Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH August 13, 2024 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
SUNNYSIDE COAL COMPANY; OLD REPUBLIC INSURANCE COMPANY,
Petitioners,
v. No. 23-9517
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; RONALD A. FOSSAT,
Respondents. _________________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF THE BENEFITS REVIEW BOARD UNITED STATES DEPARTMENT OF LABOR (No. BRB 21-0386 BLA) _________________________________
Michael A. Pusateri (Mark E. Solomons with him on briefs), Greenberg Traurig LLP, Washington, D.C., for Petitioners.
Amanda Torres, Sarah M. Hurley, Attorneys (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Jennifer L. Jones, Deputy Associate Solicitor; and Michael P. Doyle, Counsel for Appellate Litigation with them on the brief), Department of Labor, Washington, D.C., for the Federal Respondent.
Brad A. Austin, Wolfe Williams & Reynolds, Norton, VA, for Respondent Ronald A. Fossat. Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 2
_________________________________
Before HARTZ, McHUGH, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________
In 2013, Ronald Fossat, a coal miner, filed a claim for benefits under
the Black Lung Benefits Act (BLBA), 30 U.S.C. § 901 et seq. After years of
his claim trudging through the administrative review process, on
January 21, 2021, he was awarded benefits by an Administrative Law
Judge (ALJ). His former employer — Sunnyside Coal Company (Sunnyside)
— appealed that award to the U.S. Department of Labor Benefits Review
Board (Board), which affirmed the ALJ’s decision and order.1
Sunnyside now petitions this Court for review. The Director of the
Office of Workers’ Compensation Programs at the United States
Department of Labor (OWCP) joins Fossat as a Respondent.
Sunnyside makes three arguments to support its request that we
remand this case with instructions to deny benefits to Fossat. First, it
argues that the agency’s interpretation of the relevant section of the BLBA
— 30 U.S.C. § 921(c) — was erroneous because it “clashes with the BLBA’s
1 Fossat died on February 15, 2021, less than one month after the ALJ
awarded him benefits. His widow pursues the claim for benefits on behalf of his estate. 2 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 3
text, structure, and history, offending background principles of construction
and common sense.” Aplt. Br. at 25. Second, it argues the Department of
Labor’s “pilot program,” which allows for a supplemental medical report
following the statutorily mandated pulmonary examination of a miner /
claimant at government expense, “offends the law’s plain text,” is “employed
one-sidedly to aid claimants’ quests for benefits,” and does “violence to
employers’ rights.” Id. at 26. Finally, Sunnyside argues that the ALJ’s
medical merits analysis was flawed.
Exercising jurisdiction under 33 U.S.C. § 921(c), we reject these
arguments and deny the petition.2
I
To receive benefits under the BLBA, “a claimant must establish four
elements:
1. Disease (the miner suffers from [clinical or legal3] pneumoconiosis),
2 Judge Hartz joins this Opinion except for Part III.B.3.
3 Pneumoconiosis is a medical condition commonly referred to as black
lung disease. Legal pneumoconiosis is “a broader class of lung diseases that are not pneumoconiosis as the term is used by the medical community.” Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1335 (10th Cir. 2014) (quoting Anderson v. OWCP, 455 F.3d 1102, 1104 (10th Cir. 2006)). It is defined as “any chronic lung disease or impairment and its sequelae arising out of coal mine employment. This definition includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment.” Id. (quoting 20 C.F.R. § 718.201(a)(2)). 3 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 4
2. Disease causation (the pneumoconiosis arose out of coal-mine employment),
3. Disability (the miner is totally disabled because of a respiratory or pulmonary impairment), and
4. Disability causation (the pneumoconiosis is a substantially contributing cause of the miner’s total disability).”
Energy W. Mining Co. v. Est. of Blackburn, 857 F.3d 817, 821 (10th Cir.
2017).
“Ordinarily, claimants [such as Fossat] must prove each of the four
elements[;]” however, the BLBA “softens his burden” with the inclusion of
a rebuttable presumption. Id. at 821–22. If a miner, inter alia, “was
employed for fifteen years or more in one or more underground coal mines,
and . . . if other evidence demonstrates the existence of a totally disabling
respiratory or pulmonary impairment, then there shall be a rebuttable
presumption that such miner is totally disabled due to pneumoconiosis.”
