Advent Mining LLC v. Raymond Davis, et al

Filing

OPINION filed : The petition for review is DENIED. Decision not for publication. Alan E. Norris, Karen Nelson Moore, (AUTHORING), and Jane Branstetter Stranch, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0344n.06
No. 16-4049
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ADVENT MINING LLC,
Petitioner,
v.
RAYMOND DAVIS et al.,
Respondents.

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FILED
Jun 19, 2017
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
OF A DECISION AND ORDER
OF THE UNITED STATES
DEPARTMENT OF LABOR
BENEFITS REVIEW BOARD
OPINION

Before: NORRIS, MOORE, and STRANCH, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Raymond Davis worked in various coal
mines for more than twenty-seven years. By the time he retired from mining work in 2010,
Davis found it difficult to walk more than thirty yards or climb more than ten stairs without
losing his breath. Davis filed for and received benefits under the Black Lung Benefits Act, 30
U.S.C. § 901 et seq., and the award of benefits was affirmed both by a United States Department
of Labor Administrative Law Judge (“ALJ”) and the Department of Labor Benefits Review
Board (“Board”). Advent Mining, LLC (“Advent” or “Petitioner”), Davis’s final employer,
petitions for review of the Board’s decision because Advent believes the decision was “irrational,
unsupported by the substantial evidence of the record, and inconsistent with applicable law
and/or an error of the application of the law.” Pet’r Br. at 11. For the reasons set forth below,
we DENY the petition for review.

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I. FACTS AND PROCEDURE
A. Factual History
Raymond Davis was born in 1948 and worked in various underground coal-mine jobs for
at least twenty-seven years. Pet’r App’x at 41, 47 (ALJ Dec. at 3, 9). Davis’s most recent coalmine employment was between 2005 and 2010 in Sebree, Kentucky with Advent Coal Company.
Id. at 561 (Emp’t Hist. Ex. at 1). The work at Advent was often “dusty at the face and
sometimes at the feeder, where you dumped the coal.” Id. at 41 (ALJ Dec. at 3). Davis
showered at the mine almost every day because the work left him “[d]irty, covered with coal
dust.” Id. Davis’s work at Advent and elsewhere included driving a car, hauling coal, bolting
the roof, and mining. Id. The mine work required Davis to spend almost all of his time
underground, lift heavy objects, and spend entire days on his feet or his knees. Id. He was
diagnosed with diabetes in 2003 or 2004 and takes medication for knee pain, cholesterol,
diabetes, and blood pressure. Id. at 42 (ALJ Dec. at 4). Davis also suffers from breathing
problems that are so severe that he can barely lift twenty pounds, climb ten steps, or walk thirty
yards without losing his breath. Id. at 41–42 (ALJ Dec. at 3–4). Davis was a smoker for
approximately a total of a year and a half in 1969 and between 1974 and 1975. Id. at 42 (ALJ
Dec. at 4).
B. Procedural History
This is Davis’s third claim for benefits. His first claim was denied by the District
Director (“Director”) on May 8, 2000, and his second claim for benefits was denied on April 26,
2007. Pet’r App’x at 43 (ALJ Dec. at 5). This claim for black-lung benefits was filed under the

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Black Lung Benefits Act (the “Act” or “BLBA”), 30 U.S.C. § 901 et seq. in October 2010. Pet’r
App’x at 130 (Benefits App. at 4). The Director issued a proposed decision and order awarding
benefits on September 21, 2011. Id. at 179 (Proposed Dec. at 1). The Director concluded that:
(1) Davis was born in 1948 and was employed as a coal miner for more than 31 years between
1972 and 2009; (2) Davis contracted pneumoconiosis as a result of his coal-mine employment;
(3) the pneumoconiosis has caused Davis a breathing impairment of sufficient degree that
establishes total disability within the meaning of the Act; (4) Advent Mining LLC is the coalmine operator responsible for payments of benefits due to Davis; and (5) Davis is entitled to
receive benefits individually and on behalf of his wife. Id. at 179–80 (Proposed Dec. at 1–2).
Advent objected to the Director’s findings and requested a hearing before an Administrative Law
Judge. Resp’t App’x at 532 (Hr’g Req. at 1). A hearing was held, and the ALJ Decision and
Order awarding benefits was issued on September 25, 2015. Id. at 39 (ALJ Dec. at 1).
Davis testified on his own behalf under oath at the hearing. Pet’r App’x at 107 (Hr’g Tr.
at 15). Davis testified that he worked about half of his nine-hour workdays at Advent near the
dusty face of the mine and spent additional time driving a car hauling coal from the face of the
mine to the belt. Id. at 108–09 (Hr’g Tr. at 16–17). The ALJ also heard testimony about Davis’s
physical health—for example, Davis noted that he has breathing problems that have worsened
over time, has difficulty walking far distances and climbing flights of stairs, has trouble sleeping,
and feels like he no longer can physically do any of the work that he did in the mines. Id. at
111–15 (Hr’g Tr. at 19–23). The hearing record also included as exhibits, inter alia, x-ray

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interpretations by Drs. Crum and DePonte, a report by Dr. Selby, a report by Dr. Renn, a report
by Dr. Myer, a report by Dr. Shipley, a report by Dr. Jarboe, and the deposition of Dr. Chavda.
After the hearing, the ALJ concluded that: (1) Davis had 27.24 years of underground
coal-mine employment; (2) Davis smoked approximately one-quarter of a pack of cigarettes a
day for about a year and a half; (3) Davis “established, by a preponderance of the evidence, that
he is totally disabled due to a respiratory or pulmonary condition”; (4) by establishing at least
fifteen years of qualifying coal mine employment and his total respiratory disability, Davis was
entitled to the rebuttable presumption that he is disabled due to pneumoconiosis; (5) Advent was
unable to rebut the presumption that Davis is disabled due to pneumoconiosis; and (6) Davis was
entitled to benefits under the Act. Pet’r App’x at 47, 43, 57, 68–69 (ALJ Dec. at 9, 5, 19, 30–
31).
Advent appealed to the Benefits Review Board, which affirmed the ALJ’s decision on
August 31, 2016. Pet’r App’x at 18 (Bd. Dec. at 10). The Board “affirmed the administrative
law judge’s findings that claimant established at least fifteen years of qualifying coal mine
employment and the existence of a totally disabling respiratory impairment.” Id. at 14 (Bd. Dec.
at 6). The Board further “affirm[ed] the administrative law judge’s determination that employer
failed to rebut the [presumption of total disability due to pneumoconiosis] by establishing that
claimant does not have pneumoconiosis.” Id. at 16–17 (Bd. Dec. at 8–9). Advent filed a timely
notice of appeal and petition for review.

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II. ANALYSIS
A. Standard of Review
We review decisions of the Board under a mixed standard. We review the Board’s legal
conclusions de novo. Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1068 (6th Cir. 2013).
“While we will not vacate the Board’s decision unless the Board has committed legal error or
exceeded its scope of review, we review the ALJ’s decision to determine whether the ALJ
applied the applicable law correctly to reach a conclusion supported by substantial evidence.”
Id. (citation omitted). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Id. at 1068–69 (quoting Kolesar v.

Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir. 1985)). “We do not reweigh the
evidence or substitute our judgment for that of the ALJ.” Id. at 1069 (quoting Tenn. Consol.
Coal Co. v. Kirk, 264 F.3d 602, 606 (6th Cir. 2001)). Indeed, we need not even conclude that we
would have viewed the evidence as the ALJ viewed it were we the trier of facts. Ramey v.
Kentland Elkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985).

An ALJ satisfies the

substantial evidence standard if she “has adequately explained why [s]he weighed the evidence
as [s]he did.” Ogle, 737 F.3d at 1069 (citing Morrison v. Tenn. Consol. Coal Co. 644 F.3d 473,
478 (6th Cir. 2011)). We have previously held that “[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.” McCain v. Dir., Office of Workers Comp.
Programs, 58 F. App’x 184, 201 (6th Cir. 2003).

