Aberry Coal, Inc., et al v. Joseph Fleming, et al

Filing

AMENDED OPINION and JUDGMENT FILED. The award of benfits is REVERSED and the case is REMANDED. Decision for publication. Alice M. Batchelder and Raymond M. Kethledge, Circuit Judges; and Judith E. Levy (AUTHORING), U.S. District Judge for the Eastern Distric of Michigan, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0018p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ABERRY COAL, INCORPORATED; ARROWPOINT CAPITAL
INC., c/o Underwriters Safety & Claims,
Petitioners,
v.

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JOSEPH FLEMING; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION
PROGRAMS,
UNITED
STATES
DEPARTMENT OF LABOR.

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│
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│
│
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┘

Respondents.

>

No. 15-3999

On Petition for Review of an
Order of the Benefits Review Board.
No. 14-0329 BLA.
Decided and Filed: January 24, 2017
Before: BATCHELDER and KETHLEDGE, Circuit Judges; and LEVY, District Judge.*
_________________
COUNSEL
ON BRIEF: John R. Sigmond, Nathaniel Dale Moore, PENN, STUART & ESKRIDGE,
Bristol, Virginia, for Petitioners. Joseph Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondent Fleming.

*

The Honorable Judith E. Levy, United States District Judge for the Eastern District of Michigan, sitting by
designation.

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_____________________
AMENDED OPINION
_____________________
JUDITH E. LEVY, District Judge. Under the Black Lung Benefits Act (“BLBA”), an
Administrative Law Judge (“ALJ”) must determine, using a reasonable method of calculation
and based on substantial evidence, how long a coal worker was employed in coal-mine work. If
the length of employment was more than fifteen years, the worker is entitled to a presumption of
total disability under the BLBA. The ALJ who heard Joseph Fleming’s claim determined that
Fleming established over sixteen years of coal-mine employment, and was entitled to that
presumption. The Benefits Review Board of the Department of Labor (“the Benefits Review
Board”) affirmed that determination, and awarded Fleming BLBA benefits.
The evidence presented at the hearing, however, did not and could not have established
that Fleming had over sixteen years of coal-mine employment, or even the fifteen necessary for
the presumption of total disability. Accordingly, we vacate the Board’s award of benefits, and
remand for rehearing consistent with this opinion.
I. Background
Fleming, like many coal workers, had a sporadic work history in the coal industry.
Between 1970 and 1991, Fleming worked for twenty-five different coal-mine employers. (App.
at 781-82.) On July 19, 2010, Fleming filed an application for BLBA benefits. (Id. at 706.) On
September 20, 2011, the Department of Labor’s Office of Workers’ Compensation issued
findings of fact and conclusions of law determining that Fleming was employed as a coal miner
for nine and one-quarter years between 1970 and 1991, and that he had contracted
pneumoconiosis as a result of his coal-mine employment. (Id. at 374.) Aberry Coal was
designated as the coal-mine operator responsible for payment of benefits. (Id.)
On October 11, 2011, Aberry Coal requested a formal hearing in front of an ALJ. The
hearing was held on October 16, 2012, and the ALJ issued a Decision and Order awarding
benefits on January 24, 2013. (Id. at 706-14.) In that order, the ALJ dedicated two pages to an
analysis of the length of Fleming’s coal-mine employment. (Id. at 708-10.) The ALJ determined

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that there were “at most 16 different years in which claimant could have worked as a coal miner
(1970 through 1991 minus four years due to injury minus 1 year in Florida).” (Id. at 708.)
The ALJ then compared Fleming’s Social Security Earnings Record (“SSER”) to the
daily average earnings of coal miners for each year Fleming worked, as provided by the Bureau
of Labor Statistics, to determine how many weeks Fleming worked each year. (Id. at 709.) The
ALJ determined that Fleming could show he had worked 273.50 weeks in the coal-mining
industry between 1970 and 1991, or about 5.25 years. (Id.) The ALJ then determined that
Fleming was credible and established that he had either been paid under the table or without
proper records having been kept during his career. (Id. at 710.) Based on that determination, the
ALJ found that Fleming engaged in coal-mine employment “for at least 15 years.” (Id.) This
entitled Fleming to the presumption of total disability under the BLBA, 30 U.S.C. § 921(c)(4),
and the ALJ determined that Fleming was owed benefits dating from July 2010. (Id. at 710,
713.)
On December 17, 2013, the Benefits Review Board, which has appellate jurisdiction over
ALJ decisions, reversed and remanded the Decision and Order to “reconsider whether [Fleming]
has established fifteen years of underground coal-mine employment sufficient to invoke the
[BLBA total disability] presumption.” (Id. at 746.) The Benefits Review Board determined that
the ALJ had neither explained how he resolved the conflict between Fleming’s “not [being] a
good historian” and the ALJ’s crediting of Fleming’s testimony, nor resolved the conflicting
evidence regarding the years in which Fleming engaged in coal-mine employment. (Id.)
On May 19, 2014, following additional comments from Aberry and Fleming, the ALJ
issued a second Decision and Order again awarding benefits to Fleming. (Id. at 780-86.) That
Decision and Order again found that Fleming worked more than fifteen years in coal-mine
employment. (Id. at 785.) Fleming’s employment was based on records that he worked for the
following employers during the following time periods between 1970 and 1991:

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Employer

1970

Clark Super 100

1970

Chevron USA Inc.

