Consolidation Coal Company v. OWCP

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 24-1329

CONSOLIDATION COAL COMPANY,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, et al.,

Respondents.

____________________

Petition for Review of an Order of the

Benefits Review Board.

Nos. 22-0238 BLA & 23-0020 BLA

____________________

ARGUED OCTOBER 30, 2024 — DECIDED FEBRUARY 18, 2025

____________________

Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.

SCUDDER, Circuit Judge. Dale Staten worked as a coal miner

in Illinois for almost thirty years until his retirement in 2000.

After he passed away in January 2017 from respiratory failure

following a two-week hospitalization, his widow, Bernadette

Staten, filed for survivor benefits under the Black Lung Bene-

fits Act. A Department of Labor administrative law judge

awarded benefits after concluding that Bernadette qualified

2 No. 24-1329

for a statutory presumption that Dale died from black lung

disease, or pneumoconiosis, because he mined underground

for more than 15 years and was totally disabled at the time of

his death. A divided Benefits Review Board affirmed.

Staten’s former employer, Consolidation Coal Company,

which refers to itself as CONSOL, now petitions for review.

The company challenges the ALJ’s award of benefits, includ-

ing the finding that Dale suffered from a total disability at the

time of his death, and invites us to draw a distinction between

pulmonary conditions which are chronic in nature (meaning

they develop over a long period of time) and those that are

acute (meaning they surface more suddenly and progress).

Relying on this difference, CONSOL contends that the 15-year

presumption applies only where a miner’s total disability re-

sults from a chronic pulmonary condition and not from an

acute illness like the respiratory failure that caused Dale’s

death. We see the legal issue differently and affirm the ALJ’s

award of benefits.

I

A

The Black Lung Benefits Act provides benefits for the sur-

viving spouse of a miner whose death was due to pneumoco-

niosis, which Congress defined as “a chronic dust disease of

the lung and its sequelae, including respiratory and pulmo-

nary impairments, arising out of coal mine employment.” 30

U.S.C. § 902(b); see id. § 901.

Because black lung cases present challenging issues of

proof for miners, Congress created “certain statutory pre-

sumptions” to “ease[] their burden.” Dir., Off. of Workers'

Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 280 (1994);

No. 24-1329 3

see also Island Creek Coal Co. v. Blankenship, 123 F.4th 684, 688

(4th Cir. 2024) (describing the 15-year presumption as “ex-

pressly intended to relax the often insurmountable burden”

to prove a black lung claim (citation omitted)). As relevant

here, the Act provides a claimant a rebuttable presumption

that a miner’s death was due to pneumoconiosis upon a

showing that the miner engaged in underground coal-mine

employment for at least 15 years, and, at the time of his death,

had a “totally disabling respiratory or pulmonary impair-

ment.” 30 U.S.C. § 921(c)(4); see 20 C.F.R. § 718.305(b)(1). If

the claimant qualifies for the presumption, the burden shifts

to the employer to prove either that the miner did not have

pneumoconiosis or, alternatively, that “his respiratory or pul-

monary impairment did not arise out of, or in connection

with, employment in a coal mine.” 30 U.S.C. § 921(c)(4); see

20 C.F.R. § 718.305(d)(2)(i)–(ii).

The Department of Labor’s regulations explain that a

miner is totally disabled if he has a “pulmonary or respiratory

impairment which, standing alone, prevents or prevented the

miner: (i) [f]rom performing his or her usual coal mine work;

and (ii) [f]rom engaging in gainful employment in the imme-

diate area of his or her residence .…” 20 C.F.R.

§ 718.204(b)(1)(i)–(ii). To make a finding of total disability, the

ALJ may consider the opinion of a physician “exercising rea-

soned medical judgment,” as well as pulmonary function

tests and arterial blood-gas tests. Id. § 718.204(b)(2)(iv).

