Consolidation Coal Company v. Everett Galusky

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 14-0187-BLA,11-5535-BLA Copies to all parties and the district court/agency. [999818071].. [15-1302]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1302

CONSOLIDATION COAL COMPANY,
Petitioner,
v.
EVERETT
D.
GALUSKY;
DIRECTOR,
OFFICE
OF
WORKERSʹ
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(14-0187-BLA; 11-5535-BLA)

Argued:

March 22, 2016

Decided:

May 10, 2016

Before SHEDD, THACKER, and HARRIS, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Harris
wrote the opinion, in which Judge Shedd and Judge Thacker
joined.

ARGUED:
William
Steele
Mattingly,
JACKSON
KELLY
PLLC,
Lexington, Kentucky, for Petitioner.
Heath M. Long, PAWLOWSKI,
BILONICK & LONG, Ebensburg, Pennsylvania, for Respondent.
ON
BRIEF:
Kevin M. McGuire, Amy Jo Holley, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner.

Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:
Consolidation Coal Company (“CONSOL”) petitions for review
of a decision awarding black lung benefits to Everett Galusky.
An

administrative

law

judge

(“ALJ”)

found

that

Galusky

was

entitled to rely on the “fifteen-year presumption,” a statutory
provision that presumes eligibility for benefits if an applicant
has worked in coal mines for at least fifteen years and suffers
from a totally disabling respiratory or pulmonary impairment.
The

ALJ

then

presumption

by

held

that

showing

CONSOL

either

had
that

failed

to

Galusky

rebut

that

not

have

does

pneumoconiosis — commonly known as black lung disease — or that
his

pneumoconiosis

did

not

cause

his

total

disability.

The

Benefits Review Board affirmed the ALJ’s decision.
On appeal, CONSOL argues primarily that the ALJ used the
wrong

standard

presence

of

in

considering

pneumoconiosis,

whether

improperly

it

had

disproved

requiring

it

to

the

“rule

out” any connection between Galusky’s coal dust exposure and
Galusky’s condition.
record.

Because

inappropriate

We think this reflects a misreading of the
the

standard

ALJ
of

did
proof,

not
and

err

by

because

applying

an

substantial

evidence supports the ALJ’s decision, we deny CONSOL’s petition
for review.

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I.
A.
The Black Lung Benefits Act, 30 U.S.C. §§ 901–44, awards
benefits

to

“coal

pneumoconiosis,”

miners

popularly

U.S.C. § 901(a).

who

are

known

as

totally
black

disabled

lung

due

disease.

to
30

Under the Act, a miner can prove entitlement

to benefits by showing through medical evidence that “he has
pneumoconiosis arising from coal mine employment, and that this
disease is a substantially contributing cause of [a] totally
disabling respiratory or pulmonary impairment.”
LLC

v.

Epling,

783

F.3d

498,

501

(4th

Cir.

Hobet Mining,
2015)

(footnote

omitted). 1
For certain miners, Congress has made it easier to show an
entitlement to benefits.

Id.

A claimant with at least fifteen

years of underground coal employment and a “totally disabling
respiratory or pulmonary impairment,” 30 U.S.C. § 921(c)(4), may
invoke
presume

the

Act’s

both

“fifteen-year

prongs

of

the

presumption,”
showing

under

required

for

which

“we

benefits

eligibility: that the claimant has pneumoconiosis arising from
coal mine employment, and that this disease is a substantially

1

The statutory definition of “pneumoconiosis” encompasses
not only the diseases clinically known as pneumoconiosis, but
also “legal pneumoconiosis,” defined as “any chronic lung
disease or impairment” “arising out of coal mine employment.”
20 C.F.R. § 718.201(a)(2); see 30 U.S.C. § 902(b).
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contributing cause of his disability.”

See Epling, 783 F.3d at

502.
That presumption may be rebutted in two ways.

First, a

coal mine operator may establish that the claimant does not have
pneumoconiosis “arising out of coal mine employment.”
§ 718.305(d)(1)(i);

see

Epling,

783

F.3d

at

502.

20 C.F.R.
Under

the

governing regulations, a lung disease or impairment “arises out
of coal mine employment” if it is “significantly related to, or
substantially aggravated by,” coal dust exposure.
§ 718.201(b).

So

to

satisfy

this

first

rebuttal

20 C.F.R.
method,

an

operator must prove the converse: that a miner’s impairment is
not “significantly related to, or substantially aggravated by,”
the fifteen years or more spent in coal mines.
Second, an employer may show that “no part of the miner’s
respiratory

or

pulmonary

pneumoconiosis.”
added).
heavy

20

total

C.F.R.

disability

was

§ 718.305(d)(1)(ii)

caused

by

(emphasis

Known as the “rule-out” standard, this burden is a

one.

