Hobet Mining, LLC v. Carl Epling, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1738

HOBET MINING, LLC,

Petitioner,

v.

CARL R. EPLING, JR.; DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.

(12-0404-BLA; 12-0404-A-BLA)

Argued: January 29, 2015 Decided: April 17, 2015

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Petition for review denied by published opinion. Judge Harris

wrote the opinion, in which Judge Keenan and Judge Floyd joined.

ARGUED: William Steele Mattingly, JACKSON KELLY PLLC,

Morgantown, West Virginia, for Petitioner. Sean Gregory

Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.;

Leonard Joseph Stayton, Inez, Kentucky, for Respondents. ON

BRIEF: Ashley M. Harman, JACKSON KELLY PLLC, for Petitioner.

M. Patricia Smith, Solicitor of Labor, Rae Ellen James,

Associate Solicitor, Gary K. Stearman, Counsel for Appellate

Litigation, Sarah M. Hurley, Office of the Solicitor, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent

Director, Office of Workers' Compensation Programs, United

States Department of Labor.

PAMELA HARRIS, Circuit Judge:

Hobet Mining, LLC (“Hobet”) petitions for review of a

decision awarding black lung benefits to Carl R. Epling, Jr.

(“Epling”). The administrative law judge (“ALJ”) found that

Epling was entitled to the benefit of the so-called “fifteen-

year presumption,” a statutory provision that presumes

eligibility for benefits when a claimant suffers from a totally

disabling respiratory or pulmonary impairment and has fifteen

years of qualifying coal mine employment. See 30 U.S.C.

§ 921(c)(4). Because Hobet had failed to rebut that

presumption, the ALJ concluded, Epling was entitled to benefits.

We find that the ALJ’s determinations were supported by

substantial evidence, and we therefore deny the petition for

review.

I.

A.

The Black Lung Benefits Act (“Act”) provides benefits to

“coal miners who are totally disabled due to pneumoconiosis,”

popularly known as black lung disease. 30 U.S.C. § 901(a). To

prove entitlement to black lung benefits in the absence of the

fifteen-year presumption, an individual must show that he has

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pneumoconiosis arising from coal mine employment, 1 and that this

disease is a substantially contributing cause of his totally

disabling respiratory or pulmonary impairment. See Mingo Logan

Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013). 2

“[T]he existence and causes of pneumoconiosis are difficult

to determine,” and Congress accordingly has “established a

number of evidentiary presumptions to assist miners in proving

their claims.” Broyles v. Dir., Office of Workers’ Comp.

Programs, 824 F.2d 327, 328 (4th Cir. 1987). Among them is the

fifteen-year presumption at issue in this case, 30 U.S.C.

§ 921(c)(4), which was enacted in 1972, eliminated in 1981, and

then restored in 2010. 3 The fifteen-year presumption is

1

Since the 1978 amendments to the Act, the statutory

definition of “pneumoconiosis” has encompassed not only the

diseases medically known as pneumoconiosis, but also any chronic

lung disease or impairment arising from coal mine employment, as

well as the impairments that result from any such disease. See

30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).

2

In some cases, we have further subdivided these elements

of a black lung claim into four separate components. See Mingo

Logan, 724 F.3d at 555 (a claimant must show (1) that he has

pneumoconiosis; (2) that his pneumoconiosis arises from coal

mining employment; (3) that he is totally disabled by a

respiratory or pulmonary impairment; and (4) that pneumoconiosis

is a substantially contributing cause of his disability).

However the elements are counted, the substance of the claim is

the same.

3

Black Lung Benefits Act of 1972, Pub. L. No. 92-303,

§ 4(c), 86 Stat. 150, 154 (1972); Black Lung Revenue Act of

1981, Pub. L. No. 97-119, § 202(b)(1), 95 Stat. 1635, 1643

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expressly intended to “[r]elax” the “often insurmountable

burden” of proving a black lung claim for the special class of

“miners with 15 years experience who are disabled by a

respiratory or pulmonary impairment.” S. Rep. 92-743 (1972),

reprinted in 1972 U.S.C.C.A.N. 2305, 2306. Through the

presumption, Congress has “singled out” this group of miners for

“special treatment,” making it easier for them to show their

entitlement to benefits. Regulations Implementing the Byrd

Amendments to the Black Lung Benefits Act: Determining Coal

Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg.

