuit Judge. William L. Belt was an underground coal miner for
16 years, working last for the Island Creek Coal Company. Belt has since filed three claims for
benefits under the Black Lung Benefits Act. He has pressed this third claim before an
administrative law judge (ALJ) twice, the Benefits Review Board (Board) twice, and now the Sixth
Circuit once. In the current iteration, the ALJ found that Belt was entitled to benefits and the
Board affirmed the award. We see no legal errors and hold that the ALJ’s findings were supported
by substantial evidence. We accordingly DENY Island Creek Coal Company’s petition for review.
Case No. 19-4098, Island Creek Coal Co. v. Belt
I
Belt filed the instant claim on March 12, 2012. The District Director proposed to award
benefits and Island Creek Coal Company (Island Creek) requested a hearing. The ALJ considered
the record, which included the medical opinions of four doctors: Dr. Baker, Dr. Chavda, Dr. Selby,
and Dr. Zaldivar. Crediting the opinions of Dr. Baker and Dr. Zaldivar on the issue of Belt’s total
disability, the ALJ awarded Belt benefits. The Board vacated the award because the Board
determined that the ALJ had not made sufficiently specific findings regarding the exertional
requirements of Belt’s last coal-mine job. On remand, the ALJ again awarded Belt benefits and
the Board affirmed the award.
Island Creek petitions for review of that decision, making three arguments: (1) that the ALJ
erred by referencing a regulation that incorporated definitions of exertion levels from the
Dictionary of Occupational Titles (DOT), and erred by not giving the parties notice of that
reference; (2) that the ALJ failed to resolve inconsistent evidence of Belt’s cigarette-smoking
history; and (3) that Belt’s benefits should begin from a 2015 pulmonary function test, not from
the 2012 date on which Belt filed his claim.
II
Our review in this case is limited to “whether substantial evidence supported the ALJ’s
decision and whether either the ALJ or the [Board] committed legal error.” Island Creek Coal Co.
v. Calloway, 460 F. App’x 504, 506 (6th Cir. 2012). The substantial evidence standard requires
only evidence that “a reasonable mind might accept as adequate to support a conclusion.” Greene
v. King James Coal Mining, Inc., 575 F.3d 628, 633 (6th Cir. 2009) (quoting Kolesar v.
Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir. 1985)). In so determining, we ask
whether the ALJ gave sufficient reasons for the ALJ’s weighing of the evidence. See id. at 634.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
III
Miners qualify for benefits under the Black Lung Benefits Act once they prove four facts:
(1) they have pneumoconiosis; (2) their condition arose from their work as a coal miner; (3) they
are “totally disabled”; and (4) the “pneumoconiosis contributes to the total disability.” Island
Creek Coal Co. v. Wilkerson, 910 F.3d 254, 257 (6th Cir. 2018) (quoting 20 C.F.R.
§ 725.202(d)(2)). Pneumoconiosis is “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).
There are several ways a miner can go about the proof. As relevant here, there’s a
“rebuttable presumption that [a] miner is totally disabled due to pneumoconiosis” if the miner
worked for more than 15 years in an underground coal mine and “other evidence demonstrates the
existence of a totally disabling respiratory or pulmonary impairment.” 30 U.S.C. § 921(c)(4); see
20 C.F.R. § 718.305. A miner is totally disabled if the miner’s impairment, “standing alone,
prevents . . . the miner” from doing their “usual coal mine work” or comparable work. 20 C.F.R.
§ 718.204(b)(1). A miner can prove they are prevented from doing their usual coal-mine work
with pulmonary function tests or arterial blood-gas tests that meet certain objective results
(qualifying tests). Id. at § 718.204(b)(2)(i), (ii). Or a miner can so prove with “reasoned medical
judgment[s]” of physicians, even when the medical tests are non-qualifying. Id. at
718.204(b)(2)(iv).
Once the presumption applies, employers may rebut it. The presumption is rebuttable “by
establishing that (A) [the] miner does 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.”
30 U.S.C. § 921(c)(4). “An employer rebuts the presumption of legal pneumoconiosis by showing
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Case No. 19-4098, Island Creek Coal Co. v. Belt
that a miner’s coal-mine employment did not contribute, even in part, to his pneumoconiosis.”
