Westmoreland Coal Company, Incorporated v. Edward Stidham, No. 12-1866 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1866 WESTMORELAND COAL COMPANY, INCORPORATED, Petitioner, v. EDWARD L. STIDHAM; DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. On Petition for Review of an Order of the Benefits Review Board. (11-0588-BLA) Argued: December 12, 2013 Decided: March 26, 2014 Before NIEMEYER, AGEE, and WYNN, Circuit Judges. Petition for review denied by unpublished opinion. wrote the opinion, in which Judge Niemeyer and concurred. Judge Wynn Judge Agee ARGUED: Thomas Michael Hancock, BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner. Ryan Christopher Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia; Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON BRIEF: Paul E. Frampton, BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner. Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for Respondent Edward L. Stidham. M. Patricia Smith, Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers Compensation Programs. Unpublished opinions are not binding precedent in this circuit. 2 WYNN, Circuit Judge: Petitioner final decision Westmoreland and order of Coal the Company, United Inc. States challenges Department a of Labor Benefits Review Board (the Board ), which awarded black lung benefits to Respondent Westmoreland employee. Edward Stidham, a former Stidham v. Westmoreland Coal Co., No. 11-0588 (BRB May 24, 2012) (unpublished) (the BRB Opinion ). The Board affirmed a decision by the Administrative Law Judge ( ALJ ) concluding that Stidham established total disability due to pneumoconiosis by use of a statutory presumption. The ALJ determined that Westmoreland failed to rebut the presumption and accordingly awarded benefits to Stidham. Stidham v. Westmoreland Coal Co., No. 2009-BLA-05117 (Dep t of Labor May 23, 2011) (the ALJ Decision and Order ). We conclude that the Board did not err in affirming the ALJ s decision, which was supported by substantial evidence and accords with applicable law. Therefore, we deny Westmoreland s petition for review. I. Under the Black Lung Benefits Act (the Act ), 30 U.S.C. § 901 et seq., former coal miners who are totally disabled by pneumoconiosis are entitled to receive monetary benefits. Pneumoconiosis, commonly called black lung disease, is defined as a chronic dust disease of 3 the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. 20 C.F.R. § 718.201(a). Compensable pneumoconiosis can take two forms : clinical and legal. 319, 320 Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d (4th Cir. 2013) (quoting Harman Min. Co. v. Dir., Office of Workers Comp. Programs, 678 F.3d 305, 308 (4th Cir. 2012)). Clinical pneumoconiosis consists of those diseases recognized by the medical community as pneumoconiosis, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment. Legal broader pneumoconiosis, than the pneumoconiosis. 821 (4th Cir. by medical 20 C.F.R. § 718.201(a)(1). contrast, definition is of significantly coal workers Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 1995). Legal pneumoconiosis includes any chronic lung disease or impairment . . . arising out of coal mine employment. 20 C.F.R. § 718.201(a)(2); see also id. § 718.203(a) ( In order for a claimant to be found eligible for benefits under the Act, it must be determined that the miner s pneumoconiosis arose at least in part out of coal mine employment. ). A chronic lung disease or impairment arises out of coal mine employment if it is significantly related to, or 4 substantially employment. aggravated by, dust exposure in coal mine Id. § 718.201(b). For claims filed after January 1, 2005, and pending on or after March 23, 2010, a claimant may establish pneumoconiosis by use of a statutory presumption. 1 fifteen-year presumption ). 30 U.S.C. § 921(c)(4) (the To invoke the fifteen-year presumption, a claimant must establish that (1) the miner had fifteen years of qualifying coal-mine employment; (2) the miner or survivor cannot establish entitlement to benefits by use of chest x-ray evidence; and (3) the miner has, or had at the time of his death, impairment[.] a Id. totally disabling respiratory or pulmonary The opposing party may rebut the fifteen- year presumption by establishing that either: (1) the miner has neither legal nor clinical pneumoconiosis; or (2) the miner s respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine. Id. In black lung benefits cases, this Court s review of the Board s order is limited. marks omitted). We Cochran, 718 F.3d at 322 (quotation examine whether substantial evidence supports the factual findings of the ALJ and whether the legal 1 The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010), reinstated this presumption, which had been abolished by the Black Lung Benefits Revenue Act of 1981, Pub. L. No. 97-119, § 202, 95 Stat. 1635, 1643 (1981). 