Harman Mining Corporation v. Emma Bartley

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 20, 2024
• Docket: 22-2283
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2283

HARMAN MINING CORPORATION; VIRGINIA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION,

Petitioners,

v.

EMMA RAYETTA BARTLEY, o/b/o widow of Jerry W. Bartley; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (21-0497-BLA; 21- 0498-BLA).

Submitted: July 30, 2024 Decided: August 20, 2024

Before NIEMEYER, WYNN, and QUATTLEBAUM, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ON BRIEF: James M. Poerio, POERIO & WALTER, INC., Pittsburgh, Pennsylvania, for Petitioners. Brad A. Austin, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Bartley. Seema Nanda, Solicitor of Labor, Barry H. Joyner, Associate Solicitor, Jennifer Feldman Jones, Deputy Associate Solicitor, Michael P. Doyle, Counsel for Appellate Litigation, Ann Marie Scarpino, Attorney, UNITED STATES USCA4 Appeal: 22-2283 Doc: 31 Filed: 08/20/2024 Pg: 2 of 11

DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Harman Mining Corporation and the Virginia Property and Casualty Insurance

Guaranty Association (collectively, “Employer”) petition for review of the Benefits

Review Board’s (BRB or “Board”) decision and order affirming the Administrative Law

Judge’s (ALJ) award of miner’s and survivor’s benefits to Emma Rayetta Bartley (“Mrs.

Bartley”) under the Black Lung Benefits Act (“the Act”), 30 U.S.C. §§ 901-944. Employer

argues that the District Director violated its due process rights when deciding that it was

the operator liable for payment of benefits to Mrs. Bartley or “the responsible operator.”

Employer further contends that the ALJ improperly concluded that it failed to rebut the

presumption that the totally disabling respiratory impairment of Mrs. Bartley’s late

husband, Jerry W. Bartley, was due to pneumoconiosis. We deny the petition.

I.

We review de novo Employer’s contention that the District Director violated its due

process rights when deciding that it was the responsible operator. See Kirk v. Comm’r of

Soc. Sec. Admin., 987 F.3d 314, 320 (4th Cir. 2021); Am. Energy, LLC v. Dir., Office of

Workers’ Comp. Programs, 106 F.4th 319, 330 (4th Cir. 2024) (“Goode”). The regulations

define the responsible operator as the “potentially liable operator . . . that most recently

employed the miner.” 20 C.F.R. § 725.495(a)(1) (2024). There are five requirements for

an operator to be deemed a potentially liable operator, including that the operator or its

successor must have employed the miner for a cumulative period of at least one year.

20 C.F.R. § 725.494 (2024).

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The regulations set forth a detailed procedure for identifying the responsible

operator. Upon receipt of the miner’s claim, the district director must first “investigate

whether any operator may be held liable for the payment of benefits as a responsible

operator”—that is, whether any of the miner’s employers qualify as a potentially liable

operator. 20 C.F.R. § 725.407(a) (2024). The district director then notifies any potentially

liable operator of the existence of the claim. 20 C.F.R. § 725.407(b) (2024). After

receiving that notice, the operator has 30 days to accept or contest its designation as a

potentially liable operator. 20 C.F.R. § 725.408(a)(1) (2024). If the operator contests its

designation, it must “state the precise nature of the disagreement by admitting or denying”

each of the five requirements for being designated a responsible operator. 20 C.F.R.

§ 725.408(a)(2) (2024). A potentially liable operator also “may submit documentary

evidence in support of its position” regarding liability within 90 days. 20 C.F.R.

§ 725.408(b)(1) (2024). “[N]o documentary evidence relevant to [whether the operator is

potentially liable] may be admitted in any further proceedings unless it is submitted within

the time limits set forth in this section.” 20 C.F.R. § 725.408(b)(2) (2024).

After the potentially liable operators have responded and the district director has

completed the initial development of evidence relevant to the claimant’s entitlement to

benefits, the district director issues a Schedule for the Submission of Additional Evidence

(SSAE). 20 C.F.R. § 725.410(a) (2024). The SSAE contains the district director’s

designation of the responsible operator and his decision as to whether the claimant is

entitled to benefits. Id. If “the district director has designated as the responsible operator

an employer other than the employer who last employed the claimant as a miner, the district

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director shall include, with the [SSAE],” his reasons for doing so. 20 C.F.R.

§ 725.410(a)(3); see 20 C.F.R. § 725.495(d) (2024).

The potentially liable operator designated as the responsible operator then has 30

days to accept or contest the designation. 20 C.F.R. § 725.412(a)(1) (2024). The

contesting operator is also afforded at least 60 days to submit additional evidence relevant

to the claimant’s eligibility for benefits and the operator’s liability for the claim. 20 C.F.R.

§ 725.410(b) (2024). “Documentary evidence pertaining to the liability of a potentially

liable operator and/or the identification of a responsible operator which was not submitted

to the district director shall not be admitted into the hearing record in the absence of

extraordinary circumstances.” 20 C.F.R. § 725.456(b)(1) (2024); see also 20 C.F.R.

§ 725.414(d) (2024).

When the claim proceeds to a hearing before the ALJ, the regulations clarify the

burden of proof regarding the responsible operator issue. See RB&F Coal, Inc. v. Mullins,

842 F.3d 279, 281-82 (4th Cir. 2016) (explaining burdens). “[W]ith respect to the

adjudication of the identity of a responsible operator, the Director [of the Office of

Workers’ Compensation Programs (‘the Director’)] shall bear the burden of proving that

the responsible operator initially found liable for the payment of benefits . . . is a potentially

liable operator.” 20 C.F.R. § 725.495(b) (2024). Then the burden shifts to the designated

responsible operator to prove “[t]hat it is not the potentially liable operator that most

recently employed the miner.” 20 C.F.R. § 725.495(c)(2) (2024). This “proof must include

evidence that the miner was employed as a miner after he or she stopped working for the

designated responsible operator and that the person by whom he or she was employed is a

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potentially liable operator within the meaning of § 725.494.” Id. As explained, though,

the designated responsible operator may only rely on the evidence presented to the district

director, absent extraordinary circumstances. See 20 C.F.R. §§ 725.414(d), 725.456(b)(1).

The District Director followed the proper procedure here. After identifying

Employer as a potentially responsible operator, the District Director sent Employer notice

of the claims. Employer denied that it satisfied any of the requirements to be deemed a

potentially liable operator, but it did not submit any supporting evidence. The District

Director then issued an SSAE designating Employer as the responsible operator. Because

Employer was not the operator that most recently employed Bartley, the District Director

explained that the two subsequent operators were not potentially liable because Bartley

worked for those companies for less than a year. Employer denied that it was the

responsible operator but did not provide any supporting evidence. When the case was

referred to the ALJ, however, Employer attempted to introduce evidence to satisfy its

burden of establishing that it was not the responsible operator. The ALJ denied admission

of that evidence because Employer failed to present it to the District Director and because

Bartley’s death did not qualify as an extraordinary circumstance justifying the late

admission.

In this petition for review, however, Employer maintains that the District Director

faltered at the first step, violating its due process rights by failing to perform his initial duty

to “investigate whether any operator may be held liable for the payment of benefits as a

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responsible operator.” * 20 C.F.R. § 725.407(a). We conclude that the District Director did

not violate Employer’s due process rights. Employer had notice of the claims and an

opportunity to contest its liability before the District Director. Notably, Employer had

access to the same Social Security earnings report that the District Director considered and

could have used that report as well as the evidence it sought to introduce before the ALJ to

contest its liability at the appropriate time. But Employer waited nearly two years after the

District Director issued the SSAE to contest its liability.

II.

Having concluded that Employer is liable for any benefits awarded to Mrs. Bartley,

we now address whether the ALJ properly concluded that Mrs. Bartley was entitled to

benefits. “We review the findings of the ALJ, as affirmed by Board, to determine if they

are supported by substantial evidence and in accordance with the law.” Goode, 106 F.4th

at 330(cleaned up); see W. Va. CWP Fund v. Dir., Off. of Workers’ Comp. Programs,

880 F.3d 691, 697 (4th Cir. 2018) (“Smith”) (“In black lung cases, our review is highly

deferential.”). “To determine whether this standard has been met, we consider whether all

of the relevant evidence has been analyzed and whether the ALJ has sufficiently explained

* Employer further contends that the ALJ erred in granting the Director’s motion for a protective order, which prohibited Employer from seeking discovery from and deposing the District Director. Employer also maintains that Bartley’s death qualified as an extraordinary circumstance justifying the late admission of additional evidence. We conclude that Employer waived judicial review of these issues because it did not raise them before the BRB. See Edd Potter Coal Co. v. Dir., Office of Workers’ Comp. Programs, 39 F.4th 202, 206-09 (4th Cir. 2022).

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h[er] rationale in crediting certain evidence.” Hobet Mining, LLC v. Epling, 783 F.3d 498,

504 (4th Cir. 2015) (internal quotation marks omitted).

But “the duty to resolve conflicts in the evidence rests with the ALJ as factfinder.

And when conflicting evidence allows reasonable minds to differ as to whether a claimant

is disabled or has pneumoconiosis, the responsibility for that decision falls on the ALJ.”

Sea “B” Mining Co. v. Addison, 831 F.3d 244, 252 (4th Cir. 2016). Accordingly, in

conducting our analysis, “we do not undertake to reweigh contradictory medical evidence,

make credibility determinations, or substitute our judgment for that [of the ALJ].” Id.

Indeed, “[s]o long as an ALJ’s findings . . . are supported by substantial evidence, they

must be sustained.” Epling, 783 F.3d at 504. “Substantial evidence is more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Addison, 831 F.3d at 252 (internal quotation marks omitted).

