Appellate Case: 21-9569 Document: 010110745107 Date Filed: 09/27/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 27, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
ENERGY WEST MINING COMPANY,
Petitioner,
v. No. 21-9569
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; CECIL E. BRISTOW,
Respondents. _________________________________
Petition for Review of an Order from the Benefits Review Board (Benefits No. 2020-0513-BLA) ___________________________________________
Submitted on the briefs:
William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for Petitioner.
Austin P. Vowels, Vowels Law PLC, Henderson, Kentucky, for Respondent Cecil E. Bristow.
Seema Nanda, Solicitor of Labor; Berry H. Joyner, Associate Solicitor; Jennifer L. Feldman, Deputy Associate Solicitor; Gary K. Stearman, Counsel for Appellate Litigation; Steven Winkelman, Counsel for
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 21-9569 Document: 010110745107 Date Filed: 09/27/2022 Page: 2
Enforcement; United States Department of Labor, Washington, D.C., for Federal Respondent. ______________________________________________
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. _____________________________________________
BACHARACH, Circuit Judge. _____________________________________________
This case involves a claim for benefits under the Black Lung Benefits
Act, 30 U.S.C. §§ 901–45. Under the Act, individuals can obtain benefits
for chronic lung diseases that arise out of work in a coal mine and cause a
total disability.
Mr. Cecil Bristow suffers from a chronic lung disease, COPD, and
attributes it to coal-mine dust from years of working in coal mines. An
administrative law judge and the Benefits Review Board agreed with
Mr. Bristow and awarded him benefits. 1 His most recent employer (Energy
West Mining Company) petitions for judicial review, and we deny the
petition.
1. An administrative law judge ultimately found satisfaction of all statutory requirements for benefits.
1 Two administrative law judges considered the claim. The first administrative law judge denied benefits, but the Benefits Review Board reversed that denial and remanded for an award of benefits. On remand, another administrative law judge handled the case because the first judge had retired. The newly assigned administrative law found “that [Mr.] Bristow ha[d] established all of the requisite elements of his claim and [was] entitled to benefits under the Act.” R. vol. 4, at 60; see p. 4, below.
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The award of benefits followed two rounds of administrative appeals.
In these appeals, the administrative law judges and the Benefits Review
Board considered the four elements for benefits: (1) disease, (2) disease
causation, (3) disability, and (4) disability causation. Energy W. Mining
Co. v. Est. of Blackburn, 857 F.3d 817, 821 (10th Cir. 2017).
First, the individual must show affliction with pneumoconiosis,
which can be “clinical” or “legal.” See id. (stating the need to show
pneumoconiosis); 20 C.F.R. § 718.201(a) (stating that pneumoconiosis can
be “‘clinical’” or “‘legal’”). “[C]linical pneumoconiosis consists of those
lung diseases the medical community refers to as pneumoconiosis.”
Andersen v. Dir., OWCP, 455 F.3d 1102, 1104 (10th Cir. 2006). “In
contrast, legal pneumoconiosis encompasses a broader class of lung
diseases that are not pneumoconiosis as the term is used by the medical
community.” Id. Legal pneumoconiosis exists only if the claimant has
satisfied the second element, disease causation, by showing that a chronic
lung disease had arisen out of coal-mine work. 20 C.F.R. § 718.201(a)(2);
Est. of Blackburn, 857 F.3d at 821.
The administrative law judge found “legal pneumoconiosis,” 2 and this
finding remained intact through both rounds of administrative appeals.
2 The administrative law judge also found clinical pneumoconiosis. Energy West challenged that finding, but the Board declined to address that challenge.
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R. vol. 1, at 5–7; id. vol. 3, at 6–8. 3 Energy West acknowledges the
existence of a chronic lung disease, but denies that it arose out of
Mr. Bristow’s work in the coal mines.
Third, the individual must show a total disability. Energy W. Mining
Co. v. Lyle ex rel. Lyle, 929 F.3d 1202, 1207–08 (10th Cir. 2019). The
administrative law judge found a total disability, and this finding remained
intact through both administrative appeals. Energy West doesn’t question
this finding.
