Westmoreland Coal Company, Inc v. Edward Stidham

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 11-0588-BLA Copies to all parties and the district court/agency. [999323044]. Mailed to: Steven Breeskin. [12-1866]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1866

WESTMORELAND COAL COMPANY, INCORPORATED,
Petitioner,
v.
EDWARD L. STIDHAM; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(11-0588-BLA)

Argued:

December 12, 2013

Decided:

March 26, 2014

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

Petition for review denied by unpublished opinion.
wrote the opinion, in which Judge Niemeyer and
concurred.

Judge Wynn
Judge Agee

ARGUED: Thomas Michael Hancock, BOWLES RICE, LLP, Charleston,
West Virginia, for Petitioner.
Ryan Christopher Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia;
Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents. ON BRIEF: Paul E. Frampton,
BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner.
Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia, for Respondent Edward L. Stidham. M. Patricia Smith,
Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor,
Gary K. Stearman, Counsel for Appellate Litigation, Office of

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the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent Director, Office of Workers’ Compensation
Programs.

Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
Petitioner
final decision

Westmoreland
and

order

of

Coal
the

Company,
United

Inc.

States

challenges
Department

a
of

Labor Benefits Review Board (the “Board”), which awarded black
lung

benefits

to

Respondent

Westmoreland employee.

Edward

Stidham,

a

former

Stidham v. Westmoreland Coal Co., No.

11-0588 (BRB May 24, 2012) (unpublished) (the “BRB Opinion”).
The Board affirmed a decision by the Administrative Law Judge
(“ALJ”) concluding that Stidham established total disability due
to pneumoconiosis by use of a statutory presumption.

The ALJ

determined that Westmoreland failed to rebut the presumption and
accordingly

awarded

benefits

to

Stidham.

Stidham

v.

Westmoreland Coal Co., No. 2009-BLA-05117 (Dep’t of Labor May
23, 2011) (the “ALJ Decision and Order”).

We conclude that the

Board did not err in affirming the ALJ’s decision, which was
supported by substantial evidence and accords with applicable
law.

Therefore, we deny Westmoreland’s petition for review.

I.
Under the Black Lung Benefits Act (the “Act”), 30 U.S.C. §
901 et seq., former coal miners who are totally disabled by
pneumoconiosis

are

entitled

to

receive

monetary

benefits.

Pneumoconiosis, commonly called black lung disease, is defined
as

“a

chronic

dust

disease

of
3

the

lung

and

its

sequelae,

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including respiratory and pulmonary impairments, arising out of
coal mine employment.”

20 C.F.R. § 718.201(a).

Compensable pneumoconiosis “‘can take two forms’”: clinical
and legal.
319,

320

Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d

(4th

Cir.

2013)

(quoting

Harman

Min.

Co.

v.

Dir.,

Office of Workers’ Comp. Programs, 678 F.3d 305, 308 (4th Cir.
2012)).

“‘Clinical” pneumoconiosis’ consists of those diseases

recognized by the medical community as pneumoconiosis, i.e., 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.”
Legal
broader

pneumoconiosis,

than

the

pneumoconiosis.”
821

(4th

Cir.

by

medical

20 C.F.R. § 718.201(a)(1).
contrast,

definition

“is
of

significantly
coal

workers’

Hobbs v. Clinchfield Coal Co., 45 F.3d 819,
1995).

“‘Legal

pneumoconiosis’

includes

any

chronic lung disease or impairment . . . arising out of coal
mine employment.”

20 C.F.R. § 718.201(a)(2); see also id. §

718.203(a) (“In order for a claimant to be found eligible for
benefits under the Act, it must be determined that the miner’s
pneumoconiosis

arose

at

least

in

part

out

of

coal

mine

employment.”).

A chronic lung disease or impairment arises out

of coal mine employment if it is “significantly related to, or

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substantially
employment.”

aggravated

Pg: 5 of 20

by,

dust

exposure

in

coal

mine

Id. § 718.201(b).

For claims filed after January 1, 2005, and pending on or
after March 23, 2010, a claimant may establish pneumoconiosis by
use of a statutory presumption. 1
“fifteen-year

presumption”).

30 U.S.C. § 921(c)(4) (the
To

invoke

the

fifteen-year

presumption, a claimant must establish that (1) the miner had
fifteen years of qualifying coal-mine employment; (2) the miner
or survivor cannot establish entitlement to benefits by use of
chest x-ray evidence; and (3) the miner has, or had at the time
of

his

death,

impairment[.]”

