Consolidation Coal Co. v. Director

• Decision Date: 08 October 2013
• Docket Number: No. 12–1330.,12–1330.
• Parties: CONSOLIDATION COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS and James Burris, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

732 F.3d 723

CONSOLIDATION COAL COMPANY, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS and James Burris, Respondents.

No. 12–1330.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 1, 2012.

Decided Oct. 8, 2013.

Cheryl L. Intravaia, Attorney, Jennifer M. Wagner, Attorney, Feirich, Mager, Green & Ryan, Carbondale, IL, for Petitioner.

Ann Marie Scarpino, Attorney, Gary Stearman, Attorney, Department of Labor Office of the Solicitor, Washington, DC, Sandra M. Fogel, Attorney, Culley & Wissore, Carbondale, IL, for Respondents.

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge.

James Burris worked in various capacities in coal mines for twenty-three years. He twice sought benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (“the Act”), abandoning his first claim in 2001, and then pursuing a second claim in 2006. Following a hearing for the second claim, an Administrative Law Judge (“ALJ”) determined that Burris was totally disabled by pneumoconiosis arising from his coal mining employment and that he qualifies for benefits under the Act. The Benefits Review Board (“Board”) affirmed that decision. The employer, Consolidation Coal Company (“Consolidation”), seeks review of that decision, contending that (1) the ALJ erred in finding that Burris established a material change in condition following his first, abandoned claim; (2) the ALJ erred in concluding that Burris proved fifteen years of surface mine employment in conditions substantially similar to those that exist in underground mines; and (3) the ALJ's review of the employer's evidence rebutting a presumption of pneumoconiosis was not supported by substantial evidence. We deny the petition for review.

I.

The Act provides federal benefits for coal miners who are totally disabled by pneumoconiosis, “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). See also20 C.F.R. § 718.202 (“Determining the existence of pneumoconiosis”). To establish eligibility for benefits, a coal miner must demonstrate that (1) he or she has pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment; (3) he or she is totally disabled; and (4) the pneumoconiosis contributes to the total disability. 20 C.F.R. § 725.202(d). Together these are called “the conditions of entitlement.” Because a miner's physical condition can change over time, a miner whose initial claim for benefits was denied may bring a subsequent claim if he establishes that his condition has changed. See20 C.F.R. § 718.201(c) (noting that “ ‘pneumoconiosis' is recognized as a latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure”). The regulations provide that a subsequent claim “shall be denied unless the claimant demonstrates that one of the applicable conditions of entitlement ... has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(d). See also Consolidation Coal Co. v. Director, Office of Workers' Compensation Programs, 721 F.3d 789, 793 (7th Cir.2013); Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008 (7th Cir.1997) ( en banc ). For the purposes of determining whether to allow a subsequent claim, “a denial by reason of abandonment shall be deemed a finding that the claimant has not established any applicable condition of entitlement.” 20 C.F.R. § 725.409(c).

A coal miner may have either “clinical” or “legal” pneumoconiosis. Consolidation Coal, 721 F.3d at 791; 20 C.F.R. § 718.201(a). Clinical pneumoconiosis “consists of those diseases recognized by the medical community as pneumoconioses, 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). Legal pneumoconiosis is a broader category that “includes any chronic lung disease or impairment and its sequelae arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2). A chronic lung disease can be said to “arise out of coal mine employment” if it is “any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201(b). An earlier version of the Act contained a provision creating a rebuttable presumption that coal miners (1) with fifteen years' employment in underground mines (or surface mines with similar conditions), and (2) who suffered from a totally disabling respiratory impairment, were totally disabled due to pneumoconiosis. Consolidation Coal, 721 F.3d at 791; Pub.L. No. 92–303, § 4(c) (1972). In 1981, Congress removed this presumption for new claims, but in 2010, Congress revived the presumption for claims filed after January 1, 2005 that were still pending on or after March 23, 2010. Consolidation Coal, 721 F.3d at 791–92;Keene v. Consolidation Coal Co., 645 F.3d 844, 847 (7th Cir.2011); 30 U.S.C. § 921(c)(4). Burris's second claim (the one at issue here) fell within this time period.

