Pittsburg & Midway Coal Mining Co. v. Director, Office of Workers' Compensation Programs, United States Department of Labor

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 28, 2007
No. 06-15141 THOMAS K. KAHN
________________________ CLERK

BRB No. 05-00947-BLA

THE PITTSBURG & MIDWAY COAL MINING CO.,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,

Respondents.

________________________

Petition for Review of a Decision of the
Benefits Review Board
_________________________

(November 28, 2007)

Before MARCUS and PRYOR, Circuit Judges, and LAND,* District Judge.

*
Honorable Clay D. Land, United States District Judge for the Middle District of
Georgia, sitting by designation.
MARCUS, Circuit Judge:

The Pittsburg & Midway Coal Mining Company (“P & M”) petitions for

review of a decision of the Benefits Review Board affirming an administrative law

judge’s award of survivor’s benefits under the Black Lung Benefits Act (the

“BLBA” or the “Act”), 30 U.S.C. §§ 901-945. The central issue on appeal is

whether the claimant, Dorothy Cornelius, established that her husband’s death was

“due to” pneumoconiosis as required by the Act. After thorough review, we

conclude that substantial evidence supports the administrative law judge’s

conclusion that, under § 411(c)(3) of the Act and its implementing regulation, 20

C.F.R. § 718.304, Ms. Cornelius was entitled to an irrebuttable presumption that

her husband’s death was “due to” pneumoconiosis, and we therefore deny the

petition for review.
I.

A.

An understanding of the relevant statutory and regulatory framework as well

as the basic facts is essential to deciding this case. The Black Lung Benefits Act

provides benefits “to coal miners who are totally disabled due to pneumoconiosis

and to the surviving dependents of miners whose death was due to such disease. . .

.” 30 U.S.C. § 901(a). The Act delegates to the Secretary of Labor (“Secretary”)

the task of prescribing standards for determining whether a miner’s total disability

2
or death is “due to” pneumoconiosis, id. § 921(b), subject to several statutorily-

created evidentiary presumptions. The most important of these presumptions is

contained in § 411(c)(3) of the Act, which provides that “there shall be an

irrebuttable presumption that [the miner] is totally disabled due to pneumoconiosis

or that [the miner’s] death was due to pneumoconiosis” if the

miner is suffering or suffered from a chronic dust disease of the lung
which (A) when diagnosed by chest roentgenogram, yields one or
more large opacities (greater than one centimeter in diameter) and
would be classified in category A, B, or C in the International
Classification of Radiographs of the Pneumoconioses by the
International Labor Organization, (B) when diagnosed by biopsy or
autopsy, yields massive lesions in the lung, or (C) when diagnosis is
made by other means, would be a condition which could reasonably
be expected to yield results described in clause (A) or (B) if diagnosis
had been made in the manner prescribed in clause (A) or (B) . . . .

30 U.S.C. § 921(c)(3).

The Secretary has, in turn, incorporated Section 411(c)(3)’s “irrebuttable

presumption” into the black lung regulations at 20 C.F.R. § 718.304.1 The

1
20 C.F.R. § 718.304 provides:

There is an irrebuttable presumption that a miner is totally disabled due to
pneumoconiosis, that a miner's death was due to pneumoconiosis or that a miner
was totally disabled due to pneumoconiosis at the time of death, if such miner is
suffering or suffered from a chronic dust disease of the lung which:

(a) When diagnosed by chest X-ray (see § 718.202 concerning the standards for
X-rays and the effect of interpretations of X-rays by physicians) yields one or
more large opacities (greater than 1 centimeter in diameter) and would be
classified in Category A, B, or C in:

(1) The ILO-U/C International Classification of Radiographs of the
3
Secretary has incorporated § 718.304 into 20 C.F.R. § 718.205(c), the general

regulation establishing standards for determining whether a miner’s death is “due

to” pneumoconiosis. Section 718.205(c) provides in pertinent part:

[D]eath will be considered to be due to pneumoconiosis if any of the
following criteria is met:

(1) Where competent medical evidence establishes that
pneumoconiosis was the cause of the miner's death, or

(2) Where pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death or where the death was caused by
complications of pneumoconiosis, or

(3) Where the presumption set forth at § 718.304 is applicable.

(4) However, survivors are not eligible for benefits where the miner's
death was caused by a traumatic injury or the principal cause of death
was a medical condition not related to pneumoconiosis, unless the

Pneumoconioses, 1971, or subsequent revisions thereto; or

(2) The International Classification of the Radiographs of the
Pneumoconioses of the International Labour Office, Extended
Classification (1968) (which may be referred to as the “ILO Classification
(1968)”); or

(3) The Classification of the Pneumoconioses of the Union Internationale
Contra Cancer/Cincinnati (1968) (which may be referred to as the
“UICC/Cincinnati (1968) Classification”); or

(b) When diagnosed by biopsy or autopsy, yields massive lesions in the lung; or

(c) When diagnosed by means other than those specified in paragraphs (a) and (b)
of this section, would be a condition which could reasonably be expected to yield
the results described in paragraph (a) or (b) of this section had diagnosis been
made as therein described: Provided, however, That any diagnosis made under
this paragraph shall accord with acceptable medical procedures.

4
 evidence establishes that pneumoconiosis was a substantially
contributing cause of death.

B.

This case arises from the death of Clyde Cornelius, a retired coal miner. Mr.

