UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1738

CONSOLIDATION COAL COMPANY,

Petitioner,

v.

TERRY L. SHIPLEY; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION 

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (18-0032-BLA)

Argued: September 22, 2021 Decided: February 9, 2022

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Petition denied by unpublished opinion. Judge Diaz wrote the opinion, in which Judge 

Niemeyer joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Jeffrey Robert Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for 

Petitioner. Sarah Marie Hurley, UNITED STATES DEPARTMENT OF LABOR, 

Washington, D.C.; Matthew A. Gribler, PAWLOWSKI BILONICK & LONG, Ebensburg, 

Pennsylvania, for Respondents. ON BRIEF: Kate S. O’Scannlain, Solicitor of Labor, 

Barry H. Joyner, Associate Solicitor, Kevin Lyskowski, Deputy Associate Solicitor, Sean 

G. Bajkowski, Office of the Solicitor, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for the Federal Respondent. Heath M. Long, PAWLOWSKI, 

BILONICK & LONG, Ebensburg, Pennsylvania, for Respondent Terry L. Shipley.

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Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Circuit Judge:

Consolidation Coal Company petitions this Court to review an award of black lung 

benefits to Terry L. Shipley. An administrative law judge (“ALJ”) twice denied Shipley 

benefits, and the Department of Labor’s Benefits Review Board twice remanded. On his 

third review, the ALJ presumed that mining coal underground contributed to Shipley’s 

disabling lung disease. The ALJ then found that Consolidation failed to rebut the 

presumption because its experts—who had found that Shipley’s respiratory symptoms 

were attributable to cigarette-smoke exposure and asthma—weren’t credible. The ALJ 

awarded Shipley benefits, and the Board affirmed. 

We have jurisdiction over petitions for review from the Board’s final decisions 

under 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a). Because the record is 

free of legal error and substantial evidence supports the ALJ’s decision to award benefits, 

we deny the petition. 

I.

Shipley suffers from totally disabling chronic obstructive pulmonary disease 

(“COPD”). He smoked one-half to one pack of cigarettes per day for over 36 years, ending 

in 2006. Shipley also worked for over 40 years in the coal mining industry (with over 30 

years spent underground), before retiring in 2011. That year, he filed a claim for federal 

black lung benefits against his most recent employer, Consolidation. The Director of the 

Office of Workers’ Compensation Programs investigated the claim and recommended 

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awarding benefits. Consolidation contested this decision and requested a hearing before 

an ALJ.

The ALJ twice denied Shipley benefits, and the Board twice remanded. In denying 

the claim the first time, the ALJ found that Shipley worked underground as a miner for 

over 15 years and had a totally disabling pulmonary impairment, entitling Shipley to a 

presumption that his employment contributed to his impairment. See 20 C.F.R. § 718.305. 

But the ALJ also found that Consolidation’s experts rebutted the presumption by showing 

that Shipley’s employment wasn’t a substantially contributing cause of his disability. On 

appeal, the Board agreed with Shipley that Consolidation bore the burden of proving his 

employment caused “no part of [his] respiratory or pulmonary total disability.” Id.

§ 718.305(d)(1)(ii). Because the ALJ failed to apply this standard, the Board vacated the 

denial of benefits and remanded. 

On remand, the ALJ again denied benefits. Although the ALJ again presumed that 

Shipley’s employment contributed to his impairment, he still credited the testimony of 

Consolidation’s two experts—both board-certified doctors with pulmonary specialties—

who stated that smoking and asthma, not coal-dust exposure, caused Shipley’s COPD.1

 

Shipley appealed to the Board, claiming the ALJ ignored his argument that 

Consolidation’s experts’ views on the cause of Shipley’s impairment conflicted with the 

Department of Labor’s regulatory guidance. In broad strokes, the relevant guidance—

1 Shipley’s experts disagreed, stating that both exposure to coal dust and cigarette 

smoke contributed to Shipley’s COPD. One of the experts “could not quantify the 

comparative contributions” of cigarette smoke and coal dust; the other concluded they were 

“each responsible for 50% of his pulmonary obstruction.” J.A. 418, 420. 

