USCA4 Appeal: 23-1644 Doc: 38 Filed: 12/02/2025 Pg: 1 of 28
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1644
CLINCHFIELD COAL COMPANY, c/o HealthSmart Casualty Claims Solutions,
Petitioner,
v.
GERALDINE MULLINS, widow of DONALD MULLINS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefit Review Board. (21-0363-BLA)
Argued: September 9, 2025 Decided: December 2, 2025
Before THACKER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.
Petition denied by published opinion. Judge Thacker wrote the opinion in which Judge Floyd joined. Judge Quattlebaum wrote a dissenting opinion.
ARGUED: Kendra R. Prince, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Petitioner. Brad Anthony Austin, WOLFE, WILLIAMS & AUSTIN, Norton, Virginia, for Respondent. ON BRIEF: Timothy W. Gresham, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Petitioner. USCA4 Appeal: 23-1644 Doc: 38 Filed: 12/02/2025 Pg: 2 of 28
THACKER, Circuit Judge:
In 2014, Geraldine Mullins (“Respondent”) filed for survivor benefits pursuant to
the Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901–944, following the death of her
husband who was a coal miner, Donald Mullins (“the Miner”).
Following a series of decisions by Administrative Law Judges (“ALJs”) and the
Benefits Review Board (“BRB”), Respondent was awarded survivor’s benefits under the
BLBA. Clinchfield Coal Company (“Petitioner”), the identified liable operator, appealed
the decision.
Because the BRB’s decision affirming the ALJ’s award of benefits was supported
by substantial evidence, the petition is denied.
I.
A.
Regulatory Background
Respondent’s husband was a coal miner for nearly 28 years. On February 3, 2014,
following a three day hospitalization, he passed away at Clinch Valley Medical Center.
Following her husband’s death, Respondent filed a claim for survivor’s benefits pursuant
to the BLBA on May 23, 2014.
The BLBA provides an avenue for coal miners who are totally disabled due to
pneumoconiosis 1 from their employment in the mines to receive benefits. 30 U.S.C.
1 Pneumoconiosis, commonly known as “Black Lung,” is a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. 30 U.S.C. § 902(b).
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§ 901(a); 20 C.F.R. § 718.205. Likewise, eligible survivors of coal miners whose deaths
were due to pneumoconiosis may receive benefits. The BLBA imposes liability on coal
mine operators for payment of monthly benefits. 30 U.S.C. § 932.
The BLBA creates a process for adjudicating claims for benefits. 30 U.S.C. § 932.
The process begins when a disabled coal miner, or a surviving dependent of a miner who
has died of pneumoconiosis, files a claim. Id. at § 932(a) (incorporating the procedures
outlined in the Longshore and Harbor Workers’ Compensation Act into the BLBA); 20
C.F.R. §§ 725.303, 401. That claim is filed with the District Director in the Department of
Labor’s Office of Workers’ Compensation Programs. 20 C.F.R. §§ 725.303, 401.
To receive benefits, a claimant must prove: (1) the miner had pneumoconiosis;
(2) the miner’s pneumoconiosis arose out of coal mining employment; and (3) the miner’s
death was due to pneumoconiosis. 20 C.F.R. § 718.205(a); Collins v. Pond Creek Mining
Co., 751 F.3d 180, 184 (4th Cir. 2014). A presumption that a miner’s death was due to
pneumoconiosis may be invoked upon a showing (1) of fifteen years of employment in
underground coal mines or in coal mines substantially similar in conditions to underground
mines and (2) that the miner had, at the time of his death, a “totally disabling respiratory
or pulmonary impairment.” 2 20 C.F.R. § 718.305(b). In the absence of contrary probative
evidence, total disability may be established based on qualifying pulmonary function tests,
2 Prior to 2010, a claimant had to establish that his pneumoconiosis was a “substantially contributing cause to his death.” However, in 2010 Congress reinstated the 15-year rebuttable presumption. 30 U.S.C. § 921(c)(4); Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010).
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arterial blood gas (“ABG”) tests, 3 evidence of cor pulmonale with right-sided congestive
heart failure, or medical opinions. Id. § 718.204(b)(2)(i)–(iv).
The regulations set forth an additional requirement for qualifying ABG tests
administered during a hospitalization which ends in a miner’s death. The relevant
regulation provides:
If one or more blood-gas studies producing results which meet the appropriate table in Appendix C is administered during a hospitalization which ends in the miner’s death, then any such study must be accompanied by a physician’s report establishing that the test results were produced by a chronic respiratory or pulmonary condition. Failure to produce such a report will prevent reliance on the blood-gas study as evidence that the miner was totally disabled at death.
20 C.F.R. § 718.105(d) (emphasis supplied).
Once the claimant has established the miner was totally disabled due to a respiratory
or pulmonary impairment, the presumption arises that the miner’s death was due to
pneumoconiosis, and it may be rebutted only upon a showing by the employer that either:
(1) the miner did not have pneumoconiosis; or (2) no part of the miner’s death was caused
by pneumoconiosis. 20 C.F.R. § 718.305(d)(2).
B.
Decisions of the ALJ and BRB
On April 16, 2015, the District Director overseeing Respondent’s survivor benefits
claim issued a Proposed Decision and Order Awarding Benefits. The Proposed Order
3 For an ABG test to establish total disability, the results must be equal to or less than the applicable table values set forth in Appendix C of 20 C.F.R. Part 718.
