ZURICH AMERICAN INSURANCE GROUP v. JOANNA DUNCAN, widow of and on behalf of Raymond Duncan; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR
No. 17-3625
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
May 3, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 18a0085p.06. On Petition for Review of an order of the Benefits Review Board, United States Department of Labor. Nos. 16-0327 BLA; 16-0358 BLA.
Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
COUNSEL
ON BRIEF: Cheryl Lynn Intravaia, FEIRICH/MAGER/GREEN/RYAN, Carbondale, Illinois, for Petitioner. Gary K. Stearman, Ann Marie Scarpinio. UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.
MOORE, J., delivered the opinion of the court in which CLAY, J., joined, and KETHLEDGE, J., joined in the result. KETHLEDGE, J. (pp. 17-19), delivered a separate opinion concurring in the judgment.
KAREN NELSON MOORE, Circuit Judge. Raymond Duncan, a veteran of the U.S. Air Force, was born in 1947 and was a long-term resident of Middlesboro, Kentucky. He worked in the coal-mining industry for over twenty years and developed severe respiratory issues. Raymond filed a claim for benefits under the Black Lung Benefits Act, but he died while his claim was still pending. Raymond‘s claim was consolidated with a claim for survivor‘s benefits submitted by his widow, Joanna Duncan. The administrative law judge (“ALJ“) awarded benefits to Joanna, on both Raymond‘s behalf and as his surviving spouse. The Benefits Review Board (“Board“) affirmed. Zurich American Insurance Group (“Zurich American“), the insurer of Straight Creek Coal Resources, now petitions this court to review the award. For the following reasons, we DENY its petition.
I. BACKGROUND
A. Statutory and Legal Framework
The Black Lung Benefits Act (“BLBA“),
To establish entitlement to benefits under the BLBA, a person must show that (1) he or she is a miner (2) who suffers from pneumoconiosis (3) arising out of coal mine employment, which (4) contributes to (5) his or her total disability.
B. Factual History
Raymond began working as an electrician in a strip mine in 1974, and worked in coal mines in a variety of occupations until 1999—except for a period between January 1992 and August 1993. Pet‘r App‘x at A105 (Emp‘t Hist. at 1). His last job in the coal industry was as a heavy-equipment operator and electrician for Straight Creek Coal at a coal preparation plant from 1998 to 1999. Id. In a handwritten letter, Raymond described working “under some of the worst condition[s] ever.” Id. at A219
Raymond, a non-smoker, suffered from severe respiratory problems. Id. Raymond explained: “Right now [October 2009], I can‘t walk to the end of the street I live on without having to rest and catch my breath.” Id. at A219 (Duncan Oct 1, 2009 Ltr. at 1); id. at A41 (ALJ Dec. at 4). Joanna testified that her husband‘s breathing “was awful” and “[h]e couldn‘t even go down the road without taking a breath. We would go to the doctor‘s office and it would take us 30 minutes to get into the doctor‘s office because he had shortness of breath.” Id. at A85-86 (May 2, 2014 Hr‘g Tr. at 11-12). Raymond had to use a CPAP machine, oxygen, and a nebulizer. Id. at A87 (May 2, 2014 Hr‘g Tr. at 13). Joanna testified that her husband had been diagnosed with pneumoconiosis, as well as non-alcoholic steatohepatitis potentially arising from exposure to chemicals in the mines. Id. at A87-88 (May 2, 2014 Hr‘g Tr. at 13-14).
Raymond died on August 29, 2011. Id. at A365 (Death Certificate). His causes of death were listed as cirrhosis, non-alcoholic steatohepatitis, obesity, and pneumoconiosis. Id.
