Harman Mining Co. v. Director, Office of Workers' Compensation Programs

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HARMAN MINING COMPANY; OLD 

REPUBLIC INSURANCE COMPANY,

Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS’  No. 05-1620

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

GARY LOONEY,

Respondents.



HARMAN MINING CORPORATION; OLD 

REPUBLIC INSURANCE COMPANY,

Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS’  No. 11-1450

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

GARY LOONEY,

Respondents.



On Petition for Review of Orders

of the Benefits Review Board.

(04-109-BLA; 09-740-BLA)

Argued: January 24, 2012

Decided: May 15, 2012

2 HARMAN MINING CO. v. DIRECTOR, OWCP

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Petition for review denied by published opinion. Judge Motz

wrote the opinion, in which Judge Niemeyer and Judge King

joined.

COUNSEL

ARGUED: Mark Elliott Solomons, GREENBERG

TRAURIG, LLP, Washington, D.C., for Petitioners. Ryan

Christopher Gilligan, WOLFE, WILLIAMS, RUTHERFORD

& REYNOLDS, Norton, Virginia; Helen Hart Cox, UNITED

STATES DEPARTMENT OF LABOR, Office of Workers’

Compensation Programs, Washington, D.C., for Respondents.

ON BRIEF: Laura Metcoff Klaus, GREENBERG

TRAURIG, LLP, Washington, D.C., for Petitioners. M. Patri-

cia Smith, Solicitor of Labor, Rae Ellen James, Associate

Solicitor, Sean G. Bajkowski, Counsel for Appellate Litiga-

tion, UNITED STATES DEPARTMENT OF LABOR, Office

of Workers’ Compensation Programs, Washington, D.C., for

Federal Respondent. Joseph E. Wolfe, WOLFE, WILLIAMS,

RUTHERFORD & REYNOLDS, Norton, Virginia, for

Respondent Gary Looney.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

These appeals arise from an administrative law judge’s

order, affirmed by the Benefits Review Board, finding that

Gary Looney suffered disabling obstructive lung disease aris-

ing out of his work as a coal miner and awarding his widow

black lung benefits payable by Looney’s former employer.

HARMAN MINING CO. v. DIRECTOR, OWCP 3

Although Looney’s case has followed a tortured procedural

path, the proper resolution of these appeals is straightforward.

We need only determine if the award of benefits finds support

in the record and accords with the Administrative Procedure

Act. We hold that it does and so affirm the award of benefits

to Looney and deny his former employer’s petition for

review.

I.

A.

The Black Lung Benefits Act ("the Act"), 30 U.S.C. § 901

et seq., grants benefits to persons (or their surviving depen-

dents) afflicted with pneumoconiosis, which is popularly

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

ble for these benefits, a person must prove that he has a total

disability due to pneumoconiosis arising out of his employ-

ment as a coal miner. See id. §§ 901(a), 921; 20 C.F.R.

§§ 718.201-204, 725.202. The regulations define "pneumoco-

niosis" as a "chronic dust disease of the lung and its sequelae,

including respiratory and pulmonary impairments, arising out

of coal mine employment." 20 C.F.R. § 718.201(a).

The courts have long recognized that pneumoconiosis can

take two forms: "clinical" pneumoconiosis and "legal" pneu-

moconiosis. See, e.g., Clinchfield Coal Co. v. Fuller, 180 F.3d

622, 625 (4th Cir. 1999); Hobbs v. Clinchfield Coal Co., 45

F.3d 819, 821 (4th Cir. 1995). In 2000, the United States

Department of Labor ("the Department") revised its regula-

tions to mirror this recognition of "legal" pneumoconiosis and

to clarify the difference between it and "clinical" pneumoco-

niosis. The amended regulations provide that clinical pneumo-

coniosis "consists of those diseases recognized by the medical

community as pneumoconioses, i.e., the conditions character-

ized by permanent deposition of substantial amounts of partic-

ulate matter in the lungs and the fibrotic reaction of the lung

tissue to that deposition caused by dust exposure in coal mine

4 HARMAN MINING CO. v. DIRECTOR, OWCP

employment." 20 C.F.R. § 718.201(a)(1). The amended regu-

lations define legal pneumoconiosis as referring to "any

chronic lung disease or impairment and its sequelae arising

out of coal mine employment." Id. § 718.201(a)(2).

