may please the court my name is thomas hancock and along with all franken and bowles rice we represent westmoreland coal company in this appeal and this appeal presents really three categories of questions for this court and the first one is what the role of the preamble is whether or not the preamble stopped medical science at a stand still when it was adopted and whether or not doctors are limited to looking at the science in the preamble when they're forming their medical opinions the second more specific question is related to the discretion that the fourth circuit found in harman and whether or not the judge's decision in this case took that discretion too far and whether or not the judge applied the wrong legal standard and the final question is whether or not the judge in this case  impermissibly shifted the burden of proof when she made her decision and the i want to return to the first question which is the role of the preamble and your honor the preamble simply cannot be used to prevent physicians from relying on a combination of the characteristics the claimants impairment and all of the medical science and data they have to reach an opinion about the causation and the existence of new macone osis and in this case that's not what the l j found doesn't stop didn't stop science at a stand still when it was passed and there's a lot of reasons for that there's been an explosion of cigarette related research over the last fifteen years there's been an explosion of asthma related research over the last fifteen years  there's been an explosion of research in the airway remodeling over the last fifteen years and airway remodeling i think is particularly important in this case obviously there weren't any studies in the preamble about the effects of drugs like spray of spray the wasn't approved by the f d a until two thousand so the preamble couldn't discuss it when it was passed in two thousand they do any of the doctors indicate a problem for you know your honor our doctors didn't contradict preamble or say anything bad about the studies or in the preamble in fact if you look at the elegies decision i think it's true and appendix three seventy nine she points out that doctors have been stealers out of our quote say all the right things and she in fact went through some of the things in the preamble that they agreed with so what happened in this case doctors have been stealing is out of our found that the gentlemen did not have legal name county says they base that on a number of different ideological factors not just cold wind it's not just smoking they also look at asthma airway remodelling and these other things and the judge to l j look to those opinions and said they're less consistent with what's in the preamble and so we're i'm going to accord them less weight and argue it's really twofold first harman held to the contrary so you'd be out of court right oh no we i don't disagree with harmon at all i think you know i must have confused you and then for that and harmon the judge made the doctor made his broad ca doctor's opinion was directly contrary to it but in your view it cannot rely on the preamble when the doctors view is consistent with that those two arguments don't clump together if you can rely on it when the doctor's opinion or doctor's opinion is the contrary surely you can rely on it when your doctor's opinion is consistent with if the preamble is consistent with your doctor's opinion it's no harm no foul but in this case the judge awarded our doctor opinions less weight revile in the preamble because she held they were inconsistent with the preamble ok maybe i don't i you're right i don't think we do understand each other what you have stead i thought was if your doctor's opinion with inconsistent with the preamble and the a l j relied on the preamble you would acknowledge it circuit precedent that that's all right let me but you're now saying because our doctor's opinion is consistent with the preamble and the a l j relied on the preamble there somehow error and that logically just let me try to come at this from a different angle and maybe it'll clarify things in the end i made decision which was the industr challenge the constitutionality of the regulations one of the arguments that the industry made was these regulations are unconstitutional because they prevent a doctor from reaching the medical conclusion that claimants impairment is ever caused by cigarette smoking and the harm or labor's position which was ultimately adopted by the d c circuit and i may was no that's wrong the regulations plaintext in no way indicates that medical reports will be excluded if they conclude that minors obstructions relate to cigarette smoking and in fact i may goes on to say that the preamble itself states that the revised definition doesn't alter the requirement that a minor has to demonstrate that obstructive lung disease arose out of work in the mines and i think that's that is exactly what the algae in this case did she looked at the preamble and saw that in the preamble it says generally some of the symptoms from coal mine dust and cigarette smoking are similar and therefore these doctors who said this gentleman based on his individual characteristics we can say this was not substantially caused by home and us exposure to l j help that was inconsistent with the preamble to that now i think that we're just i don't know if it's on purpose or not but anyway go j stated that these opinions were based on clinical macone as this is not legal in that that was a reason to give them less weight and we disagree with that as well i think that also is air under this court's that an alternative