B

On December 17, 2016, an Illinois hospital admitted Dale

Staten for respiratory failure after he complained of shortness

of breath. His condition steadily deteriorated despite treat-

ment and resulted in diagnoses of respiratory failure,

4 No. 24-1329

pneumonia, pulmonary emboli, and pulmonary fibrosis. On

December 30, Dale entered a long-term care facility where

medical staff intubated him and placed him on a ventilator in

a final effort to save his life. He passed away a few days later,

on January 4, after his family removed him from life support.

Dale’s health challenges predated his hospitalization. Fol-

lowing his retirement from CONSOL in 2000, he saw several

doctors for shortness of breath, coughing, and existing cardiac

conditions. By any measure, Dale’s medical history is long

and rather complex. Take, for example, his pulmonary func-

tion tests, which are just one metric by which a claimant may

establish total disability under the regulations. See 20 C.F.R.

§ 718.204(b)(2)(i). Dale’s 2013 test results qualified him as to-

tally disabled, but a subsequent test in 2016 did not. And

though never formally diagnosed with pneumoconiosis prior

to his hospitalization and death, one of Dale’s doctors inter-

preted a 2012 CT scan as positive for “possible pneumoconio-

sis.”

We distill this years-long history to a single point for pur-

poses of our review: the ALJ faced a voluminous medical rec-

ord to examine, which contained some changing, incon-

sistent, and uncertain results. Ultimately, however, Dale’s

various test results need not consume or detain us, because

the ALJ acted within its authority not only in choosing to

credit a well-reasoned medical opinion finding that Dale was

totally disabled at the time of his death but also in concluding

that CONSOL offered insufficient medical evidence to rebut

the presumption.

No. 24-1329 5

C

Dale’s wife, Bernadette, applied for black lung benefits in

March 2017. In support of her claim, Bernadette retained Dr.

Sanjay Chavda, who opined that Dale was totally disabled

when he died because his placement and dependence on a

ventilator precluded him from engaging in any physical ac-

tivity. For its part, CONSOL provided the competing opin-

ions of Dr. James Castle and Dr. Robert Farney who both re-

lied upon Dale’s medical history predating his December 2016

hospitalization to conclude that Dale “was not disabled dur-

ing his life based on the objective testing in the record.” Both

doctors discounted the relevance of his hospitalization as re-

flecting not so much a chronic disabling condition, but instead

an “acute illness” at the time of his death.

After finding that Dale’s pulmonary function tests and ar-

terial blood-gas studies did not suffice to establish that he suf-

fered from a totally disabling pulmonary condition, the ALJ

turned to the relevant medical opinions. The ALJ relied on Dr.

Chavda’s account as part of finding that Dale “was clearly

disabled from a respiratory standpoint” during his hospitali-

zation “and unable to do any work,” and therefore totally dis-

abled at the time of his death. Applying the same reasoning,

the ALJ declined to credit the opinions of CONSOL’s experts

because they failed to address whether Dale “was disabled at

the time of his death, not at some prior point.”

Because Dale mined underground for more than 15 years

and suffered from a totally disabling pulmonary or respira-

tory impairment, the ALJ applied the 15-year presumption

that Dale’s “death was due to pneumoconiosis,” entitling Ber-

nadette to benefits. 30 U.S.C. § 921(c)(4). The burden then

shifted to CONSOL to rebut that presumption by establishing

6 No. 24-1329

that Dale did not have pneumoconiosis or that his impair-

ment did not arise out of his employment in a coal mine. See

id.

CONSOL presented x-rays, CT scans, treatment records,

and medical opinions as rebuttal evidence, but the ALJ found

in the end that the company failed to carry its burden of prov-

ing that Dale did not have pneumoconiosis. See 20 C.F.R.

§ 718.202(a). Most of Dale’s scans and medical records, the

ALJ explained, were inconclusive. As for Dr. Castle and Dr.

Farney’s opinions that Dale never suffered from pneumoco-

niosis, the ALJ found the doctors well-qualified to offer their

opinions but nevertheless concluded that they overlooked

certain evidence (for example, the results of Dale’s 2012 CT

scan and pulmonary function tests), making their opinions

less credible. Because CONSOL failed to rebut the 15-year

presumption, the ALJ awarded Bernadette benefits.

