Cumberland River Coal Company v. Billie Banks

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0253p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Petitioner, -

CUMBERLAND RIVER COAL COMPANY,

-

v. -

-

No. 11-3500

,

>

-

BILLIE BANKS; DIRECTOR, OFFICE OF

-

WORKERS’ COMPENSATION PROGRAMS,

Respondents. --

UNITED STATES DEPARTMENT OF LABOR,

-

N

On Petition for Review of an Order

of the Benefits Review Board.

No. 10-0410 BLA.

Decided and Filed: August 8, 2012

Before: SILER and WHITE, Circuit Judges; REEVES, District Judge.*

_________________

COUNSEL

ON BRIEF: Ronald E. Gilbertson, HUSCH BLACKWELL LLP, Washington, D.C., for

Petitioner. Joseph E. Wolfe, Ryan C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD

& REYNOLDS, Norton, Virginia, Emily Goldberg-Kraft, Sean G. Bajkowski, UNITED

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

_________________

OPINION

_________________

DANNY C. REEVES, District Judge. This case arises from a series of petitions

for benefits under the federal Black Lung Benefits Act. After two unsuccessful attempts,

Appellee Billie Banks filed a claim for benefits in 2003, presenting new evidence of

pneumoconiosis. An administrative law judge (ALJ) found that Banks had established

*

The Honorable Danny C. Reeves, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 2

a change in his condition and that he suffered from legal pneumoconiosis which

substantially contributed to his total disability. Banks was awarded benefits and the

Benefits Review Board affirmed. Cumberland River Coal Company appeals this

determination, arguing that Banks failed to establish a change in his condition under

20 C.F.R. § 725.309(d). Additionally, it argues that Banks failed to establish that he

suffers from pneumoconiosis or that he is disabled due to this impairment. Having

reviewed the record of this proceeding, we will affirm the judgment of the Benefits

Review Board. In reaching this decision, we adopt the regulatory interpretation urged

by the Director of the Office of Workers’ Compensation Programs.

I.

Billie Banks worked as a coal miner for seventeen years. He was employed by

Cumberland River Coal Company (Cumberland) in 1991 when he ended his coal mine

employment. Banks smoked cigarettes most of his life: roughly one pack a day for

thirty-eight years, followed by one half-pack a day from 2004 through 2007. Banks filed

his first claim for black lung benefits on February 3, 1992. The claim was ultimately

denied in 1996 by ALJ Richard L. Malamphy, who concluded that Banks’s respiratory

disease was due to his history of smoking, rather than his employment as a coal miner.

Banks filed a second claim for benefits on January 5, 2000. That claim was denied by

the district director in May 2002, and Banks did not request a hearing before an ALJ.

Banks filed his third claim on July 11, 2003. In support, he presented medical

evidence from Dr. Forehand and Dr. Rasmussen, both of whom diagnosed

pneumoconiosis by x-ray. Conversely, Cumberland’s expert, Dr. Jarboe, stated that

Banks’s disability was due solely to smoking. Following an administrative hearing, ALJ

Thomas F. Phalen, Jr., entered an order awarding benefits. However, the Benefits

Review Board (the Board) vacated the award and remanded the claim for

reconsideration.1

1

Specifically, the Board took issue with ALJ Phalen’s finding that Banks “established a change

in an applicable condition of entitlement pursuant to Section 725.309(d), based on new evidence of total

respiratory disability,” because the prior denial was actually based on the conclusion that Banks had failed

to establish the existence of pneumoconiosis. The Board also vacated the ALJ’s finding that “the existence

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 3

On March 5, 2010, ALJ Larry Merck awarded benefits.2 He found that Banks

had established a change in one of the applicable conditions of entitlement since his last

claim because the new evidence established the existence of legal pneumoconiosis. And

after weighing all of the evidence in the record, ALJ Merck concluded that Banks had

established legal pneumoconiosis. Finally, the ALJ found that Banks had established

total disability due to his legal pneumoconiosis.

Cumberland appealed the decision to the Board, arguing that ALJ Merck failed

to compare the evidence in the prior, rejected claim to the new evidence when

determining whether there was a change in condition. The Board rejected this argument

based on the plain language of the current version of the regulation governing

subsequent claims, which provides that a claimant must “show that one of the applicable

conditions of entitlement has changed . . . by submitting new evidence.” 20 C.F.R.

