732 F.3d 723
7th Cir.2013Background
- James Burris worked ~23 years in coal mining (mostly surface work for Consolidation Coal) and filed a first black lung claim in 2001 that was dismissed for abandonment; he filed a second claim in 2006.
- The ALJ found Burris totally disabled, credited his testimony of substantial dust exposure (hopper/tipple and work at Bollmeier), and concluded he met the 15-year presumption under 30 U.S.C. § 921(c)(4) by showing surface conditions substantially similar to underground work.
- Consolidation conceded before the ALJ that Burris was totally disabled and that a change in any condition of entitlement would permit the subsequent claim to proceed; the ALJ therefore found Burris demonstrated a material change and reached the merits.
- On the merits the ALJ credited the treating physician and three of five medical opinions diagnosing pneumoconiosis, found x-ray/CT evidence in equipoise, and concluded Consolidation failed to rebut the statutory presumption that pneumoconiosis contributed to Burris’s total disability.
- Consolidation petitioned for review challenging (1) the change-in-condition finding for an abandoned claim, (2) the ALJ’s 15‑year surface-equivalence finding, and (3) the ALJ’s assessment of the employer’s rebuttal evidence.
Issues
| Issue | Plaintiff's Argument (Burris) | Defendant's Argument (Consolidation) | Held |
|---|---|---|---|
| Whether Burris proved a material change in condition after an abandoned prior claim | Burris: prior claim was abandoned (treated as no entitlement); current evidence shows total disability, satisfying change requirement | Consolidation: allowing a subsequent claim after abandonment permits re‑litigation when no real change occurred; regulations are invalid for abandoned-claim context | Court: Consolidation waived the argument by conceding change below; argument lacks merit and would fail Chevron review; change satisfied (including via restored 15‑year presumption) |
| Whether Burris proved ≥15 years in conditions substantially similar to underground mines | Burris: credible testimony of frequent dust exposure at hopper/tipple and at Bollmeier supports surface-equivalence | Consolidation: ALJ should discount periods with low dust exposure or job titles (e.g., pan operator) and prorate intermittent exposure | Court: ALJ’s credibility findings and inference from the miner’s testimony are supported by substantial evidence; affirmed |
| Whether Consolidation rebutted the §921(c)(4) presumption (causation) | Burris: medical opinions and treating physician support pneumoconiosis and that it substantially contributed to disability | Consolidation: disability caused by heavy smoking and non‑pneumoconiosis conditions; x-rays/CTs and some doctors negate pneumoconiosis | Court: ALJ rationally discounted employer experts (methodological flaws, underestimated exposure); employer failed to rebut presumption |
| Whether ALJ improperly resolved medical conflicts by ‘‘counting heads’’ or failing to apply treating‑physician factors | Burris: ALJ properly weighed qualifications, B‑reader status, and treating-physician relationship | Consolidation: ALJ relied on number of opinions and improperly favored treating physician without explicit 718.104(d) factor analysis | Court: ALJ reasonably evaluated qualifications and treating‑physician factors across the decision; findings supported by substantial evidence and lawful application of standards |
Key Cases Cited
- Consolidation Coal Co. v. Director, Office of Workers' Compensation Programs, 721 F.3d 789 (7th Cir. 2013) (treatment of 15‑year presumption and subsequent-claim change analysis)
- Peabody Coal Co. v. Spese, 117 F.3d 1001 (7th Cir. 1997) (subsequent claim waiver/standard)
- Cumberland River Coal Co. v. Banks, 690 F.3d 477 (6th Cir. 2012) (agency interpretation of §725.309(d) regarding change analysis)
- Stalcup v. Peabody Coal Co., 477 F.3d 482 (7th Cir. 2007) (ALJ must resolve scientific disputes on scientific grounds)
- Freeman United Coal Mining Co. v. Summers, 272 F.3d 473 (7th Cir. 2001) (credibility and ALJ fact‑finding deference on surface/underground similarity)
- Blakley v. Amax Coal Co., 54 F.3d 1313 (7th Cir. 1995) (burden-shifting and standards for rebutting pneumoconiosis presumption)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (Sup. Ct. 1984) (deference to reasonable agency statutory interpretations)