Sunny Ridge Mining Company, In v. Herbert Keathley, et al

Filing

OPINION and JUDGMENT filed : The petition for review is DENIED. Decision for publication. Martha Craig Daughtrey, John M. Rogers (AUTHORING), and Bernice Bouie Donald, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0286p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SUNNY RIDGE MINING COMPANY, INC.,
Petitioner,
v.

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No. 14-3010

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HERBERT KEATHLEY and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

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On Petition for Review of an Order
of the Benefits Review Board.
No. 13-0211 BLA.
Argued: September 30, 2014
Decided and Filed: December 4, 2014
Before: DAUGHTREY, ROGERS, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: H. Brett Stonecipher, FOGLE KELLER PURDY, Lexington, Kentucky, for
Petitioner. Miller Kent Carter, CARTER & LUCAS, Pikeville, Kentucky, for Respondent
Keathley. Ann Marie Scarpino, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Federal Respondent. ON BRIEF: H. Brett Stonecipher, FOGLE KELLER PURDY,
Lexington, Kentucky, for Petitioner. Miller Kent Carter, CARTER & LUCAS, Pikeville,
Kentucky, William L. Roberts, Pikeville, Kentucky, for Respondent Keathley. Ann Marie
Scarpino, Sean G. Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Federal Respondent.

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OPINION
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ROGERS, Circuit Judge. In this black lung benefits case the administrative law judge
and the Benefits Review Board discounted the opinion of a doctor who, opining that
pneumoconiosis had not caused Herbert Keathley’s total disability, assumed that “bronchitis
associated with coal dust exposure usually ceases with cessation of exposure.” The ALJ and the
Board determined that this assumption was contrary to federal regulations, which state that
“pneumoconiosis” may be “latent and progressive” and may arise after exposure ceases. Sunny
Ridge Mining Company challenges this determination. Sunny Ridge also argues that the ALJ
improperly weighed pulmonary function tests while determining that Keathley was totally
disabled. The grant of black lung benefits must be upheld, however, because the ALJ could
properly conclude that the doctor’s opinion rested on a premise inconsistent with a federal
regulation and that this inconsistency warranted discrediting the doctor’s opinion.
Herbert Keathley worked at strip mines for sixteen-and-a-half years. He retired and his
health deteriorated. Believing he had pneumoconiosis attributable to his work as a coal miner,
he applied for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., which
provides money payments and medical benefits to coal miners totally disabled from
pneumoconiosis arising from their employment in coal mines. An ALJ denied Keathley’s
application for benefits, Keathley v. Sunny Ridge, 2009 BLA 5081 (Dep’t of Labor, Nov. 18,
2010), but later the Benefits Review Board vacated the denial and remanded the case to the ALJ
for further consideration of both of the issues raised on this appeal, Keathley v. Sunny Ridge
Mining Co., BRB No. 11-0205 BLA/A (Nov. 16, 2011) (unpub.). On remand, the ALJ awarded
benefits, Keathley v. Sunny Ridge, 2009 BLA 5081 (Dep’t of Labor, Jan 17, 2013), and this time
the Board affirmed, Keathley v. Sunny Ridge Mining Co., BRB No. 13-0211 BLA (Nov. 13,
2013) (unpub.). Sunny Ridge petitions for review of that award.
During the initial hearing, Keathley established his eligibility for benefits by triggering
30 U.S.C. § 921(c)(4)’s “fifteen-year presumption.” This presumption is triggered if the miner
(1) “was employed for fifteen years or more in one or more underground coal mines” or in

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surface mines with conditions “substantially similar to conditions in an underground mine” and
(2) suffers from a totally disabling respiratory or pulmonary impairment[.]”

30 U.S.C.

§ 921(c)(4). Proving these two conditions creates a rebuttable presumption that the miner has
pneumoconiosis caused by coal mining. Keathley proved both; he had worked in coal mines for
sixteen-and-a-half years and he was able to show a totally disabling impairment through a
combination of medical opinion testimony and tests showing poor pulmonary function.
Keathley’s pulmonary function had been tested seven times; five tests produced results
indicating total disability, while two did not. The ALJ found this preponderance of test results
sufficient to establish total disability. Once these conditions for the presumption were satisfied,
it was presumed that Keathley’s totally disabling pulmonary impairment was pneumoconiosis
caused by coal mining.
Sunny Ridge was originally successful in rebutting this presumption by offering medical
opinion evidence that Keathley did not suffer from pneumoconiosis caused by coal mine
employment, in the form of testimony by Dr. Bruce Broudy. Dr. Broudy diagnosed Keathley
with “a combination of chronic obstructive asthma and pulmonary emphysema and chronic
bronchitis” caused by smoking.