1970

High Point Coal Company

1971

Archer & Club Coal Co. Inc.

1971

POM Corp

1971-72

Brownlee-Kesterton Inc.

1972

Atlantic Gulf Communities Corp.

1972-73

Atlantic Condominiums Inc.

1972

Officemax Incorporated

1972

William H. Hensick & Sons Inc.

1973

A&E Coal Co.

1973

Governor Elkhorns Coal Company Inc.

1973

Scotia Coal Co.

1974-77

Scotia Employees Association

1975, 1977

Elkhorn & Jellico Coal Co Inc.

1978

Branham & Baker Coal Co. Inc.

1978

Johnson & Sons Coal Co. Inc.

1978

Ancoal Mining Corporation

1979

Action Enterprises Inc.

1979-80

Paramount Mining Corporation

1980

Sullivan Brothers Inc.

1980

Everidge & Nease Coal Co. Inc.

1985

Uniforce Staffing Services Inc.

1987

U N F Services Inc.

1988

Wampler Brothers Coal Co. Inc.

1988-89

Aberry Coal Inc.

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Dates of Employment

Peem Coal Co.

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1989-91

(Id. at 781.)
The ALJ determined that Fleming should receive no credit for coal-mine employment in
1972, because Fleming showed no earnings from coal-mine employment that year. (Id. at 782

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n.1.) Fleming also showed no employment between 1981 and 1984, or in 1986. Fleming’s work
in 1987 was also not coal-mine employment. Accordingly, he showed no coal-mine related
employment during six of the twenty-two years between the beginning of 1970 and end of 1991.
Despite earning only $72 in 1970, the ALJ credited Fleming with a full year of coal-mine
employment at Peem Coal Co. based on Fleming’s testimony that he knew he “was there close to
a year.” (Id. at 781.) For 1971, the ALJ credited Fleming with a year of employment at High
Point Coal Co., despite earning only $57.50 that year, again based on Fleming’s testimony that
he “worked there almost a year.” (Id. at 781-82.) The ALJ credited Fleming with a second year
of employment in 1971 at Archer & Club Coal Co., despite Fleming’s having earned only $200
that year, based on Fleming’s testimony that he “worked there for about a year, maybe longer.”
(Id. at 782.) The ALJ next credited Fleming with a year of employment in 1971 and 1972 at the
POM Corp. (erroneously called T.O.M. Corp.) based on Fleming’s testimony. (Id.) The ALJ
then credited Fleming with a year of work at various employers in 1973 and with a year of work
in 1974 for his work for the Scotia Employees Association. (Id.) We assume that the ALJ meant
Scotia Coal Co., where Fleming worked in 1974, and not Scotia Employees Association, where
Fleming worked in 1975.

In all, despite having found that Fleming had no coal-mine

employment in 1972, the ALJ credited him with five years of work in the five-year period
between 1970 and 1974.
The ALJ credited Fleming with three years of employment at Scotia Employees
Associates from 1975 to 1977, despite his not working at Scotia Employees Associates in 1976.
(Id. at 783.) Again, we will assume the ALJ meant to refer to Scotia Coal Co., where Fleming
worked in 1976. (Id. at 781.) The ALJ credited Fleming with two and one-half years of
employment between 1978 and 1980, (id. at 783), and with three years of employment in 1985,
1988, and 1989 for his work at Everidge & Nease Coal Co. Inc. and Wampler Bros. Coal Co.
Inc. (Id.) Finally, the ALJ credited Fleming with an additional year of work in 1989 for his
work at Aberry, along with another two years of work in 1990 and 1991. (Id.) This gave
Fleming an additional eleven and one-half years of coal-mine employment, for a total of sixteen
and one-half years. The ALJ determined that Fleming qualified for the fifteen-year service
presumption under the BLBA, and awarded benefits. (Id. at 785.)

