MIDLAND COAL COMPANY and OLD REPUBLIC INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor, and George W. Shores, Respondents.
No. 02-2734.
United States Court of Appeals, Seventh Circuit.
Decided Feb. 18, 2004.
Argued April 18, 2003.
358 F.3d 486
Christian P. Barber (argued), Department of Labor, Office of the Solicitor, Washington, DC, Thomas E. Johnson (argued), Johnson, Jones, Snelling, Gilbert & Davis, Chicago, IL, for Respondents.
Thomas O. Shepherd, Jr., Benefits Review Board, Washington, DC, for Party-in-Interest.
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
George W. Shores worked for Midland Coal Company as a miner for 26 years. He now suffers from a variety of respiratory and pulmonary problems. On three separate occasions, he was unsuccessful in his efforts to obtain benefits under the Black Lung Benefits Act,
Shores worked for Midland as a coal miner from 1954 until his retirement in 1982. Much of his time was spent above ground working as a welder at strip or surface mines, but even there, he was exposed to substantial amounts of coal dust. He also smoked for some thirty years, but he quit in 1971, eleven years before he retired. When Shores began to suffer from various respiratory problems, he applied for benefits under the Black Lung Benefits Act. He was rejected three times, in 1981, 1994, and 1996. Meanwhile, his respiratory symptoms worsened and his overall health deteriorated. Shores suffered his third heart attack in 1997, and in 1998 he applied for benefits for a fourth time.
This time, the ALJ relied on the duplicate-claim provisions of
The ALJ decided that Dr. Cohen‘s opinion was the best-reasoned of the three that were worthy of consideration, largely because Drs. Skillrud and Selby had relied on an unduly narrow definition of pneumoconiosis by requiring chest x-ray evidence of coal-dust exposure. This, the ALJ noted, was a standard component of a medical diagnosis, but was merely one of several ways to establish eligibility for benefits under the “legal” or “regulatory” definition of the ailment. See
II
Midland offers two ambitious arguments at the outset, but both fall short. Because they involve purely legal propositions, our review is de novo. Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 478 (7th Cir.2001).
Midland first urges that Shores‘s claim for benefits was barred on res judicata grounds. It argues that nothing in the Act overrides ordinary principles of finality and claim preclusion or authorizes the re-filing of claims that have finally been denied after an opportunity for a full and fair adjudication. This is not, however, an accurate statement of the special preclusion rules that apply in this area. At the time of Shores‘s fourth filing, an en banc decision of this court had interpreted the regulations contained at
Midland also assaults the ALJ‘s finding that pneumoconiosis can be progressive and latent. The ALJ relied on the implementing regulation set forth at
Whether pneumoconiosis (including the condition described for these purposes as “legal” pneumoconiosis) is a disease that can be latent and progressive is a scientific question. The Department of Labor‘s regulation reflects the agency‘s conclusion on that point. Midland is now challenging that scientific finding, but we see no reason to substitute our scientific judgment, such as it is, for that of the responsible agency. Prior to the adoption of
At that time, because the agency had not gone through formal rule-making procedures, this deference was not compelled under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), but it was appropriate under United States v. Mead Corp., 533 U.S. 218, 234-35 (2001). See Alaska Dep‘t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004); Wash. State Dep‘t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385 (2003). Now that the agency has issued a formal regulation using full notice-and-comment procedures, Chevron imposes on the mine operators the heavy burden of showing that the agency was not entitled to use its delegated authority to resolve the scientific question in this manner. Midland has not undertaken to show why the Department‘s conclusion was not itself supported by substantial evidence (a somewhat different question from whether it had the authority to adopt a general rule on the point). Unless and until Midland did so, Shores was fully entitled to rely on the rule without the need to prop it up by introducing yet more independent scientific evidence tending to show that it is scientifically valid. We note as well that our colleagues in the D.C. Circuit concluded in National Mining Association v. Department of Labor, 292 F.3d 849, 863 (D.C.Cir.2002), that
Taking a more modest tack, Midland also argues that a claimant must now show that she suffers from one of the particular kinds of pneumoconiosis that are likely to manifest latent and progressive forms. Midland gleans this new requirement from the D.C. Circuit‘s National Mining Association opinion. Along the way to upholding
III
Midland also argues that the ALJ‘s decision was in any event not supported by substantial evidence. Here, we apply the familiar rule that requires us to uphold the ALJ‘s findings if they are supported by relevant evidence that a “‘rational mind might accept as adequate to support a conclusion.‘” Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir.1992) (quoting Peabody Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir.1988)).