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identified Petitioner as the responsible operator. 4 In response, Petitioner filed a request for
hearing before the Office of Administrative Law Judges (“OALJ”). The District Director
then referred the claim to the OALJ.
The appeal was initially assigned to Administrative Law Judge William T. Barto
(“ALJ Barto”) who issued a Decision and Order (“D & O”) Denying Benefits on June 1,
2017. In reaching his decision, ALJ Barto considered whether Respondent qualified for
the rebuttable presumption set forth in 20 C.F.R. § 718.305. ALJ Barto concluded that
although Respondent satisfied the preliminary requirement for the presumption because
the Miner had at least 15 years of qualifying coal mine employment, total disability had
not been sufficiently established. Because there was no evidence of cor pulmonale with
right sided congestive heart failure and no pulmonary function tests, ALJ Barto’s disability
analysis hinged on the two ABG studies conducted during the period of the Miner’s
terminal hospitalization. ALJ Barto held that while the two ABG results qualified under
Appendix C, 5 they were not accompanied by a physician’s report that established the ABG
studies were produced by the Miner’s pneumoconiosis as required by 20 C.F.R.
§ 718.105(d). Therefore, ALJ Barto concluded that the ABG tests could not be used as
evidence to establish total disability.
4 Petitioner is not challenging its identity as the responsible operator on appeal.
The determination that the ABG tests fell within the standards set forth in 5
Appendix C is unchallenged on appeal.
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In reviewing the medical opinions in the record to determine if any would connect
the ABG results to pneumoconiosis, ALJ Barto concluded “[t]he only report provided in
connection with the ABGs is Dr. Patel’s discharge summary.” J.A. 327. 6 However, ALJ
Barto concluded that Dr. Patel’s discharge summary was insufficient to satisfy the
regulation because it “fails to provide an opinion as to whether the Miner’s respiratory
failure or [acute respiratory distress syndrome] was due to a chronic respiratory or
pulmonary condition, rather than a sudden onset of a respiratory infection unrelated to coal
dust exposure or coal workers’ pneumoconiosis.” Id.
As a result, ALJ Barto held the ABG tests were insufficient to establish total
disability due to their failure to meet the standard set forth in 20 C.F.R. § 718.105(d), and
accordingly, Respondent could not establish the rebuttable presumption. And, in the
absence of the presumption, ALJ Barto concluded Respondent did not establish entitlement
to benefits.
Following ALJ Barto’s D & O denying benefits, Respondent filed a request for
modification. In seeking a review of a prior award or denial of benefits, a party may file a
request for modification based upon a change in condition or a mistake in a determination
of fact. 20 C.F.R. § 725.310(a). Because Respondent did not submit additional evidence
in support of the modification, the District Director interpreted her modification to be on
the ground that ALJ Barto’s decision was based on a mistake in a determination of fact.
6 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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The modification request was then assigned to Administrative Law Judge Richard M. Clark
(“ALJ Clark”) for review.
On March 10, 2021, ALJ Clark issued a D & O Granting Modification and
Awarding Benefits. ALJ Clark agreed with ALJ Barto’s conclusion that Dr. Patel’s report
was insufficient but disagreed that no other physician’s report established total disability.
ALJ Clark pointed to the 47 page physician report of Dr. Perper, in which he addressed the
two terminal ABG results, noting they “demonstrated severe hypoxemia and hypercapnia
during the terminal 2014 hospitalization,” and concluding, “the medical records of the
terminal hospitalization at Buchanon General Hospital in February 2024, clearly document
respiratory failure complicating coal workers’ pneumoconiosis with bilateral pneumonia
and acute respiratory distress syndrome.” J.A. 13.
Specifically, ALJ Clark focused on the following statement in Dr. Perper’s report:
The first symptomatic manifestations of chronic lung disease of shortness of breath on mild exertion, cough and occasional exportation of mucus were documented as starting in 1998[.] Furthermore, the respiratory symptoms not only continued progressively but also gradually worsened and were accompanied by worsening radiological findings, increased objective evidence of abnormal respiratory functions, incremental decrease in diffusion of pulmonary gases and hypoxemia, leading to very poor quality of life eventually to death.
J.A. 13. ALJ Clark determined that this statement in Dr. Perper’s report “links the Miner’s
abnormal terminal ABG results obtained during the terminal hospitalization in February
2014 with a chronic lung condition.” Id.
Accordingly, ALJ Clark held that there was a mistake in determination of fact on
ALJ Barto’s part. Specifically, ALJ Clark concluded that Respondent established the 20
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C.F.R. § 718.305 presumption as allowing for a grant of benefits because Dr. Perper’s
opinion sufficiently connected the terminal ABG results to the Miner’s pneumoconiosis.
