Appleton & Ratliff Coal Corpor v. Dewey Ratliff, et al

Filing

OPINION filed : Petition for review is DENIED, decision not for publication. Richard Allen Griffin, Authoring Judge; Circuit Judge; Helene N. White, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0603n.06
No. 15-4255
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APPLETON & RATLIFF COAL CORPORATION,
Petitioner,
v.
DEWEY RATLIFF; DIRECTOR OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

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FILED
Nov 15, 2016
DEBORAH S. HUNT, Clerk

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

BEFORE: GRIFFIN, WHITE, and DONALD, Circuit Judges.
GRIFFIN, Circuit Judge.
An administrative law judge determined respondent Dewey Ratliff was eligible for black
lung benefits and his former employer, petitioner Appleton & Ratliff Coal Corporation (A&R),
was responsible for payment of those benefits. The Benefits Review Board affirmed. A&R
raises several issues in its petition.1 Finding none to be meritorious, we deny the petition.

1

As set forth, both A&R and the insurance company from whom A&R purchased black
lung insurance are insolvent. The Kentucky Insurance Guaranty Association appeared on behalf
of A&R as a guarantor below. For ease, we refer to petitioner in this matter as A&R, even
though the guaranty association is the real party in interest.

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I.
A.
The Black Lung Benefits Act (Act or BLBA) provides benefits to miners who are totally
disabled from their long-term exposure to coal dust resulting in legal pneumoconiosis (black
lung disease). 30 U.S.C. § 901 et seq. For miners (like Ratliff) whose disability arises “at least
in part” after December 31, 1969, Part C of the Act provides that mine operators are liable for
benefit payments. § 932(b-c). If “there is no operator who is liable for the payment of such
benefits,” the Black Lung Disability Trust Fund assumes liability.

§ 932(c), (i)(4);

26 U.S.C. § 9501(d)(1)(B). The backstop that is the Trust Fund is one of last resort. The BLBA,
for example, requires operators to purchase insurance to cover benefits under the Act as an
attachment to a workers’ compensation policy (as did A&R), or self-insure. 30 U.S.C. § 933(a);
20 C.F.R. §§ 726.1, 726.203(a). Moreover, “[t]o ensure that the fund does not bear the sole
burden of black lung claims, the Department of Labor . . . established regulations to ensure that
coal mine operators are liable ‘to the maximum extent feasible’ for awarded claims.” Ark. Coals,
Inc. v. Lawson, 739 F.3d 309, 313 (6th Cir. 2014) (citation omitted).
B.
We begin with this “maximum extent feasible” framework, with an eye—given A&R’s
arguments—towards how the Department of Labor identifies responsible mine operators and
how such operators may contest a “responsible operator” designation. Upon receipt of a claim
for benefits, a district director of the Office of Workers’ Compensation Programs (OWCP)
develops evidence regarding the claim. See generally, 20 C.F.R. § 725.401 et seq. For one, the
director reviews the miner’s employment history, and identifies “one or more [mine] operators
potentially liable for the payment of benefits.” § 725.407(a), (b). A “potentially liable operator”

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designation requires satisfaction of five criteria, only one of which is at issue here: “The
operator is capable of assuming its liability for the payment of continuing benefits.”
§ 725.494(a-e); see also § 725.494(e) (defining “capable of assuming its liability”).
The district director then notifies each potential operator of the claim, who must respond
within thirty days by “indicating its intent to accept or contest its identification as a potentially
liable operator.” §§ 725.407(b), 725.408(a)(1). If the operator contests this status, it has ninety
days to submit documentary evidence supporting its position as to why any or all of the five
criteria do not apply. § 725.408(b)(1). Failing to submit such evidence within this timeframe
precludes an operator from so submitting in the future. § 725.408(b)(2); Ark. Coals, 739 F.3d at
318. If the operator—as here—fails to respond to the notice of claim, it is not permitted “to
contest its liability for the payment of benefits” as to any of the five criteria, including whether it
is “capable of assuming its liability.” § 725.408(a)(3).
Upon evaluation of further medical evidence and responses by all potentially liable
operators, the district director issues a “schedule for the submission of additional evidence.”
§ 725.410(a). Among other things, this schedule contains the district director’s designation of
which among the potentially liable operators is the “responsible operator”—the operator
responsible for paying benefits. §§ 725.495(a)(1); 725.410(a)(3). A “responsible operator” is
“the potentially liable operator . . . that most recently employed the miner.” § 725.495(a)(1). If
that operator does not satisfy all of the five criteria, the district director designates the next most
recent operator that does. § 725.495(3). If “there is no operator who is liable for the payment of
such benefits,” the Trust Fund assumes liability.
§ 9501(d)(1)(B).