It

is

not

enough

for

an

operator

to

show

that

pneumoconiosis is a “minor or even an incidental cause” of a
miner’s disability.
143 (4th Cir. 2015).

W. Va. CWP Fund v. Bender, 782 F.3d 129,
Instead, an operator must show that the

miner’s disability is caused exclusively by something other than
pneumoconiosis, “rul[ing] out any connection between a miner’s

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pneumoconiosis and his disability.”

Id. at 135 (emphasis added)

(internal quotation marks omitted).
B.
Galusky

was

a

coal

miner

for

at

least

working in coal mines in 1995 for CONSOL. 2

26

years,

last

After unsuccessfully

applying for black lung benefits about a decade before, Galusky
reapplied

in

approved

his

2010,

and

claim.

this

time

CONSOL

the

opposed

Department

of

Galusky’s

claim

Labor
and

requested a hearing in front of an ALJ.
In the proceedings before the ALJ, the parties presented
evidence

that

included

medical

tests

and

studies,

x-ray

readings, and, most critically, the reports and opinions of four
physicians: Doctors Andrzej J. Jaworski; Joseph J. Renn, III;
Christopher
agreed

Begley;

that

and

Galusky

Stephen
suffered

G.

Basheda.

from

a

While

totally

all

four

disabling

impairment, only Jaworski diagnosed Galusky with pneumoconiosis.
Renn,

Begley,

conditions
pulmonary

and

like
disease,

Basheda
pulmonary
and

instead

diagnosed

emphysema,

asthma,

and

Galusky

chronic
all

three

with

obstructive
attributed

Galusky’s impairment either entirely or primarily to Galusky’s

2

As Galusky’s last coal employer, CONSOL is liable for
benefits potentially owed to Galusky, a fact that it does not
contest. See generally 20 C.F.R. §§ 725.490, 725.495.
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decades-long

smoking

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habit,

rather

than

his

coal

mine

employment.
After

conducting

a

hearing

and

evidence, the ALJ awarded benefits.

reviewing

the

medical

Because Galusky had worked

for more than fifteen years in coal mines and suffered from a
totally disabling respiratory impairment, the ALJ invoked the
fifteen-year presumption.

CONSOL does not dispute that this

presumption applies, and so we presume, as did the ALJ, both
that

Galusky

has

pneumoconiosis

arising

from

coal

mine

employment and that his total disability is substantially caused
by his pneumoconiosis.
The ALJ went on to find that based on the medical evidence
and

physician

presumption.

opinions,

CONSOL

had

failed

to

rebut

the

According to the ALJ, CONSOL could not satisfy the

first rebuttal method: showing that Galusky did not suffer from
legal

pneumoconiosis,

or

a

lung

impairment

“significantly

related to, or substantially aggravated by, dust exposure in
coal

mine

employment.”

pneumoconiosis);
acknowledged

see

that

id.

doctors

J.A.
at

296

Begley,

297

(defining

n.23

(same).

Basheda,

and

diagnosed Galusky with pneumoconiosis.

Renn

legal
The
had

ALJ
not

But neither Begley nor

Basheda, the ALJ noted, had been able to “rule out” coal dust as
a

contributing

cause

to

Galusky’s

impairment.

See

J.A.

290

(quoting Begley’s deposition testimony that he “could not ‘rule
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exposure

to

coal

dust

Pg: 7 of 17

as

a

contributor”);

J.A.

301

(discussing Begley’s testimony); J.A. 303 (discussing Basheda’s
testimony).

Moreover,

though

both

Basheda

and

Renn

had

diagnosed Galusky with asthma, the ALJ observed, neither had
considered the possibility that coal dust exposure could have
aggravated

that

definition

asthma,

of

legal

which

might

bring

pneumoconiosis.

it

within

the

the

ALJ

Finally,

discredited the opinions of Basheda and Renn on the ground that
the

doctors

had

made

statements

questioning

the

progressive

nature of pneumoconiosis that were inconsistent with the Act and
the preamble to its regulations, and, in Basheda’s case, for
suggesting without record support that most of Galusky’s mining
work occurred only after certain coal dust controls had been
implemented.
The ALJ then determined that CONSOL could not satisfy the
second

rebuttal

pneumoconiosis
Citing

method:

did

longstanding

not

demonstrating

contribute

Fourth

to

Galusky’s

total

disability.