“a
Id.

totally

disabling

respiratory

or

pulmonary

The opposing party may rebut the fifteen-

year presumption by establishing that either: (1) the miner has
neither legal nor clinical pneumoconiosis; or (2) the miner’s
“respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine.”

Id.

“In black lung benefits cases, this Court’s review of the
Board’s order is limited.”
marks

omitted).

We

Cochran, 718 F.3d at 322 (quotation

examine

“whether

substantial

evidence

supports the factual findings of the ALJ and whether the legal
1

The Patient Protection and Affordable Care Act, Pub. L.
No. 111-148, § 1556, 124 Stat. 119, 260 (2010), reinstated this
presumption, which had been abolished by the Black Lung Benefits
Revenue Act of 1981, Pub. L. No. 97-119, § 202, 95 Stat. 1635,
1643 (1981).

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conclusions of the [Board] and ALJ are rational and consistent
with

applicable

Workers’

Comp.

Substantial

mind

conclusion.’”

373

“means

might

Coal
F.3d

v.

570,

‘such

accept

Co.

575

Dir.,
(4th

relevant

as

adequate

Office
Cir.

of

2004).

evidence

a

support

to

as

a

Richardson v. Perales, 402 U.S. 389, 401 (1971)

Consol.

(1938)).

Lewis

Programs,

evidence

reasonable

(quoting

law.”

Edison

Co.

v.

N.L.R.B.,

305

U.S.

197,

229

“[I]t is the duty of the administrative law judge

reviewing a case, and not the responsibility of the courts, to
make findings of fact and to resolve conflicts in the evidence.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
substantial
sustain

evidence

the

ALJ’s

supports

decision,

an

ALJ’s

even

if

findings,

we

disagree

“‘[w]e
with

If
must
it.’”

Harman, 678 F.3d at 310 (quoting Smith v. Chater, 99 F.3d 635,
638 (4th Cir. 1996)).
Further, we “defer to the ALJ’s evaluation of the proper
weight to accord conflicting medical opinions.”

Stiltner v.

Island Creek Coal Co., 86 F.3d 337, 342 (4th Cir. 1996).

The

ALJ is not required to accept the opinion of any medical expert
but “must evaluate the evidence, weigh it, and draw his own
conclusions.”

Underwood v. Elkay Mining, Inc., 105 F.3d 946,

949, (4th Cir. 1997), superseded on other grounds as stated in
Elm Grove Coal Co. v. Dir., Office of Workers’ Comp. Programs,
480 F.3d 278, 287 (4th Cir. 2007).
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II.
Stidham is a former coal miner in his late sixties who
worked for Westmoreland for over twenty-nine years in Virginia.
Most of Stidham’s employment took place underground, where he
performed a variety of tasks that ranged from constructing the
concrete

brattices

workers

to

Stidham

stopped

that

operating

separate

various

working

for

the

types

of

mining

gases

underground

Westmoreland

in

1995,

from

the

equipment.
when

the

company ceased its operations where Stidham worked.
With the exception of a thirteen-year hiatus beginning in
1977, Stidham has smoked since his early twenties, and he was
smoking approximately one-half of one pack per day at the time
of his hearing.
for

“a

long

Stidham’s breathing problems, which he has had

time,”

became

aggravated

in

2004.

J.A.

202.

Stidham has been on oxygen since 2005 and currently uses it
nearly all of the time.

He also uses a nebulizer.

Stidham filed a claim under the Act on January 7, 2008, and
the District Director of the U.S. Department of Labor’s Office
of Workers’ Compensation Programs awarded him interim benefits.
Westmoreland

requested

an

evidentiary

hearing

before

an

ALJ

pursuant to 20 C.F.R. § 725.451, which the ALJ held on June 24,
2009.

On May 16, 2011, the ALJ issued a Decision and Order

Granting Benefits.

The ALJ found that Stidham “established that

he is totally disabled due to pneumoconiosis based upon the 157

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year presumption . . . [and] that the presumption has not been
rebutted.”

ALJ Decision and Order at 24.