C. Procedural History
Raymond filed his claim for benefits on May 28, 2009. Id. at A100-03 (Claim for Benefits). On March 8, 2010, the District Director awarded benefits on Raymond‘s claim. Id. at A230-42 (Mar. 8, 2010 Proposed Dec. & Order). Zurich American—Straight Creek Coal‘s insurer—contested the Department of Labor‘s findings and requested a formal hearing before an ALJ. Id. at A187-88 (Identification of Potentially Liable Responsible Operator); id. at A243 (Mar. 13, 2010 Request for Hr‘g).
Following Raymond‘s death in August 2011, Joanna filed a claim for survivor‘s benefits. Id. at A313-314 (Survivor‘s Claim for Benefits). The District Director subsequently awarded her benefits. Id. at A316-324 (Nov. 14, 2011 Proposed Dec. & Order). Zurich American contested the award of survivor‘s benefits, requested a formal hearing before an ALJ, and asked for the miner‘s and claimant‘s claims to be consolidated. Id. at A325-26 (Nov. 21, 2011 Request for Hr‘g).
The ALJ held a hearing on May 2, 2014, at which Joanna testified. Id. at A74-96 (May 2, 2014 Hr‘g Tr.). The ALJ issued a decision awarding benefits on March 30, 2016. Id. at A38-73 (ALJ Dec.). The ALJ concluded that: (1) Zurich American had not rebutted the presumption that Raymond had timely filed his claim for benefits;
Zurich American appealed the ALJ‘s decision to the Board. Id. at A20 (Board Dec. at 2). Reviewing the ALJ‘s decision under the substantial-evidence standard, id. at A21 (Board Dec. at 3), the Board affirmed the award of benefits to the miner and the claimant, id. at A32-33 (Board Dec. at 14-15). This petition for review followed.
II. DISCUSSION
A. Standard of Review
In black-lung-benefits cases, we review the decisions of the Board under a mixed standard. “[W]e review the Board‘s legal conclusions de novo.” Ogle, 737 F.3d at 1068. “While we must affirm the Board‘s decision unless the Board has committed legal error or exceeded its scope of review, our review actually focuses on whether the ALJ‘s decision is supported by substantial evidence.” Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1056 (6th Cir. 2013). The ALJ must have correctly applied the germane law to reach a conclusion supported by substantial evidence. Id. “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ogle, 737 F.3d at 1068-69 (quoting Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir. 1985)). “In deciding whether the substantial evidence standard is satisfied, we consider whether the ALJ adequately explained the reasons for crediting certain testimony and documentary evidence over other testimony and documentary evidence.” Cent. Ohio Coal Co., 762 F.3d at 488-89 (quoting Greene v. King James Coal Mining, Inc., 575 F.3d 628, 634 (6th Cir. 2009)). “‘We do not reweigh the evidence or substitute our judgment for that of the ALJ’ and ‘[w]e will not reverse the ALJ‘s decision merely because ‘we would have taken a different view of the evidence were we the trier of facts.‘” Ramage, 737 F.3d at 1056 (first quoting Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602, 606 (6th Cir. 2001), superseded by regulation on other grounds as stated in Cumberland River Coal Co. v. Banks, 690 F.3d 477 (6th Cir. 2012); and then quoting Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985)).
B. Timeliness of Miner‘s Claim
Zurich American first argues that the ALJ‘s finding that Raymond timely filed his BLBA claim was not supported by substantial evidence. Miners seeking benefits under the BLBA must file their claims within three years of being informed of “a medical determination of total disability due to pneumoconiosis.”