59102, 59105-07 (Sept. 25, 2013); see also West Virginia CWP

Fund v. Bender, — F.3d — , No. 12-2034, slip op. at 23 (4th Cir.

Apr. 2, 2015).

To that end, § 921(c)(4) provides that,

if a miner was employed for fifteen years or

more in one or more underground coal mines,

. . . and if other evidence demonstrates the

existence of a totally disabling respiratory

or pulmonary impairment, then there shall be

a rebuttable presumption that such miner is

totally disabled due to pneumoconiosis.

Under the presumption, if a claimant has at least fifteen years

of underground coal mine employment and a qualifying respiratory

or pulmonary disability, a rebuttable presumption arises that he

(1981); Patient Protection and Affordable Care Act, Pub. L. No.

111-148, § 1556, 124 Stat. 119, 260 (2010).

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is entitled to benefits. In other words, we presume both prongs

of the showing required for benefits eligibility: that the

claimant has pneumoconiosis arising from coal mine employment,

and that this disease is a substantially contributing cause of

his disability. See Mingo Logan, 724 F.3d at 555.

A coal mine operator may defeat the miner’s claim by

rebutting either of these presumptions. First, an operator may

establish that the miner does not have pneumoconiosis arising

from coal mine employment. 20 C.F.R. § 718.305(d)(1)(i).

Second, the operator may establish that “no part” of the miner’s

disability was caused by such a disease, id.

§ 718.305(d)(1)(ii), a standard under which it must “rule out”

the mining-related disease as a cause of the miner’s disability,

Bender, slip op. at 8; Rose v. Clinchfield Coal Co., 614 F.2d

936, 939 (4th Cir. 1980).

B.

After working for over twenty-one years in underground coal

mines — most recently for petitioner Hobet in 1999 — respondent

Epling is unable to exert himself at all without experiencing

shortness of breath. Because this impairment prevents Epling

from performing his previous coal mine employment, which

required heavy manual labor, it constitutes a totally disabling

respiratory impairment for purposes of the Act.

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Epling filed this claim for benefits under the Act in 2007.

Due to Epling’s long history of coal mine employment and totally

disabling respiratory impairment, the ALJ reviewing his claim

applied the fifteen-year presumption, reinstated in 2010 while

Epling’s case was pending. As required by that provision, the

ALJ presumed both (1) that Epling has pneumoconiosis arising

from coal mine employment, and (2) that Epling’s pneumoconiosis

is a cause of his disabling respiratory impairment. Together,

those presumptions qualify Epling for benefits, absent rebuttal

by Hobet.

On the first presumption — the existence of pneumoconiosis

arising from coal mine employment — the ALJ found that Epling

does indeed have pneumoconiosis arising from his coal mine

employment. Hobet does not contest that finding on appeal.

Accordingly, only the second presumption — that Epling’s

pneumoconiosis is a cause of his disability — is at issue here.

To rebut that disability-causation presumption, Hobet

presented the ALJ with testimony from two doctors, Dr. Robert J.

Crisalli (“Crisalli”) and Dr. Kirk Hippensteel (“Hippensteel”).

The ALJ discredited Crisalli’s testimony in a finding that Hobet

does not challenge on appeal, and Hobet now relies entirely on

Hippensteel’s opinion, set forth in a number of submissions over

the course of this litigation.

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Critically, in submissions made between 2008 and 2011,

Hippensteel was unpersuaded that Epling suffered from

pneumoconiosis at all, though he conceded that the evidence was

not unequivocal. As the ALJ explained, after reviewing chest CT

scans, Hippensteel believed “that the evidence did not indicate

pneumoconiosis.” J.A. 80. In this key respect, Hippensteel’s

opinion was directly contrary to the ALJ’s finding that Epling

did have pneumoconiosis arising from coal mine employment.

Hippensteel attributed Epling’s respiratory impairments not

to pneumoconiosis but instead entirely to obesity and sleep

apnea. Hippensteel acknowledged abnormalities in Epling’s x-

rays. He believed, however, that it would be “unusual” for

Epling to have developed pneumoconiosis over ten years after he

left work in the coal mines. See J.A. 89. And in light of the

evidence against pneumoconiosis, he reasoned, it followed that

the abnormalities were the result of the obesity and sleep

apnea.

