Toler's Creek Energy, Inc. v. OWCP

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 28, 2025
• Docket: 24-3245
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0042n.06

No. 24-3245

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 28, 2025 KELLY L. STEPHENS, Clerk ) TOLER'S CREEK ENERGY, INC., ) Petitioner, ) ON PETITION FOR REVIEW ) v. FROM THE BENEFITS ) REVIEW BOARD ) DIRECTOR, OFFICE OF WORKERS’ ) COMPENSATION PROGRAMS, U.S. OPINION ) DEPARTMENT OF LABOR, et al., ) Respondents. ) )

BEFORE: COLE, WHITE, and MATHIS, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Petitioner Toler’s Creek Energy, Inc. (Toler’s

Creek) petitions this court to review the Benefits Review Board’s (the Board) decision affirming

an administrative law judge’s award of benefits under the Black Lung Benefits Act (BLBA). We

DENY the petition.

I.

In August 2017, claimant Harold G. Howell (Howell) filed a claim under the Black Lung

Benefits Act, 30 U.S.C. §§ 901-944. The district director issued a proposed decision and order

awarding benefits and, after Toler’s Creek appealed, referred the claim to the Office of

Administrative Law Judges (OALJ). In February 2020, an Administrative Law Judge (ALJ) issued

a decision and order remanding the claim to the district director. The district director referred

Howell’s case to the OALJ a second time, and it was assigned to ALJ Joseph E. Kane. No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

A.

ALJ Kane was presented with inconsistent evidence of Howell’s smoking history, with one

doctor recording up to two packs of cigarettes per day for forty-two years, another doctor recording

one-half to one pack of cigarettes per day for forty-five years, and treatment records showing three

packs per day for forty years. ALJ Kane determined that Howell smoked between 22.5 and 120

pack-years.1 He also found that Howell worked as a coal miner for 10.22 years and that Howell

had a total pulmonary disability and legal pneumoconiosis, defined as “any chronic lung disease

or impairment and its sequelae arising out of coal mine employment.” (JA 175-82).

In determining that Howell had legal pneumoconiosis, ALJ Kane considered the opinions

of three medical doctors. Dr. Michael Green diagnosed Howell with severe hypoxemia and

chronic obstructive pulmonary disease (COPD). He concluded that both smoking and coal-mine

dust caused these illnesses:

This gentleman has a 42 year history of cigarette smoking up to 2 packs per day. This gentleman has a 9.5 year occupational history of exposure to respirable coal and rock dust. The 42 year history of cigarette smoking up to 2 packs-per-day is a significant factor in the consideration of chronic obstructive pulmonary disease. One cannot eliminate the 9.5 year occupational history of exposure to respirable coal and rock dust as contributing at least in part to the findings of this gentleman’s significant and severe chronic airflow obstruction. This gentleman’s chronic airways disease is very severe. Even the lesser contribution from this gentleman’s occupational history would be a significant consideration given the severe degree of this gentleman’s overall airflow obstruction. I cannot eliminate this gentleman’s 9.5 year occupational history of exposure to respirable coal and rock dust as contributing at least in part to this gentleman’s severe chronic airflow obstruction and his total pulmonary disability and significant findings of hypoxemia as a result.

(Id. at 13). ALJ Kane found that Dr. Green’s opinion was “well-reasoned, well-documented, and

entitled to probative weight.” (Id. at 179).

1 Pack-years are “calculated by multiplying the number of packs of cigarettes smoked per day by the total number of years an individual smoked.” Huscoal, Inc. v. Dir., Off. of Workers’ Comp. Programs, 48 F.4th 480, 486 (6th Cir. 2022). -2- No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

Dr. Abdul Dahhan diagnosed Howell with an obstructive ventilatory impairment, but he

concluded that Howell’s coal-mine exposure was insufficient to cause this condition given the

length of his coal-mine employment and the fact that his coal-mine-dust exposure ceased in 1993.

He thus determined that Howell’s smoking, rather than his coal-mine-dust exposure, caused his

obstructive ventilatory impairment. ALJ Kane concluded that these statements were unpersuasive

because Howell did not need to show that his illness was entirely attributable to coal-mine-dust

exposure in order to establish legal pneumoconiosis. He noted that the preamble to the relevant

regulations explains that “COPD caused by coal dust exposure is legal pneumoconiosis, which, by

its nature, is latent and progressive”—meaning that some amount of exposure many years ago

could have partially caused Howell’s illness. (Id. at 180); see 65 Fed. Reg. 79970 (Dec. 20, 2000)

(discussing how research findings have shown that some former coal miners developed

pneumoconiosis years after leaving the mining industry). As a result, ALJ Kane gave Dr. Dahhan’s

opinion little probative weight.