basis that was in both the preamble issues and this other issue that you're raising now and used both those things to weigh the evidence i think because you remove one way from the scale we can't say that she would have found the same thing she did and i think that this court's in looking at it but the present law seems to allow him to do that are you asking us now to say that well this preamble can be outdated and it may not allow for the science to express well i'll tell you what the cases say the standard for reviewing medical evidence in that simple will tell me well they're not they support is there any case that supports what you bring or you are today and to get there if we if we agree with you do we have to write something that no other case has basically said well there's two things i'd say about that and the first is that i think the and i'm a case that i was talking about earlier addresses this now addresses it in a perspective manner because it was addressing whether or not those constitution the regulations are constitutional of course you have circuit precedent it's pretty recent the harman counts the d c circuit which just dealt with the constitutionality so i'd be interested in actually direct response to the question t judge when it in harman mining versus lenny is you know this court found that al jase have the discretion to look at the preamble and this case doesn't challenge you know arguments i don't think challenge harman versus lenny what we're saying is what is the limit of the discretion in harman versus loney j do what they did here and say which one is more or less likely or more or less consistent with the preamble when in harman she said that opinions inconsistent and here it's i think question  is there any court whose holdings supports your view and i don't know that there is harman surveyed two other circuit relied on them they came to think completion we did harm between the two twins in the harmon case the doctor whose opinions were being excluded made this broad categorical statement that and i want to make sure i get it right there so there's some pretty broad categor statements here i don't know that that would be my first ground or i did well the difference is the type of statement made by the doctor who has exploded at harman dr for you know was this broad categorical statement that  you can't cause attractive lung disease and that's clearly contradicted by the broad categorical statements in the preamble the difference in this case and if you look at the abell j s order it's joint appendix page three seventy nine she specifically says doctors have been stones out of our say all the right things and she goes through all the ways they agree with the preamble their opinion was that this claimants obstructive lung disease was not substantially caused or contributed to by coal mine dust exposure not that it never can happen to anybody in the history of the world but  this specific claimant it didn't happen and that's the difference between this case and harm and that's why i think that our position in this appeal is not inconsistent with harman it's consistent with harman and if you look at the other the third circuit case and this i think is a six case seven seven circuit case that are you know it's similar to harmon that they were dealing with the exact same thing they were excluding a doctor who had this broad categorical view that contradicted the broad kind of broad categor buz that are in the preamble they weren't talking about a doctor who looked at the individual medical criteria of the claimant and the whole world of scientific knowledge not just about home and us and smoking but about asthma airway remodelling and these other factors and  reached a rational medical conclude and that has always been the standard in these cases is the opinion rational and it is it in accordance with the medical evidence and that's how this judge should've reviewed these opinions and i undergone arment clearly she can look and see if a medical opinions are inconsistent with something in the preamble but i don't think it's correct that she can say well which doctor is most consistent with the preamble which doctors less consistent with the preamble and the final thing that that i want to address with the court is whether or not the judge impermissibly shifted the burden of proof in this case and that was the third argument that was in our brief you know the judge stated that the fifteen year presumption doesn't apply here because this gentleman only worked thirteen years the coal mines when you look at how she evaluate the evidence she basically found that cigarettes but if coal mine does exposure could have caused impairment that the claimant met his burden of proof and that's not the law here that's not what he has to show he has to show that it right it is not established that coal dust did not you know that's not the that's not their burden their burden is that they have to prove it was and i think that there is a judge neymar case that we cited in our reply it's us still mining vs director and  may please the court my name is ryan christopher gilligan and i represent mr cochran in this matter it's a brief review of this case this case presents issues of whether the judges weighing of the conflicting evidence is supported by substantial evidence and whether the judge's citation reference to the preamble is in accord with law mr cochrane as retire coal miner who spent at least sixteen years employed in the nation's coal industry working in various facets of coal mine  work underground and surface he it's without question he's totally disabled suffering from a