A & E Coal Co. v. Adams

• Decision Date: 11 September 2012
• Docket Number: No. 11–3926.,11–3926.
• Parties: A & E COAL CO. and Old Republic Insurance Company, Petitioners, v. James ADAMS and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

694 F.3d 798

A & E COAL CO. and Old Republic Insurance Company, Petitioners,

v.James ADAMS and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 11–3926.

United States Court of Appeals, Sixth Circuit.

Sept. 11, 2012.

ON BRIEF:Mark E. Solomons, Laura Metcoff Klaus, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. Stephen A. Sanders, Appalachian Citizens' Law Center, Inc., Whitesburg, Kentucky, Sean G. Bajkowski, Maia S. Fisher, United States Department of Labor, Washington, D.C., for Respondents.

Before: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.^*

OPINION

KETHLEDGE, Circuit Judge.

An Administrative Law Judge awarded disability benefits to James Adams, formerly a coal miner for A & E Coal Company. See generallyBlack Lung Benefits Act, 30 U.S.C. § 901 et seq. The Department of Labor's Benefits Review Board affirmed the ALJ's decision. A & E Coal Company now petitions this court to review the Board's decision, arguing that the ALJ improperly relied on the preamble to certain regulations under the Act. We reject that argument and deny the petition.

I.

James Adams worked in coal mines for seventeen years. He was employed by A & E Coal during his last twelve years as a miner. Adams left A & E Coal in 1988 because he was having difficulty breathing. He has not worked since. Adams also smoked cigarettes for about 25 years, averaging a pack a day before quitting in 1998 or 1999.

Adams filed his first claim for benefits under the Black Lung Benefits Act in 1988. His claim was denied: He did not prove that his pneumoconiosis was caused in part by his coal-mine work, or that his pneumoconiosis totally disabled him. He did not appeal.

In 2007, Adams filed a second claim for benefits under the Act. He was then examined by two pulmonologists: Dr. Donald Rasmussen, a doctor provided by the Department of Labor, and Dr. Thomas Jarboe, a doctor hired by A & E Coal. Both doctors agreed that Adams's chest X-rays showed no measurable coal dust, and that he therefore did not have clinical pneumoconiosis. See20 C.F.R. § 718.201(a)(1) (“Clinical pneumoconiosis ... [is a] condition 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”). The doctors also agreed that Adams's lung diseases left him completely disabled, and that he therefore could not return to work in the mines. They disagreed, however, on what lung diseases Adams had, and on what caused them.

Dr. Rasmussen diagnosed Adams with chronic obstructive pulmonary disease (COPD), which includes bronchitis, small-airways disease, and emphysema. According to Dr. Rasmussen, smoking and coal dust both cause the same types of impairments, making it impossible to tell how much of Adams's COPD was caused by smoking versus coal dust. Based on Adams's history of smoking and coal-mine employment, as well as studies on coal-dust-related diseases, Dr. Rasmussen opined that Adams's COPD was caused by both his smoking and his coal-dust exposure.

Dr. Jarboe diagnosed Adams with emphysema and asthma, but also acknowledged that Adams had COPD. According to Dr. Jarboe, it is possible to distinguish the effects of smoking from those of coal-dust exposure on a coal miner who suffers from COPD. Dr. Jarboe believed, for example, that the results of Adams's residual volume test, which measured the amount of air remaining in Adams's lungs after he exhaled, were too high ( i.e., his condition was too severe) to have been caused by coal-dust exposure. Dr. Jarboe also opined that when emphysema is caused by coal-dust exposure there should be at least some indication of coal-dust deposits on the person's X-ray. Because Adams had emphysema and his X-rays were negative for coal dust, Dr. Jarboe concluded that Adams's lung disease was the result of smoking and not his coal-dust exposure.