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30 U.S.C. § 932(c), (i)(4); 26 U.S.C.

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A responsible operator must respond “with regard to its liability” within thirty days of the
issuance of the schedule for the submission of additional evidence, “specifically indicat[ing]
whether the operator agrees or disagrees with the district director’s designation.”
20 C.F.R. § 725.412(a)(1). This includes “submit[ting] evidence to demonstrate that it is not the
potentially liable operator that most recently employed the claimant.” § 725.414(b)(1).
The director may then either issue another schedule identifying a different potentially
liable operator as the responsible operator, or issue a proposed decision and order constituting
the OWCP’s “final adjudication of a claim.” §§ 725.415(b), 725.418(a). A “proposed decision
and order must reflect the district director’s final designation of the responsible operator liable
for the payment of benefits . . . [and t]he district director must dismiss, as parties to the claim,
any other potentially liable operators that received notification” of the claim. § 725.418(d). The
parties may then appeal to an administrative law judge, and then to the Benefits Review Board.
§§ 725.419(a), 725.481. The appeal to an ALJ is the point of no return on the responsible
operator designation. If subsequent proceedings determine the director’s designation is not
supported, the matter is not remanded to find a different responsible operator and, instead, the
Trust Fund pays benefits. See generally, Kentland Elkhorn Coal Corp. v. Hall, 287 F.3d 555,
566–68 (6th Cir. 2002).
Finally, the BLBA permits miners to seek modification of an order denying benefits “on
the ground of a change in conditions or because of a mistake in a determination of fact” within
one year. Ark. Coals, 739 F.3d at 317; see also 30 U.S.C. § 932(2) (incorporating 33 U.S.C.
§ 922); 20 C.F.R. § 725.310(a).

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C.
Dewey Ratliff began working in coal mines at the age of sixteen. He mined for over
twenty years, performing various coal-mining jobs until 1995. A&R, his last employer of more
than one year, ceased business operations in January 1998. Ratliff filed a claim for benefits on
September 17, 2001. A few weeks later, on October 3, 2001, A&R’s insurance carrier, Reliance
Insurance Company, was liquidated.
The OWCP identified A&R as a “potentially liable operator” by way of a December 10,
2001, notice of claim. A&R did not respond. The OWCP then issued a schedule for the
submission of additional evidence on August 6, 2002, finding: (1) A&R was the responsible
operator liable for the payment of benefits, and (2) Ratliff would not be entitled to benefits if a
decision were issued at this time based upon the medical evidence in the record. As to the
former, the OWCP reasoned that while A&R received notice of the claim, it “failed to timely
respond” and therefore was not permitted “to contest its liability for the payment of benefits.”
The Kentucky Insurance Guarantee Association appeared on behalf of A&R pursuant to
the Kentucky Insurance Guaranty Association Act (KIGAA) on September 3, 2002. That act
“provide[s] a mechanism for the payment of covered claims under certain insurance policies to
avoid excessive delay in payment and . . . to minimize financial loss to claimants or
policyholders because of the insolvency of an insurer, to assist in the detection and prevention of
insurer insolvencies, and to provide a means of funding the cost of such protection among
insurers.”

Ky. Rev. Stat. § 304.36-020.

It creates the Kentucky Insurance Guarantee

Association (KIGA), a nonprofit unincorporated legal entity, of which “insurance carriers of
most types of insurance, licensed to operate in Kentucky, [are required] to be members.” Ky.
Ins. Guar. Ass’n v. Jeffers, 13 S.W.3d 606, 608 (Ky. 2000). In essence, KIGA steps into the

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shoes of an insolvent insurance company and is required to pay certain claims under the act. Ky.
Rev. Stat. § 304.36-080(1)(a), (c).

