Little T Coal Co. v. OWCP

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0067n.06

No. 22-3135

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LITTLE T COAL COMPANY; OLD ) FILED
) Feb 02, 2023
REPUBLIC INSURANCE COMPANY,
) DEBORAH S. HUNT, Clerk
Petitioners, )
)
v. ) ON PETITION FOR REVIEW OF A
) DECISION AND ORDER OF THE
DIRECTOR, OFFICE OF WORKERS’ ) BENEFITS REVIEW BOARD
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT OF ) OPINION
LABOR; MARY BAILEY, widow of )
Andy M. Bailey, )
Respondents. )
)

Before: BATCHELDER, STRANCH, and DAVIS, Circuit Judges.

STRANCH, J., delivered the opinion of the court in which DAVIS, J., joined.
BATCHELDER, J. (pp. 18–21), delivered a separate dissenting opinion.

JANE B. STRANCH, Circuit Judge. Petitioners Little T Coal Company and its insurer

seek review of the Black Lung Benefits Board’s affirmance of an Administrative Law Judge’s

determination that Little T Coal’s former employee, Andy Bailey, was entitled to benefits under

the Black Lung Benefits Act. Because the Board correctly concluded that substantial evidence

supported the ALJ’s factual findings, we DENY the petition for review.
No. 22-3135, Little T Coal Co., et al. v. OWCP, et al.

I. FACTUAL BACKGROUND

This case relates to a claim for disability benefits under the Black Lung Benefits Act

(BLBA), 30 U.S.C. §§ 901-944, initially filed by the decedent Andy Bailey, a former coal miner,

and now pursued by his widow, Mary Bailey (the Claimant).

Andy Bailey was born in 1942 and was 75 years old at the time of his 2017 deposition. He

worked in coal mines in Tennessee intermittently from 1977 to 1987. From 1977 through 1981,

he worked for Little T Coal, Inc. In 1987, Bailey was working for another coal company when he

sustained a serious injury on the job that required four back surgeries. He later had four heart

attacks and three heart surgeries, the last of which was in 1998. By 2000, Bailey had both legs

amputated due to peripheral vascular disease and circulatory problems. He was on two liters of

oxygen at the time of his deposition. Bailey testified that he started smoking cigarettes in about

1984 and that he was smoking one half pack to one pack daily at the time of his 2017 deposition.

Bailey filed this claim for federal black lung benefits on November 3, 2016.1 After the

District Director of the Department of Labor’s (DOL) Office of Workers’ Compensation Programs

(OWCP) determined that Bailey was entitled to benefits in January 2017, Petitioners Little T Coal

requested a de novo hearing before the Office of Administrative Law Judges. The ALJ held a

hearing in June 2019. Bailey did not attend that hearing, but the ALJ considered his 2017

deposition.

On April 23, 2020, the ALJ issued an order and opinion upholding the District Director’s

award of benefits to Bailey and ordering Little T Coal to pay those benefits. The ALJ found that

“33 pack years beginning in 1984 and continuing” was a reasonable estimate of Bailey’s smoking

1
Bailey filed two previous claims for BLBA benefits: One in November 2008, which the District Director denied for
reason of abandonment; and one that Bailey withdrew, and which was therefore treated as though it was never filed.
20 C.F.R. 725.306(b).

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history and credited Bailey with 2.96 years of coal mine employment. Based on the length of his

coal mine employment, Bailey was not eligible for the statutory presumption that any totally

disabling respiratory or pulmonary impairment was “due to pneumoconiosis.” 30 U.S.C.

§ 921(c)(4). Instead, Bailey was required to show that he had pneumoconiosis through medical

evidence.

The ALJ reviewed the following medical evidence to make her findings. First, the ALJ

considered two x-ray readings: (1) a November 2016 x-ray that was interpreted by one radiologist

to be positive for clinical pneumoconiosis and by two radiologists to be negative for clinical

pneumoconiosis; and (2) an August 2017 x-ray that was interpreted by only one radiologist, who

found it negative for clinical pneumoconiosis. The ALJ also evaluated three medical opinions that

are relevant here: (1) a report from Dr. Elie Mansour based on his exam of Bailey provided by the

Department of Labor; (2) an employer-submitted report from Dr. Abdul K. Dahhan, and (3) an

employer-submitted report from Dr. David M. Rosenberg. In short, all three physicians agreed

that Bailey suffered from COPD and that Bailey’s respiratory impairment was caused by cigarette

smoking; only Dr. Mansour and Dr. Rosenberg found Bailey totally disabled due to that

impairment; and only Dr. Mansour found that the impairment was also caused by Bailey’s coal

mine employment.