§ 725.309(d). It concluded that the amendment of this section marked a departure from

the previous test for establishing a change in condition, so that an ALJ no longer needed

to compare the new evidence to the evidence in the record. Turning to the merits, the

Board determined that ALJ Merck had properly weighed the opinion evidence before

him. And while it agreed with Cumberland that ALJ Merck should not have considered

a medical report from 2001 because it was written before Banks’s second claim was

denied, it found the error to be harmless. Thus, the Board affirmed the award of

benefits.

II.

The Black Lung Benefits Act (the Act) provides benefits to coal miners who

become disabled due to pneumoconiosis. 30 U.S.C. § 901. Pneumoconiosis is 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. It is caused by

the “long-term inhalation of coal dust” associated with work in coal mines. Gray v. SLC

of pneumoconiosis was established by x-ray and medical opinion evidence.”

2

The case was assigned to ALJ Merck on remand due to Judge Phalen’s retirement.

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 4

Coal Co., 176 F.3d 382, 386 (6th Cir. 1999). It is “latent and progressive,” and thus

“may first become detectable only after the cessation of coal mine dust exposure.”

20 C.F.R. § 718.201(c). The Act directs the Department of Labor (the Department) to

“make payments of benefits in respect of total disability of any miner due to

pneumoconiosis.” 30 U.S.C. § 921(a). To that end, it authorizes the Department to

promulgate regulations to “prescribe standards for determining . . . whether a miner is

totally disabled due to pneumoconiosis.” 30 U.S.C. § 921(b); see also 30 U.S.C.

§ 923(a) (providing that claims be filed “in such manner, in such form, and containing

such information, as the Secretary [of Labor] shall by regulation prescribe”).

To prove entitlement to benefits under the Act, a miner must file a claim proving

that: (1) he suffers from pneumoconiosis; (2) the pneumoconiosis “arose out of coal

mine employment”; (3) he is totally disabled; and (4) the pneumoconiosis contributes

to his total disability. 20 C.F.R. § 725.202(d)(2). The first prong may be met by

establishing that the miner suffers from either “clinical” or “legal” pneumoconiosis.

“Clinical pneumoconiosis” is defined as a condition “characterized by permanent

deposition of substantial amounts of particulate matter in the lungs and the fibrotic

reaction of the lung tissue to that deposition caused by dust exposure in coal mine

employment.” 20 C.F.R. § 718.201(a)(1). It is typically diagnosed using x-ray

evidence. See Eastover Mining Co. v. Williams, 338 F.3d 501, 509 (6th Cir. 2003)

(describing clinical pneumoconiosis as a “lung disease caused by fibrotic reaction of the

lung tissue to inhaled dust that is generally visible on chest x-ray films”). “Legal

pneumoconiosis,” on the other hand, includes “any chronic restrictive or obstructive

pulmonary disease arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2).

Thus, legal pneumoconiosis “‘encompasses a wider range of afflictions than does the

more restrictive medical definition of pneumoconiosis.’” Cornett v. Benham Coal, Inc.,

227 F.3d 569, 575 (6th Cir. 2000) (quoting Kline v. Director, OWCP, 877 F.2d 1175,

1178 (3d Cir. 1989)).

Due to the “latent and progressive” nature of pneumoconiosis, a miner is

permitted to file a subsequent claim even after the entry of a final order denying a

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 5

previously filed claim. 20 C.F.R. § 725.309. A miner filing a subsequent claim does not

start from scratch, however. A subsequent claim must be denied unless the miner

“demonstrates that one of the applicable conditions of entitlement . . . has changed since

the date upon which the order denying the prior claim became final.” 20 C.F.R.

§ 725.309(d). If the miner seeks to prove that his physical condition has changed, he

must submit “new evidence” to that effect. 20 C.F.R. § 725.309(d)(3). Once the miner

establishes a change in condition through the newly submitted evidence, the ALJ must

consider all the evidence in the record — old and new — to determine whether the

claimant is entitled to benefits. 20 C.F.R. § 725.309(d)(4). A miner who succeeds on

a subsequent claim cannot recover benefits for the period prior to any previous denial.

20 C.F.R. § 725.309(d)(5).

III.

This court has a “limited scope of review over the decisions of the Benefits

Review Board and the ALJ.” Saginaw Mining Co. v. Ferda, 879 F.2d 198, 205 (6th Cir.

