Big Branch Res., Inc. v. Ogle

• Decision Date: 11 March 2014
• Docket Number: No. 13–3251.,13–3251.
• Citation: 737 F.3d 1063
• Parties: BIG BRANCH RESOURCES, INCORPORATED, as insured by The West Virginia CWP Fund, Petitioner, v. John A. OGLE; Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

737 F.3d 1063

BIG BRANCH RESOURCES, INCORPORATED, as insured by The West Virginia CWP Fund, Petitioner,

v.John A. OGLE; Director, Office of Workers' Compensation Programs, Respondents.

No. 13–3251.

United States Court of Appeals, Sixth Circuit.

Dec. 17, 2013.

Rehearing and Rehearing En Banc Denied March 11, 2014.^*

ON BRIEF:William S. Mattingly, Jeffrey R. Soukup, Jackson & Kelly PLLC, Morgantown, West Virginia, for Petitioner. Joseph E. Wolfe, Ryan C. Gilligan, Wolfe, Williams, Rutherford & Reynolds, Norton, Virginia for Respondent Ogle. Sean G. Bajkowski, Maia S. Fisher, United States Department of Labor, Washington, D.C., for Federal Respondent.

Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this case, the Benefits Review Board (“the Board”) affirmed the decision of the administrative law judge (“ALJ”) granting John A. Ogle's claim for federal black lung benefits. The West Virginia Coal Workers' Pneumoconiosis Fund (“the Fund”) as insurer of the defunct Big Branch Resources, Inc. petitions for review of that decision, claiming that the ALJ erred on several grounds. In particular, the Fund argues that the ALJ improperly restricted the Fund's ability to rebut the fifteen-year presumption and that the ALJ applied the wrong standard for rebutting the causation presumption. The Fund further alleges that the ALJ's conclusion that the Fund did not rebut the fifteen-year presumption was erroneous. Finally, the Fund posits that the ALJ wrongly discredited the medical opinions of two experts. Because there is no evidence that the ALJ improperly restricted the Fund's ability to rebut the fifteen-year presumption or that the ALJ applied the wrong standard, and because the ALJ's other decisions are supported by substantial evidence, we DENY the petition for review.

I. BACKGROUND

Ogle, born in 1954, worked in various jobs in underground coal mines for twenty-one years. Jt. App'x at 269–70 (ALJ Dec. at 5–6). His last coal mine employment was in 1996 in Kentucky. Jt. App'x at 269 (ALJ Dec. at 5). Ogle has been a long-term smoker, beginning at the age of twelve. Jt. App'x at 270 (ALJ Dec. at 6). He submitted this claim for benefits on November 5, 2007. Jt. App'x at 266 (ALJ Dec. at 2). On May 5, 2009, an ALJ ¹ conducted a formal hearing at which the parties also submitted exhibits. Jt. App'x at 266, 267–68 (ALJ Dec. at 2, 3–4).

After the record closed but before the ALJ issued a decision, Congress enacted legislation reviving a rebuttable statutory presumption that a coal miner who worked in an underground coal mine for at least fifteen years and suffers from a total respiratory or pulmonary disability is presumed to be totally disabled due to pneumoconiosis. See Patient Protection and Affordable Care Act (“PPACA”), Pub.L. No. 111–148, § 1556, 124 Stat. 119 (2010); see also30 U.S.C. § 921(c)(4). The presumption applied retroactively to claims filed after January 1, 2005, and pending at the time the PPACA was enacted. PPACA, Pub.L. No. 111–148, § 1556(c).

Because Ogle's claim fit the timing criteria for the statutory presumption, the ALJ solicited additional evidence related to the new law and position statements regarding the applicability of the rebuttable presumption to this claim. Jt. App'x at 267 (ALJ Dec. at 3). The Fund submitted supplemental medical reports and a position statement. Id.

On December 8, 2011, the ALJ issued his Decision and Order Awarding Benefits (“ALJ Dec.”). Jt. App'x at 265–99. In the decision, the ALJ first determined that Ogle filed the claim after January 1, 2005, and the claim was pending at the time the rebuttable presumption provision was enacted. Jt. App'x at 267 (ALJ Dec. at 3). The ALJ then found that Ogle suffered from a totally disabling respiratory impairment, a finding with which all medical opinions submitted agreed. Jt. App'x at 289 (ALJ Dec. at 25). Based on this finding of total disability, the filing of the claim after January 1, 2005, and the agreement that the miner had over fifteen years of underground coal mine employment, the ALJ found that the fifteen-year, rebuttable presumption under 30 U.S.C. § 921(c)(4) and 20 C.F.R. § 718.305 applied. Jt. App'x at 289 (ALJ Dec. at 25).