CONSOL appealed to the Benefits Review Board, which

affirmed the ALJ in a 2-1 decision. The company presented

the same issue to the Board that it raises in its petition for re-

view in our court: whether a finding of total disability may be

based on evidence of a miner’s acute condition—in this case,

Dale’s hospitalization for respiratory failure leading to his

death—rather than a chronic pulmonary impairment. Two

members of the Board answered in the affirmative, explaining

that “[n]othing in the Act or regulations requires a showing

that the Miner’s total disability was chronic in order to invoke

the [15-year] presumption.” The Board nonetheless con-

cluded that the record showed that Dale suffered from a

chronic impairment, which the ALJ considered in crediting

Dr. Chavda’s opinion.

No. 24-1329 7

One member of the Board dissented. Characterizing

CONSOL’s challenge as an evidentiary one, the dissent found

error in the ALJ’s reliance on medical evidence arising from

Dale’s hospitalization, which it attributed to an acute condi-

tion, without conducting an independent inquiry to ensure

the reliability of the evidence.

CONSOL then sought our review and, in doing so, renews

its legal contention that the Act and its implementing regula-

tions require an ALJ to establish total disability by reference

to a chronic pulmonary condition. So, the company argues,

the ALJ erred when it found Dale totally disabled based on

the acute illness and condition that befell him in the weeks

preceding his death. The company also continues that the

ALJ’s award of benefits lacks evidentiary support in the ad-

ministrative record.

II

Taking CONSOL’s legal challenge first, we conclude that

the Black Lung Benefits Act does not require a claimant to

prove that a miner was suffering from a chronic pulmonary

condition to invoke the 15-year presumption Congress estab-

lished in 30 U.S.C. § 921(c)(4). See Gulley v. Dir., Off. of Work-

ers' Comp. Programs, 397 F.3d 535, 538 (7th Cir. 2005) (afford-

ing no deference to an ALJ’s legal determinations and instead

conducting independent review of questions of law).

Starting, as we must, with the text of the Act, we see noth-

ing requiring a claimant to rely upon a chronic pulmonary

impairment to establish total disability. The 15-year presump-

tion requires that a miner establish the “existence of a totally

disabling respiratory or pulmonary impairment.” 30 U.S.C.

§ 921(c)(4). The Act’s implementing regulations define a

8 No. 24-1329

totally disabling impairment as a condition “which, standing

alone” prevented the miner from “performing his or her usual

coal mine work” and “engaging in gainful employment in the

immediate area of his or her residence.” 20 C.F.R.

§ 718.204(b)(1)(i)–(ii). Neither the statute nor the regulations

say that the disabling impairment must be “chronic” or, for

that matter, draw any distinction between acute and chronic

medical conditions. We “resist reading words or elements

into a statute that do not appear on its face.” Bates v. United

States, 522 U.S. 23, 29 (1997).

Our conclusion finds reinforcement in how Congress

drafted other provisions of the Act. Indeed, the word

“chronic” appears in another provision of the same statutory

section setting out a series of presumptions. See Russello v.

United States, 464 U.S. 16, 23 (1983) (“[W]here Congress in-

cludes particular language in one section of a statute but

omits it in another section of the same Act, it is generally pre-

sumed that Congress acts intentionally and purposely.” (cita-

tion omitted)). In neighboring subsection (c)(3), for instance,

Congress provided miners who are “suffering or suffered

from a chronic dust disease of the lung” and can satisfy other

diagnostic requirements an irrebuttable presumption “that he

is totally disabled.” 30 U.S.C. § 921(c)(3) (emphasis added).

Yet the term “chronic” does not appear in subsection (c)(4),

which requires only that a miner have a “totally disabling pul-

monary or respiratory impairment” to benefit from the 15-

year presumption. Id. § 921(c)(4).