Island Creek Coal Co. v. Young, 947 F.3d 399, 406–07 (6th Cir. 2020); see 30 U.S.C. § 921(c)(4);
20 C.F.R. § 718.305(d)(1)(ii).
IV
Here, the ALJ determined that Belt was entitled to the presumption of pneumoconiosis.
Belt accrued 16 years of qualifying work, the ALJ found, and Dr. Baker’s and Dr. Zaldivar’s
medical opinions, as well as Belt’s most recent (non-qualifying) pulmonary function test, showed
that Belt is totally disabled. As necessary to apply the rebuttable presumption, the ALJ found that
Belt couldn’t do the usual coal-mine work of his last job. The ALJ also found that Island Creek
did not rebut the presumption despite Belt’s smoking history and that Belt was entitled to benefits
as of the filing of his claim. We will address Island Creek’s challenge to each finding in turn.
1. Total-disability finding
To determine whether a miner could do their usual work, an ALJ must “compare the
exertional requirements of th[e] coal mine employment with the physician’s assessment of [the
miner’s] working capability.” Onderko v. Dir., OWCP, 14 Black Lung Rep. 1-2 (Ben. Rev. Bd.
1989). The Board vacated the ALJ’s finding because the ALJ “did not make a specific finding as
to the exertional demands of [Belt]’s usual coal mine work, e.g., mild, moderate or heavy labor,
and compare those exertional demands with the opinions of Drs. Baker and Zaldivar.” The
question is whether the ALJ adequately followed the Board’s instruction.
Island Creek raises two arguments on this score: (1) that the ALJ erred by using the DOT
as a definitional tool regarding exertion levels, without notice prior to the decision, and (2) that the
findings were not supported by substantial evidence.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
A. Use of the Dictionary of Occupational Titles
There are several ways to analyze this issue. None afford Island Creek relief.
i. Island Creek forfeited the notice argument by not raising the issue in its opening
brief to the Board.
Island Creek argues obliquely that the ALJ erred by not affording Island Creek “adequate
opportunity to show the contrary of the matter noticed.” 29 C.F.R. § 18.84. But Island Creek did
not raise that issue to the Board when Island Creek appealed the ALJ’s decision. Instead, Island
Creek argued that the “[u]se of sources such as the Dictionary of Occupational Titles or applying
a regulation drawn from another program to draw conclusions is error of law.”
We review only the Board’s orders, not the ALJ’s. See 33 U.S.C. § 921(c).
“Unsurprisingly, then, our decades-long precedent has refused to consider issues that parties failed
to present to the Board.” Island Creek Coal Co. v. Bryan, 937 F.3d 738, 750 (6th Cir. 2019)
(collecting cases). Any notice argument is therefore forfeited.1
1
If the argument were not forfeited, Island Creek would still not win remand on this issue. Here, the ALJ put the
reference to 20 C.F.R. § 404.1567 in his order, which was expressly allowed by the previous notice regulation. See
29 C.F.R. § 18.45 (2014). Under that regulation, when an ALJ took notice of a fact in an order, a party still had the
requisite “adequate opportunity” to contest the fact by way of a motion for reconsideration. See Maddaleni v. The
Pittsburgh & Midway Coal Mining Co., 14 Black Lung Rep. 1-135 (Ben. Rev. Board 1990).
The regulatory framework has changed, including the notice provision. The new provision does not expressly
allow notice to be taken in a decision, but still requires only an “adequate opportunity to show the contrary of the
matter noticed.” See 29 C.F.R. § 18.84; see also 5 U.S.C. § 556(e). “Adequate opportunity” is undefined by the
regulation, the Department of Labor did not indicate a definition during rule-making, Rules of Practice and Procedure
for Administrative Hearings Before the Office of Administrative Law Judges, 80 Fed. Reg. 28,782 (May 19, 2015),
and motions for reconsideration are still available, 29 C.F.R. § 18.93. Island Creek made no such motion here, so it
squandered that opportunity.
But it’s worth noting that, under the new regulation, the Board has at times indicated that parties need a
formal opportunity to respond to notice of the DOT. Wright v. Consol of Ky., Inc., No. 18-0114, 2019 WL 1075367,
at *3 & nn.5–6 (Ben. Rev. Bd. Feb. 13, 2019) (noting that employer would have opportunity to address official notice
on remand); Cajeira v. Kinder Morgan Liquid Terminal, No. 17-0366, 2018 WL 802078, at *4 & n.5 (Ben. Rev. Bd.