At the same time, Hippensteel asserted that even if,

hypothetically, Epling did have pneumoconiosis arising from coal

mine employment, that disease would not be the cause of his

impairment. By way of explanation, Hippensteel offered only his

agreement with the views of Crisalli, the now-discredited

expert, reciting Crisalli’s opinion as to the cause of Epling’s

gas exchange impairment.

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In February of 2012, upon review of additional CT scans,

Hippensteel’s diagnostic opinion changed, and he concluded that

Epling did indeed suffer from pneumoconiosis arising from coal

mine employment. But Hippensteel did not revisit his causation

analysis in light of this new finding. Instead, he simply

recited again his prior conclusion that Epling’s respiratory

problems were not caused by pneumoconiosis.

Reviewing this evidence, the ALJ made the determination —

central to this appeal — that Hippensteel’s opinion that

pneumoconiosis did not cause Epling’s disability was entitled to

“little weight” because (1) the doctor had failed to diagnose

pneumoconiosis, in direct contradiction to the ALJ’s own

finding; and (2) Hippensteel’s position “that it would be

unusual for [Epling] to have pneumoconiosis ten years after he

ended his coal mine employment” was “not in accord with the

accepted view that [coal workers’ pneumoconiosis] is both latent

and progressive.” J.A. 89; see also J.A. 98. Having discounted

that key testimony, the ALJ went on to find that Hobet could not

rebut the presumption that Epling’s pneumoconiosis is a cause of

his disability, and awarded benefits to Epling.

The Benefits Review Board (“Board”) affirmed the ALJ’s

decision. On the weight to be given Hippensteel’s opinion, the

Board, citing Scott v. Mason Coal Co., 289 F.3d 263 (4th Cir.

2002), invoked the well-established rule discrediting causation

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testimony by a doctor who fails to diagnose pneumoconiosis when,

as here, an ALJ has made a contrary finding. In such cases, a

doctor’s opinion as to causation may not be credited at all

unless there are “‘specific and persuasive reasons’” for

concluding that the doctor’s view on causation is independent of

his or her mistaken belief that the claimant does not have

pneumoconiosis, in which case it may be assigned, at most,

“little weight.” Scott, 289 F.3d at 269-70 (quoting Toler v. E.

Associated Coal Co., 43 F.3d 109, 116 (4th Cir. 1995)).

Applying that standard, the Board held that the ALJ had

“rationally discounted” Hippensteel’s opinion. J.A. 98.

Hippensteel’s failure to diagnose pneumoconiosis could not be

salvaged, the Board explained, by his hypothetical “assumption

of the existence” of pneumoconiosis in deposition testimony.

J.A. 99. And though Hippensteel ultimately accepted the

diagnosis of pneumoconiosis in 2012, the Board reasoned, all of

his discussion of his causation opinion predated that change of

mind, and was coupled with his former unwillingness to diagnose

pneumoconiosis. The Board therefore affirmed the ALJ’s findings

as to causation and the award of benefits to Epling.

Hobet timely filed this petition for review, arguing that

the ALJ and the Board improperly discredited Hippensteel’s

9

opinion regarding the cause of Epling’s disability. 4 For the

reasons that follow, we disagree.

II.

A.

Our review of a decision awarding black lung benefits is

“limited.” Harman Mining Co. v. Dir., Office of Workers’ Comp.

Programs, 678 F.3d 305, 310 (4th Cir. 2012). We ask only

“whether substantial evidence supports the factual findings of

the ALJ and whether the legal conclusions of the [Board] and ALJ

are rational and consistent with applicable law.” Id.

To determine whether this standard has been met, we

consider “whether all of the relevant evidence has been analyzed

and whether the ALJ has sufficiently explained his rationale in

crediting certain evidence.” Mingo Logan, 724 F.3d at 557. But

it is for the ALJ, as the trier of fact, to make factual and

4

Hobet also argues that the ALJ and Board erred by holding

its rebuttal evidence on causation to the rule-out standard of

20 C.F.R. § 718.305(d)(1). According to Hobet, the rule-out

standard is unduly strict and inconsistent with the Act, which

must be read to allow rebuttal by a showing that pneumoconiosis

is not a “substantially contributing” cause of a claimant’s

disability. Because we conclude that Hippensteel’s opinion was

properly discredited, leaving Hobet with insufficient rebuttal

evidence under either standard, resolution of that issue is not

dispositive here. We note, however, that the same challenge to

the rule-out standard was addressed and rejected by our recent

decision in West Virginia CWP Fund v. Bender, — F.3d —, No. 12-

2034, slip op. at 28-29 (4th Cir. Apr. 2, 2015).