The ALJ admitted a variety of evidence into the record,
including Stidham’s testimony, x-rays, pulmonary function tests,
arterial blood gas studies, treatment records, and CT scans.
The ALJ also received conflicting medical opinions interpreting
the

evidence. 2

aforementioned

Hippensteel

“‘ruled

out

For

Westmoreland,

[Claimant’s]

coal

dust

Dr.

exposure

Kirk
as

playing any role in his respiratory or pulmonary impairment[,]’”
and Dr. David Rosenberg “‘ruled out’ a contribution by coal mine
dust

exposure

(quoting

Dr.

reports).
opinion

to

Claimant’s

Hippensteel’s

lung
and

disease[.]”

Dr.

Id.

Rosenberg’s

at

8–9

supplemental

Dr. Basham, Stidham’s treating physician, provided an

noting

that

Stidham

“had

a

history

of

coal

workers’

pneumoconiosis and COPD [chronic obstructive pulmonary disease],
based on CT scans of the lungs.”

Id. at 8.

Additionally, Dr.

J. Randolph Forehand, the examining physician for the Department
of

Labor,

concluded

that

Stidham

had

both

“coal

pneumoconiosis and cigarette smokers’ lung disease.”

workers’

Id.

The ALJ considered the credentials of the four physicians,
explaining

that

Drs.

Rosenberg

2

and

Hippensteel

possessed

the

Though they disagreed over the “disease mechanisms behind
the disability[,]” all four physicians deemed Stidham totally
disabled. ALJ Decision and Order at 14.

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“highest
disease.”

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qualification

for

Id. at 13.

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identifying

the

causes

of

lung

The ALJ also noted that although Dr.

Forehand was not a board-certified pulmonologist, he possessed
other

credentials,

including

twenty

years

of

experience

performing pulmonary examinations on behalf of the Department of
Labor.

Because

nothing

indicated

that

Dr.

Forehand’s

examination of Stidham was insufficient due to his lack of being
a

board-certified

pulmonologist,

the

ALJ

determined

that

Dr.

Forehand’s “conclusions are not entitled to less weight based
solely on the lack of that additional credential.”
Regarding

Dr.

Basham,

the

ALJ

Id. at 14.

explained

that

his

conclusions would be weighed “less heavily because he does not
possess special credentials in pulmonary medicine[.]”
20.

The

ALJ

did

give

Dr.

Basham’s

opinion

Id. at

consideration

“because of his extended history of treatment with Claimant[,]”
but she limited its weight to the extent that the opinion was
“well

reasoned

and

documented.”

Id.

at

20–21;

see

also

20

C.F.R. § 718.104(d) (requiring the ALJ to “give consideration to
the relationship between the miner and any treating physician
whose report is admitted into the record” and setting forth the
factors in weighing the treating physician’s opinion).
The ALJ evaluated each of the physicians’ conclusions in
light of the weight accorded to their respective opinions and in
light of the evidence on which each of their opinions was based.
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The ALJ determined that “although at first blush the medical
opinion

evidence

is

in

equipoise,

I

ultimately

find

that

a

preponderance of the medical opinion evidence tends to disprove
the

existence

of

clinical

pneumoconiosis.”

Id.

at

21.

Specifically, the ALJ found that Drs. Rosenberg and Hippensteel
rebutted the presumption of clinical pneumoconiosis because they
based

their

opinions

on

evidence

that

Dr.

Forehand

did

not

consider, namely, certain CT scans that did not contain markers
for clinical pneumoconiosis.
analysis

of

Dr.

The ALJ also conducted a “critical

Basham’s

conclusion

regarding

clinical

pneumoconiosis” and discredited his conclusion because it “was
made by history[]” rather than by an examination of the medical
evidence.

Id.

However, the ALJ concluded that Westmoreland did not rebut
the presumption of pneumoconiosis because it failed to establish
that Stidham did not have legal pneumoconiosis or that Stidham’s
disability was not caused by pneumoconiosis.
determination

notwithstanding

Dr.

The ALJ made this

Hippensteel’s

and

Dr.

Rosenberg’s claims to have “ruled out any contribution by coal
mine dust[.]”

The ALJ looked behind their conclusions at “the

reasoning of their reports and deposition testimony” to find
“that they were not actually able to rule it out.”

Id. at 22.