As a part of its 2000 revision of its regulations, the Depart-

ment also expressly agreed with the courts that legal pneumo-

coniosis includes "any chronic restrictive or obstructive

pulmonary disease arising out of coal mine employment." Id.;

see also Warth v. S. Ohio Coal Co., 60 F.3d 173, 175 (4th Cir.

1995) (holding that chronic obstructive lung disease "is

encompassed within the definition of pneumoconiosis for pur-

poses of entitlement to Black Lung benefits"). Thus, the law

is clear that legal pneumoconiosis, compensable by black lung

benefits, encompasses "any chronic . . . obstructive pulmo-

nary disease" if the disease "aris[es] out of coal mine employ-

ment." 20 C.F.R. § 718.201(a)(2) (emphasis added). A disease

arises out of coal mine employment if it is "significantly

related to, or substantially aggravated by, dust exposure in

coal mine employment." Id. § 718.201(b); see also id.

§ 718.203(a) ("In order for a claimant to be found eligible for

benefits under the Act, it must be determined that the miner’s

pneumoconiosis arose at least in part out of coal mine

employment.").

B.

For nearly seventeen years, from 1969 to 1991, Gary

Looney worked in coal mines in Virginia. He spent the last

ten years of his coal mine employment working as a roof

bolter for Harman Mining Company ("Harman"), a job that

involved "moderate to heavy manual labor." Looney was also

a smoker, regularly smoking cigarettes for several decades.

He retired from coal mining in February 1991 and, two years

later, filed a claim for black lung benefits.1

1

In 2003, doctors diagnosed Looney with lung cancer and he died in

2010. Appellee’s Br. at 13.

HARMAN MINING CO. v. DIRECTOR, OWCP 5

Over the course of the next decade, Looney’s case came

before an administrative law judge ("ALJ") seven times. Each

time, an ALJ found that Looney was totally disabled due to

legal pneumoconiosis and awarded him black lung benefits,

payable by Harman. Each time, Harman appealed the award

to the Benefits Review Board ("Board"). In the first six

appeals, the Board found some aspect of the ALJ’s decision

to be deficient and remanded for further consideration. On the

seventh appeal, however, the Board affirmed the ALJ’s award

of benefits. Harman then moved the Board for reconsideration

en banc, which the Board denied on March 30, 2005.

Two months later, Harman filed a petition for modification

with the Department, asserting that the ALJ had made a mis-

take of fact in determining that Looney’s disability arose from

his employment as a coal miner. A week later, on May 27,

2005, Harman appealed the original order awarding Looney

black lung benefits to this court, and, on the same day, asked

us to stay its appeal of the benefits award pending resolution

of its petition for modification; we agreed to do so. On June

30, 2009, the ALJ denied the petition for modification; Har-

man appealed and, a few weeks later, the Board upheld that

denial. Harman then appealed the denial of his petition for

modification to this court. We removed Harman’s first appeal

from abeyance and consolidated it with this second appeal.

Thus, in these consolidated appeals, Harman challenges

two orders: the order awarding Looney black lung benefits

and the order denying Harman’s petition for modification.

The two orders involve the identical issue of whether

Looney’s chronic obstructive pulmonary disease ("COPD")

arose at least in part out of his employment as a coal miner,

as the ALJ found, or solely out of his cigarette smoking, as

Harman contends. The parties agree that Looney was totally

disabled by COPD and, in these appeals, Harman does not

challenge its responsibility for the payment of any black lung

benefits due to Looney. Thus, the only issue before us is the

cause of Looney’s COPD.

6 HARMAN MINING CO. v. DIRECTOR, OWCP

II.

In black lung cases, our review of the Board’s order is

"limited." Lewis Coal Co. v. Dir., O.W.C.P., 373 F.3d 570,

575 (4th Cir. 2004). We review the decision "to assess

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.

As in all agency cases, we must be careful not to substitute

our judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir. 1990) ("Ultimately, it is the duty of the

administrative law judge reviewing a case, and not the respon-

sibility of the courts, to make findings of fact and to resolve

conflicts in the evidence."). Because the ALJ is the trier of

fact, we "defer to the ALJ’s evaluation of the proper weight

to accord conflicting medical opinions." Stiltner v. Island

Creek Coal Co., 86 F.3d 337, 342 (4th Cir. 1996). As long as

substantial evidence supports an ALJ’s findings, "[w]e must

sustain the ALJ’s decision, even if we disagree with it." Smith

v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996). We review the

legal conclusions of the Board and the ALJ de novo. Island

Creek Coal Co. v. Compton, 211 F.3d 203, 208 (4th Cir.

2000).

Given this deferential standard of review, it is not surpris-

ing that Harman disavows any argument that the record fails

to offer substantial evidence supporting the ALJ’s findings of

fact. See, e.g., Appellant’s Reply Br. at 3 ("[T]his is not a sub-

stantial evidence appeal . . . ."); id. at 4 (arguing the appeal

raises only "questions of law"). Despite this express dis-

avowal, however, Harman intermittently does challenge the

ALJ’s factual findings. Accordingly, we first explain why our

review of the record confirms the wisdom of Harman’s stated

decision not to challenge the sufficiency of the evidence sup-

porting the ALJ’s findings supporting the award of benefits.

We then turn to the arguments on which Harman asserts it

rests its appeal.

HARMAN MINING CO. v. DIRECTOR, OWCP 7

III.

A.

In her exhaustive final opinion awarding benefits (ten

single-spaced pages), the ALJ "considered all of the medical

evidence" and concluded that Looney had "established by a

preponderance of the evidence" that he suffered from "legal

pneumoconiosis."

A number of doctors had offered opinions over the years as

to the extent and cause of Looney’s COPD. But in her final

opinion awarding benefits, the ALJ primarily considered the

opinions of Drs. J. Randolph Forehand, Emory Robinette,

Gregory Fino, and Richard Sargent. The ALJ weighed the

opinion of Dr. Forehand, which was supported by the opinion

of Dr. Robinette, that Looney’s COPD arose from his coal

mine employment against the opinions of Drs. Fino and Sar-

gent, who attributed Looney’s COPD solely to his smoking.

In the end, the ALJ found the "well-reasoned and supported

opinion of Dr. Forehand, as supported by the opinion of Dr.

Robinette," to be more persuasive. A short review of these

doctors’ evaluations demonstrates that the ALJ acted well

within her authority in "evaluat[ing] . . . the proper weight to

accord [the] conflicting medical opinions." Stiltner, 86 F.3d at

342.

In addition to physically examining Looney, Dr. Forehand

conducted a battery of diagnostic tests. These included a chest

x-ray that revealed "interstitial scarring," a vent study that

showed an "obstructive ventilatory pattern," and arterial blood

gas testing that demonstrated "hypoxemia at rest and with

exercise." Based on the results from these tests, the physical

examination, and Looney’s reported occupational and smok-

ing histories, Dr. Forehand concluded that Looney suffered

from chronic obstructive pulmonary disease that arose from

"a combination" of exposure to coal dust and smoking, and so

8 HARMAN MINING CO. v. DIRECTOR, OWCP

opined that Looney suffered from legal pneumoconiosis.2 The

ALJ did not err in giving determinative weight to Dr. Fore-

hand’s opinion because, despite its brevity, the ALJ found

that the totality of the report indicated that it was "well-

reasoned." See Compton, 211 F.3d at 212 ("An ALJ may

choose to discredit an opinion that lacks a thorough explana-

tion, but is not legally compelled to do so."); see also Wolf

Creek Collieries v. Dir., O.W.C.P., 298 F.3d 511, 522 (6th

Cir. 2002) ("[T]he ALJ as factfinder should decide whether a

physician’s report is sufficiently reasoned because such a

determination is essentially a credibility matter." (internal

quotation marks omitted)).

The ALJ also noted that Dr. Robinette’s opinion supported

Dr. Forehand’s conclusion that Looney suffered from legal

pneumoconiosis. Dr. Robinette, like Dr. Forehand, performed

a physical examination of Looney. Dr. Robinette based his

opinion on this examination and the results of x-ray, pulmo-

nary function, and arterial blood gas testing. According to Dr.

