Eastern Associated Coal Corpor v. DOWCP

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 13-0531 BLA. [999694419]. [14-1923]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1923

EASTERN ASSOCIATED COAL CORPORATION,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CLARA SUE TOLER, Administratrix
of the Estate of Arvis R. Toler,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(13-0531 BLA)

Argued:

September 17, 2015

Decided:

November 6, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Petition for review denied by published opinion.
Judge King
wrote the opinion, in which Judge Motz and Judge Gregory joined.

ARGUED:
Mark
Elliott
Solomons,
GREENBERG
TRAURIG,
LLP,
Washington,
D.C.,
for
Petitioner.
Evan
Barret
Smith,
APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky; Jeffrey
Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG
TRAURIG, LLP, Washington, D.C., for Petitioner.
M. Patricia
Smith, Solicitor of Labor, Rae Ellen Frank James, Associate
Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,

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Washington, D.C., for Respondent Director, Office of Workers’
Compensation Programs.

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KING, Circuit Judge:
Eastern Associated Coal Corporation petitions for review of
the

2014

decision

of

the

Benefits

Review

Board

(the

“BRB”)

affirming an award of black lung benefits to Arvis R. Toler.
Toler first applied for black lung benefits in 1993, but that
claim

was

denied.

In

granting

Toler’s

second

claim

for

benefits, which was filed in 2008, an administrative law judge
(“ALJ”) invoked the rebuttable presumption that a coal miner
with a fifteen-year work history of underground coal mining and
a

totally

disabling

pneumoconiosis

(the

contends

that,

by

Toler’s

second

Benefits

Act,

pulmonary

“fifteen-year
applying

claim,
30

impairment

the

U.S.C.

the
ALJ

is

disabled

presumption”).

fifteen-year
contravened

§§ 901-945

(the

due

Eastern

presumption
the

to

Black

“Act”),

and

to

Lung
its

regulations, as well as principles of finality and separation of
powers.

As explained below, we deny the petition for review and

thereby affirm the BRB’s decision.

I.
A.
1.
Congress created the black lung benefits program in 1969
“to

provide

benefits

. . .

to

coal

miners

who

are

totally

disabled due to pneumoconiosis and to the surviving dependents
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of miners whose death was due to such disease.”
§ 901(a).
of

the

30 U.S.C.

Pneumoconiosis is defined as “a chronic dust disease
lung

pulmonary

and

its

impairments,

sequelae,
arising

including

out

of

coal

respiratory
mine

and

employment.”

Id. § 902(b).
The Act empowers the Secretary of Labor (the “Secretary”)
to implement its provisions and promulgate appropriate standards
for determining whether a coal miner is entitled to benefits
thereunder.
to

the

See 30 U.S.C. §§ 902(c), 921(b), 936(a).
regulations,

“[c]onditions

of

(1)

has

that

arose

he

out

of

a

miner

entitlement”

to

pneumoconiosis;

coal

mine

must
obtain
(2)

employment;

“establish[]”
black

that
(3)

Pursuant

lung

his
that

four

benefits:

pneumoconiosis
he

is

totally

disabled; and (4) that pneumoconiosis contributes to his total
disability.

See 20 C.F.R. § 725.202(d); see also W. Va. CWP

Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015).
The

applicable

pneumoconiosis:

regulations

identify

legal and clinical.

two

types

of

20 C.F.R. § 718.201(a).

Clinical pneumoconiosis “consists of those diseases recognized
by the medical community as pneumoconioses, 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.”

Id. § 718.201(a)(1).
4

Legal pneumoconiosis is

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defined more broadly to “include[] any chronic pulmonary disease
or respiratory or pulmonary impairment significantly related to,
or

substantially

employment.”

aggravated

by,

dust

Id. § 718.201(a)(2).

exposure

in

coal

mine

Clinical pneumoconiosis can

be further classified as either “simple” or “complicated.”
Usery

v.

Turner

Complicated

86

Mining

pneumoconiosis,

“progressive
OWCP,

Elkhorn

massive

F.3d

428

sometimes

fibrosis,”

1358,

Co.,

1359-60

see

(4th

1,

7

referred

Lisa
Cir.

U.S.

See

(1976).
to

Lee

Mines

1996)

(en

v.

as
Dir.,

banc),

is

characterized by the presence of “massive lesions” in the lungs
that resolve on imaging as opacities at least one centimeter in
diameter.

See 30 U.S.C. § 921(c)(3).

Congress

has

occasionally

“recalibrated”

the

applicable

standards for entitlement to benefits under the Act.

See W. Va.

CWP Fund v. Stacy, 671 F.3d 378, 381 (4th Cir. 2011).
responding

to

mounting

evidence

that

meritorious

In 1972,

claims

were

being unjustifiably denied, Congress amended the Act to afford a
presumption of total disability due to pneumoconiosis to a coal
miner who could show that he had worked underground for at least
fifteen

years

and

was

suffering

respiratory or pulmonary impairment.

from

a

totally

disabling

See Black Lung Benefits

Act of 1972, Pub. L. No. 92-303, § 4(c), 86 Stat. 150, 154
(codified

as

amended

at

30

U.S.C.

§ 921(c)(4));

Mathews, 558 F.2d 475, 478-79 (8th Cir. 1977).
5

Bozwich

v.

The fifteen-year

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presumption could be rebutted “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.”
U.S.C. § 921(c)(4). 1

See 30

In 1981, Congress repealed the fifteen-year

presumption for claims filed on or after January 1, 1982.