Specifically, although both physicians asserted that Stidham’s
symptoms were “related to” or “classic” for cigarette smoking
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disease, neither “explained why, assuming that cigarette smoking
played

the

main

role

in

causing

the

Claimant’s

acknowledged

pulmonary and respiratory disability, coal mine dust exposure
could not have played some lesser, but nevertheless significant,
role, consistent with the discussion of the epidemiology in the
Preamble to the regulations.”

Id. at 22–23.

Further, the ALJ credited Dr. Forehand, who explained that
“the

consequences

of

cigarette

smoking

and

coal

mine

dust

exposure were additive and combine to totally and permanently
disable claimant.”

Id. at 22. (quotation marks omitted).

The

ALJ found this conclusion to be “reasoned and documented, as
well as consistent with the Department of Labor’s analysis as
set forth in the Preamble to the amended regulations.”

Id.

The

ALJ further found that neither Dr. Hippensteel nor Dr. Rosenberg
refuted

Dr.

Forehand

because

neither

explained

how

they

determined “that coal mine dust exposure did not contribute to
or aggravate the disability.”

Id. at 23.

Thus, the ALJ concluded that Westmoreland failed to rebut
the fifteen-year presumption because it failed to establish that
Stidham

did

concluded

not

that

presumption

have

legal

Westmoreland

because

it

pneumoconiosis.

The

ALJ

failed

the

fifteen-year

failed

to

to

rebut

establish

Stidham’s disability was caused by pneumoconiosis.

11

that

further

none

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Westmoreland appealed to the Board, arguing, among other
things, that the ALJ erred by finding that the employer failed
to rebut the presumption of pneumoconiosis.
holding

that

credibility

substantial

evidence

determinations

and

The Board affirmed,

supported
ultimate

the

ALJ’s

conclusions.

Westmoreland now petitions this Court for review.

III.
At the outset, we note that it is undisputed that Stidham
is totally disabled from chronic obstructive pulmonary disease
(“COPD”), that Stidham worked in Westmoreland’s mines for over
twenty-nine years, and that because he worked underground for
more than fifteen years, Stidham is entitled to the fifteen-year
presumption that his total disability is due to pneumoconiosis. 3
The only contested issue is whether Westmoreland has rebutted
the presumption.
Westmoreland
supported

by

interpreting

argues

substantial
“the

that

the

evidence

Preamble

to

and

ALJ’s
that

discredit

3

all

decision
the

ALJ

medical

is

not

erred

by

evidence

In its opening brief, Westmoreland contested the
applicability
of
the
fifteen-year
presumption.
However,
Westmoreland
expressly
abandoned
this
challenge
at
oral
argument. Had Westmoreland advanced it, it would have failed in
any event, because substantial, uncontested evidence supports
the application of the presumption in this case.

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that coal mine dust did not cause or contribute to claimant’s
pulmonary condition.”

Petitioner’s Br. at 42.

Westmoreland

further argues that the ALJ’s invocation of the Preamble created
an irrefutable presumption, “an impermissible burden shifting[,]
and [a] violation of due process . . . .”
49.

Petitioner’s Br. at

We address each argument in turn.
A.
Westmoreland’s first argument on appeal is that the ALJ’s

decision

is

not

supported

by

substantial

evidence,

in

part

because the ALJ improperly relied on the Preamble to “discredit
all medical evidence” supporting the assertion that Stidham did
not have pneumoconiosis.

Petitioner’s Br. at 42.

This argument

mischaracterizes the ALJ’s use of the Preamble and misconstrues
the ALJ’s decision.
In an opinion spanning twenty-five single-spaced pages, the
ALJ

thoroughly

medical

analyzed

evidence

before

and

weighed

deciding

the

that

rebut the fifteen-year presumption.

large

quantity

Westmoreland

failed

of
to

The ALJ determined that the

standard X-ray evidence was in equipoise, that the record failed
to

support

acceptable
hospital

that
or

the

digital

relevant,

records

failed

and
to

X-ray
that

evidence
Stidham’s

address

the

was

medically

treatment

etiology

of

and
his

disability.