obstructive impairment and as a preamble so you've been over the dog you just heard yes your literature cited by doctors out of our in this case which came out after the date of the preamble but that literature focused on asp they don't contest that this minor suffers from c o p d n emphysema so the discussion of asthma is is sort of irrelevant as it relates to the ideology of this miner's emphysema doctoress musin offered a supplemental opinion in this case we're in he reviewed the initial reports of dr hip and steele and south of our reviewed his initial findings and some of the treatment records and progress following his success with the cessation of his exposure to coal mine dust exposed and he ruled out coal dust exposure as a cause of that impairment because there was a lack of x ray changes of new inconsistency yes your honor the inconsistency is that the regulations and the preamble do not require radiographic findings of new macone osis in order to to render a diagnosis of new macone osis and i'd also note as noted by the smoking in coal mine dust exposure cause emphysema through different processes that's contrary to the preamble where it has found that the literature supports that they that emphysema is caused cigarette smoke and called us exposure cause emphysema through a similar process further doctors out of bar was focused on the condition of clinical new macone osis noting that the coldest exposure causes emphysema through dust particle deposition and that the x ray correlates well with the amount of that dust at at autopsy in this case the x rays were found to be negative so the opinions of doctors have been ceilings out of our do conflict with the preamble focused on the x ray soley to determine whether legal macone osis was present and the regulations and the preamble do not require and positive x ray to render a diagnosis of new  not really and then finally these regulations came along and left it and a regulation as well as the pre amp they can have both and indeed one of the things that has had to be amended is that the experts now have to concede you can of recoverable or coal mine benefits without any x ray evidence of it that's correct your honor and in this case very confusing if you're not in the field to really learn the difference  i don't think compton is in implicated the judge considered all the evidence and it's the judge's discretionary role as the fact finder to weigh these conflicting of this conflicting evidence and in this case the judge rationally found the opinion of doctor as supported by thirty pieces of medical literature in his supplemental opinion establish the condition of legal in the county osis as i said previously there's no there's no contest to disability and the judge permissibly in accord with this this court mason cole and toller rejected the opinions of doctors out of r and hip in steel turning to the eddie ology of the disability because they didn't diagnose the disease and they didn't offer persuasive reason for it would be hard to imagine how dr hip and steel could exclude new macone osis as a cause of this miner's disability i don't think anything specific in this record supports that judge morgan afforded the minor in your bottle presumption that his disability was due to coal mine dust exposure and cigarette smoking and it's is this the issues are substantial evidence and substantial evidence supports this this judge is weighing it looking evidence if we s science has not stopped dead but if new studies come out that undermine the findings in the preamble that would have to be the department of labor i assume and i soon the department will address in this case that the department  consult those studies to determine if the regulations are still valid but a challenge could be made by an operator to bring forth that study and to try to try to prove that that study is supported by this point that hasn't happened so i don't think anything in this case supports that the regulations invalid or any of the findings in the preamble are invalid and i don't think less but smalling contest that instead it's more of that doctors out of our cited to these two studies after the preamble but they weren't really relevant to the issue and the issue is the c e o p d and the emphysema and they indeed they claim that they are it's just that you and i would as i discussed earlier on i would disagree with that there are no further questions what you first addressed the question that your colleague left with which is a question sort of bothered me what if new science comes along and shows that something in the preamble is wrong isn't a party able to come to the  j and introduce this new evidence and hew and have the able to at least consider that the preamble might be wrong absolutely just doesn't happen in this case dr dam that you would not have a new regulation or new preamble in order for the a l j to have to be amended the act itself is much more general than the preamble the octaves that make reference to medical studies or how emphysema and or how smoking in coal dust exposure affect lung tissue specifically should be interpreted if new science comes along in that and there and the new science is found credible and it's offered into evidence and absolutely the judges should should consider that one last but if so so are you saying  he said in my experience based on the exam based on the medical literature based on this miner's relevant histories his coal dust exposure contributed to his totally disabling pulmonary impairment and he found that the operators doctors  excuse me it's also very similar moving away from the waiver issue to a finding this