Mingo Logan Coal Company v. Dallas Owen

Filing

AMENDING ORDER/OPINION filed [999323750] amending and superseding Published Authored Opinion [999162958-2] dated 07/31/2013. Originating case number: 11-0154 BLA. Copies to all parties. [11-2418]

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Filed:

March 26, 2014

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2418
(11-0154 BLA)

MINGO LOGAN COAL COMPANY,
Petitioner,
v.
ERMA JEAN OWENS, widow of DALLAS R. OWENS; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR,
Respondents.

O R D E R

The Court amends its opinion filed July 31, 2013, as
follows:
On page 21, fifth line of text, the sentence beginning
“In

sum”

is

corrected

to

read,

“In

sum,

we

conclude

that

although the Board announced a standard to rebut the § 921(c)(4)
presumption,

purportedly

restricting

rebuttal

methods

available

standard

was

in

not

fact

to

the

applied

Mingo

Logan

Secretary,
by

either

to

the

the

the

two

announced

ALJ

or

the

Board.”
For the Court – By Direction

/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2418

MINGO LOGAN COAL COMPANY,
Petitioner,
v.
ERMA JEAN OWENS, widow of DALLAS R. OWENS; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(11-0154 BLA)

Argued:

March 21, 2013

Decided:

July 31, 2013

Before NIEMEYER, DAVIS, and DIAZ, Circuit Judges.

Petition for review denied by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Davis and Judge Diaz joined.
Judge Niemeyer wrote a separate concurring opinion.

ARGUED:
William Steele Mattingly, JACKSON KELLY, PLLC,
Morgantown, West Virginia, for Petitioner. John Crawford Cline,
Piney View, West Virginia; Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON
BRIEF:
Ashley M. Harman, Jeffrey R. Soukup, JACKSON KELLY,
PLLC, Morgantown, West Virginia, for Petitioner.
M. Patricia
Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor,
Sean G. Bajkowski, Counsel for Appellate Litigation, UNITED

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STATES DEPARTMENT
Respondent.

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OF

LABOR,

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Washington,

2

D.C.,

for

Federal

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NIEMEYER, Circuit Judge:
After nearly 30 years of coal mine employment, Dallas Owens
became totally disabled because of breathing difficulties, and
in April 2008, he filed a claim for black lung benefits.
Administrative

Law

triggered

rebuttable

the

Judge

(“ALJ”)

found

presumption

that

for

Owens’

benefits

An

claim

under

30

U.S.C. § 921(c)(4), available to miners who are totally disabled
and have worked 15 years or more in underground coal mines, and
that Mingo Logan Coal Company, Owens’ former employer, failed to
rebut the presumption.

The ALJ therefore awarded benefits to

Owens, and the Benefits Review Board affirmed.
On appeal, Mingo Logan contends that the ALJ and the Board
applied the wrong legal standard in evaluating whether it had
met

its

rebuttal

burden,

erroneously

limiting

it

to

the

two

methods that the text of the statute specifies are the only
means by which the Secretary may rebut the presumption.

See 30

U.S.C. § 921(c)(4) (providing, “The Secretary may rebut such
presumption only by establishing that (A) such miner does not,
or did not, have pneumoconiosis, or that (B) his respiratory or
pulmonary

impairment

did

not

arise

with, employment in a coal mine”).

out

of,

or

in

connection

Mingo Logan contends that

limiting it to these two methods of rebuttal violated not only
the

clear

language

of

§

921(c)(4),

which

makes

the

rebuttal

limitations applicable to the Secretary, but also the Supreme
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Court’s holding in Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 35 (1976) (construing the statute to place no limitations on
the

means

by

which

an

employer

may

satisfy

its

burden

on

rebuttal).
Both

Owens

and

the

Director

of

the

Office

of

Workers’

Compensation Programs argue that even though the statute does
not, by its terms, limit employers to the two specified methods
of rebuttal, logic does, and therefore the ALJ and the Board
articulated the correct legal standard.
We do not reach Mingo Logan’s challenge to the standard
announced by the Board to rebut the § 921(c)(4) presumption of
entitlement to benefits, because we conclude that the ALJ did
not in fact apply rebuttal limitations to Mingo Logan, and the
Board affirmed the ALJ’s analysis.

Because we also find that

Mingo Logan’s other challenges to the ALJ’s factual findings
lack

merit,

we

affirm

the

Board’s

award

of

benefits.

Accordingly, we deny Mingo Logan’s petition for review.

I
Owens worked in West Virginia coal mines for close to 30
years, beginning in 1974, and he spent the last 10 of those
years working in coal mines as an electrician for Mingo Logan
Coal Company.