The ALJ explained that the CT scan evidence tended

to

finding

rebut

a

of

clinical
13

pneumoconiosis

but

that

it

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supported

nor

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undermined

the

finding

of

legal

pneumoconiosis because the interpretation of the scans failed to
address

the

etiology

of

the

lung

disease

that

was

obviously

present.
Turning to the medical opinion evidence, the ALJ noted that
“there is a split . . . on the issue of pneumoconiosis, with two
physicians

finding

existence.”

pneumoconiosis

and

two

ALJ Decision and Order at 21.

disputing

its

The ALJ concluded

that the competing medical opinion evidence failed to rebut a
finding of legal pneumoconiosis “although it does tend to rebut
a finding of clinical pneumoconiosis.”
The

ALJ

explained

in

detail

Id. at 18.

how

she

looked

behind

the

conclusions of all four physicians to consider the evidence on
which their conclusions were based.

She determined that Dr.

Basham’s diagnosis was “made by history” and was “essentially
conclusory on the pneumoconiosis issue.”

Id. at 21.

The ALJ

further found that although Dr. Forehand relied on more X-ray
evidence than did Drs. Rosenberg and Hippensteel, he did not
review the same negative CT scans that they used to reach their
conclusions.

She thus gave the opinions of Drs. Rosenberg and

Hippensteel more weight.

Id.

The ALJ found their opinions,

together with the CT scan evidence, sufficient to establish that
Stidham did not suffer from clinical pneumoconiosis.

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However,
opinions

the

or

ALJ

other

Pg: 15 of 20

determined

evidence

that

none

rebutted

a

of

the

finding

medical

of

legal

pneumoconiosis or a finding that Stidham’s disability was caused
by pneumoconiosis.

In the same way that she looked at the

reasoning behind the conclusions of Drs. Basham and Forehand
when

she

determined

diagnosis

of

that

clinical

they

did

not

pneumoconiosis,

adequately
the

ALJ

support

examined

a

the

reasoning employed by Drs. Rosenberg and Hippensteel and found
that although they claimed to rule out any contribution of coalmine dust, they “were not actually able to rule it out.”
22.

Id. at

Specifically, the ALJ noted that Dr. Hippensteel failed to

explain

why

coal-mine

dust

could

not

have

contributed

to

Stidham’s impairment and that Dr. Rosenberg failed to explain
why

coal-mine

disability.
cogent

dust

could

Id. at 22–23.

basis

for

not

have

aggravated

Stidham’s

“They therefore did not articulate a

excluding

coal

mine

dust

exposure

as

a

causative agent, and they did not refute the existence of legal
pneumoconiosis.”

Id. at 23.

The ALJ further found “that the

Employer has failed to rule out pneumoconiosis as a cause of
Claimant’s

disability

for

the

same

reason

that

Employer

has

failed to prove by a preponderance of the evidence that Claimant
does not suffer from legal pneumoconiosis.”
The

ALJ’s

Hippensteel

determination

failed

to

that

support
15

their

Dr.

Id.
Rosenberg

broad

and

conclusions

Dr.
with

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substantive analysis would have been sufficient to find that
Westmoreland did not rebut the presumption.
not

the

only

basis

for

the

ALJ’s

However, this was

decision.

Dr.

Forehand

testified that Stidham had pneumoconiosis and that it was caused
by

a

combination

of

cigarette smoking.

his

coal

mine

dust

exposure

and

his

And the ALJ had previously explained that

Dr. Forehand’s opinion was entitled to the same weight as those
of Drs. Hippensteel and Rosenberg.
The ALJ further noted that Dr. Forehand’s testimony was
consistent
Preamble.

with

the

medical

According

to

the

research

studies

Preamble,

cited

scientific

in

the

literature

“support[s] the theory that dust-induced emphysema and smokeinduced

emphysema

occur

through

similar

mechanisms.

.

.

.”

Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, 65 Fed. Reg. 79920, 79943 (Dec. 20, 2000).

The

Preamble also notes that “[e]ven in the absence of smoking, coal
mine

dust

significant

exposure
airways

is

clearly

obstruction

associated
and

chronic

risk is additive with cigarette smoking.”

with

clinically

bronchitis.

The

Id. at 79940.

We have previously “made plain that an ALJ may consider the
. . . Preamble in assessing medical expert opinions.”
718 F.3d at 323.

Cochran,

See also Harman, 678 F.3d at 314-15 (“Although

the ALJ did not need to look to the preamble in assessing the
credibility of [a doctor’s] views, we conclude that the ALJ was
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entitled to do so . . . .”).

Pg: 17 of 20

And that is precisely what the ALJ

did in this case.
Put simply, the ALJ did not use “the Preamble to discredit
all

medical

evidence

that

coal

mine

dust

did

contribute to claimant’s pulmonary condition.”
at 42.
large

not

cause

or

Petitioner’s Br.