II.

In April 2001, ten years after stopping coal mine work, Burris first applied for Social Security retirement benefits. The clerk who assisted him in applying for Social Security benefits also prepared a black lung benefits application for him, telling him that it was customary to file these claims for retired miners. The claim was filed pro se and when the Department of Labor (“Department”) requested additional information from Burris, he felt intimidated by the process and let the claim lapse. He did not respond to any requests by the Department's district director (“Director”) that he submit medical evidence, authorize medical testing and release medical records. The Director considered the claim abandoned after Burris failed to respond to an order to show cause why the claim should not be denied by reason of abandonment, and the claim was dismissed in November 2001.

In February 2006, Burris filed a second claim, the one at issue here. The Director issued a proposed decision awarding benefits in January 2007. Consolidation then requested a hearing before an ALJ, which was held in October 2009. Because this was a “subsequent” claim, before it could be decided on the merits, Burris was required by the regulations we described above to demonstrate that one of the applicable conditions of entitlement had changed since the date upon which the order denying the prior claim became final. Because Burris's first claim resulted in a denial by reason of abandonment, Burris was deemed not to have “established any applicable condition of entitlement.” 20 C.F.R. § 725.409(c). Thus, he could meet this burden by establishing a change in any of the applicable conditions of entitlement after November 2001, when his first claim was denied. In its Employer's Post–Hearing Memorandum to the ALJ, Consolidation conceded that, having abandoned his prior claim, Burris needed only to demonstrate a change in any of the conditions of entitlement, and that Burris had met the burden by demonstrating that he was totally disabled. Employer's Post–Hearing Memorandum, at 27. See also20 C.F.R. § 725.202(d) (noting that one of the conditions of entitlement is that the miner is totally disabled). Unsurprisingly, the ALJ took Consolidation at its word and determined that, in light of the employer's concession, as well as in consideration of the record evidence, Burris “has established a material change in condition from his first claim, denied on November 26, 2001,” and his claim could thus proceed. In re Burris, Decision and Order Awarding Benefits (hereafter “Decision”), January 6, 2011, at 4.

With Burris having met the standard for bringing a subsequent claim, the ALJ proceeded to consider the claim on the merits. At the hearing, Burris established that he worked for Consolidation between 1974 and 1991. His employment with Consolidation was not continuous; he was laid off twice and worked for coal construction companies intermittently. He worked for Bollmeier Construction from 1966 to 1970, and again in 1975 and 1976. H & H Construction employed Burris intermittently between 1972 and 1975. In 1976, he worked for McNally Wellman for four months. Burris performed a variety of duties during his coal mine employment including pan operator, welder, truck driver,machine operator, driller and repairman.¹ The work he performed often did not match his job title, however. At Consolidation, Burris worked at surface rather than underground mines. The parties agreed that he should be credited with twenty-three years of coal mine employment but disagreed regarding the degree to which he was exposed to coal dust at the surface mines. The ALJ credited Burris's testimony regarding the dusty conditions at Consolidation and at Bollmeier. At Consolidation, the ALJ found, Burris was exposed to coal and rock dust during extensive work on the hopper, which was located underground. He was also exposed to a significant amount of coal dust while conducting repairs at the tipple, where he frequently worked. The ALJ also credited Burris's testimony that he was exposed to rock and coal dust more than fifty percent of the time during his five years at Bollmeier. Combined with his nearly seventeen years of significant coal dust exposure at Consolidation, the ALJ concluded that Burris established more than fifteen years of underground coal mine employment or its equivalent. Decision, at 12. Burris was also a regular cigarette smoker. The ALJ resolved the conflicting evidence in the record regarding the number of “pack years” that Burris smoked by crediting Burris's testimony under oath that he smoked a pack a day for forty-five years.²

Eventually, Burris developed a number of health problems...