There are limited exceptions to KIGA’s indemnity

requirements, which we discuss in further detail below.
Upon appearing, A&R disagreed with the OWCP’s preliminary finding that A&R was
the responsible operator by disputing one of the other five criteria—contending that A&R “was
not the operator with whom [Ratliff] had the most recent period of cumulative employment of
one year.” Critically, however, it agreed that A&R or “its insurer is financially capable of
assuming liability for the payment of benefits.”
The OWCP subsequently issued a proposed decision and order on May 6, 2003. It again
concluded A&R was the responsible operator, but this time found that Ratliff was entitled to
benefits. A&R sought review before an administrative law judge, repeating its position that
A&R “was not the operator with whom [Ratliff] had the most recent period of cumulative
employment of one year.” It again did not make issue of whether it or its insurer was financially
capable of assuming liability for payment of benefits.
Ratliff’s claim languished for reasons not pertinent to this appeal for several years
awaiting a hearing before an administrative law judge. Importantly, during this delay, A&R first
raised an issue as to its capacity to pay benefits. On May 9, 2007, A&R moved to remand the
matter back to the OWCP, contending that as a matter of Kentucky state law, KIGA “does not
have liability for benefits rendered pursuant to the Federal Black Lung Act” and, therefore, the
Trust Fund is responsible for paying benefits to Ratliff. A&R contended that KIGA is exempt
under Kentucky law from such liability because black lung benefits are purportedly guaranteed
by the Black Lung Disability Trust Fund. An administrative law judge denied this motion, and
A&R’s motion for reconsideration.

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A different administrative law judge issued a decision and order denying benefits in
2009. The ALJ found Ratliff ineligible for benefits because while Ratliff established that he
suffered from “simple pneumoconiosis,” he failed to establish that he suffered from “legal
pneumoconiosis” and therefore was not “totally disabled” under the Act. On the responsible
operator issue, the ALJ rejected A&R’s contention that KIGA was not liable for paying black
lung benefits as follows:
Employer’s counsel did not submit any evidence that the Appelton [sic] & Ratliff
Coal Corporation is insolvent, defunct, absorbed into a successor corporation, or
lacks tangible assets that could be used to satisfy its liability to satisfy the award
of benefits under the Act. This Administrative Law Judge finds that the Employer
has failed to rebut the presumption that it is capable of assuming liability for
payment of continuing benefits awarded under the Act and is the properly
designated responsible operator in this case.
Ratliff sought modification. Relying upon additional medical evidence, an administrative
law judge awarded Ratliff benefits and concluded A&R was responsible for payments due. The
Benefits Review Board affirmed. Petitioner timely appeals, and we have jurisdiction to review
the petition under 33 U.S.C. § 921(c).
II.
A.
We turn first to A&R’s primary issue on appeal—that KIGA is not responsible for paying
Ratliff’s benefits because the plain language of the KIGAA precludes such a finding. For our
purposes, that act requires KIGA to pay “covered claims existing prior to the order of [the
insurance company’s] liquidation.” Ky. Rev. Stat. § 304.36-080(1)(a), (c). Covered claims are
“all kinds of direct insurance,” including “[t]he full amount of a covered claim for benefits
arising from a workers’ compensation insurance policy.” Ky. Rev. Stat. §§ 304.36-030(1),
304.36-080(1)(a)(1), 304.36-120(2). There are two exceptions pertinent here: “[o]cean marine

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insurance” and “[a]ny insurance provided, written, reinsured, or guaranteed by any government
or governmental agencies.” § 304.36-030(1)(f), (h). A&R contends black lung benefits fall
within these two exceptions, and thus it is not financially capable of assuming liability.2
B.
“We review the factual record to decide whether substantial evidence supports the ALJ’s
decision that [the mine operator] is the responsible operator . . . [and] review issues of law de
novo.” Kentland, 287 F.3d at 563. “Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Morrison v. Tenn. Consol.
Coal Co., 644 F.3d 473, 478 (6th Cir. 2011) (citations omitted). “Where the substantial evidence
requirement is satisfied, we may not set aside the ALJ’s findings, even if we would have taken a
different view of the evidence were we the trier of facts.” Id. (citation omitted). In deciding
whether the substantial evidence standard is satisfied, we consider whether the ALJ adequately
explained the reasons for crediting certain testimony and documentary evidence over other
testimony and documentary evidence. Id. “A remand or reversal is only appropriate when the
ALJ fails to consider all of the evidence under the proper legal standard or there is insufficient
evidence to support the ALJ’s finding.” Id. (citation omitted).
C.
As the director persuasively argues, A&R is precluded from contesting its liability for the
payment of benefits. Under the Department of Labor’s regulations, no operator may submit
2