Specifically, Dr. Dahhan diagnosed Bailey with an obstructive ventilatory impairment,

relying on statistical averaging to conclude that the impairment was consistent with Bailey’s

smoking habit and not caused or aggravated by coal dust inhalation. Conceding that he could not

rule out that coal dust caused the pulmonary injury, Dr. Dahhan represented that he did not believe

that coal dust was a “significant contributory or causative factor.” Dr. Rosenberg found that Bailey

was totally disabled due to a pulmonary injury but attributed that disability solely to smoking,

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basing his conclusion on the assumption that cigarette smoke is more harmful to the lungs and

causes a different kind of lung injury than coal dust inhalation.

Dr. Mansour’s report diagnosed Bailey with COPD, finding a severe and totally disabling

pulmonary impairment based on the positive reading of the 2016 x-ray, a physical exam,

pulmonary function tests (PFTs), arterial blood gas studies, and a review of Bailey’s employment

and smoking history. Mansour determined that Bailey’s COPD was caused by a combination of

cigarette smoking and coal dust exposure. Mansour responded to a DOL form question by

attributing 90% of Mr. Bailey’s disabling disease to smoking and 10% to coal dust inhalation,

based on Bailey’s initially recorded employment history of six years of coal mining.2 The DOL

District Director asked Mansour to reconsider his conclusions after the Director found that Bailey

had been employed as a coal miner for two years and ten months. Mansour responded with a letter

that reaffirmed his belief that Bailey had COPD caused by smoking and coal dust exposure but

estimating that Bailey’s chronic respiratory failure was 95% attributable to smoking and 5%

attributable to coal dust inhalation.

Petitioners deposed Dr. Mansour two years after he examined Bailey. When asked why he

picked the 5% causation figure, Dr. Mansour acknowledged that the estimate was “just [his]

opinion,” in that he was “not aware of studies showing equivalency of how many years” of mining

might equate to a given percentage. When asked whether the five percent cut-off was “kind of

like arbitrary,” Dr. Mansour answered “yes,” reiterating that it was based on his opinion of the

amount of damage to Bailey’s airways in addition to damage caused by smoking. Finally, Dr.

Mansour added that he had also based his conclusion on the positive reading of the 2016 x-ray.

2
Although the DOL form asked for causation percentages, an expert need not necessarily identify the precise extent
to which coal dust exposure contributed to an impairment to establish pneumoconiosis. See Collieries, Inc. v. Barrett,
478 F.3d 350, 356 (6th Cir. 2007).

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When asked whether his opinion would be influenced by a negative x-ray finding, Dr. Mansour

agreed that it would—but he also agreed that the positive x-ray reading had only “bolstered” his

opinion.

Based on this medical record, the ALJ first concluded that substantial evidence did not

support a finding of clinical pneumoconiosis, which consists of “those diseases recognized by the

medical community as pneumoconioses.” 20 C.F.R. § 718.201(a)(1). The ALJ determined that

the x-ray evidence did not support a clinical pneumoconiosis finding, because the 2017 x-ray was

found negative for pneumoconiosis and the 2016 x-ray was “in equipoise” due to the split opinions

of the radiologists who interpreted it. The ALJ likewise concluded that medical opinion evidence

did not support a clinical pneumoconiosis finding: Dr. Dahhan and Dr. Rosenberg found no clinical

pneumoconiosis, and the ALJ reasoned that Dr. Mansour’s opinion finding of clinical

pneumoconiosis was entitled to diminished weight because it relied on the 2016 x-ray that the ALJ

had found inconclusive.

However, the ALJ then concluded that the record supported a finding of legal

pneumoconiosis, a category that is broader than clinical pneumoconiosis and includes “any chronic

lung disease or impairment and its sequelae arising out of coal mine employment.” 20 C.F.R.

§ 718.201(a)(2). Weighing each medical expert’s opinion, the ALJ concluded that Dr. Dahhan’s

and Dr. Rosenberg’s opinions suffered from critical flaws: Dr. Dahhan’s opinion conflicted with

the DOL’s position that coal dust and smoking caused the same type of emphysema, and both Dr.

Dahhan and Dr. Rosenberg’s opinions relied on statistical averaging, which the Preamble to the

Black Lung Benefits regulations recognizes can understate the effects of coal mine dust exposure

in individuals. See Fed. Reg. 79,920, 79,941 (Dec. 20, 2000). In contrast, the ALJ found that Dr.

Mansour’s opinion concluding that coal dust played a significant role in causing Bailey’s

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impairment was “impartial, well-reasoned, and well-documented” and therefore “entitled to

significant weight.” The ALJ credited Dr. Mansour’s opinion and found that Bailey’s COPD

constituted legal pneumoconiosis.

Finally, the ALJ concluded that Bailey was “totally disabled” by his impairment, noting

that Dr. Mansour and Dr. Rosenberg agreed that Bailey was totally disabled by his COPD and that

the PFTs supported a finding of total disability. The ALJ also concluded that the legal

pneumoconiosis was a “substantially contributing cause” of Bailey’s total disability, reasoning that

“[e]xtended discussion” of the factor was unnecessary, because the ALJ had already determined

that Bailey suffered from legal pneumoconiosis and that the COPD was totally disabling.