1989). Our “task ‘is limited to correcting errors of law and ensuring that the Board

adhered to the substantial evidence standard in its review of the ALJ’s factual findings.’”

Crockett Colleries, Inc. v. Barrett, 478 F.3d 350, 352 (6th Cir. 2007) (quoting Creek

Coal Co. v. Bates, 134 F.3d 734, 737 (6th Cir.1997)). “Substantial evidence is defined

as relevant evidence that a reasonable mind might accept as adequate to support a

conclusion.” Martin v. Ligon Preparation Co., 400 F.3d 302, 305 (6th Cir. 2005) (citing

Peabody Coal Co. v. Groves, 277 F.3d 829, 833 (6th Cir. 2002)). A decision that

“rest[s] within the realm of rationality” is supported by substantial evidence. Morrison

v. Tenn. Consol. Coal Co., 644 F.3d 473, 478 (6th Cir. 2011) (internal quotation marks

omitted). “We should not re-weigh the evidence or substitute our judgment for that of

the ALJ.” Gray v. SLC Coal Co., 176 F.3d 382, 387 (6th Cir. 1999).

“Change in Condition” Under 20 C.F.R. § 725.309(d)

Cumberland argues that the ALJ erred in finding that Banks had established a

change in his condition. It asserts that ALJ Merck improperly applied the amended

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 6

version of 20 C.F.R. § 725.309(d) because he did not compare the old and new evidence

to determine whether Banks’s condition had changed since his last claim was denied.

The federal appellee, the Director of the Office of Workers’ Compensation Programs

(the Director), contests this proposed interpretation of the regulation. He urges the court

not to graft the Sixth Circuit’s old test — which required the ALJ to evaluate the full

record to determine whether the new evidence differs qualitatively from the old evidence

— onto the new version of 20 C.F.R. § 725.309(d). Thus, both the Director and Banks

assert that ALJ Merck properly applied the regulation when he evaluated only the new

evidence to find that Banks’s physical condition had changed.

Cumberland also disputes the ALJ’s findings regarding the existence of legal

pneumoconiosis and the contribution of that condition to Banks’s total disability. It

asserts that these findings must be reversed because the ALJ “failed to provide a valid

basis for weighing the conflicting evidence.” Banks, on the other hand, contends that

the ALJ’s findings are supported by substantial evidence and should be upheld.

ALJ Merck found that Banks “established legal pneumoconiosis by a

preponderance of the newly-submitted medical report evidence.” Because Banks

established “a condition of entitlement previously adjudicated against him,” the ALJ

concluded that there was a “change in [an] applicable condition of entitlement.” The

Board affirmed, rejecting Cumberland River’s “contention that the administrative law

judge was required to conduct a comparison of the old and new evidence.”

The current version of 20 C.F.R. § 725.309(d) became effective on January 19,

2001. It provides:

If a claimant files a claim under this part more than one year after the

effective date of a final order denying a claim previously filed by the

claimant under this part, the later claim shall be considered a subsequent

claim for benefits. A subsequent claim . . . shall be denied unless the

claimant demonstrates that one of the applicable conditions of

entitlement (see §§ 725.202(d) (miner), 725.212 (spouse), 725.218

(child), and 725.222 (parent, brother, or sister)) has changed since the

date upon which the order denying the prior claim became final.

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 7

20 C.F.R. § 725.309(d) (2012) (full citations omitted). The previous version of this

section required that a subsequent claim be denied unless “there has been a material

change in conditions.” 20 C.F.R. § 725.309(d) (1999) (emphasis added).

According to the Department, the original regulation was intended to create a

“one-element test,” under which a miner could demonstrate a change in condition by

submitting new evidence to prove the existence of a single element of entitlement

decided against him in the earlier, unsuccessful claim.3 In Sharondale Corp. v. Ross,

42 F.3d 993 (6th Cir. 1994), this court adopted the one-element test advocated by the

Department. Id. at 997-98. The court found that “to assess whether a material change

is established, the ALJ must consider all of the new evidence, favorable and unfavorable,

and determine whether the miner has proven at least one of the elements of entitlement

previously adjudicated against him.” Id. at 997.