See

Black Lung Benefits Revenue Act of 1981, § 202(b)(1), Pub. L.
No. 97-119, 95 Stat. 1635, 1643 (repealed 2010); Bender, 782
F.3d at 134.
In

March

2010,

Congress

restored

the

fifteen-year

presumption — after a twenty-nine-year hiatus — by enacting
§ 1556(a) of the Patient Protection and Affordable Care Act (the
“ACA”), Pub. L. No. 111-148, 124 Stat. 119, 260 (2010) (codified
at 30 U.S.C. § 921(c)(4)).

Section 1556(c) of the ACA provided

that the fifteen-year presumption “shall apply with respect to
claims filed . . . after January 1, 2005, that are pending on or
after the date of enactment” of the ACA — that is, March 23,
2010.
In 2013, the Secretary promulgated regulations implementing
the revived fifteen-year presumption.
Bender, 782 F.3d at 134-35.

See 20 C.F.R. § 718.305;

Under those regulations, a party

1

A coal miner with complicated pneumoconiosis is entitled
to an irrebuttable presumption of total disability due to
pneumoconiosis. See 30 U.S.C. § 921(c)(3).

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opposing a claim for benefits is entitled to rebut the fifteenyear presumption by establishing either (1) that the miner has
neither legal pneumoconiosis nor clinical pneumoconiosis arising
out of coal mine employment, or (2) “that no part of the miner’s
respiratory

or

pneumoconiosis.”
rebut

the

obliged

to

pulmonary

total

disability

20 C.F.R. § 718.305(d)(1).

fifteen-year

presumption,

“‘rule

any

out’

the

connection

pneumoconiosis and his disability.”

was

caused

by

In other words, to
opposing

between

party

[the]

is

miner’s

See Bender, 782 F.3d at

135.
2.
Under

the

regulations

governing

subsequent

black

lung

benefits claims, a coal miner who has had an earlier claim for
benefits

denied

conditions

of

must

establish

entitlement”

“that

specified

one
in

of

the

applicable

§ 725.202(d)

“has

changed since the date upon which the order denying the prior
claim

became

final.”

See

20

C.F.R.

§ 725.309(c).

The

regulations limit the “applicable conditions of entitlement” to
“those conditions upon which the prior denial was based.”
§ 725.309(c)(3).

Id.

If the applicable conditions of entitlement

“relate to the miner’s physical condition,” then “the subsequent
claim

may

be

approved

only

if

new

evidence

submitted

in

connection with the subsequent claim establishes at least one
applicable condition of entitlement.”
7

Id. § 725.309(c)(4).

If

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a claimant fails to show a change in an applicable condition of
entitlement, the claim must be denied.

Id. § 725.309(c).

But,

if the claimant shows a change in an applicable condition of
entitlement, none of the findings from the prior adjudication
are binding, and the new claim must be evaluated de novo, based
on all of the evidence.

Id. § 725.309(c)(5).

Even if the

claimant prevails on the subsequent claim, no benefits may be
awarded for the period adjudicated by the prior claim.

Id.

§ 725.309(c)(6).
Prior
earlier

to

claim

2000,
was

§ 725.309
denied

required
show

to

a

“material

a

coal

conditions” in order to pursue a subsequent claim.
Mines, 86 F.3d at 1360.

miner

whose

change

in

See Lisa Lee

During that period, the Director of the

Office of Workers’ Compensation Programs (the “Director”), the
BRB,

and

the

courts

interpretations

of

conditions.”

the

To

of

appeals

regulatory

resolve

that

rendered

phrase

conflicting

“material

conflict

and

change

clarify

in
the

applicable standard, the Secretary initiated notice-and-comment
rulemaking

pursuant

U.S.C. § 553.

to

the

Administrative

Procedure

Act,

5

See Regulations Implementing the Federal Coal

Mine Health and Safety Act of 1969, as Amended, 62 Fed. Reg.
3338-01, 3351-52 (proposed Jan. 22, 1997).

At the conclusion of

that rulemaking process, the Secretary promulgated a final rule
(the

“2000

Final

Rule”)

establishing
8

the

standard

currently

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specified

in

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§ 725.309.

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See

Regulations

Implementing

the

Federal Coal Mine Health and Safety Act of 1969, as Amended, 65
Fed. Reg. 79,920-01, 79,968, 80,067-68 (Dec. 20, 2000) (to be
codified at 20 C.F.R. § 725.309).
The

Secretary’s

2000

Final

Rule

expressly

adopted

our

Court’s en banc 1996 decision in Lisa Lee Mines on the meaning
of a “material change in conditions.”
2000

Final

Rule,

the

Secretary

“effectuat[ing]” Lisa Lee Mines.

In the preamble to the

explained

that

she

was

See 2000 Final Rule, 65 Fed.

Reg. at 79,968; see also Regulations Implementing the Federal
Coal Mine Health and Safety Act of 1969, as Amended, 64 Fed.
Reg.

54,966-01,

54,984

(proposed

Oct.

8,

1999)

(“The

[Secretary]’s subsequent claims provision gives full effect to
the

Fourth

Circuit’s

decision

in

Lisa

Lee

Mines

. . . .”).

Because the Secretary expressly endorsed and adopted Lisa Lee
Mines when she promulgated the 2000 Final Rule, Lisa Lee Mines
remains the law of this Circuit and guides our interpretation of
§ 725.309. 2

2

As we recognized in Harman Mining Co. v. Director, OWCP,
the preamble to the 2000 Final Rule “may serve as a source of
evidence concerning contemporaneous agency intent.”
See 678
F.3d 305, 316 (4th Cir. 2012) (internal quotation marks
omitted).