5 conclusions of the [Board] and ALJ are rational and consistent with applicable Workers Comp. Substantial mind conclusion. 373 means might Coal F.3d v. 570, such accept Co. 575 Dir., (4th relevant as adequate Office Cir. of 2004). evidence a support to as a Richardson v. Perales, 402 U.S. 389, 401 (1971) Consol. (1938)). Lewis Programs, evidence reasonable (quoting law. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 [I]t is the duty of the administrative law judge reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). substantial sustain evidence the ALJ s supports decision, an ALJ s even if findings, we disagree If [w]e must with it. Harman, 678 F.3d at 310 (quoting Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996)). Further, we defer to the ALJ s evaluation of the proper weight to accord conflicting medical opinions. Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342 (4th Cir. 1996). The ALJ is not required to accept the opinion of any medical expert but must evaluate the evidence, weigh it, and draw his own conclusions. Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949, (4th Cir. 1997), superseded on other grounds as stated in Elm Grove Coal Co. v. Dir., Office of Workers Comp. Programs, 480 F.3d 278, 287 (4th Cir. 2007). 6 II. Stidham is a former coal miner in his late sixties who worked for Westmoreland for over twenty-nine years in Virginia. Most of Stidham s employment took place underground, where he performed a variety of tasks that ranged from constructing the concrete brattices workers to Stidham stopped that operating separate various working for the types of mining gases underground Westmoreland in 1995, from the equipment. when the company ceased its operations where Stidham worked. With the exception of a thirteen-year hiatus beginning in 1977, Stidham has smoked since his early twenties, and he was smoking approximately one-half of one pack per day at the time of his hearing. for a long Stidham s breathing problems, which he has had time, became aggravated in 2004. J.A. 202. Stidham has been on oxygen since 2005 and currently uses it nearly all of the time. He also uses a nebulizer. Stidham filed a claim under the Act on January 7, 2008, and the District Director of the U.S. Department of Labor s Office of Workers Compensation Programs awarded him interim benefits. Westmoreland requested an evidentiary hearing before an ALJ pursuant to 20 C.F.R. § 725.451, which the ALJ held on June 24, 2009. On May 16, 2011, the ALJ issued a Decision and Order Granting Benefits. The ALJ found that Stidham established that he is totally disabled due to pneumoconiosis based upon the 157 year presumption . . . [and] that the presumption has not been rebutted. ALJ Decision and Order at 24. The ALJ admitted a variety of evidence into the record, including Stidham s testimony, x-rays, pulmonary function tests, arterial blood gas studies, treatment records, and CT scans. The ALJ also received conflicting medical opinions interpreting the evidence. 2 aforementioned Hippensteel ruled out For Westmoreland, [Claimant s] coal dust Dr. exposure Kirk as playing any role in his respiratory or pulmonary impairment[,] and Dr. David Rosenberg ruled out a contribution by coal mine dust exposure (quoting Dr. reports). opinion to Claimant s Hippensteel s lung and disease[.] Dr. Id. Rosenberg s at 8 9 supplemental Dr. Basham, Stidham s treating physician, provided an noting that Stidham had a history of coal workers pneumoconiosis and COPD [chronic obstructive pulmonary disease], based on CT scans of the lungs. Id. at 8. Additionally, Dr. J. Randolph Forehand, the examining physician for the Department of Labor, concluded that Stidham had both coal pneumoconiosis and cigarette smokers lung disease. workers Id. The ALJ considered the credentials of the four physicians, explaining that Drs. Rosenberg 2 and Hippensteel possessed the Though they disagreed over the disease mechanisms behind the disability[,] all four physicians deemed Stidham totally disabled. ALJ Decision and Order at 14. 8 highest disease. qualification for Id. at 13. identifying the causes of lung The ALJ also noted that although Dr. Forehand was not a board-certified pulmonologist, he possessed other credentials, including twenty years of experience performing pulmonary examinations on behalf of the Department of Labor. Because nothing indicated that Dr. Forehand s examination of Stidham was insufficient due to his lack of being a board-certified pulmonologist, the ALJ determined that Dr. Forehand s conclusions are not entitled to less weight based solely on the lack of that additional credential. Regarding Dr. Basham, the ALJ Id. at 14. explained that his conclusions would be weighed less heavily because he does not possess special credentials in pulmonary medicine[.] 