Harman Mining Co. v. Dir., Office of Workers' Comp. Programs

• Citation: 678 F.3d 305
• Decision Date: 15 May 2012
• Docket Number: 11–1450.,Nos. 05–1620,s. 05–1620
• Parties: HARMAN MINING COMPANY; Old Republic Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Gary Looney, Respondents. Harman Mining Corporation; Old Republic Insurance Company, Petitioners, v. Director, Office of Workers' Compensation Programs, United States Department of Labor; Gary Looney, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

678 F.3d 305

HARMAN MINING COMPANY; Old Republic Insurance Company, Petitioners,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Gary Looney, Respondents.

Harman Mining Corporation; Old Republic Insurance Company, Petitioners,

v.Director, Office of Workers' Compensation Programs, United States Department of Labor; Gary Looney, Respondents.

Nos. 05–1620, 11–1450.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 24, 2012.

Decided: May 15, 2012.

ARGUED:Mark Elliott Solomons, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. Ryan Christopher Gilligan, Wolfe, Williams, Rutherford & Reynolds, Norton, Virginia; Helen Hart Cox, United States Department of Labor, Office of Workers' Compensation Programs, Washington, D.C., for Respondents. ON BRIEF:Laura Metcoff Klaus, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Sean G. Bajkowski, Counsel for Appellate Litigation, United States Departmentof Labor, Office of Workers' Compensation Programs, Washington, D.C., for Federal Respondent. Joseph E. Wolfe, Wolfe, Williams, Rutherford & Reynolds, Norton, Virginia, for Respondent Gary Looney.

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Petition for review denied by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

These appeals arise from an administrative law judge's order, affirmed by the Benefits Review Board, finding that Gary Looney suffered disabling obstructive lung disease arising out of his work as a coal miner and awarding his widow black lung benefits payable by Looney's former employer. Although Looney's case has followed a tortured procedural path, the proper resolution of these appeals is straightforward. We need only determine if the award of benefits finds support in the record and accords with the Administrative Procedure Act. We hold that it does and so affirm the award of benefits to Looney and deny his former employer's petition for review.

I.

A.

The Black Lung Benefits Act (“the Act”), 30 U.S.C. § 901 et seq., grants benefits to persons (or their surviving dependents) afflicted with pneumoconiosis, which is popularly known as black lung disease. 30 U.S.C. § 901(a). To be eligible for these benefits, a person must prove that he has a total disability due to pneumoconiosis arising out of his employment as a coal miner. See id. §§ 901(a), 921; 20 C.F.R. §§ 718.201–204, 725.202. The regulations define “pneumoconiosis” as a “chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a).

The courts have long recognized that pneumoconiosis can take two forms: “clinical” pneumoconiosis and “legal” pneumoconiosis. See, e.g., Clinchfield Coal Co. v. Fuller, 180 F.3d 622, 625 (4th Cir.1999); Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 821 (4th Cir.1995). In 2000, the United States Department of Labor (“the Department”) revised its regulations to mirror this recognition of “legal” pneumoconiosis and to clarify the difference between it and “clinical” pneumoconiosis. The amended regulations provide that clinical pneumoconiosis “consists of those diseases recognized by the medical community as pneumoconiosis, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1). The amended regulations define legal pneumoconiosis as referring to “any chronic lung disease or impairment and its sequelae arising out of coal mine employment.” Id. § 718.201(a)(2).

As a part of its 2000 revision of its regulations, the Department also expressly agreed with the courts that legal pneumoconiosis includes “any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment.” Id.; see also Warth v. S. Ohio Coal Co., 60 F.3d 173, 175 (4th Cir.1995) (holding that chronic obstructive lung disease “is encompassed within the definition of pneumoconiosisfor purposes of entitlement to Black Lung benefits”). Thus, the law is clear that legal pneumoconiosis, compensable by black lung benefits, encompasses “any chronic ... obstructive pulmonary disease” if the disease “aris[es] out of coal mine employment.” 20 C.F.R. § 718.201(a)(2) (emphasis added). A disease arises out of coal mine employment if it is “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” Id. § 718.201(b); see also id. § 718.203(a) (“In order for a claimant to be found eligible for benefits under the Act, it must be determined that the miner's pneumoconiosis arose at least in part out of coal mine employment.”).

B.