Robinette, these tests revealed that Looney’s lungs were "ex-

panded with evidence of mild interstitial pulmonary fibrosis"

and his pulmonary function was "compatible with moderate

obstructive lung disease." Dr. Robinette diagnosed Looney’s

COPD as "probably" caused by "a combination of asthma,

obstructive lung disease and coal workers’ pneumoconiosis."

2

Although, as noted above, Harman specifically eschews any challenge

to the evidentiary support for the award of benefits to Looney, it repeat-

edly criticizes Dr. Forehand for relying on a "minimized smoking habit"

and an "inflated work history." See, e.g., Appellant’s Br. at 7, 31, 32. The

record presents a less dramatic picture. First, the evidence as to the inten-

sity of Looney’s smoking varied from one-quarter pack per day up to two

packs per day. Moreover, Looney reported to different doctors that he

began smoking as early as 1968, or as late as approximately 1980. And

although Dr. Forehand did report that Looney had worked in the mines for

21 years while the ALJ found that he had worked for almost 17, this rela-

tively insignificant difference is not the "sort of unacceptable factual

assumption that would compel rejection of [Dr. Forehand’s] ultimate con-

clusion." See Stiltner, 86 F.3d at 342.

HARMAN MINING CO. v. DIRECTOR, OWCP 9

The ALJ recognized that Dr. Robinette’s opinion was "not

sufficiently unequivocal" to "stand[ ] on its own," but pro-

vided support for Dr. Forehand’s opinion, on which she relied

"most heavily."

In awarding Looney benefits, the ALJ rejected both Dr.

Fino’s and Dr. Sargent’s opinions. At Harman’s request, Dr.

Fino prepared a 1994 report, without an examination of

Looney, which concluded on the basis of Looney’s medical

records that cigarette smoking alone caused Looney’s COPD.

Dr. Fino based this conclusion, in part, on his opinion that

legal pneumoconiosis "cannot" cause obstructive pulmonary

disease. The ALJ found this view hostile to the Act; she cer-

tainly did not err in doing so. Rather, courts have long recog-

nized what the 2000 regulations codified—that legal

pneumoconiosis includes obstructive lung disease, see, e.g.,

Warth, 60 F.3d at 175, and a robust body of case law holds

that an ALJ should not credit expert opinions of doctors who

rely on facts or premises that conflict with the Act, see, e.g.,

Stiltner, 86 F.3d at 340-41; Warth, 60 F.3d at 174-75; Thorn

v. Itmann Coal Co., 3 F.3d 713, 719 (4th Cir. 1993).

The ALJ also found Dr. Sargent’s opinion unpersuasive, in

part because the ALJ found that he improperly believed "that

pneumoconiosis cannot cause disability in the absence of a

positive x-ray." The Department’s regulations reject this view.

See 20 C.F.R. § 718.202(b) ("No claim for benefits shall be

denied solely on the basis of a negative chest X-ray.").

Accordingly, the ALJ did not err in finding Dr. Sargent’s

opinion unpersuasive.

B.

The ALJ issued an even more exhaustive opinion denying

Harman’s petition for modification (nineteen single-spaced

pages). After carefully considering the evidence, "both old

and new," that Harman offered in support of its petition, the

ALJ denied the petition. She found that Harman had "not met

10 HARMAN MINING CO. v. DIRECTOR, OWCP

its burden to show that there was a mistake of fact in [the]

previous determination that [Looney] has a totally disabling

obstructive impairment as a result of his exposure to coal

mine dust."

To reach this conclusion, the ALJ painstakingly evaluated

the testimony that Harman offered in urging modification

including, most relevant to this appeal, a second opinion from

Dr. Fino and an opinion from Dr. Kirk Hippensteel. Both doc-

tors disagreed with Dr. Forehand’s conclusion that Looney

suffered from legal pneumoconiosis.

