SUNNY RIDGE MINING COMPANY, INC., Pеtitioner, v. Herbert KEATHLEY and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
No. 14-3010.
United States Court of Appeals, Sixth Circuit.
Dec. 4, 2014.
Argued: Sept. 30, 2014.
Moreover, Jones’ testimony is corroborated by his wife Reva, who also testified that she observed Grubbs on the evening of the altercation. She testified to seeing Defendant raise a gun as her husband pulled away as if to shoot into the trunk of her husband‘s car. She also testified that after her husband drove away Defendant approached her car and “squatted down beside [her] with a gun in his hands” to talk to her. (J.A. 140.)
In the final analysis, Defendant fails to prevail on his request for a certificate of innocence not because the government can prove his guilt beyond a reasonable doubt—the burden with respect to a request for a certificate of innocence does not rest with the government—but because Defendant has not satisfied his burden of establishing his innocence by a preponderance of the evidence.
In a proceeding where Defendant, rather than the government, bears the burden of proof, the Jones’ testimony permits the district court to conclude that Defendant “failed tо establish that he did not commit the offense charged in the indictment.” Brunner, 200 F.2d at 279. The district court was tasked with resolving the conflicting evidence bearing on Defendant‘s alleged possession of the handgun, and we cannot say that its decision to credit evidence adverse to Defendant constituted an abuse of discretion.
CONCLUSION
For the foregoing reasons, the district court‘s order denying Defendant‘s motion for a certifiсate of innocence is AFFIRMED.
OPINION
ROGERS, Circuit Judge.
In this black lung benefits case the administrative law judge and the Benefits Review Board discounted the opinion of a doctor who, opining that pneumoconiosis had not caused Herbert Keathley‘s total disability, assumed that “bronchitis associated with coal dust exposure usually ceases with cessation of exposure.” The ALJ and the Board determined that this assumption was contrary to federal regulations, which state that “pneumoconiosis” may be “latent and progressive” and may arise after exposure ceases. Sunny Ridge Mining Company challenges this determination. Sunny Ridge also argues that the ALJ improperly weighed pulmonary function tests while determining that Keathley was totally disabled. The grant of black lung benefits must be upheld, however, because the ALJ could properly conclude that the doctor‘s opinion rested on a premise inconsistent with a federal regulation and that this inconsistency warranted discrediting the doctor‘s opinion.
Herbert Keathley worked at strip mines for sixteen-and-a-half years. He retired and his health deteriorated. Believing he had pneumoconiosis attributable to his work as a coal miner, he applied for benefits under the Black Lung Benefits Act,
During the initial hearing, Keathley established his eligibility for benefits by triggering
Sunny Ridge was originally successful in rebutting this presumptiоn by offering medical opinion evidence that Keathley did not suffer from pneumoconiosis caused by coal mine employment, in the form of testimony by Dr. Bruce Broudy. Dr. Broudy diagnosed Keathley with “a combination of
On appeal, the Benefits Review Board identified two errors in the ALJ‘s decision: the ALJ‘s weighing of the pulmonary function test results was improperly based solely upon a count оf the disability-indicating versus non-disability-indicating results, and the ALJ had erred in not addressing whether Dr. Broudy‘s reasoning for excluding coal mine dust exposure as a cause was inconsistent with the implementing regulations of the Black Lung Benefits Act. The Board vacated the ALJ‘s decision and remanded.
On remand, the ALJ reevaluated the pulmonary function tests. The ALJ noted that all the tests met the Department of Labor‘s regulatory standаrds and that no doctor had questioned the validity of any result. Therefore, the ALJ found that all the test results were “clearly valid representations of Keathley‘s pulmonary function at the time of each test.” The ALJ also found that the tests, which were all taken within a seven-month period, were “sufficiently contemporaneous to provide a probative assessment.” Against the argument that the pulmonary funсtion test with the highest (and non-qualifying) value was the best because it represented peak pulmonary capacity, the ALJ concluded that all the tests conforming to the regulatory standard, where no other basis for invalidation existed, were sufficiently probative to establish total disability, and that such a blanket preference for non-qualifying values was contrary to regulations. Moreover, “on three out of four days of pulmonary testing over the course of seven months, on two of three more recent test dates, and on the most recent test day, Keathley‘s pulmonary function met the total disability thresholds.” The ALJ concluded that all seven of the tests were “equally probative” and that because five of the “conforming, valid, and probative” tests indicated total disability, Keathley had met his burden of proof of establishing total disability.
The ALJ also reconsidered Dr. Broudy‘s diagnosis. The ALJ found that Dr. Broudy‘s diagnosis was indeed inconsistent with the regulations and discredited it. According to the ALJ, Dr. Broudy‘s statement—that “coal mine dust-related chronic bronchitis should dissipate with cessation of coal mine dust exposure and usually stops with exposure cessation“—was “inconsistent with the regulatory definition of pneumoconiosis in
On appeal, the Board affirmed the ALJ‘s weighing of the pulmonary function tests as being based upon substantial evidence. The Board‘s decision in this regard consisted entirely of its rejеction of Sunny Ridge‘s arguments for giving greater weight to the two non-qualifying tests. First, Sunny Ridge argued that the non-qualifying tests deserved greater weight because they were more recent and more reliable. The Board approved the ALJ‘s reliance on the lack of any evidence calling into question the reliability of any test, and the Board determined that the ALJ had permissibly concluded that the tests were equally reliаble. The Board upheld the ALJ‘s finding that the tests established total disability as based upon substantial evidence.