Dr. Thomas Jarboe diagnosed Howell with a severe obstruction caused by cigarette

smoking and asthma. He stated that coal-mine-dust exposure does not cause reversible airway

disease, which Howell had, but rather causes a fixed impairment. He also opined that the most

compelling evidence that Howell’s illness was caused by smoking, rather than coal-mine-dust

exposure, was the disparity between his heavy smoking history and his relatively minimal coal-

mine-dust exposure. He stated that there was less than a two percent chance that the amount of

coal-mine-dust exposure Howell experienced would cause an impairment as severe as Howell’s.

ALJ Kane concluded that Dr. Jarboe’s opinion was contrary to the Department of Labor’s finding

that the effects of smoking and coal-mine-dust exposure are additive causes of respiratory

illnesses. He also noted that the Board has held that an ALJ may discount opinions focused on

-3- No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

statistics rather than the claimant’s specific condition. Additionally, he explained that although

Dr. Jarboe determined that Howell’s impairment was reversible due to changes in pulmonary

function test results from December 2017 to September 2018, both of those tests showed

impairment. As a result, he gave Dr. Jarboe’s opinion little probative weight.

Although ALJ Kane found legal pneumoconiosis, he determined that the evidence failed

to establish clinical pneumoconiosis, defined as “the conditions characterized by permanent

deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the

lung tissue to that deposition caused by dust exposure in coal mine employment.” (JA 175, 177).

He explained that x-ray evidence failed to establish clinical pneumoconiosis because the

designated x-rays were inconclusive as to pneumoconiosis, and the treatment records lacked a

radiologist’s opinion on the presence or absence of pneumoconiosis. He discounted Dr. Green’s

opinion that Howell had clinical pneumoconiosis because Dr. Green based this opinion on another

doctor’s reading of one of Howell’s x-rays but did not review any of the other x-rays of record,

which ALJ Kane found were inconclusive as to pneumoconiosis. ALJ Kane also noted that his

conclusion that the x-ray evidence did not establish clinical pneumoconiosis aligned with Dr.

Jarboe’s opinion that the x-ray evidence was equivocal. Dr. Dahhan did not provide an opinion

on whether Howell had clinical pneumoconiosis.

Having found that Howell had legal pneumoconiosis and that his coal-mine employment

was a contributing cause of it, ALJ Kane determined that Howell was entitled to benefits under

the BLBA.

B.

On appeal before the Board, Toler’s Creek argued that ALJ Kane erred in determining

Howell’s smoking history and finding that he established legal pneumoconiosis. Toler’s Creek

-4- No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

first argued that ALJ Kane erred in weighing the doctors’ opinions. The Board, however, found

that ALJ Kane permissibly discredited Dr. Dahhan’s opinion because Dr. Dahhan failed to explain

why both coal-mine dust and smoking could not have caused Howell’s illness. It further found

that ALJ Kane permissibly discredited Dr. Jarboe’s opinion because Dr. Jarboe failed to address

the fact that Howell’s pulmonary-function studies suggested a fixed component to his impairment.

And Dr. Jarboe failed to explain how coal-mine dust could not have contributed to Howell’s

impairment in addition to smoking. Toler’s Creek also argued that the ALJ applied the regulations’

preamble as a binding regulatory rule or used it to create new agency rules or regulations. The

Board disagreed, explaining that ALJ Kane “found [Dr. Dahhan and Dr. Jarboe’s] opinions

inadequately explained for several reasons and in so doing permissibly consulted the preamble as

a statement of medical research findings accepted by the Department of Labor.” (Id. at 192).

The Board ultimately affirmed ALJ Kane’s conclusion that Howell had legal

pneumoconiosis, finding that it was supported by substantial evidence, and affirmed the award of

benefits. This petition for review followed.

II.

This court reviews the Board’s legal conclusions de novo. Big Branch Res., Inc. v. Ogle,

737 F.3d 1063, 1068 (6th Cir. 2013). In so doing, it corrects errors of law and determines whether

the ALJ’s decision was supported by substantial evidence. Cumberland River Coal Co. v. Banks,

690 F.3d 477, 482 (6th Cir. 2012). “Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Peabody Coal Co. v. Groves, 277 F.3d

829, 833 (6th Cir. 2002) (quoting Cross Mountain Coal, Inc. v. Ward, 93 F.3d 211, 216 (6th Cir.

1996)). It is “more than a scintilla” and must create more than just “a suspicion of the existence

of the fact to be established.” Hoxie v. Drug Enf’t Admin., 419 F.3d 477, 482 (6th Cir. 2005).

-5- No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

Toler’s Creek first argues that ALJ Kane erred in finding that the evidence proved legal

pneumonoconiosis. Specifically, Toler’s Creek takes issue with ALJ Kane’s reliance on the

Preamble’s statement that “COPD caused by coal dust exposure is legal pneumoconiosis, which,

by its nature, is latent and progressive.” (JA 180 (citing 65 Fed. Reg. 79,920, 79,939 (Dec. 20,

2000); 20 C.F.R. § 718.201)). Toler’s Creek asserts that in relying on this statement to discount

Dr. Dahhan’s conclusion that Howell’s coal-mine-dust exposure was too minimal to cause his

impairment, ALJ Kane “improperly use[d] the Preamble to create new agency rules or

regulations,” including:

1. Effects of smoking and coal dust are always additive; 2. Medical opinions focused on generalities or statistics, rather than miner’s specific condition, are always less reliable and contrary to the agency position in the preamble; 3. There remained a “qualifying” obstruction to airflow and that a physician must eliminate the “finding of legal pneumoconiosis”; and 4. Physicians that do not find contribution from coal dust “ignored” the exposure.