Jan. 29, 2018) (“[S]hould the administrative law judge on remand take administrative notice of the DOT, the parties
must be provided with an opportunity to respond to that text.”); Bowman v. Fluor Daniel Corp., No. 15-0364, 2017
WL 815146, at *4 (Ben. Rev. Bd. Jan. 11, 2017) (“[The ALJ] is advised to notify the parties beforehand and to give
them an opportunity to respond.”). And that seems to have been the best practice before the new regulation too.
Stewart v. Performance Coal Co., No. 15-0081, 2015 WL 13696678, at *3 n.6 (Ben. Rev. Bd. Dec. 23, 2015)
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Case No. 19-4098, Island Creek Coal Co. v. Belt
ii. Reference to 20 C.F.R. § 404.1567 was not legal error.
An ALJ’s use of the Dictionary of Occupational Titles (DOT) is sometimes error, but not
always. The DOT comes into play when an ALJ is trying to determine if a miner is “totally
disabled” by finding whether the miner can do his “usual coal mine employment.” 20 C.F.R.
§ 718.204(b). That determination usually involves comparing the miner’s testimony about their
last job with the medical-opinion testimony about the miner’s current capabilities. E.g., Simco
Peabody Coal Co. v. Dir., OWCP, 630 F. App’x 447, 458 (6th Cir. 2015); Jericol Mining, Inc. v.
Napier, 301 F.3d 703, 713 (6th Cir. 2002). And it’s the miner’s burden to establish what the
exertional requirements of his last job were. Cregger v. U.S. Steel Corp., 6 Black Lung Rep. 1-
1219 (Ben. Rev. Bd. 1984). So what happens when an ALJ does not know enough about what the
miner’s previous job entailed?
In that case, litigants and ALJs sometimes reach for the DOT. In so reaching, they use the
DOT as affirmative evidence of what a miner’s job duties were—that’s where the issues arise. See
Snorton v. Zeigler Coal Co., 9 Black Lung Rep. 1-106 (Ben. Rev. Bd. 1986) (“Relying solely upon
the [DOT], the [ALJ] found that claimant’s usual coal mine employment as general laborer
required heavy work involving frequent lifting and carrying of heavy objects . . . .”). That’s why
an ALJ must take notice of the DOT when using it “to determine the exertional requirements of
the miner’s usual coal mine employment,” for example when “there is no alternative method for
establishing” the requirements because “the miner is deceased.” Onderko, 14 Black Lung Rep. 1-
2; see Westmoreland Coal Co., Inc. v. Powers, 978 F.2d 1257, 1992 WL 312193, at *3 n.1 (4th
(“[T]he administrative law judge specifically advised the parties that they had ‘25 days from the date of the issuance
of this Decision to contest taking notice’ of the DOT.”).
But even under the new regulation, ALJs are still taking official notice in decisions. See, e.g., Broach v.
Taggart Glob., No. 17-0335, 2018 WL 1705045, at *4 n.11 (Ben. Rev. Bd. March 28, 2018). Perhaps the ALJ’s lack
of notice was not the best practice, but it was not legal error. See Maddaleni, 14 Black Lung Rep. 1-135.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
Cir. 1992) (unpublished table decision) (using the DOT to assess what the claimant’s duties were).
ALJs use the DOT’s job descriptions like this with some regularity.2
But that’s not what the ALJ here did. The ALJ did not use the DOT’s job descriptions as
affirmative evidence of what Belt’s job duties were. Instead, perhaps spurred by the Board’s
remand order to make specific factual findings regarding exertional demands, “e.g., mild, moderate
or heavy labor,” the ALJ used 20 C.F.R. § 404.1567. That regulation specifically defines “light
work,” “medium work,” and “heavy work” with “the same meaning as they have in the [DOT].”