However, the Sharondale court departed from the agency’s interpretation when

it found that the ALJ erred when he failed to discuss “how the later [medical records]

differ[ed] qualitatively from those submitted” earlier. Id at 999 (emphasis added). In

remanding the claim on this ground, the court adopted an intrinsically more stringent test

than that advocated by the Department. Applying this modified one-element test in

Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001), the court

explained that an ALJ examining a miner’s subsequent claim may only find a material

change “if the new evidence both establishes the element and is substantially more

supportive” of the miner’s position. Id. at 609. The court held that to establish a

material change in physical condition, the new evidence presented must have the

“capability of converting an issue determined against the claimant into one determined

in his favor.” Id. at 609 n.6. Thus, under the Sixth Circuit’s version of the one-element

test, an ALJ was required to “compare the sum of the new evidence with the sum of the

3

Some courts rejected this interpretation and held that “to bring a duplicate claim, a claimant must

prove for each element that actually was decided adversely to the claimant in the prior denial that there

has been a material change in that condition since the prior claim was denied.” Wyoming Fuel Co. v.

Director, OWCP, 90 F.3d 1502, 1511 (10th Cir. 1996) (emphasis added). The new version of 20 C.F.R.

§ 725.309(d) expressly overruled this interpretation. 65 Fed. Reg. 79920, 79968 (Dec. 20, 2000)

(explaining that the revision was intended to codify the one-element test advocated by the Department);

see Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1223 (10th Cir. 2009).

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 8

earlier evidence on which the denial of the claim had been premised” to find the

existence of a material change in a miner’s condition. Id. at 609.

The Fourth Circuit disagreed with this interpretation of 20 C.F.R. § 725.309(d)

in Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996), stating that it did

not “endorse . . . the closing paragraph of Sharondale Corp., where, after adopting the

Director’s standard, the Sixth Circuit seems to have required consideration of the

evidence behind the earlier denial to determine whether it ‘differ[s] qualitatively’ from

the new evidence.” Id. at 1363 n.11 (quoting Sharondale, 42 F.3d at 999). Instead, the

Fourth Circuit “adopted a standard that presumed that the factual determinations

underlying a prior denial are correct and simply required the miner to disprove the

‘continuing validity’ of at least one of the elements previously adjudicated against him

in showing a material change in conditions.” Consolidation Coal Co. v. Williams,

453 F.3d 609, 616 (4th Cir. 2006) (quoting Lisa Lee Mines, 86 F.3d at 1363).

Other circuits have joined Lisa Lee Mines in rejecting this court’s addition to the

one-element test. See, e.g., U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 988

n.12 (11th Cir. 2004); Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 n.7 (8th Cir. 1997).

Moreover, questions have been raised within this circuit regarding the Sharondale test’s

propriety:

It strikes me as rather schizophrenic of us in Sharondale to painstakingly

analyze and weigh the competing “material change” interpretations,

choose the Director’s test, and then immediately afterwards, depart from

the test that we have chosen to adopt. Because of this, I believe that the

interpretation of Sharondale that the majority endorses is wrong.

Furthermore, despite the fact that the ambiguous language of Sharondale

leaves the meaning of the last paragraph open to multiple interpretations,

the rest of the decision does acknowledge the principle that it is

inappropriate to compare the evidence in a new claim with the evidence

submitted in connection with a previously denied claim in assessing

whether a “material change” has been established.

Grundy Mining Co. v. Flynn, 353 F.3d 467, 490 (6th Cir. 2003) (Moore, J., concurring).

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 9

The regulation was amended in 2000. Among other changes, the Department

removed the modifier “material,” so that now a claimant must only demonstrate a change

in condition. See 20 C.F.R. § 725.309(d). The Department addressed the alteration in

the preamble to the amended regulations, explaining that the section created “a threshold

test which allowed the miner to litigate his entitlement to benefits without regard to any

previous findings by producing new evidence that established any of the elements of

entitlement previously resolved against him.” 65 Fed. Reg. at 79,968. Further, the

Department explicitly stated that the regulation was intended to codify the one-element

test as articulated in Lisa Lee Mines. Id.

Cumberland asserts that it “does not take any issue with the ‘one element’ test

adopted in the latest version of Section 725.309.” However, it “submits that the ‘one

element’ must be established by reasoned medical evidence establishing an actual

‘change’ in that element” since the denial of the prior claim. Otherwise, it contends that

“the requirement for ‘change’ is meaningless.” Cumberland maintains that the only way

to give proper effect to the language of the regulation is to require the ALJ to compare

the newly submitted evidence to the evidence in the record. Thus, Cumberland urges the

Court to maintain the one-element test from Sharondale and Kirk.