He stopped working in 2003 when he developed

difficulty breathing, a problem that got worse with time.

4

In

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April 2008, Owens filed a claim under the Black Lung Benefits
Act,

which

awards

benefits

to

coal

disabled due to pneumoconiosis.
The

statute’s

implementing

pneumoconiosis

to

recognized

pneumoconiosis

as

include

miners

who

are

totally

See 30 U.S.C. § 901 et seq.
regulations

not

only

those

(“clinical

define

the

diseases

term

medically

pneumoconiosis”),

but

also “any chronic lung disease or impairment and its sequelae
arising out of coal mine employment” (“legal pneumoconiosis”).
20 C.F.R. § 718.201(a).
eligible

for

benefits

$1,048.10

a

month.

requested

a

formal

A claims examiner found that Owens was
and

ordered

Mingo

Logan

hearing

with

an

Mingo

Logan

contested
ALJ.

to

pay

him

award

and

hearing

was

the
The

conducted on December 9, 2009.
At

the

history

and

hearing,
his

prescribed oxygen.

Owens

breathing

testified
problems,

about

for

his

which

he

employment
had

been

He also testified that he had smoked about a

quarter of a pack of cigarettes a day when he was in his late
teens and early twenties but that he had not smoked since 1965.
In addition to Owens’ testimony, the parties introduced various
forms of medical evidence concerning his condition, including
(1) conflicting interpretations of two chest X-rays and three CT
scans;

(2)

the

results

from

pulmonary

function

tests

and

arterial blood gas studies; (3) notes of observations from two
of his treating physicians, Dr. Maria Boustani and Dr. Oscar
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Figueroa,

indicating

conflicting
Rasmussen

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medical

that

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Owens

had

pneumoconiosis;

opinions
by

(offered

from

Director),

the

three

physicians,
Dr.

and
Dr.

George

(4)
D.L.

Zaldivar

(offered by Mingo Logan), and Dr. Kirk Hippensteel (offered by
Mingo Logan), all three of whom agreed that Owens was totally
disabled

by

a

pulmonary

diagnosis and cause.
both

clinical

impairment

but

disagreed

as

to

its

Dr. Rasmussen diagnosed Owens as having

pneumoconiosis

and

interstitial

fibrosis

and

opined that both conditions were attributable to Owens’ exposure
to coal mine dust.
interstitial

Dr. Zaldivar diagnosed Owens with idiopathic

fibrosis

or,

in

his

words,

“an

interstitial

fibrosis of undetermined cause,” but unrelated to coal mining.
Dr. Hippensteel essentially reached the same conclusion, opining
that Owens’ “type of lung disease is a disease of the general
public unrelated to his prior coal mine dust exposure” and that
he “would be just as impaired by the same pulmonary problem had
he never worked in a coal mine.” ∗

∗

After the hearing but before the ALJ issued her decision,
Congress enacted the Patient Protection and Affordable Care Act
(“PPACA”), which contained a section amending the Black Lung
Benefits Act.
See Pub. L. No. 111-148, § 1556, 124 Stat. 119,
260 (2010).
As relevant here, for pending claims filed after
January 1, 2005, the PPACA reinstated a presumption that had
lapsed in 1982, specifying that a miner with at least 15 years
of underground coal mine employment who “demonstrates the
existence of a totally disabling respiratory or pulmonary
impairment” is entitled to a rebuttable presumption that he is
“totally
disabled
due
to
pneumoconiosis.”
30
U.S.C.
6

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In

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October

concluded

2010,

that

the

because

underground

coal

mine

established

that

he

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ALJ

Owens

awarded
had

employment

was

totally

Owens

more
and

benefits.

than

because

disabled

by

15

years

the
a

She
of

evidence

respiratory

impairment, the rebuttable presumption of § 921(c)(4) arose that
he was totally disabled due to pneumoconiosis.

The ALJ also

found that Mingo Logan did not rebut that presumption.

In this

respect, the ALJ considered seven interpretations of two chest
X-rays, giving more weight to the readings that interpreted the
films as positive for pneumoconiosis based on the physicians’
relative qualifications.

The ALJ also gave greater weight to

Dr. Rasmussen’s opinion as to the cause of Owens’ disability
than

to

the

opinions

offered

by

Dr.

Zaldivar

and

Dr.

