Island Creek Coal Company v. Carles Dyke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 11-0558-BLA Copies to all parties and the district court/agency. [999587722].. [12-1777]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1777

ISLAND CREEK COAL COMPANY,
Petitioner,
v.
CARLES DYKES; DIRECTOR, OFFICE OF WORKERS’
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

COMPENSATION

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(11-0558-BLA)

Submitted:

May 11, 2015

Decided:

May 21, 2015

Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

George E. Roeder, III, Kathy L. Snyder, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Appellant. Joseph E. Wolfe, Ryan
C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia;
M. Patricia Smith, Solicitor of Labor, Rae Ellen
James, Associate Solicitor, Sean G. Bajkowski, Helen H. Cox,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Island Creek Coal Company (employer) seeks review of the
Benefits Review Board’s (Board) decision and order affirming the
administrative law judge’s (ALJ) award of black lung benefits to
Carles Dykes pursuant to 30 U.S.C. §§ 901-945 (2012).
was

held

in

abeyance

pending

our

decisions

in

This case

Hobet

Mining

LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), and W. Va. CWP Fund
v. Bender, 782 F.3d 129 (4th Cir. 2015).
The ALJ found that Dykes worked for more than fifteen years
in

underground

disabled

from

coal
a

mine

employment

respiratory

and

that

standpoint,

he

and

was

totally

invoked

the

statutory presumption that Dykes was totally disabled due to
pneumoconiosis.

30

U.S.C.

§ 921(c)(4)

(2012).

The

ALJ

considered employer’s rebuttal evidence and found that it failed
to rebut the existence of legal pneumoconiosis and failed to
rule

out

pneumoconiosis

as

a

cause

of

Dykes’

disability.

Because the presumption applied and was not rebutted, the ALJ
awarded

benefits.

The

Board

affirmed,

and

employer

timely

petitioned for review.
Employer does not assert that the ALJ erred in invoking the
§ 921(c)(4) presumption.
the

ALJ

and

BRB

Instead, employer first argues that

impermissibly

limited

its

rebuttal

of

the

statutory presumption to the two methods in the statute that
specifically

govern

rebuttal

by
2

the

Secretary

of

Labor,

in

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contravention of Usery v. Turner Elkhorn Mining Co., 428 U.S. 1
(1976).

Employer also argues that the ALJ erred in applying the

“rule out” standard to its attempt to rebut the presumption.
See 20 C.F.R. § 718.305(d) (2014).
In

Bender,

this

court

recently

arguments identical to employer’s.

considered

and

rejected

The Bender court concluded

“that Section 921(c)(4) is silent regarding the standard that an
operator must meet to rebut the presumption.”
at

138.

Thus,

the

Department

of

Labor

Bender, 782 F.3d

(DOL)

possessed

the

authority to promulgate regulations establishing the applicable
standard.
Court’s

Id.

The court rejected the argument that the Supreme

decision

authority.
rule-out

in

Usery

Id. at 138-40.
standard

set

usurped

the

DOL’s

regulatory

Further, the court held “that the

forth

in

Section

718.305(d)

is

a

reasonable exercise of the agency’s authority under Chevron,[ *]
and lawfully applies to coal mine operators as well as to the
Secretary.”
rebut

the

Id. at 143.
15-year

Accordingly, coal mine operators may

presumption

of

total

disability

“only

by

proving that ‘no part of the miner’s respiratory or pulmonary
total disability was caused by pneumoconiosis.’”
20

C.F.R.

*

§ 718.305(d)).

Employer’s

arguments

Id. (quoting
regarding

the

Chevron v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).

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available methods

of

rebuttal

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and

the

rule

out

standard

are

therefore without merit.
Employer also argues that the ALJ erred in considering the
physicians’

opinions

and

therefore

her

finding

that

employer

failed to rebut the presumption is not supported by substantial
evidence.

The ALJ found that the x-ray evidence rebutted the

existence of clinical pneumoconiosis.

The ALJ summarized the

opinions of the four doctors who examined Dykes, and concluded
that the evidence supported a finding that Dykes suffered from
bronchial asthma.
employer

in

Considering the medical opinions offered by

rebuttal

of

the

presumption,

the

ALJ

found

that

Doctors Fino and Castle failed to explain how coal mine dust
exposure

could

be

excluded

development of asthma.

as

a

causative

factor

in

the

The ALJ thus concluded that employer

failed to rebut the existence of legal pneumoconiosis.
The

ALJ

also

found

that

employer

failed

pneumoconiosis as a cause of Dykes’ disability.

to

rule

out

The ALJ noted

that Doctors Agarwal and Baker found that Dykes’ respiratory
impairment was caused by exposure to coal dust.

Addressing the

opinions of employer’s physicians, the ALJ found that “Dr. Fino
conceded that a portion of the Claimant’s impairment was likely
attributable to his coal mine employment.