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specifically, the preamble to the 2000 amendments to the black lung regulations—explains 

that, because both inhaling coal dust and smoking cigarettes can diminish lung function, 

many measurements can’t differentiate between the two causes. See 65 Fed. Reg. 79,920, 

79,939–44; see also Cent. Ohio Coal Co. v. Dir., Off. of Workers’ Comp. Programs, 762 

F.3d 483, 491 (6th Cir. 2014) (finding that a doctor’s opinion a lung-function test could 

distinguish between COPD caused by inhaling coal dust versus smoking cigarettes 

contradicted the preamble). The Board agreed with Shipley, vacated the ALJ’s decision, 

and instructed him to consider Shipley’s argument.2

 

The ALJ’s third decision awarded Shipley benefits. This time, the ALJ found that 

Consolidation failed to rebut the presumption that Shipley’s employment contributed to his 

impairment. In doing so, the ALJ declined to credit the opinions of Consolidation’s experts 

because, according to the preamble, the respiratory tests the experts relied on can’t 

differentiate between lung disease caused by coal dust rather than smoking.3

 Because the 

opinions of Consolidation’s experts were “entirely at odds with the preamble and its cited 

medical literature,” the ALJ gave them little weight. J.A. 415. 

2 We note that the Board had—in its first remand order—drawn the ALJ’s attention 

to Shipley’s claim “that the opinions of the [Consolidation’s experts] are contrary to the 

science accepted by the Department[ of Labor] in the preamble.” Shipley v. Consolidation 

Coal Co., Ben. Rev. Bd. No. 15-0346 BLA, 2016 WL 8260683, at *3 (June 30, 2016) .

3 The result of these tests yields an FEV1/FVC ratio, which measures the fraction of 

one’s total breath exhaled in the first second. Consolidation’s experts claimed that “they 

can distinguish a coal dust-induced lung disease from a smoking-induced lung disease 

based on the FEV1[/FVC] ratio.” J.A. 415. But the preamble rejects this view. See 65 

Fed. Reg. at 79,940. 

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The ALJ also addressed the views of Shipley’s experts that both coal-dust exposure 

and cigarette smoking contributed to Shipley’s COPD. The ALJ viewed their reports as 

flawed because they didn’t cite supporting data or literature. Still, he gave these opinions 

greater weight. Like Consolidation’s experts, Shipley’s experts were pulmonary 

specialists. But unlike Consolidation’s experts, both addressed Shipley’s risk factors that 

cut against their conclusion. And, said the ALJ, Shipley’s experts correctly noted that 

Consolidation’s experts relied on nonspecific symptoms, cited inapplicable literature, and 

discounted the effects of Shipley’s exposure to coal dust. In the end, the ALJ was 

persuaded that Consolidation hadn’t met its burden to show that Shipley’s employment 

played no part in his disability. Consolidation appealed to the Board, which affirmed the 

ALJ’s award. 

Consolidation then appealed to this Court, arguing that (1) the Board exceeded its 

authority by requiring the ALJ to assess medical evidence against the preamble; and (2) 

the ALJ erred in discounting Consolidation’s experts’ opinions and crediting Shipley’s

experts’ opinions.

As explained below, we reject both arguments.

II.

A.

Consolidation first argues that the Board lacked authority to require the ALJ to 

assess medical evidence against the preamble because it effectively gave the latter the force 

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of law. “We review the legal conclusions of the Board and the ALJ de novo.” Harman 

Mining Co. v. Dir., Off. of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012).

“The Board is authorized to review . . . conclusions of law on which the decision or 

order appealed from was based. Such . . . conclusions of law may be set aside only if they 

are not, in the judgment of the Board, . . . in accordance with law.” 20 C.F.R. § 802.301(a). 

“Those dual requirements frame the scope of the Board’s review.” Joseph Forrester 

Trucking v. Dir., Off. of Workers’ Comp. Programs, 987 F.3d 581, 588 (6th Cir. 2021). 