20. The ALJ did give Dr. Basham s opinion Id. at consideration because of his extended history of treatment with Claimant[,] but she limited its weight to the extent that the opinion was well reasoned and documented. Id. at 20 21; see also 20 C.F.R. § 718.104(d) (requiring the ALJ to give consideration to the relationship between the miner and any treating physician whose report is admitted into the record and setting forth the factors in weighing the treating physician s opinion). The ALJ evaluated each of the physicians conclusions in light of the weight accorded to their respective opinions and in light of the evidence on which each of their opinions was based. 9 The ALJ determined that although at first blush the medical opinion evidence is in equipoise, I ultimately find that a preponderance of the medical opinion evidence tends to disprove the existence of clinical pneumoconiosis. Id. at 21. Specifically, the ALJ found that Drs. Rosenberg and Hippensteel rebutted the presumption of clinical pneumoconiosis because they based their opinions on evidence that Dr. Forehand did not consider, namely, certain CT scans that did not contain markers for clinical pneumoconiosis. analysis of Dr. The ALJ also conducted a critical Basham s conclusion regarding clinical pneumoconiosis and discredited his conclusion because it was made by history[] rather than by an examination of the medical evidence. Id. However, the ALJ concluded that Westmoreland did not rebut the presumption of pneumoconiosis because it failed to establish that Stidham did not have legal pneumoconiosis or that Stidham s disability was not caused by pneumoconiosis. determination notwithstanding Dr. The ALJ made this Hippensteel s and Dr. Rosenberg s claims to have ruled out any contribution by coal mine dust[.] The ALJ looked behind their conclusions at the reasoning of their reports and deposition testimony to find that they were not actually able to rule it out. Id. at 22. Specifically, although both physicians asserted that Stidham s symptoms were related to or classic for cigarette smoking 10 disease, neither explained why, assuming that cigarette smoking played the main role in causing the Claimant s acknowledged pulmonary and respiratory disability, coal mine dust exposure could not have played some lesser, but nevertheless significant, role, consistent with the discussion of the epidemiology in the Preamble to the regulations. Id. at 22 23. Further, the ALJ credited Dr. Forehand, who explained that the consequences of cigarette smoking and coal mine dust exposure were additive and combine to totally and permanently disable claimant. Id. at 22. (quotation marks omitted). The ALJ found this conclusion to be reasoned and documented, as well as consistent with the Department of Labor s analysis as set forth in the Preamble to the amended regulations. Id. The ALJ further found that neither Dr. Hippensteel nor Dr. Rosenberg refuted Dr. Forehand because neither explained how they determined that coal mine dust exposure did not contribute to or aggravate the disability. Id. at 23. Thus, the ALJ concluded that Westmoreland failed to rebut the fifteen-year presumption because it failed to establish that Stidham did concluded not that presumption have legal Westmoreland because it pneumoconiosis. The ALJ failed the fifteen-year failed to to rebut establish Stidham s disability was caused by pneumoconiosis. 11 that further none of Westmoreland appealed to the Board, arguing, among other things, that the ALJ erred by finding that the employer failed to rebut the presumption of pneumoconiosis. holding that credibility substantial evidence determinations and The Board affirmed, supported ultimate the ALJ s conclusions. Westmoreland now petitions this Court for review. III. At the outset, we note that it is undisputed that Stidham is totally disabled from chronic obstructive pulmonary disease ( COPD ), that Stidham worked in Westmoreland s mines for over twenty-nine years, and that because he worked underground for more than fifteen years, Stidham is entitled to the fifteen-year presumption that his total disability is due to pneumoconiosis. 3 The only contested issue is whether Westmoreland has rebutted the presumption. Westmoreland supported by interpreting argues substantial the that the evidence Preamble to and ALJ s that discredit 3 all decision the ALJ medical is not erred by evidence In its opening brief, Westmoreland contested the applicability of the fifteen-year presumption. However, Westmoreland expressly abandoned this challenge at oral argument. Had Westmoreland advanced it, it would have failed in any event, because substantial, uncontested evidence supports the application of the presumption in this case. 12 that coal mine dust did not cause or contribute to claimant s pulmonary condition. Petitioner s Br. at 42. Westmoreland further argues that the ALJ s invocation of the Preamble created an irrefutable presumption, an impermissible burden shifting[,] and [a] violation of due process . . . . 