Although Dr. Castle

disagreed, he did not provide support for his conclusion that he

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could

rule

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out

the

contribution

Claimant’s disability.”
This

court

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by

coal

mine

of

the

dust

Board

to

the

(J.A. 44).

reviews

decisions

to

determine

whether the Board properly found the ALJ’s decision supported by
substantial evidence and in accordance with law.

Consolidation

Coal Co. v. Held, 314 F.3d 184, 186 (4th Cir. 2002).

In making

this determination, the court conducts an independent review of
the record to decide whether the ALJ’s findings are supported by
substantial evidence.
1193

(4th

Cir.

Dehue Coal Co. v. Ballard, 65 F.3d 1189,

1995).

Substantial

evidence

is

more

than

a

scintilla, but only such evidence that a reasonable mind could
accept

as

adequate

to

support

a

conclusion.

Lane

Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997).
the

substantial

authority

to

evidence
make

inconsistencies

or

requirement,

credibility
conflicts

in

the

ALJ

determinations
the

v.

Union

Subject to

has

the

and

evidence.

sole

resolve

Grizzle v.

Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993).

“As

long as substantial evidence supports an ALJ’s findings, we must
sustain

the

ALJ’s

decision,

even

if

we

disagree

with

it.”

Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs,
678 F.3d 305, 310 (4th Cir. 2012) (internal quotation marks and
brackets omitted).
Employer argues that the ALJ erred in applying selected
passages of the Preamble to the 2000 amendments to the black
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lung benefits regulations to discredit Dr. Fino’s opinion.
ALJ

noted

that

Dr.

Fino

opined

that

Dykes

had

only

The

minimal

respiratory obstruction that was not disabling when he left the
mines in 1994.

The ALJ then stated:

To the extent that Dr. Fino may be suggesting that,
because Claimant was not disabled after leaving the
coal mines, his present disability is unrelated to
coal mine employment, his opinion is at odds with the
Department of Labor’s findings that pneumoconiosis is
a progressive disease that can worsen after cessation
of coal mine dust exposure.
20 C.F.R. § 718.201(c).
Indeed, in the Preamble to the amended regulations,
the Department of Labor specifically rejected Dr.
Fino’s
position
that
pneumoconiosis
was
not
progressive.
See Preamble, Regulations Implementing
the Federal Coal Mine Health and Safety Act of 1969,
65 Fed. Reg. 79920, 79969-79971 (Dec. 20, 2000).
(J.A. 41).
statement

Employer argues that the ALJ erred because this
implies

progressive,

and

her
it

belief

is

the

that

ALJ’s

pneumoconiosis
statement,

is

rather

always

than

Dr.

did

not

Fino’s, that is contrary to the Preamble.
Employer’s

argument

is

without

merit.

The

ALJ

explicitly discredit Dr. Fino’s opinion based on this conflict
with the Preamble.

Moreover, in the Preamble, the Department

clearly rejected Dr. Fino’s opinion that pneumoconiosis is not
latent or progressive, and cited medical studies supporting its
position.

Although

pneumoconiosis
its

regulatory

is

the

always

progressive,

provisions

latent and progressive.

Preamble

specifying

does
the
that

not

state

Department

that

retained

pneumoconiosis

is

In his deposition, Dr. Fino explained
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that he believed pneumoconiosis can be progressive, but only in
a small portion of miners, “maybe 10 to 15 percent at most, but
it clearly can be progressive.”

(J.A. 177).

The ALJ properly

evaluated Dr. Fino’s opinion.
Employer

finally

argues

demanding

standard
than

review

to

of

physicians

that

she

particularly
We

disagree.

Once

employer bore

the

the

the

to

claimant’s

existence

of

applied

opinions

of

§ 921(c)(4)

burden

ALJ

the

applied

regarding

the

legal

of

more

employer’s
physicians,

pneumoconiosis.

presumption

establishing

a

that

was

invoked,

Dykes

did

not

suffer from pneumoconiosis or that his disability was not caused
by pneumoconiosis.

Thus, the ALJ’s focus on the opinions of

Doctors Fino and Castle was appropriate.

Indeed, she relied on

their opinions to find that the evidence supported a diagnosis
of bronchial asthma.
opinions

fell

exposure

was

respiratory

She properly found, however, that their

short
not

of

a

establishing

that

contributing

impairment

factor

because

Dykes’

doctors

both

in

coal

his

dust

disabling

acknowledged

that

Dykes could suffer from pneumoconiosis and asthma.
Our
decision

review
is

of

based

the
upon

record

discloses

substantial

that

evidence

the

Board’s

is

without

and

reversible error.

Accordingly, we deny the petition for review.

We

oral

dispense

with

argument

7

because

the

facts

and

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

PETITION DENIED

8