The Administrative Procedure Act allows agencies to adopt rules carrying the force 

of law. See 5 U.S.C. § 553. But agencies can also publish nonbinding guidance. See Perez 

v. Mortg. Bankers Ass’n., 575 U.S. 92, 96–97 (2015). The preamble to the 2000 black lung 

regulation amendments is nonbinding guidance. See A & E Coal Co. v. Adams, 694 F.3d 

798, 801–02 (6th Cir. 2010). Nonetheless, we have said that “the preamble is entirely 

consistent with the [Black Lung Benefits] Act and its regulations and simply explains the

scientific and medical basis for the regulations.” Harman, 678 F.3d at 315, n.4.

4

In this case, the Board merely directed the ALJ “to consider [Shipley’s] argument” 

about the preamble. Shipley, 2016 WL 8260683, at *3 (emphasis added). It didn’t require 

the ALJ to treat the preamble as binding. That the ALJ credited the preamble is beside the 

point. The ALJ could have followed the Board’s instructions and yet “refused to defer to 

4 The issue in Harman was whether an ALJ could ever reference the preamble. 678 

F.3d at 316. We said there that an “ALJ did not need to look to the preamble in assessing 

[an expert’s credibility].” Id. at 314. But “[b]ecause the ALJ found [the expert’s] views 

conflicted with [the preamble’s] rationale, it was well within her discretion to find [the 

expert’s] opinion less persuasive.” Id. at 316. 

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the [agency’s] interpretation of the statute contained in the preamble”—so long as he

explained his reasoning. Harman, 678 F.3d at 315 n.4. Because the ALJ had discretion to 

reject the opinions of Consolidation’s experts based on the preamble, we find no error in 

the Board’s instruction. 

The dissent questions whether the Board could properly vacate the ALJ’s second 

determination given that ALJ’s aren’t required to address all the parties’ arguments. 

Dissenting Op. at 19–21. That’s true, except where “the [ALJ] entirely fails to consider an 

important (i.e., material) aspect of the problem.” W. Va. Coal Workers’ Pneumoconiosis 

Fund v. Bell, 781 F. App’x 214, 229 (4th Cir. 2019). 

That’s what happened here. Consolidation’s experts provided the sole support for 

the ALJ’s conclusion that Shipley’s employment played no role in his disability. The 

Board recognized as much, directing the ALJ to weigh the credibility of Consolidation’s 

experts “regardless of the weight” of Shipley’s experts. Shipley v. Consolidation Coal Co., 

Ben. Rev. Bd. No. 14-0120 BLA, 2014 WL 4492058, at *3 (Aug. 13, 2014). Because 

Consolidation bore the burden of proof, the credibility of its experts was paramount. And 

by directing the ALJ to consider the preamble in assessing credibility, the Board thought it 

material. The Board’s decision on this point is a question of law that we review de novo. 

See Finney v. Colvin, 637 F. App’x 711, 720 (4th Cir. 2016) (King, J., dissenting) 

(interpreting “material” under 42 U.S.C. § 405(g)); Booz v. Sec’y of Health & Human 

Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (same); see also Westmoreland Coal Co. v. 

Sharpe, 692 F.3d 317, 327 (4th Cir. 2012) (Where, as here, “the B[oard] has reversed the 

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ALJ, we must review the BRB's decision for errors of law and to ensure the B[oard]'s 

decision adhered to its statutory standard of review.” (cleaned up)).

Consistency with the preamble is one aspect of an expert’s credibility in black lung 

cases. It informs an ALJ’s analysis of experts’ “medical findings, the documentation 

underlying their medical judgments, and the sophistication of and bases for their 

conclusion.” Shipley, 2014 WL 4492058, at *3. Here, the credibility of Consolidation’s 

experts is nearly dispositive, and the experts admit that their opinions conflict with the 

medical literature incorporated into the preamble. Thus, the preamble was material, and 

the Board properly directed the ALJ to consider it. 

We don’t mean to suggest that all arguments related to the preamble are material; 

they may be material in some cases and immaterial in others. But that an ALJ need not 

consider the preamble in every case doesn’t render it immaterial in all cases. If it did, an 

ALJ could ignore a party’s preamble argument with impunity. That’s not the law. 

B.

Next, Consolidation contends the ALJ erred in discounting its experts’ opinions and 

crediting Shipley’s. Credibility determinations are factual findings, which we review for 

substantial evidence. Harman, 678 F.3d at 310. Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). “We must sustain the [agency’s] decision, 

even if we disagree with it, provided the determination is supported by substantial 

evidence.” Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). 