This is a novel contention, and we are not aware of any other court addressing this
statutory construction question under KIGAA, or any other similarly enacted insurance guaranty
act across the country. We are aware, however, of at least one instance where a state guaranty
association assumed responsibility for paying black lung benefits on behalf of an insolvent
insurer. See, e.g., Boyd & Stevenson Coal Co. v. Dir., Office of Workers’ Comp. Programs, 407
F.3d 663, 665 (4th Cir. 2005). And we note that the Benefits Review Board in Jimmy Bowling v.
Island Fork Construction followed its decision in this matter and rejected A&R’s position. BRB
No. 16-0057 BLA (DOL Ben. Rev. Bd. Sept. 21, 2016).
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evidence regarding the operator’s capability of assuming liability for the payment of benefits
unless it does so within ninety days of receiving notice that it is a “potentially liable operator.”
20 C.F.R. § 725.408(a)(3), (b)(1-2); Ark. Coals, 739 F.3d at 318 (“[The regulations are] narrowly
and clearly focused on when and how an operator may contest its identification to a director.”)
(emphasis omitted). Here, A&R received such notice and did not respond. Critically, by this
juncture, both A&R and Reliance were insolvent. A&R’s failure to respond means A&R lost its
ability to contest its liability in future proceedings.

§ 725.408(a)(3) (“An operator which

receives notification . . . and which fails to file a response within the [ninety-day] time limit . . . ,
shall not be allowed to contest its liability for the payment of benefits on [the] ground [that it is
not capable of assuming liability for the payment of benefits].”).
It is true that KIGA did not receive A&R’s notice of claim and respond within the
regulatory window. But yet when it did and appeared in this case—again, after A&R and
Reliance were insolvent—it expressly agreed that A&R or its insurer was financially capable of
assuming liability for the payment of benefits. It maintained this position for nearly five years,
through the OWCP’s proposed decision and order and its subsequent appeal. By failing to
contest its responsible operator status until after the case went before an administrative law
judge, KIGA has prevented the director from revisiting this determination and effectively seeks
to shift the responsibility for payment of benefits to the Trust Fund.
Because A&R failed to timely contest its liability under the Department of Labor’s
unchallenged regulations, it is precluded from doing so.3

3

Neither the ALJ nor Benefits Review Board relied upon this ground when ruling against
A&R, but we may affirm on a different ground. See, e.g., Arch of Kentucky, Inc. v. Dir., Office
of Workers’ Comp. Programs, 556 F.3d 472, 480 (6th Cir. 2009) (“We can, instead, affirm the
ultimate ruling of the BRB . . . based on a ground other than the one actually relied upon by the
board.”); Glen Coal Co. v. Seals, 147 F.3d 502, 510 (6th Cir. 1998) (similar).
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III.
The BLBA grants the power to the Secretary of the Department of Labor to “adopt
reasonable and proper rules and regulations to regulate and provide for the nature and extent of
the proofs and evidence and the method of taking and furnishing the same in order to establish
the right to benefits.” 30 U.S.C. § 923(b) (incorporating 42 U.S.C. § 405(a)). As such, the
Department of Labor’s regulations restrict the amount of medical evidence a party may submit
both during the initial development of evidence and during any subsequent modification
proceedings. A&R contends 20 C.F.R. § 725.310(b)’s limitations for modification proceedings
violate the Fifth Amendment’s due process guarantee to a meaningful opportunity to present its
case.
During an initial proceeding, each party may submit as part of its affirmative case:
no more than two chest X–ray interpretations, the results of no more than two
pulmonary function tests, the results of no more than two arterial blood gas
studies, no more than one report of an autopsy, no more than one report of each
biopsy, and no more than two medical reports.
20 C.F.R. § 725.414(a)(2)(i), (3)(i). Each party may also submit the following evidence in
rebuttal:
no more than one physician’s interpretation of each chest X–ray, pulmonary
function test, arterial blood gas study, autopsy or biopsy submitted by the [other
party, as well as] . . . one physician’s assessment of each piece of such evidence.
§ 725.414(a)(2)(ii), 3(ii). And upon submission of such rebuttal evidence, a party may submit
additional physician statements responding to the rebuttal evidence. Id.
The regulations further restrict each parties’ ability to enter additional evidence:
each [party is] entitled to submit no more than one additional chest X–ray
interpretation, one additional pulmonary function test, one additional arterial
blood gas study, and one additional medical report in support of its affirmative
case.