In disagreeing with Cumberland’s proposed interpretation, the Director argues

that “the present regulation plainly dispenses with [the] requirement” that an ALJ

compare the new evidence with the evidence from the previously-denied claim. He

further asserts that the new regulation “does not authorize, much less compel, an ALJ

to compare new evidence with old evidence as part of the change in conditions analysis.”

Rather, the ALJ should compare the new evidence of the miner’s physical condition

“with the conclusions reached in the prior claim.” U.S. Steel Mining Co., 386 F.3d at

989 (emphasis in original).

We now adopt the Director’s interpretation of 20 C.F.R. § 725.309(d). A court

should “defer to an agency’s interpretation of its own regulation, advanced in a legal

brief, unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’”

Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (quoting Auer v. Robbins,

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 10

519 U.S. 452, 461 (1997)). Here, because the interpretation advocated by the Director

is neither plainly erroneous nor inconsistent with the language of the regulation itself,

deference to the Director’s position is appropriate. Thus, we construe the term “change”

to mean “disproof of the continuing validity” of the original denial, Lisa Lee Mines,

86 F.3d at 1363, rather than the “actual difference between the bodies of evidence

presented at different times.” Kirk, 264 F.3d at 609. Under this definition, the ALJ need

not compare the old and new evidence to determine a change in condition; rather, he will

consider only the new evidence to determine whether the element of entitlement

previously found lacking is now present.

ALJ Merck considered the new evidence submitted by Banks and Cumberland

and found the opinions of Drs. Forehand and Rasmussen to be “reasoned, documented,

and entitled to full probative weight.” Additionally, he found Dr. Jarboe’s opinion to be

“inadequately reasoned” and discounted it accordingly. Balancing this evidence, the

ALJ found that Banks suffered from legal pneumoconiosis and, therefore, had

established a condition of entitlement previously adjudicated against him. According

to Cumberland, the ALJ’s conclusions are not supported by substantial evidence. We

disagree with Cumberland’s assessment of the proof presented to the ALJ.

The ALJ’s Evaluation of the Evidence

ALJ Merck first considered the report prepared by Dr. Forehand on July 29,

2003. Dr. Forehand “diagnosed clinical pneumoconiosis based on [Banks’s] history,

physical examination, x-ray and arterial blood gas study.” The ALJ found that the x-ray

was insufficient evidence of clinical pneumoconiosis and, therefore, concluded that the

opinion was “entitled to diminished weight” on the issue. Dr. Forehand also diagnosed

chronic bronchitis “based on [Banks’s] history and his pulmonary function test results,

and opined that the resulting impairment was caused by both cigarette smoking and coal

dust exposure.” ALJ Merck found that this was “sufficient to establish that [Banks’s]

pneumoconiosis arose out of his coal mine employment.” As a result, he gave Dr.

Forehand’s report full probative weight on the issue of legal pneumoconiosis.

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 11

Banks also submitted two reports by Dr. Rasmussen: a report from February 26,

2001, and a report completed on March 29, 2004. ALJ Merck found that Dr.

Rasmussen’s 2001 report was entitled to full probative weight on the issue of legal

pneumoconiosis, despite giving the opinion “little weight on the issue of clinical

pneumoconiosis” due to Dr. Rasmussen’s reliance on a negative x-ray. Turning to the

2004 report, ALJ Merck found the “diagnosis of legal pneumoconiosis well-reasoned

and well-documented and accord[ed] it full probative weight.” This report similarly

diagnosed both clinical and legal pneumoconiosis, but the ALJ found the diagnosis of

clinical pneumoconiosis to contain an insufficient explanation of how the physical

examination, pulmonary function test, arterial blood gas study, and EKG supported the

diagnosis. Regarding legal pneumoconiosis, however, Dr. Rasmussen found that the

“pulmonary function tests showed a severe, irreversible obstructive ventilatory

impairment,” and concluded that “coal dust exposure [was] a significant contributing

factor in [Banks’s] pulmonary impairment.”

Cumberland argues that the ALJ should not have relied on the opinions of Drs.