Hippensteel, emphasizing that Dr. Rasmussen’s opinion was better

§ 921(c)(4). In response to the amendment, the ALJ reopened the
record to allow both parties an opportunity to submit new
evidence, and Mingo Logan submitted supplemental reports from
both Dr. Zaldivar and Dr. Hippensteel.
The
preexisting
regulation
that
implemented
former
§ 921(c)(4), 20 C.F.R. § 718.305, remains inapplicable by its
terms.
See 20 C.F.R. § 718.305(e) (providing that the
regulation “is not applicable to any claim filed on or after
January 1, 1982”).
The Department of Labor, however, asserts
that the substance of that regulation “remains the Department’s
definitive interpretation of Section 921(c)(4),” and it has
proposed a new version of the regulation, which has not yet gone
into effect.
See Regulations Implementing the Byrd Amendments
to the Black Lung Benefits Act:
Determining Coal Miners’ and
Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19,456
(proposed Mar. 30, 2012).
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supported by the objective medical evidence and “the opinions of
two pulmonary experts who treated [Owens],” while Dr. Zaldivar
and Dr. Hippensteel “chose to totally eliminate consideration of
[Owens’]

29

years

environmental
fibrosis.”
of

the

factor

of

coal

in

the

dust

exposure

development

of

as

a

potential

his

interstitial

The ALJ therefore concluded that “the preponderance

best

documented

and

reasoned

evidence

of

record

establishes the presence of clinical and legal pneumoconiosis.”
She also found that Dr. Zaldivar and Dr. Hippensteel’s diagnosis
of

idiopathic

establish

a

interstitial
cause

of

fibrosis

[Owens’]

workers’ pneumoconiosis].”

was

“not

disability

sufficient

other

than

to

[coal

She concluded, at bottom, that Mingo

Logan failed to rebut the § 921(c)(4) presumption.
The Benefits Review Board affirmed by a decision and order
dated October 28, 2011.

The Board concluded that the ALJ’s

findings were supported by substantial evidence and that the ALJ
properly explained her finding that the positive X-ray readings
outweighed the negative X-ray readings and “properly found that
Dr. Rasmussen’s opinion was better documented and reasoned than
the opinions of Drs. Zaldivar and Hippensteel.”
Mingo

Logan

filed

this

petition

for

review,

challenging

both the legal standard applied to its rebuttal evidence, as
well as the sufficiency of the analysis and the evidence.

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Owens died on July 8, 2012, but his widow continues to
pursue his claim on behalf of his estate.

II
Mingo Logan contends that the ALJ and the Benefits Review
Board applied the wrong legal standard in assessing whether it
rebutted the presumption established by 30 U.S.C. § 921(c)(4).
Under § 921(c)(4), if the miner shows that he worked 15 years or
more

in

totally

underground
disabling

rebuttable

coal

mines

respiratory

presumption

and
or

arises

that

suffers

pulmonary

that

disabled due to pneumoconiosis.”

he

the

from

impairment,

a

miner

“is

a

totally

In the absence of credible

rebuttal evidence, the miner would then be entitled to benefits.
In its opinion affirming the ALJ’s award of benefits, the
Board

stated

that

Mingo

Logan

could

rebut

the

§ 921(c)(4)

presumption only by showing either (1) that Owens did not have
pneumoconiosis

or

(2)

that

his

respiratory

or

pulmonary

impairment did not arise out of, or in connection with, his coal
mine employment.
the

statutory

In support of this statement, the Board cited
language:

“The

Secretary

may

rebut

such

presumption only by establishing that (A) such miner does not,
or did not, have pneumoconiosis, or that (B) his respiratory or
pulmonary

impairment

did

not

arise

with, employment in a coal mine.”

9

out

of,

or

in

connection

30 U.S.C. § 921(c)(4).

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Mingo Logan argues that the Board improperly applied to it
the rebuttal limitations of § 921(c)(4) even though the plain
text

shows

that

those

limitations

apply

“Secretary” seeks to rebut the presumption.

only

when

the

See Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 35 (1976) (“[I]t [is] clear as a
matter

of

limitation

statutory
on

construction

rebuttal

evidence

.

that
.

.

the

applies

[provision’s]
only

to

‘the

Secretary’ and not to an operator seeking to avoid liability
. . .”).
Logan

By

applying

argues,

presumption

the

the

Board

with

rebuttal

denied

evidence

it

that

limitations

to

it,

the

to

rebut

the

did

not

chance

pneumoconiosis

Mingo

substantially contribute to Owens’ total disability.
Owens

and

the

Director

of

the

Office

of

Workers’

Compensation Program contend that the standard announced by the
Board was appropriate even if the statutory language does not
directly apply to the employer, because the methods of rebuttal
articulated in § 921(c)(4) are the only logical methods by which
the presumption can be rebutted.

In short, they argue that the

statute’s “rebuttal limitations” are actually not limitations at
all.
While the dispute over the correct rebuttal standard could
affect

whether

a

miner

receives

benefits,

in

this

case

we

conclude that Mingo Logan was not in fact restricted in the
evidence it offered in rebuttal, and the ALJ did not apply the
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rebuttal limitations in considering the evidence.