Consider also subsection (c)(1), which extends to miners

who are both “suffering or suffered from pneumoconiosis,”

and were “employed for ten years or more in one or more coal

mines” the benefit of a rebuttable presumption that the

No. 24-1329 9

pneumoconiosis arose out of their employment. Id.

§ 921(c)(1). In plainer terms, miners seeking to benefit from a

presumption under (c)(1) must establish that they have pneu-

moconiosis—a condition everyone agrees is chronic in nature.

Again, though, subsection (c)(4), which creates the 15-year

presumption at issue here, contains no such reference to

pneumoconiosis or any other chronic condition. See id. §

921(c)(4).

This distinction comes into even sharper focus if we look

at how Congress defined pneumoconiosis and contrast that

with the conditions it established for invoking these various

presumptions. The Act defines pneumoconiosis as “a chronic

dust disease of the lung and its sequelae, including respira-

tory and pulmonary impairments, arising out of coal mine

employment.” 30 U.S.C. § 902(b); see 20 C.F.R.

§ 718.201(a)(1)–(2) (defining pneumoconiosis similarly). Be-

cause subsection (c)(4) operated to provide Bernadette the

benefit of a rebuttable presumption that Dale’s “death was

due to pneumoconiosis,” it makes little sense to hinge the

availability of the presumption in the first instance on the

miner (or his surviving spouse) proving that he suffers from

pneumonoconiosis or another chronic lung disease. To con-

clude otherwise is to presume some level of statutory circu-

larity.

Put another way, we read subsection (c)(4) as exempting

the miner from the evidentiary burden of showing he has

pneumonoconiosis and instead presuming it upon a showing

of a “totally disabling respiratory or pulmonary impairment.”

We see no reason Congress would use the language it did in

articulating the Act’s evidentiary requirements, presump-

tions, and key definitions if it intended, much more simply, to

10 No. 24-1329

say that the 10- and 15-year presumptions both require an af-

firmative showing of a chronic pulmonary condition. See

Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86 (2017)

(“[D]ifferences in language … convey differences in mean-

ing.”).

What concerns us most with CONSOL’s reading is that it

would invert the 15-year presumption’s burden-shifting

framework. Whether a miner has a chronic lung condition is

relevant to the employer’s burden on rebuttal where they

must prove either that the miner does not have pneumoconi-

osis or that his pulmonary impairment did not arise out of

coal mine work. But the burden does not rest with the claim-

ant to prove chronic illness at the first step. See 30 U.S.C.

§ 921(c)(4). The Benefits Review Board has recognized this

precise point, explaining that, “[t]he cause of a miner’s totally

disabling respiratory impairment is not relevant to invocation

[of the 15-year presumption], but is to be considered on rebut-

tal.” Tanner v. Freeman United Coal Co., 10 BLR 1-85, 1987 WL

107328, at *1 (DOL Ben. Rev. Bd. July 27, 1987) (concluding

that a “claimant is not required to establish that his totally dis-

abling respiratory or pulmonary impairment is chronic”). We

agree.

Perhaps recognizing the shortfalls of its statutory position,

CONSOL redirects our focus to the Act’s regulations and, in

particular, to the use of “pneumoconiosis” and “chronic” in a

subsection defining the term “total disability.” That provision

tells us that “miners who are totally disabled due to pneumo-

coniosis” are entitled to benefits. 20 C.F.R. § 718.204(a). In as-

sessing total disability, the regulation continues, ALJs shall

not consider nonpulmonary or nonrespiratory conditions, un-

less those conditions cause “a chronic respiratory or

No. 24-1329 11

pulmonary impairment.” Id. So, the company says, the regu-

lations require that a claimant prove the existence of a chronic

lung condition and prohibit the use of acute impairment to

establish disability.

The point is fair if we limit our review to subsection (a).

But CONSOL’s position falters the moment we broaden our

focus to another subsection of the same regulation. For its

part, subsection (c)(2) specifies that “proof that the miner …

suffered from a totally disabling respiratory or pulmonary

impairment … shall not, by itself, be sufficient to establish

that the miner’s impairment is or was due to pneumoconio-

sis,” except as provided by the 15-year presumption found in

§ 718.305. 20 C.F.R. § 718.204(c)(2). Put another way, subsec-

tion (c)(2) establishes that a claimant invoking the 15-year pre-

sumption shoulders no obligation to show that a miner suf-

fered from pneumoconiosis to establish entitlement to bene-

fits.