30 U.S.C. § 921(c)(4). In other words, if a miner establishes the disability
element, the miner is “entitled to a rebuttable presumption that the
remaining three elements (Disease, Disease causation, and Disability
causation) [are] also established.” Energy W. Mining Co., 857 F.3d at 822.
Furthermore, the Secretary of Labor “shall not apply . . . the requirement
of this paragraph that the miner work in an underground mine where [the
Secretary] determines that conditions of a miner’s employment in a coal
4 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 5
mine other than an underground mine were substantially similar to
conditions in an underground mine.” 30 U.S.C. § 921(c)(4).
If an employer opposes the claim entitlement, it “may rebut the
presumption by” either “(i) [e]stablishing both that the miner does not, or
did not, have: (A) [l]egal pneumoconiosis . . . and (B) [c]linical
pneumoconiosis . . . arising out of coal mine employment” or
“(ii) [e]stablishing that no part of the miner’s respiratory or pulmonary total
disability was caused by pneumoconiosis . . . .” 20 C.F.R. § 718.305(d)(i)–
(ii). Graphically, this Court has explained the BLBA’s presumption,
elements, and proof burdens this way:
Energy W. Mining Co., 857 F.3d at 822. With this legal framework in mind,
we next turn to Fossat’s history of working in coal mines and his health
conditions.
5 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 6
II
A
Fossat was sixty-seven years old when he filed his claim for BLBA
benefits in 2013. He had worked as a coal miner for twenty-four years, from
1970 to 1994, ten years below ground and fourteen years above ground. Over
the course of his career, he held various roles, including as a timber man,
miner helper, miner operator, shop mechanic, longwall mechanic, and
finally, as a tipple mechanic. Throughout this time, he worked at the same
underground coal mine in Utah, although four different companies owned
the mine over this period. He left his last job as a tipple operator when the
mine, which was then operated by Sunnyside, shut down in 1994. All of
Fossat’s positions as a coal miner were dusty. When he filed the claim,
Fossat provided in his application that he had a terrible cough for many
years and was on oxygen during the day and night to improve his breathing.
Fossat smoked cigarettes “off and on since 1966, from a half pack a
day up to a pack and a half a day . . . .” Aplt. App’x I at 206. When he was
deposed for this claim in February 2014, he testified that he last smoked
six months prior, and it had been four or five years since he smoked
regularly. He quit smoking after he was hospitalized with a heart problem.
After he left his job at the coal mine in 1994, Fossat held several part-
time jobs. He stopped working completely in 2004 when he started to receive
6 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 7
Social Security Disability because of back, knee, and shoulder problems.
After he left the coal mines, Fossat did not think he could continue to do his
job because his breathing problems prohibited it. According to Fossat, even
when he stopped smoking, his breathing problems persisted and stayed the
same.
After filing for BLBA benefits in 2013, Fossat underwent OWCP-
sponsored medical testing, as well as testing requested by Sunnyside. At
issue on appeal are Sunnyside’s requested evaluations from Dr. Robert
Farney (Dr. Farney) and Dr. David Rosenberg (Dr. Rosenberg) and the
OWCP-sponsored evaluation from Dr. Shane D. Gagon (Dr. Gagon). A
summary of the medical evidence is as follows.
1. Dr. Gagon. Dr. Gagon examined Fossat on September 7, 2013,
at the OWCP’s request. He was aware of Fossat’s employment history and
the physical demands of his last coal mine job and concluded Fossat could
not perform this job. Dr. Gagon conceded that the percentage of Fossat’s
symptoms caused by coal dust versus smoking or obesity was a guess.
In addition to Dr. Gagon’s opinions, the OWCP’s medical evidence
included arterial blood gas studies to measure Fossat’s “lungs’ ability to
oxygenate blood,” a pulmonary function study to “measure impairment of
lung function and any obstruction in the lungs’ airways,” and chest x-rays
to detect pneumoconiosis. Aplt. App’x I at 206–08. Fossat’s carbon dioxide
7 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 8
levels measured by the arterial blood gas studies qualified him for black
lung benefits, regardless of the elevation at which he was tested.4 See App’x
C to 20 C.F.R. § 718. Fossat’s pulmonary function study also qualified him
for benefits, although the ALJ would later determine the study was not
valid, ostensibly because “flow versus loop volumes showed a little bit of
erratic effort” from Fossat. Aplt. App’x I at 207, 229.