In order to be entitled to an award of benefits, a claimant must prove (1) a totally disabling form of (2) pneumoconiosis (3) caused by coal mine employment. See Pittston Coal Group v. Sebben, 488 U.S. 105, 114 (1988). In addition, in order to proceed on a subsequent claim, a claimant must show that her condition has changed with respect to at least one of the elements of entitlement. See
Midland first attacks the ALJ‘s decision to credit the positive diagnosis of Dr. Cohen and to discount the contrary diagnoses of Drs. Skillrud and Selby. Shores relied on physician opinion to establish the existence of pneumoconiosis, which is one of the ways permitted in
Midland fails to acknowledge, however, that this court has “allow[ed] an ALJ to disregard medical testimony when a physician‘s testimony is affected by [her] subjective personal opinions about pneumoconiosis which are contrary to the congressional determinations implicit in the Act‘s provisions.” Blakley v. Amax Coal Co., 54 F.3d 1313, 1321 (7th Cir.1995) (quoting Pancake v. AMAX Coal Co., 858 F.2d 1250, 1257 (7th Cir.1988)); see also Lane v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir.1997) (“[A] physician‘s opinion based on a premise ‘antithetical’ to the Act is not probative.“). In Blakley, we specifically noted that a medical opinion can be discredited as hostile where “a physician states that he will never diagnose the existence of pneumoconiosis in the absence of a positive x-ray.” 54 F.3d at 1321. This is precisely the reason advanced by the ALJ in support of his decision to credit the opinion of Dr. Cohen
The question remains, however, whether the opinions of Drs. Skillrud and Selby were so compelling that the only permissible choice for the ALJ was to rely on them. We think not. For example, the ALJ based his conclusion that Dr. Skillrud was insisting on x-ray evidence on Dr. Skillrud‘s citation of a study from the medical literature finding that “significant airways obstruction is indeed rare in coal miners in the absence of progressive massive fibrosis or cigarette smoking.” The ALJ reasoned that, because massive fibrosis can only be diagnosed via x-ray evidence, Dr. Skillrud‘s statement was equivalent to a finding that pneumoconiosis is not diagnosable without x-ray evidence. Such a position is contrary to the Act‘s allowance of means other than radiographic evidence to establish the existence of the disease. We agree with Midland that it is possible to understand Dr. Skillrud‘s statement in a different way, namely, simply as support for his conclusion that it was Shores‘s smoking history, and not pneumoconiosis, that was causing his obstructive impairment. Nevertheless, on substantial evidence review we would have to find that the latter interpretation was the only permissible one, not that it was one of several. In that light, the ALJ‘s inference of hostility to the Act was permissible.
The ALJ decided to discount Dr. Selby‘s opinion for several reasons: his reference to the absence of medical literature supporting the proposition that coal dust exposure can cause pneumoconiosis, his emphasis on the absence of chest x-ray evidence, and his reliance on the absence of pulmonary problems at the time of Shores‘s retirement from coal mining in 1982. Each of these points, the ALJ concluded, runs contrary to the notion that pneumoconiosis is a progressive disease. Once again, we do not disagree with Midland that the better reading of Dr. Selby‘s opinion might be merely that latent or progressive pneumoconiosis is rare. Furthermore, Midland may be correct that the ALJ‘s treatment of the relative contribution to the disease made by Shores‘s former smoking and his exposure to coal dust could have been more careful. Dr. Selby thought that cigarettes, and not coal dust, were the most likely cause of Shores‘s obstructive impairment, but the ALJ criticized this finding because it did not confront the fact that Shores quit smoking in 1971, more than a decade before his retirement.
Nevertheless, the record as a whole shows that the ALJ was within bounds when he chose to credit the opinion of Dr. Cohen over those of Drs. Skillrud and Selby. As the ALJ pointed out, Dr. Cohen did a better job of integrating all of the available evidence—particularly blood-gas test results showing significant diffusion impairment as well as test results showing little reversibility, both of which tend to disprove bronchial asthma—and he also had the advantage of reading through, commenting on, and specifically refuting the alternate diagnoses of both Dr. Skillrud and Dr. Selby. Even if another finder of fact might have made the opposite choice, the ALJ‘s decision to credit the opinion of Dr. Cohen was supported by substantial evidence that a rational mind
Midland next attacks the ALJ‘s finding that Shores established a material change in at least one condition of entitlement. See
Midland‘s third and final argument is that substantial evidence does not support the ALJ‘s finding that Shores proved total disability. A miner is “totally disabled” within the meaning of the statute and implementing regulations if
the miner has a pulmonary or respiratory impairment which, standing alone, prevents or prevented the miner:
(i) From performing his or her usual coal mine work; and
(ii) From engaging in gainful employment in the immediate area of his or her residence requiring the skills or abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity over a substantial period of time.
