*2 Act, Lung the Black 30 U.S.C. ROGERS, Before GIBBONS et seq. application That first HOLSCHUH, District Judges; Circuit stopped working denied. He Judge.* applica- mines 1995. He filed second lung tion for black benefits in 2000. The HOLSCHUH, J.,D. delivered Pro- Compensation Office of Workers’ court, GIBBONS, opinion of the grams preliminarily awarded benefits. At J., ROGERS, 357-59), joined. (pp. J. request, Department of La- separate concurring opinion. Crockett’s delivered referred the matter to an ALJ for bor OPINION hearing hearing. formal ALJ held HOLSCHUH, Judge. D. District JOHN 28, 2002, January аn order on and issued denying application black Colleries, Inc. and Petitioners Crockett April Indemnity The Hartford Accident and benefits * Ohio, Holschuh, sitting by designation. John D. United The Honorable Judge States District for the Southern District 802.211(b) requiring forth in 20 application, the ALJ re- denying specificity the al- report. Dr. A. Dahhan’s to brief heavily on
lied
“in-
that there was
errors in the ALJ’s decision. The
leged
concluded
Dahhan had
justify
diag-
objective data to
BRB therefore affirmed the ALJ’s decision
sufficient
pneumoconiosis.”
reaching the merits of Crockett’s
workers’
without
nosis of coal
*3
readings of petition
Twelve of thirteen
for review.
J.A. at
pneumoconiosis.
x-rays
negative
were
the BRB’s
appealed
Crockett has now
Barrett’s
opined
Dahhan
order,
BRB
arguing that the
find-
expo-
not from coal dust
resulted
problems
ing
petition
that Crockett’s
was insufficient
smoking. Dahhan
cigarette
from
sure but
an
to
review. Crockett seeks
or-
totally
that Barrett was not
concluded
also
requiring
der
the BRB to review the ALJ’s
rejected the conflict-
The ALJ
disabled.
or,
alternative,
award of benefits
Baker,
had
of Dr.
who
ing opinion
Glen
of benefits.
reversing
order
the award
pneumoconio-
that Barrett had
concluded
and
Director of the
Barrett
Office
exposure and was
due to coal dust
sis
Compensation Programs of the
Workers’
a
Baker stated
totally disabled as
result.
Department of Labor maintain that
problems “could all be due
that Barrett’s
properly
BRB
refused to review the merits
could
due to a
cigarette smoking
to
alternative, they argue
of the case.
In the
cigarette smoking
combination
that we should affirm the ALJ’s decision
that coal dust
He noted
exposure.”
substantial
problems
exposure
types
can cause the
evidence.
also stated that
suffered
Barrett. He
significant history
II.
to some
“probably
coal dust
contributes
proportion to his
extent in an undefineable
reviewing
an ALJ’s decision and or
complaints.” J.A. at 84.
pulmonary
der,
is authorized to “hear
to the BRB re-
Barrett wrote
letter
appeals raising
determine
a substantial
decision
questing a review of the ALJ’s
question of law or
fact.”
33 U.S.C.
The BRB construed the letter
and order.
921(b)(3).
of fact
The ALJ’s
13, 2003,
May
appeal.
as a
On
pro se
“if
substantial
conclusive
vacating
a decision
issued
the record considered as a
remanding the ease for addition-
order and
whole.” Id. Substantial evidenсe is “such
remand,
findings.
al
On
in a decision and
relevant evidence as a reasonable mind
15, 2004,
order
November
issued
accept
adequate
might
as
was,
fact,
found that Barrett
entitled to
Ramey
conclusion.”
Elkhorn
Kentland
time, in
black
benefits. This
reliance
(6th
Corp., 755 F.2d
Cir.
on Dr. Baker’s “well reasoned and well 1985) (internal
omitted).
quotation
opinion,
documented”
the ALJ concluded
legal pneumoconiosis
that Barrett had
due
BRB,
reviewing decision of the
employment
to cоal mine
and was
correcting
our task “is limited to
errors of
disabled
aas
result.
ensuring
law and
that the Board adhered
standard in its
Crockett filed a
for review with
the substantial evidence
BRB, however,
findings.”
the BRB.
that it
factual
held
review
Co.,
Bates,
had no
on which to review the ALJ’s Creek Coal
Inc. v.
basis
(6th Cir.1997).