Petitioner appealed ALJ Clark’s decision to the BRB, arguing that ALJ Clark erred
in granting modification because the Miner was not totally disabled. On April 17, 2023,
the BRB affirmed ALJ Clark’s D & O granting benefits. The BRB held that the terminal
ABG tests established total disability, and, as a result, Respondent was entitled to the
presumption that the Miner’s death was due to pneumoconiosis. The BRB agreed with
ALJ Clark’s decision, reasoning that Dr. Perper’s opinion satisfied 20 C.F.R. § 718.105(d)
because Dr. Perper: (1) discussed the Miner’s chronic respiratory diseases referenced
throughout his treatment records, including coal workers’ pneumoconiosis, chronic
obstructive pulmonary disease, chronic bronchitis, and asthma; (2) explained that the
conditions continued to progress over time, as demonstrated by “worsening symptoms,
worsening radiographic findings, and abnormal blood gases, and that the progression of
the Miner’s respiratory diseases contributed to the Miner’s poor quality of life and then his
death”; and (3) concluded the medical records of the Miner’s final hospitalization
“document respiratory failure complicating coal workers’ pneumoconiosis with bilateral
pneumonia and acute respiratory distress syndrome.” J.A. 87–88.
The BRB further concluded that because Respondent invoked the 20 C.F.R.
§ 718.305(b) presumption, the burden shifted to Petitioner to establish the Miner had
neither legal nor clinical pneumoconiosis, or that “no part of the miner’s death was caused
by pneumoconiosis.” 20 C.F.R. § 718.305(d)(2). But, on appeal to the BRB, Petitioner
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did not challenge ALJ Clark’s finding that Petitioner had failed to rebut the presumption.
Accordingly, the BRB affirmed.
On June 14, 2023, Petitioner filed the present appeal alleging ALJ Clark committed
several errors in the D & O awarding benefits. Petitioner challenges the finding that
Respondent met her burden of proving she was entitled to benefits. Specifically, Petitioner
contends: (1) the terminal ABG results were not accompanied by a physician’s report
sufficient to establish that the results were produced by a chronic respiratory or pulmonary
condition, such that the § 718.305 presumption could not be invoked; (2) the ALJ failed to
make a finding that Dr. Perper’s report was well reasoned and well documented; and
(3) any error by ALJ Barto was an error of law and, accordingly, modification was
improper.
II.
We review an ALJ decision that has been affirmed by the BRB to determine whether
it is rational and in accordance with the law as supported by substantial evidence. E. Assoc.
Coal Corp. v. Dir., Off. of Worker’s Comp Programs, 805 F.3d 502, 510 (4th Cir. 2015);
Hobet Mining, LLC v. Epling, 783 F.3d 498, 504 (4th Cir. 2015) (citing Harman Mining
Co. v. Dir., Off. of Worker’s Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012)). We
review conclusions of law de novo. Westmoreland Coal Co. v. Cox, 602 F.3d 276, 282
(4th Cir. 2010).
In determining whether an ALJ’s conclusion was supported by substantial evidence,
we consider “whether all relevant evidence has been analyzed and whether the ALJ has
sufficiently explained his rationale in crediting” or discrediting certain evidence. Frontier-
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Kemper Constructors Inc. v. Dir., Off. of Worker’s Comp Programs, 876 F.3d 683, 687
(4th Cir. 2017) (quoting Hobet Mining, 783 F.3d at 504) (internal quotation marks
omitted); Island Creek Coal Co. v. Blankenship, 123 F.4th 684, 690 (4th Cir. 2024) (citing
Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998)). In essence, the question
is whether a reasonable mind could find that the evidence is adequate to support the
conclusion. Scott v. Mason Coal Co., 289 F.3d 263, 267 (4th Cir. 2002).
III.
Waiver
Respondent alleges that Petitioner waived its arguments relating to (1) whether Dr.
Perper’s report met the requirements of § 718.105(d), and (2) whether the ALJ was
required to make a finding that Dr. Perper’s report was well reasoned and well documented.
In support of her argument, Respondent notes that Petitioner only listed one issue in its
brief before the BRB: “The ALJ erred in finding the claimant met his burden in proving
pulmonary disability.” Respondent’s Brief at 18.
We have held that a party waives issues on appeal that it does “not present to the
[BRB].” Armco, Inc. v. Martin, 277 F.3d 468, 476 (4th Cir. 2002); see also 20 C.F.R.
§ 802.211(a); Edd Potter Coal Co., Inc. v. Dir., Off. of Worker’s Comp Programs, 39 F.4th
202 (4th Cir. 2022) (explaining the “obligation is straightforward: . . . any petition for
review must list[] the specific issues to be considered on appeal” (internal quotation marks
omitted)). In the analogous context of an appeal from a district court order, we are “obliged
on appeal to consider any theory plainly encompassed by the submissions in the underlying
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litigation.” De Simone v. VSL Pharms., Inc., 36 F.4th 518, 528 (4th Cir. 2022) (internal
quotation marks omitted). While “[v]ariations on arguments made below may be pursued,”
the appealing party “may not leave the district court without any signal that it contests a
fact or point of law.” Id. (internal quotation marks omitted); see also Wards Corner Beauty
Acad. v. Nat’l Accrediting Comm’n of Career Arts & Scis., 922 F.3d 568, 578 (4th Cir.
2019) (providing that a lower court must be fairly put on notice as to the substance of the
issue in order for it to be preserved as “potential grounds of decision in higher courts”
(internal quotation marks omitted)).
In Riley v. Island Creek Coal Co., 688 F. App’x 219 (4th Cir. 2017), we rejected the
employer’s assertion that claimant waived appellate review of the BRB’s dispositive
conclusions. Id. at 220 n.1. We explained, “Claimant’s argument clearly takes issue with
the entirety of the [BRB’s] decision on the ground that it failed to require the ALJ to adhere
to her statutory obligation in reviewing the claim.” Id. Because “[t]here [was] little more
Claimant could have said to advance this argument” before the BRB, we concluded it was
preserved for appellate review. Id. Although Riley was an unpublished opinion, we find
its reasoning persuasive here.