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20 C.F.R. § 725.310(b). The rebuttal evidence and additional statements provisions also apply in
modification proceedings. § 725.310(b). And as A&R admits, the regulations also permit an
administrative law judge to admit evidence in excess of these restrictions for “good cause.”
C.F.R. § 725.456(b)(1); J.A. v. Island Creek Coal Co., BRB No. 07-0482 BLA, 2008 WL
2897354, at *2 n.3 (DOL Ben. Rev. Bd. Feb. 28, 2008). Moreover, when evaluating a request
for modification, the administrative law judge “has the authority, if not the duty, to rethink prior
findings of fact and to reconsider all evidence for any mistake in fact or change in conditions.”
Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 743 (6th Cir. 1997).
A&R contends the modification proceeding limitations are arbitrary. It notes the amount
of evidence permitted during initial proceedings is greater, even though the ultimate question to
be answered by the administrative law judge—does the miner’s condition qualify for benefits
under the BLBA—remains the same.

As with its argument regarding the KIGAA, this

contention is procedurally flawed.
During the modification proceeding, A&R submitted one additional chest x-ray
reading—a March 16, 2010, “B” reading by Dr. Bruce Broudy.

That reading found

abnormalities consistent with simple pneumoconiosis. During the formal submission of evidence
at the hearing, A&R substituted Dr. Broudy’s reading with that of a reading of the same x-ray by
Dr. Paul Wheeler.

It likely did so because Dr. Wheeler’s reading was negative for

pneumoconiosis, simple or otherwise. There is no record evidence of A&R attempting to
introduce additional x-rays in contravention to 20 C.F.R. § 725.310(b)’s limitation (or requesting
that the ALJ permit such extra evidence upon a showing of good cause). Nor does A&R present
on appeal what evidence the regulation’s limitation precluded it from entering. These failures

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preclude review of A&R’s argument. See, e.g., Hix v. Dir., Office of Workers’ Comp. Programs,
824 F.2d 526, 527 (6th Cir. 1987).4
IV.
A&R next argues the ALJ improperly declined to credit medical evidence regarding the
March 16, 2010, x-ray. A miner establishes entitlement to black lung benefits by showing:
“(1) he has pneumoconiosis, (2) his pneumoconiosis arose in whole or in part out of his coal
mine employment, (3) he is totally disabled, and (4) the total disability is due to
pneumoconiosis.” Cent. Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 762 F.3d
483, 486 (6th Cir. 2014). The Act and its implementing regulations provide an irrebuttable
presumption of a total disability due to pneumoconiosis upon a showing of complicated
pneumoconiosis on an x-ray. 30 U.S.C. § 921(c)(3); 20 C.F.R. § 718.304(a). Below, the ALJ
applied this presumption based upon a reading of a March 16, 2010, x-ray by Dr. Navani finding
complicated pneumoconiosis. A&R contends this was in error because two other physicians—
Drs. Broudy and Wheeler—read the same x-ray and came to a different conclusion.
A.
Dr. Broudy’s Reading.

A&R contends the ALJ improperly excluded Dr. Broudy’s

reading of this x-ray—contained in his physician’s opinion—in which he found only simple, not
complicated, pneumoconiosis. It then argues that because the ALJ declined to consider this
reading, she “indicated [her] understanding [that] the regulations precluded [her] from
considering [Dr. Broudy’s] report in any fashion during any part of [her] deliberations.” A&R

4

To be sure, there is an exception to the general rule that the failure to raise an argument
below precludes appellate review “when raising the issue would have been futile.” Consol. Coal
Co. v. McMahon, 77 F.3d 898, 904 (6th Cir. 1996) (citation omitted). Given A&R’s lack of
argument below concerning what evidence it was precluded from entering, and the “good cause”
exception to the evidentiary limitation, there is no futility argument to be had.
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further argues the ALJ excluded Dr. Broudy’s reading without considering 20 C.F.R.
§ 725.456(b)(1)’s “good cause” exception. We review an ALJ’s decision to exclude evidence for
an abuse of discretion. NLRB v. Jackson Hosp. Corp., 557 F.3d 301, 305–06 (6th Cir. 2009).
There was no abuse of discretion here. A&R substituted Dr. Broudy’s reading with that
of Dr. Wheeler’s. Because Dr. Broudy’s reading was not submitted as evidence by A&R, the
ALJ determined that his reading was not admissible. Under 20 C.F.R. § 725.414(a)(3)(i), “[a]ny
chest x-ray interpretations . . . that appear in a medical report must . . . be admissible.” Refusing
to consider medical opinions resting upon inadmissible evidence does not constitute an abuse of
discretion. See, e.g., Cumberland River Coal v. Jent, 506 F. App’x 470, 472 (6th Cir. 2012) (per
curiam). Moreover, A&R’s argument misstates the record—the ALJ did credit several parts of
Dr. Broudy’s opinion, but just did not credit those parts of Dr. Broudy’s opinion associated with
his complicated pneumoconiosis opinion.