See
Midland first claims that there was insufficient evidence in the record to support the conclusion that Shores‘s pneumoconiosis prevents him from working. Shores relied on
Midland‘s other argument is that Shores cannot show the requisite “total disability” because his affliction by a variety of non-respiratory, non-pulmonary ailments—including his advanced age (83), history of three heart attacks, severe coronary artery disease, prostate cancer, degenerative joint disease, and peptic ulcer disease—would now prevent him from working as a coal miner in any event. Midland points to several decisions of this court that seem to suggest as much. See, e.g., Freeman United Coal Mining Co. v. Foster, 30 F.3d 834, 839 (7th Cir.1994) (claimant disabled by back injury not entitled to black lung benefits); Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1394 (7th Cir.1994) (miner disabled by stroke not entitled to black lung benefits); Shelton v. Dir., OWCP, 899 F.2d 690, 693 (7th Cir.1990) (remanding, but suggesting that a miner disabled by pulmonary disease unrelated to coal mining not entitled to black lung benefits); Wetherill v. Dir., OWCP, 812 F.2d 376, 382-83 (7th Cir.1987) (miner disabled by heart disease not entitled to black lung benefits). In rejecting benefits claims or remanding for further inquiry, these cases rely on the “contributing cause” formulation, under which pneumoconiosis must be “necessary, but not sufficient, to bring about the miner‘s disability.” Vigna, 22 F.3d at 1394; Shelton, 899 F.2d at 693. Midland also leans heavily on the following dictum from Meyer v. Zeigler Coal Co., 894 F.2d 902, 908 (7th Cir.1990):
Eventually, every coal miner, whether [he] suffer[s] from pneumoconiosis or not, will no longer be able to engage in the level of coal mining or comparable work as [he] could when [he] was younger. However, the Act does not compensate disability due to age, it compensates disability due to pneumoconiosis caused by coal mining.
While snippets of these decisions may seem to support Midland, in the end they do not control. For one thing, all of these cases considered benefits claimants prior to the 1997 amendments to
For purposes of this section, any nonpulmonary or nonrespiratory condition or disease, which causes an independent disability unrelated to the miner‘s pulmonary or respiratory disability, shall not be considered in determining whether a miner is totally disabled due to pneumoconiosis. If, however, a nonpulmonary or nonrespiratory condition or disease causes a chronic respiratory or pulmonary impairment, that condition or disease shall be considered in determining whether the miner is or was totally disabled due to pneumoconiosis.
We are not so sure that the amendment was such a pointed reaction to our earlier decisions, even though the commentary accompanying the amendments to
It is true that in Shelton, we considered a claim under
That problem, however, had been addressed in Amax Coal Co. v. Director, OWCP, 801 F.2d 958 (7th Cir.1986), where we recognized that “‘[t]he concurrence of two sufficient disabling medical causes, one within the ambit of the Act, and the other not, will in no way prevent a miner from claiming benefits under the Act,‘” id. at 963 (citing Peabody Coal Co. v. Dir., OWCP, 778 F.2d 358, 363 (7th Cir.1985)). See also Hawkins v. Dir., OWCP, 907 F.2d 697, 704 n. 11 (7th Cir.1990)
In short, one can imagine four different scenarios. First, in cases in which pneumoconiosis is both necessary and sufficient to the miner‘s disability—that is, where pneumoconiosis is unaccompanied by any other disabling condition—a miner who satisfies the other elements of entitlement will receive benefits. Second, a miner whose pneumoconiosis is necessary but not sufficient—perhaps because her non-disabling pneumoconiosis, when combined with another condition that is also not by itself disabling, renders her totally disabled—is also entitled to benefits, again so long as she can establish the other statutory elements. Third, a miner whose pneumoconiosis is neither necessary nor sufficient to her disability—that is, she does not suffer from pneumoconiosis, or her mild pneumoconiosis is accompanied by a totally disabling non-respiratory and non-pulmonary condition—will not receive benefits. Finally, we have the situation of a miner whose pneumoconiosis is sufficient, but not necessary, to render her totally disabled. In such a case, the miner suffers from multiple conditions, including those related to exposure to coal dust and those that are not, that are each independently sufficient to render the miner totally disabled. As we said in Amax, the sufficiency of the pneumoconiosis is enough, given the purposes of this Act, to support an award of benefits in this situation as well.
Shores fits under either scenario 2 or scenario 4, depending on how one chooses to view his other ailments. The important point; however, is the ALJ‘s finding that Shores‘s pneumoconiosis is by itself totally disabling. This is enough to meet the requirements of
IV
For the reasons stated above, the Board‘s order is ENFORCED.