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3.
Alva Rutter, the coal miner-claimant in Lisa Lee Mines,
unsuccessfully sought black lung benefits in 1986.
at

1360.

Three

years

thereafter,

he

filed

a

See 86 F.3d
second

claim,

supported by more recent x-rays that indisputably established
his entitlement to benefits.

Id. at 1359-60.

Lisa Lee Mines,

the responsible operator, contested Rutter’s claim solely on the
ground

that

conditions.”

Rutter

had

not

Id. at 1360.

shown

a

“material

change

in

An ALJ ruled that Rutter had shown

such a change, reasoning that the medical evidence showed “a
definite

progression”

of

Rutter’s

disease

“resulting

in

[Rutter’s] reduced capacity to do his former coal mine work.”
Id.

The ALJ further concluded that, even if Rutter failed to

show

a

material

change

in

conditions,

the

1986

denial

“erroneous on its face and ‘null and void ab initio.’”

was
Id.

Accordingly, the ALJ awarded benefits effective on the date that
Rutter’s first claim was filed.

Id.

The BRB affirmed the award

of benefits, but concluded that the ALJ was not entitled to
reopen the 1986 denial.
provide

that

benefits

Id.
would

Rutter filed his second claim.

It therefore modified the award to
be

payable

only

as

of

the

date

Id.

Lisa Lee Mines then sought review in this Court.

In our en

banc decision, we agreed that the BRB had properly reversed the
ALJ’s reopening of the 1986 denial.
10

See Lisa Lee Mines, 86 F.3d

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at

Doc: 82

1361.

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We

explained

that,

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because

the

1986

decision

was

“final,” that decision “and its necessary factual underpinning”
must be accepted as “correct.”

Id.

We emphasized, however,

that the first BRB decision did not bar a subsequent claim “as a
matter of ordinary res judicata,” because “[t]he health of a
human

being

is

adjudication.”

not

susceptible

Id. at 1362.

to

a

once-in-a-lifetime

Rutter’s second claim for black

lung benefits required an assessment of his condition when that
claim was filed, an issue which neither was — nor could have
been — litigated in connection with Rutter’s first claim.

Id.

We then addressed the appropriate standard for evaluating
subsequent claims for black lung benefits, and we adopted the
“one element” standard advanced by the Director.
Mines, 86 F.2d at 1362-64.
prove,

under

all

of

the

See Lisa Lee

That rule required the claimant “to
probative

medical

evidence

of

his

condition after the prior denial, at least one of the elements
previously adjudicated against him.”
a

more

stringent

standard,

drawn

Id. at 1362.
from

the

We rejected

Seventh

Circuit’s

decision in Sahara Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir.
1991), that would have required the claimant to show a change in
condition
because

it

holdings,”

on

every

did
and

not

element
“account

because

it

previously
for

required

the

evidence behind the first claim.”
11

“a

decided
frailty
plenary

against
of

him,

alternative

review

of

the

Lisa Lee Mines, 86 F.3d at

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We also rejected the standard sponsored by the BRB in

Spese v. Peabody Coal Co., 11 BLR 1-174, 1-176 (Ben. Rev. Bd.
1988), which would have allowed a coal miner’s subsequent claim
to proceed if the miner presented new evidence that raised a
reasonable possibility of changing the result, deeming such a
standard vague, illogical, and “arguably” too lenient.

Lisa Lee

Mines, 86 F.3d at 1363.
B.
1.
For twenty-seven years, Arvis Toler worked in and about
Eastern’s coal mines in southern West Virginia, primarily as an
electrician.

For

sixteen

of

those

years,

Toler

toiled

underground, where he was exposed to high concentrations of coal
dust.
a

Between approximately 1966 and 1997, he generally smoked

pack

of

cigarettes

each

day.

Toler

shortness of breath in the mid-1980s.
worsened,

and,

in

1993,

at

age

began

to

experience

His breathing problems

fifty-five,

Toler’s

failing

health caused him to quit his job as a coal miner.
In 1993, shortly before he left Eastern, Toler filed his
first claim for black lung benefits.

An ALJ found that Toler

was totally disabled by severe obstructive pulmonary disease,
but also that Toler had failed to show that his work in the coal
mines

(rather

illness.

than

his

smoking

habit)

caused

his

pulmonary

As such, the ALJ denied Toler’s claim for benefits.
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The BRB affirmed the ALJ’s decision, explaining that the ALJ had
properly weighed the evidence and permissibly found that Toler
had

not

shown

by

a

preponderance

suffered from pneumoconiosis.

of

the

evidence

that

he

Toler thereafter petitioned this

Court for review of the BRB’s adverse decision.

In 1998, we

denied Toler’s petition for review and affirmed the BRB.

See

Toler v. E. Assoc. Coal Corp., No. 97-2148 (4th Cir. Aug. 19,
1998) (unpublished).
2.
a.
Despite
smoking

leaving

habit,

decline.

his

Toler’s

coal

mine

work

respiratory

and

abandoning

condition

continued

his
to

By 2000, Toler required supplemental oxygen, and he

began using oxygen twenty-four hours per day in 2008.
Toler filed his second claim for black lung benefits on
February
undergo

26,
a

2008.

complete

§ 725.406(a).
ray,

In

April

pulmonary

2008,

the

evaluation.

Director

had

See

20

Toler
C.F.R.

