HOBET MINING, LLC, Pеtitioner, v. Carl R. EPLING, Jr.; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
No. 13-1738
United States Court of Appeals, Fourth Circuit.
Argued: Jan. 29, 2015. Decided: April 17, 2015.
783 F.3d 498
IV.
We do not suggest the approach we have taken here is the only way to characterize the nature of a predicate offense. Because this is a sentencing procedure, no mechanical exercise can ever fully supplant the common sense and good judgment of the sentencing judge. A “simple strategy of ‘counting noses’ will [nоt] control the outcome of the categorical approach in all cases for all crimes.” United States v. Rangel-Castaneda, 709 F.3d 373, 379 (4th Cir.2013). The greater the variations in state statutes, moreover, the more difficult a single paradigmatic act may be to find. Id. (“Our federal system allows the various states to define offenses as they see fit, unencumbered by overly stringent federal sentencing standards. That is precisely why ‘minor variations in terminology’ must be respected.” (quoting Taylor, 495 U.S. at 599, 110 S.Ct. 2143)). In this case, our review of state laws has served to identify the North Carolina act as a mainstream statute, not an outlier. Because it is limited to conduct for a specific nefarious purpose, it proscribes criminal activity that is well within the generic definition of kidnapping and thus constitutes a crime of violence. Put simply, the statute is what we mean when we say “kidnapping.” As such, the addition of a 16-level enhancement to Flores-Granados’ sеntence for reentry after a prior conviction for a crime of violence was proper and the judgment of the district court is hereby affirmed.
AFFIRMED.
Before KEENAN, FLOYD, and HARRIS, Circuit Judges.
Petition for review denied by published opinion. Judge HARRIS wrote the opinion, in which Judge KEENAN and Judge FLOYD joined.
PAMELA HARRIS, Circuit Judge:
Hobet Mining, LLC (“Hobet“) petitions for review of a decision awarding black lung benefits to Carl R. Epling, Jr. (“Epling“). The administrative law judge (“ALJ“) found that Epling was entitled to the benefit of the so-called “fifteen-year presumption,” a statutory provision that presumes eligibility for benefits when a
I.
A.
The Black Lung Benefits Act (“Act“) provides benefits to “coal miners who are totally disabled due to pneumoconiosis,” popularly known as black lung disease.
“[T]he existence and causes of pneumoconiosis are difficult to determine,” and Congress accordingly has “established a number of evidentiary presumptions to assist miners in proving their claims.” Broyles v. Dir., Office of Workers’ Comp. Programs, 824 F.2d 327, 328 (4th Cir. 1987). Among them is the fifteen-year presumption at issue in this case,
To that end,
if a miner was еmployed for fifteen years or more in one or more underground coal mines, . . . and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.
A coal mine operator may defeat the miner‘s claim by rebutting either of these presumptions. First, an operator may establish that the miner dоes not have pneumoconiosis arising from coal mine employment.
B.
After working for over twenty-one years in underground coal mines—most recently for petitioner Hobet in 1999—respondent Epling is unable to exert himself at all without experiencing shortness of breath. Because this impairment prevents Epling from performing his previous coal mine employment, which required heavy manual labor, it constitutes a totally disabling respiratory impairment for purposes of the Act.
Epling filed this claim for benefits under the Act in 2007. Due to Epling‘s long history of coal mine employment and totally disabling respiratory impairment, the ALJ reviewing his claim applied the fifteen-year presumption, reinstated in 2010 while Epling‘s case was pending. As required by that provision, the ALJ presumed both (1) that Epling has pneumoconiosis arising from coal mine employment, and (2) that Epling‘s pneumoconiosis is a cause of his disabling respiratory impairment. Together, those presumptions qualify Epling for benefits, absent rebuttal by Hobet.
On the first presumption—the existence of pneumoconiosis arising from coal mine employment—the ALJ found that Epling does indeed have pneumoconiosis arising from his coal mine employment. Hobet does not contest that finding on appeal. Accordingly, only the second presumption—that Epling‘s pneumoconiosis is a cause of his disability—is at issue here.
To rebut that disability-causation presumption, Hobet presented the ALJ with testimony from two doctors, Dr. Robert J. Crisalli (“Crisalli“) and Dr. Kirk Hippensteel (“Hippensteel“). The ALJ discredited Crisalli‘s testimony in a finding that Hobet does not challenge on appeal, and Hobet now relies entirely on Hippensteel‘s opinion, set forth in a number of submissions over the course of this litigation.