With regard to Dr. Fino, the ALJ acknowledged that in his

most recent testimony, Dr. Fino had "revised his opinions

since his earlier report." As Dr. Fino put it, "in 1994, my opin-

ions were a fair amount different than they are now." He now

accepted what the 2000 regulations expressly stated—that

legal pneumoconiosis can cause obstructive pulmonary dis-

ease. Despite this reversal, however, Dr. Fino reiterated his

opinion that in Looney’s "particular case, . . . coal mine dust

was not a clinically significant contributing factor in this

man’s obstruction." Dr. Fino continued to diagnose Looney’s

obstructive pulmonary disease as caused entirely by cigarette

smoking. Dr. Fino’s professed conversion was not sufficient

to persuade the ALJ to credit his opinion. Instead, the ALJ

awarded Dr. Fino’s testimony little weight, offering several

reasons for her decision.

First, the ALJ found that Dr. Fino relied heavily on general

statistics rather than particularized facts about Looney. The

record, including the transcript of Dr. Fino’s 2009 deposition,

certainly offers substantial support for this finding. For

instance, when Dr. Fino was asked "to point to specific fac-

tors" in Looney’s case that allowed him "to distinguish the

effects of [Looney’s] cigarette smoking from those of coal

mine dust," Dr. Fino "relied on statistics" to answer. Dr.

Fino’s discussion of "average" loss of FEV1 (forced expir-

atory volume in one second) in coal miners apparently did not

HARMAN MINING CO. v. DIRECTOR, OWCP 11

engender the ALJ’s confidence that Dr. Fino had provided an

individualized determination that Looney’s COPD was not

caused by coal dust.

Additionally, the ALJ found that Dr. Fino’s opinion relied

on his view that the "amount of obstruction caused by coal

dust inhalation is directly related to the amount of coal mine

dust inhaled and retained within the lung tissue." Because

Looney’s "x-ray, CT scan, and pathological evidence . . .

showed clinically insignificant coal dust retention in

[Looney’s] lungs, [Dr. Fino] concluded that coal mine dust

was not a clinically significant factor in [Looney’s] obstruc-

tion." But, as the ALJ noted less than a page earlier in her

opinion denying modification, Dr. Fino was not provided with

Looney’s most recent 2008 CT scans or x-ray, both of which

one of the experts read as "positive for pneumoconiosis."

Moreover, the ALJ found that Dr. Fino’s opinion indicated

that he believed that "coal dust induced obstructive lung dis-

ease is insignificant where the miner does not suffer from

clinically significant pneumoconiosis, i.e., pneumoconiosis

[discernible] by chest x-ray, CT scan, or pathology." The

record provides substantial evidence to support the ALJ’s

finding that this was Dr. Fino’s opinion. This opinion, how-

ever, finds no support in the Department’s regulations, which

separate clinical and legal pneumoconiosis into two different

diagnoses, see 20 C.F.R. § 718.201(a)(1)-(2), and provide that

"[n]o claim for benefits shall be denied solely on the basis of

a negative chest X-ray," id. § 718.202(b). Moreover, this view

conflicts with the recognition in the preamble to the 2000 reg-

ulations that coal dust can induce obstructive pulmonary dis-

ease independent of clinically significant pneumoconiosis.

See 65 Fed. Reg. 79,938-79,940 (Dec. 20, 2000)). The ALJ

found this conflict to "compromise[ ]" the "probative value of

Dr. Fino’s report."

Harman vehemently objects to the ALJ’s brief invocation

of the preamble to the regulations. We address below Har-

12 HARMAN MINING CO. v. DIRECTOR, OWCP

man’s legal arguments on that subject. For now, it suffices to

note that substantial evidence in the record clearly supports

the ALJ’s findings as to the content of Dr. Fino’s testimony.

Moreover, even if we were to agree with Harman that the

ALJ’s invocation of the preamble in discrediting Dr. Fino’s

opinion was improper (which we do not), any such error

would likely be harmless because the ALJ provided the inde-

pendent reasons outlined above for dismissing Dr. Fino’s

opinion. See Compton, 211 F.3d at 213 n.13 (declining to

reach the employer’s other arguments that the ALJ erred in

discrediting doctors’ opinions "in light of [the reviewing

court’s] conclusion that there was a sufficient factual basis to

support one reason for discrediting each opinion").