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Here, the Board affirmed the ALJ’s decision not to credit Consolidation’s experts, 

who “attributed claimant’s obstructive impairment entirely to the effects of cigarette smoke 

exposure and asthma.” Shipley v. Consolidation Coal Co., Ben. Rev. Bd. No. 18-0032 

BLA, 2019 WL 2462923, at *3 (May 14, 2019). The Board concluded that “[i]n light of 

the medical science found credible in the preamble finding the effects of smoking and coal 

dust exposure are additive, the [ALJ] permissibly found that neither [of Consolidation’s 

experts] adequately explained why [Shipley’s] more than forty years of coal mine dust 

exposure did not significantly contribute, along with these other factors, to his 

impairment.” Id. 

We agree with the Board. Reasonable minds could accept the tension between the 

preamble and the opinions of Consolidation’s experts as adequate to discount those 

opinions. And because the employer has the burden of rebutting the 15-year presumption 

once properly invoked, 20 C.F.R. § 718.305(d), the ALJ’s ultimate finding that 

Consolidation failed to do so is supported by substantial evidence.

For that reason, we—unlike our colleague in dissent—are not troubled by the ALJ’s 

decision to award benefits following the second remand. The ALJ need not establish “that 

the reasons for the new [determination] are better than the reasons for the old one; it 

suffices that the new [determination] is permissible under the statute.” FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 515 (2009). And there is no “unexplained 

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inconsistency” because the preamble justifies the ALJ’s decision to award benefits. See 

Casa De Md. v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 704 (4th Cir. 2019).5

PETITION FOR REVIEW DENIED

5 Given our holding, we need not reach Consolidation’s claim that the ALJ erred in 

crediting the opinions of Shipley’s experts.

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QUATTLEBAUM, Circuit Judge, dissenting:

The Black Lung Benefits Act provides a framework for coal industry workers and 

their survivors to assert claims for disability or death benefits caused by exposure to coal 

dust in the course of their employment. That framework, especially for a claimant like 

Shipley who worked over fifteen years in coal mines, is quite favorable. If the claimant has 

lung disease, coal is presumed to be the cause, or at least a contributing factor, entitling the 

claimant to recover unless the employer can rebut that presumption by proving coal dust 

neither caused nor contributed to the disease. But while the framework favors the claimant, 

it does not guarantee recovery.

In a case like the one presented here, where each party’s experts presented 

competing theories explaining what caused or contributed to Shipley’s lung disease, the 

ALJ may side with the employer so long as its experts offer substantial evidence and are 

not contrary to law. If those two requirements are met, the Board has no authority to

consider other issues. Accordingly, the Board was not permitted to vacate the ALJ’s 

opinion and require him to consider whether the opinions of Consolidation’s experts were 

inconsistent with the Black Lung Benefits Act’s regulatory preamble (“Preamble”) when, 

under Fourth Circuit law, that issue did not have to be considered.

I.

I first briefly restate the factual and procedural history. Shipley sought benefits 

under the Black Lung Benefits Act for pneumoconiosis, which is commonly referred to as

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black lung disease. There is no question he suffered from lung disease. No one disputes 

that. The question is what caused it.

Shipley claims that exposure to coal dust from his 40-plus years of employment in 

coal mines caused or contributed to his lung disease. And the Act gives him a head start in 

advancing that claim. Since Shipley worked over fifteen years in coal mines, the Act 

presumes that coal dust caused his lung disease. That statutory presumption can be 

overcome. But to do so, Consolidation must show that coal dust had no role in Shipley’s 

lung disease. Consolidation insists it has rebutted the presumption. It argues the record 

establishes that Shipley’s years of smoking, not his exposure to coal dust, caused his lung 

disease and further that coal dust did not contribute to it. Both parties retained experts who

issued reports and testified in support of their client’s positions. Thus, the proceedings 

boiled down in large part to a battle of experts.

The ALJ’s first opinion sided with Consolidation’s experts. But there the ALJ 

applied the incorrect legal standard. Thus, the Board’s first order properly vacated that 

opinion and remanded the matter.