his

that

Circuit

precedent,

the

ALJ

discredited the disability-causation opinions of the experts who
had

failed

to

determination

diagnose
—

Basheda,

pneumoconiosis,
Renn,

and

contrary

Begley.

to

The

his
ALJ

own
also

reiterated his concerns about statements by Basheda and Renn
deemed

inconsistent

regulations.

with

the

Act

and

the

preamble

to

its

Having accorded little weight to these physicians’
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opinions, the ALJ determined that CONSOL had failed to rebut the
presumption

that

Galusky’s

pneumoconiosis

caused

his

total

disability, and accordingly held that Galusky was entitled to
benefits.
On appeal, the Benefits Review Board affirmed the ALJ’s
decision.

As to the first presumption — that Galusky suffers

from pneumoconiosis — the Board rejected CONSOL’s argument that
the ALJ provided invalid reasons for discounting the views of
doctors Renn and Basheda.

According to the Board, the ALJ acted

within his discretion in concluding that both doctors failed to
explain why Galusky’s many years of coal dust exposure were not
an aggravating cause of his asthma.

The Board also endorsed the

ALJ’s rationale for discrediting the views of doctors Renn and
Basheda as to the existence of pneumoconiosis.

Both doctors,

the Board determined, had made statements inconsistent with the
principle that pneumoconiosis is a progressive and irreversible
disease,

as

reflected

in

the

Act

and

the

preamble

to

its

regulations; and Basheda’s claim that Galusky’s work occurred
primarily

after

the

imposition

of

dust-control

measures

was

“factually unsupported by any evidence in the record,” J.A. 321.
Finally,

as

to

the

second

presumption

—

that

Galusky’s

pneumoconiosis is a substantial cause of his total disability —
the Board held that the ALJ properly analyzed the question under
the

rule-out

standard,

and

appropriately
8

discounted

the

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disability-causation views of doctors who had failed to diagnose
pneumoconiosis in the first instance.

CONSOL timely petitioned

this court for review.

II.
In black lung cases, our review is highly deferential.
ask

only

“whether

substantial

evidence

supports

the

We

factual

findings of the ALJ and whether the legal conclusions of the
Board and ALJ are rational and consistent with applicable law.”
Bender, 782 F.3d at 144 (internal quotation marks omitted).

We

are mindful that “it is for the ALJ, as the trier of fact, to
make factual and credibility determinations, and we therefore
defer to the ALJ’s evaluation of the proper weight to accord
conflicting

medical

opinions.”

Epling,

783

F.3d

at

504

(citation and internal quotation marks omitted).
A.
As described above, an operator may rebut the fifteen-year
presumption in one of two ways: (1) by showing that a claimant
does not have pneumoconiosis arising out of coal mine employment
(“pneumoconiosis rebuttal”), or (2) by showing that even if the
claimant does have pneumoconiosis, that disease did not cause
his total disability (“disability-causation rebuttal”).
C.F.R. § 718.305(d)(1).

See 20

Under the first rebuttal prong, the

standard of proof requires an operator to show that a miner’s
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respiratory or pulmonary condition is not “significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment.”

Id. § 718.201.

of proof is higher:
operator

to

show

But under the second, the standard

Here, the rule-out standard requires an

that

“no

caused by pneumoconiosis.

part”

of

a

miner’s

disability

is

Id. § 718.305(d)(1)(ii); see Bender,

782 F.3d at 141 (describing application of rule-out standard to
second rebuttal prong).
Before this court, CONSOL’s primary argument is that the
ALJ committed legal error by applying the rule-out standard to
its efforts to disprove pneumoconiosis, extending the rule-out
standard from the second rebuttal prong to the first. 3
the ALJ’s opinion differently.

We read

The regulatory framework here is

technical and a bit cumbersome, and the ALJ’s opinion is long
and complex.

Nevertheless, it is clear that the ALJ correctly

distinguished the governing standards of proof, applying each to
the appropriate inquiry.
to

pneumoconiosis

demonstrate

the

In the section of his opinion devoted

rebuttal,
absence

of

the
legal

3

ALJ

required

CONSOL

pneumoconiosis,

to

properly

Before the Board, CONSOL’s argument was that the ALJ
improperly applied the strict rule-out standard to the second
rebuttal prong, and that it should have been permitted to rebut
disability causation under a more lenient standard.
Our court
recently affirmed the regulatory rule-out standard in West
Virginia CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015), and
CONSOL no longer presses that argument.
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defined

as

a

substantially
employment.”