Fourth, the individual must show that the pneumoconiosis was a
substantially contributing cause of the total disability. 20 C.F.R.
§ 718.204(c)(1). The first administrative law judge found that Mr. Bristow
had not satisfied this requirement, and the Board reversed. In reversing,
the Board concluded that the administrative law judge had applied the
wrong test when assessing the cause of Mr. Bristow’s disability. The Board
applied a different test, concluded that no factual issues existed, and
remanded for an award of benefits.
On remand, the second administrative law judge awarded benefits; 4
and the Board affirmed.
3 The appellate record isn’t paginated. We’re using the page numbers in the .pdf toolbar at the top of each page. 4 See p. 2 n.1, above.
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2. We review the Board’s decisions for legal and factual errors.
We review the Board’s decisions rather than the administrative law
judge’s. Mangus v. Dir., OCWP, 882 F.2d 1527, 1532 (10th Cir. 1989). In
conducting this review, we consider de novo whether the Board applied the
proper legal tests. Energy W. Mining Co. v. Est. of Blackburn, 857 F.3d
817, 822 (10th Cir. 2017). And when factual findings are challenged, we
consider whether they’re supported by substantial evidence. Spring Creek
Coal Co. v. McLean ex rel. McLean, 881 F.3d 1211, 1217 (10th Cir. 2018).
3. The Board didn’t err in upholding the administrative law judge’s finding of legal pneumoconiosis.
Legal pneumoconiosis exists when a chronic lung disease arises out
of work in a coal mine. 20 C.F.R. § 718.201(a)(2); see Part 1, above.
Energy West doesn’t question the existence of a chronic lung disease
(COPD), but does deny that it arose out of work in a coal mine.
Energy West bases this denial on Mr. Bristow’s long-time smoking
habit. He had smoked cigarettes for over 40 years and had worked in coal
mines for only about 6 ½ years. Mr. Bristow’s cigarette habit led all of the
medical experts to consider smoking the dominant cause of the COPD. But
two of the medical experts, Dr. Sanjay Chavda and Dr. Akshay Sood,
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opined that exposure to coal dust had also substantially contributed to the
COPD or had aggravated it. R. vol. 4, at 706, 1361. 5
Energy West insists that the administrative law judge used the wrong
test to assess a causal link between Mr. Bristow’s COPD and his exposure
to coal dust. For this challenge, Energy West points to the administrative
law judge’s discussion of Dr. Chavda’s opinion. There the administrative
law judge considered whether Mr. Bristow’s exposure to coal dust had
contributed “‘at least in part’” to the COPD. R. vol. 4, at 31 (quoting Arch
on the Green, Inc. v. Groves, 761 F.3d 594, 597–98 (6th Cir. 2014)).
5 In a deposition, Dr. Chavda testified that Mr. Bristow would have developed COPD even if he’d never worked in a coal mine. Energy West mentions this testimony when denying that Dr. Chavda’s opinion could have established legal pneumoconiosis. See Petitioner’s Opening Br. at 48– 49. But the Benefits Review Board relied on Dr. Chavda’s medical report, which stated that Mr. Bristow’s “impairment [had been] substantially caused and aggravated by working in the coal mines and exposure to coal dust for about 6 ½ years.” R. vol. 4, at 51 (internal quotation marks omitted). The Board also noted Dr. Chavda’s statements that (1) Mr. Bristow’s smoking had constituted the primary cause of his COPD, (2) coal-mine dust exposure had constituted “the second or ‘minor’ etiology,” and (3) “the effects of smoking and coal mine dust were additive.” Id. These statements led the Board to uphold the administrative law judge’s interpretation of Dr. Chavda’s opinion as confirmation that “Mr. Bristow’s COPD [was] due in part to coal mine dust exposure.” Id. Energy West disregards the Board’s reasoning and much of Dr. Chavda’s opinion, and we can’t grant judicial relief based on Energy West’s selective use of Dr. Chavda’s opinion. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (stating that the appellant must “explain what was wrong with the reasoning that the district court relied on in reaching its decision”). 6 Appellate Case: 21-9569 Document: 010110745107 Date Filed: 09/27/2022 Page: 7
Energy West argues that this test conflicts with the regulations and our
precedent. We disagree.
