for Review from an Order of the Benefits Review Board (BRB
William S. Mattingly, Jackson Kelly PLLC, Lexington,
Kentucky, for Petitioner.
B. Smith, Appalachian Citizens' Law Center, Whitesburg,
Kentucky, for the Estate of Morris E. Blackburn, and Phyllis
E. Blackburn, Respondents.
KELLY, EBEL, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
Morris Blackburn worked as a coal miner for roughly twenty
years, continually exposing himself to dust in an Energy West
coal mine. He also smoked cigarettes and eventually developed
a respiratory disease. Based on this disease, Mr. Blackburn
claimed benefits under the Black Lung Benefits
In response, Energy West contended that Mr. Blackburn had
caused his disease by smoking cigarettes. The United States
Department of Labor's Benefits Review Board affirmed an
award of compensation, and Energy West petitions for review.
We deny the petition, concluding that the Board did not err
in affirming the award.
After a remand, an administrative law judge held that Energy
West had failed to rebut the statutory presumption of an
entitlement to benefits.
case began with Mr. Blackburn's filing of a claim for
statutory benefits under the Black Lung Benefits Act, 30
U.S.C. §§ 901-945. Statutory benefits are available
to disabled coal miners who suffer from various lung
disorders as a result of their employment. In this case, the
parties agree that Mr. Blackburn was disabled from chronic
obstructive pulmonary disease, a type of lung disease, which
in his case was characterized by emphysema. The dispute is
whether the disease was caused by Mr. Blackburn's work in
a coal mine. One physician (Doctor David James) answered
"yes"; two other physicians (Doctors Robert Farney
and Peter Tuteur) answered "no."
2012, Administrative Law Judge Richard Malamphy denied
benefits. Judge Malamphy first found that Mr. Blackburn
qualified for a statutory presumption of an entitlement to
benefits. But Judge Malamphy determined that Energy West had
rebutted the presumption by showing that Mr. Blackburn's
lung disease had not arisen from his employment in a coal
Blackburn appealed to the Benefits Review Board, which
vacated Judge Malamphy's decision. In the Board's
view, Judge Malamphy had simply summarized the evidence
without explaining why he believed Doctors Farney and Tuteur
rather than Doctor James. The Board remanded for Judge
Malamphy to weigh the conflicting medical reports and provide
a reasoned decision.
remand, the case was reassigned to a different administrative
law judge (Judge Paul Johnson, Jr.). Judge Johnson disagreed with
Judge Malamphy's original decision, concluding that
Energy West had not rebutted the statutory presumption. For
this conclusion, Judge Johnson reasoned that Doctors Farney
and Tuteur were not credible. On appeal, the Board affirmed.
West petitions for review, arguing that the Board erred when
reviewing the decisions of both administrative law judges.
For the first decision, Energy West contends that Judge
Malamphy provided an adequate explanation. For the second
decision, Energy West maintains that Judge Johnson
erroneously ruled beyond the scope of the remand, rendered a
decision unsupported by substantial evidence, drew his own
medical conclusions, treated the regulatory
"preamble" as if it had the force of law, failed to
review the medical opinions in an even-handed way, and
applied the wrong legal standard.
Energy West's petition. We agree with the Board that
• Judge Malamphy did not adequately explain his decision
• Judge Johnson rendered a decision that was within the
scope of the remand, was supported by substantial evidence,
and did not improperly draw medical conclusions.
