Gunderson v. US Dept. of Labor, No. 08-9537.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 601 F.3d 1013
• Parties: Terry GUNDERSON, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent. Blue Mountain Energy; Old Republic Insurance Company, Intervenors.
• Decision Date: 08 April 2010
• Docket Number: No. 08-9537.

601 F.3d 1013

Terry GUNDERSON, Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR, Respondent.
Blue Mountain Energy; Old Republic Insurance Company, Intervenors.

No. 08-9537.

United States Court of Appeals, Tenth Circuit.

April 8, 2010.

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COPYRIGHT MATERIAL OMITTED

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Thomas E. Johnson (Anne Megan Davis, with him on the briefs), Johnson, Jones, Snelling, Gilbert & Davis, P.C., Chicago, IL, for Petitioner-Appellant.

Laura Metcoff Klaus (Mark E. Solomons with her on the brief), Greenberg Traurig LLP, Washington, D.C., for the Intervenors.

Before HENRY, Chief Judge, O'BRIEN, Circuit Judge, and EAGAN, District Judge.^*

HENRY, Chief Judge.

During his thirty-year employment as a coal miner and foreman, the petitioner, Terry Gunderson, was exposed to coal dust and developed chronic obstructive pulmonary disease. In January 2001, Mr. Gunderson received a letter from the National Institute for Occupational Safety and Health informing him that an x-ray taken as part of a monitoring program indicated that he suffered from 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). Pneumoconiosis "encompasses a cruel set of conditions that afflict a significant percentage of the nation's coal miners with `severe, and frequently crippling, chronic respiratory impairment.'" Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 854 (D.C.Cir.2002) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976)).

In response to this letter, Mr. Gunderson sought benefits from Blue Mountain Energy, his longtime employer, under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901-45 (the "Black Lung Benefits Act"). He alleged that he suffered from "clinical pneumoconiosis" and "legal pneumoconiosis." See 20 C.F.R. § 718.201 (discussing those two diseases).

The District Director of the Office of Workers' Compensation Programs granted Mr. Gunderson's claim for benefits, but Blue Mountain Energy appealed that decision to an administrative law judge ("ALJ"). The ALJ heard conflicting evidence: Mr. Gunderson's doctors concluded that he suffered from pneumoconiosis arising from coal dust exposure and that he was disabled because of the disease, while doctors testifying on behalf of Blue Mountain Energy opined that Mr. Gunderson's respiratory problems were caused by chronic obstructive pulmonary disease arising from his smoking habit.

After reviewing the evidence, the ALJ rejected Mr. Gunderson's claims. With regard to clinical pneumoconiosis, the ALJ found that the medical reports did not support Mr. Gunderson's contentions. As to legal pneumoconiosis, the ALJ found that the doctors' reports, while conflicting,

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were all "well-reasoned," "well-documented," and "well-supported." Rec., ALJ Materials, Dec. & Order, filed March 21, 2007, at 22. In the ALJ's view, both parties' experts' opinions were entitled to equal weight. The ALJ therefore denied the claim on the ground that Mr. Gunderson had not met his burden of proving that his chronic obstructive pulmonary disease was caused by his work as a coal miner. The Department of Labor's Benefits Review Board affirmed the ALJ's decision

In this appeal, Mr. Gunderson challenges only the ALJ's ruling regarding legal pneumoconiosis. He argues that the ALJ (1) failed to provide a sufficient explanation of the decision to deny that claim; and (2) erred in excluding a letter from the Director of the Division of Respiratory Disease Studies at the National Institute of Occupational Health and Safety reporting that an x-ray was positive for pneumoconiosis.

We agree with Mr. Gunderson that the case should be remanded for further proceedings. The ALJ's cursory statement that the evidence from both parties was entitled to equal weight does not constitute a sufficient reason or basis for his decision, as required by the Administrative Procedures Act, 5 U.S.C. § 557(c)(3)(A). However, we further conclude that the ALJ did not err in excluding the Director's letter.

I. BACKGROUND

Most of the relevant facts are not disputed. We begin with Mr. Gunderson's particular circumstances and then turn to the regulatory scheme implementing the Black Lung Benefits Act and the proceedings in this case.

A. Mr. Gunderson's employment and medical history

Mr. Gunderson worked more than thirty years in underground coal mines, beginning in January 1965, when he accepted a position in Geneva, Utah. In 1973, he became a superintendent of that mine, which required him to work underground half of the time. In 1977, he moved to Colorado and worked as director of operations at a mine there until 1981.