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B. The Black Lung Benefits Act
The Black Lung Benefits Act provides benefits to coal miners who have developed
pneumoconiosis due to their prolonged exposure to coal dust. See 30 U.S.C. § 901(a). The
BLBA entitles an individual to benefits if he is (1) a coal miner (2) suffering from
pneumoconiosis (3) that was caused by his coal mine employment and (4) that caused (5) a total
disability. See 20 C.F.R. § 725.202(d); see also Buck Creek Coal Co. v. Sexton, 706 F.3d 756,
758 (6th Cir. 2013). Pneumoconiosis is a “chronic dust disease of the lung and its sequelae,
including respiratory and pulmonary impairments, arising out of coal mine employment.”
30 U.S.C. § 902(b). There are two types of pneumoconiosis: clinical pneumoconiosis and legal
pneumoconiosis. Clinical pneumoconiosis “refers to certain lung diseases that the medical
community recognizes to be caused by exposure to coal dust.” Cent. Ohio Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 762 F.3d 483, 486 (6th Cir. 2014). Legal pneumoconiosis
“is a broader and less definite term that refers to any chronic lung disease that was caused in this
instance by exposure to coal dust.” Id.
When “a miner was employed for fifteen years or more in one or more underground coal
mines” and “demonstrates the existence of a totally disabling respiratory or pulmonary
impairment, then there shall be a rebuttable presumption that such miner is totally disabled due
to pneumoconiosis.” 30 U.S.C. § 921(c)(4). Once the fifteen-year presumption is in effect, the
burden shifts to the employer to rebut the presumption by showing that “(A) such miner does
not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did

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not arise out of, or in connection with, employment in a coal mine.” Morrison v. Tenn. Consol.
Coal Co., 644 F.3d 473, 479 (6th Cir. 2011) (quoting 30 U.S.C. § 921(c)(4)).
Advent argues that the Board erred in affirming the ALJ’s decision for three reasons.
First, Advent disagrees with the ALJ’s and the Board’s conclusions that Davis has a totally
disabling pulmonary or respiratory impairment. Second, Advent argues that the Board erred in
affirming the ALJ’s finding that Davis was entitled to invoke the fifteen-year rebuttable
presumption that he is totally disabled due to pneumoconiosis. Third, Advent argues in the
alternative that, should the fifteen-year presumption apply, the Board erred in affirming the
ALJ’s conclusion that Advent failed to rebut the presumption by showing that Davis did not
suffer from clinical or legal pneumoconiosis.
C. The Board Correctly Affirmed The ALJ’s Finding of Totally Disabling Impairment
Advent first argues that the Benefits Review Board erred in affirming the ALJ’s finding
that Davis suffers from a totally disabling pulmonary or respiratory impairment. Petitioner takes
issue with several of the ALJ’s findings relating to Davis’s pulmonary or respiratory impairment
including that: (1) the ALJ weighed impermissibly the opinion of Dr. Chavda over Drs. Jarboe
and Selby; (2) the ALJ determined incorrectly that the medical opinion evidence establishes a
totally disabling pulmonary or respiratory impairment; (3) in light of the pulmonary-function and
arterial-blood-gas-study evidence, Davis failed to meet his burden by a preponderance of the
evidence that he has a totally disabling pulmonary or respiratory impairment; and (4) the ALJ
erred in finding that Advent was required to disprove a finding of total disability. Pet’r Br. at 1.

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Pursuant to 20 C.F.R. § 718.204, “a miner shall be considered totally disabled if the
miner has a pulmonary or respiratory impairment which, standing alone, prevents or prevented
the miner: (i) From performing his or her usual coal mine work; and (ii) From engaging in
gainful employment in the immediate area of his or her residence requiring the skills or abilities
comparable to those [of his prior mine employment].” 20 C.F.R. § 718.204(b)(1). There are a
number of methods that may be used to demonstrate total disability including arterial-blood-gas
tests, pulmonary-function tests, cardiac examinations, and medical opinions.