The Board also affirmed the ALJ‘s decision to discredit Dr. Broudy‘s testimony as inconsistent with
Sunny Ridge now petitions for review. The Director of the Office of Workers’ Compensation Programs has filed a brief urging denial of Sunny Ridge‘s petition.
The ALJ did not err by discounting Dr. Broudy‘s testimony for being inconsistent with
Dr. Broudy‘s statement about coal mine dust-related chronic bronchitis was a statement about a form of legal pneumoconiosis. Legal pneumoconiosis is not medical pneumoconiosis; it is a legal fiction—long recоgnized by courts and later codified in regulations—designed to facilitate the remedial purposes of the Black Lung Benefits Act. The term goes beyond mere “clinical pneumoconiosis,” which is the set of chronic lung diseases recognized by the medical community as being characterized by the permanent deposition of particulate matter in the lungs and the subsequent fibrotic reaction of the lungs.
Federal regulations recognize pneumoconiosis, including legal pneumoconiosis, as a latent and progrеssive disease that may first become detectable after cessation of coal dust exposure. This conclusion is compelled by previous decisions of this circuit. For instance, in Cumberland River, we upheld an ALJ‘s decision to discredit the testimony of a doctor who opined that the miner‘s chronic bronchitis was not caused by coal dust when the doctor justified that opinion by reference to the time pаssed since the miner‘s last exposure to coal dust. 690 F.3d at 487-88. These decisions are consistent with a plain reading of the regulation. Subsection (a) of
Sunny Ridge contends that Dr. Broudy‘s testimony is consistent with the regulations because the regulations nowhere state that “chronic bronchitis” is “a latent and progressive disease.” But the testimony at issue was about “chronic bronchitis caused by coal dust exposure,” which fits neatly within the definition of legal pneumoconiosis—as Dr. Broudy knew.1
The ALJ could reasonably find that Dr. Broudy‘s medical opinion about legal pneumoconiosis was based on a premise inconsistent with the Act. When asked how he ruled out coal dust exposure as a cause, Dr. Broudy replied that “for one thing, the bronchitis associated with coal dust exposure usually ceases with cessation of exposure.” But this was not just “one thing“; it was the only thing. It was the sole reason Dr. Broudy gave for eliminating coal dust exposure as thе cause of Keathley‘s chronic bronchitis. The ALJ considered the possibility that the statement “may have just represented a generalized comment upon which Dr. Broudy did not rely,” but Dr. Broudy never disclaimed reliance on the statement and gave no other reason for ruling out coal dust exposure during the deposition. Sunny Ridge argues that the words “usually ceases with cessation of exposure,” when properly read, are not inconsistent with the Act.
Notwithstanding Sunny Ridge‘s alternative argument, the ALJ properly weighed the pulmonary function tests because he considered more than the mere quantitative differences in the test results. All parties agree that if the ALJ‘s detеrmination was based solely upon a count of the test results, then the ALJ erred under Woodward v. Director, Office of Workers’ Compensation Programs, 991 F.2d 314 (6th Cir. 1993). It is unnecessary to decide whether Woodward should be extended to cover the evaluation of pulmonary function tests, because even if Woodward applies, the ALJ satisfied Woodward‘s standard.2
In his 2013 decision awarding benefits, the ALJ performed a qualitative analysis of the pulmonary function tests that was sufficient under Woodward. While the Benefits Review Board ruled that the ALJ‘s 2010 dеcision denying benefits “was improperly based solely upon a count of the ... studies,” the same criticism cannot be leveled against the ALJ‘s 2013 decision. In that decision, the ALJ determined that every test conformed to the Department of Labor‘s regulatory standards; that no doctor had questioned the validity of any result; that all the tests, which were taken within a seven-month period, were “sufficiently contemporaneous to provide a probative assessment“; and that tests representing peak pulmonary capacity should not be preferred because such a preference would be contrary to regulations. Looking at the days on which the tests were performed, “on three out of four days of pulmonary testing over the course of seven months, on two of three more recent tеst dates, and on the most recent test day, Keathley‘s pulmonary function met the total disability thresholds.” The ALJ concluded that all seven of the tests were “equally probative” and that because five of the “conforming, valid, and probative” tests indicated total disability, Keathley had met his burden of proof of establishing total disability.
As the Director notes in his brief, Sunny Ridge does not challenge the ALJ‘s evaluation of the individual tests, identify any factor the ALJ overlooked, or offer any basis for distinguishing among the tests. The only alternative argued by Sunny Ridge is that, if all the studies are equally probative, then the evidence is in equipoise and Keathley has failed to carry his burden of proof. But this result is not required by Woodward, which contemplated the consideration of quantitative differences in the evidence so long as qualitative differences were also considered. Woodward involved an application of the Administrative Procedure Act‘s provision for the exclusion of “unduly repetitious” evidence, not a per se ban on using differences in the quantity of evidence to reach conclusions. Woodward, 991 F.2d at 321 (citing
For the reasons given above, we deny the petition for review.
Lorrie THOMPSON, Plaintiff-Appellant, v. BANK OF AMERICA, N.A., et al., Defendants-Appellees.
No. 14-5561.
United States Court of Appeals, Sixth Circuit.
Dec. 5, 2014.
Rehearing Denied Dec. 24, 2014.