Critically, in submissions made between 2008 and 2011, Hippensteel was unpersuaded that Epling suffered from pneumoconiosis at all, though he conceded that the evidence was not unequivocal. As the ALJ explained, after reviewing chest CT scans, Hippensteel believed “that the evidence did not indicate pnеumoconiosis.” J.A. 80. In this key respect, Hippensteel‘s opinion was directly contrary to the ALJ‘s
Hippensteel attributed Epling‘s respiratory impairments not to pneumoconiosis but instead entirely to obesity and sleep apnea. Hippensteel acknowledged abnormalities in Epling‘s x-rays. He believed, however, that it would be “unusual” for Epling to have develoрed pneumoconiosis over ten years after he left work in the coal mines. See J.A. 89. And in light of the evidence against pneumoconiosis, he reasoned, it followed that the abnormalities were the result of the obesity and sleep apnea.
At the same time, Hippensteel asserted that even if, hypothetically, Epling did have pneumoconiosis arising from coal mine employment, that disease would not be the cause of his impairment. By way of explanation, Hippensteel offered only his agreement with the views of Crisalli, the now-discredited expert, reciting Crisalli‘s opinion as to the cause of Epling‘s gas exchange impairment.
In February of 2012, upon review of additional CT scans, Hippensteel‘s diagnostic opinion changed, and he concluded that Epling did indeed suffer from pneumoconiosis arising from coal mine employment. But Hippensteel did not rеvisit his causation analysis in light of this new finding. Instead, he simply recited again his prior conclusion that Epling‘s respiratory problems were not caused by pneumoconiosis.
Reviewing this evidence, the ALJ made the determination—central to this appeal—that Hippensteel‘s opinion that pneumoconiosis did not cause Epling‘s disability was entitled to “little weight” because (1) the doctor had failed to diagnose pneumoconiosis, in direct contradiction to the ALJ‘s own finding; and (2) Hippensteel‘s position “that it would be unusual for [Epling] to have pneumoconiosis ten years after he ended his coal mine employment” was “not in accord with the accepted view that [coal workers’ pneumoconiosis] is both latent and progressive.” J.A. 89; see also J.A. 98. Having discounted that key testimony, the ALJ went on to find that Hobet could not rebut the presumption that Epling‘s pneumoconiosis is a cause of his disability, and awarded benefits to Epling.
The Benefits Review Board (“Board“) affirmed the ALJ‘s decision. On the weight to be given Hippensteel‘s opinion, the Board, citing Scott v. Mason Coal Co., 289 F.3d 263 (4th Cir.2002), invoked the well-established rule discrediting causation testimony by a doctor who fails to diagnose pneumoconiosis when, as here, an ALJ has made a contrary finding. In such cases, a doctor‘s opinion as to causation may not be credited at all unless there are “‘specific and persuasive reasons‘” for concluding that the doctor‘s view on causation is independent of his or her mistaken belief that the claimant does not have pneumoconiosis, in which case it may be assigned, at most, “little weight.” Scott, 289 F.3d at 269-70 (quoting Toler v. E. Associated Coal Co., 43 F.3d 109, 116 (4th Cir.1995)).
Applying that standard, the Board held that the ALJ had “rationally discounted” Hippensteel‘s opinion. J.A. 98. Hippensteel‘s failure to diagnose pneumoconiosis could not be salvaged, the Board еxplained, by his hypothetical “assumption of the existence” of pneumoconiosis in deposition testimony. J.A. 99. And though Hippensteel ultimately accepted the diagnosis of pneumoconiosis in 2012, the Board reasoned, all of his discussion of his causation opinion predated that change of mind, and was coupled with his former unwillingness to diagnose pneumoconiosis. The Board therefore affirmed the ALJ‘s findings as to
Hobet timely filed this petition for review, arguing that the ALJ and the Board improperly discredited Hippensteel‘s opinion regarding the cause of Epling‘s disability.4 For the reasons that follow, we disagree.
II.
A.
Our review of a decision awarding black lung benefits is “limited.” Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir.2012). We ask only “whether substantial evidence supports the factual findings of the ALJ and whether the legal conclusions of the [Board] and ALJ are rational and consistent with applicable law.” Id.
To determine whether this stаndard has been met, we consider “whether all of the relevant evidence has been analyzed and whether the ALJ has sufficiently explained his rationale in crediting certain evidence.” Mingo Logan, 724 F.3d at 557. But it is for the ALJ, as the trier of fact, to make factual and credibility determinations, see id., and we therefore “defer to the ALJ‘s evaluation of the proper weight to accord conflicting medical opinions,” Harman, 678 F.3d at 310. So long as an ALJ‘s findings in this regard are supрorted by substantial evidence, they must be sustained. See id.
B.
The question in this appeal is whether Hippensteel‘s opinion regarding the cause of Epling‘s disability was properly discredited. In particular, we consider whether the ALJ and the Board erred by discrediting Hippensteel‘s causation analysis on the basis of his failure to diagnose pneumoconiosis arising from coal mine employment.