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lung

Pg: 11 of 17

impairment

aggravated
J.A. 297.

“significantly

by,

dust

related

exposure

in

to,

coal

or

mine

In analyzing disability causation, on

the other hand, the ALJ expressly invoked the rule-out standard,
explaining

that

relationship

an

between

operator
a

“must

miner’s

‘rule

disability

employment” under the second rebuttal prong.
added).

out’
and

his

any

causal

coal

mine

J.A. 308 (emphasis

All of that is indisputably correct.

To suggest that the ALJ nevertheless applied the rule-out
standard to pneumoconiosis rebuttal, improperly requiring CONSOL
to disprove even the slightest connection between Galusky’s coal
mine employment and his lung impairment, CONSOL points to two
references to the phrase “rule out” in the ALJ’s discussion of
the existence of pneumoconiosis.

In the first, the ALJ notes

that Begley “could not rule out a coal dust etiology,” or cause,
for Galusky’s lung impairment, J.A. 301, and in the second, that
Basheda “could not 100% rule out a coal dust contribution” to
Galusky’s lung condition, J.A. 303.

In context, however, it is

apparent that the ALJ is not referring to the so-called rule-out
standard

of

20

C.F.R.

§ 718.305(d)(1)(ii),

but

instead

using

“rule out” in its everyday sense — precisely as it was used by
the two doctors in their depositions, in the very passages from
which the ALJ is quoting when he in turn uses the phrase in his
opinion.

See J.A. 201 (Begley testifying that “we can’t rule
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[Galusky’s]

Pg: 12 of 17

exposure

to

coal

dust

could

have

contributed” to his lung disease); J.A. 242 (Basheda testifying
that “you can never a hundred percent rule out” a different
causal factor, “but [Galusky’s] medical condition and findings
are [very] typical of tobacco use”).

The ALJ’s allusions to

“ruling out,” in other words, come directly from the doctors’
testimony as to the causes of Galusky’s lung disease, and not
from the regulatory rule-out standard.
Nor

do

we

detect

any

substantive

error

in

the

ALJ’s

consideration of the doctors’ testimony on this point.

It is

indeed the case that under the first rebuttal prong, the burden
is on the operator to “rule out,” colloquially speaking, the
possibility that coal mine employment is “significantly related
to”

or

has

impairment.

“substantially
20

C.F.R.

§

aggravated”

718.201(b).

a

lung

And

disease

while

or

Begley

and

Basheda opined that Galusky’s smoking habit was the “majority,”
J.A. 246 (Basheda), or “primar[y],” J.A. 202 (Begley), cause of
Galusky’s

lung

condition,

neither

could

say

that

coal

dust

exposure might not also play a contributing or aggravating part,
J.A. 241 (Basheda), J.A. 201 (Begley).
prerogative”
experts’]

to

“determine

testimony,”

Bender,

the
782

“It was within the ALJ’s

persuasiveness
F.3d

at

144,

of
and

[these
to

take

account of the doctors’ uncertainty on this point in determining
whether CONSOL had met its burden of demonstrating that coal
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mine employment was not significantly related to and did not
substantially aggravate Galusky’s lung disease.
B.
In the alternative, CONSOL argues that the ALJ and Board
erred

as

rebuttal

a

factual

showing.

matter

in

assessing

According

to

the

CONSOL,

strength

substantial

of

its

evidence

does not support the determination that it failed to meet its
burden under either of the rebuttal prongs.

Again, we disagree.

As to the first rebuttal prong — disproving pneumoconiosis
— CONSOL argues that the opinions of doctors Renn and Basheda
are

sufficient

significantly

to

show

related

that

to

or

Galusky’s

lung

substantially

condition

aggravated

mine employment, pursuant to 20 C.F.R. § 718.201(b).

is
by

not
coal

Both Renn

and Basheda diagnosed Galusky with a tobacco-induced condition —
for

Renn,

pulmonary

emphysema

and

a

severe

obstructive

ventilatory defect; and for Basheda, severe chronic obstructive
pulmonary
According

disease
to

(“COPD”)

CONSOL,

by

—

with

tying

an

Galusky’s

asthma
lung

component.

impairment

to

emphysema and COPD arising from tobacco use rather than coal
dust, this expert testimony disproves coal mine employment as a
significant contributor to Galusky’s impairment.
The

problem,

as

both

the

ALJ

and

Board

noted,

is

that

neither expert explained why the asthma component of Galusky’s
condition was not aggravated by exposure to coal dust.
13

CONSOL

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does not dispute that whether coal mine employment substantially
exacerbated
rebuttal.