All of this matters here because CONSOL makes no claim

that the ALJ failed to comply with the limitations in subsec-

tion (a) in finding Dale totally disabled based on a nonpulmo-

nary or nonrespiratory condition. Nor could it. As the ALJ de-

scribed it, Dale received treatment for “several respiratory

conditions including pulmonary fibrosis and ground-glass

opacities, pulmonary emboli, and pneumonia” shortly before

his death.

Finally, CONSOL relies on the so-called regulatory Ap-

pendix, which sets out the qualifying criteria for pulmonary

function studies and arterial blood-gas tests—the two types

of medical evidence, apart from qualified medical opinions,

that ALJs may consider in assessing total disability. See 20

C.F.R. § 718.204(b)(2). The Appendix specifies that both types

12 No. 24-1329

of medical evidence are not admissible if “performed during

or soon after an acute respiratory illness.” App. B to Part 718

(2)(i). The company views this limitation as suggesting that

ALJs may consider only chronic impairments—and not acute

conditions—when assessing total disability.

Here, too, we cannot get there. The company’s contention

overlooks the fact that the regulations permit an ALJ to find a

miner totally disabled—even in the absence of other qualified

medical evidence—based on a physician’s “reasoned medical

judgment” that a “miner’s respiratory or pulmonary condi-

tion … prevented the miner from engaging in employment.”

20 C.F.R. § 718.204(b)(2)(iv). We see no language in § 718.204,

the section of the regulation describing total disability, requir-

ing that a physician consider only the impact of a chronic con-

dition on a miner’s ability to engage in employment.

Our adopting CONSOL’s position would effectively re-

quire a claimant to prove a miner had pneumoconiosis, or

some other chronic lung disease, to benefit from the presump-

tion that a miner had or died from pneumoconiosis. This re-

quirement finds no footing in the text of the Act or its regula-

tions. Nor, to our knowledge, has any circuit adopted the in-

terpretation advanced by CONSOL, and the Benefits Review

Board has expressly held (now, on two occasions) to the con-

trary. In the end, then, the ALJ committed no legal error.

III

Separate and apart from its statutory argument, CONSOL

also challenges the broader merits of the ALJ’s decision to

award benefits. In the company’s view, the ALJ erred by cred-

iting Dr. Chavda’s opinion and not those of Dr. Castle and Dr.

Farney.

No. 24-1329 13

On appeal, CONSOL faces a steep climb. We affirm an

ALJ’s findings so long as they are “rational, supported by sub-

stantial evidence and consistent with governing law.” Old Ben

Coal Co. v. Dir., Off. of Workers' Comp. Programs, 292 F.3d 533,

538 (7th Cir. 2002). The substantial evidence standard is some-

what of a misnomer, however, because “the threshold for

such evidentiary sufficiency is not high.” Biestek v. Berryhill,

587 U.S. 97, 103 (2019). Substantial evidence means “more

than a mere scintilla,” which is only “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 217

(1938). In assessing whether an ALJ’s decision has substantial

evidentiary support, we undertake a full review of the record

though “[w]e cannot reweigh the evidence or make credibility

determinations.” Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1393

(7th Cir. 1994).

The ALJ’s decision finds ample support in the administra-

tive record.

A

We find no fault with the ALJ’s reliance on Dr. Chavda’s

opinion, which CONSOL claims is replete with inconsisten-

cies, fails to adequately explain the medical evidence, and

mistakenly relies upon Dale’s hospitalization. The central

shortcoming in the company’s position, however, is that it de-

pends on our adoption of its legal contention that total disa-

bility must arise from a chronic pulmonary condition. But we

have reached the opposite conclusion. And with the legal is-

sue resolved, CONSOL does little to undermine Dr. Chavda’s

assessment that Dale was totally disabled at the time of his

death.