Generally, to establish eligibility for benefits, a miner must demonstrate that:

(1) “he has pneumoconiosis, in either its clinical or legal form”; (2) “the pneumoconiosis

arose out of coal mine employment”; (3) “he is totally disabled by a pulmonary or

respiratory impairment”; and (4) “his pneumoconiosis is a substantially contributing cause

of his total disability.” W. Va. CWP Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015)

(internal quotation marks omitted); see 20 C.F.R. § 725.202(d)(2) (2024). “But for certain

miners, Congress has made it easier to establish eligibility for benefits.” Smith, 880 F.3d

at 695. If the miner proves that he was employed in underground coal mines or in

substantially similar conditions for at least 15 years, that he has had a chest X-ray

interpreted as negative for complicated pneumoconiosis, and that he has a totally disabling

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respiratory or pulmonary impairment, he is entitled to the rebuttable presumption that he

is totally disabled due to pneumoconiosis. 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)

(2024); see Smith, 880 F.3d at 695.

“Once the presumption is triggered, the burden shifts to the employer to demonstrate

that the miner is not in fact eligible for benefits.” Smith, 880 F.3d at 695. An employer

can rebut the 15-year presumption by establishing that the miner does not suffer from

pneumoconiosis arising out of his coal mine employment (“pneumoconiosis rebuttal”),

20 C.F.R. § 718.305(d)(1)(i) (2024), or “that no part of the miner’s respiratory or

pulmonary total disability was caused by pneumoconiosis” (“causation rebuttal”),

20 C.F.R. § 718.305(d)(1)(ii) (2024). Under the pneumoconiosis rebuttal method, the

employer must prove “that the miner’s impairment is not significantly related to, or

substantially aggravated by, the [15] years or more he has spent in the coal mines.” Smith,

880 F.3d at 695 (internal quotation marks omitted). Under the causation rebuttal method,

the employer “must ‘rule out’ the mining-related disease as a cause of the miner’s

disability.” Epling, 783 F.3d at 502. The employer cannot satisfy this “rule out” standard

by establishing that pneumoconiosis was only a minor cause or one of multiple causes of

the miner’s impairment; rather, the employer “affirmatively must establish that the miner’s

disability is attributable exclusively to a cause or causes other than pneumoconiosis.”

Bender, 782 F.3d at 144.

Employer challenges the ALJ’s conclusion that it failed to rebut the presumption

that Bartley’s totally disabling respiratory impairment was caused by pneumoconiosis on

two grounds: (1) the ALJ failed to weigh and resolve the conflicting evidence regarding

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Bartley’s smoking history; and (2) the ALJ improperly relied on Dr. Green’s medical

opinion, which Employer avers was not well-reasoned or well-documented, while

improperly discounting the opinions of Drs. Fino and Rosenberg.

Like the BRB, we conclude that any error by the ALJ in the calculation of Bartley’s

smoking history was harmless. See Addison, 831 F.3d at 253-54 (discussing harmlessness

in black lung context). Moreover, because it was Employer’s burden to rebut the

presumption of total disability due to pneumoconiosis, we need not consider whether the

ALJ properly credited Dr. Green’s opinion. Indeed, the ALJ specifically stated that, even

if she were to discount Dr. Green’s opinion, she would still find that Employer failed to

rebut the presumption.

Employer, then, may only prevail if it establishes that the ALJ erred in discounting

the opinions of Drs. Fino and Rosenberg. And we conclude that the Employer has failed

to do so. There is no doubt that Bartley suffered from multiple impairments, which made

the task of determining what exactly caused his totally disabling respiratory impairment

difficult. The ALJ discounted the opinions of Drs. Fino and Rosenberg, in part, because

they did not appear to acknowledge that difficulty. In contrast to Dr. Green, who opined

that Bartley’s respiratory impairment was caused by many factors, including lengthy

exposure to coal dust, Drs. Fino and Rosenberg were certain that Bartley’s respiratory

impairment was caused exclusively by conditions unrelated to coal dust exposure. Neither

physician, however, persuasively explained his confidence—that is, how he was able to

conclude that exposure to coal dust did not contribute to Bartley’s respiratory impairment.

Dr. Rosenberg attempted an explanation, but his opinion—that coal dust inhalation did not

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contribute to Bartley’s respiratory impairment because he did not seek medical treatment

until years after he retired from the mines—contradicts the Department of Labor’s

conclusion that pneumoconiosis is a latent and progressive disease. See E. Associated Coal

Corp. v. Dir., Office of Workers’ Comp. Programs, 805 F.3d 502, 512-13 (4th Cir. 2015).

III.

Because Employer failed to establish error in the ALJ’s findings that Mrs. Bartley

is entitled benefits and that Employer is liable for payment of those benefits, we deny

Employer’s petition for review. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

PETITION DENIED