Lemarco, Inc., et al v. Nancy Helton, et al

Filing

OPINION filed : DENIED the petition for review, decision not for publication. Damon J. Keith, Circuit Judge; Deborah L. Cook, Circuit Judge, AUTHORING and Raymond M. Kethledge, Circuit Judge.

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0206n.06
Case No. 13-3499

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEMARCO, INC.; OLD REPUBLIC
INSURANCE COMPANY,

)
)
)
)
)
)
)
)
)
)
)
)
)

Petitioners,
v.
NANCY HELTON, Widow of Wayne Helton;
DIRECTOR, OFFICE OF THE WORKERS’
COMPENSATION PROGRAMS; UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

Mar 18, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW OF
AN ORDER OF THE BENEFITS
REVIEW BOARD

BEFORE: KEITH, COOK, and KETHLEDGE, Circuit Judges.
COOK, Circuit Judge. A coal company and its insurer (collectively “Lemarco”) petition
this court for review of an award of black-lung benefits to Nancy Helton, the widow of former
miner Wayne Helton. Discerning no legal error and finding that substantial evidence supports
the Administrative Law Judge’s (“ALJ”) conclusion, we deny the petition.
I.
Wayne worked as a coal miner for over thirteen years. After he died, Nancy filed for
survivor benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., as a dependent of a
miner who died from pneumoconiosis, commonly known as black-lung disease. The Department
of Labor (“DOL”) processed the claim, and the case proceeded to an ALJ for a hearing. To

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 2

Case No. 13-3499
Lemarco, Inc. et al. v. Helton, et al.
prevail, Nancy needed to show that pneumoconiosis—defined as a chronic lung disease arising
out of coal mine employment, see 20 C.F.R. § 718.201(a)(2)—caused Wayne’s death. Wolf
Creek Collieries v. Dir., OWCP, 298 F.3d 511, 520 (6th Cir. 2002) (citing 20 C.F.R. § 718.205).
In assessing the claim, the ALJ looked to the opinions of four doctors. Nancy submitted
opinions from Dr. William Clarke, an examining physician, and Dr. Rachel Eubank, Wayne’s
treating physician for the last three years of his life.

These doctors confirmed Wayne’s

pneumoconiosis on the basis that coal dust caused his chronic obstructive pulmonary disease
(“COPD”). Dr. Eubank also linked pneumoconiosis to Wayne’s death. Lemarco submitted
opinions from Dr. David Rosenberg and Dr. Matthew Vuskovich, who, after reviewing Wayne’s
medical records, each concluded that coal dust played no role in causing his COPD and that
pneumoconiosis did not hasten his death.
The ALJ held that Nancy proved the required elements by a preponderance of the
evidence, according Lemarco’s doctors’ opinions “little weight” as flawed and conflicting with
the DOL’s positions as articulated in the preamble to the Black Lung Act’s regulations. The ALJ
credited Drs. Clarke and Eubank and determined that because Wayne suffered from COPD that
arose out of his coal mine employment, he had pneumoconiosis. From that conclusion, the ALJ
relied on Dr. Eubank’s report to find that pneumoconiosis hastened Wayne’s death because his
COPD led to cor pulmonale (heart strain resulting from a lung disease), which directly caused his
death from congestive heart failure.
Lemarco appealed to the Benefits Review Board (“BRB”), which affirmed Nancy’s
award. After unsuccessfully moving for reconsideration before the BRB, Lemarco petitioned
this court for review, arguing that the record fails to establish that: (1) Wayne’s COPD arose out
of coal mine employment, and (2) pneumoconiosis caused Wayne’s death.

-2-

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 3

Case No. 13-3499
Lemarco, Inc. et al. v. Helton, et al.
II.
Our review of the BRB’s decision “is limited to correcting errors of law and ensuring that
[it] adhered to the substantial evidence standard in its review of the ALJ’s factual findings.”
Cumberland River Coal Co. v. Banks, 690 F.3d 477, 482 (6th Cir. 2012) (internal quotation
marks omitted). “Substantial evidence is defined as relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.” Arch of Kentucky, Inc. v. Dir., OWCP, 556
F.3d 472, 477 (6th Cir. 2009). “In deciding whether the substantial evidence requirement is
satisfied, we consider whether the [ALJ] adequately explained the reasons for crediting certain
testimony and evidence over other evidence in the record.” Wolf Creek Collieries, 298 F.3d at
519. We do not reweigh the evidence or substitute our judgment for that of the ALJ, and thus
reverse only if substantial evidence fails to support the decision below. Peabody Coal Co. v.
Groves, 277 F.3d 829, 833 (6th Cir. 2002).
A. COPD Arising Out of Coal Mine Employment
Lemarco first argues that the record fails to support the ALJ’s conclusion that Wayne’s
COPD “arose out of” his coal mine employment.