As part of that evaluation, Toler had a chest x-

which

a

pneumoconiosis,

radiologist
as

well

as

blood

as

read

gas

positive
and

for

pulmonary

simple
function

tests, which indicated that Toler was permanently disabled due
to a pulmonary impairment.
examination

of

pneumoconiosis

Toler,
category

Based on those tests, and on his own

Dr.
s/t,

John
1/0;
13

Burrell
severe

diagnosed
chronic

“[s]imple

obstructive

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pulmonary disease; [and] [arteriosclerotic heart disease] with
[coronary artery disease], based on history, physical, chest xray, [arterial blood gas test results] & [pulmonary function
See J.A. 243. 3

studies].”
occupational

exposure

Dr. Burrell identified smoking and

to

coal

dust

as

causes

of

Toler’s

pulmonary impairments.
Both Toler and Eastern submitted additional evidence to the
Director

regarding

the

second

claim.

Toler

furnished

a

radiologist’s reading of a July 14, 2008 x-ray that was also
positive

for

simple

pneumoconiosis,

and

Eastern

introduced

a

negative reading of the April 2, 2008 x-ray.
On

October

proposed

23,

decision

2008,

and

order

the

district

granting

director

Toler’s

issued

second

a

claim.

Because Eastern objected to the decision, Toler’s second claim
was scheduled for a March 17, 2010 hearing before an ALJ.

Toler

testified at the hearing and introduced several new exhibits.
Toler’s exhibits included a second reading of the July 14, 2008
x-ray

as

positive

for

pneumoconiosis,

as

pulmonary function and blood gas studies.

well

as

additional

Toler also submitted

a letter from his treating physician advising that Toler “has
severe

obstructive

lung

disease

3

with

pulmonary

nodule

and

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.

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intermittent infiltrates” and opining that “it is quite probable
given the severity of Mr. Toler’s disease that coal dust played
an integral role in [its] development.”
Eastern

introduced

several

J.A. 103.

other

exhibits

into

evidence,

including negative readings of the April and July 2008 x-rays, a
December 11, 2009 digital x-ray, and five CT scans taken between
December 2006 and November 2008.

In addition, Eastern furnished

reports by Dr. David Rosenberg and Dr. Joseph Renn concluding
that Toler did not have pneumoconiosis.
the

uncontested

depositions

of

Drs.

Finally, Eastern took

Rosenberg

and

Renn

and

introduced those depositions.
b.
On June 15, 2010, the ALJ issued his Decision and Order
(the “2010 ALJ Order”) granting Toler’s claim for benefits.

The

ALJ accepted the parties’ stipulations that Toler was a coal
miner,

that

impairment,

Toler
and

was

that

totally

Eastern

disabled

was

the

from

a

pulmonary

responsible

operator.

Based thereon, the ALJ applied the newly restored fifteen-year
presumption to Toler’s claim and identified the only remaining
issue as “[w]hether [Eastern] can establish that [Toler] does
not suffer from pneumoconiosis.”

See 2010 ALJ Order 3.

The ALJ

then examined the opinions of Drs. Rosenberg and Renn, rejecting
both

because

they

were

grounded

in

a

misinterpretation

of

a

medical study and because those experts had failed to consider
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Toler’s

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twenty-seven-year

Accordingly,

the

ALJ

Pg: 16 of 32

history

concluded

of

that

coal

mine

Eastern

employment.

had

failed

to

demonstrate that Toler did not have pneumoconiosis or that his
pulmonary

impairment

did

not

arise

out

of,

or

in

connection

with, Toler’s coal mine employment.
Eastern

appealed

the

2010

ALJ

Order

to

the

BRB,

which

promptly remanded to the ALJ to afford Eastern the opportunity
to

submit

new

presumption.

evidence
On

aimed

remand,

at

rebutting

Eastern

submitted

the
to

fifteen-year
the

ALJ

an

additional report from Dr. Rosenberg, and both Eastern and Toler
submitted briefs supporting their respective positions.
On August 1, 2013, the ALJ issued his second Decision and
Order (the “2013 ALJ Order”) granting Toler’s claim for black
lung benefits.

Relying on the Seventh Circuit’s decision in

Consolidation Coal Co. v. Director, OWCP, 721 F.3d 789 (7th Cir.
2013) (hereinafter “Bailey”), the ALJ again applied the fifteenyear presumption to Toler’s second claim.

In assessing whether

Eastern had rebutted that presumption, the ALJ discussed the
evidence

in

some

detail.

The

ALJ

first

concluded

that

the

radiological evidence was inconclusive as to pneumoconiosis, and
thus

insufficient

to

meet

Eastern’s

burden.

Turning

to

the

expert evidence, the ALJ again rejected Drs. Rosenberg’s and
Renn’s opinions for much the same reasons specified in the 2010
ALJ

Order.

The

ALJ

evaluated
16

and

rejected

Dr.

Rosenberg’s

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supplemental report, reasoning, inter alia, that Dr. Rosenberg’s
conclusions were “inconsistent with the [Secretary]’s findings
in the preamble to” the 2000 Final Rule.

See 2013 ALJ Order 10. 4

Thus, the ALJ concluded that Eastern had failed to rebut the
fifteen-year

presumption

and

that

Toler

was

entitled

to

benefits.
Eastern thereafter appealed the 2013 ALJ Order to the BRB,
which affirmed the ALJ by its Decision and Order of July 7, 2014
(the “BRB Decision”).

The BRB considered and rejected Eastern’s

arguments that principles of finality and res judicata precluded
application of the fifteen-year presumption to Toler’s second
claim.

In rejecting Eastern’s contention that Toler improperly

sought to relitigate or reopen his first claim, the BRB invoked
our

teaching

in

Lisa

Lee

Mines,

86

F.3d

at

1362,

that

a

subsequent claim is not the same as a prior claim and is not
barred

by

the

denial

of

the

earlier

claim.

Because

the

adjudication of Toler’s second claim did not disturb either the
denial

of

benefits

on

his

first

4

claim

or

this

Court’s

In the preamble to the 2000 Final Rule, the Secretary
explained that “[e]pidemiological studies have shown that coal
miners have an increased risk of developing COPD.”
2000 Final
Rule, 65 Fed. Reg. 79,973.
The Secretary’s review of the
medical literature revealed that the severity of COPD among coal
miners “was related to the amount of dust in the lungs,” and
that this correlation “held even after controlling for age and
smoking habits.” Id. at 79,941.

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disposition of his petition for review, the BRB concluded that
granting

the

second

claim

did

not

offend

any

principles relating to separation of powers.
Seventh

Circuit’s

Bailey

decision,

the

constitutional
Relying on the

BRB

also

rejected

Eastern’s contention that the fifteen-year presumption cannot be
used

to

establish

entitlement.

a

change

in

an

applicable

condition

of

Finally, the BRB rejected Eastern’s contentions

that the ALJ had applied an improper rebuttal standard and erred
in

ruling

that

Eastern

failed

to

rebut

the

fifteen-year

presumption.
Eastern has filed a timely petition for review of the BRB
Decision, in which the Director and Toler’s widow are presently
the respondents. 5

We possess jurisdiction to consider Toler’s

petition for review pursuant to 30 U.S.C. § 932(a) and 33 U.S.C.
§ 921(c).

II.
We review an ALJ decision that has been affirmed by the BRB
to

determine

whether

it

is

in

supported by substantial evidence.

5

accordance

with

the

law

and

See Island Creek Coal Co. v.

On March 19, 2015, after this matter was fully briefed,
Toler
passed
away.
His
widow,
Clara
Sue
Toler,
as
administratrix of her husband’s estate, has been substituted as
a respondent in his place and stead.

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Compton, 211 F.3d 203, 207-08 (4th Cir. 2000).

In so doing, we

confine our review to the grounds upon which the BRB based its
decision.
1994).
law.

See Grigg v. Dir., OWCP, 28 F.3d 416, 418 (4th Cir.

As always, we review de novo the BRB’s conclusions of
See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th

Cir. 1998).

III.
Eastern presses two primary assignments of error in its
petition for review:

(1) that, by applying the fifteen-year

presumption to Toler’s second claim, the ALJ reopened a final
judgment of an Article III court, in contravention of separation
of powers principles; and (2) that the ALJ improperly used the
fifteen-year presumption to establish that one of the applicable
conditions
Toler’s

of

first

entitlement
claim. 6

had

changed

Because

6

since

Eastern’s

the

first

denial

of

contention

In its briefs in this Court, Eastern also contended that
the ALJ erred in requiring Eastern to “rule out” either
pneumoconiosis or disability due to pneumoconiosis in order to
rebut the fifteen-year presumption.
Eastern conceded at oral
argument, however, that our recent decision in West Virginia CWP
Fund v. Bender forecloses that contention.
See 782 F.3d 129,
143 (4th Cir. 2015) (upholding “rule-out” standard).
Our
precedent also readily dispatches Eastern’s complaints about the
ALJ’s consideration of the preamble to the 2000 Final Rule in
evaluating the opinions of Drs. Rosenberg and Renn. See Harman
Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir. 2012)
(concluding that ALJ did not err in invoking regulatory preamble
in
assessing
medical
expert’s
credibility);
see
also
(Continued)
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requires us to pass on the constitutionality of agency action,
we are obliged to first address its second contention.

See

Marshall v. Stevens People & Friends for Freedom, 669 F.2d 171,
175

(4th

Cir.

1981)

(resolving

statutory

challenges

to

administrative subpoenas before addressing constitutional issues
(citing

Ashwander

v.

Tenn.

Valley

Auth.,

297

U.S.

288,

347

(1936) (Brandeis, J., concurring))).
A.
First,

Eastern

presumption

to

maintains

show

a

change

that
in

utilizing
a

the

condition

of

fifteen-year
entitlement

pursuant to 20 C.F.R. § 725.309(c) contravenes the Act and the
implementing regulations.

We disagree.

Both the Act and the regulations show plainly that a coal
miner

armed

with

new

evidence

may

invoke

the

fifteen-year

presumption to establish a change in an applicable condition of
entitlement.
that
since

an
the

Section 725.309(c) requires a coal miner to show

“applicable
prior

condition[]

denial.

“If

of

the

entitlement”
applicable

has

changed

condition(s)

of

entitlement relate to the miner’s physical condition,” then the
miner may rely only on new evidence to show a change in an

Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 323 (4th Cir.
2014) (explaining that ALJ “may consider” regulatory preamble
“in assessing medical expert opinions”).

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applicable condition of entitlement.

See id. § 725.309(c)(4);

see also Consol. Coal Co. v. Williams, 453 F.3d 609, 617 (4th
Cir. 2006) (“[O]nly new evidence following the denial of the
previous claim, rather than evidence predating the denial, can
sustain a subsequent claim.”).

Section 725.202(d) lists the

“conditions of entitlement” for a coal miner’s claim, including
that the miner must have “pneumoconiosis” as it is defined in
§ 718.202.

Section 718.202 identifies several ways a miner can

establish pneumoconiosis, including by use of the fifteen-year
presumption

described

in

§ 718.305.

See

20

C.F.R.

§ 718.202(a)(3) (requiring the decisionmaker to presume that the
coal miner has pneumoconiosis “[i]f the presumptions described
in

§ 718.304

or

§ 718.305

are

applicable”).

