Westmoreland Coal Company v. DOWCP

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 15-0028-BLA Copies to all parties and the district court/agency. [999948143].. [16-1210]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1210

WESTMORELAND COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; GERALD W. MABE,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(15-0028-BLA)

Submitted:

September 30, 2016

Decided:

October 17, 2016

Before WILKINSON, KING, and WYNN, Circuit Judges.

Petition for review granted; affirmed in part, vacated in part,
and remanded by unpublished per curiam opinion.

Paul E. Frampton, Michael J. Schessler, BOWLES RICE LLP,
Charleston, West Virginia, for Petitioner.
Evan B. Smith,
APPALACHIAN CITIZENS’ LAW CENTER, Whitesburg, Kentucky; H.
Ronnie Montgomery, MONTGOMERY LAW OFFICE, Jonesville, Virginia,
for Respondent Gerald W. Mabe. M. Patricia Smith, Solicitor of
Labor, Rae Ellen James, Associate Solicitor, Gary K. Stearman,
Counsel for Appellate Litigation, Rita A. Roppolo, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent DOWCP.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald W. Mabe filed a claim for benefits under the Black
Lung

Benefits

Act

(“BLBA”),

30

U.S.C.

§§ 901-944

(2012).

Following a hearing, the Administrative Law Judge (“ALJ”) found
Mabe’s claim timely and awarded benefits after concluding that
the

responsible

(“Employer”),
disability

due

operator,

failed
to

to

Westmoreland

rebut

the

pneumoconiosis

Coal

Company

presumption

applied

total

Mabe’s

to

of

claim

pursuant to 30 U.S.C. § 921(c)(4) (the “15-year presumption”).
The

Benefits

Review

Board

(“Board”)

affirmed

the

ALJ’s

determination as to the merits of Mabe’s claim but vacated the
ALJ’s

timeliness

proceedings.

determination

Although

the

ALJ

and
found

remanded
the

for

claim

further

untimely

on

remand, the Board later vacated this determination, concluding
that

Employer

presumption

of

failed,

as

timeliness

a

matter

accorded

of

law,

Mabe’s

to

rebut

claim.

The

the
Board

therefore remanded for entry of an award of benefits.

Employer

now

awarding

petitions

for

review

of

the

Board’s

decision

benefits.
At the outset, we note that the scope of our review of an
agency decision involving the BLBA is strictly circumscribed.
We review a decision awarding black lung benefits to determine
“whether substantial evidence supports the factual findings of
the ALJ and whether the legal conclusions of the [Board] and ALJ
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are rational and consistent with applicable law.”

Hobet Mining,

LLC v. Epling, 783 F.3d 498, 504 (4th Cir. 2015) (alteration in
original omitted).

In so doing, we review legal conclusions of

the Board and ALJ de novo but must defer to the ALJ’s factual
findings if they are supported by substantial evidence.

Harman

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

“Substantial evidence” is defined as

“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”

Island Creek Coal Co. v.

Compton, 211 F.3d 203, 207-08 (4th Cir. 2000).
Employer first challenges the Board’s determination that,
as a matter of law, it failed to meet its burden to rebut the
presumption of timeliness accorded Mabe’s claim under 20 C.F.R.
§ 725.308(c)
conclude

(2016).

that

the

Our

Board’s

review

of

decision

the
as

to

record
the

leads

us

to

timeliness

of

Mabe’s claim is based upon substantial evidence and is without
reversible error.

Westmoreland Coal Co. v. Mabe, No. 15-0028

BLA (B.R.B. Dec. 29, 2015).
Turning to the merits of Mabe’s claim, the ALJ determined,
and the Board ultimately affirmed, that Mabe was entitled to the
benefit of the 15-year presumption, which Employer failed to
rebut.

If a miner was employed in underground coal mines for 15

years or more, has had a chest x-ray interpreted as negative for
complicated

pneumoconiosis,

and
4

demonstrates

that

he

has

a

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totally

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disabling

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respiratory

or

pulmonary

impairment,

he

is

entitled to a rebuttable presumption that he is totally disabled
due

to

pneumoconiosis.

718.305(b)(1) (2016).

30

U.S.C.

§ 921(c)(4);

20

C.F.R.

§

When the presumption applies, the ALJ

must “presume both prongs of the showing required for benefits
eligibility: that the claimant has pneumoconiosis arising from
coal mine employment, and that this disease is a substantially
contributing cause of his disability.”

Epling, 783 F.3d at 502.

To rebut the presumption, the employer either must demonstrate
that the miner does not have legal pneumoconiosis or clinical
pneumoconiosis

“arising

from

coal

mine

employment”

(the

“pneumoconiosis prong”), 20 C.F.R. § 718.305(d)(1)(i) (2016), or
must affirmatively “rule out” the mining-related disease as a
cause

of

disability

by

demonstrating

that

“no

part

of

the

miner’s respiratory or pulmonary total disability was caused by
pneumoconiosis”

(the

“disability

causation

prong”),

20

C.F.R.

§ 718.305(d)(1)(ii) (2016).
A claimant may establish the existence of pneumoconiosis,
among other methods, through chest x-rays or medical opinions.
20

C.F.R.

§ 718.202(a)(1),

(4)

(2016).