The ALJ once again decided in favor of Consolidation. He issued a thorough, 

thirteen-page opinion finding that Consolidation’s experts rebutted the Act’s presumption 

of coal dust-induced lung disease. This second ALJ opinion first described what 

Consolidation’s experts articulated and then provided detailed, evidence-based reasons for 

crediting them. The ALJ was persuaded by the experts’ reasoning, the documentation of 

their opinions and their assessment of diagnostic tests and Shipley’s medical records.

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But the ALJ did not stop there. He then considered the opinions of Shipley’s experts, 

describing them and explaining his reasons for not crediting them. Like the assessment of 

the opinions of Consolidation’s experts, the ALJ’s assessment of the opinions of Shipley’s 

experts was detailed and extensive. He identified specific reasons Shipley’s experts were 

not credible, including the absence of any specific evidence coal dust caused or contributed 

to Shipley’s lung disease besides mere exposure and the fact that only a small percentage

of coal miners contract coal dust-induced lung disease.

Then, after considering both parties’ experts, the ALJ concluded that Consolidation

had rebutted the Act’s presumption of coal dust-induced lung disease. The ALJ explained:

Having considered all of the relevant medical opinion evidence, the 

undersigned finds that Employer has demonstrated by a preponderance of the 

evidence that no part of Claimant’s respiratory or pulmonary total disability 

was caused by pneumoconiosis. As discussed supra, the opinions of Drs. 

Basheda and Bellotte carry substantial weight and demonstrate that 

pneumoconiosis did not play any part in causing Claimant’s total disability. 

Conversely, the reports of Drs. . . . Schaaf[] and Begley contend that 

pneumoconiosis caused or contributed to Claimant’s totally disabling 

respiratory or pulmonary impairment. The undersigned has found, however, 

that these reports are not persuasive and not entitled to significant weight. 

Because Drs. Basheda and Bellotte offer the most credible and persuasive 

opinions and found that no part of Claimant’s respiratory or pulmonary total 

disability was caused by pneumoconiosis, the undersigned finds that 

Employer has demonstrated by a preponderance of the evidence that 

Claimant’s pneumoconiosis played “no part” in causing his totally disabling 

respiratory or pulmonary impairment. Employer has thus rebutted the 

presumption that Claimant’s totally disabling respiratory or pulmonary 

impairment was caused by pneumoconiosis. Accordingly, Claimant is not 

entitled to benefits under the Act.

J.A. 392.

After Shipley appealed, the Board vacated the ALJ’s second opinion. This second 

Board order chastised the ALJ for not following its instructions in its prior order to consider 

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one of Shipley’s arguments—that Consolidation’s expert’s opinions improperly 

contradicted the scientific information in the Preamble.1 The Board remanded the case to 

the ALJ to consider Shipley’s Preamble argument.

After his second opinion was vacated, the ALJ succumbed. After twice finding that 

Consolidation’s experts were reasonable and Shipley’s were not, the ALJ, in his third 

opinion, came to the opposite conclusion. The ALJ said that the opinions of 

Consolidation’s experts—that he previously said were well-reasoned, well-documented, 

based on diagnostic tests, based on medical records, credible and entitled to substantial 

weight—were now discredited and not entitled to significant or substantial weight. The 

ALJ also said that the opinions of Shipley’s experts—the ones that he previously said were 

not persuasive, were not well-reasoned or well-documented, relied on no evidence other 

than the fact that Shipley was exposed to coal dust, were not credible and were entitled to 

little weight—were now credible, well-documented and well-reasoned. The ALJ thus ruled 

that Shipley’s lung disease was coal dust induced and such awarded him benefits under the 

Black Lung Benefits Act. Following Consolidation’s appeal, the Board affirmed the ALJ’s 

decision. Consolidation appealed the Board’s decision.

1 I question whether the Board’s instructions were so clear in the first place. It turns 

out, the first Board order’s only reference to Shipley’s Preamble argument was in a footnote 

where it said: “We leave these arguments for the administrative law judge to consider on 

remand.” J.A. 380 n.5.

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II.

