Kanawha Coal Company v. DOWCP, No. 12-2566 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2566 KANAWHA COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; MARTHA M. KUHN, Respondents. On Petition for Review of an Order of the Benefits Review Board. (12-0081-BLA) Submitted: August 30, 2013 Decided: September 11, 2013 Before KEENAN, WYNN, and FLOYD, Circuit Judges. Petition denied by unpublished per curiam opinion. Mark J. Grigoraci, ROBINSON & MCELWEE PLLC, Charleston, West Virginia, for Petitioner. Timothy C. MacDonnell, WASHINGTON & LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia; M. Patricia Smith, Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor, Sean G. Bajkowski, Counsel for Appellate Litigation, Jeffrey S. Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kanawha Coal Company ( Employer ) petitions for review of the Benefits Review Board s ( Board ) decision and order affirming the administrative law judge s ( ALJ ) grant of living miner benefits to former employee Richard P. Kuhn 1 under the Black Lung Benefits Act ( Act ), 30 U.S.C.A. §§ 901-945 (West 2007 & Supp. 2013). We deny the petition for review. We review the BRB s and the ALJ s legal conclusions de novo and independent[ly] review . . . the record to determine whether the ALJ s findings of fact were supported by substantial evidence. Island Creek Coal Co. v. Compton, 211 F.3d 203, 207- 08 (4th Cir. 2000) (internal quotation marks omitted). Subject to the substantial evidence requirement, we defer to the ALJ s credibility determinations and evaluation of the proper weight to accord conflicting medical opinions. Harman Mining Co. v. Dir., Office of Workers Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012) (internal quotation marks omitted). The ALJ is not bound to accept any medical expert opinion but must evaluate the evidence, weigh it, and draw [her] own conclusions, giving consideration to the qualifications of the experts, the opinions reasoning, their reliance on objectively determinable 1 Kuhn died on February 7, 2013. We granted counsel s motion to substitute Kuhn s widow, Martha M. Kuhn, as a party to this living miner claim. 2 symptoms and established science, their detail of analysis, and their freedom from irrelevant distractions and prejudices. Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949, 951 (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). Employer first contends that the ALJ erroneously found that Kuhn was entitled to the rebuttable presumption, resurrected by the Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010), that he is totally disabled due to pneumoconiosis. 2 Specifically, Employer argues that the ALJ failed to establish that the conditions of Kuhn s above ground employment were substantially similar to the work conditions in an underground mine. In response, the Director of the Office of Workers Compensation Programs ( Director ) states that the Department of 2 Section 1556 of the PPACA, 124 Stat. at 260, amends the Act by restoring the fifteen-year presumption contained in Section 411(c)(4) of the Act, 30 U.S.C.A. § 921(c)(4). The presumption provides that if a miner has been employed in an underground coal mine for fifteen years or more, and if other evidence demonstrates that he has a totally disabling respiratory or pulmonary impairment, he is entitled to a rebuttable presumption that he is totally disabled due to pneumoconiosis. 30 U.S.C.A. § 921(c)(4). The renewed fifteenyear presumption applies to claims filed under parts B and C of the Act after January 1, 2005, that are pending after the effective date of the PPACA, March 23, 2010. 124 Stat. at 260, § 1556(c). 3 Labor ( DOL ) interprets the regulations to include Kuhn s above ground duties therefore, as Kuhn work was in not an underground required to coal prove mine and, his work that conditions were substantially similar to the work conditions in an underground mine. If a miner was employed in underground coal mines for fifteen or more years, has had a chest x-ray interpreted as negative for complicated pneumoconiosis, and demonstrates that he has a totally disabling respiratory or pulmonary impairment, he is entitled to a rebuttable presumption that he is totally disabled due to pneumoconiosis ( fifteen-year presumption ). U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a) (2013). The term underground coal mine is not defined in the Act. U.S.C. § 802(h)(2) (2006) (defining coal 30 See 30 mine ). The regulations governing the Act define an underground coal mine as a coal mine in which the earth and other materials which lie above and around the natural deposit of coal (i.e., overburden) are not removed facilities, tunnels, in mining; machinery, excavations appurtenant thereto. Because including tools, and other all equipment, property, land, structures, shafts, real or slopes, personal, 20 C.F.R. § 725.101(a)(30) (2013). Congress has expressly delegated to the Secretary of Labor the authority to promulgate regulations to carry out the provisions of the Act, see 30 U.S.C. § 936(a) 4 (2006), we must defer to the DOL s interpretation of ambiguous provisions of the statutes it is authorized to implement. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991); see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) ( We have long recognized that considerable weight should be accorded to an executive department s construction of a statutory scheme it is entrusted to administer . . . . (footnote omitted)). When, as here, Congress has not directly addressed the precise question at issue, Chevron, 467 U.S. at 843, we will give the DOL s regulations controlling weight unless they are arbitrary, contrary to the statute. We conclude capricious, or manifestly Id. at 844. that the DOL s definition of the term underground coal mine in the regulations to the Act is not arbitrary, capricious, or manifestly contrary to the Act. Employer does not dispute the ALJ s determination of the length of Kuhn s coal mine employment or her conclusion that Kuhn s above ground work with underground mine site. Employer was carried out at an Thus, we conclude that, because Kuhn s work with Employer was at an underground mine, the ALJ properly found that Kuhn s above ground work was qualifying employment for purposes of the fifteen-year 5 presumption. Accordingly, because all of the requirements of § 718.305(a) were met, 3 the ALJ correctly determined that Kuhn is entitled to the rebuttable presumption that he was totally disabled due to pneumoconiosis. See 30 U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a). Once the miner has established his entitlement to the fifteen-year presumption, an employer may rebut such presumption only by establishing that (A) [the] miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise with, employment in a coal mine. out of, or in connection 30 U.S.C.A. § 921(c)(4); see 20 C.F.R. § 718.305(a) (2013); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479-80 (6th Cir. 2011). Employer contends that the ALJ erred in her decision to discredit its expert physicians opinions, whose testimony and medical opinions were offered presumption afforded to Kuhn. rebut the fifteen-year It is the ALJ s responsibility to make credibility determinations. 310. to Harman Mining, 678 F.3d at In this case, the ALJ discredited Employers physicians as to whether Kuhn suffered from legal pneumoconiosis because Dr. George Zaldivar did not adequately explain why Kuhn s coal dust exposure did not contribute to his totally disabling respiratory 3 All of the x-ray evidence was negative for complicated pneumoconiosis and Employer concedes that Kuhn suffered from a totally disabling pulmonary impairment. 6 impairment and Dr. John Bellotte did not adequately account for Kuhn s level of dust exposure while working above ground. We conclude that the ALJ s decision to discredit Employer s experts on the issue of legal pneumoconiosis was supported by substantial evidence. Moreover, because the ALJ did not find Employer s physicians credible on the issue of legal pneumoconiosis, she could not credit disability their absent opinions specific concluding that the disability causation and doctor[s ] does with the ALJ s finding. not on the causation persuasive judgment rest upon on of total reasons the [their] for question of disagreement Toler v. E. Assoc. Coal Co., 43 F.3d 109, 116 (4th Cir. 1995). Thus, we conclude that the ALJ did not err in finding that Employer failed to rebut the fifteenyear presumption afforded to Kuhn. See 30 U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a). Accordingly, we deny Employer s petition for review. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. PETITION DENIED 7

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