Rather, the

ALJ analyzed whether Mingo Logan presented credible evidence to
rebut

any

aspect

of

the

miner’s

claim

covered

by

the

presumption.
The Black Lung Benefits Act awards benefits to miners who
are

totally

disabled

§§ 901(a),

921;

due

to

20

C.F.R.

This

725.201(a)(1).

pneumoconiosis.

language

§§

30

718.204(a),

defining

when

U.S.C.

725.1(a),

benefits

are

available is the same as the language defining the scope of the
presumption created by § 921(c)(4).

To establish an entitlement

to

show

benefits,

a

claimant

must

(1)

that

he

has

pneumoconiosis, in either its “clinical” or “legal” form; (2)
that the pneumoconiosis arose out of coal mine employment; (3)
that

he

is

totally

disabled

by

a

pulmonary

or

respiratory

impairment; and (4) that his pneumoconiosis is a substantially
contributing

cause

725.202(d)(2),

of

his

total

disability.

718.204(c)(1).

20

C.F.R.

“Pneumoconiosis

is

§§
a

‘substantially contributing cause’ of the miner’s disability if
it

(i)

[h]as

a

material

adverse

effect

on

the

miner’s

respiratory or pulmonary condition; or (ii) [m]aterially worsens
a totally disabling respiratory or pulmonary impairment which is
caused

by

employment.”

a

disease

or

exposure

Id. § 718.204(c)(1).

11

unrelated

to

coal

mine

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Relating these claim elements to § 921(c)(4)’s presumption,
when a miner proves 15 years of coal mine employment and element
(3),

i.e.,

the

total

disability

element,

a

rebuttable

presumption arises that the miner is totally disabled due to
pneumoconiosis.
presumptively

Thus,

satisfies

pneumoconiosis),

(2)

with
claim

this
elements

(pneumoconiosis

(1)

(the

arose

miner

existence
of

Although Mingo Logan argues that the ALJ limited
rebut

the

presumption

by

the

mine

disability).

to

caused

coal

of

and

ability

(pneumoconiosis

out

the

employment),

its

(4)

provision,

applying

to

total

it

the

rebuttal methods applicable only to the Secretary, the record in
fact shows that the ALJ did no such thing.

Rather, the ALJ

considered all of the evidence that Mingo Logan presented and
found that it did not rebut any of the three elements covered by
the presumption.
Specifically,
pneumoconiosis),

as
the

to
ALJ

element

(1)

considered

(the

Mingo

presence

Logan’s

of

evidence,

together with the evidence presented by Owens, and concluded, “I
find that the preponderance of the best documented and reasoned
evidence

of

record

establishes

legal pneumoconiosis.”

the

presence

of

clinical

and

As to element (2) (that pneumoconiosis

arose out of coal mine employment), the ALJ pointed to another
rebuttable

presumption,

as

stated

in

20

C.F.R.

§ 718.203(b),

which establishes this element if the miner had at least 10
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years of coal mine employment.
Mingo

Logan

“ha[d]

not

presumption,”

Owens

pneumoconiosis

arising

She then concluded that because

presented

“ha[d]

evidence

out

established
of

coal

to

the

mine

rebut

the

presence

of

employment.”

And

finally as to element (4) (that pneumoconiosis caused the total
disability), the ALJ understood that the presumption could be
rebutted by

the

employer.

The

ALJ

considered

the

causation

evidence submitted by both sides and concluded that Mingo Logan
“has failed to establish that [Owens’] respiratory disability is
due to a condition other than pneumoconiosis.”
effectively
rebut

rejected

element

(4)

the

by

evidence

showing

offered

that

by

The ALJ thus
Mingo

pneumoconiosis

Logan

was

to

not

a

substantially contributing cause of Owens’ total disability.
In affirming the ALJ, the Benefits Review Board recited the
ALJ’s holding, explicitly referring to the ALJ’s conclusion that
Mingo Logan did not rebut element (4):
The administrative law judge also found that employer
failed to establish that claimant does not have
clinical or legal pneumoconiosis, or that claimant’s
total disability was not due to pneumoconiosis.
Consequently, the administrative law judge found that
employer failed to rebut the presumption of total
disability due to pneumoconiosis at Section 411(c)(4)
of the Act, 30 U.S.C. § 921(c)(4).
(Emphasis

added).