Consolidation’s appeal involves two primary arguments. First, it claims that the 

Board had no authority to vacate and remand the ALJ’s second opinion. Second, 

Consolidation contends that even if the Board’s second order was not improper, the Board 

erred in affirming the ALJ’s third opinion because that opinion is irrational, not supported 

by substantial evidence and contrary to law. If Consolidation prevails on either issue, the 

Board’s decision must be vacated.

A.

Consolidation’s first argument challenges the Board’s second order, which vacated 

and remanded the ALJ’s second opinion. The Board did so because, according to the Board, 

the ALJ failed to follow the Board’s instructions to address Shipley’s argument that the 

opinions of Consolidation’s experts contradicted the science contained in the Preamble. 

The Board thus ordered the ALJ to consider Shipley’s Preamble argument.

1.

At first blush, the Board’s order sounds innocent enough. An order of remand to 

consider an argument that was not addressed in an administrative judge’s decision hardly 

is unusual. Generally, when a reviewing authority of an agency disagrees with the ALJ, 

“the agency has all the powers which it would have in making the initial decision except 

as it may limit the issues on notice or by rule.” 5 U.S.C. § 557(b); see also Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 492 (1951) (rejecting the contention that the 

National Labor Relations Board can reverse ALJ findings only when they are clearly 

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erroneous). Presumably, that would include the power to require a certain issue to be 

addressed.

But proceedings under the Black Lung Benefits Act operate differently from those 

governed by general agency law. Under the Act and its corresponding regulations, the 

Board’s scope of review is limited. “[The ALJ’s] findings of fact and conclusions of law 

may be set aside only if they are not, in the judgment of the Board, supported by substantial 

evidence in the record considered as a whole or in accordance with law.” 20 C.F.R. 

§ 802.301(a); see also 33 U.S.C. § 921(b)(3) (discussing how the Board should affirm the 

ALJ’s factual findings “if supported by substantial evidence in the record considered as a 

whole”), as incorporated by 30 U.S.C. § 932(a). See generally 4 Arthur Larson, Larson’s 

Workers’ Compensation Law § 54.08[4] (2021); Jeffrey B. Litwak, A Guide to Federal 

Agency Adjudication 118 (2d ed. 2012). Faithful adherence to that limited scope of review 

leaves no room for remand if an ALJ’s opinion is supported by substantial evidence and is 

not contrary to applicable law.

Further, our review is also slightly different in the Black Lung Benefits Act context. 

“It is whether the court of appeals believes that the administrative law judge’s decision was 

supported by substantial evidence; if it was, then the Benefits Review Board’s decision 

reversing the administrative law judge must itself be reversed, even if that decision could 

also be said to be supported by substantial evidence.” Old Ben Coal Co. v. Prewitt, 755 

F.2d 588, 589 (7th Cir. 1985) (emphases in original). “The Fourth Circuit once rejected 

this standard, believing that the issue should be whether the Benefit Review Board’s 

decision, not the administrative law judge’s decision, is supported by substantial evidence; 

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but it has now lined up with the other circuits.” Id. at 589–90 (citing Wilson v. Benefits 

Review Board, 748 F.2d 198, 199 (4th Cir. 1984)); see also Wilson, 748 F.2d at 199 (“The 

issues on this appeal are whether there was substantial evidence to support the ALJ’s 

decision . . . .”).

Accordingly, we review the ALJ’s factual findings—not the Board’s—for 

substantial evidence. Relatedly, if the ALJ’s factual findings meet the substantial evidence 

standard but the Board disagrees, we should reject the Board’s decision for exceeding its 

statutory standard of review. See Westmoreland Coal Co. v. Sharpe ex rel. Sharpe, 692 

F.3d 317, 327 (4th Cir. 2012) (“Where the BRB [Benefits Review Board] has reversed the 

ALJ, we must ‘review the BRB’s decision for errors of law and to ensure the BRB’s 

decision adhered to its statutory standard of review.’”); Boyd & Stevenson Coal Co. v. Dir., 

Off. of Workers’ Comp. Programs, 407 F.3d 663, 666 (4th Cir. 2005) (“In reviewing a 

decision of the Benefits Review Board, our review is governed by the same standard the 

Board applies when reviewing an ALJ’s decision. Factual determination will be upheld if 

the record contains ‘substantial evidence’ supporting the ALJ’s decision. We review 

conclusions of law de novo.” (internal citations omitted)).