Id. at

§ 718.204(b)(2). An expert conclusion regarding total disability may be made by “a physician
exercising reasoned medical judgment, based on medically acceptable clinical and laboratory
diagnostic techniques” provided that the physician “concludes that a miner’s respiratory or
pulmonary condition prevents or prevented the miner from engaging in employment” as
previously described. Id. at § 718.204(b)(2)(iv).
Advent first argues that the ALJ gave too much weight to Dr. Chavda’s opinion that
Davis suffers from pneumoconiosis while impermissibly discrediting the opinions of Drs. Jarboe
and Selby that he does not. We disagree; we conclude that substantial evidence supports a
finding of total disability and that the ALJ weighed the competing medical opinions and
provided sufficient explanation for her conclusion that Dr. Chavda’s opinion was more credible
than the opinions of Drs. Jarboe and Selby. Advent takes issue with a couple of Dr. Chavda’s
statements. First, Advent argues that Dr. Chavda’s statement that “I concluded that [Davis] did
not have total pulmonary disabilities” contradicts his ultimate conclusion and therefore calls the
credibility of that conclusion into doubt. Second, Advent points to Dr. Chavda’s answer of “yes”

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to the question whether it is his “opinion that [Davis] still has enough pulmonary function to do
the job that he told you he had to do” as another example of Dr. Chavda contradicting himself.
But the record indicates that those statements were taken out of context and that the ALJ
considered the statements along with the entirety of the record. As the ALJ noted, both of the
statements were made before Dr. Chavda had reviewed all of the medical test results. Pet’r
App’x at 56 (ALJ Dec. at 18). The ALJ concluded that Dr. Chavda’s statements do “not taint his
opinion as he also stated that Claimant is totally disabled” and that “his opinion is based on
reliable objective testing and is consistent with the evidence available to him. I therefore find his
opinion on disability to be documented and reasoned.” Id.
While Advent urges us to conclude that the opinions of Drs. Selby and Jarboe should be
given greater weight than the opinion of Dr. Chavda, we find no factual or legal justification for
doing so. The ALJ’s discussion of the medical opinions was reasoned and specific, and her
conclusions are supported by the record. She concluded that “the opinions of Drs. Selby and
Jarboe are not supported by the evidence and are poorly reasoned. Unlike Dr. Chavda, neither
Dr. Jarboe nor Dr. Selby demonstrated adequate understanding of Claimant’s last coal mine
employment duties, which required heavy labor.” Id. The record indicates that Dr. Chavda was
far more familiar with Davis’s responsibilities as a coal miner at Advent than Drs. Jarboe and
Selby, and that familiarity properly informed Dr. Chavda’s opinions. It was not error for the
ALJ therefore to credit Dr. Chavda’s opinions over Drs. Selby and Jarboe. A fair reading of the
record suggests that facts exist on both sides of the question whether Davis suffers from a totally
disabling impairment.

For example, the doctors had varying interpretations of Davis’s

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pulmonary-function tests, blood-gas studies, and x-rays. However, as the Board correctly noted,
“[t]he determination of whether a physician’s opinion is reasoned and documented is within the
discretion of the administrative law judge, as trier of fact.” Pet’r App’x at 14 (Bd. Dec. at 6).
The Board therefore “affirm[ed] the administrative law judge’s finding that the opinion of Dr.
Chavda is reasoned and documented and sufficient to satisfy claimant’s burden of proof.” Id.
Although Advent asks us to weigh the evidence and come to a conclusion different from that
reached by the Board and the ALJ, we decline to do so. Because the ALJ’s decision regarding
the credibility of the medical-opinion testimony is supported by the record, and because her
conclusion is thoughtfully and thoroughly explained, we conclude that the Board properly
affirmed that decision.
D. The Board Correctly Affirmed The ALJ’s Application of the Fifteen-Year Presumption
Advent next argues that the Benefits Review Board erred in affirming the ALJ’s
application of the fifteen-year presumption because Davis failed to prove by a preponderance of
the evidence that he suffers from a totally disabling pulmonary or respiratory impairment. Davis
responds that Advent’s arguments are repetitive of their arguments discussed supra and that the
record establishes the evidence necessary to apply the presumption.
A black-lung claimant is entitled to a presumption that he is disabled due to
pneumoconiosis if he establishes that:
(i) The miner engaged in coal-mine employment for fifteen years, either in one or
more underground coal mines, or in coal mines other than underground mines in
conditions substantially similar to those in underground mines, or in any
combination thereof; and