The employer appealed this decision to the DOL’s Benefits Review Board, which affirmed

Bailey’s award on December 21, 2021, over the dissent of Chief Judge Boggs. The Board held

that substantial evidence supported the ALJ’s finding of legal pneumoconiosis, rejecting as

forfeited and meritless Petitioners’ contentions that the ALJ overlooked Dr. Mansour’s partial

reliance on the 2016 x-ray with respect to his legal pneumoconiosis opinion. Petitioners now seek

review of the Board’s decision.

II. STANDARD OF REVIEW

“In reviewing an appeal from the Board, we review the Board’s legal conclusions de novo.”

Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1068 (6th Cir. 2013).3 But to the extent that review

3
The parties dispute whether this Court reviews the ALJ’s decision or the Board’s decision. As we have clarified,
“[t]echnically, this Court is reviewing the [Board’s] decision affirming the ALJ, not the ALJ’s decision itself. Thus,
we do not consider whether the [Board’s] decision was supported by substantial evidence, but whether the [Board]
correctly concluded that substantial evidence supported the ALJ’s decision.” Eastover Mining Co. v. Williams, 338
F.3d 501, 508 n.9 (6th Cir. 2003); see also Island Creek Coal Co. v. Bryan, 937 F.3d 738, 750 (6th Cir. 2019)
(“[C]ourts of appeals have jurisdiction to review only orders of the Board, not of administrative law judges.”);
33 U.S.C. § 921(c) (providing that any person adversely affected by a final order of the Board “may obtain a review
of that order in the United States court of appeals for the circuit in which the injury occurred”) (emphasis added).

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No. 22-3135, Little T Coal Co., et al. v. OWCP, et al.

of factual issues is required, “we do so with much greater deference.” Eastover Mining Co. v.

Williams, 338 F.3d 501, 508 (6th Cir. 2003). When determining “whether the ALJ reached the

correct result after weighing conflicting medical evidence,” our “[s]cope of review is exceedingly

narrow,” and “[a]bsent an error of law, findings of facts and conclusions flowing therefrom must

be affirmed if supported by substantial evidence.” Peabody Coal Co. v. Odom, 342 F.3d 486, 489

(6th Cir. 2003). Substantial evidence is defined as “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Big Branch Res., Inc., 737 F.3d at 1068-69

(quoting Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir. 1985)). We do

not reweigh the evidence or substitute our judgment for the ALJ’s, and we may affirm an ALJ’s

decision even if “we would have taken a different view of the evidence were we the trier of facts.”

Big Branch Res., Inc., 737 F.3d at 1068-69 (quoting Ramey v. Kentland Elkhorn Coal Corp.,

755 F.2d 485, 486 (6th Cir. 1985)).

III. ANALYSIS

The Petitioners argue for reversal on the basis that the record before the ALJ did not support

findings of legal pneumoconiosis and total disability. The OWCP Director filed a brief agreeing

that the legal pneumoconiosis finding was not supported by substantial evidence, but arguing that

remand rather than reversal is the appropriate remedy, and proposing that the court need not reach

Petitioner’s disability causation arguments. Mrs. Bailey argues that the petition for review should

be denied because the Board correctly found that the ALJ’s findings as to legal pneumoconiosis

and disability causation were supported by substantial evidence.

A. Legal Standard

A miner is entitled to benefits if he establishes that: (1) he “[h]as pneumoconiosis,”

(2) “[t]he pneumoconiosis arose out of coal mine employment,” (3) he “[i]s totally disabled,” and

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(4) “[t]he pneumoconiosis contributes to the total disability.” 20 C.F.R. § 725.202(d)(2).

Pneumoconiosis is proved by demonstrating that the miner has either clinical or legal

pneumoconiosis. See Eastover Mining, 338 F.3d at 509; 20 C.F.R. § 718.201(a). Clinical

pneumoconiosis includes “those diseases recognized by the medical community as

pneumoconioses,” while legal pneumoconiosis is a broader concept encompassing lung diseases

caused by employment in coal mines. 20 C.F.R. § 718.201(a).

B. Legal Pneumoconiosis

DOL regulations define legal pneumoconiosis as “any lasting lung impairment that is

‘significantly related to, or substantially aggravated by’ exposure to coal dust.” Island Creek Coal

Co. v. Young, 947 F.3d 399, 404 (6th Cir. 2020) (quoting 20 C.F.R. § 718.201(b)). Under the

Act’s implementing regulations, a miner establishes a lung impairment that is “significantly related

to” exposure to coal dust and therefore constitutes legal pneumoconiosis “by showing that his

disease was caused ‘in part’ by coal mine employment.” Arch on the Green, Inc. v. Groves,

761 F.3d 594, 598-99 (6th Cir. 2014); 20 C.F.R. § 718.203(a). Relevant here, the existence of

pneumoconiosis may be shown by “[a] chest X-ray” or a finding by “a physician, exercising sound

medical judgment, notwithstanding a negative X-ray, [who] finds that the miner suffers or suffered

from pneumoconiosis.” 20 C.F.R. § 718.202(a). Although x-rays are often helpful in diagnosing

pneumoconiosis, “a claim for benefits must not be denied solely on the basis of a negative chest

X-ray.” 20 C.F.R. § 718.202(b).