Forehand and Rasmussen. It asserts that ALJ Merck’s explanation for crediting the

diagnosis of legal pneumoconiosis while simultaneously discrediting the diagnosis of

clinical pneumoconiosis “is not supported by the record.” This argument is unavailing

because the definition of legal pneumoconiosis is significantly broader than that of

clinical pneumoconiosis. See Cornett, 227 F.3d at 575. Dr. Forehand diagnosed both

pneumoconiosis and chronic bronchitis. Dr. Rasmussen found that Banks suffered from

respiratory impairments that he attributed, in part, to coal dust exposure. The ALJ

adequately explained his reliance on the diagnoses, finding that each doctor “based his

diagnosis on objective medical evidence, considered [Banks’s] employment history and

his smoking history, and explained the basis for his opinion.” Rather than showing that

he erred in finding these reports to be well-reasoned and well-documented, ALJ Merck’s

rejection of the diagnoses of clinical pneumoconiosis demonstrates careful examination

of the record.

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 12

Cumberland also maintains that, because Drs. Forehand and Rasmussen relied

on positive x-ray interpretations that were later discredited by the ALJ, there was not

substantial evidence to support the conclusion that Banks suffers from legal

pneumoconiosis. The Board rejected this argument, because both doctors merely relied

on the x-rays to diagnose clinical pneumoconiosis, and the “additional diagnoses of legal

pneumoconiosis [were based] on pulmonary function and blood gas studies showing

obstructive ventilatory impairments and hypoxemia, together with [Banks’s] coal mine

employment and smoking histories.” The doctors’ use of the x-rays to diagnose clinical

pneumoconiosis does not render ALJ Merck’s reliance on their opinions to support his

finding of legal pneumoconiosis unreasonable. The ALJ’s findings of fact concerning

the reports by Drs. Forehand and Rasmussen are within the “realm of rationality” and,

therefore, are supported by substantial evidence. Morrison, 644 F.3d at 478.

ALJ Merck also considered a report dated September 24, 2003 from Dr. Jarboe,

who relied upon patient history, an x-ray, a pulmonary function test, and an arterial

blood gas study to diagnose Banks with chronic bronchitis and severe pulmonary

emphysema. However, Dr. Jarboe concluded that Banks did not suffer from

pneumoconiosis and averred that Banks’s “pulmonary impairment was caused entirely

by his smoking history.”4 ALJ Merck found that the reasons he provided for this

conclusion were “inadequately reasoned on the issue of legal pneumoconiosis.” As a

result, he found that Dr. Jarboe’s opinion had limited value.

First, Dr. Jarboe opined that [Banks’s] emphysema could not have been

caused by coal dust exposure, because there is not enough dust retention

shown on his x-rays. The Department of Labor and the Board have made

clear that a miner can be found to have legal pneumoconiosis, even in the

absence of clinical pneumoconiosis. . . . Further, the Board has found it

proper to discredit a physician’s opinion based on the notion that

emphysema caused by coal dust does not occur absent clinical

pneumoconiosis. Therefore, I find that the negative x-rays and CT scan

are an inadequate basis for determining whether coal mine dust

contributed to [Banks’s] chronic bronchitis and emphysema.

4

Dr. Jarboe submitted three supplemental medical reports reiterating his conclusion that Banks’s

emphysema was solely the result of cigarette smoking.

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 13

Second, Dr. Jarboe opined that [Banks’s] total lung capacity showed that

there was no true restrictive component to his respiratory impairment.

Legal pneumoconiosis may result from an obstructive impairment,

regardless of any restrictive component. Physicians’ opinions may be

discredited if they find no pneumoconiosis due to an obstructive versus

restrictive impairment. Here, the obstructive nature of [Banks’s]

impairment is not an appropriate basis for finding that smoking, alone,

contributed to [his] chronic bronchitis and empysema.

These are proper reasons for finding Dr. Jarboe’s reports unpersuasive.

ALJ Merck also found that “Dr. Jarboe’s statement regarding the period of time

since [Banks’s] coal mine employment ceased is at odds with the Department of Labor’s

determination that coal mine dust exposure can cause a chronic pulmonary impairment

after a latent period.” As a result, the ALJ concluded that “his reasoning is unsound on

the issue of whether coal dust exposure played a contributing or aggravating role in [his]

disabling lung disease.” Thus, the ALJ afforded Dr. Jarboe’s opinions less probative

weight than those of Drs. Forehand and Rasmussen on the issue of legal

pneumoconiosis.

