Energy W. Mining Co. v. Lyle ex rel. Lyle

• Decision Date: 09 July 2019
• Docket Number: No. 18-9537,18-9537
• Citation: 929 F.3d 1202
• Parties: ENERGY WEST MINING COMPANY, Petitioner, v. Joann H. LYLE, ON BEHALF OF James E. LYLE; Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

929 F.3d 1202

ENERGY WEST MINING COMPANY, Petitioner,

v.Joann H. LYLE, ON BEHALF OF James E. LYLE; Department of Labor, Respondents.

No. 18-9537

United States Court of Appeals, Tenth Circuit.

FILED July 9, 2019

William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for Petitioner.

Victoria S. Herman (Joseph E. Wolfe, with her on the brief), Norton, Virginia, for Joann H. Lyle, Respondent.

Edward Waldman, Attorney, Department of Labor (Kate S. O’Scannlain, Solicitor of Labor; Kevin Lyskwoski, Acting Associate Solicitor; Gary K. Stearman, Counsel for Appellate Litigation; and Ann Marie Scarpino, Attorney, Department of Labor, on the brief), Washington, D.C., for Department of Labor, Respondent.

Before TYMKOVICH, Chief Judge, and BACHARACH and MORITZ, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. James Lyle worked as a coal miner for roughly 28 years. After retiring, he sought benefits under the Black Lung Benefits Act. See 30 U.S.C. § 901 et seq . An administrative law judge concluded that Mr. Lyle was entitled to benefits, and the U.S. Department of Labor’s Benefits Review Board affirmed. Energy West has filed a petition for review of the Board’s decision.

We reject most of Energy West’s arguments but agree with its challenge to the administrative law judge’s analysis of an opinion by Dr. Joseph Tomashefski, Jr. In this analysis, the judge discounted Dr. Tomashefski’s medical opinion for a reason unsupported by the record. We thus vacate the award of benefits¹ and remand to the Board for reconsideration of Dr. Tomashefski’s opinion.

I. Because Energy West did not invoke the Appointments Clause in proceedings before the Benefits Review Board, we lack jurisdiction to consider the validity of the administrative law judge’s appointment.

Energy West argues that the administrative law judge lacked authority to award benefits because he

• was subject to the Constitution’s Appointments Clause and

• was not properly appointed under this clause.²

But Energy West admittedly did not present this challenge to the Benefits Review Board.

Energy West contends that the Benefits Review Board couldn’t have remedied the problem by appointing an administrative law judge.³ But the Board could have remedied a violation of the Appointments Clause by vacating the administrative law judge’s decision and remanding for reconsideration by a constitutionally appointed officer. See, e.g. , Miller v. Pine Branch Coal Sales, Inc. , BRB No. 18-0323 BLA, 2018 WL 8269864 (Oct. 22, 2018) (per curiam) (en banc) (granting this relief). Given the availability of a remedy, Energy West needed to present this challenge to the Benefits Review Board. Energy West didn’t, precluding our exercise of jurisdiction over the issue. See Big Horn Coal Co. v. Sadler , 924 F.3d 1317, 1325–26 (10th Cir. 2019) (holding that we lacked jurisdiction to consider an argument that the petitioner had not presented to the Benefits Review Board); McConnell v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor , 993 F.2d 1454, 1460 n.8 (10th Cir. 1993) (concluding that the petitioner’s "failure to raise [an] argument with the [Benefits Review] Board ‘constitutes failure to exhaust administrative remedies and deprives the Court of Appeals of jurisdiction to hear the matter’ " (quoting Rivera-Zurita v. I.N.S. , 946 F.2d 118, 120 n.2 (10th Cir. 1991) )).⁴

II. We reverse the administrative law judge’s award of benefits based on an error in discounting Dr. Tomashefski’s opinion.

The administrative law judge concluded that Mr. Lyle was entitled to benefits under the Black Lung Benefits Act. Energy West challenges this conclusion, arguing in part that the judge erroneously discounted Dr. Tomashefski’s opinion on legal pneumoconiosis. We agree with this part of Energy West’s argument but reject its other arguments.

A. We engage in limited review of the agency’s determination.

The Black Lung Benefits Act permits judicial review to determine whether

• the legal conclusions of the agency are rational and consistent with the law and • substantial evidence supports the agency’s factual findings.

Spring Creek Coal Co. v. McLean , 881 F.3d 1211, 1217 (10th Cir. 2018). We engage in de novo review of the administrative law judge’s legal conclusions and consider whether substantial evidentiary support exists for his factual findings. Id.

Evidence is substantial if a reasonable person might view it "as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. N.L.R.B. , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). We do not reweigh the evidence; we instead ask whether the administrative law judge’s determination is supported by substantial evidence. Antelope Coal Co./Rio Tinto Energy Am. v. Goodin , 743 F.3d 1331, 1341 (10th Cir. 2014). The task of evaluating medical evidence lies solely with the administrative law judge, who is ideally positioned to assess credibility and balance conflicting evidence. Rockwood Cas. Ins. Co. v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Labor , 917 F.3d 1198, 1214 (10th Cir. 2019).