1. Legal Arguments

On appeal, Petitioners argue that the ALJ’s opinion was not supported by substantial

evidence because Dr. Mansour’s opinion failed to show a lung impairment significantly related to

coal mine employment. Raising new legal arguments, Petitioners now propose that: (1) Dr.

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Mansour’s opinion diagnosing legal pneumoconiosis is per se invalid because it conflicted with

the regulations by partially relying on an x-ray, and (2) the ALJ applied the wrong standard by

failing to require Bailey to present “competent evidence” connecting his pneumoconiosis to his

coal mine employment.

Petitioners did not raise these arguments before the Board. Regulations require that

petitions for review identify “specific issues to be considered on appeal” by the Board. 20 C.F.R.

§ 802.211(a). As we explained in Island Creek Coal Co. v. Bryan, “[i]f a party flouts the regulation

by failing to raise with the Board an issue that the party asserts in court, the court generally has no

basis for ‘setting aside’ the Board’s order (even assuming the administrative law judge erred).”

937 F.3d at 750. Because Petitioners failed to raise these arguments before the Board, these

arguments were not exhausted and provide no basis for setting aside the Board’s order affirming

the ALJ’s decision. See id.

Even if these arguments had been appropriately exhausted, they would fail on the merits.

First, Petitioners’ argument that a doctor’s reliance on an x-ray reading “fails, as a matter of law,

to diagnose ‘legal’ pneumoconiosis under Section 718.202(a)(4)” conflicts with the regulation’s

text, which states that legal pneumoconiosis may be established “notwithstanding a negative

X-ray” through a medical opinion. 20 C.F.R. 718.202(a)(4). Petitioners cite Eastover Mining to

support their proposition, but that case held only that “an ALJ may not rely on a doctor’s opinion

that a patient has medical pneumoconiosis when the physician bases his opinion entirely on x-ray

evidence the ALJ has already discredited.” Eastover Mining, 338 F.3d at 514 (emphasis added).

Nothing in the regulations’ text or our precedent precludes an ALJ from crediting a doctor’s

opinion that relies only partially on an x-ray that it found to be negative.

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Second, Petitioners argue that the ALJ never found that Dr. Mansour presented “competent

evidence” linking Bailey’s legal pneumoconiosis to his coal mine employment. But a finding of

legal pneumoconiosis necessarily includes a finding that the condition is caused by coal mine

employment, and our Circuit has clearly held that a separate causal inquiry need not be made where

an ALJ finds that a totally disabling condition constitutes legal pneumoconiosis. See, e.g.,

Brandywine Explosives & Supply v. Dir., OWCP, 790 F.3d 657, 668-69 (6th Cir. 2015) (explaining

that disability causation need not be addressed separately where “the only remaining question was

what caused the additional respiratory impairment—an issue resolved by the earlier finding of

legal pneumoconiosis”); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 478 n.3 (6th Cir.

2011) (quoting 20 C.F.R. § 718.201(a)(2)) (explaining that legal pneumoconiosis includes, by

definition, “any chronic restrictive or obstructive pulmonary disease arising out of coal mine

employment”). Petitioners’ legal arguments are thus neither properly exhausted nor meritorious.

2. Factual Arguments

Next, Petitioners and the Director argue that the ALJ improperly relied on Dr. Mansour’s

legal pneumoconiosis diagnosis without adequately accounting for his reliance on the 2016 x-ray,

which Petitioners propose was “pivotal” to his conclusion that coal dust contributed to Bailey’s

impairment. But this argument has also not been exhausted. Although Petitioners raised it before

the Board, they failed to do so before the ALJ. Instead, Petitioners challenged the x-ray evidence

before the ALJ only when contesting whether Mr. Bailey had established clinical pneumoconiosis.

As to legal pneumoconiosis, Petitioners argued only that Dr. Mansour based his opinion

“exclusively on Claimant’s work history and not on any diagnostic criteria at all.” The Board

therefore concluded that Petitioners forfeited their argument that Dr. Mansour relied on a

discredited x-ray reading, because that position was contrary to the one they argued below.

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Circuit precedent provides that parties forfeit arguments that were not raised before

the ALJ. Joseph Forrester Trucking v. Dir., OWCP, 987 F.3d 581, 591 (6th Cir. 2021).