Finally, in denying Harman’s petition for modification, the

ALJ also examined the testimony of Dr. Hippensteel. Like Dr.

Fino, Dr. Hippensteel disagreed with Dr. Forehand’s conclu-

sion and opined that cigarette smoking alone had caused

Looney’s obstructive pulmonary disease. The ALJ found that

Dr. Hippensteel’s opinion did not merit significant weight

because he relied heavily on the pathology reports of Dr.

Richard L. Naeye, which the ALJ found to be of "very lim-

ited, if any, use." The ALJ explained that Dr. Naeye’s reports

were "confusing," based on only a "fraction" of the available

tissue samples from Looney’s lungs, addressed only the issue

of whether Looney’s lung tissue showed evidence of clinical

rather than legal pneumoconiosis, and did not explain why

Looney’s obstructive pulmonary disease was attributable to

smoking, rather than exposure to coal dust. In addition, the

ALJ noted that it was unclear whether Dr. Naeye reviewed the

2008 x-ray or chest CT scan readings, which showed lesions

of pneumoconiosis, in coming to his conclusions. By relying

so heavily on Dr. Naeye’s reports, the ALJ found that Dr.

Hippensteel compromised the reliability of his own conclu-

sions.

Moreover, the ALJ found Dr. Hippensteel’s opinions suf-

fered from some of the same flaws as Dr. Naeye’s reports.

HARMAN MINING CO. v. DIRECTOR, OWCP 13

Like Dr. Naeye’s reports, the ALJ found Dr. Hippensteel’s

opinions to be "clearly focused on the existence of clinical,

and not legal pneumoconiosis, and thus, . . . simply not rele-

vant" to whether Looney suffered from legal pneumoconiosis.

Furthermore, although Dr. Hippensteel made the "summary

statement" that the microscopic data showed that Looney’s

obstructive disease was caused by cigarette smoking, he failed

to explain how his findings supported that conclusion or how

the data showed that Looney’s obstructive disease "was not

due at least in part to his coal dust exposure."

Thus, after considering with care all of the evidence Har-

man submitted in support of its petition for modification and

weighing the doctors’ conflicting opinions, the ALJ denied

the petition, concluding that Harman was "not entitled to

modification." Substantial evidence supports that finding, just

as it did the ALJ’s earlier finding that Looney had established

by a preponderance of the evidence his entitlement to bene-

fits.

The above summary of the ALJ’s rationale demonstrates

the sufficiency of the evidence—particularly given, as noted

above, that Harman disavows any such challenge.

IV.

Accordingly, we turn to the arguments that Harman claims

require reversal. Harman contends that in awarding black lung

benefits to Looney, the ALJ and the Board violated the

Administrative Procedure Act ("APA"). Its arguments uni-

formly fail.

A.

Primarily, Harman objects to the ALJ’s and the Board’s

invocation of the preamble to the 2000 regulations, spilling

much ink in its briefs on why this reference violates the APA.

14 HARMAN MINING CO. v. DIRECTOR, OWCP

We note at the outset that Harman exaggerates the reliance

on the preamble. Despite the number of written opinions and

doctors involved in Looney’s case, and the length and thor-

oughness of the numerous administrative opinions, the refer-

ence to the preamble was very limited. Thus, although a

casual reader of Harman’s briefs might assume that the ALJ

rested her entire rationale on the preamble, this is simply not

the case. Actually, the ALJ did not at all rely on the preamble

when awarding Looney black lung benefits, but only referred

to it in her opinion rejecting Harman’s petition for modifica-

tion, a reference the Board subsequently upheld as "permis-

sibl[e]."

More importantly, Harman’s attack on the limited invoca-

tion of the preamble is unjustified.3 The amended regulations

provide that clinical pneumoconiosis and legal pneumoconio-

sis are different diagnoses, and that legal pneumoconiosis

includes chronic obstructive pulmonary disease. 20 C.F.R.

§ 718.201(a)(1)-(2). The preamble to the regulations simply

sets forth the medical and scientific premises relied on by the

Department in coming to these conclusions in its regulations.