B. If a miner worked in a coal mine for at least fifteen years and becomes disabled from a respiratory or pulmonary impairment, a rebuttable presumption would support an award of benefits.

The Black Lung Benefits Act provides benefits to coal miners who become disabled from pneumoconiosis (commonly known as black-lung disease ) arising from coal-mine employment. Goodin , 743 F.3d at 1335. To be eligible for benefits, a miner must establish four elements:

1. Disease : The miner suffers from pneumoconiosis.

2. Disease causation : The pneumoconiosis arose out of coal-mine employment.

3. Disability : The miner is totally disabled because of a respiratory or pulmonary impairment.

4. Disability causation : The pneumoconiosis substantially contributes to the miner’s total disability.

Energy West Mining Co. v. Estate of Blackburn , 857 F.3d 817, 821 (10th Cir. 2017).

But if a miner has worked in a coal mine for at least fifteen years and establishes the disability element, we would presume satisfaction of the remaining three elements. Id. at 822 ; see 30 U.S.C. § 921(c)(4) ; 20 C.F.R. § 718.305(b) – (c). The burden would then shift to the employer to rebut the presumption on at least one of the three remaining elements. Estate of Blackburn , 857 F.3d at 822 ; see 30 U.S.C. § 921(c)(4) ; 20 C.F.R. § 718.305(d).

Applying this burden-shifting framework, the administrative law judge concluded that

• the presumption applied because Mr. Lyle had worked in a coal mine for at least fifteen years and had established the disability element and

• Energy West had not rebutted the presumption.

Energy West concedes that Mr. Lyle worked in a coal mine for at least fifteen years. But Energy West challenges the evidentiary support for the administrative law judge’s findings regarding

• a total disability from a respiratory or pulmonary impairment and

• a failure to rebut the presumption of legal pneumoconiosis.

C. The disability element: Substantial evidence supports the administrative law judge’s finding of a total disability from a respiratory or pulmonary impairment.

To establish the disability element, a coal miner must prove a total disability from a respiratory or pulmonary impairment. Energy West Mining Co. v. Estate of Blackburn , 857 F.3d 817, 821 (10th Cir. 2017). Miners are considered "totally disabled" if the pulmonary or respiratory impairment prevents them from performing

• their customary coal-mine work and

• other jobs in the community that require skills resembling those used in the prior coal-mine work.

20 C.F.R. § 718.204(b)(1).

"In the absence of contrary probative evidence," certain types of evidence "shall" establish the disability element. 20 C.F.R. § 718.204(b)(2). Such evidence includes

• arterial blood-gas studies and

• medical-opinion evidence regarding the impact of a pulmonary or respiratory impairment on a miner’s employment.⁵

20 C.F.R. § 718.204(b)(2)(ii), (iv).

Arterial blood-gas studies gauge the lungs’ ability to oxygenate the blood. Rockwood Cas. Ins. Co. v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t of Labor , 917 F.3d 1198, 1209 (10th Cir. 2019). For an arterial blood-gas study to establish the disability element, the results must show that the blood’s oxygen-pressure level dipped below the regulatory threshold. See 20 C.F.R. pt. 718, App. C.

The regulatory threshold varies based on

• the altitude where the study is conducted and

• the carbon-dioxide pressure level of the miner’s blood.

See id. For example, if the study is conducted between 3,000 and 5,999 feet above sea level, a miner with a carbon-dioxide pressure level of 26 should have an oxygen-pressure level exceeding 69; if the oxygen-pressure level of the miner’s blood is 69 or below, the oxygen-pressure level would be considered too low, indicating a "total disability." Id.

If an arterial blood-gas study yields qualifying values, the administrative law judge must find a total disability "in the absence of rebutting evidence." Id. ; see Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners’ and Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19456, 19464 (Mar. 30, 2012) ("A test that produces ‘qualifying’ values is deemed, in the absence of contrary evidence, indicative of a totally disabling respiratory or pulmonary impairment.").

Applying the regulatory thresholds, the administrative law judge concluded that Mr. Lyle had established the disability element based on

• arterial blood-gas studies in 2011 and 2012 and

• a written report by Dr. Shane Gagon after examining Mr. Lyle.

As the judge explained, the arterial blood-gas studies in 2011 and 2012 showed qualifying values under the applicable regulations. In his report, Dr. Gagon opined that

• Mr. Lyle had a mild-to-moderate respiratory or pulmonary impairment and

• chronic bronchitis was the primary contributor to Mr. Lyle’s impairment.⁶

In arriving at these opinions, Dr. Gagon relied partly on the 201...