20 C.F.R. § 404.1567. The ALJ then made specific factual findings about Belt’s work and matched
them to “medium work” and “heavy work” as defined in the regulation. The ALJ next made
specific factual findings about the medical opinions regarding Belt’s physical capabilities and
matched these findings to medium and heavy labor.3 See, e.g., Traylor v. Andalex Res., Inc., 2017
WL 1103799, at *4 (Ben. Rev. Bd. March 20, 2017). Because what Belt could no longer do
matched his usual coal-mine work, the ALJ found Belt to be totally disabled.
Thus the Board correctly recognized that the ALJ “did not use any judicially-noticed facts
to determine claimant’s capability of working from a respiratory or pulmonary standpoint. His
use of a combination of lay evidence concerning claimant’s job duties and medical evidence
concerning claimant’s ability to perform those duties comports with the law.” The ALJ did not
commit legal error.4 See Rockwood Cas. Ins. Co. v. Dir., OWCP, 917 F.3d 1198, 1209 (10th Cir.
2
See, e.g., Gray v. Powell Constr. Co., No. 17-0258, 2018 WL 1705021, at *5 & n.11 (Ben. Rev. Bd. March 28,
2018); Mosley v. Liberty Mut. Ins. Co., No. 17-0261, 2018 WL 1292744, at *3 n.9 (Ben. Rev. Bd. Feb. 28, 2018);
Heatherington v. Consol Energy, Inc., No. 16-0301, 2017 WL 1279622, at *3 (Ben. Rev. Bd. Mar. 16, 2017) (faulting
claimant for failing to move for notice of DOT); Samons v. Nat’l Mines Corp., Nos. 15-0497, 15-0500, 2016 WL
8260745, at *5 (directing the ALJ to consider taking notice of DOT on remand because claimant was deceased) (Ben.
Rev. Bd. July 26, 2016); Stewart, 2015 WL 13696678, at *3.
3
The same, or similar, definitions for exertion levels were used by the doctors as a short-hand in their testimonies too.
4
To be clear, we do not hold that an ALJ never has to take notice of the DOT or a related regulation. Even in the
same context, other ALJs using the DOT in a similar manner have still taken notice, which may be the best practice.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
2019). And by the same logic,5 any use of the regulation (and the lack of notice) was harmless.
See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (requiring claimant of error to show prejudice);
Dixie Fuel Co., LLC v. Dir., OWCP, 820 F.3d 833, 843 (6th Cir. 2016) (applying harmless-error
analysis to a Black Lung benefits claim).
B. The total-disability finding was supported by substantial evidence.
Island Creek challenges the Board’s affirmance of the ALJ’s total-disability findings. In
particular, Island Creek challenges both the finding that Belt’s prior work required medium and
heavy exertion and the finding that Belt could not do work requiring medium and heavy exertion.
Island Creek takes issue with the ALJ’s crediting of Dr. Baker’s opinion because Dr. Baker
relied only on non-qualifying pulmonary function tests. But Island Creek does not support its
position with any case law and its position is contradicted by the relevant regulation. The
regulation specifically allows the ALJ to find a miner totally disabled despite non-qualifying tests.
See 20 C.F.R. § 718.204(b)(2)(iv); Wilkerson, 910 F.3d at 258; Cornett v. Benham Coal, Inc., 227
F.3d 569, 577 (6th Cir. 2000). Non-qualifying tests are not dispositive but can still be relevant.
Hauber v. Energy W. Mining Co., No. 18-0184, 2019 WL 1569513, at *2 (Ben. Rev. Bd. Mar. 12, 2019) (giving notice
that the ALJ would use the DOT’s exertional requirement definitions at the hearing).
But whether notice of a fact is necessary turns on how the ALJ uses it. Toth v. Grand Trunk R.R., 306 F.3d
335, 349 (6th Cir. 2002) (“[W]hether a fact is adjudicative or legislative depends upon the manner in which it is
used.”); cf. Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 316 (6th Cir. 2012) (“The APA does not provide that
public law documents, like the [Black Lung Benefits] Act, the regulations, and the preamble, need be made part of the
administrative record.”). See generally 21B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 5103.1 (2d ed. Oct. 2020 update) (describing judicial notice).
5
The fact that the ALJ used the regulation as an intermediary definitional tool does not negate the match between the
two groups of findings. Put another way, it’s the transitive property. If A = B = C, then A = C and the excision of B
doesn’t change that. In the same way, the excision of the ALJ’s use of the regulation does not change his ultimate
conclusion.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
Island Creek also argues that the record only supports a finding that Belt’s job required
light work, and that Dr. Baker and Dr. Zaldivar opined that Belt was unable to do medium and
heavy work. The ALJ’s findings to the contrary were supported by substantial evidence.
The ALJ found that Belt had to do medium and heavy work. Medium work is lifting no
more than 50 pounds but frequently lifting or carrying 25 pounds. According to Belt’s claims and
testimony, his main job at the end of his tenure was a cutting machine operator. In that position,
among other duties, he helped carry 60–70 boxes of drill bits 10–12 times day. Each box weighed
12 pounds and he carried two at a time. And he wore a 10–12 pound tool belt. So by carrying
around 30 pounds frequently, he did medium work—Island Creek does not persuasively dispute
this finding.
Belt also did occasional heavy work, the ALJ found. Heavy work is lifting no more than
100 pounds but frequently lifting or carrying 50 pounds. Belt’s claims showed that he filled in at
other positions which required him to lift machine cables and timbers that were heavier than
50 pounds. The ALJ credited Dr. Baker’s and Dr. Chavda’s reports that supported the heavy-work
finding. Again, Island Creek fails to persuasively show that these findings were not supported by
substantial evidence.
The ALJ permissibly matched Belt’s previous duties with what the doctors said Belt could
no longer do. Dr. Baker testified that Belt would only be able to do sedentary work and would not
be able to do any work where he had to routinely lift 20 pounds or more. And the ALJ credited
Dr. Baker’s opinion the most because Dr. Baker’s opinion comported with Belt’s most-recent
pulmonary function test. The ALJ also credited Dr. Zaldivar’s opinion that Belt couldn’t do heavy
work.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
We hold that the ALJ’s total-disability finding was supported by substantial evidence.
Island Creek’s argument boils down to the conclusion that Belt did not do medium or heavy labor.
But Island Creek doesn’t show us how to get to that conclusion without reweighing, or
disregarding, the evidence. See Big Brand Res., Inc v. Ogle, 737 F.3d 1063, 1068 (6th Cir. 2013).
And even if the finding that Belt did heavy work was erroneous, the ALJ’s finding that Belt’s job
required medium work, which he could no longer do, is a sufficient basis to affirm.
2. Smoking-history finding
Island Creek argues that the ALJ violated the Administrative Procedure Act (APA) by
failing to resolve conflicting evidence about how long Belt smoked when the ALJ determined that
Island Creek did not rebut the presumption of legal pneumoconiosis.6 See 5 U.S.C. § 557(c)(3)(A).
There was conflicting evidence about Belt’s smoking habits. At the hearing, Belt testified
that he smoked intermittently for about 12 years, denying he had told various medical providers
otherwise. But he told Dr. Chavda that he had smoked for 35 years ending in 2007, Dr. Selby’s
examination in 2012 showed that Belt was a current smoker, test results from 2013 showed Belt
was a current smoker, and notes from a 2010 hospital visit recorded that Belt had smoked for
50 years.
The ALJ neither left the smoking history unresolved, nor resolved the smoking history
without reason. He enumerated all of the dissimilar evidence of Belt’s smoking history, the same
evidence laid out by Island Creek’s briefing. He then discredited Belt’s hearing testimony, instead
6
Island Creek argues in reply that Belt forfeited any position on this argument by failing to address it. But, of course,
an appellee’s forfeiture of an argument “does not bind us.” Talmer Bank & Tr. v. Minton Firm, P.C., 660 F. App’x
439, 446 n.5 (6th Cir. 2016). Belt’s counsel would be well-served to remember to address each argument an appellant
makes clearly and thoroughly. But we decline to consider Belt to be position-less on this issue, as a contrary holding
would mandate remand even when remand would be pointless. See Interactive Gift Express, Inc. v. Compuserve Inc.,
256 F.3d 1323, 1345 (Fed. Cir. 2001) (listing a pointless remand as a reason to address forfeited argument); cf.
Singleton v. Wulff, 428 U.S. 106, 121 (1976) (whether to address an argument is a matter of discretion).
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Case No. 19-4098, Island Creek Coal Co. v. Belt
crediting what Belt told Dr. Chavda (35 years) and Dr. Selby’s examination (still smoking in 2012).