(Petitioner’s Br. 9). But ALJ Kane did not treat the Preamble as a binding rule or regulation, nor

did he use it to create new agency rules or regulations. Rather, he “simply looked to the preamble,

in addition to the applicable regulations, to assess [the doctors’] credibility.” A & E Coal Co. v.

Adams, 694 F.3d 798, 801-02 (6th Cir. 2012). This court has determined that using the Preamble

in this way is permissible. Id.; see also Wilgar Land Co. v. Dir., Off. of Workers’ Comp. Programs,

85 F.4th 828, 838 (6th Cir. 2023). Accordingly, ALJ Kane’s reliance on the preamble does not

necessitate a finding that the Board erred in upholding his decision.

Toler’s Creek also asserts that Dr. Green did not adequately explain why Howell’s coal-

mine-dust exposure could not be eliminated as a factor in causing his illness. To the contrary, Dr.

Green explained that his conclusion was based on the severity of Howell’s illness: “[Howell]’s

-6- No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

chronic airways disease is very severe. Even the lesser contribution from this gentleman’s

occupational history would be a significant consideration given the severe degree of this

gentleman’s overall airflow obstruction.” (JA 13). Dr. Green’s explanation was not inadequate

and does not compel a finding that the Board’s decision was erroneous.

Finally, Toler’s Creek contends that ALJ Kane did not address how Dr. Green’s finding of

clinical pneumoconiosis, which ALJ Kane rejected, affected his finding of legal pneumoconiosis,

with which ALJ Kane agreed. But the Board’s failure to address this gap in ALJ Kane’s analysis

does not require us to conclude that its decision was erroneous. Indeed, the question is whether

ALJ Kane’s conclusion was supported by substantial evidence. See Cumberland River Coal Co.,

690 F.3d at 482. And because the severity of Howell’s illness supported a finding that his coal-

mine-dust exposure contributed to it, substantial evidence supported ALJ Kane’s finding of legal

pneumoconiosis.

Toler’s Creek also asserts that we must remand Howell’s claim because the conflicting

reports on Howell’s smoking history resulted in an excessively broad pack-year calculation of 22.5

to 120 pack-years. In support of its argument, Toler’s Creek cites Grayson Coal & Stone Co., Inc.

v. Teague, 688 F. App’x 331, 335-36 (6th Cir. 2017), in which this court concluded that the ALJ

was not required to make a more specific finding regarding the claimant’s smoking history when

conflicting reports resulted in a calculation of 10 to 12.5 pack-years. Id. at 336. To be sure, the

pack-years range in this case is much wider than that in Grayson Coal, but nothing in ALJ Kane’s

opinion suggests that his conclusions about whether coal-mine-dust exposure partially caused

Howell’s illness would differ based on where Howell’s smoking history fell within that range.

Indeed, the fact that ALJ Kane described Howell’s smoking history as “significant to very

-7- No. 24-3245, Toler’s Creek Energy, Inc., v. Dir., Off. of Workers’ Comp. Programs

significant” (JA 168) suggests that calculations of 22.5 pack-years and 120 pack-years would have

yielded similar conclusions as to the causes of Howell’s illness.

Toler’s Creek also contends that ALJ Kane “attached his own medical finding” concerning

this range by finding that it was “significant to very significant.” (Petitioner’s Br., 29-30 (quoting

JA 168)). But ALJ Kane was permitted to draw a general conclusion as to how substantial

Howell’s smoking history was, and this conclusion does not constitute an improper medical

finding. Toler’s Creek further asserts that ALJ Kane ignored additional evidence regarding

Howell’s smoking history, including Dr. Jarboe’s finding of a 120 pack-year history; Dr. Jarboe’s

statement that smokers tend to underestimate the length of their smoking history; and the fact that,

although Howell claimed he stopped smoking in 2015 or 2016, blood tests showed exposure to

smoke in 2017 and 2018. But ALJ Kane relied on Dr. Green and Dr. Dahhan’s records of Howell’s

smoking history, as well as Howell’s treatment records, in calculating the pack-years range.

Additionally, ALJ Kane’s pack-years range includes Dr. Jarboe’s higher estimate of 120 pack-

years. Therefore, ALJ Kane’s analysis regarding Howell’s smoking history is supported by

substantial evidence, as is the Board’s decision upholding his conclusion.

III.

For the reasons set out above, we deny the petition for review.

-8-