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On July 31, 2015, the Benefits Review Board affirmed the ALJ’s decision. (Id. at 1-18.)
II. Analysis
“This court’s role in reviewing an ALJ’s decision is limited to determining whether
substantial evidence supports the ALJ’s conclusions.” Jericol Mining, Inc. v. Napier, 301 F.3d
703, 708 (6th Cir. 2002). “In deciding whether the substantial evidence requirement is satisfied,
we consider whether the administrative law judge adequately explained the reasons for crediting
certain testimony and evidence over other evidence in the record in deciding either to award or
deny benefits.” Peabody Coal Co. v. Hill, 123 F.3d 412, 415 (6th Cir. 1997) (citing Director,
OWCP v. Congleton, 743 F.2d 428, 430 (6th Cir. 1984)). The BIA was required by statute to
affirm the ALJ’s Decision and Order if the findings are “supported by substantial evidence in the
record considered as a whole.” 33 U.S.C. § 921.
A claimant is entitled to a presumption that he is totally disabled under the BLBA if he
can show that he had fifteen years of coal-mine employment. 30 U.S.C. § 921(c)(4). As
Administrative Appeals Judge Boggs stated in her dissenting opinion, “the administrative law
judge did not make a determination regarding the specific starting and ending dates for various
employers, or reconcile employment time periods in instances where the dates are overlapping,
or explain how he calculated partial years of employment.” The ALJ’s opinion is so inexact that
it makes impossible any attempt to understand for which years he credited Fleming with one year
of coal-mine employment.
The regulations are clear about the number of days required to comprise a year of
coalmine employment:
(32) Year means a period of one calendar year (365 days, or 366 days if one of the
days is February 29), or partial periods totaling one year, during which the miner
worked in or around a coal mine or mines for at least 125 “working days.”
...
(i) If the evidence establishes that the miner worked in or around coal mines at
least 125 working days during a calendar year or partial periods totaling one year,
then the miner has worked one year in coal mine employment for all purposes
under the Act. . . . Proof that the miner worked more than 125 working days in a

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calendar year or partial periods totaling a year, does not establish more than one
year.
20 C.F.R. § 725.101(32). The ALJ, however, made no mention of these requirements. For
instance, with regard to the years 1970 thru 1974, the ALJ stated:
Claimant testified regarding each of these employers. He said he worked for
Peem Coal Company in 1970 and stated ‘I know I was there close to a year.’ The
earnings record shows Claimant only earned $72.00 in 1970. Claimant next
testified he worked for High Point Coal Company in 1971. Claimant only earned
$57.50 according to the earnings record although he testified he ‘worked there
almost a year.’ Claimant was asked about his coal mine employment with Archer
and Club Coal Company where earnings records indicated he only made $200.00.
However, Claimant testified: ‘I worked there for about a year, maybe longer.’
Next, Claimant was asked about the records which showed earnings from T.O.M.
[sic] Corporation in Ann Arbor, Michigan. Claimant testified his work was not in
Ann Arbor, but the Corporation in Ann Arbor was the parent corporation of
Eastern Kentucky Coal Company. Claimant’s earnings from this corporation
establish at least one year of employment. Claimant’s testimony of working with
Brownley Ketterson, Inc, A & E Coal Company, and Governor Elkhorn’s along
with his earnings record establishes one year of Employment during this period.
Claimant’s Employment with Scotia Employees Association in 1974 brings his
total to five years of employment.
And even though this was the ALJ’s second attempt at calculating Fleming’s coal-mine
employment, the ALJ gave virtually no explanation or reason for his crediting Fleming with five
years of coal-mine employment during this period. It even appears that the ALJ credited
Fleming with two years of coal-mine employment for 1971 based on his testimony that he
worked for “almost a year” at High Point in 1971, and “about a year, maybe longer” at Archer
Club Coal, also in 1971. But the regulation clearly prohibits that. 20 C.F.R. § 725.101(32)(i).
(“Proof that the miner worked more than 125 working days in a calendar year or partial periods
totaling a year, does not establish more than one year.”). Further, as Judge Boggs’s dissent
pointed out, while the ALJ stated that he accepted Fleming’s testimony, “he did not adequately
explain how he resolved the discrepancy between claimant’s testimony that claimant worked five
years of coal mine employment during the period from 1970 to 1974 with claimant’s testimony,
as supported by the SSA earnings records, that he worked in construction in Florida for one year
during the same period of time.”

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The ALJ also erred by crediting Fleming with two years of coal-mine employment for
1989. Here, the ALJ gave Fleming credit for six years of coal-mine employment in a period of
five years, stating “[c]laimant’s earnings with Everidge & Neece [sic] Coal [1985] and Wampler
[1988 and 1989] establish an additional three years and his Employment with Aberry Coal from
1989 through 1991 establish another three years of employment.”
The ALJ based his decision almost entirely on Fleming’s testimony, which at many
points either conflicted with or was unsupported by the Social Security Earnings Reports, and the
ALJ merely mentioned—but did not address—Aberry Coal’s arguments against his calculations.
At no point in the ALJ’s Decision and Order did he make any attempt to show how Fleming
accrued at least 125 days of coal-mine employment in any of the questionable years.
We reverse the BIA’s order for the reasons laid out in Judge Boggs’s thorough dissent,
and remand for further proceedings consistent therewith.
III. Conclusion
For the reasons set forth above, we REVERSE the award of benefits by the Benefits
Review Board and REMAND for proceedings consistent with this opinion.