Harman itself characterizes the preamble in the same way. See

Appellant’s Br. at 16 (characterizing the preamble as "de-

scribing some of the research done concerning the effects of

pneumoconiosis and cigarette smoking"). Yet Harman con-

tends that the ALJ violated the APA by finding Dr. Fino’s

opinion to be less credible because his views conflicted with

the Department’s position set forth in the preamble that legal

pneumoconiosis, in the form of obstructive pulmonary dis-

ease, can exist independently of clinical pneumoconiosis. We

can find no support for this argument. Although the ALJ did

3

Notably, Harman does not dispute the substance of the Department’s

positions in the preamble. Cf. Midland Coal Co. v. Dir., O.W.C.P., 358

F.3d 486, 490 (7th Cir. 2004) (noting that the court would "credit the posi-

tion adopted in benefits proceedings by the Department of Labor" on a

question of scientific fact "unless the mine operators produced the type

and quality of medical evidence that would invalidate a regulation").

HARMAN MINING CO. v. DIRECTOR, OWCP 15

not need to look to the preamble in assessing the credibility

of Dr. Fino’s views, we conclude that the ALJ was entitled to

do so and the Board did not err in affirming her opinion.4

We note that the only other circuits to address the question

have upheld an ALJ’s invocation of the same preamble. See

Helen Mining Co. v. Dir., O.W.C.P., 650 F.3d 248, 256 (3d

Cir. 2011) (noting that "[t]he ALJ gave less weight" to the

opinions of an employer’s expert because it was "inconsistent

with 20 C.F.R. § 718.202(a)(1)-(4) and with the preamble to

the regulations"); Consolidation Coal Co. v. Dir., O.W.C.P.,

521 F.3d 723, 726 (7th Cir. 2008) (describing as "sensible"

the ALJ’s decision to give little weight to the opinion of

employer’s expert because, in part, it conflicted with the pre-

amble’s statements on the clinical significance of coal dust-

induced COPD). Tellingly, Harman does not contend that

these courts erred. Rather Harman attempts to distinguish

these cases, asserting that they do not "condone what the ALJ

did in this case." Appellant’s Br. at 23. In fact, both cases

"condone" precisely the same sort of use of the preamble.

The Third Circuit rejected an employer’s argument, very

similar to Harman’s, that the ALJ improperly relied on the

preamble to discredit the opinion of the employer’s expert

because the preamble "lacks the force of law and cannot pro-

vide a legal basis to give an opinion less weight." Helen Min-

ing, 650 F.3d at 256. The court found that the ALJ reasonably

concluded that the expert’s views were at odds with the gov-

4

Harman points to our opinion in Home Concrete & Supply, LLC v.

United States, 634 F.3d 249 (4th Cir. 2011), aff’d, ___ S. Ct. ___, No. 11-

139, 2012 WL 1413964 (April 25, 2012), as supporting its position. That

case provides a clear example of a regulatory preamble on which any reli-

ance would be problematic. For there we concluded that the preamble con-

tradicted the plain statutory language. Id. at 256-57. For this reason, we

properly refused to defer to the IRS’s interpretation of the statute con-

tained in the preamble. By contrast, here, the preamble is entirely consis-

tent with the Act and its regulations and simply explains the scientific and

medical basis for the regulations.

16 HARMAN MINING CO. v. DIRECTOR, OWCP

erning regulations and that the ALJ’s reference to the pream-

ble offered "unquestionabl[e] support[ ]" for this conclusion.

Id. at 257.

The Seventh Circuit "condoned" an ALJ’s even more

robust reliance on the preamble. There, as here, the ALJ dis-

missed the opinion of an employer’s doctor that smoking

alone caused a particular miner’s obstructive lung disease

because, in the doctor’s view, "miners rarely have clinically

significant obstruction from coal dust." Consolidated Coal

Co., 521 F.3d at 726. Relying on the preamble, the Seventh

Circuit rejected the employer’s argument that the ALJ had

erred in doing so. The court explained that the ALJ had "sen-

sibl[y]" dismissed the doctor’s opinion, in part, because in the

preamble "the Department of Labor reviewed the medical lit-

erature on this issue and found that there is consensus among

scientists and researchers that coal dust-induced COPD is

clinically significant." Id.