The ALJ thus concluded that Belt’s smoking history “appears to be at least 35 years” and that Belt
was still smoking as of at least 2012.
We’ve previously held, when considering a similar § 557(c)(3)(A) claim, that “there is no
case law stating that an [ALJ] must make a specific finding as to the number of years a benefits
claimant has smoked.” Grayson Coal & Stone Co., Inc. v. Teague, 688 F. App’x 331, 335 (6th
Cir. 2017); cf. Jericol, 301 F.3d at 713 (noting that ALJs may resolve evidentiary discrepancies
implicitly). In that case, the ALJ reviewed a contradictory smoking history that ranged from 25 to
50 years and then concluded only that the claimant smoked “for a substantial amount of time.” Id.
at 335. We held that to be enough for the APA. See id. Here, then, the ALJ did more than the
APA requires in resolving conflicting evidence of smoking history.
The ALJ’s resolution of the smoking history evidence was reasonable. Island Creek argues
that the ALJ’s rationale that Belt would have no reason to exaggerate his smoking history to Dr.
Chavda “fails to account for Mr. Belt’s misleading testimony.” To Island Creek, “[r]easonable
minds cannot disagree” that “Mr. Belt downplayed his cigarette smoking history.” But the ALJ
did exactly for what Island Creek advocates. The ALJ already discredited Belt’s testimony and
instead credited the various doctors’ reports in finding that Belt smoked at least 35 years rather
than the 12 years to which he testified.
This brings us to Island Creek’s main argument on this issue—that the ALJ erred by not
affording the opinions of Dr. Selby and Dr. Zaldivar more weight because they are closer in-line
with Belt’s true smoking history. That argument fails, if not because it asks us to reweigh the
evidence, because it’s based on the false premises that the ALJ did not find a specific smoking
history and that Dr. Selby’s and Dr. Zaldivar’s opinions were based on a different history.
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Case No. 19-4098, Island Creek Coal Co. v. Belt
And Island Creek misses the point. To rebut the presumption of legal pneumoconiosis,
Island Creek needed to “show[] that [Belt]’s coal-mine employment did not contribute, even in
part, to his pneumoconiosis.” Young, 947 F.3d at 406–07 (citing Arch on the Green, Inc. v. Groves,
761 F.3d 594, 599–601 (6th Cir. 2014)).
The Board correctly determined that the ALJ permissibly discounted Dr. Selby’s and Dr.
Zaldivar’s opinions because they failed to explain how smoking and coal-mine work could not
have additive effects. See 20 C.F.R. § 718.201(b); Regulations Implementing the Federal Coal
Mine Health and Safety Act of 1969, 65 Fed. Reg. 79,940; Young, 947 F.3d at 408 (“We routinely
uphold the rejection of testimony on credibility grounds where the testimony offers a medical
opinion that conflicts with these regulations.”); Quarto Mining Co. v. Dir., OWCP, 657 F. App’x
428, 433 (6th Cir. 2016); Brandywine Explosives & Supply v. Dir., OWCP, 790 F.3d 657, 668 (6th
Cir. 2015) (affirming the discrediting of medical opinions for “ignoring the possibility” that
smoking and coal dust exposure have additive effects). So remanding for a new smoking-history
finding would not get Island Creek what it wants. Neither doctor demonstrated why Belt’s
disability was unrelated to coal-dust exposure, and a finding that Belt smoked more than 35 years
would not change that.
3. Disability-onset finding
Lastly, Island Creek argues that Belt’s benefits, if granted, should begin in 2015 instead of
2012. A miner receives benefits from the “the month of onset of total disability,” but “[w]here the
evidence does not establish the month of onset, benefits” start from the date of the claim. 20 C.F.R.
§ 725.503(b); see Younghiogheny & Ohio Coal Co. v. Pickana, 117 F.3d 1421, 1997 WL 376958,
at *5 (6th Cir. 1997) (unpublished table decision). “Medical evidence of total disability does not
establish the onset date of disability; rather, it is merely indicative that claimant became totally
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Case No. 19-4098, Island Creek Coal Co. v. Belt
disabled at some time prior to that date.” Owens v. Jewell Smokeless Coal Corp., 14 Black Lung
Rep. 1-47 (Ben. Rev. Bd. June 29, 1990).