The Petitioners and Director argue that the Petitioners’ brief to the ALJ directed the ALJ to

generally assess the basis for Dr. Mansour’s opinion. The contention that Dr. Mansour’s diagnosis

of legal pneumoconiosis was not based on any objective medical evidence, however, conflicts with

the new argument that Dr. Mansour did consider objective evidence but the evidence he considered

was discredited. We agree with the Board’s assessment that Petitioners failed to exhaust this new

argument.

Petitioners nevertheless propose that their argument relating to the x-ray should be

characterized as a challenge to the ALJ’s “failure to consider all [the] relevant evidence,” which

would properly be raised for the first time on appeal. But the ALJ’s opinion shows that she did

consider all the relevant evidence. As the Board majority pointed out, the ALJ first found that Dr.

Mansour’s reliance on the x-ray undermined his clinical pneumoconiosis opinion, but then

permissibly found Dr. Mansour’s description of objective testing and conclusions regarding coal

dust exposure were sufficient to establish legal pneumoconiosis. Petitioners failed to exhaust this

argument by failing to raise it before the ALJ.

Even if Petitioners had exhausted their factual argument related to the x-ray, moreover,

that argument also fails on the merits under the “narrow” standard of review that applies here.

Although the Director and Petitioners cite Eastover Mining for the proposition that an expert’s

reliance on a discredited x-ray requires remand (a narrower position than Petitioners’ argument

that reliance on any x-ray is per se invalid), as discussed above, Eastover Mining held that an ALJ

may not rely on a doctor’s opinion that is based “entirely” on discredited x-ray evidence. 338 F.3d

at 514 (emphasis added). Other cases have clarified that an expert’s partial reliance on a

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discredited x-ray does not prevent an ALJ from crediting that opinion if it was also based on other

evidence. In Martin v. Ligon Preparation Co., the Court determined that the ALJ failed to

adequately explain why a doctor’s report did not support a legal pneumoconiosis finding where

the doctor relied on an x-ray reading that the ALJ determined insufficient to establish

pneumoconiosis, but also relied on other evidence that could have established legal

pneumoconiosis. 400 F.3d 302, 306 (6th Cir. 2005) (“Even setting aside Martin’s positive x-ray

reading, which the ALJ had already determined to be insufficient to establish pneumoconiosis, Dr.

Rasmussen’s consideration of the other evidence . . . .alone would have been sufficient to support

a finding of legal pneumoconiosis.”). And as Cumberland River Coal Co .v. Banks explains, an

ALJ can credit doctors’ opinions that rely on discredited x-rays but also consider other evidence.

690 F.3d 477, 487 (6th Cir. 2012) (finding ALJ’s opinion supported by substantial evidence where

doctors partially relied on x-rays but based legal pneumoconiosis diagnoses on evidence including

“pulmonary function and blood gas studies . . . together with [Banks’s] coal mine employment and

smoking histories”).

Here, like in Martin, Dr. Mansour’s opinion was not based solely on the positive x-ray

reading. As the ALJ and Board recognized, Dr. Mansour also based his evaluation on a physical

examination, clinical testing, CT scan, and Bailey’s medical history and coal mine employment

history. Thus, while Dr. Mansour relied in part on the x-rays for the legal pneumoconiosis finding,

the ALJ was not precluded from crediting Dr. Mansour’s opinion because it was supported by

additional objective medical evidence.

Petitioners also argue that the x-ray reading was pivotal to Dr. Mansour’s finding of legal

pneumoconiosis, pointing to Dr. Mansour’s deposition testimony that a negative x-ray finding by

the judge might “influence his opinion” on the significance of coal dust. But Dr. Mansour did not

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represent that his opinion would change if the x-ray were negative, only that it would be

“influenc[ed]”—and he ultimately stated that the x-ray only “bolstered” his opinion regarding legal

pneumoconiosis.

Petitioners and the Director argue that the ALJ failed to address the significance of

Dr. Mansour’s reliance on the x-ray findings. But as the Board explained, the ALJ did address

Dr. Mansour’s reliance on the x-ray when she found that it undermined his opinion on the narrower

category of clinical pneumoconiosis. A logical reading of this record shows that the ALJ

considered, discounted, and simply did not reiterate, Dr. Mansour’s partial reliance on the x-ray

with respect to legal pneumoconiosis. She then permissibly determined that his diagnosis of legal

pneumoconiosis was sufficiently based on other factors to be persuasive in contrast to the other

experts’ opinions.4

Accordingly, even if we consider Petitioners’ forfeited factual arguments on the merits, the

ALJ permissibly credited the other evidence on which Dr. Mansour’s opinion relied, including his

own identification of emphysema on the x-ray; his description of additional objective testing that

showed that coal dust caused a functional impairment; and his repeated conclusion that despite

Bailey’s smoking history, his history of coal dust exposure was sufficient to significantly cause or

aggravate his impairment. The Board correctly found that substantial evidence supported the

ALJ’s finding of legal pneumoconiosis based on Dr. Mansour’s opinion.