While Dr. Broudy conceded that “coal dust may have

contributed to this gentleman’s impairment,” he concluded that “it’s far more likely that the
impairment was due to obstructive airways disease from cigarette smoking and some
predisposition to asthma or bronchospasm.” When asked how he ruled out coal dust exposure as
a cause, Dr. Broudy replied “coal dust exposure can cause chronic bronchitis. But for one thing,
the bronchitis associated with coal dust exposure usually ceases with cessation of exposure.” Dr.
Broudy agreed that “[c]linical or medical” pneuomoconiosis can progress without further
exposure, but he also agreed that “if chronic bronchitis is caused by coal dust exposure, when
you remove the exposure it should dissipate[.]” When asked whether he believed coal dust
exposure was a secondary cause, Dr. Broudy stated that he “wouldn’t rule it out completely as
being a possible cause,” but that it was not within “reasonable medical probability.” In the
ALJ’s 2010 decision, the ALJ found that Dr. Broudy’s testimony was sufficient to rebut the
presumption. The ALJ denied Keathley’s application for benefits.

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On appeal, the Benefits Review Board identified two errors in the ALJ’s decision: the
ALJ’s weighing of the pulmonary function test results was improperly based solely upon a count
of the disability-indicating versus non-disability-indicating results, and the ALJ had erred in not
addressing whether Dr. Broudy’s reasoning for excluding coal mine dust exposure as a cause
was inconsistent with the implementing regulations of the Black Lung Benefits Act. The Board
vacated the ALJ’s decision and remanded.
On remand, the ALJ reevaluated the pulmonary function tests. The ALJ noted that all the
tests met the Department of Labor’s regulatory standards and that no doctor had questioned the
validity of any result. Therefore, the ALJ found that all the test results were “clearly valid
representations of Keathley’s pulmonary function at the time of each test.” The ALJ also found
that the tests, which were all taken within a seven-month period, were “sufficiently
contemporaneous to provide a probative assessment.” Against the argument that the pulmonary
function test with the highest (and non-qualifying) value was the best because it represented peak
pulmonary capacity, the ALJ concluded that all the tests conforming to the regulatory standard,
where no other basis for invalidation existed, were sufficiently probative to establish total
disability, and that such a blanket preference for non-qualifying values was contrary to
regulations. Moreover, “on three out of four days of pulmonary testing over the course of seven
months, on two of three more recent test dates, and on the most recent test day, Keathley’s
pulmonary function met the total disability thresholds.” The ALJ concluded that all seven of the
tests were “equally probative” and that because five of the “conforming, valid, and probative”
tests indicated total disability, Keathley had met his burden of proof of establishing total
disability.
The ALJ also reconsidered Dr. Broudy’s diagnosis. The ALJ found that Dr. Broudy’s
diagnosis was indeed inconsistent with the regulations and discredited it. According to the ALJ,
Dr. Broudy’s statement—that “coal mine dust-related chronic bronchitis should dissipate with
cessation of coal mine dust exposure and usually stops with exposure cessation”—was
“inconsistent with the regulatory definition of pneumoconiosis in 20 C.F.R. § 718.201(c) as a
latent and progressive disease that may first become detectable only after the cessation of coal
mine dust exposure.” Additionally, the ALJ observed “the notable absence of any explanation

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by Dr. Broudy of how he specifically determined that Keathley’s coal mine dust exposure played
no role in his pulmonary impairment,” as well as Dr. Broudy’s concession that “coal mine dust
may have contributed to” the impairment. The ALJ concluded that these flaws in Dr. Broudy’s
analysis were “significant reasoning deficiencies that diminish the probative value of his
assessment to such extent that” it failed to rebut the presumption.
On appeal, the Board affirmed the ALJ’s weighing of the pulmonary function tests as
being based upon substantial evidence. The Board’s decision in this regard consisted entirely of
its rejection of Sunny Ridge’s arguments for giving greater weight to the two non-qualifying
tests. First, Sunny Ridge argued that the non-qualifying tests deserved greater weight because
they were more recent and more reliable. The Board approved the ALJ’s reliance on the lack of
any evidence calling into question the reliability of any test, and the Board determined that the
ALJ had permissibly concluded that the tests were equally reliable. The Board upheld the ALJ’s
finding that the tests established total disability as based upon substantial evidence.
The Board also affirmed the ALJ’s decision to discredit Dr. Broudy’s testimony as
inconsistent with 20 C.F.R. § 718.201(c)’s “latent and progressive” provision. Here, the Board’s
reasoning was conclusory; the Board stated only that the ALJ “rationally discounted” Dr.
Broudy’s opinion and then affirmed the ALJ’s decision.
Sunny Ridge now petitions for review.