As for the x-rays, some of the readings qualified while others did not.
The ALJ provided two charts summarizing the x-ray readings, as well as a
footnote explaining the varying qualifications to read x-rays, namely, board-
certification in radiology or examination with the National Institute for
Occupational Safety and Health.
2. Dr. Farney. One of Sunnyside’s doctors, Dr. Farney, examined
Fossat on March 13, 2014. “Dr. Farney thought that [Fossat] would be in
the same position if he had not worked in the mines,” id. at 215, and that
his “disabling respiratory impairment and other conditions did not arise in
whole or in part from his coal mine employment or coal dust exposure,” id.
at 213. Dr. Farney also stated that “if you’re going to get a disease is [sic]
4 Appendix C to 20 C.F.R. § 718 provides three tables setting the qualifying oxygen levels for particular carbon dioxide levels: one for arterial blood-gas studies performed up to 2,999 feet above sea level; another for 3,000 to 5,999 feet above sea level; and a third for 6,000 feet or higher above sea level. For all three tables, if a miner’s carbon dioxide level is above 50, any oxygen level is qualifying. App’x C to 20 C.F.R. § 718. 8 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 9
probably the exposure that you have the most exposure to, which in his case
was clearly tobacco smoke.” Id. at 214. “Dr. Farney felt that it was possible
for [Fossat] to have lung disease related to coal dust exposure, but he
thought the risk was relatively low” given the amount of time Fossat worked
underground. Id. He further opined that “it was highly improbable to have
coal dust related disease emerge years after stopping work otherwise.” Id.
at 236.
3. Dr. Rosenberg. Sunnyside also requested Dr. Rosenberg review
Fossat’s medical records, and he produced a report dated April 7, 2014. He
concluded that Fossat did not have a totally disabling respiratory
impairment from a primary pulmonary problem but nonetheless concluded
that Fossat was disabled. Dr. Rosenberg stated that “the development of
obstruction due to coal dust exposure after a miner leaves the mines is rare
. . . .” Id. at 239. He further explained that although a combined effect of
cigarette smoke and coal dust was possible, for Fossat, his coal dust
exposure “would not be expected to have contributed any significant
additive effect on the adverse effects from cigarette smoking.” Id. at 221.
9 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 10
B
Before the ALJ,5 Sunnyside stipulated to Fossat’s completion of
fifteen years of coal mine employment but contested whether Fossat was
totally disabled due to pneumoconiosis arising out of his coal mine
employment. Sunnyside also objected to the admission of a supplemental
report from Dr. Gagon that the OWCP obtained pursuant to an OWCP pilot
program in which the physician who conducted the initial OWCP-sponsored
evaluation rebuts medical evidence presented by an employer.
The ALJ admitted the supplemental report and concluded that Fossat
was totally disabled based on Fossat’s qualifying arterial blood gas studies
and the medical opinions of Drs. Gagon and Farney. The ALJ further
concluded that Sunnyside failed to disprove legal pneumoconiosis or
establish that no part of Fossat’s respiratory disability was due to coal dust.
Thus, Sunnyside failed to rebut the presumption, and Fossat was awarded
benefits.
5 Fossat filed for benefits in 2013, and the OWCP issued a proposed
decision awarding benefits in 2015. Sunnyside requested a hearing, and an ALJ then awarded benefits. Sunnyside appealed that decision to the Board. Following a remand to the original ALJ and another Sunnyside appeal to the Board (for reasons not relevant to this appeal), the matter was finally remanded to ALJ Evan H. Nordby, who issued the decision at issue in this petition for review. 10 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 11
Following the ALJ’s decision, Fossat passed away, and his widow
pursued his claim on behalf of his estate. Sunnyside appealed to the Board
but later requested the appeal be dismissed as premature because Fossat
had moved for the ALJ to amend his award onset date. The ALJ granted the
motion, Sunnyside appealed to the Board again, and the Board affirmed.