Cornelius worked in coal mines for approximately twenty-five years, ending in

1987. He died in 1999 at the age of 74. His death certificate listed congestive

heart failure as the immediate cause of death and anemia as a contributing cause of

death; pneumoconiosis was not mentioned.2

Following Mr. Cornelius’s death, his widow, Dorothy Cornelius, filed a

claim for survivor’s benefits under the Act. After identifying P & M as the

responsible employer, the Department of Labor (“DOL”) adjudication officer

issued a proposed decision and order finding that Ms. Cornelius was entitled to

benefits under the Act. P & M contested the proposed decision and requested a

formal hearing before an administrative law judge (“ALJ”).

At the formal hearing conducted by the ALJ, Ms. Cornelius relied on the

autopsy report and deposition testimony of Dr. Mary Louise Guerry-Force, the

board-certified pathologist who performed an autopsy of Mr. Cornelius’s lungs.

2
Prior to his death, Mr. Cornelius sought benefits under the BLBA, claiming that he was
totally disabled due to pneumoconiosis. The Department of Labor rejected his claim, and Mr.
Cornelius did not pursue the matter any further. His claim is not before us.
5
According to the autopsy report, Dr. Guerry-Force’s gross examination revealed

the following:

The pleural surfaces reveal moderate subpleural anthracotic type
pigment deposition bilaterally. Multiple grey black subpleural
nodules measuring from 0.1 up to 0.3 cm are noted throughout all of
the lobes. In addition, the right upper lobe reveals multiple, irregular,
gray black areas of induration measuring up to 1.2 cm.

(DX 11, Autopsy Report at 2). 3 The autopsy report also stated that on microscopic

examination Dr. Guerry-Force found that

[s]ections of the lungs demonstrate a focally thickened pleura with
moderate subpleural anthracotic type pigment deposition. Multiple
scattered fibroanthracotic nodules measuring up to 1.2 cm are seen.
The nodular lesions consist of dense collagen and granular pigment;
many are stellate in appearance. Their distribution is widespread:
pleural based; interstitial; perivascular; and adjacent to the walls of
respiratory bronchioles. These microscopic features are consistent
with a complicated pneumoconiosis, as defined by the Black Lung
Program Guidelines (U.S. Department of Labor - 8/92).

(Id.). In a section titled “Final Anatomical Diagnoses,” the autopsy report listed,

among other things, “[f]ibroanthracotic nodules (bilateral lungs) measuring up to

1.2 cm, compatible with complicated pneumoconiosis, as defined by the Black

Lung Program Guidelines (U.S. Department of Labor - 8/92).” (Id. at 3).

During her deposition, Dr. Guerry-Force said that the “Black Lung Program

Guidelines” she referred to in her autopsy report had been sent to her by the DOL’s

Employment Standards Administration during her evaluation of an earlier black

3
For convenience, we use the ALJ’s abbreviations for citations to the record.
6
lung case. The guidelines, which are contained in a letter dated August 11, 1992

from the Employment Standards Administration to Dr. Guerry-Force, state in

pertinent part

The presence of complicated pneumoconiosis is established if:

1. The gross examination of the cut lung revealed a marked degree
of simple pneumoconiosis and progressive massive fibrosis
(massive lesions of the lung or large, dense fibrous masses) was
present; and

2. The microscopic examination revealed fibrotic mass or masses
composed of carbon deposits and interlaced by bundles of
dense fibrous tissues.

(DX 11 at 2). Dr. Guerry-Force explained that her autopsy findings satisfied the

guidelines’ requirements for “complicated pneumoconiosis because of the size and

extent of the nodules present.” (DX 11, Guerry-Force Dep. at 10). Specifically,

her gross examination

revealed a marked degree of simple pneumoconiosis and . . . larger
areas of fibrosis that were one centimeter or greater in dimension, and
that correlates with the ILO pulmonary lung classification for
complicated, the larger nodules . . . . the microscopic examination also
had the fibrotic masses.

(Id. at 11). Finally, Dr. Guerry-Force also averred that pathologists are best able to

make a diagnosis of complicated pneumoconiosis when they perform both a gross

and microscopic examination because “the things you see grossly are not . . .

necessarily in toto represented on the slides. . . .” (Id. at 13). In other words, a

7
gross examination allows a pathologist to “get an impression of the disease of the

lung in toto . . . that one may not fully appreciate from the microscopic.” (Id. at

15).

To counter Dr. Guerry-Force’s opinion, P & M relied on the expert report of

Dr. P. Raphael Caffrey and the expert report and testimony of Dr. Ben V.

Branscomb. Because he did not perform the autopsy, Dr. Caffrey’s opinion was

limited to reviewing the autopsy slides prepared by Dr. Guerry-Force. Dr. Caffrey

reported that the largest nodule he could find on the slides was 0.9 centimeters, and

he, accordingly, concluded that Mr. Cornelius did not have complicated

pneumoconiosis even under the standard applied by Dr. Guerry-Force. Dr.

Branscomb agreed with Dr. Caffrey, opining that Mr. Cornelius had only simple,

not complicated, pneumoconiosis. He also testified that the term “massive lesions”

usually refers to complicated pneumoconiosis, and that “massive lesions” are

generally the “size of a chicken egg,” “the size of one-third of one lung,” or “the

size of a tennis ball.” (Hearing Tr. at 40). Finally, Dr. Branscomb acknowledged

that autopsy is more effective “by far” than x-rays for diagnosing coal workers’

pneumoconiosis. (Id. at 44).

Based on Dr. Guerry-Force’s opinion, the ALJ concluded that Ms. Cornelius

was entitled to the irrebuttable presumption of causation provided in § 718.304,

and, accordingly, awarded her benefits. See Cornelius v. Pittsburgh & Midway
8
Coal Mining Co., 2003-BLA-5015, slip. op. at 13 (Sept. 29, 2003). The Benefits

Review Board (“BRB”) vacated that decision and remanded the case for further

consideration, because the ALJ had not explained which of the three criteria in §

718.304 Ms. Cornelius had satisfied. See Cornelius v. Pittsburg & Midway Coal

Mining Co., BRB No. 04-0162 BLA, slip op. at 3 (Sept. 30, 2004) (per curiam)

(unpublished decision).