C. Disability Causation

Finally, Petitioners alone argue that the record does not support a finding that Bailey’s total

disability is caused by pneumoconiosis. In the Black Lung Benefits context, disability causation

4
Given that Petitioners did not raise this argument before the ALJ with respect to legal pneumoconiosis, they cannot
fairly fault the ALJ for not specifically repeating the conclusion that the x-ray was discredited in the legal
pneumoconiosis analysis.

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refers to the statutory requirement that a miner be “totally disabled due to pneumoconiosis.”

See 30 U.S.C. § 901(a). A miner’s total disability is “due to” pneumoconiosis when it is a

“substantially contributing cause of the miner’s totally disabling respiratory or pulmonary

impairment.” 20 C.F.R. § 718.204(c)(1). Petitioners appear to challenge the controlling

“substantially contributing cause” causation standard, arguing at length that it is too lenient.

First, this issue was—again—not exhausted below. Petitioners’ brief before the Board did

not assert that the ALJ applied the wrong causation standard; instead, it cited the exact standard

that the ALJ applied. Petitioners therefore cannot raise this argument now. Joseph Forrester

Trucking, 987 F.3d at 592-593. Even if Petitioners had exhausted this issue, moreover, it would

not be implicated by the facts of this case. Petitioners have never disputed that Bailey is totally

disabled by a respiratory impairment, and do not challenge the ALJ’s finding that the impairment

was COPD. We have repeatedly held that where there is no dispute that a respiratory impairment

is totally disabling, the only remaining question is whether the impairment constitutes legal

pneumoconiosis. See, e.g., Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1062 (6th Cir.

2013); Brandywine Explosives & Supply v. Director, OWCP, 790 F.3d at 668-69. No independent

causation inquiry is required on the facts presented in this record, so we need not reach Petitioners’

challenge to the statutes’ causation standards.

We also reject Petitioners’ argument on the merits. Petitioners rely on out-of-circuit,

obsolete caselaw from the Seventh Circuit to argue for a higher causation threshold, citing a 1991

Seventh Circuit concurrence suggesting that the Act’s language was initially interpreted to require

that pneumoconiosis be a 51% cause of total disability. Compton v. Inland Steel Coal Co.,

933 F.2d 477, 483 (7th Cir. 1991) (Coffey, J., concurring). The Compton panel majority rejected

the concurrence’s interpretation as “far-flung,” and held that pneumoconiosis was required to be a

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necessary, but not sufficient cause of total disability. 933 F.2d at 480-82. In any event, our Circuit

has roundly rejected the necessary-but-not-sufficient standard. Cross Mountain Coal, Inc. v.

Ward, 93 F.3d 211, 217 (6th Cir. 1996); Brandywine Explosives & Supply, 790 F.3d at 668.

Petitioners also appear to misconstrue the disability causation inquiry entirely, arguing that

coal mine employment—not legal pneumoconiosis—contributed too little to Bailey’s total

disability. This is not the standard. Disability causation concerns whether a miner’s disability is

“due to pneumoconiosis,” not whether it is due to coal mining. 30 U.S.C. § 901(a). As the sole

support for their misconstruction of the standard, Petitioners point to another Seventh Circuit case

that so misstated the regulation and statute that another Seventh Circuit panel clarified its holding

within the year. Compare Shelton v. Dir., OWCP, 899 F.2d 690, 693 (7th Cir. 1990) (suggesting

that “mining” must be a necessary but not sufficient cause of a miner’s disability) with Hawkins v.

Dir., OWCP, 907 F.2d 697, 704 & n.10 (7th Cir. 1990) (clarifying that a claimant who proves that

legal pneumoconiosis was a cause of their disability would be eligible for benefits

“notwithstanding the implication in Shelton that a direct link is required between the claimant’s

mining and his or her total disability”).

Finally, the Petitioners concede that our clarification of the causation standard in Arch on

the Green controls and requires a determination of whether pneumoconiosis was a “substantially

contributing cause” of a respiratory disability. 761 F.3d at 599. As the Director and Mrs. Bailey

argue, once the ALJ found that Bailey’s COPD—which was totally disabling—was legal

pneumoconiosis, there was no error in finding that those facts also established that Bailey was

totally disabled due to pneumoconiosis. Consequently, under the Arch on the Green standard, the

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ALJ’s finding that Bailey’s pneumoconiosis was a substantially contributing cause of his disability

was supported by substantial evidence.5

D. The Credibility of Dr. Mansour’s Opinion

Petitioners’ arguments related to Dr. Mansour’s credibility warrant only brief discussion.

To start, Petitioners argue that Dr. Mansour’s opinion should have been excluded under Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). But Federal Rule of Evidence 702 does

not apply under the BLBA. See 33 U.S.C. § 923(a); 30 U.S.C. § 932(a); 20 C.F.R. § 725.455(b).