court made in harmon mining where they affirmed the a old case rejection of dr hip in steele's opinion because he relied on the negative autopsy rasmussen's opinion is based on the medical literature his exam the objective studies the miners histories and it is consistent with the preamble in terms of how both dust exposure and tobacco smoke cause emphysema he said they both the toxic substances release enzymes in the long that leads to one that leads to lung tissue destruction that's consistent with the medical literature a consistent with the medical literature cited in the preamble not that i know of i assume that operators hired doctors whose medical beliefs coincide with yale j is you know public servant of but i think i haven't but i bet you could track a general trend among a l j as well as one doc that may well be true in fact years ago i wish i remembered the case named judge paul i think on this part that said that show him the name of a doctor and hold tell you what the opinion says right but he didn't and finally  you your honor i want to start out with addressing what was mr goldberg's last point which is that the preamble says that some of these mechanisms work in a similar way and that the difference now is that with the explosion of cigarette related research over the last fifteen years we know so much more about the way cigarettes work on the lots we know that there are over four thousand different chemicals that are released in the logs and how those operate on the locks i also want to go back to the sort of burden of proof issue and i know earlier when i was up i'm saying that the algae be used discretion in this case your honor and if the opinions are directly inconsistent with the preamble like i said earlier make some broad categorical statement that's contradicted by what's in the preamble that's one thing but it's another thing to say that these doctors can't rely on all the medical knowledge there's pozole and all of the characteristics of the claimant put those things together to reach a rational medical decision that has to be the touchstone is the opinion rational and is  consistent with medical evidence in the case if we ignore those two factors and just look at what's more consistent or less consistent with the statements from fifteen years ago they were the basis for the study in the preamble i just don't think that's fair  sort of recitation of her analysis where is that in i believe it's on page three seventy nine and it's in the same paragraph where the ail jay is talking about the preamble  you know that comment is exactly the point of our argument that the burden was shifted in this case the l j did not say as whether or not dr rasmusen could show that substantially kasha contributed to this gentleman's impairment and she looked at whether or not our doctors could disprove that and in fact that's the problem with dr as musicians opinion that smoking and coal dust cause identical injury because if they caused identical injury you could never prove legal macone osis because you absolutely have to be able to say that coal mine does substantially contributed if they cause an identical injury it could've been one hundred percent from coal dust it could have been one hundred percent from smoking and we just don't know your position is that you will there's  go ahead i want to address judge wins comments about if we had the technology disk to distinguish smoking from coal dust would that would that change everything and i think that's a pertinent comment and what i would add to it is a lot of this new science doesn't take away from what's in the preamble it doesn't take away from those studies what it does is it adds to it you know when the preamble was written knowledge was here and now the knowledge is broader we know so much more about the way the lungs work and the way all these different etiological factors work on the lungs and the prime example in this case is airway remodelling and this gentleman was prescribed a drug called spring which as you know a lot of us have heard of it's a common prescription berber a variety of long elements and sprit of a does what's called airway remodelling it changes the way the air moves in your lungs over time it reduces your total lung capacity of course none of that's in the preamble the drug wasn't released by the f d a until two thousand and four but the doctors are doctors in this case d looked at his impairment and said this is consistent not with coal mine dust exposure but whisper reba this is exactly what his treating physician told him might happen if he took this drug and he did and he has a reduced lung function and the doctors in these cases have to be able to look at the claimants actual injury and their history and look at studies whether they're in the preamble or not and reach medical conclusions like they did in this case we can't just say is it more consistent or less consistent with a preamble we have to consider all the medical evidence and that actually brings me to the questions that were raised about the reliance on x rays and the idea that because our doctors relied on x rays that we don't need to consider left like they've never seen it and they don't they think one of these doctors think that he doesn't have any macone else is that all well and the a o j found they didn't have clinical macone isis and of course then we are doing knowledge clinical evidence can be looked at and forming your opinion on legal and all of the clinical evidence to the contrary you still can have that and that's what the whole regulation is about still have when it will be that's that's true i mean that to be a long time