Rather, the ALJ admitted and thoughtfully considered a
quantity

persuasive

of

in

medical

her

evidence,

determination

some

that

of

which

Stidham

she

did

not

found
have

clinical pneumoconiosis and some of which she found persuasive
in her determination that Westmoreland failed to rebut the other
aspects of the fifteen-year presumption.
To the extent that the ALJ used the Preamble, it was as a
tool to assess the relative credibility of the competing medical
opinion
whose

evidence.

Specifically,

conclusion

consistent

credited

Dr.

his

analysis

and

Rosenberg

and

was

supported

by

the

with

Hippensteel,

she

Preamble,

over

whose

conclusions

were

own

Drs.
not

only

Forehand,

inadequately

supported by their own analyses, but were also inconsistent with
the

Preamble.

reference

It

the

determination.

is

well

Preamble

within
when

the

making

ALJ’s

discretion

this

to

credibility

See Cochran, 718 F.3d at 323; Harman, 678 F.3d

at 314-15.
In

sum,

here,

as

in

“‘battle of the experts.’

Cochran,

the

parties

presented

a

It is the role of the ALJ—not the
17

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appellate court—to resolve that battle.”
324.

Cochran, 718 F.3d at

Here, as in Cochran, the ALJ’s “detailed order reveals a

careful

consideration

of

the

experts’

qualifications,

their

opinions, and the underlying medical science.

The order also

explains

evidence]

why

weight.”

the

ALJ

substantial

to

The

Id.

chose
ALJ’s

determinations

evidence

and

give

[certain

suggest

no

are

more

supported

reversible

by

error.

Accordingly, the Board properly affirmed.
B.
Westmoreland’s

second

argument

on

appeal

is

that

“[b]y

holding that the Preamble does not allow an employer to rebut
the

presumption

with

evidence

that

cigarette

smoking

.

.

.

caused claimant’s pulmonary impairment, [the ALJ] has limited
the

Employer’s

ability

to

rebut

the

presumption

to

such

a

substantial degree that the presumption is not rebuttable at
all.”

Petitioner’s Br. at 22.

Again, we disagree and find no

error with the ALJ’s use of the Preamble.
We first note that Westmoreland has again misconstrued the
ALJ’s

analysis.

Contrary

to

Westmoreland’s

framing

of

the

issue, the ALJ never held that the Preamble does not allow an
employer to rebut the fifteen-year presumption.
discussed

in

detail

above,

the

weighed a great deal of evidence.
Westmoreland

successfully

ALJ

and

carefully

Moreover, the ALJ found that

rebutted
18

admitted

In fact, as

the

presumption

as

to

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clinical pneumoconiosis.

Pg: 19 of 20

See, e.g., ALJ Decision and Order at

22 (recounting Dr. Rosenberg’s explanation that Stidham’s “lung
disease

was

commenting

classic
that

for

cigarette

“[h]is

smoking

discussion

on

Preamble

did

disease”

and

point

was

that

persuasive”).
The

ALJ’s

rebuttable

use

of

the

presumption

into

an

not

transform

irrefutable

the

presumption.

Westmoreland’s experts presented evidence that, if found to be
credible, might have been sufficient to rebut the presumption.
But, as discussed at length above, the ALJ determined that the
conclusions of the medical opinions offered in rebuttal were not
supported by the analyses on which they were based.

Moreover,

they directly conflicted with an opinion that the ALJ found to
be well-supported and well-reasoned.

Finally, the ALJ found

those conclusions to be in conflict with the Preamble, which we
have

held

the

credibility.

ALJ

may

consider

in

assessing

physicians’

Cochran, 718 F.3d at 323–25; Harman, 678 F.3d at

314–15.
Credibility determinations are made by the ALJ, not by this
Court, and “[w]e defer to the ALJ’s evaluation of the proper
weight to accord conflicting medical opinions.”
F.3d

at

Preamble

342.
to

We
assist

find

no

in

her

error

with

credibility

competing expert medical opinions.
19

the

ALJ’s

Stiltner, 86
use

of

the

determination

of

the

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Pg: 20 of 20

IV.
For the foregoing reasons, we deny Westmoreland’s petition
for review.
PETITION FOR REVIEW DENIED

20