On remand, the case was assigned to a new ALJ. After reviewing the record

of the original formal hearing, the ALJ concluded that Dr. Guerry-Force’s

testimony was the most persuasive and that her testimony satisfied the

requirements of §§ 718.304(b) and (c). Thus, the ALJ concluded that Ms.

Cornelius established that her husband died “due to” pneumoconiosis and awarded

her benefits. See Cornelius v. Pittsburg & Midway Coal Mining Co., 2003-BLA-

5015, slip op. at 9 (July 29, 2005). The Benefits Review Board affirmed the ALJ’s

conclusion with respect to § 718.304(b), and, therefore, did not address his

alternative conclusion that Ms. Cornelius also satisfied § 718.304(c). See

Cornelius v. Pittsburg & Midway Coal Mining Co., BRB No. 05-0947 BLA, slip

op. at 4-5 (July 27, 2006) (per curiam) (unpublished decision).

P & M then timely petitioned this Court to review the BRB’s decision. We

have jurisdiction over the petition because Mr. Cornelius worked as a coal miner in

Alabama. See Slatick v. Director, OWCP, 698 F.2d 433, 434 (11th Cir. 1983).
9
The Director of the Office of Workers’ Compensation Programs, U.S. Department

of Labor (“Director”) is a named respondent in these proceedings, see 30 U.S.C. §

932(k), and has elected to file a brief in support of Ms. Cornelius. Although Ms.

Cornelius was a respondent before the BRB, she has chosen not to participate in

the briefing or argument before this Court.

II.

The standard of review applied to the BRB’s affirmance of an ALJ’s

decision is by now well-established:

Decisions of the ALJ are reviewable only as to whether they are in
accordance with law and supported by substantial evidence in light of
the entire record. This deferential standard of review binds both the
BRB and this Court. Because this Court applies the same standard of
review to ALJ decisions as does the BRB, our review of BRB
decisions is de novo. Substantial evidence has been defined as more
than a scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. . . . [W]hen the
BRB upholds the ALJ’s decision, this Court's limited review of the
ALJ effectively cloaks the BRB’s decision with the same deference to
which the ALJ is entitled. Thus, although the case comes to us from
the BRB, we begin our analysis by reviewing the decision of the ALJ.

U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 984 (11th Cir. 2004)

(internal quotation marks and citations omitted).

To receive survivor’s benefits, a claimant “must establish that [the miner]

[1] had pneumoconiosis, [2] that his pneumoconiosis was caused by coal mine

employment, and [3] that his death was due to the disease.” Bradberry v. Director,

10
OWCP, 117 F.3d 1361, 1365 (11th Cir. 1997); see also 20 C.F.R. § 718.205(a).4

Only the third element - - causation - - is at issue here.

As we have already observed, the black lung regulations provide three

distinct methods of proving causation: a claimant must show either (1) that the

miner’s death was in fact caused by pneumoconiosis; (2) that pneumoconiosis was

in fact a substantially contributing cause of the miner’s death; or (3) that the

irrebuttable presumption of causation contained in § 718.304 applies. See 20

C.F.R. § 718.205(c)(1)-(3). Here, the Director does not argue that pneumoconiosis

or complications of the disease in fact caused or were in fact a substantially

contributing cause of Mr. Cornelius’s death. Consequently, Ms. Cornelius cannot

establish causation under 20 C.F.R. §§ 718.205(c)(1) or (2), and she must therefore

rely on the irrebuttable presumption contained in § 718.304.

P & M argues that Ms. Cornelius is not entitled to the irrebuttable

presumption for two reasons. First, P & M says that because Mr. Cornelius’s

“principal cause of death was a medical condition not related to pneumoconiosis,”

Ms. Cornelius must show that pneumoconiosis was a “substantially contributing

cause of death” under 20 C.F.R. § 718.205(c)(4), a showing that she has not and

4
Ms. Cornelius “also had to show . . . that: (1) she was a surviving dependent of Mr.
[Cornelius], 20 C.F.R. § 718.1; (2) Mr. [Cornelius] was a coal miner, 20 C.F.R. § 725.202; and
(3) that [P & M] was a responsible operator, 20 C.F.R. § 725.491-.495.” Perry v. Mynu Coals,
Inc., 469 F.3d 360, 364 n.3 (4th Cir. 2006). None of these issues are contested, and, therefore,
we have no occasion to address them.
11
apparently cannot make. Second, P & M asserts that, even if § 718.205(c)(4) does

not apply when § 718.304 is satisfied, Dr. Guerry-Force’s opinion is insufficient to

satisfy any of the three criteria found in § 718.304. Neither argument is

persuasive.

A.

To begin with, the regulation embodied in § 718.205(c)(4) states:

“However, survivors are not eligible for benefits where the miner’s death was

caused by a traumatic injury or the principal cause of death was a medical

condition not related to pneumoconiosis, unless the evidence establishes that

pneumoconiosis was a substantially contributing cause of death.” 20 C.F.R. §

718.205(c)(4). According to P & M, this provision is a “catch-all” that applies to

all of the previous subsections of § 718.205(c), including (c)(3), the subsection

incorporating the “irrebuttable” presumption contained in § 718.304. P & M’s

interpretation creates an obvious conflict in the black lung regulations: § 718.304

provides for an “irrebuttable” presumption, but § 718.205(c)(4) would allow that

presumption to be rebutted if death was in fact caused by “traumatic injury” or “a

medical condition not related to pneumoconiosis” and pneumoconiosis was not in

fact a “substantially contributing cause of death.”