Cumberland asserts that ALJ Merck erred in finding Dr. Jarboe’s conclusions to

be inconsistent with Department regulations that recognize pneumoconiosis as a latent

and progressive disease. It argues that the ALJ’s interpretation of these regulations

would “improperly convert[] every obstructive lung disease into ‘legal’

pneumoconiosis.” Cumberland’s argument mischaracterizes the ALJ’s opinion. ALJ

Merck did not imply that every respiratory impairment contracted after working in a

mine will necessarily qualify as legal pneumoconiosis. He merely pointed out that Dr.

Jarboe relied on an impermissible factor. Dr. Jarboe’s opinion was indeed inconsistent

with the regulations that recognize that pneumoconiosis “may first become detectable

only after the cessation of coal mine dust exposure.” 20 C.F.R. § 718.201(c). The ALJ

did not err in discounting the opinion on this basis.

ALJ Merck erred in considering Dr. Rasmussen’s 2001 report because it pre-

dates the denial of his last claim and, therefore, cannot constitute new evidence.

However, we find the error to be harmless because the ALJ’s decision was supported by

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 14

two other medical opinions that were afforded full probative weight. There is no reason

to believe that the ALJ would have given more weight to Dr. Jarboe’s “inadequately

reasoned” opinion in the absence of Dr. Rasmussen’s 2001 report. The ALJ’s finding

that the newly-submitted evidence established legal pneumoconiosis was supported by

substantial evidence. Thus, Banks succeeded in establishing a change in condition.

After ALJ Merck found that Banks had established the existence of legal

pneumoconiosis through new evidence, he reviewed the entire record to determine if

Banks could prove each element of entitlement by a preponderance of the evidence. On

the issue of legal pneumoconiosis, the ALJ compared the medical evidence from Banks’s

two prior claims to the newly submitted evidence. ALJ Merck gave the medical

evidence from the second claim probative weight, but afforded little weight to the

medical evidence submitted in the first claim, which was filed in 1992. Therefore, he

analyzed the 2000 reports by Dr. Rasmussen and Dr. Dahhan along with the newly

submitted evidence to determine whether the balance of the evidence favored a finding

of legal pneumoconiosis. The ALJ found that “the previously-submitted evidence does

not contain a well-reasoned and well-documented opinion as to clinical or legal

pneumoconiosis.” As a result, he gave controlling weight to the new evidence.

ALJ Merck discounted the report provided by Dr. Dahhan because it “provided

no credible basis for his opinion that cigarette smoking, alone, caused” Banks’s

impairment.5 And like Dr. Jarboe, Dr. Dahhan based his opinion, in part, on the length

of time since Banks left his coal mine employment. Thus, the ALJ discounted the

opinion because it was “at odds with the Department of Labor’s determination that coal

mine dust exposure can cause a chronic pulmonary impairment after a latent period.”

Moreover, he found the opinion to be poorly reasoned because Dr. Dahhan “found it

significant that [Banks] was prescribed bronchodilators by his treating physician,

indicating that his respiratory condition is reversible.” The ALJ found that “treatment

5

The ALJ also found Dr. Rasmussen’s 2000 opinion that diagnosed clinical and legal

pneumoconiosis on the basis of an incorrect medical history as well as x-ray evidence that the previous

ALJ had found to be negative, to be “inadequately reasoned and entitled to less probative weight on the

issue of legal pneumoconiosis.”

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 15

with bronchodilator agents and partial reversibility are not credible evidence,” to support

an opinion that coal dust did not contribute to Banks’s respiratory impairment. Finally,

because Dr. Dahhan relied on the lack of evidence of clinical pneumoconiosis to “rule

out coal dust exposure as a cause” of Banks’s condition – a position that is inconsistent

with Department regulations – ALJ Merck accorded his opinion little probative weight

regarding the issue of legal pneumoconiosis.

Cumberland also argues that ALJ Merck failed to give valid reasons for

discounting Dr. Dahhan’s contrary evidence. It asserts that “Dr. Dahhan based his

medical judgment on the issue of pneumoconiosis upon all of the objective medical

evidence” and, therefore, the ALJ erred in his assessment of the report. Even though the

facts might permit an alternative conclusion, we cannot “substitute our judgment for that

of the ALJ.” Gray, 176 F.3d at 387. ALJ Merck gave three rational reasons for his

decision to discount the opinion. Therefore, he “adequately explained the reasons for”

discrediting the evidence. Morrison, 644 F.3d at 478. The ALJ did not err in

discounting Dr. Dahhan’s opinion. Instead, the ALJ’s conclusion is supported by

substantial evidence.