Accordingly, we discern no waiver here. Both of Petitioner’s arguments elaborate
on the larger issue on appeal—the sufficiency of Dr. Perper’s report. As a result, these
arguments are “plainly encompassed” by the ones raised before the BRB below and,
therefore, are not waived.
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ABG Studies as Evidence of Total Disability
In support of its argument that ALJ Clark’s use of the terminal ABG results as
evidence of total disability was improper, Petitioner asserts ALJ Clark “mischaracterized
the evidence and implied Dr. Perper stated more than he did.” Petitioner’s Opening Br. at
11. Petitioner attempts to support this assertion by alleging: (1) Dr. Perper’s report only
established that the terminal ABG studies were the result of the Miner’s acute conditions,
as opposed to his chronic conditions; and (2) ALJ Clark’s use of the word “link” in relation
to the relationship between ABG results and the chronic conditions instead of the word
“produce” is insufficient to support a finding of a proper physician’s report so as to allow
for a conclusion of total disability.
1.
The Totality of the Physician’s Report Establishes the Terminal ABG Results were Produced by Pneumoconiosis
In Trump v. Eastern Assoc. Coal Corp., 737 F. App’x 156 (4th Cir. 2018), we
reversed the ALJ’s decision not to consider a physician’s opinion in a BLBA survivor
benefits decision. The ALJ in Eastern Assoc. Coal Corp. rejected the physician’s opinion
on the basis that a single statement in the opinion “by itself, is insufficient to be
determinative as to the cause of the miner’s death . . . [because i]t does not offer an opinion
on whether or not the miner’s hypoxemia caused or contributed to the miner’s heart attack.”
Id. at 160 (emphasis omitted). However, we found this line of reasoning unconvincing,
noting that by focusing on this single statement in the doctor’s report in isolation, the ALJ
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failed to account for the “totality of [the doctor’s] opinion.” Id. We pointed out that not
even two sentences earlier in the report, the doctor discussed the issue at hand in more
detail. We reiterate that reasoning today. In determining whether a physician’s opinion
should be considered in a BLBA decision, the ALJ must take into account the entirety of
the opinion.
In the present appeal, a reasonable mind could infer from taking into account the
totality of Dr. Perper’s opinion that he reached his diagnosis of pneumoconiosis based, in
part, on the terminal ABG studies. Throughout his opinion, Dr. Perper discusses the
Miner’s chronic conditions, as well as his acute conditions, in relation to the testing
conducted throughout the Miner’s lifetime and leading up to his death. Specifically, Dr.
Perper’s report notes:
The first symptomatic manifestations of chronic lung disease of shortness of breath on mild exertion, cough and occasional expectoration of mucus were documented as starting in 1998. Furthermore, the respiratory symptoms not only continued progressively but also gradually worsened and were accompanied by worsening radiological pulmonary findings, increased objective evidence of abnormal respiratory functions, incremental decrease in diffusion of pulmonary gases and hypoxemia, leading to very poor quality of life eventually to death.
J.A. 614–15 (emphases supplied).
Further, the report discusses the ABG studies conducted at the Miner’s terminal
hospitalization, finding they demonstrated “severe hypoxemia and hypercapnia.” J.A. 615.
And, similar to Eastern Assoc. Coal Corp., only two paragraphs after Dr. Perper’s
discussion of the ABG studies, Dr. Perper reaches his final diagnosis that the Miner
suffered from “complicated coal workers’ pneumoconiosis” at the time of his death. Id.
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Considering the totality of Dr. Perper’s opinion, a reasonable trier of fact could
determine that Dr. Perper based his diagnosis of pneumoconiosis, at least in part, on the
Miner’s terminal ABG study results. This reasoning is especially apparent in the following
section of Dr. Perper’s report:
The following evidence substantiates the worsening of the various respiratory parameters over the years of the chronic pulmonary disease survival: . . . the arterial blood gases followed a similar pattern of marked progressive worsening.
J.A. 615.
This conclusion is further supported by the proximity between the discussion of the
terminal ABG results and the final diagnosis of pneumoconiosis -- only one paragraph
between the two -- lending to the conclusion that Dr. Perper based his diagnosis of a chronic
respiratory condition on the ABG results. The same is true in the inverse: because Dr.
Perper based his diagnosis for pneumoconiosis in some part on the deathbed ABG results,
then it can be reasoned that Dr. Perper was of the opinion that the terminal ABG results
were produced by pneumoconiosis (a chronic respiratory condition). This is especially
apparent in light of the fact that the terminal ABG studies at issue were the only ABG
studies conducted on the Miner. A reasonable mind could infer that Dr. Perper was relying
on these final results to reach his diagnosis of pneumoconiosis.
Here, even though Dr. Perper does not explicitly state that the terminal ABG results
were produced by a chronic pulmonary or respiratory condition, his opinion is sufficiently
reasoned, and a reasonable ALJ could infer that his opinion connects the ABG results and
the diagnosis of pneumoconiosis.