For nearly seventeen years, from 1969 to 1991, Gary Looney worked in coal mines in Virginia. He spent the last ten years of his coal mine employment working as a roof bolter for Harman Mining Company (“Harman”), a job that involved “moderate to heavy manual labor.” Looney was also a smoker, regularly smoking cigarettes for several decades. He retired from coal mining in February 1991 and, two years later, filed a claim for black lung benefits.¹

Over the course of the next decade, Looney's case came before an administrative law judge (“ALJ”) seven times. Each time, an ALJ found that Looney was totally disabled due to legal pneumoconiosis and awarded him black lung benefits, payable by Harman. Each time, Harman appealed the award to the Benefits Review Board (“Board”). In the first six appeals, the Board found some aspect of the ALJ's decision to be deficient and remanded for further consideration. On the seventh appeal, however, the Board affirmed the ALJ's award of benefits. Harman then moved the Board for reconsideration en banc, which the Board denied on March 30, 2005.

Two months later, Harman filed a petition for modification with the Department, asserting that the ALJ had made a mistake of fact in determining that Looney's disability arose from his employment as a coal miner. A week later, on May 27, 2005, Harman appealed the original order awarding Looney black lung benefits to this court, and, on the same day, asked us to stay its appeal of the benefits award pending resolution of its petition for modification; we agreed to do so. On June 30, 2009, the ALJ denied the petition for modification; Harman appealed and, a few weeks later, the Board upheld that denial. Harman then appealed the denial of his petition for modification to this court. We removed Harman's first appeal from abeyance and consolidated it with this second appeal.

Thus, in these consolidated appeals, Harman challenges two orders: the order awarding Looney black lung benefits and the order denying Harman's petition for modification. The two orders involve the identical issue of whether Looney's chronic obstructive pulmonary disease (“COPD”) arose at least in part out of his employment as a coal miner, as the ALJ found, or solely out of his cigarette smoking, as Harman contends. The parties agree that Looney was totally disabled by COPD and, in these appeals, Harman does not challenge its responsibility for the payment of any black lung benefits due to Looney. Thus, the only issue before us is the cause of Looney's COPD.

II.

In black lung cases, our review of the Board's order is “limited.” Lewis Coal Co. v. Dir., O.W.C.P., 373 F.3d 570, 575 (4th Cir.2004). We review the decision “to assess whether substantial evidence supports the factual findings of the ALJ and whether the legal conclusions of the [Board] and ALJ are rational and consistent with applicable law.” Id.

As in all agency cases, we must be careful not to substitute our judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990) (“Ultimately, it is the duty of the administrative law judge reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.”). Because the ALJ is the trier of fact, we “defer to the ALJ's evaluation of the proper weight to accord conflicting medical opinions.” Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342 (4th Cir.1996). As long as substantial evidence supports an ALJ's findings, “[w]e must sustain the ALJ's decision, even if we disagree with it.” Smith v. Chater, 99 F.3d 635, 637–38 (4th Cir.1996). We review the legal conclusions of the Board and the ALJ de novo. Island Creek Coal Co. v. Compton, 211 F.3d 203, 208 (4th Cir.2000).

Given this deferential standard of review, it is not surprising that Harman disavows any argument that the record fails to offer substantial evidence supporting the ALJ's findings of fact. See, e.g., Appellant's Reply Br. at 3 (“[T]his is not a substantial evidence appeal....”); id. at 4 (arguing the appeal raises only “questions of law”). Despite this express disavowal, however, Harman intermittently does challenge the ALJ's factual findings. Accordingly, we first explain why our review of the record confirms the wisdom of Harman's stated decision not to challenge the sufficiency of the evidence supporting the ALJ's findings supporting the award of benefits. We then turn to the arguments on which Harman asserts it rests its appeal.

III.

A.

In her exhaustive final opinion awarding benefits (ten single-spaced pages), the ALJ “considered all of the medical evidence” and concluded that Looney had “established by a preponderance of the evidence” that he suffered from “legal pneumoconiosis.”

A number of doctors had offered opinions over the years as to the extent and cause of Looney's COPD. But in her final opinion awarding benefits, the ALJ primarily considered the opinions of Drs. J. Randolph Forehand, Emory Robinette, Gregory Fino, and Richard Sargent. The ALJ weighed the opinion of Dr....