This seeming conflict is resolved easily by the plain language of the Black

Lung Benefits Act. Section 411(c)(3) of the Act, which § 718.304 largely parrots,
12
unambiguously says that “there shall be an irrebuttable presumption” of causation

if any of the three medical criteria in that section are met. 30 U.S.C. § 921(c)(3)

(emphases added). Any interpretation of the relevant regulation, 20 C.F.R. §

718.205(c)(4), that allows this statutorily-created mandatory “irrebuttable”

presumption somehow to be rebutted would be inconsistent, indeed would collide

with the plain language of § 411(c)(3) and is therefore invalid. See, e.g., United

States v. Larionoff, 431 U.S. 864, 873 (1977) (“[R]egulations, in order to be

valid[,] must be consistent with the statute under which they are promulgated.”);

Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir. 2002) (per curiam) (where a

regulation and statute conflict, the “more specific and authoritative words in the

statute govern”); Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 709 (11th

Cir. 1998) (“[R]egulations cannot trump the plain language of statutes.” (internal

quotation marks omitted)); S.J. Groves & Sons Co. v. Fulton County, 920 F.2d

752, 764 (11th Cir. 1991) (“[R]egulations must not be . . . inconsistent with the

statute that authorizes them.” (internal quotation marks omitted)).

P & M’s interpretation would yield precisely that unacceptable result. Thus,

for example, in this case, it is undisputed that Mr. Cornelius died from congestive

heart failure, “a medical condition not related to pneumoconiosis,” and it is

undisputed that pneumoconiosis was not in fact a “substantially contributing cause

of death.” According to P & M’s interpretation, Ms. Cornelius is not entitled to
13
benefits even if she otherwise meets the requirements of § 411(c)(3). But this

result cannot be squared with the plain language of § 411(c)(3), which says that

once one of the three criteria enumerated in that provision is met, the presumption

of death due to pneumoconiosis is “irrebuttable.” Since P & M’s interpretation of

§ 718.205(c)(4) undeniably conflicts with the clear text of § 411(c)(3), we reject it

and hold that § 718.205(c)(4) does not apply to claimants who are entitled to an

irrebuttable presumption of causation under § 718.304. Accord Gray v. SLC Coal

Co., 176 F.3d 382, 387 (6th Cir. 1999) (“[B]ecause both the statute (30 U.S.C. §

921) and its interpretive regulation (20 C.F.R. § 718.304) use the term

‘irrebuttable,’ the Director's reconciliation of § 718.205(c)(4) with the statute

appears to be legally sound.”); USX Corp. v. Director, OWCP, No. 93-1134, 1994

WL 89391, at *3 (4th Cir. Mar. 21, 1994) (unpublished decision) (“Adoption of the

employer's view would not only render the ‘irrebuttable’ presumption of section

718.304 rebuttable in traumatic injury cases, but also, under the language of

section 718.205(c)(4), open the door to attempts at rebuttal whenever ‘the principal

cause of death was a medical condition not related to pneumoconiosis.’ The effect

of this construction would be to create a plethora of possibilities where a

presumption the regulations term ‘irrebuttable’ would become rebuttable.”

(internal quotation marks and citation omitted)).

14
 Finding no room to maneuver in the text of § 411(c)(3), P & M makes one

final argument: the 1981 amendments to the Black Lung Benefits Act implicitly

require all claimants to show that pneumoconiosis played some part in the miner’s

death. P & M is plainly wrong. Prior to the 1981 amendments, the Act provided

benefits to the survivors of miners (1) who died due to pneumoconiosis or (2) who

were totally disabled due to pneumoconiosis at the time of death. The 1981

amendments to the BLBA eliminated the second basis for survivor’s benefits. See

Black Lung Benefits Act Amendments of 1981, Pub. L. No. 97-119, § 203(a)(4),

95 Stat. 1635, 1644 (1981). Accordingly, a survivor is no longer entitled to

benefits simply because the miner was totally disabled during his lifetime; the

survivor must prove that the miner died “due to” pneumoconiosis. See Bradberry,

117 F.3d at 1364 n.9 (explaining that, under the current version of the Act,

“[a]lthough the issue of total disability is relevant to a claim by a miner, it is not

relevant to a claim for survivor’s benefits”). Notably, however, the 1981

amendments did not repeal or in any way alter the critical language creating an

irrebuttable presumption found in § 411(c)(3). Thus, the 1981 amendments do not

change the fact that a survivor may be entitled to an “irrebuttable” presumption

that the miner died “due to” pneumoconiosis if she can meet any of the three

criteria set out in § 411(c)(3), irrespective of whether pneumoconiosis contributed

in any way to the miner’s death.
15
 Quite simply, once a claimant has established that the requirements of §

411(c)(3) are met, the irrebuttable presumption operates to establish conclusively

that the miner died “due to” pneumoconiosis, and the claimant’s obligation to

prove causation is therefore satisfied.

B.

Having failed to convince us that the plain language of the statute can be

ignored, P & M also argues that Dr. Guerry-Force’s expert opinion is an

insufficient foundation to establish any of the irrebuttable presumption’s three

medical criteria. We remain unpersuaded.