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credibility determinations, see id., and we therefore “defer to

the ALJ’s evaluation of the proper weight to accord conflicting

medical opinions,” Harman, 678 F.3d at 310. So long as an ALJ’s

findings in this regard are supported by substantial evidence,

they must be sustained. See id.

B.

The question in this appeal is whether Hippensteel’s

opinion regarding the cause of Epling’s disability was properly

discredited. In particular, we consider whether the ALJ and the

Board erred by discrediting Hippensteel’s causation analysis on

the basis of his failure to diagnose pneumoconiosis arising from

coal mine employment.

As the Board recognized, we are not writing on a clean

slate. Long-standing precedent establishes that a medical

opinion premised on an erroneous finding that a claimant does

not suffer from pneumoconiosis is “not worthy of much, if any,

weight,” particularly with respect to whether a claimant’s

disability was caused by that disease. Grigg v. Dir., Office of

Workers’ Comp. Programs, 28 F.3d 416, 419 (4th Cir. 1994). This

is a common-sense rule, for the credibility of a doctor’s

judgment as to whether pneumoconiosis is a cause of a miner’s

disability is necessarily influenced by the accuracy of his

underlying diagnosis, which lies at the heart of any claim for

black lung benefits. See Toler, 43 F.3d at 116. “It is usually

11

exceedingly difficult for a doctor to properly assess the

contribution, if any, of pneumoconiosis to a miner’s death [or

disability] if [the doctor] does not believe [pneumoconiosis]

was present.” Soubik v. Dir., Office of Workers’ Comp.

Programs, 366 F.3d 226, 234 (3d Cir. 2004).

Thus, opinions that erroneously fail to diagnose

pneumoconiosis may not be credited at all, unless an ALJ is able

to “identify specific and persuasive reasons for concluding that

the doctor’s judgment on the question of disability causation

does not rest upon” the “predicate[]” misdiagnosis. Toler, 43

F.3d at 116 (vacating ALJ finding on disability causation where

ALJ relied upon the opinions of doctors who erroneously failed

to diagnose pneumoconiosis); see also Scott, 289 F.3d at 269-70

(same). And even when those opinions are credited, they may

carry only “little weight” in the decision-maker’s causation

analysis. Scott, 289 F.3d at 269 (even if there were specific

and persuasive reasons to credit opinions failing to diagnose

pneumoconiosis, ALJ impermissibly “accorded those opinions far

more than the little weight they are allowed”).

In this case, we agree with the Board that Hippensteel’s

opinion was entitled to no more than the “little weight”

assigned it by the ALJ. First and most critically, Hippensteel

failed to diagnose Epling’s pneumoconiosis, directly contrary to

the finding of the ALJ. Under cases like Scott and Toler, that

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failure, by itself, would bar the ALJ from giving Hippensteel’s

opinion as to disability causation anything more than the

“little weight” he accorded it. See Scott, 289 F.3d at 269-70;

Toler, 43 F.3d at 116.

Moreover, this is not a case in which there are “specific

and persuasive reasons” for thinking that a doctor’s view of

disability causation is independent from any misdiagnosis. See

Toler, 43 F.3d at 116. On the contrary, substantial evidence

supports the conclusion that Hippensteel’s disability-causation

opinion was closely tied to his belief that Epling did not

suffer from pneumoconiosis arising from coal mine employment.

Indeed, Hippensteel himself explained that it was because the

evidence in the record did not substantiate a diagnosis of

pneumoconiosis that he attributed the irregularities in Epling’s

x-rays to obesity and sleep apnea instead. That reasoning is

irreconcilable with the ALJ’s conclusion that Epling does in

fact have pneumoconiosis. See id. at 115 (finding it difficult

“to understand how the ALJ could credit” the causation analysis

of doctors who failed to diagnose pneumoconiosis “while

simultaneously finding that [the claimant] did suffer from

pneumoconiosis”). And it leaves no space between Hippensteel’s

failure to diagnose pneumoconiosis and his assessment that

pneumoconiosis was not a cause of Epling’s disability. Under

those circumstances, the ALJ properly discredited Hippensteel’s

13

opinion. See id. at 116 (ALJ “may not credit” doctor’s opinion

on causation absent “specific and persuasive” showing that it is

not linked to an erroneous failure to diagnose pneumoconiosis).