The Director of the Office of Workers’

Compensation Programs has filed a brief urging denial of Sunny Ridge’s petition.
The ALJ did not err by discounting Dr. Broudy’s testimony for being inconsistent with
20 C.F.R. § 718.201(c). When the sole reason given for a medical opinion about the cause of
pneumoconiosis conflicts with the Black Lung Benefits Act or its implementing regulations, an
ALJ may discount that opinion. See A & E Coal Co. v. Adams, 694 F.3d 798, 802 (6th Cir.
2012); Cumberland River Coal Co. v. Banks, 690 F.3d 477, 488 (6th Cir. 2012); Greene v. King
James Coal Mining, Inc., 575 F.3d 628, 638 (6th Cir. 2009) (discussing the “hostility-to-the-Act
rule”). The sole reason given by Dr. Broudy in support of his conclusion regarding the cause of
Keathley’s chronic bronchitis was inconsistent with federal regulations. When asked how he
ruled out coal dust exposure as a cause, Dr. Broudy replied that “the bronchitis associated with
coal dust exposure usually ceases with cessation of exposure.” This statement conflicts with the

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determination of the Department of Labor expressed in 20 C.F.R. § 718.201(c) that
pneumoconiosis is “a latent and progressive disease which may first become detectable only
after the cessation of coal mine dust exposure.”
Dr. Broudy’s statement about coal mine dust-related chronic bronchitis was a statement
about a form of legal pneumoconiosis. Legal pneumoconiosis is not medical pneumoconiosis; it
is a legal fiction—long recognized by courts and later codified in regulations—designed to
facilitate the remedial purposes of the Black Lung Benefits Act. The term goes beyond mere
“clinical pneumoconiosis,” which is the set of chronic lung diseases recognized by the medical
community as being characterized by the permanent deposition of particulate matter in the lungs
and the subsequent fibrotic reaction of the lungs.

20 C.F.R. § 718.201(a)(1).

“Legal

pneumoconiosis” is a broad category encompassing “any chronic lung disease or impairment”
arising out of employment as a coal miner. 20 C.F.R. § 718.201(a)(2) (emphasis added).
Chronic bronchitis, when caused by exposure to coal mine dust, is a form of legal
pneumoconiosis.
Federal regulations recognize pneumoconiosis, including legal pneumoconiosis, as a
latent and progressive disease that may first become detectable after cessation of coal dust
exposure. This conclusion is compelled by previous decisions of this circuit. For instance, in
Cumberland River, we upheld an ALJ’s decision to discredit the testimony of a doctor who
opined that the miner’s chronic bronchitis was not caused by coal dust when the doctor justified
that opinion by reference to the time passed since the miner’s last exposure to coal dust.
690 F.3d at 487–88. These decisions are consistent with a plain reading of the regulation.
Subsection (a) of 20 C.F.R. § 718.201 defines “pneumoconiosis” as “includ[ing] both medical, or
‘clinical’, pneumoconiosis and statutory, or ‘legal’, pneumoconiosis.”

The word

“pneumoconiosis” in subsection (c) of that same section is not specifically limited to either type
of pneumoconiosis. 20 C.F.R. § 718.201(c). It therefore applies to both. As the Fourth Circuit
stated in Barber v. Director, Office of Workers’ Compensation Programs, 43 F.3d 899, 901 (4th
Cir. 1995), “[t]he legal definition of ‘pneumoconiosis’ is incorporated into every instance the
word is used in the statute and regulations.” Further, it is the interpretation of the Director of the
Office of Workers’ Compensation Programs, as expressed in his brief in this case, that the “latent

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and progressive” provision applies to “legal” pneumoconiosis, and Sunny Ridge does not contest
the exercise of deference usually afforded to agencies’ interpretations of their own regulations.
Such a conclusion may seem implausible, since it states a categorical medical claim about a
category that is a legal fiction, but it is the conclusion that this court and others have reached.
E.g., Midland Coal Co. v. Dir., Office of Workers’ Comp. Programs, 358 F.3d 486, 490 (7th Cir.
2004).
Sunny Ridge contends that Dr. Broudy’s testimony is consistent with the regulations
because the regulations nowhere state that “chronic bronchitis” is “a latent and progressive
disease.”

