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Energy West Mining Co. v. Estate of Blackburn

United States Court of Appeals, Tenth Circuit

May 23, 2017

ENERGY WEST MINING COMPANY, Petitioner,
v.
THE ESTATE OF MORRIS E. BLACKBURN; PHYLLIS E. BLACKBURN; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.

         Petition for Review from an Order of the Benefits Review Board (BRB No. 2015-0290-BLA)

          William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for Petitioner.

          Evan B. Smith, Appalachian Citizens' Law Center, Whitesburg, Kentucky, for the Estate of Morris E. Blackburn, and Phyllis E. Blackburn, Respondents.

          Before KELLY, EBEL, and BACHARACH, Circuit Judges.

          BACHARACH, Circuit Judge.

         Mr. 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 Act.[1] 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.

         I. After a remand, an administrative law judge held that Energy West had failed to rebut the statutory presumption of an entitlement to benefits.

         This 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.[2] 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."

         In 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 mine.

         Mr. 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.

         On remand, the case was reassigned to a different administrative law judge (Judge Paul Johnson, Jr.).[3] 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.

         Energy 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.

         We deny Energy West's petition. We agree with the Board that

• Judge Malamphy did not adequately explain his decision and
• 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.

         We also 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 been harmless.

         II. Federal law creates a rebuttable presumption that disabled miners with at least 15 years of employment are entitled to benefits.

         Congress 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 elements:

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 disability).

Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1335 (10th Cir. 2014).[4]

         There 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.

         Ordinarily, 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.[5] See 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)-(c).[6] 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. § 718.305(d)(1).

         (Image Omitted)

         The 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.

         III. Standard of Review

         For 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.

         IV. Judge Malamphy did not adequately explain his decision.

         Energy 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.[7]

         An 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)).

         In 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).[8] Instead, an administrative law judge must use his or her expertise to evaluate the expert opinions. See id. at 1022-23.

         Judge 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 the hearing.
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 pneumoconiosis.
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.

         Energy 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 James.

         For the 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.

         This 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 articulated.[9]

         Second, 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.

         At oral 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 pneumoconiosis:

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.

         Oral 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 ...


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