Raymond filed his claim on May 28, 2009. Pet‘r App‘x at A100-03 (Claim for Benefits). Thus, to rebut the presumption of timeliness, Zurich American must show that a medical determination of total disability due to pneumoconiosis was communicated to Raymond prior to May 28, 2006. Kirk, 264 F.3d at 607. The ALJ found that Zurich American had not carried its burden
Zurich American argues that Joanna‘s testimony is sufficient to rebut the presumption of timeliness. At the hearing, Joanna was unsure of when Raymond‘s doctors told him that he was totally disabled due to pneumoconiosis. Pet‘r App‘x at A94 (May 2, 2014 Hr‘g Tr. at 20). She testified that he was informed prior to their marriage in 2009, but she guessed at several dates: 2000, 2004, and 2005. Id. at A92-94 (May 2, 2014 Hr‘g Tr. at 18-20). When the ALJ further questioned Joanna about the date that Raymond learned of his total disability due to pneumoconiosis, she said she could only guess because “I don‘t know. I don‘t know the date.” Id. at A94 (May 2, 2014 Hr‘g Tr. at 20). The ALJ characterized Joanna‘s testimony about the timing as “equivocal at best.” Id. at A43 (ALJ Dec. at 6).
The ALJ also reviewed Raymond‘s medical records, which Zurich American had cited to support its argument that Raymond‘s claim was untimely, and concluded that they did not help Zurich American satisfy its burden. Id. Treatment notes from the Mountain Home VA Medical Center dated March 17, 2003 and September 15, 2003 state that Raymond was disabled, but do not diagnose or specify the cause of that disability. Id. at A1263, A1450 (VAMC Notes at 169, 301). Raymond‘s treating physician, Dr. Moore, diagnosed him as totally disabled due to pneumoconiosis on April 12, 2011. Id. at A1470 (Dr. Moore Notes at 3) (“I had a long talk w[ith] this [patient] and I fell [sic] that in relationship to his pneumoconiosis, 22 years of coal mine dust exposure, I feel this [patient] is 100% disabled just w[ith] his pneumoconiosis. He has never smoked.“); see also id. at A1468 (Dr. Moore Notes at 1) (“Also had a long talk w[ith] [patient] about pneumoconiosis.“).
Zurich American argues that even if the ALJ relied on the latest date which Joanna mentioned—2005—this date falls outside of the three-year time limit, and thus Zurich-American satisfied its burden of rebutting the presumption of timeliness. This argument misunderstands the basis of the ALJ‘s decision. The ALJ, relying both on Joanna‘s explicit statements that she did not know when Raymond was informed of his total disability due to pneumoconiosis and on her equivocating testimony on this point, concluded that Joanna‘s testimony was not sufficient evidence to rebut the presumption of timeliness. Pet‘r App‘x at A43 (ALJ Dec. at 6). In other words, the ALJ credited none of the dates Joanna mentioned during her testimony, because she stated they were all guesses. The ALJ buttressed this conclusion by reviewing Raymond‘s medical records, which proved only that Raymond was informed of his total disability due to pneumoconiosis in 2011—two years after he filed his BLBA claim. Id. The ALJ‘s conclusion that Zurich American failed to rebut the presumption of timeliness is supported by substantial evidence.
C. Invocation of the Fifteen-Year Presumption
The ALJ found that Raymond had worked for at least fifteen years in qualifying employment, and Zurich American conceded that Raymond had a total respiratory disability. Thus, the ALJ concluded that the fifteen-year presumption in
Qualifying employment includes either work in an underground coal mine or “in a coal mine other than an underground mine” with “substantially similar” conditions
Raymond worked only in surface mines or coal-preparation plants during his career, so the ALJ relied on this regulation to determine whether Raymond‘s mining employment was “substantially similar” to underground mining. Pet‘r App‘x at A45 (ALJ Dec. at 8). Zurich American makes a two-pronged attack on the ALJ‘s application of
1. Validity of 20 C.F.R. § 718.305(b)(2)
Zurich American concedes that this court has previously accepted and applied the regulatory definition in
This court, however, has never squarely considered the merits of the argument that
Zurich American attempts to argue that the statute‘s intent about the meaning of “substantially similar” is unambiguous, but it points to no authority explaining what Congress intended for this phrase to mean. “[W]e can discern no plain meaning of the requirement of ‘substantial similarity.’ Instead, immediately apparent is the fact that the Act does not specify whether a claimant must establish similarity to a particular underground mine, a hypothetical underground mine, the best, worst, or an average underground mine.” Midland Coal Co., 855 F.2d at 511. Because Congress‘s intent on this specific question is not clear, we move to Chevron step two. See McLean, 881 F.3d at 1222-23 (analyzing the validity of
Under Chevron step two, “we may not disturb an agency rule unless it is arbitrary or capricious in substance, or manifestly contrary to the statute.” Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011) (internal quotation marks omitted). And we “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading [we] would have reached if the question initially had arisen in a judicial proceeding.” Chevron U.S.A. Inc., 467 U.S. at 843 n.11.