Galusky’s

asthma

is

relevant

to

its

burden

on

Rather, it argues that the ALJ misread the record,

and that its experts in fact did assess whether Galusky’s asthma
was aggravated by coal dust, and explained why it was not.

But

as

the

noted

above,

it

is

for

the

ALJ

to

determine

persuasiveness of expert testimony, see Bender, 782 F.3d at 144,
and we cannot say that the ALJ erred in concluding that Renn and
Basheda failed to explain whether coal dust exposure could have
aggravated Galusky’s asthma.

CONSOL directs us to deposition

passages in which an expert distinguishes Galusky’s asthma from
pneumoconiosis or from emphysema caused by coal dust, see J.A.
124–25,

127;

diagnoses

asthma,

J.A.

231;

or

states

without

discussion that Galusky’s conditions are caused by tobacco use
rather than coal dust exposure, J.A. 139.
there

anything

that

an

ALJ

would

be

Nowhere, however, is

obliged

to

treat

as

a

reasoned and persuasive explanation of why Galusky’s prolonged
exposure to coal dust did not “substantially aggravate[]” the
asthma component of his impairment.
We have explained already that in analyzing pneumoconiosis
rebuttal, the ALJ was entitled to consider that experts Begley
and Basheda were unable to state definitively that coal mine
employment,
Galusky’s

while
lung

not

in

condition,

their
did
14

view
not

the
play

primary
some

cause

of

significant

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contributing role.

Pg: 15 of 17

And for the reasons given above, the ALJ

also was entitled to discount the testimony of Basheda and Renn
because they failed to provide a reasoned explanation of whether
coal

dust

exposure

might

have

aggravated

Galusky’s

asthma.

Finally, CONSOL does not challenge on appeal the ALJ’s decision,
affirmed by the Board, to discredit Basheda’s opinion because
there is no factual support for Basheda’s claim that Galusky
performed most of his mining work after dust-control measures
were imposed.
deferential
evidence

In light of all of those factors, and under our
standard

supports

of

the

review,

we

determination

find
of

that

the

ALJ

substantial
that

CONSOL

failed to rebut the fifteen-year presumption by disproving the
existence of pneumoconiosis. 4
As to the second rebuttal prong — showing that “no part” of
Galusky’s

total

disability

was

caused

by

his

pneumoconiosis

under 20 C.F.R. § 718.305(d)(1)(ii) — CONSOL offers the same
arguments

discussed

above,

contending

that

the

ALJ

simply

incorporated by reference his flawed analysis of its experts’

4

Accordingly, we need not decide whether the ALJ properly
discredited doctors Basheda and Renn on the additional ground
that they had made statements questioning the progressive nature
of pneumoconiosis that were inconsistent with the Act and the
preamble to its regulations.
With or without that alternative
reason for discounting the opinions of Basheda and Renn, there
is
substantial
record
evidence
to
support
the
ALJ’s
determination that CONSOL did not meet its burden under the
first rebuttal prong.
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testimony regarding the existence of pneumoconiosis.
addressed those arguments already.

We have

And in any event, the ALJ’s

analysis under this prong rests critically on a different point:
Under well-established Fourth Circuit law, an expert’s opinion
on whether a claimant’s disability is caused by pneumoconiosis
“can carry little weight” if that expert does not believe the
claimant even has pneumoconiosis, contrary to a determination by
the ALJ.

See J.A. 311 (quoting Toler v. E. Associated Coal Co.,

43 F.3d 109, 116 (4th Cir. 1995)).

In fact, “opinions that

erroneously fail to diagnose pneumoconiosis may not be credited
at

all,

unless

an

ALJ

is

able

to

identify

specific

and

persuasive reasons for concluding that the doctor’s judgment on
the

question

of

disability

predicate

misdiagnosis.”

quotation

marks

and

causation
Epling,

alterations

does

783

not

F.3d

rest

at

omitted).

505

Here,

upon

the

(internal
there

is

nothing to suggest that the view of Renn, Basheda, and Begley
that

pneumoconiosis

independent

of

pneumoconiosis

did

their
at

all,

not

cause

view
and

that
CONSOL

Galusky’s
Galusky
does

not

disability
does

argue

not

is
have

otherwise.

Accordingly, the ALJ was well within his discretion in assigning
little

or

no

weight

to

these

experts’

views

on

disability

causation, and the ALJ’s determination that CONSOL failed to
meet its rebuttal burden is supported by substantial evidence.

16

Appeal: 15-1302

Doc: 43

Filed: 05/10/2016

Pg: 17 of 17

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

17