“[A] disease ‘arising out of coal mine

employment’ includes any chronic pulmonary disease . . . significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201(b). In finding
Wayne’s COPD significantly related to or aggravated by coal dust, the ALJ first looked to Dr.
Clarke’s opinion “that the most likely cause” of Wayne’s disease was “the breathing of the
irritants of coal mine employment.” Dr. Clarke could “not find any other significant etiology for
[Wayne’s] disability.” (Id.) The ALJ rationally found that Dr. Clarke’s opinion deserved “some
weight” insofar as he “took histories, performed objective testing and examined” Wayne, and
then explained his report in light of a chest x-ray, pulmonary function test, and Wayne’s

-3-

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 4

Case No. 13-3499
Lemarco, Inc. et al. v. Helton, et al.
symptoms.

Dr. Eubank, Wayne’s treating physician for the last three years of his life,

corroborated Dr. Clarke’s opinion, finding that Wayne’s disease arose out of coal mine
employment.1

Reasonable minds might accept the reports of Drs. Clarke and Eubank as

adequate to support the ALJ’s conclusion that Wayne had pneumoconiosis.
Lemarco also asserts that the ALJ treated the preamble to the DOL’s regulations as
binding in determining the credibility of the doctors. When assessing a doctor’s credibility, the
ALJ may consult the preamble as a statement of medical principles accepted by the DOL. A&E
Coal Co. v. Adams, 694 F.3d 798, 801-02 (6th Cir. 2012); see also Little David Coal Co. v. Dir.,
OWCP, 532 F. App’x 633, 636 (6th Cir. 2012) (“[I]t was permissible for the ALJ to turn to the
preamble for guidance when determining the relative weight to assign two conflicting medical
opinions.”). The ALJ acted reasonably within its discretion here, determining that Lemarco’s
doctors deserved less weight given the clash between aspects of their opinions and DOL
standards. Specifically, Dr. Rosenberg excluded coal dust as a cause of Wayne’s COPD due to a
lack of fibrosis, even though a claimant need not show fibrosis to establish pneumoconiosis. See
Cornett v. Benham Coal, Inc., 227 F.3d 569, 576 (6th Cir. 2000) (discounting a doctor’s opinion
that relied on a lack of fibrosis). And Dr. Vuskovich attributed Wayne’s COPD entirely to
cigarette smoking but “offered no explanation” for excluding coal dust as at least a “contributing
factor,” thus failing to address DOL’s position that coal dust and smoking may combine to cause
pneumoconiosis.2 See 65 Fed. Reg. 79,940 (Dec. 20, 2000).

1

Lemarco also appears to challenge the credibility of these opinions, but this
determination belongs to the ALJ as the factfinder and exceeds our scope of review. See Wolf
Creek Collieries, 298 F.3d at 522; Peabody Coal Co., 277 F.3d at 836; Moseley v. Peabody Coal
Co., 769 F.2d 357, 360 (6th Cir. 1985).
2
Lemarco also suggests that the Administrative Procedure Act required the ALJ to notify
the parties of any intent to use the preamble, but our precedent holds otherwise. A&E Coal Co.,
694 F.3d at 802.
-4-

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 5

Case No. 13-3499
Lemarco, Inc. et al. v. Helton, et al.
Moreover, the ALJ gave additional convincing reasons (beyond the preamble) for
discounting the credibility of these doctors’ reports.

