Arch On the Green, Inc. v. Groves

• Decision Date: 31 July 2014
• Docket Number: No. 13–3959.,13–3959.
• Citation: 761 F.3d 594
• Parties: ARCH ON THE GREEN, INC.; Old Republic Insurance Company, Petitioners, v. Lawrence L. GROVES; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

761 F.3d 594

ARCH ON THE GREEN, INC.; Old Republic Insurance Company, Petitioners,

v.Lawrence L. GROVES; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 13–3959.

United States Court of Appeals, Sixth Circuit.

July 31, 2014.

ON BRIEF:Mark E. Solomons, Laura Metcoff Klaus, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. Brent Yonts, Brent Yonts, PSC., Greenville, Kentucky, for Respondent Groves.

Before: ROGERS and COOK, Circuit Judges; MURPHY, District Judge. ^*

OPINION

ROGERS, Circuit Judge.

A totally disabled coal miner with Chronic Obstructive Pulmonary Disease (COPD) (and certain other lung diseases not relevant here) must meet two independent causation requirements in order to receive federally-mandated black lung benefits. One relates to causation of the disease by coal mining; the other relates to causation of the total disability by the disease. Under the applicable regulation, the COPD must first “aris[e] out of coal mine employment” in order to meet the definition of “pneumoconiosis.” Second, the pneumoconiosis must be a “substantial” cause of the total disability. In view of our limited scope of review, substantial evidence supports the agency's determination in this case that the claimant's COPD arose at least in part out of coal mining employment. A remand is required, however, with respect to the second determination because the agency does not appear to have applied the correct standard in determining that the claimant's total disability was due to pneumoconiosis.

Groves worked as a strip miner for more than twenty years. He was also a prodigious smoker who accumulated more than fifty pack-years.¹ Groves initially filed a claim for benefits in 1998. An ALJ denied that claim. Groves filed his current application in 2006. The ALJ awarded benefits in 2009. On appeal to the Benefits Review Board, the Board vacated the decision and remanded the case so that the ALJ could provide more detailed explanations.

On remand, the ALJ again granted benefits after a careful review of the medical opinions of several different doctors who evaluated Groves' lung disease. The ALJ considered Dr. Rasmussen's opinion to be the most reasoned and persuasive. The most relevant part of Dr. Rasmussen's report reads as follows:

In Mr. Groves' case, I clearly believe his chronic obstructive lung disease was the consequence of both smoking and mine dust exposure. His cancer of the lung is clearly more likely related to his smoking than to his coal mine dust exposure since statistically there is no increase in lung cancer among coal miners compared to the general population....

It is quite difficult in cases with both dust and smoke exposure to apprise the relative importance of each toxin. It is clearly possible that all of Mr. Groves COPD is the result of coal mine dust exposure. It is also entirely possible that all of his impairment is due to cigarette smoking. However, neither scenario is likely to be the case. It seems quite intuitive that most of Mr. Groves impairment is secondary to cigarette smoking and that coal mine dust contributes to a minor degree.

I believe to a reasonable degree of medical certainty that Mr. Groves has at least legal if not clinical pneumoconiosis and that his coal mine dust contributes minimally to his disabling chronic lung disease.

The ALJ also held that Dr. Simpao's opinion supported Dr. Rasmussen's findings. Dr. Simpao acknowledged Groves' long history of smoking and the difficulty of determining the cause of the coal miner's lung disease given that the miner was also a smoker, but ultimately concluded that Groves has pneumoconiosis. Other doctors disagreed, but the ALJ discounted those views. The weight given to the different doctors' opinions is not at issue in this case.

In his written opinion, the ALJ divided his analysis into two parts. The first part discussed whether Groves has legal pneumoconiosis. (The distinction between “clinical pneumoconiosis” and “legal pneumoconiosis” has no effect on this appeal. They each must arise “out of coal mine employment,” 20 C.F.R. § 718.201(a)). Summarizing twelve single-spaced pages of analysis, the ALJ wrote:

I credit Drs. Rasmussen's opinion and Dr. Simpao's supporting report in finding that Claimant suffers from COPD, I find that it is caused in part by his exposure to mining. Accordingly, I find that claimant has satisfied his burden of proving legal pneumoconiosis. Legal pneumoconiosis is established partly by the qualifying pulmonary lung function tests that Drs. Rasmussen, Simpao, Schell, and Broudy all agree indicate an obstructive lung disease, and partly by Dr. Rasmussen's and Simpao's well reasoned opinion that coal dust inhalation is more than a de minim[i]s factor in Claimant's condition.