Petitioners next propose that the Administrative Procedure Act’s prohibition on “irrelevant,

immaterial, or unduly repetitious evidence” prohibit consideration of Dr. Mansour’s opinion,

5 U.S.C. § 556(d), or that his opinion was not based on “objective medical evidence” as required

by 20 C.F.R. § 718.202(a)(4). But these arguments fail because, as the ALJ recognized,

Dr. Mansour’s opinion was based on objective evidence, including PFTs, an x-ray, smoking

history, coal dust exposure history, and physical exam.

Petitioners also argue that Dr. Mansour’s opinion that coal dust was a significant cause of

Bailey’s disability was not a “reasoned medical opinion” as required by the statute, pointing to Dr.

Mansour’s acknowledgment in his deposition testimony that the 5% cut-off was “arbitrary.” But

again, in context, Dr. Mansour’s use of the word “arbitrary” reflected only his acknowledgment

that his assessment was based on his medical opinion, and that he was not aware of any medical

literature establishing specific percentage thresholds. Regardless, a claimant is not required to

5
To the extent that we generously construe Petitioners’ arguments that coal dust was not a substantially contributing
cause of Mr. Bailey’s disability as a challenge to the ALJ’s legal pneumoconiosis disease causation finding, those
arguments are unavailing. Petitioners propose that Dr. Mansour found that coal dust was a substantially contributing
cause of Bailey’s disability based solely on the x-ray and an “arbitrary cutting.” Again, this argument ignores that Dr.
Mansour’s opinion relied on a variety of data, including PFTs, smoking history, coal dust exposure history, and the
physical exam, to determine that coal dust substantially caused his COPD. In context, Dr. Mansour’s use of the word
“arbitrary” reflects only that his assessment was based on his medical opinion, and his acknowledgment he was not
aware of any medical literature establishing specific percentage thresholds.

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establish what portion of their disease is due to non-mine and mine exposure. Arch on the Green,

761 F.3d at 598.

Finally, Petitioners assert that the ALJ improperly treated Dr. Mansour’s opinion as more

reliable because he was a representative of the Department of Labor. But the ALJ only referred to

Dr. Mansour in passing as “impartial,” without further elaboration. We agree with the Board that

Petitioners “make too much out of the ALJ’s simple use of the word ‘impartial’ in describing Dr.

Mansour.” And Petitioners’ argument that Dr. Mansour was untrustworthy because he had

previously treated Bailey is meritless. Our precedent holds that treating physicians’ opinions

warrant “the kind of critical analysis an ALJ should apply when considering any expert opinion”

and “get the deference they deserve based on their power to persuade.” Eastover Mining, 338 F.3d

at 513. The ALJ did not abuse her discretion in finding Dr. Mansour credible.

IV. CONCLUSION

Because substantial evidence supported the ALJ’s findings, we DENY this petition for

review.

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No. 22-3135, Little T Coal Co., et al. v. OWCP, et al.

ALICE M. BATCHELDER, Circuit Judge, dissenting. I agree with the OWCP that Dr.

Mansour’s medical opinion, which was based on X-ray evidence of Bailey’s lungs, is not

substantial evidence of pneumoconiosis because Dr. Mansour was mistaken about the results of

that X-ray evidence. I would remand for the ALJ to obtain and consider a medical opinion based

on the true X-ray evidence. Because the majority sees it differently, I respectfully dissent.

I.

Bailey first went to work in a coal mine in 1977, when he was 35 years old, and he

continued off and on for several years, accumulating about two years and ten months of time in

the mine. The ALJ made a finding of 2.96 years. In 1984, Bailey took up cigarettes and smoked

daily until his death in 2020. The estimate was 25 to 48 pack-years, but a doctor in 2017 estimated

a 56-pack-year history. The ALJ made a finding of 33 pack years. By 2017, Bailey had several

severe medical conditions, the most relevant here being emphysema and COPD.

When Bailey filed for black lung benefits from Little T and its insurer, the OWCP approved

the claim. Little T requested an ALJ determination and, after submission of additional evidence

and a hearing, the ALJ awarded benefits. At that hearing, the ALJ considered two X-rays of

Bailey’s lungs (from 2016 and 2017) and, relying on assessment by qualified experts, held that the

X-rays did not establish coal-dust pneumoconiosis. The ALJ considered three medical opinions,

two of which blamed cigarette smoking alone, not coal dust, for Bailey’s emphysema and COPD.

The ALJ rejected both as flawed and instead relied solely on Dr. Mansour’s opinion that Bailey’s

coal mine exposure had caused pneumoconiosis, which led to his respiratory disability.