And

§ 718.305

tracks the fifteen-year presumption revived in 2010 by § 1556(a)
of the ACA, which, pursuant to § 1556(c), applies to Toler’s
second claim because that claim was “filed . . . after January
1,

2005,”

and

was

“pending

on

or

after”

March

23,

2010.

Congress’s use of the term “claims” in § 1556(c) “without any
qualifying language . . . supports [the] position that amended
[§ 921(c)(4)]

applies

to

all

claims

that

comply

with

1556(c)’s time limitations, including subsequent claims.”

[§]
Union

Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013)
(citations and internal quotation marks omitted).

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The preamble to the 2000 Final Rule reinforces our textual
conclusion that the fifteen-year presumption, together with new
evidence, may establish a change in a condition of entitlement.
In the preamble, the Secretary rejected a comment suggesting
that

a

coal

miner

should

be

obliged

to

“submit

scientific

evidence establishing that the change in his specific condition
represents

latent,

Reg. at 79,972.
continues

to

progressive

pneumoconiosis.”

See

65

Fed.

Instead, as the Secretary explained, “the miner
bear

the

burden

of

establishing

all

of

the

statutory elements of entitlement, except to the extent that he
is aided by [the] two statutory presumptions” in effect at the
time the Secretary promulgated the 2000 Final Rule.

Id.

In

other words, the preamble evinces the Secretary’s intention that
any

applicable

statutory

presumptions

may

aid

a

miner’s

subsequent claim.
Thus, the text of the statute and regulations, as well as
the

preamble

to

the

2000

Final

Rule,

demonstrate

that

the

fifteen-year presumption applies to subsequent claims and may be
used

to

establish

entitlement.
we

would

a

change

in

an

applicable

defer

Co.

(explaining

v.

of

Even if we harbored doubts about that conclusion,
to

the

Director’s

reasonable

interpretation of the applicable regulations.
Coal

condition

Harris,
that

149

F.3d

Director’s

307,

310

interpretation
22

and

consistent

See Clinchfield
(4th
of

Cir.

1998)

applicable

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regulation is entitled to “substantial deference” and will be
respected

unless

“plainly

erroneous

or

inconsistent

with

the

express language” thereof (quoting Mullins Coal Co. v. Dir.,
OWCP, 484 U.S. 135, 159 (1987))).
Contrary

to

Eastern’s

suggestion,

application

of

the

fifteen-year presumption to a coal miner’s subsequent claim does
not amount to a “double presumption.”

See Br. of Petitioner 22.

Under the one-element test, the miner is required to “prove,
under all of the probative medical evidence of his condition
after the prior denial, at least one of the elements previously
adjudicated against him.”
see

also

20

C.F.R.

“demonstrate[]

that

See Lisa Lee Mines, 86 F.3d at 1362;

§ 725.309(c)
one

of

helps

the

miner

to

the

miner

to

applicable

the

entitlement . . . has changed”).
merely

(requiring

conditions

of

The fifteen-year presumption
establish

entitlement in the second claim.

the

conditions

of

It does not allow the ALJ to

“waive finality by presuming that something changed.”

See Br.

of Petitioner 22.
In advancing its preferred interpretation of the relevant
statutory

and

regulatory

provisions,

Eastern

relies

on

the

Secretary’s concession in National Mining Ass’n v. Department of
Labor that
latent,”

“the

see

concession,

in

most

292

common

F.3d

Eastern’s

849,

forms
863

view,
23

is

of

pneumoconiosis

(D.C.

Cir.

simply

are

2002).

inconsistent

not
That
with

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utilization

Filed: 11/06/2015

of

the

Pg: 24 of 32

fifteen-year

presumption

change in a condition of entitlement.
dispute

that

progressive,

complicated
it

insists

establish

a

Although Eastern does not

pneumoconiosis
that

to

“simple

can

be

latent

clinical[]

and

and
legal

pneumoconiosis[] are neither latent nor progressive,” and that
the Secretary conceded as much in National Mining Ass’n.

See

Br. of Pet’r 18.
Put succinctly, we are not “empowered to substitute [our]
judgment

for

Secretary’s

that

of

area

of

the

[Secretary]”

expertise.

See

on

matters

Hughes

within

River

the

Watershed

Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999); see
also Midland Coal Co. v. Dir., OWCP, 358 F.3d 486, 490 (3d Cir.
2004)

(“[W]e

see

no

reason

to

substitute

our

scientific

judgment, such as it is, for that of the responsible agency.”).
Eastern

therefore

bears

a

“heavy

burden

of

showing

that

the

[Secretary] was not entitled to use [her] delegated authority to
resolve the scientific question in this manner.”
358 F.3d at 490.

Midland Coal,

Eastern has failed to meet that burden in this

proceeding.
The

Secretary,

after

reviewing

“all

of

the

medical

literature referenced in the [2000 rulemaking] record,” located
“abundant
latent,
79,971.

evidence

progressive
The

demonstrating
disease.”

discussion

of

that

See
the
24

65

pneumoconiosis
Fed.

medical

Reg.

at

literature

is

a

79,970,
in

the

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preamble to the 2000 Final Rule demonstrates that both simple
and complicated pneumoconiosis can be latent and progressive.
In one study, fourteen of the thirty-three miners who showed
progression

of

pneumoconiosis

after

industry had simple pneumoconiosis.
see

also

P.T.

Donnan

et

leaving

the

coal

mining

See 65 Fed. Reg. at 79,970;

al.,

Progression

of

Simple

Pneumoconiosis in Ex-Coalminers After Cessation of Exposure to
Coalmine Dust (Inst. of Occupational Med., Dec. 1997).
study

“reported

pneumoconiosis)

both
and

small

large

opacities

opacities

(evidence

(evidence

of

of

Another
simple

complicated

pneumoconiosis) in ex-miners who did not show evidence of coal
workers’

pneumoconiosis

after

the

miners

2000 Final Rule, 65 Fed. Reg. at 79,970.

left

the

industry.”