In the 1980s, Mr. Gunderson engaged in a variety of other activities. He ran a retail business with his ex-wife, drove a truck, and did some warehouse work.

Mr. Gunderson returned to coal mining in 1989, when he accepted a position as a safety inspector with Blue Mountain Energy's underground mine in Rangely, Colorado. He was promoted to shift foreman and then to general foreman, and he continued to work at that same mine until January 2004. Throughout much of his career as a coal miner, Mr. Gunderson smoked cigarettes. He began in 1962 and quit in 1996, consuming about a pack each day during that period.

Blue Mountain Energy's Rangely mine produced as much as two million tons of coal each year. The company used continuous mining techniques, including a longwall machine that would produce up to 2,500 tons of coal each hour. At the evidentiary hearing, Mr. Gunderson explained that these mining activities generated large amounts of coal dust. In his words, "coal mining is a dusty business. If you're not eating coal dust, you're blowing rock dust." Rec. Tr. of May 18, 2006 Hr'g, at 34.

Mr. Gunderson reported that his work in the coal mine required extensive physical activity. He sometimes walked 10 to 15 miles a day, often while carrying up to ten pounds of equipment. He also had to lift 30 to 50 pound logs, as well as 75 to 150 pound timbers, which were used to reinforce the roof.

Despite these physical demands, Mr. Gunderson reported little difficulty in doing

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his coal mining work until the latter part of his career. He testified at the evidentiary hearing that, by 2004, "I couldn't keep up the pace. I was fatigued all the time.... I could walk on level ground. I could even walk up some grades. But by the end of the day, I was just so beat, I went home, I walked in the house and flopped in my chair and didn't get up till I went to bed." Id. at 44. He further stated that he now lacks the stamina he once had to do chores at home and that, in attempting these tasks, he becomes short of breath. "I do a little bit and then I go sit down and rest.... I just don't have the stamina. Seems like I wear out easy." Id. at 46

In the administrative proceedings, the parties introduced substantial medical evidence, providing a detailed account of the onset of Mr. Gunderson's pulmonary disease. In particular, in April 1989, a report of Mr. Gunderson's regular physical examination described him as healthy except for mild, nonspecific interstitial disease, which a radiologist noted on an x-ray.¹ Subsequent x-ray readings contained similar findings. In October 1994, a radiologist read Mr. Gunderson's x-ray as showing mild to moderate, nonspecific interstitial disease. In June 1997, the same radiologist concluded that Mr. Gunderson's x-ray revealed chronic obstructive pulmonary disease and mild nonspecific interstitial disease, as well as small areas of atelectasis, a condition in which all or part of a lung becomes airless and collapses.

In July 1997, Mr. Gunderson had a lung scan, which showed a mild deficiency in blood circulation in the upper part of the lungs. That same month, he underwent a stress test on a treadmill, which showed no chest pain or arrhythmia and indicated normal blood pressure. However, in 1998, a radiologist at St. Mary's Hospital read Mr. Gunderson's x-ray and reported that "the lungs are hyperexpanded consistent with underlying emphysema. There is linear scarring at the right lung base." Rec. Employer's Ex. 8, at 56.

In August 2000, Mr. Gunderson reported fatigue and shortness of breath to a family practitioner, who diagnosed chronic obstructive pulmonary disease. That same month, Mr. Gunderson submitted to an x-ray as part of a monitoring program administered by the National Institute of Occupational Safety and Health. In January 2001, he received a letter from Ronald Schell of the Mine Safety Health Administration informing him that the August 2000 x-ray "shows you have enough coal workers' pneumoconiosis (`black lung') to be eligible for the `option to work in a low dust area' of a mine." Rec., Director's Ex. 18.

In April 2001, Mr. Gunderson again reported fatigue to a treating physician. In September 2001, a physician at the Western Colorado Lung Center evaluated Mr. Gunderson and diagnosed "simple coal workers' pneumoconiosis" and "probable mild chronic obstructive pulmonary disease" connected to his "history of tobacco use." Rec. Employer's Ex. 6, at 4.

B. Statutory and Regulatory Background

The Black Lung Benefits Act, 30 U.S.C. §§ 901-45, defines pneumoconiosis as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal

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mining employment." 30 U.S.C. § 902(b). "It is caused by inhaling coal dust into the lungs over a long period." Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir.2009) (internal quotation marks and citations omitted); see also Dorlands Illustrated Medical Dictionary 1315 (28th ed.1994) (defining pneumoconiosis as "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational...