(Petition for Review) (No. 13-0092 BLA)
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
ORDER AND JUDGMENT [*]
Bobby R. Baldock, Circuit Judge.
In this case under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, Antelope Coal Company petitions for review of awards of miner's benefits to Benjamin F. Goddard and survivor's benefits to his widow Sandra J. Goddard. The Director of the Office of Workers' Compensation Program elected not to file a brief in this appeal. Exercising jurisdiction under 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a), we deny the petition for review.
Mr. Goddard was born in 1933. He worked as a warehouse technician at a coal mine and at a uranium mine in the 1970s and 1980s before Antelope employed him to work in its warehouses in 1989. He retired in 2000. His warehouse position exposed him to varying amounts of coal dust, some days light and some days heavy.
In the late 1990s, Mr. Goddard started experiencing respiratory trouble. He was diagnosed with idiopathic pulmonary fibrosis (IPF)—"a disease of unknown cause that is characterized by progressive fibrosis of the lungs, " Emp'r Hrg. Exh. 4 at 6—and with a related disease, usual interstitial pneumonitis (UIP). Within about six months of his retirement, he was on oxygen. Mr. Goddard filed for miner's benefits in April 2002. He died in October 2003; his death certificate specified cause of death as IPF. In November 2003, Mrs. Goddard filed for survivor's benefits.
After the Department of Labor initially awarded benefits on both claims, Antelope sought a hearing before an administrative law judge (ALJ). The hearing was held on May 24, 2006. Since then, there have been four ALJ decisions and four appeals to the Department of Labor's Benefits Review Board (Review Board). We discuss those rulings later in this decision.
II. Legal Framework
To make sense of the evidence and administrative decisions, it is helpful to understand the legal framework for black lung claims. "To obtain benefits under the Act, a miner must demonstrate that he satisfies three conditions: (1) he or she suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment; and (3) the pneumoconiosis is totally disabling." Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009).
"Pneumoconiosis" includes both clinical pneumoconiosis and legal pneumoconiosis. See 20 C.F.R. § 718.201(a). Clinical pneumoconiosis "consists of those diseases recognized by the medical community as pneumoconioses, i.e., the conditions 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." Id. § 718.201(a)(1). Legal pneumoconiosis is "any chronic lung disease or impairment and its sequelae arising out of coal mine employment, " id. § 718.201(a)(2), including "any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment, " id. § 718.201(b).
The regulations list four ways to make a finding of pneumoconiosis. See id. § 718.202(a). The first is through x-ray evidence, id. § 718.202(a)(1), and the second is through biopsy or autopsy evidence, id. § 718.202(a)(2). The third is through certain presumptions that are inapplicable in this case. Id. § 718.202(a)(3). And the fourth is through "a physician, exercising sound medical judgment . . ., find[ing] that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any such finding must be based on objective medical evidence . . . [and] must be supported by a reasoned medical opinion." Id. § 718.202(a)(4).
After finding pneumoconiosis, the ALJ must determine whether it "arose at least in part out of coal mine employment." Id. § 718.203(a). "If a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines, there shall be a rebuttable presumption that the pneumoconiosis arose out of such employment." Id. § 718.203(b). This presumption, however, is applicable only to clinical pneumoconiosis, not to legal pneumoconiosis. See Andersen v. Dir., Office of Workers' Comp. Programs, 455 F.3d 1102, 1105 (10th Cir. 2006).
Next the ALJ must determine whether the miner is (or was at the time of death) totally disabled due to pneumoconiosis. 20 C.F.R. § 718.204(a). "A miner shall be considered totally disabled due to pneumoconiosis if pneumoconiosis, as defined in § 718.201, is a substantially contributing cause of the miner's totally disabling respiratory or pulmonary impairment." Id. § 718.204(c)(1). Total disability can be established by various evidence: pulmonary function tests, arterial blood gas tests, evidence that the miner has pneumoconiosis and suffers from cor pulmonale with right-side congestive heart failure, or a physician's conclusion that the miner's respiratory or pulmonary condition prevents or prevented the miner from working. Id. § 718.204(b)(2)(i)-(iv).
For survivor's benefits, the claimant must prove the miner had pneumoconiosis that arose out of coal mine employment and the miner's death was due to pneumoconiosis. Id. § 718.205(a). Death is considered "due to pneumoconiosis" when "competent medical evidence establishes that pneumoconiosis was the cause of the miner's death" or when "pneumoconiosis was a substantially contributing cause or factor leading to the miner's death, " ...