14 No. 24-1329

Even if we determined that Dale’s hospitalization and con-

dition preceding his death were not appropriate factors to

consider in evaluating total disability, CONSOL’s challenge

to the ALJ’s assessment of the other medical evidence

amounts to little more than an invitation for us to reweigh the

evidence. The company claims that Dr. Chavda erred in cred-

iting a 2013 pulmonary function test which produced results

qualifying Dale as totally disabled, even though a later 2016

test produced a non-qualifying result, for example. But

whether the results of the 2013 or 2016 pulmonary function

tests should control is the type of contention with which we

are ill-equipped to engage. To the contrary, “weighing con-

flicting medical evidence is precisely the function of the ALJ

as fact-finder.” Poole v. Freeman United Coal Min. Co., 897 F.2d

888, 895 (7th Cir. 1990); see Blakley v. Amax Coal Co., 54 F.3d

1313, 1322 (7th Cir. 1995) (“We do not fashion ourselves as

medical experts and do not reweigh each bit of medical testi-

mony.”). For our purposes, CONSOL’s challenge fails be-

cause it does not prove any error with the “ALJ’s choice of

methodology,” which need only “be reasonable and informed

by evidence.” Safeco Ins./Liberty Mut. Sur. v. Dir., Off. of Work-

ers' Comp. Programs, 103 F.4th 1285, 1291 (7th Cir. 2024).

Here, the ALJ found Dr. Chavda’s opinion more credible

because he accounted for the entirety of the medical evi-

dence—including Dale’s hospitalization and condition prior

to his death—which is something Dr. Castle and Dr. Farney

failed to do. Even though the ALJ concluded that Dr. Castle

and Dr. Farney were similarly qualified, “[t]he ALJ may, after

considering all relevant medical evidence, disregard the med-

ical conclusions of a qualified physician when confronted

with countervailing clinical evidence,” which is exactly what

happened here. Blakley, 54 F.3d at 1321.

No. 24-1329 15

CONSOL raises a range of other medically-detailed chal-

lenges to the ALJ’s ruling—so many so that we, as generalist

judges, have a hard time keeping one straight from the other.

Do not read this as a criticism but instead as our saying that

we have taken a close look at the ALJ’s opinion and, in the

end, conclude it grounds itself in substantial evidence.

B

CONSOL also takes issue with the Benefits Review

Board’s decision affirming the ALJ’s award of benefits. The

company alleges that the Board exceeded the scope of its stat-

utory authority by conducting an independent review of the

medical evidence. But as we have explained many times over,

when a black lung case comes before our court, “our principal

focus is on the reasoning of the ALJ,” not that of the Board.

Apogee Coal Co. v. Dir., Off. of Workers' Comp. Programs, 113

F.4th 751, 758 (7th Cir. 2024). And because our scope of review

is similar to that of the Board—ensuring that the ALJ’s deci-

sion is “rational, supported by substantial evidence, and in

accordance with applicable law,” Consol. Coal Co. v. v. Dir.,

Off. of Workers' Compensation Programs, 911 F.3d 824, 838 (7th

Cir. 2018)—any misstep by the Board stands to be corrected

by our subsequent review of the ALJ’s decision. See Crowe ex

rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 440 (7th Cir. 2011)

(“The [BRB] has the identical scope of review when sitting as

an appellate panel reviewing decisions of the ALJ.” (quoting

Zettler v. Dir., Off. of Workers' Comp. Programs, 886 F.2d 831,

834 (7th Cir. 1989)).

This is not to suggest that we see any infirmity, substan-

tive or procedural, in the Board’s order, however. On the con-

trary, we see no merit to the contention that the Board ex-

ceeded its scope of review, and we reach the same conclusion

16 No. 24-1329

on the merits regardless: the ALJ’s award of benefits finds

support in substantial evidence.

We therefore DENY the petition for review and AFFIRM

the judgment of the Benefits Review Board.