The Board did not address whether the ALJ erred in admitting Dr. Gagon’s
supplemental report, reasoning that Fossat also established total disability
through Dr. Farney’s opinion. Sunnyside then filed a petition for review
with this Court.
III
For questions of law, we review the Board’s decision de novo. Antelope,
743 F.3d at 1341. We give no deference to the Board’s interpretation of the
statute, the BLBA. Lukman v. OWCP, 896 F.2d 1248, 1251 (10th Cir. 1990).
Neither is the OWCP’s interpretation of statutes entitled to deference.
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2261 (2024).
For questions of fact, our review is formally of the Board’s decision,
but we focus our analysis on the factual findings of the ALJ. Energy W.
Mining Co., 857 F.3d at 822. “[W]e do not reweigh the evidence,” and it is
“the sole province of the ALJ” to weigh conflicting medical evidence. Spring
Creek Coal Co. v. McLean ex rel. McLean, 881 F.3d 1211, 1217 (10th Cir.
11 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 12
2018) (quoting Antelope, 743 F.3d at 1341). We refrain from doing so
because “[w]here medical professionals . . . disagree[], the trier of fact is in
a unique position to determine credibility and weigh the evidence.”
Antelope, 743 F.3d at 1341 (alterations in original) (quoting Hansen v.
OWCP, 984 F.2d 364, 370 (10th Cir. 1993)).
As such, our judicial review is “limited” to whether, based on the
record as a whole, “substantial evidence supports the factual findings of the
ALJ.” Spring Creek, 881 F.3d at 1217 (quoting Westmoreland Coal Co. v.
Stallard, 876 F.3d 663, 668 (4th Cir. 2017)). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Hansen, 984 F.2d at 368 (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
When we review the language of a statute, it “is not merely an exercise
in ascertaining ‘the outer limits of [a word’s] definitional possibilities.’” FCC
v. AT&T Inc., 562 U.S. 397, 407 (2011) (alteration in original) (quoting
Dolan v. Postal Serv., 546 U.S. 481, 486 (2006)). “A fundamental canon of
statutory construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common meaning.”
Perrin v. United States, 444 U.S. 37, 42 (1979).
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Context is also important. A word “gathers meaning from the words
around it.” Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961)
(explaining “[t]he maxim noscitur a sociis, that a word is known by the
company it keeps, while not an inescapable rule, is often wisely applied
where a word is capable of many meanings in order to avoid the giving of
unintended breadth to the Acts of Congress”). “A provision that may seem
ambiguous in isolation is often clarified by the remainder of the statutory
scheme . . . because the same terminology is used elsewhere in a context
that makes its meaning clear . . . or because only one of the permissible
meanings produces a substantive effect that is compatible with the rest of
the law . . . .” United Sav. Assoc. of Tex. v. Timbers of Inwood Forest Assocs.,
Ltd., 484 U.S. 365, 371 (1988).
“[T]wo well-settled principles of statutory interpretation” are (1) that
“Congress generally acts intentionally when it uses particular language in
one section of a statute but omits it in another,” and (2) that “we are
hesitant to adopt an interpretation of a congressional enactment which
renders superfluous another portion of that same law.” Republic of Sudan
v. Harrison, 587 U.S. 1, 12 (2019) (first quoting Dep’t of Homeland Sec. v.
MacLean, 574 U.S. 383, 391 (2015); and then quoting Mackey v. Lanier
Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988)). The broader
statute may also inform a term’s meaning because “there is a presumption
13 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 14
that a given term is used to mean the same thing throughout a statute, a
presumption [that is] surely at its most vigorous when a term is repeated
within a given sentence.” Mohamad v. Palestinian Auth., 566 U.S. 449, 456
(2012) (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)).
After conducting this analysis, if the text of the statute is clear,
“reliance on legislative history is unnecessary.” Id. at 458–59 (quoting
Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n.3
(2010)).