conclude that Judge Johnson did not treat the preamble as if
it had the force of law and did not improperly review the
medical opinions. We need not decide whether Judge Johnson
applied the wrong legal standard because any error would have
Federal law creates a rebuttable presumption that disabled
miners with at least 15 years of employment are entitled to
enacted the Black Lung Benefits Act to compensate coal miners
who become disabled from certain lung diseases (known
collectively as "pneumoconiosis") that arose out of
employment in a coal mine. 30 U.S.C. § 901. To be
entitled to benefits, a claimant must establish four
1. Disease (the miner suffers from pneumoconiosis),
2. Disease causation (the pneumoconiosis arose out
of coal-mine employment),
3. Disability (the miner is totally disabled because
of a respiratory or pulmonary impairment), and
4. Disability causation (the pneumoconiosis is a
substantially contributing cause of the miner's total
Antelope Coal Co./Rio Tinto Energy Am. v. Goodin,
743 F.3d 1331, 1335 (10th Cir. 2014).
are two definitions of pneumoconiosis-"clinical"
and "legal." 20 C.F.R. § 718.201(a). This case
involves legal pneumoconiosis, not clinical pneumoconiosis.
For legal pneumoconiosis, a miner must suffer from "any
chronic lung disease or impairment and its sequelae"
that "ar[ose] out of coal mine employment."
Id. § 718.201(a)(2); see Anderson v. Dir.,
Office of Workers' Comp. Programs, 455 F.3d 1102,
1104 (10th Cir. 2006). Thus, for legal pneumoconiosis,
claimants must satisfy both the Disease and
Disease causation elements. See 20 C.F.R.
§ 718.201(a)(2); Anderson, 455 F.3d at 1105-07.
In other words, the miner must suffer from a chronic lung
disease or impairment arising out of coal-mine employment.
claimants must prove each of the four elements.
Goodin, 743 F.3d at 1335. But Mr. Blackburn had
worked in a coal mine for at least 15 years. Thus, the Act
softens his burden: The "15-year presumption"
provides that if Mr. Blackburn had established the
Disability element, he would have been entitled to a
rebuttable presumption that the remaining three elements
(Disease, Disease causation, and
Disability causation) were also
established. See 30 U.S.C. § 921(c)(4);
20 C.F.R. § 718.305(b)-(c). The burden would then shift
to Energy West to disprove one of these three elements.
See 30 U.S.C. § 921(c)(4); 20 C.F.R. §
parties agree that Mr. Blackburn satisfied his threshold
burden, triggering the presumption of Disease, Disease
causation, and Disability causation. Energy
West tried to rebut the presumption by showing that Mr.
Blackburn never had legal pneumoconiosis because his lung
disease had not arisen out of his employment in a coal mine
(Disease causation). See 20 C.F.R. §
7l8.3O5(d)(1)(i)(A) (indicating that the presumption may be
rebutted by establishing that the miner never had legal
pneumoconiosis). The Benefits Review Board affirmed Judge
Johnson's conclusion that Energy West had not rebutted
the presumption. On appeal, we consider the correctness of
the Board's decision.
Standard of Review
questions of fact, we formally review the Board's two
decisions, but focus on the decisions by the two
administrative law judges. See Antelope Coal Co./Rio
Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1341 n.13
(10th Cir. 2014). For questions of law, we engage in de novo
review of the Board's decisions. Id. at 1341.
Judge Malamphy did not adequately explain his
West contends that the Board improperly concluded that Judge
Malamphy had not provided an adequate explanation for his
denial of benefits. This contention triggers de novo review.
Gunderson v. U.S. Dep't of Labor, 601 F.3d 1013,
1021 (10th Cir. 2010). In conducting de novo review, we agree
with the Board that Judge Malamphy failed to adequately
explain the reasons for his conclusion.
agency's adjudicative decision must be
"'accompanied by a clear and satisfactory
explication of the basis on which it rests.'"
Id. at 1022 (quoting Barren Creek Coal Co. v.
Witmer, 111 F.3d 352, 356 (3d Cir. 1997)). This duty of
explanation does not mandate "'verbosity or
pedantry, '" but requires only that the
administrative law judge provide an explanation that allows
us to discern the decision and the reasons for it.
Id. (quoting Piney Mountain Coal Co. v.
Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999)).
cases involving conflicting medical or scientific evidence,
an administrative law judge must "'articulate a
reason and provide support'" to favor one opinion
over another. Id. (quoting Stalcup v. Peabody
Coal Co., 477 F.3d 482, 484 (7th Cir. 2007)). This
requires more than a "'cursory statement'"
that one expert's opinion is more persuasive than
another's. Id. at 1023 (quoting Barren
Creek, 111 F.3d at 354). Instead, an administrative law
judge must use his or her expertise to evaluate the expert
opinions. See id. at 1022-23.
Malamphy's decision failed to provide an adequate
explanation. The relevant portion of his written opinion
consisted almost entirely of summaries of the medical
evidence and block quotations from the physicians'
reports. See Petitioner's Opening Br.,
Attachment A at 6- 15. Following the summaries and block
quotations, Judge Malamphy stated that Energy West had
successfully rebutted the 15-year presumption:
Drs. James, Farney, and Tuteur have given detailed reasoning
for their opinions. Each party has relied on published
treatises for their positions. [Mr. Blackburn's] history
of smoking is clearly more extensive than he acknowledged at
I find [Energy West] has rebutted the 15-year presumption by
showing that [Mr. Blackburn] does not have pneumoconiosis.
All of [Mr. Blackburn's] X-ray readings and his CT-scan
readings were negative for pneumoconiosis. Further, the
medical opinion evidence does not support a finding of legal
Therefore, I find that evidence does not support a finding
that [Mr. Blackburn] has pneumoconiosis.
Id. at 15. This explanation references the
medical-opinion evidence, Mr. Blackburn's smoking
history, and his negative x-rays and CT-scans.
West makes two arguments for why Judge Malamphy's
explanation was sufficient, pointing to (1) his selection of
quotations and (2) his observation that the x-rays and
CT-scans were negative for pneumoconiosis. These references
do not substitute for an articulation of why Judge Malamphy
chose to believe Doctor Farney and Doctor Tuteur over Doctor
first argument, Energy West does not suggest that Judge
Malamphy expressly articulated his reasons for crediting the
opinions of Doctors Farney and Tuteur. Instead, Energy West
contends that Judge Malamphy's rationale is discernible
"when one reads between the lines of the decision"
or analyzes the decision as a whole. See
Petitioner's Reply Br. at 7.
argument fails as a matter of law. Like the Board, we are
unable to discern Judge Malamphy's reasoning. Perhaps
some readers may believe that they can glean Judge
Malamphy's reasoning from his selection of quotations.
But these readers would ultimately only be guessing at Judge
Malamphy's reasoning. This kind of guesswork should be
unnecessary because administrative law judges must articulate
why they credit one medical expert over another.
Gunderson, 601 F.3d at 1022. As a result, we decline
to look between the lines and into the mind of Judge
Malamphy, hoping to find a rationale where none has been
Energy West points to Judge Malamphy's explanation that
"none of the chest x-rays or CT-scans reflect the
existence of clinical [pneumoconiosis, also known as] medical
pneumoconiosis." Petitioner's Opening Br. at 23. But
the x-rays and CT-scans provide little help because Mr.
Blackburn relies on legal pneumoconiosis rather than
on clinical pneumoconiosis.
argument, Energy West shifted its theory, pointing to the
negative CT-scans to explain Judge Malamphy's finding
that Mr. Blackburn did not have legal
The CT-scan demonstrated Dr. Farney['s] [conclusion], as
he explained, there was emphysema, he attributed the
emphysema to cigarette smoking. So it supports his conclusion
that legal pneumoconiosis was not present.
Argument at 11:34-45. This argument is waived and
unpersuasive. The argument is waived because it was raised
for the first time at oral argument. See United States v.
Burns, 775 F.3d 1221, 1223 n.2 (10th Cir. 2014). The
argument is also unpersuasive. As quoted above, Energy West
points out that the CT-scans showed emphysema and Dr. Farney
attributed the emphysema to smoking rather than exposure to
coal-mine dust. But everyone agrees that Mr. Blackburn had
emphysema; Judge Malamphy did not say that the CT-scans had
supported Dr. Farney's conclusion about the
cause of the ...