Initially, Dr. Mansour attributed the pneumoconiosis 90% to cigarette smoking and 10%

to coal dust inhalation. But when told that Bailey had worked in the mine for only two years and

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No. 22-3135, Little T Coal Co., et al. v. OWCP, et al.

ten months, rather than the seven or eight years that Bailey had claimed, Dr. Mansour revised his

estimate to 95% smoking and 5% coal dust inhalation. He testified at deposition:

Question: Why did you pick five percent causation by coal mine dust?
Dr. Mansour: It’s a matter of opinion. I thought actually that his coal mining, even
though it [was of] short [duration], it was enough to cause deposits of
coal dust in his lungs based on the x-ray report.
...
Question: So [five percent is] based on an arbitrary number and, you know, your
experience?
Dr. Mansour: Absolutely, yes. Just let me, I’ll just add something to that. Because
of the x-ray showing the pneumoconiosis, I thought it was a very
significant exposure.
...
Question: So if the judge finds that the chest x-rays are actually negative, would
that influence your opinion on the significance of the coal dust?
Dr. Mansour: It does, yes, sir, it does. I would say it does.
Question: So your opinion is bolstered by the positive x-ray reading?
Dr. Mansour: Yes.

I would take Dr. Mansour at his word and accept that he based his decision on the X-ray,

i.e., he based his finding of pneumoconiosis on his mistaken belief that the X-ray evidence showed

coal dust deposits in Bailey’s lungs despite Bailey’s minimal coal mine exposure.

It is obvious but nonetheless noteworthy that Dr. Mansour did not justify his revised

opinion on a physical exam, pulmonary function tests, arterial blood gas tests, or a totality of the

medical evidence—he based his opinion on the X-ray, and conceded that a negative X-ray would

affect that opinion. Again, he did not answer that the totality of other evidence would overcome

even a negative X-ray. In short, by his own concession, the negative X-rays render Dr. Mansour’s

prior opinion unreliable. But the ALJ relied on it anyway to find pneumoconiosis.

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No. 22-3135, Little T Coal Co., et al. v. OWCP, et al.

On appeal to the Benefits Review Board, the dissenting Board member explained that the

ALJ’s reliance on Dr. Mansour’s opinion—despite his admission that it was based on the (mis-)

diagnosis from the X-ray—was a failure to consider all relevant evidence, which was an error that

warranted a remand for reconsideration or further explanation. The dissenting Board member

further explained that “this was an error committed in the ALJ’s decision,” not a claim or argument

subject to forfeiture for failure to anticipate such an error and raise it to the ALJ beforehand.

Similarly, in its brief to this court, the OWCP argues likewise: “In crediting Dr. Mansour’s

opinion, the ALJ overlooked obvious potential inconsistencies in the doctor’s opinion, most

notably his apparent reliance on [a] diagnosis of clinical pneumoconiosis by x-ray—which the ALJ

[] determined was incorrect.” At a minimum, the OWCP’s position warrants consideration.

II.

An ALJ’s finding of fact is reviewed deferentially “to determine whether it is supported by

substantial evidence and is consistent with applicable law.” Peabody Coal Co. v. Odom, 342 F.3d

486, 489 (6th Cir. 2003). But when the “ALJ has improperly characterized the evidence or failed

to account [for] relevant record material, deference is inappropriate and remand is required.”

Eastover Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003).

Because Dr. Mansour based his finding of pneumoconiosis primarily, if not exclusively,

on the false-positive X-ray, that opinion is unsupported and unreliable (and possibly just wrong).

And because the ALJ relied primarily, if not exclusively, on Dr. Mansour’s faulty opinion, her

determination is not based on substantial evidence and is not entitled to deference.

Backing up a step, Bailey’s COPD is legal pneumoconiosis if it “was caused, at least in

part, by coal mine employment.” Arch on the Green, Inc. v. Groves, 761 F.3d 594, 598-99 (6th

Cir. 2014) (emphasis added). The “in part” standard, in turn, requires proof that coal mine dust

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No. 22-3135, Little T Coal Co., et al. v. OWCP, et al.

exposure was “of some discernible consequence.” Island Creek Coal Co. v. Young, 947 F.3d 399,

407 (6th Cir. 2020). It must be “more than a de minimis or infinitesimal contribution to the miner’s

total disability.” Arch on the Green, 761 F.3d at 600 (quotation marks omitted).

Because Dr. Mansour admittedly relied on the false-positive X-ray and testified that a

negative X-ray would affect his opinion on the significance of the coal dust exposure, I think it

likely that, given the opportunity, Dr. Mansour would revise his opinion of the causation

attributable to coal dust. To be sure, even without the support of X-ray evidence, Dr. Mansour

might conclude that the coal dust exposure was “of some discernible consequence” to Bailey’s

COPD. Or he might deem it a de minimis or infinitesimal contribution that would not meet the

standard for legal pneumoconiosis. As I see it, this is an issue to be addressed on remand.

III.

Because the majority sees this differently, I respectfully dissent.

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