The ALJ also explicitly considered “disability causation,” i.e., whether Groves' pneumoconiosis contributed to his total disability, in a separate section of his opinion. The ALJ began his analysis by observing that he must “address whether Dr. Rasmussen's opinion, viewed in its entirety, established that pneumoconiosis is a substantially contributing cause of claimant's total disability.” The ALJ went on to explain that this court has held that this standard is satisfied when the total disability is “ ‘due at least in part’ to pneumoconiosis.” Again, the ALJ concluded that Dr. Rasmussen's opinion was better reasoned and was sufficient “to satisfy the de minim[i]s standard.”

Arch on the Green, the coal company responsible for paying Groves' benefits, appealed to the Board, which affirmed the ALJ's decision. Like the ALJ, the Board considered both whether Groves has legal pneumoconiosis and whether pneumoconiosis caused his disability. In analyzing whether Groves carried his burden of establishing legal pneumoconiosis, the Board concluded that “the administrative law judge's finding that Dr. Rasmussen's opinion, supported by Dr. Simpao's report, established legal pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(4).” The Board explained that the applicable standard is satisfied if claimant's “coal mine employment contributed ‘at least in part’ to his pneumoconiosis,” citing Cornett v. Benham Coal, Inc., 227 F.3d 569, 576, 22 BLR 2–107, 2–121 (6th Cir.2000).

Like the ALJ, the Board separately analyzed whether Groves proved disability causation. The Board held that the ALJ “acted within his discretion in relying on Dr. Rasmussen's opinion, as supported by Dr. Simpao's opinion, to find that claimant established the existence of legal pneumoconiosis at 20 C.F.R. § 718.204(c).” The Board cited Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir.2001), for the proposition that disability causation is established when “pneumoconiosis [is] a contributing cause of some discernible consequence to claimant's totally disabling respiratory impairment.”

Arch appeals these decisions. Its primary argument is that both the Board and the ALJ applied the wrong standards for causation, both in determining the extent to which Groves' disease arose out of his coal mine employment and the extent to which Groves' total disability is due to pneumoconiosis. While agreeing that Groves has COPD and that Groves is totally disabled, Arch argues that the proper standards for establishing the causal steps were not applied. In particular, according to Arch, the Board improperly held that Groves had to prove his lung disease was caused only “in part” by his coal mine employment. Arch also contends that Groves had to show that Groves' pneumoconiosis was a substantially contributing cause of his disability, but the ALJ and Board said that it was sufficient for Groves to show that his disability was caused “in part” by his pneumoconiosis. Arch argues that Dr. Rasmussen's opinion would not be sufficient under either of the proper standards. Arch also argues that the ALJ erred by referring to the preamble of the black-lung regulations.

The Board and the ALJ applied the correct standard for concluding that Groves' COPD arose out of coal mine employment. While the regulations distinguish between clinical pneumoconiosis (a specified lung disease typically demonstrated by x-ray evidence) and legal pneumoconiosis (a remainder category including COPD), both conditions must “aris[e] out of coal mine employment.” 20 C.F.R. § 718.201(a). It is true that “[a] disease ‘arising out of coal mine employment’ ” is in turn defined as “any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” Id. § 718.201(b) (emphasis added). But § 718.203(a) states, “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.” 20 C.F.R. § 718.203(a). While it might be argued that the “significantly related to, or substantially aggravated by,” standard is both stricter and more clearly applicable in determining the meaning of “arising out of coal mine employment,” binding precedent of this court precludes the argument. In Southard v. Director, Office of Workers' Compensation Programs [OWCP], 732 F.2d 66, 72 (6th Cir.1984), we held that “neither the Act nor § 718.201 requires a claimant to establish what portion of his disease is due to non-mine exposure, and what portion is due to mine exposure. It is enough that the mine exposure is an exposure that contributed to the disease at least in part. See20 C.F.R. § 718.203(a).” In Southard we explained that reading § 718.201 as imposing the only causal standard “effectively negates the § 718.203 causation inquiry; a disease would always arise ‘at least in part’ out of coal mine employment, if it is ‘significantly related to or substantially aggravated by,’ § 718.201, exposures in coal mine employment.” ²

Since Southard, this court and our sister circuits...