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The dissent asserts that Dr. Perper’s opinion is insufficient because he does not
explicitly state “that the ABG studies’ results were produced by a chronic pulmonary or
respiratory condition,” and “without this statement, no matter how well-reasoned as to [the
Miner’s] pneumoconiosis and its impact on his employment, Dr. Perper’s report fails to
satisfy § 718.105(d).” Post at 27. In support of this assertion, the dissent notes “[t]he
regulations require a physician’s statement that the ABG ‘test results were produced by a
chronic respiratory or pulmonary condition.’” Post at 26–27 (quoting 20 C.F.R.
§ 718.105(d)). However, this is a misstatement of the regulation. The relevant section, 20
C.F.R. § 718.105(d), does not require the physician’s report itself to explicitly use the
language “produced by.” Rather, § 718.105(d) requires any qualifying ABG study to be
accompanied by “a physician’s report establishing that the test results were produced by a
chronic respiratory or pulmonary condition.” 20 C.F.R. § 718.105(d) (emphasis supplied).
Moreover, the issue on appeal is ALJ Clark’s finding that Dr. Perper’s report sufficiently
“linked” the ABG results to the Miner’s pneumoconiosis. Dr. Perper’s non-use of the word
“produce” is not at issue. While § 718.105(d) requires the physician’s report to establish
that the ABG results were produced by a chronic condition, it does not require the physician
to explicitly use the words “produced by.” The report must “establish,” in whatever form
that may take. To quote the dissent, “Words matter. We must not substitute ours for the
ones in the regulations.” Post at 27.
Moreover, we find unpersuasive Petitioner’s argument that the acute conditions
present at the Miner’s terminal hospitalization may have instead caused his ABG results.
In support of this argument, Petitioner cites the Department of Labor’s (“DOL”) initial
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notice of proposed rulemaking (“NPRM”) in which the DOL announced and explained the
agency’s position on 20 C.F.R. Part 718. In its NPRM, the DOL noted the physician report
requirement was necessary because the miner’s qualifying test results during a terminal
hospitalization may be related to an acute non-pulmonary condition rather than a chronic
pulmonary impairment. 64 Fed. Reg. 54966, 54977 (Oct. 8, 1999).
To be sure, the ALJ must consider such a possibility. But, here, the acute respiratory
injuries present at the Miner’s death were attributable to his underlying chronic coal dust
injuries. An argument to the contrary ignores the underlying cause of the acute conditions.
Dr. Caffrey, a physician who examined the Miner’s record on behalf of Petitioner,
concluded the Miner’s pneumoconiosis did not cause the acute conditions present at his
death. However, both Dr. Perper and the BRB disagree with this conclusion. Dr. Perper
countered Dr. Caffrey’s assessment noting, “significant and substantial coal workers’
pneumoconiosis . . . in the Miner’s case are often complicated by severe pulmonary
infection and pneumonia prior to death.” J.A. 88. And, in addressing Dr. Caffrey’s
opinion, the BRB noted that concluding the acute conditions present at the Miner’s terminal
hospitalization may have caused his disabling ABG values “overlooks a salient fact: Dr.
Perper, whose opinion the ALJ found credible, attributed the acute respiratory injury
present at the Miner’s death to his underlying chronic and progressively worsening coal
dust-induced diseases.” J.A. 88, n.12.
Accordingly, substantial evidence supports the ALJ and BRB’s conclusions
rejecting Petitioner’s argument that the ABG studies were produced by acute conditions
rather than the chronic pulmonary conditions, such as pneumoconiosis.
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2.
Propriety of the Use of the Word “Link” As Opposed to “Produce”
As to Petitioner’s argument that ALJ Clark’s use of the word “link” instead of
“produce” renders his reliance on Dr. Perper’s opinion improper, we disagree. In his
decision, ALJ Clark concludes, “Dr. Perper’s report links the Miner’s abnormal ABG
results obtained during the terminal hospitalization in February 2014 with a chronic lung
condition, thereby satisfying the requirements of § 718.105(d).” J.A. 13 (emphasis
supplied). Petitioner alleges the word “produce,” as opposed to “link,” is the appropriate
terminology. And Petitioner opines that the word “produce” requires a causal connection,
whereas “link” only requires a correlation. We disagree. In this context, there is no
meaningful difference between “link” and “produce.”
ALJ Clark was correct to use the word “link,” given that the DOL itself uses the
word “link.” In its second NPRM for regulations implementing the BLBA, the DOL stated:
Arterial blood gas studies conducted during a terminal illness hospitalization may be especially susceptible to producing low values unrelated to chronic respiratory or pulmonary disease. Consequently, reliance on such studies should be predicated on an additional showing that the qualifying (or abnormal) test results can be medically linked to chronic lung disease.
64 Fed. Reg. 54966, 54977 (Oct. 8, 1999); 65 Fed. Reg. 79920, 79935 (Dec. 20, 2000)
(emphasis supplied).
Thus, the use of the word “link” in ALJ Clark’s decision to connect the terminal
ABG studies to the Miner’s pneumoconiosis does not affect ALJ Clark’s application of 20
C.F.R. § 718.105(d) to Dr. Perper’s opinion.
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3.