Under the regulations, legal pneumoconiosis turns on whether the
COPD had “aris[en] out of coal mine employment.” 20 C.F.R.
§ 718.201(a)(2); see p. 3, above. Based on this test, the regulations provide
two sources of guidance:
1. The respiratory impairment must be “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201(b).
2. The pneumoconiosis must have “ar[i]se[n] at least in part out of coal mine employment.” 20 C.F.R. § 718.203(a).
The Sixth Circuit has synthesized these sources of guidance by
holding that claimants can prove “legal pneumoconiosis” if the respiratory
impairment had been caused in part by work in a coal mine. Arch on the
Green, Inc. v. Groves, 761 F.3d 594, 597–99 (6th Cir. 2014); Island Creek
Coal Co. v. Young, 947 F.3d 399, 404–06 (6th Cir. 2020). Similarly, the
Seventh and Eleventh Circuits recognize that “legal pneumoconiosis”
requires proof only that exposure to coal dust had constituted a partial
cause of the respiratory impairment. See Freeman United Coal Mining Co.
v. Dir., OWCP, 957 F.2d 302, 303 (7th Cir. 1992) (stating that the Black
Lung Benefits Act allows benefits for “any chronic lung disease caused in
whole or part by exposure to coal dust”); Stomps v. Dir., OWCP, 816 F.2d
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1533, 1536 (11th Cir. 1987) (stating that the claimant need not prove that
his coal mining employment was the “sole cause” of the disease).
Energy West contends that we viewed causation differently in
Andersen v. Director, OWCP, 455 F.3d 1102 (10th Cir. 2006). But there we
didn’t address the test for causation. In Andersen, “[t]he Board rejected
[the claimant’s] argument he was entitled to a rebuttable presumption that
his COPD [had been] related to coal dust exposure because he proved he
worked in a mine for over ten years and was afflicted with COPD.” Id. On
appeal, the claimant argued that the Board had erroneously interpreted the
definition of “legal pneumoconiosis” because “the issue of whether [the
claimant’s] coal-mine employment [had] caused his COPD [was] a separate
element of entitlement that [could] be met by invoking the rebuttable
presumption, and not part of the definition of legal pneumoconiosis.” Id. at
1105. But we upheld the Board’s decision. Id.
Unlike the Andersen claimant, Mr. Bristow hasn’t invoked a
regulatory presumption; and Andersen didn’t address whether legal
pneumoconiosis could exist when exposure to coal dust had constituted
only a secondary cause of the impairment.
We agree with the Sixth, Seventh, and Eleventh Circuits. In our view,
the regulatory language unambiguously requires only that the respiratory
impairment had arisen partly out of work in a coal mine. 20 C.F.R.
§ 718.203(a). So the work in the coal mines had to bear a significant or
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substantial relation to at least part of the reason for Mr. Bristow’s COPD.
The Board thus didn’t err in upholding the administrative law judge’s
(1) consideration of Dr. Chavda’s opinion or (2) finding of legal
pneumoconiosis.
4. The Board didn’t err in reversing the administrative law judge’s first decision.
In the first round of administrative proceedings, the administrative
law judge made three findings:
1. Mr. Bristow had legal pneumoconiosis, consisting of COPD that had arisen at least partly out of his coal-mining employment.
2. He was totally disabled by his respiratory impairment.
3. The pneumoconiosis had not been a substantial contributing cause of his disabling impairment.
R. vol. 4, at 31, 33–34, 36–38.
In the first administrative appeal, Mr. Bristow challenged the third
finding. The Board reversed that finding, concluding that the
administrative law judge had misapplied the regulations. For this
conclusion, the Board reasoned that
the finding of legal pneumoconiosis had left only the question of a causal link between the legal pneumoconiosis and the disability and
the administrative law judge had improperly broadened the inquiry by considering a causal link between the disability and exposure to coal dust.