But the testimony at issue was about “chronic bronchitis caused by coal dust

exposure,” which fits neatly within the definition of legal pneumoconiosis—as Dr. Broudy
knew.1
The ALJ could reasonably find that Dr. Broudy’s medical opinion about legal
pneumoconiosis was based on a premise inconsistent with the Act. When asked how he ruled
out coal dust exposure as a cause, Dr. Broudy replied that “for one thing, the bronchitis
associated with coal dust exposure usually ceases with cessation of exposure.” But this was not
just “one thing”; it was the only thing. It was the sole reason Dr. Broudy gave for eliminating
coal dust exposure as the cause of Keathley’s chronic bronchitis. The ALJ considered the
possibility that the statement “may have just represented a generalized comment upon which Dr.
Broudy did not rely,” but Dr. Broudy never disclaimed reliance on the statement and gave no
other reason for ruling out coal dust exposure during the deposition. Sunny Ridge argues that the
words “usually ceases with cessation of exposure,” when properly read, are not inconsistent with
the Act. But the ALJ’s interpretation of Dr. Broudy’s testimony is nonetheless supported by
substantial evidence, even if there are other ways of interpreting the testimony.
Notwithstanding Sunny Ridge’s alternative argument, the ALJ properly weighed the
pulmonary function tests because he considered more than the mere quantitative differences in
1

Dr. Broudy’s knowledge of this is apparent from the transcript of his deposition: “Q[:] But legal
pneumoconiosis is any condition not medical pneumoconiosis; is that right? It’s any pulmonary condition caused by
coal dust exposure? A[:] Well, as defined by the Statute, that’s correct, yes. Q[:] So, chronic bronchitis is a
condition, as I understand you’re saying, that – if chronic bronchitis is caused by coal dust exposure, when you
remove the exposure it should dissipate; is that right? A[:] Yes, it usually does.”

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the test results. All parties agree that if the ALJ’s determination was based solely upon a count
of the test results, then the ALJ erred under Woodward v. Director, Office of Workers’
Compensation Programs, 991 F.2d 314 (6th Cir. 1993). It is unnecessary to decide whether
Woodward should be extended to cover the evaluation of pulmonary function tests, because even
if Woodward applies, the ALJ satisfied Woodward’s standard.2
In his 2013 decision awarding benefits, the ALJ performed a qualitative analysis of the
pulmonary function tests that was sufficient under Woodward. While the Benefits Review Board
ruled that the ALJ’s 2010 decision denying benefits “was improperly based solely upon a count
of the . . . studies,” the same criticism cannot be leveled against the ALJ’s 2013 decision. In that
decision, the ALJ determined that every test conformed to the Department of Labor’s regulatory
standards; that no doctor had questioned the validity of any result; that all the tests, which were
taken within a seven-month period, were “sufficiently contemporaneous to provide a probative
assessment”; and that tests representing peak pulmonary capacity should not be preferred
because such a preference would be contrary to regulations. Looking at the days on which the
tests were performed, “on three out of four days of pulmonary testing over the course of seven
months, on two of three more recent test dates, and on the most recent test day, Keathley’s
pulmonary function met the total disability thresholds.” The ALJ concluded that all seven of the
tests were “equally probative” and that because five of the “conforming, valid, and probative”
tests indicated total disability, Keathley had met his burden of proof of establishing total
disability.
As the Director notes in his brief, Sunny Ridge does not challenge the ALJ’s evaluation
of the individual tests, identify any factor the ALJ overlooked, or offer any basis for
distinguishing among the tests. The only alternative argued by Sunny Ridge is that, if all the
studies are equally probative, then the evidence is in equipoise and Keathley has failed to carry
his burden of proof. But this result is not required by Woodward, which contemplated the
2

Woodward concerned the evaluation of x-rays and x-ray readings. The parties had introduced eight
different x-rays and 38 different x-ray readings. Woodward, 991 F.3d at 316. Both sides hired multiple experts and
some experts read the same x-ray numerous times. Id. at 320. The ALJ found that the “voluminous readings”
presented an “equivocal picture” and determined that the miner had failed to carry his burden of proof. Id. at 321.
The court reversed, relying in part on a provision of the Administrative Procedure Act requiring the exclusion of
“unduly repetitious evidence.” 5 U.S.C. § 556(d).

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consideration of quantitative differences in the evidence so long as qualitative differences were
also considered. Woodward involved an application of the Administrative Procedure Act’s
provision for the exclusion of “unduly repetitious” evidence, not a per se ban on using
differences in the quantity of evidence to reach conclusions. Woodward, 991 F.2d at 321 (citing
5 U.S.C. § 556(d)). Furthermore, the evidence was not in equipoise because the ALJ found that
medical opinion evidence also supported a finding of total disability. Sunny Ridge asserts that
the ALJ’s finding on the medical opinion evidence was predicated on his finding on the
pulmonary function tests, but this is a misreading of the ALJ’s decision, which states that the
finding of total disability was “further supported by a preponderance of the probative medical
opinion.”
For the reasons given above, we deny the petition for review.