An Administrative Law Judge held a hearing and issued a decision awarding benefits to Adams. The ALJ found that Adams had pneumoconiosis, that the disease was caused by Adams's exposure to coal dust during his coal-mine employment, and that he was totally disabled because of the disease. In support, the ALJ found that Dr. Rasmussen's testimony was “well-reasoned, because he accounts for all of the medical evidence, his opinions are consistent with the regulations, and he does not irrationally rule out factors in his causation analysis.” In contrast, the ALJ found that Dr. Jarboe's opinion was not well-reasoned “because he irrationally rules out Claimant's 17–year mine employment history as a factor contributing to Claimant's respiratory impairment, citing the absence of radiographic evidence as the basis for this opinion.” The ALJ further explained that Dr. Jarboe's opinion was “contrary to the regulations and border[ed] on hostility to the Act” because, though “Dr. Jarboe concede[d] that it is possible for someone suffering from pneumoconiosis to fail to exhibit symptoms on an x-ray, ... [he] does not cite to any factors that would exclude Claimant from this category of miners suffering from the disease.”

A & E Coal Company and its insurer, Old Republic Insurance Company (collectively “A & E Coal”), appealed the ALJ's decision to the Benefits Review Board. The Board affirmed.

This appeal followed.

II.

A & E Coal argues that the ALJ violated the Administrative Procedures Act, 5 U.S.C. § 701 et seq., by relying on the preamble to the Black Lung Benefits Act regulations to evaluate the credibility of Dr. Rasmussen and Dr. Jarboe. A & E Coal also contends that the ALJ failed to articulate properly his findings and conclusions, as required by the APA. The Board concluded that the ALJ did not violate the APA. We review the Board's conclusion de novo. See Peabody Coal Co. v. Greer, 62 F.3d 801, 804 (6th Cir.1995). Since A & E Coal disavows any challenge to the sufficiency of the evidence, we will vacate the Board's decision only if its conclusion—that the ALJ permissibly consulted the regulations' preamble—was erroneous.

In 2000, the Department of Labor amended the regulations implementing the Black Lung Benefits Act. The amended regulations clarify that a miner can have pneumoconiosis for purposes of the Act even in the absence of a positive X-ray. See20 C.F.R. § 718.202(a)(4) (“A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative X-ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201”); 20 C.F.R. § 718.201 (“ ‘Legal pneumoconiosis’ includes any chronic lung disease or impairment and its sequelae ... significantly related to, or substantially aggravated by, dust exposure in coal mine employment”). The amended regulations also provide that “[n]o claim for benefits shall be denied solely on the basis of a negative chest X-ray.” Id.§ 718.202(b). In the preamble to the revised regulations, the Department explained the medical and scientific premises for the changes. For example, during the new regulations' notice-and-comment period, some doctors commented that coal-dust exposure cannot cause COPD. The Department rejected this contention, explaining in the preamble its reasons for doing so. See, e.g.,65 Fed.Reg. 79,939 (“The considerable body of literature documenting coal dust exposure's causal effect on [COPD] ... constitutes a clear and substantial basis for this aspect of the revised definition of pneumoconiosis”).

Here, in evaluating Dr. Jarboe's and Dr. Rasmussen's credibility, the ALJ cited the regulations' preamble twice, and explicitly mentioned it once. The ALJ found Dr. Rasmussen's opinion “to be very well-documented because it [wa]s consistent with medical opinions acknowledged to be well documented in the December 2000 preamble to the applicable regulations.” ALJ Opinion at 18 (citing 65 Fed.Reg. 79,940 (Dec. 20, 2000); 65 Fed.Reg. 79,943 (Dec. 20, 2000)). The ALJ gave less weight to Dr. Jarboe's opinion in part because Dr. Jarboe relied on studies that had “specifically been discredited in the regulations.” Id. at 22 (citing 65 Fed.Reg. [7]9,938–39 (Dec. 20, 2000)). The Board concluded that the ALJ “permissibly consulted the preamble as an authoritative statement of medical principles accepted by the Department of Labor when it revised the...