affirmance

by

addresses

how

While

referring
the

to

the
the

Secretary

Board

then

sentence

in

may

13

rebut

the

summarized
§

its

921(c)(4)

that

presumption,

it

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nonetheless proceeded to address substantively the ALJ’s factual
findings and evaluation of the evidence and affirmed them.
In

short,

while

the

Benefits

Review

Board

purported

to

subject the employer to the rebuttal methods applicable to the
Secretary
aspect

in

of

§

the

921(c)(4),
presumption

it

concluded

was

in

rebutted,

substance

affirming

that

the

no

ALJ’s

finding that Mingo Logan failed to show that Owens had only mild
pneumoconiosis

that

total disability.

did

not

substantially

contribute

to

his

Accordingly, because the record shows that

§ 921(c)(4)’s two methods of rebuttal did not affect the Board’s
disposition

of

claim

restricting

that

this

case,

we

need

employers

not

to

address

those

Mingo

methods

Logan’s

improperly

raised its burden on rebuttal.

III
On the merits, Mingo Logan contends that, in concluding
that it had not rebutted the § 921(c)(4) presumption, the ALJ
failed

to

consider

the

failed

to

provide

an

conclusions,

resulting

medical
adequate
in

a

evidence
rationale

decision

in
in

that

its

entirety

support
falls

and

of

her

below

the

minimum threshold required by the Administrative Procedure Act
(“APA”).

Specifically,

it

argues

(1)

that

the

ALJ

did

not

adequately explain her weighing of the chest X-ray evidence; (2)
that

she

improperly

discounted

14

the

medical

opinions

of

Dr.

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Zaldivar

and

opinion,

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Dr.

Hippensteel;

combined

insufficient

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to

with

and

(3)

Owens’

support

the

that

Dr.

treatment
ALJ’s

Rasmussen’s

records,

finding

of

was
legal

pneumoconiosis.
Our review of these matters assesses whether “substantial
evidence supports the factual findings of the ALJ and whether
the legal conclusions of the [Board] and ALJ are rational and
consistent with applicable law.”

Harman Mining Co. v. Dir.,

Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir.
2012)

(alteration

omitted).

original)

(internal

quotation

marks

Substantial evidence is “such relevant evidence as a

reasonable

mind

conclusion.”
(1938).

in

might

accept

as

adequate

to

support

a

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

As part of “determining whether substantial evidence

supports the ALJ’s factual determinations, we must . . . address
whether

all

of

whether

the

ALJ

the

relevant

has

evidence

sufficiently

crediting certain evidence.”
F.3d 524, 528 (4th Cir. 1998).

has

explained

been
his

analyzed
rationale

and
in

Milburn Colliery Co. v. Hicks, 138
But we must also be mindful that

the ALJ, as the trier of fact, “is charged with making factual
findings, including evaluating the credibility of witnesses and
weighing

contradicting

evidence.”

Doss

v.

Dir.,

Office

Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995).

15

of

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With

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respect

to

Mingo

Pg: 17 of 28

Logan’s

contention

that

the

ALJ

failed “to provide adequate explanation under the APA for her
weighing of the chest X-ray evidence,” the APA does require ALJs
to “include a statement of . . . findings and conclusions, and
the reasons or basis therefor, on all the material issues of
fact, law, or discretion presented on the record.”
§ 557(c)(3)(A).

5 U.S.C.

An adequate explanation, however, “can be a

succinct one,” Lane Hollow Coal Co. v. Dir., Office of Workers’
Comp. Programs, 137 F.3d 799, 803 (4th Cir. 1998), and the APA’s
“duty of explanation” is satisfied as long as “a reviewing court
can discern what the ALJ did and why she did it,” Harman, 678
F.3d at 316 (alterations and internal quotation marks omitted).
In this case, the ALJ had before her three interpretations
of a chest X-ray taken on May 15, 2008, and four interpretations
of an October 15, 2008 X-ray.

The ALJ first explained the

relative radiological qualifications of the persons who made an
interpretation, noting that a physician becomes a “B reader”
when

he

assessing

passes
and

an

examination

classifying

X-ray

testing
evidence

his
of

“proficiency

in

pneumoconiosis,”

while a Board-certified radiologist has received certification
in radiology or diagnostic roentgenology by the American Board
of Radiology or the American Osteopathic Association.
C.F.R. § 718.202(a)(ii)(C), (E).

See 20

The ALJ then explained that a

dually qualified physician (i.e., a radiologist who was both a B
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reader and Board-certified) and a doctor who was a B reader had
interpreted

the

first

X-ray

as

positive

for

the

presence

of

pneumoconiosis, while one dually qualified physician read the
film as negative.

Giving more weight to the reading that had

been

the

corroborated,

ALJ

found

“that

this

[May

2008]

film

supports finding the presence of pneumoconiosis.”
The ALJ similarly evaluated the conflicting interpretations
of the October 2008 X-ray, noting that it had been read as
positive by two dually qualified physicians and negative by one
dually qualified physician and by one physician, Dr. Zaldivar,
who had subsequently lost his B reader certification.