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(ii) The miner or survivor cannot establish entitlement under § 718.304 by means
of chest x-ray evidence; and
(iii) The miner has, or had at the time of his death, a totally disabling respiratory
or pulmonary impairment established pursuant to § 718.204, except that
§ 718.204(d) does not apply.
20 C.F.R. § 718.305(b); 30 U.S.C. § 921(c)(4). The ALJ concluded that Davis “has established
at least fifteen years of qualifying coal mine employment, and also has established that he is
totally disabled from a respiratory perspective,” entitling him to “invoke the rebuttable
presumption that he is disabled due to pneumoconiosis.” Pet’r App’x at 57 (ALJ Dec. at 19).
We agree with the ALJ’s conclusion. Davis has worked in underground mines for approximately
twenty-seven years, the record does not indicate that he can establish entitlement through a chest
x-ray interpretation, and as discussed in the previous section, he suffers from a totally disabling
respiratory or pulmonary impairment. We therefore conclude that the Board properly affirmed
the ALJ’s finding that Davis is entitled to the fifteen-year presumption.
E. The Board Correctly Affirmed The ALJ’s Finding that Advent Failed to Rebut the
Presumption
Advent argues in the alternative that, should the fifteen-year presumption apply, the
Board erred in affirming the ALJ’s finding that Advent failed to rebut the presumption by
establishing that Davis did not have clinical or legal pneumoconiosis. Davis responds that
Advent failed to rebut the presumption of pneumoconiosis because much of the evidence on
which Advent relies suffers from deficiencies and because the medical opinion evidence that the
ALJ relied on is supported by substantial evidence in the record.

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The ALJ correctly concluded that, once Davis proved that he was entitled to the fifteenyear presumption of pneumoconiosis, the burden shifted to Advent “to demonstrate that
Claimant does not have clinical or legal pneumoconiosis.” Pet’r App’x at 64 (ALJ Dec. at 26).
Advent takes issue with the ALJ giving less weight to the testimony of several doctors who
concluded that Davis did not have clinical pneumoconiosis because that testimony conflicted
with some of the more recent medical evidence. Advent points to no case from this or any other
circuit holding that it is impermissible for an ALJ to give greater weight to more recent evidence
of legal and clinical pneumoconiosis.

We have previously held that “[r]ecent evidence is

particularly important in black lung cases, where because of the progressive nature of
pneumoconiosis, more recent evidence is often accorded more weight.” Crace v. KentlandElkhorn Coal Corp., 109 F.3d 1163, 1167 (6th Cir. 1997). It was therefore not reversible error
for the ALJ to discount medical opinions that were based on older medical-test data and to give
greater weight to more recent medical tests and opinions.
Advent also argues that the ALJ gave short shrift to the evidence discussed by Drs. Selby
and Jarboe of Davis suffering from diabetes, obesity, sleep apnea, and bronchial asthma. We
disagree with Advent’s characterization of the ALJ’s decision. After conducting a thorough
review of the record, the ALJ determined that “Dr. Jarboe impermissibly relied on pulmonary
function studies to conclude that Claimant’s hypoxemia, as shown on his blood gas studies, is
not due to pneumoconiosis . . . without sufficiently explaining how he concluded that Claimant’s
asthma was not substantially aggravated by coal dust exposure.” Pet’r App’x at 67 (ALJ Dec. at
29). Regarding Dr. Selby, the ALJ concluded that “Dr. Selby did not adequately explain how he

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concluded that pneumoconiosis played no part in causing Claimant’s hypoxemia, even if obesity,
deconditioning and sleep apnea also played a role. Finally, their opinions, that Claimant’s
impairment is caused by possible sleep apnea rather than pneumoconiosis, is speculative and not
grounded in the record.” Id. at 68 (ALJ Dec. at 30).
We agree with the ALJ that there is insufficient evidence to rebut the fifteen-year
pneumoconiosis presumption. Although some of the evidence is in conflict, we cannot conclude
on the record before us that the ALJ impermissibly erred in finding that Advent failed to rebut
the fifteen-year presumption. The ALJ considered a significant record—that included Davis’s
testimony, medical-opinion testimony, x-rays, and other medical tests. Substantial evidence in
the record supports the ALJ’s finding regarding the fifteen-year presumption.
III. CONCLUSION
Upon review of the record, we conclude that the ALJ has applied the proper legal
standards and that substantial evidence supports the ALJ’s finding. Therefore, for the reasons set
forth above, we DENY the petition for review.

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