Next, the ALJ noted that the rebuttable presumption shifts the burden to the Fund “to demonstrate by a preponderance of the evidence either: (1) the miner's disability does not, or did not, arise out of coal mine employment; or (2) the miner does not, or did not, suffer from pneumoconiosis.” Jt. App'x at 290 (ALJ Dec. at 26). After reviewing medical opinions regarding x-ray evidence, the ALJ concluded that the Fund did demonstrate by a preponderance of the evidence that Ogle did not suffer from clinical pneumoconiosis. Jt. App'x at 291–93 (ALJ Dec. at 27–29). However, the Fund failed to rebut the presumption that Ogle suffers from legal pneumoconiosis. Jt. App'x at 296 (ALJ Dec. at 32).

The ALJ noted that the medical opinions of Dr. Forehand, Dr. Baker, and Dr. Agarwal all concluded that Ogle's impairment is due to heavy smoking as well as exposure to coal dust, while the opinions of Dr. Jarboe and Dr. Castle attribute the impairment to smoking alone. Jt. App'x at 293 (ALJ Dec. at 29). The ALJ discredited the opinions of Dr. Jarboe and Dr. Castle because they failed to “adequately address the qualifying FEV1 values on the miner's pre-and post-bronchodilator testing documenting the presence of obstructive lung disease.” ² Jt. App'x at 295 (ALJ Dec. at 31). Apart from their failure to “adequately explain the cause of the irreversible and totally disabling component of the miner's lung disease,” id., these two physicians' opinions “lose probative value” because they “rely on negative chest x-ray findings to preclude a finding of legal pneumoconiosis,” id., which contradicts Department of Labor determinations. The other three doctors diagnosed legal pneumoconiosis. Jt. App'x at 296 (ALJ Dec. at 32). Their opinions were not based on views “inconsistent” with the Department of Labor's position. Id. Therefore, the ALJ found that the Fund had not rebutted the presumption of legal pneumoconiosis. Id.

In determining whether the Fund had rebutted the causation presumption, the ALJ, after stating the rule-out standard,³ discussed why he credited some medical opinions and discredited others. Jt. App'x at 296–97 (ALJ Dec. at 32–33). He gave less weight to the disability causation opinions of Dr. Jarboe and Dr. Castle because they had not diagnosed legal pneumoconiosis. Jt. App'x at 297 (ALJ Dec. at 33). Based on the opinions of Dr. Baker, Dr. Forehand, and Dr. Agarwal, whose opinions the ALJ found to be “sufficiently reasoned and documented,” Jt. App'x at 297 (ALJ Dec. at 33), the ALJ concluded that Ogle's total disability stems from both smoking and coal dust exposure. Id. Having determined that the Fund failed to rebut the causation presumption as well, the ALJ awarded benefits. Id.

The Fund appealed the award of benefits to the Board which affirmed the ALJ's decision as legally sound and based on substantial evidence. Jt. App'x at 307 (Benefits Review Board Decision and Order (“Bd. Dec.”) at 8). In its opinion, the Board first reviewed the ALJ's findings and the assertions of error made by the Fund. See Jt. App'x at 301–05 (Bd. Dec. at 2–6). The Board analyzed the ALJ's findings under the same substantial evidence standard that we use. Jt. App'x at 302 (Bd. Dec. at 3) (noting that the Board must affirm the ALJ's opinion “if it is rational, supported by substantial evidence, and in accordance with applicable law”). The Board rejected the Fund's arguments that the ALJ “failed to provide valid reasons for discounting the opinions of Drs. Jarboe and Castle.” Jt. App'x at 305 (Bd. Dec. at 6). The Board affirmed the ALJ's weighing of the evidence and noted that “whether a medical opinion is sufficiently documented and reasoned is a credibility matter within the purview of the [ALJ].” Jt. App'x at 306 (Bd. Dec. at 7). As a result, the Board affirmed the ALJ's finding that the Fund failed to prove that Ogle did not suffer from legal pneumoconiosis. Id. Turning to disability causation, the Board found that the ALJ “accurately noted that all of the physicians agree that [Ogle]'s disability is due to his pulmonary impairment,” Jt. App'x at 307 (Bd. Dec. at 7), thus leaving only the question whether Ogle's impairment is due to his coal mine employment. The Board agreed with the ALJ that the physicians' opinions on this question were closely related to their opinions on the existence of legal pneumoconiosis, and the Board approved of the ALJ discounting the opinions of Dr. Jarboe and Dr. Castle for the same reasons. Id. Consequently, the Board affirmed the ALJ's conclusion that the Fund had failed to disprove disability causation, that the Fund had not rebutted the presumption, and that benefits ought be awarded. Id.

This petition for review followed.

II. ANALYSIS

A. Standard of Review

In reviewing an appeal from the Board, we review the Board's legal conclusions de novo. Paducah Marine Ways v. Thompson, 82 F.3d 130, 133 (6th Cir.1996). While we will not vacate the Board's decision unless the Board has committed legal error or exceeded its scope of review, Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742 (6th Cir.1997), we review the ALJ's decision to determine whether the ALJ applied the applicable law correctly to reach a conclusion supported by substantial evidence. Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602, 606 (6th Cir.2001). “ ‘Substantial evidence’ means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.1985) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “We do not reweigh the evidence or substitute our judgment for that of the ALJ.” Kirk, 264 F.3d at 606. Therefore, we may affirm...