The BRB’s
con
decision because Crockett had failed
Id.
comply
regulation
with the federal
set
clusions are reviewed de novo.
Cir.1986);
2-47-48
v. Di
III.
Fish
rector, OWCP,
BLR
1-109
de-
challenges the BRB’s
first
(1983).
emphasized рrevi
As we have
petition for re-
that Crockett’s
termination
ously,
scope
the Board’s circumscribed
require-
with the
view failed to
requires
party challeng
of review
that a
802.211(b).
forth in 20 C.F.R.
ments set
ing the Decision and Order below ad
part:
regulation provides,
pertinent
That
spec
dress that Decision and
with
Order
ac-
Each
for review shall be
ificity
and demonstrate
substantial
brief, memo-
companied by supporting
not support
evidence does
the result
other statement which:
randum of law or
reached or that the Decision and Order
the issues to be con-
Specifically states
contrary
to law.
Board;
presents,
sidered
*4
802.211(b);
1-120;
Sarf,
§
BLR
at
headings,
argument
an
appropriate
Cox,
2-47;
355
evidence);
tial
v.
petition
Mining,
that Crockett’s
suf-
Doan
Jericol
We find
review,
Inc.,
(6th
and that the
ficient to
No.
wholly respect to causa- unequivocal” law, ingly narrow. Absent error of tion, distinguishable case is from Cor- findings flowing of facts and conclusions relying and the ALJ erred in on Bak- nett sup thereform must be affirmed if [sic] er’s ” ported substantial evidence.’ Knuck petition also pneumoconiosis. Crockett’s Director, OWCP, les v. 869 F.2d specifically challenges the ALJ’s evalua- (6th Cir.1989) (quoting Riley v. National interpretation tion of the medical re- (6th Mines Corp., F.2d Cir. and Dr. Dahhan con- ports of Dr. Baker 1988)). Moreover, when medical testimo cerning whether Barrett is disabled “ conflicts, ny question ‘of whether employment. coal mine as a result of his physician’s report sufficiently document specific cites to required, As credibility ed and reasoned is a matter left order, portions of the ALJ’s decision and ” to the trier of fact.’ Tennessee Consol. forth the basis for Crockett’s and sets (6th Crisp, Coal Co. v. 866 F.2d that the ALJ’s factual belief Cir.1989) (quoting Moseley Peabody not substantial evidence. Co., Cir.1985)). reasons, For these we find that the BRB must, however, The ALJ adequately ex erred in for re- plain reasons his decision. See adequately speci- view “fails to brief with *6 Congleton, OWCP v. ficity any error made the administrative (6th Cir.1984). 428, 430 in judge his evaluation of the evidence or in of the law.” J.A. at application case, In this the ALJ found that entitled to
Barrett was black benefits IV. (1) Barrett had that: established (2) pneumoconiosis; pneumoco- he has If the BRB agreed we with that Crock- employment niosis arose out of his in the ett’s failed to with the (3) mines; totally and he is disabled procedural requirements of 20 C.F.R. 718.202,718.203, §§ 20 as result. C.F.R. 802.211(b), authority no we would have determination, making 718.204. to review the merits of the ALJ’s decision. had to determine which of the two ALJ Board, Review 791 See Cox conflicting reports medical rea (6th Cir.1986). better However, F.2d 446-47 that had opined soned. Dr. Baker Barrett was, since we find that Crockett’s requirements; met all of the Dr. Dahhan fact, review, may we sufficient that Barrett had met none of the opined proceed appeal on to review the merits of initially The denied requirements. ALJ petition. See Eversole v. Shamrock Co., Inc., application, finding Barrett’s that Dr. Dah- No. WL 1994) opinion han’s was better reasoned. On July (holding Cir. however, remand, rejected Dr. refusing that the BRB erred in to review Dahhan’s favor of Dr. Baker’s. petition, affirming but the ALJ’s deci- supported by may dismayed sion because was substan- While Crockett course, pneumoconiosis that the presumption this does not table apparent reversal employment.”). out of such arose overturning the any basis provide find of benefits. We ALJ’s award this presumption The ALJ found conclusion, that Barrett suffers He also relied on had not been rebutted. em- due to coal mine pneumoconiosis from report. Dr. Baker’s Baker first stated as a re- disabled ployment and obstructive defect that Barrett’s moderate sult, with the law and is in accordance cigarette smoking or “could all be due to It evidence. by substantial