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This broadening of the inquiry was improper, the Board explained, because
the finding of legal pneumoconiosis had effectively established a causal
link between the COPD and exposure to coal dust.
Energy West contends that the Board misapplied its standard of
review and erred on the merits. We reject both contentions.
According to Energy West, the Board was to consider only whether
the administrative law judge had substantial evidence for her findings.
Generally, the Board considers whether the administrative law judge had
substantial evidence for factual findings. 20 C.F.R. § 802.301(a); see
Part 2, above. But the Board also needed to assess the possibility of a legal
error. 20 C.F.R. § 802.301(a); see Part 2, above. Misapplying the test on
causation would constitute a legal error, and the Board properly considered
this issue.
In considering this issue, the Board needed to consider the
regulations. Under the regulations, a coal miner qualifies for benefits if
pneumoconiosis is a substantial contributing cause of a disabling
impairment. 20 C.F.R. § 718.204(c)(1). This provision embeds two
causation standards: one for the disease and another for the disability. For
the disease, the causal link is part of the inquiry for legal pneumoconiosis:
causation exists when exposure to coal dust bore a substantial relation to at
least part of the reason for the chronic lung impairment. See Part 3, above.
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Upon finding legal pneumoconiosis, the administrative law judge had
to consider “disability causation.” Energy W. Mining Co. v. Lyle ex rel.
Lyle, 929 F.3d 1202, 1207 (10th Cir. 2019). For disability causation, the
agency considers whether “[t]he pneumoconiosis substantially
contribute[d] to the miner’s total disability.” Id.
Together, the causation inquiries for the disease and disability were
all that was required. So if Mr. Bristow’s COPD constituted legal
pneumoconiosis, he needed only to show that the legal pneumoconiosis had
caused a disability. See Island Creek Ky. Mining v. Ramage, 737 F.3d
1050, 1062 (6th Cir. 2013) (stating that the causation question for legal
pneumoconiosis also “completed the causation chain from coal mine
employment to legal pneumoconiosis which caused [the claimant’s]
pulmonary impairment that [had] led to his disability”). 6 Because
6 Energy West argues that Island Creek is distinguishable because it involved a presumption of disability from pneumoconiosis. We disagree. There the Sixth Circuit addressed whether an employer had rebutted the presumption. 737 F.3d at 1061–62. In addressing the presumption, the court explained that
all of the medical experts had agreed that a pulmonary impairment caused a total disability and
the only remaining question in the causal chain was whether the pulmonary impairment had been significantly related to exposure to coal-mine dust.
Id. at 1062. The court explained that the administrative law judge had answered the second question because the finding of legal pneumoconiosis had reflected a causal link between work in a coal mine and the pulmonary 11 Appellate Case: 21-9569 Document: 010110745107 Date Filed: 09/27/2022 Page: 12
Mr. Bristow’s COPD was totally disabling and constituted legal
pneumoconiosis, the Board correctly found that Mr. Bristow had
established “disability causation.” The Board thus did not err in reversing
the first administrative law judge’s denial of benefits.
5. The Board didn’t err in upholding the administrative law judge’s reliance on Dr. Sood’s opinion.
The administrative law judge credited Dr. Sood’s opinion, stating
that Mr. Bristow’s exposure to coal dust had contributed to his impairment.
In giving this opinion, Dr. Sood expressed it to a reasonable degree of
medical certainty, which he defined as a likelihood of 51% or better.
But Dr. Sood adheres to a stricter standard of certainty for his
diagnoses, requiring a probability of 95% or better. Seizing on this
standard of certainty, Energy West appealed to the Board, contending that
the administrative law judge should have rejected Dr. Sood’s opinion because it didn’t reflect the degree of certainty required for a diagnosis and
Dr. Sood’s opinion was inadmissible as expert testimony under Rule 702 of the Federal Rules of Evidence and Kentucky’s common law.