With these legal principles in mind, we turn to the merits of the
appeal. Sunnyside argues: (1) Fossat does not qualify for the rebuttable
presumption based on fifteen years of work in an underground coal mine
because Fossat was not underground for at least fifteen years, and (2) as
such, Fossat must show the conditions of his above-ground employment
were substantially similar to the conditions of an underground coal mine.
Starting with his first proposition, at issue is whether Fossat’s
employment constitutes fifteen years of work in an underground coal mine.
As previously stated, Fossat worked as a coal miner for twenty-four years,
ten years below ground and fourteen years above ground. For purposes of
the rebuttal presumption, “‘coal mine’ means an area of land and all
structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels,
14 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 15
excavations, and other property, real or personal, placed upon, under, or
above the surface of such land by any person . . . .” 30 U.S.C. § 802(h)(2).
Thus, contrary to Sunnyside’s assertions, the BLBA’s definition of a coal
mine, which applies to all coal mines, includes structures upon or above the
surface.
Sunnyside’s reading also improperly implies that while Fossat was
below ground, his employment was in an underground coal mine, but while
he was above ground, his employment was in a coal mine other than an
underground mine. Yet Fossat worked at a single mine throughout his
employment; one mine did not become two simply because Fossat was above
ground for part of his employment there. Neither does the nature of the
mine — surface or underground — change depending on Fossat’s location.
See Carcieri v. Salazar, 555 U.S. 379, 391 (2009) (A word’s “susceptibility
. . . to alternative meanings” “‘does not render the word . . . ambiguous,’
particularly where ‘all but one of the meanings is ordinarily eliminated by
context.’” (quoting Deal v. United States, 508 U.S. 129, 131–32 (1993)).
Sunnyside likewise argues that Congress’s use of the preposition “in”
within the rebuttable presumption provision shows that Fossat must be
underground to qualify for the rebuttable presumption without a showing
of substantial similarity in conditions. See 30 U.S.C. § 921(c)(4) (If a miner
“was employed for fifteen years or more in one or more underground coal
15 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 16
mines, and . . . if other evidence demonstrates the existence of a totally
disabling respiratory or pulmonary impairment, then there shall be a
rebuttable presumption that such miner is totally disabled due to
pneumoconiosis.” (emphasis added)). However, the substantially similar
provision found in the same sub-section, which applies to surface miners,
provides for “a miner’s employment in a coal mine other than an
underground mine.” Id. (emphasis added). The BLBA uses the word “in,”
therefore, to refer to miners who work at surface mines. Given the
“presumption that a given term is used to mean the same thing throughout
a statute,” the preposition “in” does not preclude above-ground miners
working in an underground coal mine from qualifying for the rebuttable
presumption without a showing of substantial similarity. See Mohamad,
566 U.S. at 456 (quoting Brown, 513 U.S. at 118); 30 U.S.C. § 921(c)(4).
Such an understanding of the word “in” is consistent with the ordinary
and common meaning of “in” when “used as a function word to indicate
location or position in space or in some materially bounded object.” In,
Websters Third New International Dictionary 1139 (Philip Babcock Gove
ed., 1971); see Perrin, 444 U.S. at 42 (“A fundamental canon of statutory
construction is that, unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.”). In this context,
“in” indicates Fossat’s position within the bounds of a coal mine, including
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“an area of land and all structures, facilities, machinery, tools, equipment,
shafts, slopes, tunnels, excavations, and other property, real or personal,
placed upon, under, or above the surface of such land by any person . . . .”
30 U.S.C. § 802(h)(2) (emphasis added).6 Thus, Fossat proved he was
employed for fifteen years or more in one or more underground coal mines.
Although we could rest our opinion solely upon the reading of the
statute set forth above, a review of the legislative purpose of the BLBA,
even if unnecessary, also supports our reading of the statute. This Court
has determined that Congress’s purpose in enacting the BLBA, including
the causation standard used to rebut the presumption, is “broad[ly]
remedial” and that “because the BLBA ‘is intended to be remedial in nature,
. . . doubts should be resolved in favor of the disabled miner or his or her
survivors.’” Consolidation Coal Co. v. OWCP, 864 F.3d 1142, 1151 (10th Cir.