cigarette to a combination of could be due must, therefore, affirmed. smoking exposure.” and coal dust He that the coal nevertheless concluded Barrett had estab- found that exposure “probably contributes some legal pneumoconio- lished the existence proportion” extent in an undefinable 718.202(a)(4). C.F.R. pursuant sis problems. The ALJ pulmonary Barrett’s respiratory includes Legal pneumoconiosis acknowledged that Baker’s impairments significantly pulmonary wholly un- respect to causation was “not substantially by, to, aggravated related equivocal.” The ALJ nevertheless found exposure. coal dust “to any equivocality apрeared relate 718.201(b). 718.201(a)(2) A claim- §§ exposure to the extent to which coal dust the existence of may ant establish than coal dust contributed rather whether physician, exercising “if a pneumoconiosis to Claimant’s im- contributed notwithstanding judgment, sound medical orig- at 216 pairments.” (emphasis J.A. X-ray, finds that the miner negative inal). pneumoconiosis from as suffers or suffered rejecting Dr. opinion, Dahhan’s Any finding 718.201. such defined adequate- ALJ found that Dahhan had not objective medical evi- shall be based ly explained why responsiveness studies, blood-gas dence as electro- such to treatment with bronchodilators neces- studies, pulmonary function cardiograms, sarily legal pneu- eliminated tests, physical exam- physical performance moconiosis, adequately and had not ex- ination, and work histories. and medical plained “why he believes that coal dust shall be Such a did not al- exacerbate [Barrett’s] opinion.” medical reаsoned legedly smoking-related impairments.” *7 718.202(a)(4). § short, clearly J.A. at 217. the ALJ crediting articulated Bak- his reasons agree and Dr. Baker that Dr. Dahhan Dahhan’s, opinion er’s over and substantial degree respi- from some Barrett suffers supports finding evidence that ratory pulmonary impairment. or legal pneumoconiosis Barrett has due to question dispute impair- is whether that employment. coal mine by cigarette smoking, ment is caused or both. The ALJ noted exposure, supports Substantial evidence also long-time coal that because of Barrett’s finding that Barrett dis- mine Barrett was entitled to employment, a pneumoconiosis. abled as result of the that presumption pneumoconiosis a his was disability may proved Total in one of (1) by exposure. coal dust caused See ways: qualifying pulmonary four func- 718.203(b) (“If (2) tests; § C.F.R. a miner who is qualifying blood-gas tion arterial (3) tests; suffering pneumoconiosis pulmonale right-sided or suffered from cor (4) failure; years physician for ten or more in one or employed congestive heart mines, exercising judgment, or medical more coal there shall be rebut- reasoned medically acceptable disability.” clinical and total at rejecting on J.A. 223. In based diagnostic techniques, con- Dr. laboratory contrary, Dahhan’s to the pulmonary or cludes that the ALJ noted that Dahhan did not reach a clear, prevents engag- condition the miner from medical concеrning conclusion Bar- employment comparable usual ing respiratory capacity rett’s and failed to 718.204(b)(2). employment. compare require- “exertional respiratory capacity ments with his in or- pulmonary that four The ALJ noted der to reach his pos- conclusion he function studies were included the rec- capacity sessed to return to coal mine Although produced ord. three of the four employment.” Finally, J.A. at 222. results, qualifying the ALJ found that one ALJ notеd Barrett was entitled to a of those three tests was invalid. Never- presumption rebuttable that his total dis- theless, conforming because two of the ability employ- was caused coal mine results, produced qualifying studies ment. totality of the ALJ concluded function pulmonary summarize, To we find that the ALJ disability. pulmo- of total These law, correctly applied the and that his studies, alone, nary standing function factual are supported substan- would have been sufficient to tial evidence. He adequately explained his disability. of total rejecting reasons for Dr. medical Dahhan’s 718.204(b)(2)(f). Nevertheless, report explained why he found Dr. that Barrett could to- also found establish report Baker’s to be well-reasoned. We disability tal on Dr. rea- based Baker’s therefore affirm the award of black judgment. soned medical See 20 C.F.R. benefits to Barrett. 