The Board rejected these contentions, concluding that
the common law and statutory rules of evidence aren’t binding,
Dr. Sood didn’t need to apply the same standard of certainty that he used to diagnose his patients, and
impairment. Id. The Sixth Circuit articulated the inquiry on causation because that inquiry had affected the employer’s rebuttal of the presumption. Id. 12 Appellate Case: 21-9569 Document: 010110745107 Date Filed: 09/27/2022 Page: 13
the administrative law judge had permissibly relied on Dr. Sood’s conclusions, which were given within a reasonable degree of medical certainty.
Energy West repeats its arguments here without addressing the Board’s
reasoning.
Energy West again insists that (1) a 51% degree of certainty isn’t
enough and (2) Dr. Sood shouldn’t apply different standards of certainty
for treatment and testimony. Energy West thus argues that Dr. Sood’s
opinion did not qualify as expert testimony under Kentucky case law and
Federal Rule of Evidence 702.
But the regulations do not require administrative law judges to
follow the “common law” or “statutory rules of evidence.” 20 C.F.R.
§ 725.455(b). 7 Whatever the common law or statutory rules provide,
physicians opining in black-lung cases need only use “‘reasoned medical
judgment.’” Tenn. Consol. Coal Co. v. Crisp, 866 F.2d 179, 185
(6th Cir. 1989) (quoting Moseley v. Peabody Coal Co., 769 F.2d 357, 360
(6th Cir. 1985)); see Underhill v. Peabody Coal Co., 687 F.2d 217, 223
(7th Cir. 1982) (stating that the applicable standard is “‘reasoned medical
judgment’” rather than “reasonable degree of medical certainty” (quoting
7 Energy West acknowledges that “20 C.F.R. § 725.455(b) provides statutory rules of evidence are not binding.” Petitioner’s Opening Br. at 38 n.15; R. vol. 3, at 184 n.10.
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20 C.F.R. § 727.203(a)(4)); Drummond Coal Co. v. Freeman, 733 F.2d
1523, 1527 (11th Cir. 1984) (stating that the administrative law judge erred
by requiring a “reasonable degree of medical certainty” rather than
“reasoned medical judgment”).
Though Dr. Sood didn’t need to express his opinion “with a
reasonable degree of medical certainty,” he did so anyway. R. vol. 4, at
698. Granted, Dr. Sood measured reasonable certainty by a likelihood of
51% or better. But Energy West doesn’t explain the asserted need to
express an expert opinion with a likelihood of more than 51%. So the
Board didn’t err in upholding the administrative law judge’s consideration
of Dr. Sood’s opinion.
6. The Board didn’t err in upholding the administrative law judge’s decision to discount the opinions by Doctors Selby and Castle.
Energy West also argues that the administrative law judge erred in
discounting the opinions of Dr. Jeff Selby and Dr. James Castle about
clinical pneumoconiosis. This argument doesn’t provide a basis for judicial
relief.
Energy West frames the argument as a challenge to the administrative
law judge’s findings on clinical pneumoconiosis. But we review the
Board’s decision, not the administrative law judge’s. See Part 2, above.
And the Board didn’t base its decision on the administrative law judge’s
finding of clinical pneumoconiosis. R. vol. 1, at 11 n.11; see p. 3 n.2,
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above. So we decline to address Energy West’s argument as it relates to
clinical pneumoconiosis.
Energy West also argues that the administrative law judge’s findings
on clinical pneumoconiosis tainted her findings on legal pneumoconiosis.
Because the Board upheld those findings, we address Energy West’s
challenge as it pertains to legal pneumoconiosis.
Both Dr. Selby and Dr. Castle acknowledged that Mr. Bristow had
COPD. But Dr. Selby and Dr. Castle attributed the COPD solely to
Mr. Bristow’s long-time cigarette habit, downplaying the effect of
exposure to coal-mine dust. Dr. Selby reasoned that 6 ½ years of exposure
to coal-mine dust wouldn’t ordinarily be enough to cause COPD because
only an “extremely susceptible host” would develop a lung disease from
only five to seven years in a coal mine. R. vol. 4, at 546. The
administrative law judge discounted this reasoning, noting that Dr. Selby
had “not rule[d] in or out the possibility of impairment” from five to seven
years of work in a coal mine. Id. at 32.