Under both the relevant statute (§ 411(c)(3)) and regulation (§ 718.304), a

claimant is entitled to an irrebuttable presumption of causation if she shows by a

preponderance of the evidence that the miner’s x-rays revealed opacities larger

than 1 centimeter in diameter (§ 411(c)(3)(A); § 718.304(a)), that the miner’s

autopsy or biopsy revealed “massive lesions” (§ 411(c)(3)(B); § 718.304(b)), or

that a diagnosis by other means reveals a condition that could reasonably be

expected to yield opacities of greater than 1 centimeter or massive lesions if the

diagnosis had been made by x-ray or autopsy, respectively (§ 411(c)(3)(C); §

718.304(c)).5

5
The claimant must also show that the pathological symptoms are caused by “a chronic
dust disease of the lung,” as opposed to some other cause, such as smoking. 30 U.S.C. §
921(c)(3); 20 C.F.R. § 718.304. P & M does not assert, however, that the lesions in Mr.
16
 The parties agree that Ms. Cornelius did not produce x-ray evidence

sufficient to satisfy § 718.304(a). The case, therefore, turns on whether substantial

evidence supports the ALJ’s conclusion that §§ 718.304(b) or (c) were met.

Notably, P & M does not challenge the ALJ’s conclusion that Dr. Guerry-Force’s

opinion was entitled to more weight than P & M’s expert witnesses, Dr. Caffrey

and Dr. Branscomb. In light of that concession, the sole issue before us is whether

Dr. Guerry-Force’s testimony provides substantial evidence in support of the

ALJ’s conclusion that Ms. Cornelius satisfied either §§ 718.304(b) or (c).

Our analysis begins and, as it turns out, ends with § 718.304(b), which

creates an irrebuttable presumption that a miner died “due to” pneumoconiosis if

an autopsy reveals “massive lesions” in his lungs. 20 C.F.R. § 718.304(b); see 30

U.S.C. § 921(c)(3)(B). The meaning of the term “massive lesions” is an issue of

first impression in this Circuit. Based on the testimony of Dr. Branscomb, P & M

argues that “massive lesions” refers to lesions the size of a chicken egg or one-third

of one lung, significantly larger than the 1.2 centimeter lesion found by Dr.

Guerry-Force. The Director, on the other hand, suggests that P & M’s chicken-egg

standard has no medical basis, and that “[t]he term ‘massive lesions’ is merely one

of several ways of describing the condition known as complicated

Cornelius’s lungs were caused by something other than pneumoconiosis.
17
pneumoconiosis.” Respondent’s Br. at 26. The Director has the better of the

argument.6

6
The level of deference we owe to the Director’s interpretation of the term “massive
lesions” is an interesting and open question. The term “massive lesions” appears in 20 C.F.R. §
718.304, and, ordinarily, we defer to the Director’s consistent interpretations of the black lung
regulations unless they are “plainly erroneous or inconsistent with the regulation.” U.S. Steel
Mining Co., 386 F.3d at 985 (internal quotation marks and citation omitted). But this highly
deferential standard may not apply if the agency “formulate[s] a regulation that merely parrots
the statute it is designed to implement.” Mahon v. U.S. Dep’t of Agriculture, 485 F.3d 1247,
1258 (11th Cir. 2007) (citing Gonzalez v. Oregon, 546 U.S. 243 (2006)). It would be difficult to
argue that § 718.304(b) does anything more than parrot § 411(c)(3)(B), because both use the
same language. See Gonzalez, 546 U.S. at 257 (concluding that where a regulation “repeats two
statutory phrases and attempts to summarize the others,” it is a parroting regulation). Perhaps
the Director could argue (although he has not) that his interpretation is entitled to Chevron
deference because the term “massive lesions” appears in the statute as well as the regulation, and
the Secretary is empowered to illuminate ambiguities in the statute through formal rulemaking.
But simply because an agency is empowered to make rules with the force of law does not mean
that Chevron deference automatically applies to any form its statutory interpretations may take.
See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“Interpretations such as those in
opinion letters - - like interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law - - do not warrant Chevron-style
deference.”); see also S.D. Warren Co. v. Me. Bd. of Envtl. Protection, 126 S. Ct. 1843, 1848
(2006) (“[B]ecause neither the EPA nor FERC has formally settled the definition, or even set out
agency reasoning, these expressions of agency understanding do not command deference from
this Court.”). Notably, the Director’s interpretation here comes in a legal brief, not a regulation
promulgated through notice-and-comment rulemaking, and we have previously suggested that
such interpretations are entitled to only Skidmore deference. See Wilderness Watch v. Mainella,
375 F.3d 1085, 1091 n.7 (11th Cir. 2004) (explaining in dicta the level of deference owed to an
interpretation advanced in an agency’s brief this way: “[W]hen, as here, the agency
interpretation does not constitute the exercise of its formal rule-making authority, we accord the
agency consideration based upon the factors cited in Skidmore . . . .”). Indeed, it would be odd
to refuse significant deference to an interpretation under Gonzalez, yet give the same
interpretation traditional Chevron deference.

At the end of the day, however, we need not determine the exact level of deference (if
any) owed to the Director’s interpretation of the term “massive lesions,” because we would
adopt his position “even if there were no formal rule and we were interpreting the statute from
scratch.” Edelman v. Lynchburg College, 535 U.S. 106, 114 (2002). Because we ultimately
agree with the Director, “there is no occasion to defer and no point in asking what kind of
deference, or how much.” Id.; see also, e.g., Wilderness Watch, 375 F.3d at 1091 n.7 (deciding
the case at Chevron step one and thus concluding that “we need not resolve the question of the
precise level of deference due the agency action under the second prong of Chevron”).
18
 Neither the Act nor the regulations defines the term “massive lesions.”

Although we would normally turn to the ordinary meaning of the words, dictionary

definitions of the word “massive” are of little use here. Therefore, we are obliged

to examine other indicia of legislative intent, case law interpreting the Black Lung

Benefits Act, and the regulatory history of the black lung regulations. All of these

sources lend support to the Director’s position that Congress intended the term

“massive lesions” to refer to the medical condition known as complicated

pneumoconiosis.