Invocation of the 20 C.F.R. § 718.105(d) Presumption
Consequently, ALJ Clark’s decision is rational, in accordance with the law, and
supported by substantial evidence. First, we affirm, as unchallenged on appeal, the ALJ
and BRB’s finding that the Miner was employed in an underground coal mine for 27.92
years, thereby satisfying the preliminary requirement for the presumption. Second, as we
have explained, a reasonable mind could conclude that Dr. Perper’s opinion adequately
and sufficiently connects the ABG results to the Miner’s chronic respiratory condition so
as to establish total disability. E. Assoc. Coal Corp. v. Dir., Off. of Worker’s Comp
Programs, 805 F.3d 502, 510 (4th Cir. 2015); see also Scott v. Mason Coal Co., 289 F.3d
263, 267 (4th Cir. 2002). On this point, the dissent takes issue with our use of the word
“connects” arguing that “connecting” the ABG results to the pneumoconiosis diagnosis is
not what § 718.105(d) requires. Significantly, however, the dissent overlooks the context
in which we use this language. We do not conclude that the only thing a physician’s report
needs to do is “connect” the ABG results to a miner’s chronic condition. Rather, we credit
the totality of the circumstances in which a physician’s report may “establish” that the ABG
results were produced by a chronic respiratory or pulmonary condition,” by “connecting”
or “linking” the results and the chronic condition.
While we acknowledge that Dr. Perper’s report is not a model of clarity for purposes
of connecting the terminal ABG studies to a chronic pulmonary condition, and could have
been more clear, by tracking the language of the regulation it was sufficient to allow ALJ
Clark and the BRB to conclude that the report satisfied 20 C.F.R. § 718.105(d).
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Accordingly, we affirm the BRB’s conclusion that Respondent properly established
entitlement to the 20 C.F.R. § 718.305 presumption.
C.
Finding of a Well Reasoned or Well Documented Physician’s Report
Petitioner argues that because the BRB failed to require the ALJ to explicitly note
in his decision whether Dr. Perper’s report was “well-reasoned or well-documented,” its
conclusion that Dr. Perper’s opinion was sufficient was an error. Petitioner’s Opening Br.
at 17–18. In support of its argument, Petitioner cites to 20 C.F.R. § 718.104(c), which
provides, “[i]n the case of a deceased miner . . . a report prepared by a [non-examining]
physician may . . . form the basis for a finding if, in the opinion of the adjudication officer,
it is accompanied by sufficient indicia of reliability in light of all relevant evidence.” 20
C.F.R. § 718.104(c). Petitioner asserts that this regulation requires the ALJ to explicitly
state it is relying upon a report that is “well-reasoned and well-documented.” Petitioner’s
Opening Br. at 17. In making this argument, Petitioner is essentially asking this court to
ignore the ALJ’s credibility findings and to reweigh the evidence anew. We decline to do
so.
This court defers to an ALJ determination regarding the proper weight to be
accorded competing medical evidence, and we “must be careful not to substitute our
judgment for that of the ALJ.” Harman Mining Co. v. Dir., Off. of Worker’s Comp.
Programs, 678 F.3d 305, 310 (4th Cir. 2012). “It is the prerogative of the ALJ, rather than
of a reviewing court, to resolve a battle of the experts.” W. Va. CWP Fund v. Bender, 782
F.3d 129, 144–45 (4th Cir. 2015) (citing Westmoreland Coal Co. v. Cochran, 718 F.3d
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319, 324 (4th Cir. 2013)). “[D]eterminations of whether a physician’s report is sufficiently
documented and reasoned [are] a credibility matter left to the trier of fact.” Incoal Inc. v.
Dir., Off. of Workers’ Comp. Programs, 123 F.4th 808, 818 (6th Cir. 2024) (internal
quotation marks omitted). An “ALJ’s conclusion that [one doctor]’s opinion was
sufficiently reasoned but that [another doctor’s opinion] was not is a matter of credibility,
which we cannot visit.” Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1073 (6th Cir. 2013)
(quoting A & E Coal Co. v. Adams, 694 F.3d 798, 803 (6th Cir. 2012)) (alterations in
Adams).
In this Circuit, we do not require the ALJ to explicitly note that the physician’s
report was well reasoned or well documented. Indeed, the language “well-reasoned or
well-documented” does not appear in the text of the statute or Code of Federal Regulations.
It is enough that the ALJ discusses and analyzes the medical opinions and denotes his or
her reasoning. See Consolidation Coal Co. v. Williams, 453 F.3d 609, 622 (4th Cir. 2006)
(noting the doctor’s opinion was well reasoned because the doctor substantiated his
conclusion by relying upon the miner’s x-rays, pulmonary function studies, diffusion
capacity tests, and extensive history of coal mine employment); see also Manning Coal
Corp., 257 F. App’x at 840–41 (holding a doctor’s report relying upon the patient’s medical
history, coal mine employment, physical exam, chest x-ray, PFTs, and an ABG study was
well reasoned).
Here, ALJ Clark clearly explained his views, thereby allowing us to discern the
opinions upon which he relied and the reasons for such reliance. Specifically, ALJ Clark
explained that he credited Dr. Perper’s opinion because in reaching his diagnosis, Dr.
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Perper “reviewed the Miner’s medical records dating from 2000 which contain diagnoses
of chronic obstructive pulmonary disease (“COPD”), coal workers’ pneumoconiosis
(“CWP”), asthma, chronic bronchitis, and obstructive airway disease (“OAD”).” J.A. 13.