Thus, “[t]he medical

literature makes it clear that pneumoconiosis” — even in its
simple form — “may be latent and progressive.”

Nat’l Mining

Ass’n, 292 F.3d at 863; accord RAG Am. Coal Co. v. OWCP, 576
F.3d

418,

426-27

(7th

Cir.

2009)

(rejecting

suggestion

that

simple pneumoconiosis can never be progressive or latent absent
further

exposure

to

coal

dust);

Labelle

Processing

Co.

v.

Swarrow, 72 F.3d 308, 315 (3d Cir. 1995) (same).
None of Eastern’s other contentions against application of
the

fifteen-year

presumption

have

merit.

Although

Eastern

contends that Toler’s second claim is “the same claim” as his
first claim “with a new label,” see Reply Br. of Pet’r 10, we
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rejected that very proposition in Lisa Lee Mines.

See 86 F.3d

at 1362 (“A new black lung claim is not barred . . . by an
earlier denial, because the claims are not the same.”).
precept

also

suffices

to

address

Eastern’s

reliance

That
on

principles of finality, to the extent those principles bear on
our interpretation of the statutory and regulatory provisions at
issue in this matter.

Furthermore, Lisa Lee Mines forecloses

Eastern’s suggestion that Toler should be compelled to prove
that the etiology of his condition has changed by comparing the
evidence pertaining to Toler’s second claim with the evidence
underlying the denial of his first claim.

See id. at 1361 (“The

final decision of the ALJ (or BRB or claims examiner) on the
spot is the best evidence of the truth at the time [of the first
claim].”); id. at 1363 (explaining that “plenary review of the
evidence behind the first claim” is impermissible); accord U.S.
Steel Mining Co. v. Dir., OWCP, 386 F.3d 977, 989 (11th Cir.
2004) (“[T]he ‘one element’ test does not compel a comparison of
the evidence associated with the second claim with the evidence
presented at the first claim; rather, it mandates a comparison
of the second claim’s evidence with the conclusions reached in
the prior claim.”).
Finally, Eastern’s suggestion that Toler failed to submit
new evidence — postdating the denial of his first claim — as
required

by

20

C.F.R.

§ 725.309(c)(4)
26

and

our

decision

in

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Williams,

453

Filed: 11/06/2015

F.3d

at

617,

Pg: 27 of 32

is

factually

incorrect.

Toler

introduced two positive readings of the July 2008 x-ray, results
of two spirometry and arterial blood gas tests, and a letter
from

his

treating

pulmonary

physician.

examination

In

conducted

addition,

pursuant

to

the
20

complete
C.F.R.

§ 725.406(a) yielded another x-ray reading that was positive for
pneumoconiosis, spirometry and blood gas tests consistent with
total disability, and Dr. Burrell’s examination report, in which
he opined that Toler’s pulmonary disability was caused in part
by coal dust exposure.

Despite Eastern’s intimations to the

contrary, that evidence is new.

Although Eastern may not regard

that evidence as “reliable or probative,” see Reply Br. of Pet’r
9,

weighing

the

evidence

is

for

the

ALJ,

not

the

court

of

appeals or appellate counsel. 7
In sum, Eastern has presented no good reason why the 2010
reenactment

of

the

fifteen-year

presumption

required

the

Secretary to revise his subsequent-claim rule or deviate from
his longstanding interpretation of that rule.
7

The BRB and ALJ

At oral argument and in a post-argument Rule 28(j) letter,
Eastern heaved a Hail Mary pass, invoking the principle that
courts
should
construe
statutes
to
avoid
“serious
[constitutional] doubt[s]” when such a construction is “fairly
possible.”
See Ashwander, 297 U.S. at 348 (Brandeis, J.,
concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
That contention also falls short, not least because Eastern has
raised no “serious” doubt about the constitutionality of any
particular statute or regulation.

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“must apply the law in effect at the time of a decision,” see
Bailey, 721 F.3d at 795, which is exactly what they did here.
Accordingly,

we

reject

contravened

either

the

Eastern’s
Act

or

contention

that

applicable

regulations

the

the

ALJ
by

applying the fifteen-year presumption to Toler’s second claim.
B.
Having rejected Eastern’s statutory argument, we turn to
its remaining constitutional contention:
the

fifteen-year

presumption

to

decide

that utilization of
Toler’s

second

claim

contravened constitutional principles of separation of powers.
Eastern

contends

“judicial
decision

that

Power”
in

in

Plaut

v.

the

ALJ

exercised

contravention

of

Spendthrift

Farm,

the

the

Article

Supreme

Inc.,

514

III

Court’s
U.S.

211

(1995), by permitting Toler to “relitigat[e] a final judgment of
this Court” — namely, our 1998 denial of his petition for review
of

the

BRB’s

first claim.

decision

affirming

the

ALJ’s

denial

of

Toler’s

See Br. of Pet’r 10.

At issue in Plaut was a 1991 amendment to the Securities
and

Exchange

response

to

Act
the

of

1934

Court’s

(the

decision

“Exchange
in

Act”)

Lampf,

adopted

Pleva,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991).

in

Lipkind,
In Lampf,

the Court held that actions under § 10(b) of the Exchange Act
“must be commenced within one year after the discovery of the
facts constituting the violation and within three years after
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such violation.”