The ALJ noted that Dr. Vuskovich

determined that Wayne showed no signs of cor pulmonale, contravening the cardiovasculardisease specialists who examined him. Though Lemarco maintains that Dr. Vuskovich made no
such determination, his report stated unequivocally that “there was no evidence of chronic cor
pulmonale.” Additionally, the ALJ discredited Dr. Rosenberg’s opinion that attributed Wayne’s
obstructive disease to his congestive heart failure while ignoring the uncontested evidence that
the obstructive disease predated the congestive heart failure. Lemarco questions the ALJ’s
characterization of Dr. Rosenberg’s opinion, but the record reflects that Dr. Rosenberg did
consider Wayne’s lung disease “consequent to congestive heart failure.”
B. Death Due to Pneumoconiosis
Lemarco further maintains that, because the record fails to show that pneumoconiosis
“substantially contribut[ed]” to Wayne’s death, Nancy cannot qualify for survivorship benefits.
But because “[p]neumoconiosis is a ‘substantially contributing cause’ of a miner’s death if it
hastens the miner’s death,” 20 C.F.R. § 718.205(b)(6), Nancy could satisfy this standard by
providing medical evidence describing “a specifically defined process” by which
pneumoconiosis “reduce[d] the miner’s life by an estimable time.” Eastover Mining Co. v.
Williams, 338 F.3d 501, 518 (6th Cir. 2003).
As the ALJ rationally explained, Dr. Eubank’s opinion, supported by medical records,
provided sufficient evidence to establish that pneumoconiosis substantially contributed to
Wayne’s death, qualifying Nancy for survivor benefits. Dr. Eubank concluded that Wayne’s
COPD led to cor pulmonale, which directly caused his death from congestive heart failure. The

-5-

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 6

Case No. 13-3499
Lemarco, Inc. et al. v. Helton, et al.
ALJ then explained how Wayne’s treatment records supported Dr. Eubank’s conclusion—
cardiovascular-disease specialists diagnosed, and confirmed via a catheterization, congestive
heart failure and cor pulmonale. Moreover, Wayne’s death certificate listed the cause of death as
“congestive heart failure due to cor pulmonale as a consequence of [COPD].” Cf. Lango v. Dir.,
OWCP, 104 F.3d 573, 577 (4th Cir. 1997) (finding insufficient evidence of causation where the
death certificate and doctor’s statement failed to explain how pneumoconiosis hastened the
decedent’s death).
After explaining why Dr. Eubank’s opinion deserved controlling weight, the ALJ
identified specific flaws in the reports of Lemarco’s doctors. Dr. Vuskovich denied that Wayne
had cor pulmonale near the end of his life, and Dr. Rosenberg offered no explanation for
Wayne’s hyponatremia (low sodium), while failing to address a theory that linked it to
congestive heart failure. Further, as the BRB explained, Lemarco’s doctors deserved diminished
weight because they denied that Wayne had pneumoconiosis, contrary to the ALJ’s earlier
finding. See Toler v. E. Associated Coal Co., 43 F.3d 109, 116 (4th Cir. 1995) (noting that if an
ALJ determines that a claimant suffers from pneumoconiosis, a doctor who denied the existence
of the disease will receive “little weight” in determining whether it caused the claimant’s total
impairment).
Lemarco nevertheless posits that Dr. Eubank’s opinion is legally insufficient to establish
causation, pointing to Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003). There, a
testifying physician concluded that pneumoconiosis hastened the miner’s death because “lack of
oxygen and his retained carbon dioxide all played an effect on all parts of his body.” Id. at 517
(alteration omitted). We rejected this conclusion as legally inadequate because “[o]ne can
always claim . . . that if pneumoconiosis makes someone weaker, it makes them less resistant to

-6-

Case: 13-3499

Document: 006111993357

Filed: 03/18/2014

Page: 7

Case No. 13-3499
Lemarco, Inc. et al. v. Helton, et al.
other trauma.” Id.; see also Conley v. Nat’l Mines Corp., 595 F.3d 297, 303 (6th Cir. 2010)
(finding statement that “the healthier we are, the better we’re able to deal with serious problems”
too general to link pneumoconiosis to death).

Here, by contrast, Dr. Eubank specifically

diagnosed that pneumoconiosis led to cor pulmonale, which directly caused Wayne’s death from
congestive heart failure.

With this evidence, a reasonable person could conclude that

pneumoconiosis hastened Wayne’s death. See Sandy Fork Min. Inc. v. Delphia Beverly, 491 F.
App’x 662, 663 (6th Cir. 2012) (finding sufficient evidence where doctor testified “that
pneumoconiosis was the primary cause of the respiratory failure that killed [the decedent]”).
III.
We thus DENY the petition for review.

-7-