She then

explained that she was giving “more weight to the jointly held
opinions of the dually qualified physicians who interpreted the
film as positive.”

She thus concluded that “the preponderance

of the X-ray evidence supports a finding of the presence of
pneumoconiosis.”
On this record, the Board found that the ALJ adequately
explained her assessment of the X-ray evidence.
The

applicable

X-ray

reports

regulation
are

in

specifies

conflict,”

the

that
ALJ

“where
must

And we agree.
two

or

more

consider

“the

radiological qualifications of the physicians interpreting such
X-rays.”

20 C.F.R. § 718.202(a)(1).

Because the ALJ did just

that here, we conclude that she sufficiently explained why she
found the X-ray evidence on the whole indicated that Owens had
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pneumoconiosis

and

that

Pg: 19 of 28

substantial

evidence

supported

that

finding.
Next, with respect to Mingo Logan’s contention that the ALJ
incorrectly disregarded the opinions of its experts, the ALJ
gave a number of reasons in support of her decision to “accord
less weight to the opinions of Drs. Zaldivar and Hippensteel.”
She found that they both “dismissed in a cursory [fashion] the
medical

literature

interstitial

that

fibrosis;”

idiopathic

interstitial

population,

but

neither

associated
that

coal

they

fibrosis

dust

both

“maintained

exists

adequately

exposure

in

addressed

the
the

with
that

general

fact

that

[Owens] is not a member of the general population” based on his
extensive coal-dust exposure; and that they “[b]oth acknowledged
that the diagnosis of idiopathic interstitial fibrosis depended
on ruling out all suspected factor[s], but neither doctor gave
an adequate explanation for why coal dust inhalation could not
have caused at least some of [Owens’] impairment.”
found

their

opinions

“compromised

by

not

The ALJ also
being

fully

documented,” noting (1) that “[n]either doctor fully addressed
the

fact

that

two

treating

pulmonary

specialist[s]

found

sufficient evidence to diagnose [coal workers’ pneumoconiosis]
rather than idiopathic interstitial fibrosis;” (2) that “[b]oth
doctors relied upon negative readings of X-rays and CT scans,
regardless

of

contrary

interpretations
18

by

dually

qualified

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physicians,

or

by

the

treatment;”

(3)

that

Pg: 20 of 28

doctor

neither

who

read

addressed

the

one

films

of

the

during
treating

pulmonologists’ “findings of a mixed obstructive and restrictive
defect;” and (4) that neither “gave adequate consideration to
whether the evidence established legal pneumoconiosis.”
At

bottom,

Hippensteel

did

the
not

ALJ

found

adequately

that

Dr.

explain

Zaldivar

why,

in

and

their

Dr.
view,

Owens’ interstitial fibrosis was not “significantly related to,
or substantially aggravated by,” his exposure to dust through
his

coal

mine

employment.

20

C.F.R.

§ 718.201(b).

In

other

words, the ALJ found that these doctors’ reports and testimony
did not adequately explain why Owens’ interstitial fibrosis -which they identified as the cause of his total disability -did not constitute legal pneumoconiosis.
Nonetheless,

Mingo

Logan

challenges

this

finding

by

pointing to places in the record where it contends Dr. Zaldivar
and

Dr.

Hippensteel

did

indeed

explain

“how

and

why

they

eliminated Mr. Owens’ coal dust exposure as the cause of his
interstitial

fibrosis.”

But

the

ALJ

never

said

that

these

doctors failed to provide any explanation for their views on
this critical point.

Instead, she found that the explanations

they gave were inadequate and ultimately unconvincing.
Having fully reviewed the record, we conclude that the ALJ
acted

within

her

factfinding

role
19

in

deciding

to

give

less

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weight to the opinions of Dr. Zaldivar and Dr. Hippensteel.

See

Westmoreland Coal Co. v. Cochran, __ F.3d __, No. 11-1893, slip
op. at 13 (4th Cir. June 4, 2013) (noting that “[i]t is the role
of the ALJ -- not the appellate court -- to resolve” the “battle
of the experts”).
Finally, Mingo Logan contends that Dr. Rasmussen’s opinion,
combined

with

the

notes

of

Owens’

treating

pulmonary

specialists, did not amount to substantial evidence to support
the

ALJ’s

finding

that

Owens

had

both

clinical

and

legal

pneumoconiosis or her finding that Mingo Logan failed to show
that Owens’ pulmonary disability was not due to these diseases.
Mingo Logan argues that Dr. Rasmussen offered only an equivocal,
differential diagnosis.