Additionally,

“[t]he

results of any medically acceptable test or procedure,” such as
a CT scan, “which tends to demonstrate the presence or absence
of pneumoconiosis . . . may be submitted in connection with a
claim and shall be given appropriate consideration.”
5

See 20

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C.F.R. § 718.107(a) (2016); Sea “B” Mining Co. v. Addison, 831
F.3d 244, 249 (4th Cir. 2016).

“Although the regulations group

the forms of permissible evidence into discrete categories, an
ALJ must weigh all of the evidence together when determining
whether

the

miner

pneumoconiosis.”
such

has

established

the

Addison, 831 F.3d at 249.

evidence

employer

has

also
met

is

its

relevant
burden

in

to

presence

of

By implication,

considering

an

pneumoconiosis

disprove

whether

on

rebuttal.
Employer posits various errors committed in concluding that
it failed to rebut both prongs of the 15-year presumption.

As

to the pneumoconiosis prong, our review of the record leads us
to reject Employer’s arguments that the ALJ improperly weighed
or

failed

to

determining

consider

that

the

the

x-ray

and

radiographic

pneumoconiosis was in equipoise.

CT

scan

evidence

evidence
of

in

clinical

However, we conclude that the

ALJ’s stated reasons for weighing the medical opinions of Drs.
Basheda

and

Hippensteel

as

to

the

existence

of

clinical

pneumoconiosis are not in accordance with law or supported by
substantial evidence.
First,
fundamental

the

ALJ’s

opinion

mischaracterization

Hippensteel’s opinions.

appears
of

Dr.

to

be

based

Basheda’s

and

on

a
Dr.

Contrary to the ALJ’s opinion, neither

Dr. Hippensteel nor Dr. Basheda assumed that the x-ray evidence
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was negative for the presence of pneumoconiosis.

Rather, each

reviewed both positive and negative x-ray interpretations and
reached an independent conclusion regarding this imaging.
Basheda’s

opinion,

in

particular,

provided

detailed

Dr.

reasoning

for his determination that the x-rays and CT scan evidence did
not support a finding of pneumoconiosis.

While the ALJ was not

required to adopt this reasoning, he was required to consider it
and to provide a valid basis for discrediting it.

See Mingo

Logan Coal Co. v. Owens, 724 F.3d 550, 557 (4th Cir. 2013)
(recognizing discretion accorded ALJ in evaluating evidence but
that ALJ must analyze all relevant evidence and sufficiently
explain his rationale).
The

parties

appear

to

construe

the

ALJ’s

decision

as

discounting the opinions of Drs. Basheda and Hippensteel because
their conclusion that the x-ray evidence was negative regarding
the

presence

of

pneumoconiosis

directly

conflicted

with

ALJ’s determination that the imaging was inconclusive.
not

read

finding

the

and

ALJ’s

are

opinion

obliged

to

to

confine

actually stated by the ALJ.
Thus,

we

decline

to

adequately

consider

our

articulate

review

to

the

We do
such

the

a

bases

See Addison, 831 F.3d at 256-57.
at

this

juncture

the

parties’

arguments regarding whether such a conclusion would be legally
supportable had the ALJ reached it.

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Second, the ALJ declined to credit the opinions of Drs.
Hippensteel
heavily

and

upon

Basheda

after

“unreliable

concluding

facts.”

that

However,

they

nowhere

relied
in

his

decision did the ALJ identify those facts he found unreliable.
In so doing, the ALJ failed to fully comply with his obligation
to “include a statement of

. . . findings and conclusions, and

the reasons or basis therefor, on all the material issues of
fact,

law,

Colliery

or

Co.

discretion
v.

Hicks,

present

138

F.3d

on

the

524,

record.”

536

(quoting 5 U.S.C. § 557(c)(3)(A) (1996)).

(4th

Milburn

Cir.

1998)

Although Mabe asks us

to speculate as to the facts on which the ALJ relied, we are not
permitted to guess at the ALJ’s reasoning but may review only
the reasoning the agency provided.

Addison, 831 F.3d at 256-57.

Given the ALJ’s cursory explanation for its evaluation of the
opinions of Drs. Basheda and Hippensteel as to the existence of
clinical pneumoconiosis, we conclude that the ALJ’s reasoning
thwarts effective appellate review and is simply insufficient to
justify his decision on the pneumoconiosis prong absent further
development.
Employer

also

challenges

the

ALJ’s

conclusion

that

it

failed to rebut the 15-year presumption under the disability
causation prong.

Because the ALJ’s determination as to this

prong relied exclusively on his disagreement with Drs. Basheda
and

Hippensteel

as

to

the

existence
8

of

pneumoconiosis-—the

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reasoning of which is called into question for the reasons we
have already discussed—-we decline to address that issue at this
juncture.
Accordingly, we grant Employer’s petition for review and
vacate the Board’s decision in part, insofar as it addresses the
operation of the 15-year presumption.

We decline to disturb the

Board’s decision with respect to the timeliness of Mabe’s claim
and

affirm

that

portion

of

the

decision.

We

remand

with

instructions for the Board to return Mabe’s case to the ALJ for
further proceedings consistent with this opinion.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.

PETITION FOR REVIEW
AFFIRMED
VACATED
AND

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GRANTED;
IN PART,
IN PART,
REMANDED