Hobet argues that Hippensteel salvaged the credibility of

his causation opinion when he asserted that he would have

reached the same conclusion even assuming that Epling did have

pneumoconiosis. We disagree. A medical expert of course may

opine credibly as to disability causation under an alternative

set of circumstances. See, e.g., Island Creek Coal Co. v.

Compton, 211 F.3d 203, 214 (4th Cir. 2000). But as we have

held, it is not enough for the expert simply to recite, without

more, that his causation opinion would not change if the

claimant had pneumoconiosis. See Scott, 289 F.3d at 268-69.

Rather, such an alternative causation analysis, like any

causation opinion, must be accompanied by some reasoned

explanation — in this context, an explanation of why the expert

would continue to believe that pneumoconiosis was not the cause

of a miner’s disability, even if pneumoconiosis were present.

That is what is missing in this case: Hippensteel does not

provide any independent analysis of the factors that would lead

him to attribute Epling’s impairment to obesity and sleep apnea

even if the factual premise for his opinion — that Epling does

not have pneumoconiosis — were overridden. Instead, he simply

endorses and paraphrases Crisalli’s view of the gas exchange

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evidence — a view that was itself discredited by the ALJ.

Repetition of another expert’s discredited analysis does nothing

to enhance the credibility of Hippensteel’s own views, and it

does not constitute the reasoned explanation necessary to

support an alternative causation analysis. And without such an

explanation, Hippensteel’s alternative opinion is just a

“superficial hypothetical” that cannot be reconciled with the

existence of the mining-related pneumoconiosis found by the ALJ.

Soubik, 366 F.3d at 234 (quotation marks omitted).

Nor is Hippensteel’s opinion as to causation rendered sound

by his late-breaking determination, in 2012, that Epling does in

fact have pneumoconiosis. As the Board explained, the entirety

of Hippensteel’s causation reasoning predates his ultimate

diagnosis of pneumoconiosis and, as discussed, rests primarily

on the absence of that disease. At no point after diagnosing

pneumoconiosis did Hippensteel revisit his earlier opinion to

take into account the elimination of what had been the factual

predicate for his view. So again, the ALJ was left without any

explanation, in reports or testimony, of how Hippensteel might

be able to reach the same conclusion regarding the cause of

Epling’s disability in light of his changed opinion regarding

Epling’s diagnosis. Absent that explanation, Hippensteel’s 2012

restatement of his causation opinion was no more credible than

its earlier iterations, and the ALJ permissibly discounted it.

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In short, Hippensteel’s initial failure to diagnose

pneumoconiosis was cured neither by his hypothetical assumption

of pneumoconiosis nor by his subsequent embrace of that

diagnosis. Even standing alone, this defect would have

justified the ALJ’s credibility determination. See Scott, 289

F.3d at 269-70. But in this case, Hippensteel’s failure to

diagnose pneumoconiosis did not stand alone. Instead, it came

with the doctor’s testimony that it would be unusual for Epling

to have developed pneumoconiosis over ten years after he left

work in the coal mines — a judgment, the ALJ explained, that is

“not in accord with the accepted view that [coal workers’

pneumoconiosis] is both latent and progressive.” J.A. 89. The

ALJ was entitled to take this disagreement, too, into account in

“evaluat[ing] . . . the proper weight to accord [the]

conflicting medical opinions” at issue in this case, Harman, 678

F.3d at 311 (quoting Stiltner v. Island Creek Coal Co., 86 F.3d

337, 342 (4th Cir. 1996)), further bolstering his decision to

discount Hippensteel’s opinion. When these grounds for

discrediting Hippensteel’s causation opinion are taken together,

they undoubtedly provide the substantial evidence necessary to

affirm on appeal the ALJ’s finding that Hobet had failed to

rebut the fifteen-year presumption. See id. at 310.

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III.

For the foregoing reasons, we deny the petition for review.

PETITION FOR REVIEW DENIED

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