This assertion, however, takes certain

statements by Dr. Rasmussen out of context and overlooks his
clearly expressed opinion that Owens’ condition was “primarily
the result of [his] long term exposure to coal mine dust and
that

he

suffers

from

coal

mine

induced,

totally

that

ALJ

disabling

chronic lung disease.”
Similarly,

Mingo

Logan

argues

heavily on Owens’ treatment records.

the

relied

too

In our view, however, the

ALJ followed the standards established in 20 C.F.R. § 718.104(d)
and

gave

Boustani
developed

appropriate
and

Dr.

consideration

Figueroa,

sufficiently

to

noting

allow
20

me

to
that
to

the

opinions

“the
accord

record
their

of

Dr.

is

not

opinions

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controlling weight” and instead deciding to give their opinions
“significant weight.”
We thus reject Mingo Logan’s challenge to the sufficiency
of the evidence.
*

*

*

In sum, we conclude that although the Board announced a
standard

to

rebut

the

§

921(c)(4)

presumption,

purportedly

restricting Mingo Logan to the two rebuttal methods available to
the Secretary, the announced standard was not in fact applied by
either the ALJ or the Board.
the

evidence

pneumoconiosis

that
did

Mingo
not

Instead, the ALJ considered all of

Logan

cause

or

offered

to

demonstrate

substantially

that

contribute

to

Owens’ total disability, and the Board affirmed the substance of
the ALJ’s analysis.

We also reject Mingo Logan’s challenges to

the ALJ’s analysis and the sufficiency of the evidence.
Accordingly, Mingo Logan’s petition for review is denied.

It is so ordered.

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NIEMEYER, Circuit Judge, concurring:
I write this separate concurring opinion on my conviction
that Mingo Logan’s challenge to the standard for rebutting the
§ 921(c)(4)

presumption

should

have

been

addressed.

And

in

addressing it, I would hold that the rebuttal standard announced
by the Board was erroneous, as demonstrated both by the explicit
language

of

§

921(c)(4)

and

the

Supreme

Court’s

holding

in

Usery.
The Board stated that it was applying to Mingo Logan the
limiting rebuttal standard applicable to the Secretary, failing
to recognize that in Usery, the Supreme Court held that the
standard applicable to the Secretary did not apply to employers.
Only because it applied the limiting standard clumsily in this
case

--

and

thus

considered

all

methods

of

rebutting

the

§ 921(c)(4) presumption that Mingo Logan offered -- have we been
able to resolve this appeal without addressing the standard.
But this quirk, which was uncovered only by a close reading of
the Board’s opinion, leaves sufficient doubt about the issue
that we should resolve it.
I now write to demonstrate why the standard announced by
the Board was erroneous.
As we point out, under § 921(c)(4), if the miner shows that
he worked 15 years or more in underground coal mines and that he
suffers

from

a

totally

disabling
22

respiratory

or

pulmonary

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impairment, a rebuttable presumption arises that the miner “is
totally

disabled

due

to

pneumoconiosis.”

In

the

absence

of

credible rebuttable evidence, the miner would then be entitled
to benefits.
The

Board

indicated

that

Mingo

Logan

could

rebut

the

§ 921(c)(4) presumption only by showing either (1) that Owens
did not have pneumoconiosis or (2) that his impairment did not
arise out of, or in connection with, his coal mine employment.
In doing so, the Board referenced the statutory language:

“The

Secretary may rebut such presumption only by establishing that
(A) such miner does not, or did not, have pneumoconiosis, or
that (B) his respiratory or pulmonary impairment did not arise
out of, or in connection with, employment in a coal mine.”

30

U.S.C. § 921(c)(4).
As noted above, the parties disagree on whether the Board
announced the correct rebuttal standard for employers.
Logan

argues

that

the

Board

improperly

applied

to

Mingo
it

the

rebuttal limitations of § 921(c)(4) because the plain text shows
that those limitations apply only when the “Secretary” seeks to
rebut the presumption.

See Usery, 428 U.S. at 35.

By applying

the rebuttal limitations to it, Mingo Logan argues, the Board
denied it the chance to rebut the presumption with evidence that
pneumoconiosis

did

not

cause

the

miner’s

total

disability.

Relying on how 20 C.F.R. § 718.204(c)(1) defines this causation
23

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standard,

it

Filed: 03/26/2014

reasons

that

Pg: 25 of 28

the

Board’s

standard

effectively

denied it the opportunity to show that Owens’ disability was
caused

by

idiopathic

interstitial

fibrosis

and

that

his

pneumoconiosis was so mild as not to “substantially contribute”
to his disability.
Owens

and

Id.
the

Director

of

the

Office

of

Workers’

Compensation Program contend that the standard announced by the
Board was appropriate even if the statutory language does not
directly apply to the employer, because the methods of rebuttal
articulated in § 921(c)(4) are the only logical methods by which
the presumption can be rebutted.