In the administrative appeal, Energy West argued that the
administrative law judge had erred legally by requiring Dr. Selby to “rule
out” the possibility that coal-mine dust had contributed to Mr. Bristow’s
COPD. The Board rejected this argument, reasoning that the administrative
law judge had simply given less weight to Dr. Selby’s opinion because of
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his failure to explain why coal-mine dust couldn’t have contributed to or
aggravated the COPD. Id. vol. 1, at 7 n.7.
On appeal, Energy West repeats its argument to the Board but doesn’t
say how the Board had erred. That omission leaves us without an appellate
argument to consider. See p. 6 n.5, above (citing Nixon v. City & Cnty. of
Denver, 784 F.3d 1364, 1366 (10th Cir. 2015)).
Even if the administrative law judge had erred, the error wouldn’t be
readily apparent, for we’ve elsewhere upheld similar explanations about
physicians’ inability to explain why they had ruled out coal-mine dust as a
contributor to respiratory disease. See Energy W. Mining Co. v. Hunsinger,
389 F. App’x 819, 825 (10th Cir. 2010) (unpublished) (upholding an
administrative law judge’s explanation that physicians hadn’t been able to
explain why they had ruled out coal-dust exposure as a possible cause);
Energy W. Mining Co. v. Johnson, 233 F. App’x 860, 862–63 (10th Cir.
2007) (unpublished) (upholding an administrative law judge’s decision to
discount the opinions of certain physicians because they hadn’t adequately
explained “why they [had] ruled out coal-mine employment as a potential
cause” of a miner’s respiratory disease).
Dr. Castle also opined that exposure to coal-mine dust hadn’t
contributed to Mr. Bristow’s COPD. The administrative law judge
questioned this opinion in part based on testing that had reflected
Mr. Bristow’s reduced forced expiratory volume.
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In the second administrative appeal, Energy West argued that the
administrative law judge had erroneously
“combine[d] the disability standards” and Dr. Castle’s diagnosis of a disease and
failed to reconcile the effect of cigarette smoke on Mr. Bristow’s forced expiratory volume.
R. vol. 3, at 189–90. The Board rejected these arguments, stating:
With regard to Dr. Castle’s opinion, the administrative law judge correctly noted that he concluded that claimant does not have legal pneumoconiosis based, in part, on his view that claimant’s markedly decreased FEV1 and severely reduced FEV1/FVC ratio constituted a pattern of impairment that is characteristic of obstruction related to cigarette smoking, not coal dust exposure. The administrative law judge permissibly discounted this aspect of Dr. Castle’s opinion as inconsistent with the regulations and the Department of Labor’s recognition that a reduced FEV1/FVC ratio may support a finding that a miner’s respiratory impairment is related to coal mine dust exposure.
Id. vol. 1, at 7-8 (citations omitted).
On appeal, Energy West repeats what it had argued to the Board,
again failing to say how the Board had erred. That omission leaves us
without a basis to disturb the Board’s explanation. See p. 6 n.5, above
(citing Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir.
2015)).
7. Conclusion
The Board didn’t err.
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In determining whether Mr. Bristow had legal pneumoconiosis, the
Board properly applied the regulations to require a showing that the COPD
had arisen at least in part out of work in coal mines.
Nor did the Board err in reversing the administrative law judge’s
first decision. No one had questioned the disabling impact of Mr. Bristow’s
COPD, and the administrative law judge found a causal link between the
COPD and exposure to coal-mine dust. Given that causal link, the Board
properly
limited the remaining issue to causation between legal pneumoconiosis and the disability and
found causation because the legal pneumoconiosis had been totally disabling.
And the Board didn’t err in upholding the administrative law judge’s
consideration of Dr. Sood’s opinion. He used reasoned medical judgment,
which is all that’s required.
We thus deny the petition for judicial review.