The BRB affirmed ALJ Clark’s credibility determinations without requiring an
explicit finding that Dr. Perper’s report was well reasoned or well documented, and instead
pointed to ALJ Clark’s detailed findings related to the sufficiency of Dr. Perper’s report.
Accordingly, the BRB found ALJ Clark’s credibility determinations to be rational and
supported by substantial evidence.
We affirm the decision of the BRB that the ALJ’s credibility determinations are
rational and supported by substantial evidence.
D.
Modification of a Prior Award of Benefits under the BLBA
Petitioner’s final argument alleges that any error in ALJ Barto’s decision regarding
20 C.F.R. § 718.105(d) is an error of law, as opposed to a factual error, and, therefore,
could not be remedied by a modification request. The BRB rejected this argument,
reasoning that the determination of “whether the Miner was totally disabled . . . is the
ultimate fact of [Respondent’s] entitlement to benefits.” J.A. 89 (emphasis supplied).
Pursuant to 20 C.F.R. § 725.310, a party may seek modification of a prior award or
denial of benefits within one year from the date of denial or the last payment of benefits,
on the grounds of either a change in condition or a mistake in a determination of fact. 20
C.F.R. § 725.310(a). In considering a modification, an ALJ may consider wholly new
evidence, cumulative evidence, or “merely further reflect[] on the evidence initially
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submitted,” to determine whether a mistake of fact was made. O'Keeffe v. Aerojet–General
Shipyards, Inc., 404 U.S. 254, 256 (1971); Jessee v. Dir., Off. of Workers’ Comp.
Programs, 5 F.3d 723, 724 (4th Cir. 1993).
In the context of the BLBA, modification is an “extraordinarily broad” procedure,
insofar as it permits an ALJ to correct mistakes of fact whenever “desirable in order to
render justice under the act.” Betty B Coal Co. v. Dir., Off. of Workers’ Comp. Programs,
194 F.3d 491, 497 (4th Cir. 1999) (citations omitted). Moreover, any mistake of fact may
be corrected, including and most pertinently, the ultimate issue of benefits eligibility. Id.
In opposing the modification, Petitioner bases its argument on Donadi v. Director,
Office of Workers’ Compensation Programs, 12 BLR 1-166 (1989), which holds that an
error or change of law is not a proper ground for modification. But Donadi is at odds with
the case at hand. In Donadi, no facts were in dispute, and instead, the ultimate issue was
the proper application of the regulations to the setting of a commencement date for benefits.
In contrast, in the present appeal, the ultimate issue in dispute is whether the Miner was
totally disabled in the first instance. As discussed above, in determining whether the Miner
was totally disabled, ALJ Clark held ALJ Barto had failed to fully consider Dr. Perper’s
opinion. This is not a misapplication of the regulation, but instead an alleged mistake in a
determination of fact that was able to be remedied on modification.
Consequently, and given the broad discretion accorded an ALJ to correct mistakes
on modification, ALJ Clark properly allowed Respondent to bring the claim as a
modification. Accordingly, we affirm the BRB’s holding that ALJ Barto’s error was a
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mistake in a determination of fact and that modification by ALJ Clark was the proper
remedy.
IV.
For the foregoing reasons, the Petition is
DENIED.
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QUATTLEBAUM, Circuit Judge, dissenting:
Based on the procedural history of this case, Geraldine Mullins’ black lung benefits
claim depends on whether qualifying arterial blood-gas (ABG) studies 1 establish that
Donald Mullins had, “at the time of his death, a totally disabling respiratory or pulmonary
impairment . . . .” 20 C.F.R. § 718.305(b)(1)(iii); see also 20 C.F.R. § 718.204(b)(2)(i)–
(iv) (setting forth the medical criteria for establishing a miner’s total disability). 2
Importantly, for ABG studies conducted during a hospital stay that ends in the miner’s
death—as occurred here—the “study must be accompanied by a physician’s report
1 ABG studies “are performed to detect an impairment in the process of alveolar gas exchange” of oxygen and carbon dioxide from the lungs to the blood. 20 C.F.R. § 718.105(a); 20 C.F.R. pt. 718, Appendix C; see also Mullins Coal Co. of Virginia v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Lab., 484 U.S. 135, 141 (1987) (stating “blood gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lungs to the blood”). A defect in this process “will manifest itself primarily as a fall in arterial oxygen tension either at rest or during exercise.” 20 C.F.R. § 718.105(a).
2 After Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), a natural question is whether we care about what the regulations say? Well, it depends. Courts no longer owe deference to agency pronouncements on the meaning of statutory language. Loper Bright, 603 U.S. at 412. But some statutes “expressly delegate[ ]” to an agency the authority to give meaning to a particular statutory term. Batterton v. Francis, 432 U.S. 416, 425 (1977). Loper Bright does not disturb the permissibility of such delegation. 603 U.S. at 413 (“And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”). And that appears to be what Congress did in the Black Lung Benefits Act here. See 30 U.S.C. § 902(f) (recognizing that the definition of total disability has the meaning given by regulations); 30 U.S.C. § 921(b) (recognizing that the Secretary of Labor shall by regulations prescribe standards for determining whether a miner is totally disabled due to pneumoconiosis and for determining whether the death of a miner is due to pneumoconiosis). USCA4 Appeal: 23-1644 Doc: 38 Filed: 12/02/2025 Pg: 25 of 28
establishing that the test results were produced by a chronic respiratory or pulmonary
condition.” 20 C.F.R. § 718.105(d). And this requirement is mandatory. The “[f]ailure to
produce such a report will prevent reliance on the blood-gas study as evidence that the
miner was totally disabled at death.” Id.