In short, they argue that the

statute’s “rebuttal limitations” are actually not limitations at
all.
Resolution of the parties’ differences requires comparing
the

four

claim

elements

necessary

to

establish

a

claim

for

benefits and the rebuttal methods contained in § 921(c)(4).
As we have already pointed out, to establish entitlement to
benefits, a claimant must show that (1) he has pneumoconiosis;
(2) his pneumoconiosis arose out of coal mine employment; (3) he
has a total disability; and (4) his pneumoconiosis caused the
total

disability.

Thus,

claim

elements

(1)

and

(3)

are

existential elements, requiring the existence of pneumoconiosis
and the existence of total disability, while claim elements (2)
and (4) articulate causal relationships.
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Relating the claim elements to § 921(c)(4), when the miner
proves 15 years of coal mine employment and claim element (3),
i.e.,

the

total

disability

element,

a

rebuttable

presumption

arises that the miner is totally disabled due to pneumoconiosis.
Thus,

with

this

claim

elements

provision,
(1)

(the

(pneumoconiosis

arose

(pneumoconiosis

caused

presumption
logically

is

be

out

the

existence
of

the

to

coal

total

rebuttable,

entitled

miner

the

presumptively
of

mine

defeat

pneumoconiosis),

(2)

employment),

and

(4)

Because

the

disability).
coal
it

satisfies

mine

by

operator

introducing

would

evidence

rebutting any of those three claim elements.
Because the statute specifies that the Secretary may rebut
the presumption only by showing that the miner does not have
pneumoconiosis (rebutting claim element (1)) or that there is no
connection

between

the

miner’s

disability

and

his

coal

mine

employment, it imposes a higher standard for rebuttal than would
otherwise be logically permissible to rebut claim element (4).
Claim element (4) could logically be rebutted by showing that
the miner’s pneumoconiosis was not a substantially contributing
cause

of

minimal

his

total

amount

§ 718.204(c)(1).

disability,

to
In

his
this

even

if

it

impairment.
way,

the

contributed
See

statute

Secretary’s ability to rebut claim element (4).

20

some

C.F.R.

limits

the

But the statute

is silent about the scope of an employer’s rebuttal, and the
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employer’s

Filed: 03/26/2014

methods

of

Pg: 27 of 28

rebuttal

are

thus

not

limited.

Consequently, because the presumption covers claim elements (1),
(2), and (4), the employer may carry its burden by introducing
evidence rebutting any of these elements, without limitation.
Owens and the Director failed to appreciate the statutory
language

and

Secretary’s

the

logic

rebuttal

of

§

methods

921(c)(4),
are

also

claiming

the

that

employer’s

the
only

logical rebuttal methods, especially when the various elements
of a claim are examined through their definitions.

But the

straightforward language of § 921(c)(4) belies their position,
as

noted.

Moreover,

the

Supreme

Court

has

confirmed

the

existence of a limitation on the Secretary that does not apply
to the employer, necessarily recognizing that rebuttal methods
(A)

and

(B)

identified

in

§

921(c)(4)

are

not

logically

equivalent to the methods that would otherwise be available.
In

Usery,

the

Court

actually

stated

methods of § 921(c)(4) were limiting.
And

precisely

because

they

were

that

the

rebuttal

Usery, 428 U.S. at 34.

limiting,

the

coal

mine

operators involved in Usery made the same argument that Mingo
Logan makes here:
The Operators contend that this limitation erects an
impermissible irrebuttable presumption, because it
establishes
liability
even
though
it
might
be
medically demonstrable in an individual case that the
miner’s pneumoconiosis was mild and did not cause the
disability -- that the disability was wholly a product
of other disease, such as tuberculosis or emphysema.
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Disability due to these diseases, as the Operators
note, is not otherwise compensable under the Act.
Id.

at

34-35.

Accepting

the

legitimacy

of

the

operators’

argument, the Court held:
[W]e think it clear as a matter of statutory
construction that the [§ 921(c)(4)] limitation on
rebuttal evidence is inapplicable to operators.
By
the language of [§ 921(c)(4)], the limitation applies
only to “the Secretary” and not to an operator seeking
to avoid liability [for benefits].
Id. at 35.
Accordingly, I would conclude that the Board announced and
purported

to

apply

to

Mingo

Logan

rebuttal

limitations

that

applied only to the Secretary and that, in this respect, it
erred as a matter of law.

27