The BLBA was originally passed as Title IV of the Federal Coal Mine

Health and Safety Act of 1969 (the “1969 Act”), Pub. L. No. 91-173, 83 Stat. 792.

(Title IV was renamed the Black Lung Benefits Act in 1972.) Included in the

legislative history of the 1969 Act is a report of the Surgeon General on coal

workers’ pneumoconiosis. Summarizing that report, the Supreme Court has

explained that the medical community generally classifies pneumoconiosis as

being either “simple” or “complicated,” with the latter form generally being more

debilitating and producing more pronounced pathological effects:

Simple pneumoconiosis, ordinarily identified by X-ray opacities of a
limited extent, is generally regarded by physicians as seldom
productive of significant respiratory impairment. Complicated
pneumoconiosis, generally far more serious, involves progressive
massive fibrosis as a complex reaction to dust and other factors
(which may include tuberculosis or other infection), and usually
produces significant pulmonary impairment and marked respiratory
19
 disability. This disability limits the victim’s physical capabilities, may
induce death by cardiac failure, and may contribute to other causes of
death.

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

The House-passed version of the bill that became the 1969 Act compensated

only the survivors of miners who suffered from complicated (as opposed to simple)

pneumoconiosis, and that bill defined the term “complicated pneumoconiosis”

using specific medical criteria. See H. Rep. No. 91-563, reprinted in 1969

U.S.C.C.A.N. 2503, 2542 (“[T]his section provides for payments of compensation .

. . in respect of the death of an individual who, at the time of his death, was

suffering from complicated pneumoconiosis . . . .”). In conference, all references

to “complicated pneumoconiosis” were eliminated and coverage was expanded to

all miners who were totally disabled due to “pnuemoconiosis” and to the survivors

of all miners who died due to “pneumoconiosis,” which the conference bill defined

simply as “a chronic dust disease of the lung arising out of employment in an

underground coal mine.” Pub. L. No. 91-173, § 402(b), 83 Stat. 793. The House’s

definition of “complicated pneumoconiosis” was not ignored entirely, however.

Instead, the conference bill incorporated the House’s definition of “complicated

pneumoconiosis” (but not the term itself) into the newly created § 411(c)(3). See

Usery, 428 U.S. at 23 n.22 (noting that the House bill “contained the diagnostic

criteria presently embodied in § 411(c)(3)”). Thus, under the BLBA as enacted, a
20
claimant is entitled to an irrebuttable presumption of causation under § 411(c)(3) if

she satisfies the House’s definition of “complicated pneumoconiosis,” though the

term “complicated pneumoconiosis” does not appear in the Act. Although a court

must tread very carefully when reviewing the evolution of a statute prior to

enactment, we believe this legislative history supports the Director’s position that

the term “massive lesions” is another way of referring to the medical condition

known as complicated pneumoconiosis.

Likewise, when discussing causation under the BLBA, the Supreme Court

and this Court have equated the criteria embodied in § 411(c)(3) with complicated

pneumoconiosis. In Usery, for example, the Supreme Court said that Ҥ 411(c)(3)

provides that clinical evidence of a miner’s complicated pneumoconiosis gives rise

to an irrebuttable presumption that . . . his death was due to pneumoconiosis.” 428

U.S. at 24; see also id. at 10-11 (“Under § 411(c)(3), [if] a miner [is] shown by X-

ray or other clinical evidence to be afflicted with complicated pneumoconiosis . . .

it is irrebuttably presumed that . . . his death was due to pneumoconiosis.”); id. at

20 (“[I]f a miner can show by clinical evidence . . . that he is afflicted with

complicated pneumoconiosis . . . then the miner is deemed to be totally disabled

under § 411(c)(3).”); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 685 (1991)

(describing § 411(c)(3) as creating an irrebuttable presumption when “a miner

present[s] medical evidence demonstrating complicated pneumoconiosis”); id. at
21
703 n.8 (describing § 411(c)(3) as “applicable to a miner for whom the medical

evidence demonstrates the presence of complicated pneumoconiosis”).

Similarly, in Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511,

1517 n.11 (11th Cir. 1984), this Court noted that “Section 411(c)(3) raises an

irrebuttable presumption that a miner . . . has died as a result of . . .

pneumoconiosis if the miner is clinically shown to have ‘complicated’

pneumoconiosis.” Other Circuits have made similar observations. See, e.g.,

Freeman United Coal Min. Co. v. Foster, 30 F.3d 834, 835 (7th Cir. 1994) (“[A]ny

miner suffering from complicated pneumoconiosis is irrebuttably presumed to be

totally disabled by that disease.” (citing 30 U.S.C. § 921(c)(3)); Peabody Coal Co.

v. Director, OWCP, 972 F.2d 178, 181 (7th Cir. 1992) (referring to the “medical

evidence of complicated pneumoconiosis set forth at 718.304”); Lukosevicz v.

Director, OWCP, 888 F.2d 1001, 1003 (3d Cir. 1989) (same). Although none of

these decisions addressed the question we examine here, they support the

Director’s position that § 411(c)(3) refers to the diagnostic criteria for complicated

pneumoconiosis.

Finally, the regulatory history of the black lung regulations discusses §

411(c)(3) in terms of complicated pneumoconiosis. Thus, for example, while

amending the black lung regulations in 2000, the Department of Labor described §

411(c)(3) as creating an “irrebuttable presumption . . . invoked by proof of
22
complicated pneumoconiosis.” Regulations Implementing the Federal Coal Mine

Health and Safety Act, as Amended, 65 Fed. Reg. 79920, 79936 (Dec. 20, 2000).