Pg: 29 of 32

501 U.S. at 364.

The Lampf Court overruled

several courts of appeals that had applied state statutes of
limitations to § 10(b) actions.

See Plaut, 514 U.S. at 216.

In

Lampf’s wake, several actions pending in the lower courts were
dismissed because of Lampf’s holding.
214, 216.

See Plaut, 514 U.S. at

Six months after the Court decided Lampf, Congress

enacted a statute requiring the district courts to reinstate
certain § 10(b) actions dismissed based on Lampf and to treat
those actions as being timely filed.

See Plaut, 514 U.S. at

214-15.
In Plaut, the Court held that the mandatory reinstatement
provision

of

the

1991

amendment

contravened

the

doctrine

of

separation of powers by requiring the federal courts to reopen
closed cases that were not pending on direct appeal.
U.S. at 219, 225.

See 514

The Court reasoned that the “judicial Power”

includes the power to render final judgments in cases, subject
to review only by superior courts, and that, by retroactively
requiring

courts

to

reopen

infringing on that authority.
Simply

put,

consideration
standards.

of

Plaut
Toler’s

such

judgments,

Congress

was

Id. at 218-19.

presents
second

no

obstacle

claim

under

to

the

ALJ’s

post-ACA

legal

The ALJ’s award of benefits on Toler’s second claim

did not “retroactively . . . reopen” anything, much less a final
judgment of an Article III court.
29

As we explained in Lisa Lee

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Mines, a subsequent claim based on new evidence is not the same
claim

as

the

one

previously

denied.

See

86

F.3d

at

1362.

Indeed, pursuant to Lisa Lee Mines, the ALJ was required to, and
did,

accept

Toler’s

the

1993

correctness

claim

—

and,

of
by

the

administrative

necessary

denial

extension,

our

of

1998

denial of Toler’s petition for review.

Moreover, as in Lisa Lee

Mines,

the

Toler’s

second

claim

required

ALJ

to

assess

his

pulmonary impairment and its etiologies at the time that claim
was

filed,

an

issue

which

neither

was

nor

could

have

been

litigated in connection with Toler’s first claim.
Notably,
Plaut

to

Eastern

these

or

has

identified

similar

no

authority

circumstances.

extending

Indeed,

in

Consolidation Coal Co. v. Maynes, 739 F.3d 323, 326, 328 (6th
Cir. 2014), the Sixth Circuit rejected a coal mine operator’s
contention

that

Plaut

applied

to

bar

a

widow’s

claim

for

survivor’s benefits under § 1556(b) of the ACA, where a federal
court of appeals had previously affirmed the Secretary’s denial
of a prior claim for survivor’s benefits under pre-ACA law. 8

8

Section 1556(b) of the ACA restored to the Act a statutory
provision making the payment of benefits to “eligible survivors”
automatic upon the death of a coal miner “who was determined to
be eligible” for miner’s benefits “at the time of his or her
death.”
See 30 U.S.C. § 932(l).
Like the fifteen-year
presumption, the automatic survivor’s benefits provision had
been repealed by Congress in the 1981 amendments to the Act.
See Stacy, 671 F.3d at 381-82 (outlining history of automatic
survivor’s benefits provision).

30

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Maynes is closer to Plaut than this proceeding is, as the widow
in Maynes was not required to show a change in any condition of
entitlement.

See

20

C.F.R.

§ 725.309(c)(1)

(providing

that

survivor whose claim was denied under pre-ACA law but would be
granted under current law need not show change in condition of
entitlement). 9
In

sum,

we

reject

Eastern’s

suggestion

that

the

ALJ

exercised “the judicial Power” when he granted Toler’s second
claim.

The ALJ in this matter simply considered Toler’s second

claim based on new evidence under the law in effect at the time
of

the

second

Toler’s

first

claim.
claim;

In
he

doing

so,

accepted

the
that

necessary factual predicate” as correct.
F.3d at 1362.

ALJ

did

decision

not
and

reopen
“its

See Lisa Lee Mines, 86

And the ALJ certainly did not reopen our 1998

denial of Toler’s petition for review. 10

9

In its reply brief and at oral argument, Eastern
encouraged us to reject Maynes on the basis of a two-judge
concurrence in a default denial of rehearing en banc in Peabody
Coal Co. v. Director, OWCP, No. 12-4366 (6th Cir. Dec. 23,
2014).
The operator in Peabody presented the same contention
the Maynes court rejected, and the Peabody panel relied on
Maynes to deny the petition for review.
See 577 F. App’x 469,
470 (6th Cir. 2014), cert. denied, No. 14-1278, __ S. Ct. ___
(Oct. 5, 2015). We have reviewed the Peabody concurrence in the
denial of rehearing en banc and deem it unpersuasive.
10

Although Eastern asserted at oral argument that its
constitutional argument relates to separation of powers, it
summarily suggested in its opening brief that, by allowing Toler
to use the fifteen-year presumption in conjunction with new
(Continued)
31

Appeal: 14-1923

Doc: 82

Filed: 11/06/2015

Pg: 32 of 32

IV.
Pursuant to the foregoing, we deny Eastern’s petition for
review.
PETITION FOR REVIEW DENIED

evidence to establish a change in a condition of entitlement,
the Director denied Eastern due process.
We are satisfied to
reject Eastern’s scantily developed due process contention.
As
legislation “adjusting the burdens and benefits of economic
life,” § 1556(a) enjoys “a presumption of constitutionality, and
. . . the burden is on one complaining of a due process
violation to establish that the legislature has acted in an
arbitrary and irrational way.”
See Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 15, 20 (1976) (rejecting coal company’s
due process challenge to fifteen-year presumption).
32