Regarding “substantial evidence,” it is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Westmoreland Coal Co. v. Stallard, 876 

F.3d 663, 668 (4th Cir. 2017) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 

217 (1938)). “We defer to the ALJ’s determination regarding the proper weight to be 

accorded competing medical evidence, and we ‘must be careful not to substitute our 

judgment for that of the ALJ.’” W. Virginia CWP Fund v. Bender, 782 F.3d 129, 144 (4th 

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Cir. 2015) (quoting Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 

F.3d 305, 310 (4th Cir. 2012)).

2.

With those principles in mind, I return to the Board’s second order. Consolidation 

argues that the Board lacked the power to remand with the instructions discussed above. It 

points out the well-settled law that an ALJ need not address every argument advanced by 

the parties before it. See, e.g., Doolin Sec. Sav. Bank, F.S.B. v. FDIC, 53 F.3d 1395, 1409 

(4th Cir. 1995); W. Virginia Coal Workers’ Pneumoconiosis Fund v. Bell, 781 F. App’x 

214, 229 (4th Cir. 2019). Consolidation then highlights our Harman decision, which 

provides that an ALJ is permitted to consider the Act’s Preamble but is not required to do 

so. Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 315–

16 (4th Cir. 2012). If an ALJ need not address every argument the parties advance, and if 

an ALJ need not consider the Preamble, according to Consolidation, the Board’s order that 

it do so is beyond its scope of review.

In response, Shipley argues the Board’s order was proper. First, he clarifies that the 

Board did not require the ALJ to follow the Act’s Preamble. It merely ordered the ALJ to 

consider it. Second, he points out that, under the Administrative Procedure Act, an ALJ’s 

decision must include a statement of “findings and conclusions, and the reasons or basis 

therefor, on all the material issues of fact, law, or discretion presented on the record.” 5 

U.S.C. § 557(c)(3)(A). Shipley further contends that the Preamble, at minimum is a 

“material” issue requiring it to be considered. Thus, Shipley concludes the Board acted 

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well within its authority to vacate the ALJ’s second opinion and remand the matter for 

consideration of the Preamble argument.

Other circuit courts have pointed out the role of scientific information in preambles 

and discussed how preambles are at least persuasive and can be instructive. See, e.g., 

Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 561 (2d Cir. 2012) (discussing the 

non-binding but persuasive value of regulatory preambles “because it rests on a ‘body of 

experience and informed judgment to which courts and litigants may properly resort for 

guidance’”); Blue Mountain Energy v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t 

of Lab., 805 F.3d 1254, 1261 (10th Cir. 2015) (“In sum, we view the preamble as a 

scientific primer that helps explain why the agency amended the regulation to add ‘legal 

pneumoconiosis’ to the definition of ‘pneumoconiosis.’”). But those decisions do not go to 

the heart of the issue presented to us. Our question is whether the ALJ must consider the 

Preamble, and, if not, whether the Board would have the authority to remand the ALJ’s 

opinion with the specific instruction to consider it.

Even though authority on the issue before us is sparse, the text of the applicable 

statutes and regulations compel reversal of the Board’s second order. As a starting matter, 

§ 557(c)(3)(A) of the Administrative Procedure Act is unhelpful to Shipley’s position. 

Sure, that section requires the ALJ decision to discuss all “material issues of fact, law, or 

discretion.” 5 U.S.C. § 557(c)(3)(A). But how can an issue that we have said does not have 

to be considered be material? How can it be improper for the ALJ not to address Shipley’s 

argument about the Preamble when we previously said in Harman the Preamble does not 

have to be addressed?

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Instead, 20 C.F.R. § 802.301(a) should guide our review. Under it, “[the ALJ’s] 

findings of fact and conclusions of law may be set aside only if they are not, in the judgment 

of the Board, supported by substantial evidence in the record considered as a whole or in 

accordance with law.” The Board did not find that the ALJ’s second opinion was 

unsupported by substantial evidence or not in accord with applicable law. Instead, the 

Board vacated an opinion supported by substantial evidence and in accord with the law to 

require the ALJ to address an issue that, by law, it did not have to address. Such action by 

the Board is not allowed under the Black Lung Benefits Act and its regulations. For that 

reason, the Board erred in vacating the ALJ’s second decision; the second ALJ opinion 

should have been affirmed.