718.204(b)(2)(iv). ROGERS, Judge, concurring. Circuit Baker concluded that Barrett suffers a I impairment respi- fully majority opinion. modеrate lacks the concur ratory capacity perform separately why of a I explain work write comparable permitted rulings coal miner or work a dust- court is to affirm (BRB) free environment. J.A. at 120. The on grounds Review Board BRB, noted that Baker’s was based not other than those relied on only pulmonary rulings on the March rather than remand erroneous test, required function which was determined to be the Board as would be in the invalid, subsequent pulmo- ordinary apрellate agen- but also on a case of review of nary produce qualify- cy appears function test that did decisions. Such a course on ing gas results and arterial blood stud- the surface conflict with the time-hon- principle indicated that Barrett had “mild ored administrative law that “an ies which resting hypoxemia.” upheld arterial at 222. administrative order cannot be un- J.A. *8 “[wjhile that, agency the grounds upon The ALJ concluded the less which the weight conforming pulmo- exercising powers of the valid and acted its were those can nary pro- upon function tests alone constitutes which its action be sustained.” 80, 95, 63 disability, Chenery Corp., bative evidence of total when SEC v. 318 U.S. (1943). 454, L.Ed. 626 Because gases, combined with the arterial blood S.Ct. 87 rulings formally adminis- provide which no evidence of total disabili- the BRB’s orders, ty, the opinions, weigh appear and the medical which trative would that we re- disability, Chenery principle requires favor of a of total thе weight of the evidence directs a of mand erroneous decisions to the BRB
358
But,
88,
BRB func-
at
even if alternative
rath-
Indeed,
exclusively
“quasi-judicial,”
as a
the
tions
decision.
the Board’s
support
body. 20
policy making,
held in Island Creek er than as
so
Fourth Circuit
Henline,
421,
801.103;
also
&
456 F.3d
see
Co. v.
Norfolk
Roberson,
Cir.2006)
(4th
(“Affirming the Board’s
918 F.2d
Ry.
[de-
Co. v.
Western
Cir.1990) (“[T]he
(4th
not actu-
ground
Board’s
on an alternative
cision]
prohibit-
Board is
by
standing
the
alone is not enti-
ally
upon
interpretation
relied
doctrine”).
deference”).
Chenery
judicial
Ac-
special
ed under
tled to
possess any
BRB
not
cordingly, the
does
apply
does not
Chenery principle
The
of
authority to make the kinds
unique
narrow,
however,
case,
make; rath-
it is authorized to
judgments
BRB
function of the
distin-
quasi-judicial
orders,
er,
BRB’s
reviewing
when
ordinary
BRB
from the
guishes
orders
upon
of
are called
to do
appeals
courts
making.
agency
decision
instance
(and
only thing)
exactly
thing
the same
review
appellate
The BRB еxercises
do, namely
BRB empowered
is
formerly
by the United
authority
exercised
underlying
determine whether the
Report
See House
District Courts.
States
by
evi-
decision is
substantial
92-1441, 1972
No.
U.S.C.C.A.N.
dence.
scheme,
Thus,
Black
in the current
just
the BRB functions
this scheme
heard and decided
Lung claims are first
is,
it replaced.
like the district courts
It
determination
Then the ALJ’s
an ALJ.
therefore,
appropriate
ap-
that courts
the BRB.
may
appealed
When
treat review of the Board’s
peals should
determination, the
BRB
reviews
legal
our review of
decisions
decisions like
narrowly
defined
Board’s review
courts, rather
than like
from the district
921(b)(3),
provides that
U.S.C.
ordinary
agency
determina-
review
under re-
“findings of fact in the decision
Chenery
Supreme
The
Court
tions.
if
be conclusive
view
the Board shall
it would be “wasteful”
observed
in the
substantial
to a district court “to
send
case back
After the
record considered as a whole.”
already
which it had
reinstate
decision
аggrieved
issues a final order
appellate
made
which the
court con-
but
may
order to this
party
appeal the BRB’s
properly
cluded should
be based on anoth-
court.
court
reviews the ALJ’s
This
then
ground
power
appel-
er
within the
factual
for substantial evidence
conclusion
Chenery,
late court
to formulate.”
York v.
determinations de novo.
at
Order
law, so, fully empowered we are to do even
though the Board relied on a different
ground principle”); Lauderdale v. Di-