Finally, Cumberland argues that the ALJ erred by finding total disability due to

pneumoconiosis. To establish his entitlement to benefits under the Act, a miner must

prove by a preponderance of the evidence that his pneumoconiosis is a “substantially

contributing cause” of his disabling respiratory ailment. 20 C.F.R. § 718.204(c)(1).

Pneumoconiosis is considered to substantially contribute to a miner’s disability if it has

a “material adverse effect on the miner’s respiratory or pulmonary condition” or it

“[m]aterially worsens a totally disabling respiratory or pulmonary impairment which is

caused by a disease or exposure unrelated to coal mine employment.” 20 C.F.R.

§ 718.204(c)(1)(i)-(ii).

Here, ALJ Merck considered all of the medical opinion evidence before

concluding that Banks had established total disability due to pneumoconiosis. He

discounted the opinions of Drs. Jarboe and Dahhan because they based their disability

causation opinions on the premise that Banks did not suffer from any form of

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 16

pneumoconiosis. However, he gave full probative weight to the opinions of Drs.

Forehand and Rasmussen, both of whom concluded that Banks’s disability was caused

partly by his history of smoking and partly by his coal mine employment. Specifically,

Dr. Rasmussen opined that Banks’s “cigarette smoking and his coal mine dust exposure”

both contributed to his disabling lung disease. And Dr. Forehand found that “[w]ere it

not for claimant’s coal mine employment, respiratory impairment would not be to the

same degree.”

Cumberland asserts that the opinions of Drs. Forehand and Rasmussen are “too

conclusory and general to establish that Banks’[s] disability is substantially caused by

‘legal’ pneumoconiosis.” Citing this court’s opinion in Conley v. National Mines Corp.,

595 F.3d 297 (6th Cir. 2010), Cumberland contends that “such a conclusory medical

opinion cannot suffice.” However, Conley dealt specifically with a claim for survivor’s

benefits. In that context, a “substantially contributing cause” is one that “hastens the

miner’s death.” Id. at 303 (citing 20 C.F.R. § 718.205(c)(5)). The Conley court was

bound by previous precedents that held that “pneumoconiosis only ‘hastens’ a death if

it does so through a specifically defined process that reduces the miner’s life by an

estimable time.” Eastover Mining Co., 338 F.3d at 518. Based on this definition of the

term “hasten,” the Conley court found that the doctor’s opinion — that pneumoconiosis

makes a person more susceptible to lung cancer — was conclusory and unsupported,

and therefore “insufficient to support the determination that Mr. Conley’s legal

pneumoconiosis hastened his death.” 595 F.3d at 303. In the present case, because

Banks seeks benefits for himself, the standard for evaluating the medical evidence

supporting ALJ Merck’s finding of causation is not as stringent as that employed by the

Conley court. See Crockett Colleries, 478 F.3d at 356 (affirming ALJ’s finding of

disability due to legal pneumoconiosis based on doctor’s opinion that “coal dust

exposure probably contributes to some extent in an undefinable proportion” (internal

quotation marks omitted)).

In a claim for benefits brought by a miner, the opinions on which the ALJ relies

“must reflect reasoned medical judgment” to support a finding of total disability due to

No. 11-3500 Cumberland River Coal Co. v. Banks, et al. Page 17

pneumoconiosis. Flynn, 353 F.3d at 483; see 20 C.F.R. § 718.204(c)(2) (“[T]he cause

or causes of a miner’s total disability shall be established by means of a physician’s

documented and reasoned medical report.”). ALJ Merck correctly concluded that the

opinions of Drs. Forehand and Rasmussen reflect reasoned medical judgment. Dr.

Rasmussen based his opinion on the fact that both smoking and coal dust inhalation

“cause lung tissue destruction even sharing some cellular and biochemical mechanisms.”

Additionally, as ALJ Merck notes, Dr. Rasmussen “rendered his opinion after he

examined [Banks] on three occasions, obtained a history of [his] coal mine employment

and cigarette smoking, and reviewed results from several objective medical tests.” Dr.

Forehand’s opinion was similarly based on a physical examination, patient history, and

objective medical test results. These opinions reflect reasoned medical judgments and

the ALJ did not err in relying on them to conclude that Banks’s legal pneumoconiosis

was a substantially contributing cause of his total disability.

IV.

For the foregoing reasons, we affirm the award of benefits.