49. Petitioner s Br. at We address each argument in turn. A. Westmoreland s first argument on appeal is that the ALJ s decision is not supported by substantial evidence, in part because the ALJ improperly relied on the Preamble to discredit all medical evidence supporting the assertion that Stidham did not have pneumoconiosis. Petitioner s Br. at 42. This argument mischaracterizes the ALJ s use of the Preamble and misconstrues the ALJ s decision. In an opinion spanning twenty-five single-spaced pages, the ALJ thoroughly medical analyzed evidence before and weighed deciding the that rebut the fifteen-year presumption. large quantity Westmoreland failed of to The ALJ determined that the standard X-ray evidence was in equipoise, that the record failed to support acceptable hospital that or the digital relevant, records failed and to X-ray that evidence Stidham s address the was medically treatment etiology of and his disability. The ALJ explained that the CT scan evidence tended to finding rebut a of clinical 13 pneumoconiosis but that it neither supported nor undermined the finding of legal pneumoconiosis because the interpretation of the scans failed to address the etiology of the lung disease that was obviously present. Turning to the medical opinion evidence, the ALJ noted that there is a split . . . on the issue of pneumoconiosis, with two physicians finding existence. pneumoconiosis and two ALJ Decision and Order at 21. disputing its The ALJ concluded that the competing medical opinion evidence failed to rebut a finding of legal pneumoconiosis although it does tend to rebut a finding of clinical pneumoconiosis. The ALJ explained in detail Id. at 18. how she looked behind the conclusions of all four physicians to consider the evidence on which their conclusions were based. She determined that Dr. Basham s diagnosis was made by history and was essentially conclusory on the pneumoconiosis issue. Id. at 21. The ALJ further found that although Dr. Forehand relied on more X-ray evidence than did Drs. Rosenberg and Hippensteel, he did not review the same negative CT scans that they used to reach their conclusions. She thus gave the opinions of Drs. Rosenberg and Hippensteel more weight. Id. The ALJ found their opinions, together with the CT scan evidence, sufficient to establish that Stidham did not suffer from clinical pneumoconiosis. 14 However, opinions the or ALJ other determined evidence that none rebutted a of the finding medical of legal pneumoconiosis or a finding that Stidham s disability was caused by pneumoconiosis. In the same way that she looked at the reasoning behind the conclusions of Drs. Basham and Forehand when she determined diagnosis of that clinical they did not pneumoconiosis, adequately the ALJ support examined a the reasoning employed by Drs. Rosenberg and Hippensteel and found that although they claimed to rule out any contribution of coalmine dust, they were not actually able to rule it out. 22. Id. at Specifically, the ALJ noted that Dr. Hippensteel failed to explain why coal-mine dust could not have contributed to Stidham s impairment and that Dr. Rosenberg failed to explain why coal-mine disability. cogent dust could Id. at 22 23. basis for not have aggravated Stidham s They therefore did not articulate a excluding coal mine dust exposure as a causative agent, and they did not refute the existence of legal pneumoconiosis. Id. at 23. The ALJ further found that the Employer has failed to rule out pneumoconiosis as a cause of Claimant s disability for the same reason that Employer has failed to prove by a preponderance of the evidence that Claimant does not suffer from legal pneumoconiosis. The ALJ s Hippensteel determination failed to that support 15 their Dr. Id. Rosenberg broad and conclusions Dr. with substantive analysis would have been sufficient to find that Westmoreland did not rebut the presumption. not the only basis for the ALJ s However, this was decision. Dr. Forehand testified that Stidham had pneumoconiosis and that it was caused by a combination of cigarette smoking. his coal mine dust exposure and his And the ALJ had previously explained that Dr. Forehand s opinion was entitled to the same weight as those of Drs. Hippensteel and Rosenberg. The ALJ further noted that Dr. Forehand s testimony was consistent Preamble. with the medical According to the research studies Preamble, cited scientific in the literature support[s] the theory that dust-induced emphysema and smokeinduced emphysema occur through similar mechanisms. . . . Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed. Reg. 79920, 79943 (Dec. 20, 2000). The Preamble also notes that [e]ven in the absence of smoking, coal mine dust significant exposure airways is clearly obstruction associated and chronic risk is additive with cigarette smoking. with clinically bronchitis. The Id. at 79940. We have previously made plain that an ALJ may consider the . . . Preamble in assessing medical expert opinions. 718 F.3d at 323. Cochran, See also Harman, 678 F.3d at 314-15 ( Although the ALJ did not need to look to the preamble in assessing the credibility of [a doctor s] views, we conclude that the ALJ was 16 entitled to do so . . . . ). And that is precisely what the ALJ did in this case. Put simply, the ALJ did not use the Preamble to discredit all medical evidence that coal mine dust did contribute to claimant s pulmonary condition. at 42. large not cause or Petitioner s Br. Rather, the ALJ admitted and thoughtfully considered a quantity persuasive of in medical her evidence, determination some that of which Stidham she did not found have clinical pneumoconiosis and some of which she found persuasive in her determination that Westmoreland failed to rebut the other aspects of the fifteen-year presumption. To the extent that the ALJ used the Preamble, it was as a tool to assess the relative credibility of the competing medical opinion whose evidence. Specifically, conclusion consistent credited Dr. his analysis and Rosenberg and was supported by the with Hippensteel, she Preamble, over whose conclusions were own Drs. not only Forehand, inadequately supported by their own analyses, but were also inconsistent with the Preamble. reference It the determination. is well Preamble within when the making ALJ s discretion this to credibility See Cochran, 718 F.3d at 323; Harman, 678 F.3d at 314-15. In sum, here, as in battle of the experts. Cochran, the parties presented a It is the role of the ALJ not the 17 appellate court to resolve that battle. 324. Cochran, 718 F.3d at Here, as in Cochran, the ALJ s detailed order reveals a careful consideration of the experts qualifications, their opinions, and the underlying medical science. The order also explains evidence] why weight. the ALJ substantial to The Id. chose ALJ s determinations evidence and give [certain suggest no are more supported reversible by error. Accordingly, the Board properly affirmed. B. Westmoreland s second argument on appeal is that [b]y holding that the Preamble does not allow an employer to rebut the presumption with evidence that cigarette smoking . . . caused claimant s pulmonary impairment, [the ALJ] has limited the Employer s ability to rebut the presumption to such a substantial degree that the presumption is not rebuttable at all. Petitioner s Br. at 22. Again, we disagree and find no error with the ALJ s use of the Preamble. We first note that Westmoreland has again misconstrued the ALJ s analysis. Contrary to Westmoreland s framing of the issue, the ALJ never held that the Preamble does not allow an employer to rebut the fifteen-year presumption. discussed in detail above, the weighed a great deal of evidence. Westmoreland successfully ALJ and carefully Moreover, the ALJ found that rebutted 18 admitted In fact, as the presumption as to clinical pneumoconiosis. See, e.g., ALJ Decision and Order at 22 (recounting Dr. Rosenberg s explanation that Stidham s lung disease was commenting classic that for cigarette [h]is smoking discussion on Preamble did disease and point was that persuasive ). The ALJ s rebuttable use of the presumption into an not transform irrefutable the presumption. Westmoreland s experts presented evidence that, if found to be credible, might have been sufficient to rebut the presumption. But, as discussed at length above, the ALJ determined that the conclusions of the medical opinions offered in rebuttal were not supported by the analyses on which they were based. Moreover, they directly conflicted with an opinion that the ALJ found to be well-supported and well-reasoned. Finally, the ALJ found those conclusions to be in conflict with the Preamble, which we have held the credibility. ALJ may consider in assessing physicians Cochran, 718 F.3d at 323 25; Harman, 678 F.3d at 314 15. Credibility determinations are made by the ALJ, not by this Court, and [w]e defer to the ALJ s evaluation of the proper weight to accord conflicting medical opinions. F.3d at Preamble 342. to We assist find no in her error with credibility competing expert medical opinions. 19 the ALJ s Stiltner, 86 use of the determination of the IV. For the foregoing reasons, we deny Westmoreland s petition for review. PETITION FOR REVIEW DENIED 20

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