Taken together, the legislative history of the Act, the case law, and the

regulatory history of the black lung regulations suggest that § 411(c)(3) refers to

the medical criteria for diagnosing complicated pneumoconiosis on autopsy.

Certainly, none of these sources even hints that “massive lesions” means lesions

the size of a chicken egg or one-third of one lung, as P & M contends. We are

satisfied that the term “massive lesions” means lesions revealed on autopsy or

biopsy that support a diagnosis of complicated pneumoconiosis. Because “massive

lesions” is simply a shorthand for complicated pneumoconiosis, we agree with the

BRB’s conclusion that a physician need not employ the magic words “massive

lesions” in order to satisfy the requirements found in § 718.304(b). It is sufficient

if the claimant can establish by a preponderance of the evidence that the miner’s

autopsy or biopsy results are consistent with a diagnosis of complicated

pneumoconiosis under accepted medical standards. See Gruller v. BethEnergy

Mines, Inc., 16 Black Lung Rep. 1-3 (Ben. Rev. Bd. 1991) (per curiam) (evidence

is sufficient if it “adequately describe[s] the condition comprehended by the

regulatory term, ‘massive lesions’”).

The question, then, boils down to this: whether Dr. Guerry-Force applied

proper medical standards in concluding that the numerous lesions in Mr.
23
Cornelius’s lungs, which included at least one lesion as large as 1.2 centimeters in

diameter, constituted complicated pneumoconiosis. Although the proper standard

for diagnosing complicated pneumoconiosis on autopsy is far from clear, we

conclude that the ALJ did not commit reversible error in accepting her diagnosis.

At present, the DOL has promulgated no specific standards for diagnosing

complicated pneumoconiosis on autopsy. As recently as 2000, the DOL rejected a

commentor’s suggestion that it adopt a two-centimeter minimum size for “massive

lesions” because such a standard was not “universally accepted” as being

“necessary for a diagnosis of complicated pneumoconiosis.” 65 Fed. Reg. 79936.

Indeed, the DOL refused to promulgate any specific minimum-size threshold,

apparently because of “the lack of a prevailing standard in the medical

community.” Respondent’s Br. at 26 n.10. Instead, as the Director explained, the

DOL has elected to proceed in a common-law fashion, requiring ALJs to carefully

examine the medical evidence presented to determine whether complicated

pneumoconiosis exists on the unique facts of each case.

Although this approach may present the possibility of conflicting results on

similar facts, surely it is one reasonable way of dealing with the demonstrable lack

of any medical consensus on this issue. Moreover, the Supreme Court has

explained the justification for granting deference to the Secretary’s implementation

of the Act this way:
24
 The [BLBA] has produced a complex and highly technical regulatory
program. The identification and classification of medical eligibility
criteria necessarily require significant expertise and entail the exercise
of judgment grounded in policy concerns. In those circumstances,
courts appropriately defer to the agency entrusted by Congress to
make such policy determinations.

Pauley, 501 U.S. at 697. “Further,” the Supreme Court has observed, “the

delegation [to the Secretary] was made with the intention that the program evolve

as technological expertise matured” so that the Secretary could “‘incorporate

within his regulations . . . to the extent feasible the advances made by medical

science in the diagnosis and treatment of pneumoconiosis. . . .’” Id. at 697-98

(quoting S. Rep. No. 95-209 at 13 (1977)) (ellipses in original). Based on the

regulatory history of the black lung regulations and the Director’s position in this

case, it appears that medical science has not yet advanced to the point of

developing a precise, objective standard for diagnosing complicated

pneumoconiosis on autopsy. Because of the lack of consensus, the expertise

undeniably required to formulate standards for medical causation, the policy-laden

judgments inherent in establishing medical eligibility criteria in black lung cases,

and the deference we owe to the Secretary’s implementation of the Black Lung

Benefits Act, we accept the Secretary’s case-by-case approach for determining

whether a miner’s autopsy results support a diagnosis of complicated

pneumoconiosis. See Pauley, 501 U.S. at 698-99 (holding that the Secretary’s

25
implementation of the BLBA’s requirements was entitled to deference); see also

U.S. Steel Mining Co., 386 F.3d at 988-89 (deferring to the Director’s

interpretation of the black lung regulations); Bradberry, 117 F.3d at 1366-67

(same); Lollar v. Ala. By-Products Corp., 893 F.2d 1258, 1262 (11th Cir. 1990)

(“We owe . . . deference . . . to the Director . . . as the relevant policymaker in this

case . . . .”).

Accordingly, we conclude that, until the Secretary provides further guidance

on this matter, § 411(c)(3)(B) and § 718.304(b) are met if a preponderance of the

evidence establishes that the miner’s autopsy reveals lesions that support a

diagnosis of complicated pneumoconiosis. If, as in this case, the parties present

conflicting medical opinions, the ALJ must consider the totality of the evidence

and make relevant credibility determinations and findings of fact, subject to

substantial evidence review by the BRB and this Court.7

7
To the extent that the Fourth Circuit has required claimants relying on § 411(c)(3)(B) to
show that the lesions, if x-rayed, would “show as opacities greater than one centimeter in
diameter,” we decline to follow it. Double B Mining Inc. v. Blankenship, 177 F.3d 240, 243 (4th
Cir. 1999); see also Gray, 176 F.3d at 390 (§ 411(c)(3)(B) is satisfied if either the test later
adopted by the Fourth Circuit in Blankenship is met or there is testimony that the nodule
discovered on autopsy is a “massive lesion”). In Blankenship, the Fourth Circuit held that
equivalency determinations between § 411(c)(3)(A)’s x-ray standard and § 411(c)(3)(B)’s
autopsy and biopsy standard were essential “to make certain that regardless of which diagnostic
technique is used, the same underlying condition triggers the irrebuttable presumption.” 177
F.3d at 243. “Because [§ 411(c)(3)(A)] sets out an entirely objective scientific standard,” the
Fourth Circuit observed, “it provides the mechanism for determining equivalencies under [§
411(c)(3)(B)] or [§ 411(c)(3)(C)].” Id. Accordingly, the Fourth Circuit concluded that
“‘massive lesions’ . . . are lesions that when x-rayed, show as opacities greater than one
centimeter in diameter.” Id.