B.

In its second argument, Consolidation contends that, even if the Board’s second 

order was not improper, the Board erred in affirming the ALJ’s third opinion because that 

opinion is irrational, not supported by substantial evidence and contrary to law.

Consolidation argues the opinion is irrational and not supported by substantial evidence 

because it reaches the exact opposite result about the persuasiveness and credibility of the 

experts as compared to the ALJ’s earlier opinions, without any explanation—much less a 

reasonable one—as to the flip. And it further argues the ALJ’s conclusion that the opinions 

of Consolidation’s experts were contrary to the Preamble are erroneous as a matter of law. 

If I were to analyze the ALJ’s third opinion in a vacuum, I would likely agree that 

the ALJ’s conclusions were backed by substantial evidence. But the third ALJ opinion does 

not come to us in a vacuum. After twice finding that Consolidation’s experts were 

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reasonable and Shipley’s were not, the ALJ, in his third opinion, performed a remarkable 

about-face. Earlier, the ALJ said Consolidation’s expert opinions were well-reasoned, 

well-documented, based on diagnostic tests, based on medical records, credible and entitled 

to substantial weight. Not anymore. Earlier, Shipley’s expert opinions were not persuasive, 

were not well-reasoned or well-documented, relied on no evidence other than the fact that 

Shipley was exposed to coal dust, were not credible and were entitled to little weight. Not 

anymore. It is like a witness said one day the light was red and the next day he says the 

light was green.

At best, the only thing that changed was the ALJ’s consideration of the Preamble. 

But the Preamble discusses the general idea that chronic obstructive pulmonary disease can 

be detected by decreases in either the FEV1 or the FEV1/FVC ratio. See 65 Fed. Reg. 

79,938, 79,943 (Dec. 20, 2000). And as Consolidation rightfully contends, its experts never 

contested this issue; in fact, they admitted so. Instead, Consolidation’s experts opined that

the degree and nature of the decreases were consistent with smoking-induced lung disease 

and inconsistent with coal dust-induced lung disease, which the Preamble is wholly silent 

on. Thus, the Preamble could not be the basis for the ALJ changing his mind.

So, was the ALJ required to explain his striking flip flop? Generally, an agency is 

only required to adequately explain its current position—not explain why it switched from 

a previous one. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009). At 

the same time, we have held that an “unexplained inconsistency” in policy can be arbitrary 

and capricious. See, e.g., Casa De Maryland v. U.S. Department of Homeland Security, 

924 F.3d 684, 703–04 (4th Cir. 2019); Jimenez-Cedillo v. Sessions, 885 F.3d 292, 297–98 

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(4th Cir. 2018) (citing Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016)).2 But 

since I conclude that Consolidation should prevail on its argument concerning the ALJ’s 

second opinion, the tricky question of which of these two principles of administrative law 

applies here can wait for another day. 

III.

In my view, the Board exceeded its statutory and regulatory scope of review in 

issuing the second order. The ALJ’s second opinion was supported by substantial evidence 

and was not based on legal error, and therefore it should have been affirmed. The Board 

had no authority to direct the ALJ to consider an argument that our precedent previously 

stated is not required to consider. Therefore, I respectfully dissent.

2 To be fair, our case law has primarily been in the context of rulemaking rather than 

adjudicatory decisionmaking that was involved here. But there is reason to believe that 

would not make a difference. See, e.g., U.S. Postal Serv. v. Postal Regul. Comm’n, 785 

F.3d 740, 755 (D.C. Cir. 2015) (“[I]f an action is subject to review under the APA, it does 

not matter whether it is a formal or informal adjudication or a formal or informal 

rulemaking proceeding—all are subject to arbitrary and capricious review under Section 

706(2)(A).” (quoting Harry T. Edwards & Linda A. Elliott, Federal Standards of Review

203 (2d ed. 2013))); see also Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 

374 (1998) (“[A]djudication is subject to the requirement of reasoned decisionmaking as 

well.”); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 

(1974) (applying arbitrary and capricious review to a formal adjudication).

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