And as the Benefits Review Board aptly noted,

A&R’s “good cause” argument fails because A&R did not raise it before the ALJ.
B.
Dr. Wheeler’s Reading. In reading the March 16, 2010, x-ray, Dr. Wheeler observed
Ratliff’s lungs showed signs of other diseases—granulomatous disease, histoplasmosis or
tuberculosis—not pneumoconiosis, simple or complicated.

The ALJ found Dr. Wheeler’s

observation was not credible. A&R argues this was in error, noting the record—as described by
the ALJ—included references to Ratliff showing signs of granulomatous disease.
The ALJ gave Dr. Wheeler’s reading little weight for two reasons. First, Dr. Wheeler
had found other x-rays to also be negative for simple pneumoconiosis, despite readings to the
contrary from all other physicians (and contrary to the initial ALJ’s finding that these readings
showed Ratliff at least suffered from simple pneumoconiosis). As the ALJ stated, “[n]ot only is

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Dr. Wheeler the only dually qualified physician who did not find simple pneumoconiosis in this
case, his opinion that the Claimant does not have pneumoconiosis is ‘aberrant’ from the
overwhelming weight of the evidence.”

Second, the ALJ found Dr. Wheeler’s comments

suggesting other diseases instead of pneumoconiosis “undermine[d] the credibility of his x-ray
interpretation.” This is because Ratliff’s treatment records did “not support Dr. Wheeler’s
theories on alternative causes.” Put differently, Dr. Wheeler “fail[ed] to point to evidence in the
record indicating that the miner suffers or suffered from any of the alternative diseases.”
We have characterized challenges “relat[ing] to the weighing of conflicting medical
evidence” as “exceedingly narrow.” Dixie Fuel Co., LLC v. Dir., Office of Workers’ Comp.
Programs, 820 F.3d 833, 842 (6th Cir. 2016) (citation omitted). “The determination as to
whether a physician’s report was sufficiently documented and reasoned is essentially a
credibility matter. As such, it is for the factfinder to decide.” Greene v. King James Coal Min.,
Inc., 575 F.3d 628, 635 (6th Cir. 2009) (citation and bracket omitted). When an ALJ adequately
explains the reasons for crediting certain evidence over others, substantial evidence supports this
credibility determination. Peabody Coal Co. v. Hill, 123 F.3d 412, 415 (6th Cir. 1997). Stated
differently, it is not for this court to “reweigh the evidence [and] substitute our judgment for that
of the ALJ.” Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1073 (6th Cir. 2013) (citation
omitted).
A&R’s position on appeal asks this court to do just that. The ALJ properly concluded Dr.
Wheeler’s x-ray reading merited little weight. “When a physician’s opinion lacks support and
detail, the ALJ may disregard it.” Greene, 575 F.3d at 635. Here, even if other physicians’
records indicate the presence of granulomatous disease in older x-rays, there is no mention of
these findings in Dr. Wheeler’s review. It was reasonable for the ALJ to discredit Dr. Wheeler’s

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Case: 15-4255

Document: 36-1

Filed: 11/15/2016

Page: 15

No. 15-4255, Appleton & Ratliff Coal Corp. v. Ratliff et al.,
reading on this basis—we are concerned with the foundation of Dr. Wheeler’s opinion, not
A&R’s attempt to revise it after the fact. Cf. Westmoreland Coal Co. v. Cox, 602 F.3d 276, 287
(4th Cir. 2010) (ALJ properly rejected medical opinion “consist[ing] of speculative alternative
diagnoses that were not based on evidence that [the miner] suffered from any of the diseases
suggested”). And as noted by the Benefits Review Board, the additional evidence showing the
presence of granulomatous disease does not exclude—as concluded by Dr. Wheeler—a
pneumoconiosis diagnosis.5
V.
For these reasons, we deny the petition.

5

A&R speculates that the ALJ surreptitiously relied upon the Department of Labor’s
Bulletin No. 14-09 to discredit Dr. Wheeler. But the ALJ set forth her reasons for finding Dr.
Wheeler not credible, and her decision falls comfortably within the familiar administrative law
requirement of “contain[ing] a statement of the basis of the order, findings of fact, conclusions of
law, and an award, rejection or other appropriate paragraph containing the action of the
administrative law judge, his or her signature and the date of issuance.” 20 C.F.R. § 725.477(a).
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