26
 In our view, Blankenship’s equivalency requirement has at least four basic shortcomings.
First, it conflates the x-ray criteria in § 411(c)(3)(A) with the autopsy criteria found in §
411(c)(3)(B). Notably, Congress separated the subsections in § 411(c)(3) by the word “or,”
indicating that they were meant to be distinct alternatives. See United States v. Garcia, 718 F.2d
1528, 1532-33 (11th Cir. 1983) (“The use of a disjunctive in a statute indicates that alternatives
were intended.”). We cannot read the word “or” out of the statute simply because it may yield a
less “objective” test. Second, interpreting § 411(c)(3)(B) and § 718.304(b) to require an
equivalency determination between autopsy results and x-rays may render those provisions
superfluous in light of § 411(c)(3)(C) and § 718.304(c), which may already allow equivalency
determinations between x-rays and autopsies. See Clites v. Jones & Laughlin Steel Corp., 663
F.2d 14, 16 (3d Cir. 1981) (affirming an ALJ’s equivalency determination between autopsy
findings and expected x-ray results); see also TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It
is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.” (internal quotation marks omitted)). Third, as the Supreme Court has noted, the
legislative history to the 1969 Act acknowledges that post-mortem examinations reveal a greater
prevalence of pneumoconiosis than x-ray diagnosis. See Usery, 428 U.S. at 32 (“[A]utopsy
frequently disclose[s] pneumoconiosis where X-ray evidence ha[s] disclosed none . . . .”). It
would be anomalous indeed to accord paramount importance to the perceived objectivity of x-
rays even though autopsies are more accurate. (Notably, P & M’s expert, Dr. Branscomb, also
conceded that autopsies are “by far” the most effective way to diagnose pneumoconiosis.)
Fourth, the Black Lung Benefits Act expressly forbids rejecting claims “solely on the basis of
the results of a[n] [x-ray],” 30 U.S.C. § 923(b), suggesting that Congress did not intend
“objective” x-ray results to be the be-all-end-all standard by which all other diagnoses were
judged. Finally, we observe that the Solicitor General has previously expressed some of the
same concerns about the Fourth Circuit’s interpretation of § 411(c)(3). See Brief for the Federal
Respondent in Opposition at 7-8, Gollie v. Elkay Mining Co., cert. denied, 543 U.S. 925 (2004)
(No. 04-39).

For all of these reasons, we conclude that § 411(c)(3)(B) and § 718.304(b) do not require
that an equivalency determination be made between autopsy findings and x-rays. Those
provisions focus on what the autopsy itself reveals, rather than on what the autopsy results might
look like on a hypothetical x-ray. We do not mean to imply that § 411(c)(3)(A) is wholly
irrelevant to the interpretation of § 411(c)(3)(B). Pneumocotic lesions appear as opacities on an
x-ray, though there does not appear to be an exact, predictable correlation between the size of a
lesion found on autopsy and the size of the opacity that same lesion would produce if x-rayed.
Under § 411(c)(3)(A), “large” opacities are “greater than one centimeter in diameter.” 30 U.S.C.
§ 921(c)(3)(A). As discussed in the text, § 411(c)(3)(B) does not define “massive” lesions, but it
could be argued that, because the word “massive” connotes something bigger than the word
“large,” reading the two subsections in pari materia requires “massive lesions” to be even larger
than the “greater than one centimeter in diameter” required for merely “large” opacities. We
need not address this issue, however, because Dr. Guerry-Force found at least one lesion as large
as 1.2 centimeters in diameter, and we are satisfied that 1.2 centimeters is sufficiently greater
27
 Applying substantial evidence review here, we have little difficulty

concluding that the ALJ did not commit reversible error in finding that Dr. Guerry-

Force’s autopsy report and deposition testimony established that Mr. Cornelius had

“massive lesions” in his lungs. Dr. Guerry-Force’s gross and microscopic

examinations of Mr. Cornelius’s lungs revealed, among other things, numerous

lesions, at least one of which measured 1.2 centimeters in diameter. Dr. Guerry-

Force then explained how her findings satisfied each of the criteria for diagnosing

complicated pneumoconiosis enumerated in a letter she previously received from

the DOL’s Employment Standards Administration. Absent persuasive contrary

evidence - - and in this case P & M has not challenged the ALJ’s credibility

determinations - - and given our deferential standard of review, that is enough. See

Gruller, 16 Black Lung Rep. 1-3 (affirming ALJ’s finding that the irrebuttable

presumption had been met where the autopsy report “diagnosed complicated

pneumoconiosis” and described “large, firm and black” lesions measuring “up to

1.0 cm in diameter”).

III.

In sum, we agree with the Benefit Review Board’s conclusion that

substantial evidence supports the ALJ’s finding that Ms. Cornelius is entitled to an

irrebuttable presumption of causation under § 411(c)(3)(B) of the Act and 20

than 1 centimeter to qualify as “massive” even under this interpretation of § 411(c)(3)(B).
28
C.F.R. § 718.304(b). Therefore, like the BRB, we do not reach the ALJ’s

alternative finding that Ms. Cornelius also satisfied § 411(c)(3)(C) and §

718.304(c). Accordingly, P & M’s petition for review is

DENIED.

29