The ALJ found that “[n]o physician of record expressed an opinion” as to when Belt
became disabled and found no evidence in the record indicative of a “precipitous decline” from
which a date of disability could be inferred. The Board affirmed that finding.
Island Creek argues that substantial evidence did not support the finding that there was no
record evidence of when Belt became totally disabled. An ALJ must determine “if any credible
evidence establishes the miner was not totally disabled subsequent to the filing date of his claim.”
Chappell v. Whitaker Coal Corp., No. 19-0168, 2020 WL 2836120, at *8 (Ben. Rev. Bd. Apr. 28,
2020). To prevail Island Creek must thus show “affirmative evidence of the absence of disability
after [Belt] filed his application for benefits.” Hatfield v. Dir., OWCP, 31 F. App’x 803, 804 (4th
Cir. 2002).
To that end, Island Creek points to record evidence: (1) that the ALJ credited Dr. Zaldivar’s
statement that Belt “showed no significant disability until he was seen by Dr. Baker in June 2015”;
(2) that Dr. Selby opined that pulmonary function tests in 2012 and 2013 showed that Belt could
do heavy labor; and (3) that, generally speaking, the ALJ’s decision was predicated on the fact that
only the 2015 pulmonary function test demonstrated total disability—earlier pulmonary and
arterial tests did not.
No evidence to which Island Creek points establishes that the ALJ’s contrary conclusion
was not supported by substantial evidence. Dr. Zaldivar’s statement that “[Belt] showed no
significant disability” is not sufficient to show that Belt was not totally disabled per the regulations.
In this context, the question is whether Belt could do his usual coal-mine job and “even a ‘mild’
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Case No. 19-4098, Island Creek Coal Co. v. Belt
respiratory impairment may preclude the performance of the miner’s usual duties, depending on
the exertional requirements.” Cornett, 227 F.3d at 578.
Here, the ALJ found Belt’s usual duties included medium work as he frequently carried
20–30 pounds. Dr. Zaldivar’s statement, even if construed as affirmative evidence of non-total-
disability (rather than as a note of the lack of evidence the other way), related specifically to Belt’s
ability to do heavy labor. Thus Dr. Zaldivar’s statement does not disprove the ALJ’s onset finding.
Island Creek’s reliance on Dr. Selby’s similar statements is likewise misplaced.
And Island Creek can’t rely on test results which did not prove total disability to prove a
lack of total disability. The Board has recently reiterated that “non-qualifying pulmonary function
studies alone do not establish the absence of disability.” Tackett v. White Cnty. Coal, No. 19-0176,
2020 WL 1133055, at *5 (Ben. Rev. Bd. Feb. 27, 2020) (citing, inter alia, Cornett, 227 F.3d at
577); see Hilton v. C & N Mining, LLC, No. 17-0524, 2018 WL 4357388, at *5 (Ben. Rev. Bd.
Aug. 15, 2018) (“[T]he fact that claimant had non-qualifying blood gas results before June 2016,
does not, in and of itself, establish that he was not totally disabled at that time.”). And this
conclusion is drawn from the regulatory framework. Under 20 C.F.R. § 718.204(b)(2)(iv), a miner
can prove total disability without qualifying test results; as a corollary, non-qualifying test results
do not prove a miner is not totally disabled.
The ALJ’s finding that the record did not show an onset month was reasonable. None of
Island Creek’s evidence points to a particular month that Belt became disabled, Bomboris v.
Youghiogheny & Ohio Coal Co., 810 F.2d 199, 1986 WL 18407, at *2 (6th Cir. 1986) (unpublished
table decision), and no credited medical opinion definitively concluded that Belt could have done
all of his usual coal-mine duties on a date subsequent to the claim’s filing. Asking whether the
record could support the ALJ’s conclusion, not whether we would have concluded the same, we
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Case No. 19-4098, Island Creek Coal Co. v. Belt
hold that it could. Kolesar, 760 F.2d at 729. We accordingly hold that the ALJ’s finding that the
record “does not establish the month of onset” was supported by substantial evidence. 20 C.F.R.
§ 725.503(b).
V
The petition for review is DENIED.
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