2017) (second alteration in original) (quoting Bridger Coal Co. v. OWCP,
6 Relying on Chevron, U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837 (1984), the Fourth and Sixth Circuits have held that the regulatory definition of an underground coal mine is reasonable. Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1058 (6th Cir. 2013); Kanawha Coal Co. v. OWCP, 539 F. App’x 215, 218 (4th Cir. 2013). The Board, in a decision pre-dating Chevron, has also determined that the regulatory definition is consistent with the statute. Alexander v. Freeman United Coal Mining Co., 2 Black Lung Rep. (Juris) 1-501–02 (Ben. Rev. Bd. 1974). In reaching our decision, we do not rely on Chevron, which has been overruled by Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). 17 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 18
669 F.3d 1183, 1190 (10th Cir. 2012)). Our understanding of Congress’s
purpose in passing the law is verified by a Senate Report from the Labor
and Public Welfare Committee commenting on a piece of legislation earlier
passed by the House of Representatives. The Senate Report states:
Under the current law, the miners who have worked their entire adult lives at above ground facilities of an underground coal mine are eligible for benefits if they are totally disabled by coal miners pneumoconiosis but those who may have worked their entire adult lives at even dustier above ground facilities of surface mines are not eligible, even if they have complicated pneumoconiosis. This is grossly unfair and was not intended by the legislation passed by the Senate in 1969. The first Black Lung Benefits legislation, approved by a roll call vote of 90-0 in the Senate would have applied to all coal miners. Unfortunately, that provision was lost in the conference of the two Houses. The Committee amendment remedies this unfair treatment.
Where the possibility of the disease exists, a miner should not be denied the benefits of the black lung program because of circumstance—simply because he has always worked above the ground rather than below it. This provision would correct the inequity by striking the word ‘underground’ from the present law, so that the program would apply to all coal miners, regardless of the physical characteristics of the mine.
S. Rep. No. 92-743, at 2305, 2326–27 (1972).
This excerpt indicates the Senate’s awareness of the benefits afforded
to miners working physically above ground at an underground coal mine in
comparison with miners working at surface mines. Congress’s response was
not to take away the benefits to miners working physically above ground at
an underground coal mine. Rather, Congress made miners working at
18 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 19
surface mines also eligible for benefits. As such, the legislative purpose
supports our reading of the statute, which in turn renders a decision in
favor of Fossat on this question.
C
Regarding the disability argument, Sunnyside stipulated to Fossat’s
completion of fifteen years of coal mine employment but contested whether
Fossat was totally disabled due to pneumoconiosis arising out of his coal
mine employment. The ALJ concluded that Fossat was totally disabled
based on the arterial blood gas studies and the medical opinions of
Drs. Gagon and Farney.
Sunnyside’s arguments taking issue with the ALJ’s application of the
rebuttable presumption likewise fail. First, Fossat need not show regular
dust exposure to qualify for the fifteen-year presumption. A showing of
substantial similarity in conditions is only necessary for a miner employed
in a coal mine other than an underground coal mine, see 30 U.S.C.
§ 921(c)(4), which we disposed of in the preceding section.
Second, the ALJ did not impermissibly place the burden of
establishing total respiratory disability on Sunnyside, thereby creating a
“non-existent disability presumption.” Aplt. Br. at 44. A review of the ALJ’s
decision shows that he was merely citing a regulation regarding how a
19 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 20
miner may establish total disability. See 20 C.F.R. § 718.204(b)(2) (“In the
absence of contrary probative evidence, evidence which meets the standards
of either paragraphs (b)(2)(i) [pulmonary function tests], (ii) [arterial blood-
gas tests], (iii) [cor pulmonale with right-sided congestive heart failure], or
(iv) [physician’s conclusion that a respiratory or pulmonary condition
precludes employment] of this section shall establish a miner’s total
disability.”). In addition, the ALJ twice stated that a claimant bears the
burden of establishing total disability. The ALJ also correctly applied that
burden when he determined that (1) all the arterial blood gas studies
produced qualifying values, (2) multiple physicians provided the opinion
that Fossat was unable to work, and (3) Dr. Farney opined Fossat was
disabled from work due to his respiratory condition.