In promulgating
Benefits Act, 78 Fed. Reg. at 59,105. The Department of Labor included the modifier “regularly” in order “to clarify that a demonstration of sporadic or incidental exposure is not sufficient to meet the claimant‘s burden.” Id.
Because the Department of Labor‘s detailed explanation “reasonably and persuasively indicates why the standard adopted in
2. Application of 20 C.F.R. § 718.305(b)(2)
Zurich American argues, in the alternative, that the ALJ‘s conclusion that Raymond was regularly exposed to coal
In his employment history, Raymond indicated that he had worked at a mine and had been exposed to “dust, gases, or fumes” from 1974 to 1991 and again from 1993 until his retirement from coal mining in 1999. Pet‘r App‘x at A105 (Emp‘t Hist. at 1). Raymond wrote that “I‘ve had to breathe coal dust all my work in the mines . . . .” Id. at A219 (Duncan Oct 1, 2009 Ltr. at 1); id. at A41 (ALJ Dec. at 4). The ALJ found that there was no “discernable reason to doubt the credibility” of Raymond‘s description of his working conditions. Id. at A46 (ALJ Dec. at 9).
The ALJ also noted that Raymond‘s narrative was supported by the treatment notes of his treating physician, Dr. Moore, as well as by Dr. Westerfield, a doctor whose expert opinion was proffered by Zurich American. Id. Dr. Westerfield noted that Raymond had an “adequate history of exposure to coal and rock dust from his work in surface mining and at the coal preparation plant to develop pneumoconiosis.” Id. at A409-10 (Dr. Westerfield Op. at 5-6). Similarly, Dr. Moore noted that Raymond “was exposed to extremely high levels of dust his whole 22 years of work.” Id. at A1468 (Dr. Moore Notes at 1). Finally, the ALJ stated that Joanna‘s testimony about Raymond‘s very dusty face and clothing when he returned from work buttressed the finding that Raymond was regularly exposed to coal dust during the last four years of his employment. Id. at A46 (ALJ Dec. at 9).
Zurich American‘s principal complaint about the ALJ‘s fact-finding appears to be that the evidence regarding Raymond‘s exposure to dust is anecdotal and neither he nor his widow provided evidence of “the actual dust conditions.” Pet‘r Br. at 24. But the Department of Labor has recognized that “a claimant‘s dust exposure evidence will be inherently anecdotal” because claimants “generally do not control . . . technical information about the mines in which the miner worked.” Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act, 78 Fed. Reg. at 59,105. The Department justified determinations of the degree of coal dust exposure based on anecdotal evidence on the underlying purposes of the fifteen-year presumption—to assist claimants in proving entitlement to benefits—and the fact that Congress has expressly allowed lay evidence to be considered in determining the validity of claims. Id. (citing
Thus, we affirm the ALJ‘s determination that Raymond had at least fifteen years of qualifying employment. Therefore, Raymond had successfully invoked the fifteen-year presumption.
D. Rebuttal of the Fifteen-Year Presumption
The ALJ found that Zurich American failed to rebut the fifteen-year presumption because, although it demonstrated that Raymond did not have clinical pneumoconiosis, it failed to demonstrate that Raymond did not have legal pneumoconiosis that, in part, caused his total disability. Pet‘r App‘x at A70 (ALJ Dec. at 33). In front of both the Board and this court, Zurich American contests the ALJ‘s finding that it failed to establish Raymond did not have legal pneumoconiosis. Id. at A32 (Board Dec. at 14).