The first ALJ in this case found that the only ABG studies submitted in connection
with the claim were conducted during Donald Mullins’ terminal hospital stay. That ALJ
also found that the only report provided in connection with those studies was Mullins’
discharge summary. The ALJ concluded that report failed to satisfy the regulation.
Mullins didn’t challenge the ALJ’s conclusion that the discharge summary was
insufficient. But she requested a modification of the ALJ decision claiming it contained a
mistake of fact. Her request was assigned to a second ALJ. The second ALJ granted the
modification, concluding it was a mistake for the first ALJ to find that the only report that
addressed the ABG studies was the discharge summary. Instead, that ALJ reasoned that
there was another report, Dr. Joshua Perper’s, 3 that sufficiently “link[ed]” the ABG studies
to Mullins’ chronic lung condition and thus satisfied §718.105(d). J.A.13.
On appeal, the majority finds no error in the second ALJ’s decision. The majority
concludes that Dr. Perper’s report was “sufficient” to satisfy § 718.105(d)’s requirement.
Maj. Op. at 17. In reaching this conclusion, it does not say that Dr. Perper’s report provides
3 Dr. Perper’s report was issued a little over two years after Mullins’ death and was prepared for purposes of his black lung benefits claim. Does such a report accompany the study as the regulation requires? Because the employer did not raise the point, I will not address that separate question.
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that Mullins’ ABG studies “were produced by a chronic respiratory or pulmonary
condition.” 20 C.F.R. § 718.105(d). In fact, the majority concedes the report does not do
that. Maj. Op. at 14 (“Dr. Perper does not explicitly state that the terminal ABG results
were produced by a chronic pulmonary or respiratory condition. . . .”). But to the majority,
we should overlook this deficiency because, if we look at Dr. Perper’s opinion in its totality,
it “is sufficiently reasoned, and a reasonable ALJ could infer that his opinion connects the
ABG results and the diagnosis of pneumoconiosis.” Id.
However, “connecting” the ABG results to the pneumoconiosis diagnosis is not
what § 718.105(d) requires. The regulation requires a study accompanied by physician’s
statement establishing that the ABG results “were produced by” the pneumoconiosis. 20
C.F.R. § 718.105(d).
The closest Dr. Perper gets is the language the majority cites. According to Dr.
Perper, the fact that “[t]he arterial blood gases followed a similar pattern of marked
progressive worsening from” “substantiates the worsening of the various respiratory
parameters over the years of the chronic pulmonary disease survival.” J.A. 615. Frankly,
I’m not exactly sure what this means. The only ABG studies in the record took place in the
hospital right before Mullins died. I don’t see how they substantiate the worsening of
Mullins’ respiratory problems “over the years.” Id.
But giving Dr. Perper the benefit of the doubt, it sounds like he is saying that the
ABG study results are consistent with a pneumoconiosis diagnosis. If so, had the
regulations said that consistency was all that is required to constitute a qualifying ABG for
purposes of § 718.105(d), Dr. Perper’s report would establish total disability. The problem
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is that they don’t. The regulations require a physician’s statement establishing that the ABG
“test results were produced by a chronic respiratory or pulmonary condition.” 20 C.F.R.
§ 718.105(d). Words matter. We must not substitute ours for the ones in the regulations.
And no matter how hard one might try, the English language does not permit equating
“produced by” the pneumoconiosis with “connected . . . to” the pneumoconiosis. Maj. Op.
at 8. Nothing in the record complies with the text of the regulation.
Beyond the textual result, the standard exists for good reason. Terminal
hospitalizations can be the result of many factors. As a result, ABG studies from such
hospitalizations can produce qualifying results for reasons unrelated to a chronic
respiratory or pulmonary condition. This case illustrates this reality. At the time of the ABG
studies, Mullins had not only a chronic respiratory or pulmonary condition; he also had
pneumonia and respiratory distress syndrome, hypertension, type 2 diabetes mellitus, acute
renal insufficiency and medically controlled atrial fibrillation. In fact, Dr. Perper
acknowledged that the ABG studies documented “severe hypoxemia and hypercapnia
during the terminal 2014 hospitalization when Mr. Mullins had [contracted] pneumonia
and respiratory distress syndrome.” J.A. 615 (emphasis added). So, how do we know
whether the ABG test results were produced by a chronic respiratory or pulmonary
condition—which would satisfy § 718.105(d)—or whether they were produced by acute
pneumonia and respiratory distress syndrome conditions—which would not? We don’t.
That’s why Dr. Perper could not and, to his credit, did not state that the ABG studies’
results were produced by a chronic pulmonary or respiratory condition. Critically, without
that statement, no matter how well-reasoned as to Mullins’ pneumoconiosis and its impact
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on his employment, Dr. Perper’s report fails to satisfy § 718.105(d). So, in my view, the
report cannot be relied upon as evidence of total disability at death.
In the Black Lung Benefits Act, and its regulations, Congress decided to tip the
scales in favor of the miner. It was perfectly entitled to do that. But that does not mean the
miner wins no matter what. When the regulations impose a requirement—as § 718.105(d)
does here—we are not free to cast it aside.
I respectfully dissent.