Turning now to the supplemental medical report. To start, we reiterate
that our precedent provides that this Court’s review includes whether the legal
conclusions of the Board and the ALJ are “rational and consistent with the
applicable law.” Spring Creek, 881 F.3d at 1217 (quoting Westmoreland,
876 F.3d at 668). Sunnyside is incorrect, therefore, that the OWCP’s
arguments regarding the supplemental report should be based on the ALJ’s
decision only. The OWCP is permitted to make arguments based on, and by
consequence seek judicial review of, the Board’s decision as well.
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Our precedent also provides that when reviewing the decisions of the
Board and the ALJ, we consider harmless error. Antelope, 743 F.3d at 1347.
We have stated as follows:
We do not decide whether the rebuttal limitations apply to [the coal company] because any error in the ALJ’s invocation of the rebuttal limitations was harmless. See 5 U.S.C. § 706(2)(F) (“[D]ue account shall be taken of the rule of prejudicial error.”) . . . . After careful review of the record and the ALJ’s opinion and reasoning, we conclude the rebuttal limitations did not affect the outcome. The ALJ did not limit [the coal company’s] evidence, and any alleged error was harmless because [the claimant] would have prevailed even without the rebuttal limitations.”
Id. at 1347–48.
Because the ALJ’s conclusions were supportable without the
supplemental report, the Board did not address on the merits whether the
ALJ erred in admitting the supplemental report. Notably, Sunnyside does
not proffer any argument that the ALJ relied on something in the
supplemental report that was not supported by other evidence. Rather,
without citing any authority, it argues that “the ‘harm’ inquiry centers on
the failed agency process, itself,” and that “when an agency disenfranchises
stakeholders like Sunnyside by dispensing with APA formalities, the
resulting prejudice is innate, obvious, and undeniable.” Reply Br. at 22. But
that is not the legal standard; in fact, any alleged error is harmless if the
claimant would have prevailed regardless. Antelope, 743 F.3d at 1348.
21 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 22
Such is the case here, where Dr. Farney determined that Fossat had
a totally disabling respiratory or pulmonary impairment. In other words,
even without the report, the outcome is the same. Because the ALJ’s
conclusions were supportable without the supplemental report, we need not
address whether the supplemental report was authorized by the regulations
or violated the Administrative Procedure Act.
We agree with the ALJ’s conclusions that Sunnyside failed to
(1) disprove legal pneumoconiosis or (2) establish that no part of Fossat’s
respiratory disability was due to coal dust. We reemphasize that “we do not
reweigh the evidence,” and it is “the sole province of the ALJ” to weigh
conflicting medical evidence. Spring Creek, 881 F.3d at 1217 (quoting
Antelope, 743 F.3d at 1341). Our judicial review is “limited” and pertains to
whether, based on the record as a whole, “substantial evidence supports the
factual findings of the ALJ.” Id. (quoting Westmoreland, 876 F.3d at 668).
Accordingly, we will not address Sunnyside’s arguments that ask us to
reweigh the evidence, namely, those regarding Dr. Rosenberg’s methods
and conclusions; the x-ray readings; and the ALJ’s discussions of the
additive effects of coal dust and cigarette smoke, the use of general
statistics, and the preamble to the BLBA regulations. Finally, we will not
address Sunnyside’s issues with the ALJ’s analysis of Dr. Gagon’s opinions
22 Appellate Case: 23-9517 Document: 010111093839 Date Filed: 08/13/2024 Page: 23
because total disability was also established by Dr. Farney and the arterial
blood gas studies. These studies showed high enough carbon dioxide levels
to qualify at any elevation, see App’x C to 20 C.F.R. § 718:
Aplt. App’x I at 208. The above table is the ALJ’s summary of the arterial
blood gas studies, all of which established Fossat’s disability. The ALJ also
provided in his evidentiary summary and legal discussion that Dr. Farney,
Sunnyside’s expert, concluded Fossat was disabled from work due to his
respiratory failure. Id. at 213, 229. The ALJ’s conclusion that Fossat was
disabled was supported by substantial evidence, and the remainder of
Sunnyside’s arguments asks us to reweigh the evidence — a task beyond
our limited role. See Spring Creek, 881 F.3d at 1217.
IV
The petition for review is DENIED.