In determining whether Zurich American demonstrated that Raymond did not have legal pneumoconiosis, the ALJ considered the medical opinions of Drs. Baker, Westerfield, and Zaldivar, as well as the treatment notes of Raymond‘s treating physician, Dr. Moore. Id. at A51-68 (ALJ
The ALJ also discounted Dr. Westerfield‘s conclusion that Raymond did not have legal pneumoconiosis because Dr. Westerfield repeatedly emphasized the time that elapsed between the end of Raymond‘s employment as a miner and the development of respiratory issues.6 Id. at A57 (ALJ Dec. at 20); id. at A410, A412-13 (Dr. Westerfield Op. at 6, 8-9); id. at A470-71, A474 (Dr. Westerfield Dep. at 23-24, 27). This is an impermissible factor on which to render an opinion, because “[f]ederal regulations recognize pneumoconiosis, including legal pneumoconiosis, as a latent and progressive disease that may first become detectable after cessation of coal dust exposure.” Keathley, 773 F.3d at 739;
Zurich American argues that the ALJ erred in discounting Dr. Westerfield‘s opinion, claiming that: (1)
After discounting the opinions of Drs. Baker and Westerfield, the ALJ considered the opinions of Drs. Zaldivar and Moore. Pet‘r App‘x at A67 (ALJ Dec. at 30). Dr. Zaldivar
reviewed Raymond‘s medical records and concluded that he did not have legal pneumoconiosis, but rather that his respiratory problems were caused by his liver failure. Id. at A436 (Dr. Zaldivar Op. at 7); id. at A566, A571 (Dr. Zaldivar Dep. at 31, 36). In contrast, Dr. Moore—who was Raymond‘s treating physician from 2004 until the miner‘s death in 2011—repeatedly diagnosed Raymond with pneumoconiosis. Id. at A1468, A1470, A1476, A1479, A1482 (Dr. Moore Notes at 1, 3, 9, 12, 15). Dr. Moore also listed pneumoconiosis as a cause of death on Raymond‘s death certificate. Id. at A365 (Death Certificate). Because of Dr. Moore‘s extensive treatment history of Raymond, including multiple physical examinations, the ALJ gave his opinion controlling weight pursuant to
Considering the extensive level of detail with which the ALJ reviewed Raymond‘s medical history and the proffered medical opinions, and the rigor of the ALJ‘s explanations
***
The ALJ‘s decision to award benefits to Raymond is supported by substantial evidence. Raymond timely filed his claim within three years of learning that he was totally disabled due to pneumoconiosis. He then established his entitlement to benefits by invoking the fifteen-year presumption in
E. Survivor‘s Claim
After determining that Raymond was entitled to benefits, the ALJ concluded that Joanna was automatically entitled to benefits as his surviving spouse.
III. CONCLUSION
For the forgoing reasons, we DENY the petition for review.
CONCURRING IN THE JUDGMENT
KETHLEDGE, Circuit Judge, concurring in the judgment. Respectfully, I see no reason in this case to hand off the judicial power to an executive agency. Specifically, the phrase “substantially similar[,]” as used in
By way of background, the Black Lung Benefits Act,
Underground mining typically exposes miners to more dust than does mining aboveground. The provision at issue here thus draws a distinction between miners who work in “underground coal mines” and those who do not. That provision reads in relevant part:
[I]f a miner was employed 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 . . . . The Secretary shall not apply all or a portion of the requirement of this paragraph that the miner work in an underground mine where he determines that conditions of a miner‘s employment in a coal mine other than an underground mine were substantially similar to conditions in an underground mine.
Here, the majority says that the phrase “substantially similar” is ambiguous as used in
Nor is the essential characteristic of “conditions in an underground mine” hard to fathom for purposes of
The agency‘s interpretation of