Perhaps in an attempt to circumvent these cases, Harman

manufactures a legal claim based on the APA—that the ALJ’s

and the Board’s invocation of the preamble violates the

APA’s rulemaking requirements because the preamble was

not subjected to notice-and-comment rulemaking. This argu-

ment also fails. The ALJ cited the preamble not to imbue it

with the force of law or to transform it into a legislative rule,

but simply as a source of explanation as to the Department’s

rationale in amending the regulations. Cf. Wy. Outdoor Coun-

cil v. U.S. Forest Srvc., 165 F.3d 43, 53 (D.C. Cir. 1999)

("Although the preamble does not ‘control’ the meaning of

the regulation, it may serve as a source of evidence concern-

ing contemporaneous agency intent."). Because the ALJ

found Dr. Fino’s views conflicted with that rationale, it was

well within her discretion to find his opinion less persuasive.

So too the Board did not err in concluding that the ALJ "per-

missibly" referenced the preamble in making her credibility

determination about Dr. Fino’s opinion.

HARMAN MINING CO. v. DIRECTOR, OWCP 17

B.

Next, Harman maintains that the ALJ’s invocation of the

preamble violates the APA because the preamble was not

placed in the administrative record. This argument too is

meritless. The APA does provide that "[t]he transcript of testi-

mony and exhibits, together with all papers and requests filed

in the proceeding, constitutes the exclusive record for deci-

sion." 5 U.S.C. § 556(e). But the APA does not provide that

public law documents, like the Act, the regulations, and the

preamble, need be made part of the administrative record.

Harman cites no authority supporting its contrary view and

we have found none.

C.

Finally, Harman contends that the ALJ’s weighing of the

evidence violated the APA’s requirement that agency deci-

sions must include a statement of "findings and conclusions,

and the reasons for bases therefor, on all material issues of

fact, law, or discretion presented on the record." 5 U.S.C.

§ 557(c)(3)(A). But even Harman recognizes that the APA

does not impose a "duty of long-windedness" on an ALJ.

Appellant’s Br. at 29 (citing Lane Hollow Coal Co. v. Dir.,

O.W.C.P., 137 F.3d 799, 803 (4th Cir. 1998)); see also Piney

Mountain Coal Co., 176 F.3d at 762 n.10 (noting that the

APA does not require "administrative verbosity or pedantry").

To the contrary, "[i]f a reviewing court can discern what the

ALJ did and why [s]he did it, the duty of explanation [under

the APA] is satisfied." Piney Mountain Coal Co., 176 F.3d at

762 n.10 (internal quotation marks omitted).

As our discussion of the substantial evidence underlying

the ALJ’s opinions makes clear, these opinions leave no ques-

tion as to why the ALJ found the views of Drs. Forehand and

Robinette more persuasive than those of Drs. Fino, Sargent,

and Hippensteel. Harman may disagree with the ALJ’s rea-

sons, but it cannot successfully argue that the ALJ failed to

18 HARMAN MINING CO. v. DIRECTOR, OWCP

explain those reasons or that those reasons were impermissi-

ble.

V.

Ultimately, the record compels us to uphold the award of

black lung benefits in this case. Harman repeatedly contends

that the ALJ’s reliance on the opinions of Drs. Forehand and

Robinette, over those of Drs. Fino, Sargent, and Hippensteel,

reflects its application of an "irrebutable presumption" that all

obstructive lung disease constitutes legal pneumoconiosis.

Appellant’s Br. at 17, 18, 31; Appellant’s Reply Br. at 5-6.

That dramatic overstatement is simply wrong. As explained

within, the record here contains conflicting medical opinions

as to whether Looney suffered from legal pneumoconiosis.

The ALJ’s role, as fact-finder, was to resolve such conflicts.

Consolidation Coal Co. v. Borda, 171 F.3d 175, 185 (4th Cir.

1999). This is precisely what the ALJ did—she conscien-

tiously (and repeatedly) weighed the expert opinions and

resolved the conflicts in favor of Looney. Even if we might

have weighed the evidence at issue differently than the ALJ,

on review, we defer to her evaluation of the appropriate

weight to accord these conflicting medical opinions.

PETITION FOR REVIEW DENIED