As the Board recognized, we are not writing on a сlean slate. Long-standing precedent establishes that a medical opinion premised on an erroneous finding that a claimant does not suffer from pneumoconiosis is “not worthy of much, if any, weight,” particularly with respect to whether a claimant‘s disability was caused by that disease. Grigg v. Dir., Office of Workers’ Comp. Programs, 28 F.3d 416, 419 (4th Cir.1994). This is a common-sense rule, for the credibility of a doctor‘s judgment as to whether pneumoconiosis is a cause of a miner‘s disability is necessarily influenced by the accuracy of his underlying diagnosis, which lies at the heart of any claim for black lung benefits. See Toler, 43 F.3d at 116. “It is usually exceedingly difficult for a doctor to properly assess the contribution, if any, of pneumoconiosis to a miner‘s death [or disability] if [the doctor] does not believe [pneumoconiosis] was present.” Soubik v. Dir., Office of Workers’ Comp. Programs, 366 F.3d 226, 234 (3d Cir.2004).
In this case, we agree with the Board that Hippensteel‘s opinion was entitled to no more than the “little weight” assigned it by the ALJ. First and most critically, Hippensteel failed to diagnose Epling‘s pneumoconiоsis, directly contrary to the finding of the ALJ. Under cases like Scott and Toler, that failure, by itself, would bar the ALJ from giving Hippensteel‘s opinion as to disability causation anything more than the “little weight” he accorded it. See Scott, 289 F.3d at 269-70; Toler, 43 F.3d at 116.
Moreover, this is not a case in which there are “specific and persuasive reasons” for thinking that a doctor‘s view of disability causation is independent from any misdiagnosis. See Toler, 43 F.3d at 116. On the contrary, substantial evidence supports the conclusion that Hippensteel‘s disability-causation opinion was closely tied to his belief that Epling did not suffer from pneumoconiosis arising from coal mine employment. Indeed, Hippensteel himself explained that it was because the evidence in the record did not substantiate a diagnosis of pneumoconiosis that he attributed the irregularities in Epling‘s x-rays to obesity and sleep apnea instead. That reasoning is irreconcilable with the ALJ‘s conclusion that Epling does in fact have pneumoconiosis. See
Hobet argues that Hippensteel salvaged the credibility of his causation opinion when he asserted that he would have reached the same conclusion even assuming that Epling did have pneumoconiosis. We disagree. A medical expert of course may opine credibly as to disability causation under an alternative set of circumstances. See, e.g., Island Creek Coal Co. v. Compton, 211 F.3d 203, 214 (4th Cir.2000). But as we have held, it is not enough for the expert simply to recite, without more, that his causation opinion would not change if the claimant had pneumoconiosis. See Scott, 289 F.3d at 268-69. Rather, such an alternative causation analysis, like any causation opinion, must be accompanied by some reasoned explanation—in this context, an explanation of why the expert would continue to believe that pneumoconiosis was not the cause of a miner‘s disability, even if pneumoconiosis were present.
Nor is Hippensteel‘s opinion as to causation rendered sound by his late-breaking determination, in 2012, that Epling does in fаct have pneumoconiosis. As the Board explained, the entirety of Hippensteel‘s causation reasoning predates his ultimate diagnosis of pneumoconiosis and, as discussed, rests primarily on the absence of that disease. At no point after diagnosing pneumoconiosis did Hippensteel revisit his earlier opinion to take into account the elimination of what had been the factual predicate for his view. So again, the ALJ was left without any explanation, in reports or testimony, of how Hippensteel might be able to reach the same conclusion regarding the cause of Epling‘s disability in light of his changed opinion regarding Epling‘s diagnosis. Absent that explanation, Hippensteel‘s 2012 restatement of his causation opinion was no more credible than its earlier iterations, and the ALJ permissibly discounted it.
In short, Hippensteel‘s initial failure to diagnose pneumoconiosis was cured neither by his hypothetical assumption of pneumoconiosis nor by his subsequent embrace of that diagnosis. Even standing alone, this defect would have justified the ALJ‘s credibility determination. See Scott, 289 F.3d at 269-70. But in this case, Hippensteel‘s failure to diagnose pneumoconiosis did not stand alone. Instead, it came with the doctor‘s testimony that it would be unusual for Epling to have developed pneumoconiosis over ten years after he left work in the coal mines—a judgment, the ALJ explained, that is “not in accord with the accepted view that [coal workers’ pneumoconiosis] is both latent and progressive.” J.A. 89. The ALJ was entitled to take this disagreement, too, into account in “evaluat[ing] . . . the proper weight to accord [the] conflicting medical opinions” at issue in this case, Harman, 678 F.3d at 311 (quoting Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342 (4th Cir. 1996)), further bolstering his decision to discount Hippensteel‘s opinion. When these grounds fоr discrediting Hippensteel‘s causation opinion are taken together, they undoubtedly provide the substantial evidence necessary to affirm on appeal the ALJ‘s finding that Hobet had failed to rebut the fifteen-year presumption. See id. at 310.
III.
For the foregoing reasons, we deny the petition for review.
PETITION FOR REVIEW DENIED