PUBLISH 

UNITED STATES COURT OF APPEALS

 FOR THE TENTH CIRCUIT 

____________________________________ 

ENERGY WEST MINING 

COMPANY, 

 Petitioner, 

v. 

THE ESTATE OF MORRIS E. 

BLACKBURN; PHYLLIS E. 

BLACKBURN; DIRECTOR, OFFICE 

OF WORKERS’ COMPENSATION 

PROGRAMS, UNITED STATES 

DEPARTMENT OF LABOR, 

 Respondents. 

No. 16-9533 

_________________________________ 

Petition for Review from an Order 

of the Benefits Review Board 

(BRB No. 2015-0290-BLA)

_________________________________ 

William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for 

Petitioner. 

Evan B. Smith, Appalachian Citizens’ Law Center, Whitesburg, Kentucky, 

for the Estate of Morris E. Blackburn, and Phyllis E. Blackburn, 

Respondents. 

_________________________________ 

Before KELLY, EBEL, and BACHARACH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 23, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

Mr. Morris Blackburn worked as a coal miner for roughly twenty 

years, continually exposing himself to dust in an Energy West coal mine. 

He also smoked cigarettes and eventually developed a respiratory disease. 

Based on this disease, Mr. Blackburn claimed benefits under the Black 

Lung Benefits Act.1

 In response, Energy West contended that Mr. 

Blackburn had caused his disease by smoking cigarettes. The United States 

Department of Labor’s Benefits Review Board affirmed an award of 

compensation, and Energy West petitions for review. We deny the petition, 

concluding that the Board did not err in affirming the award. 

I. After a remand, an administrative law judge held that Energy 

West had failed to rebut the statutory presumption of an 

entitlement to benefits. 

 This case began with Mr. Blackburn’s filing of a claim for statutory 

benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. 

Statutory benefits are available to disabled coal miners who suffer from 

various lung disorders as a result of their employment. In this case, the 

parties agree that Mr. Blackburn was disabled from chronic obstructive 

pulmonary disease, a type of lung disease, which in his case was 

 

1

 Mr. Blackburn died while this appeal was pending. But if his claim is 

valid, his surviving spouse would be entitled to benefits. See 30 U.S.C. 

§ 932(l). After Mr. Blackburn died, we allowed the addition of Mr. 

Blackburn’s widow as a respondent. 
3 

characterized by emphysema.2

 The dispute is whether the disease was 

caused by Mr. Blackburn’s work in a coal mine. One physician (Doctor 

David James) answered “yes”; two other physicians (Doctors Robert 

Farney and Peter Tuteur) answered “no.” 

 In 2012, Administrative Law Judge Richard Malamphy denied 

benefits. Judge Malamphy first found that Mr. Blackburn qualified for a 

statutory presumption of an entitlement to benefits. But Judge Malamphy 

determined that Energy West had rebutted the presumption by showing that 

Mr. Blackburn’s lung disease had not arisen from his employment in a coal 

mine. 

 Mr. Blackburn appealed to the Benefits Review Board, which vacated 

Judge Malamphy’s decision. In the Board’s view, Judge Malamphy had 

simply summarized the evidence without explaining why he believed 

Doctors Farney and Tuteur rather than Doctor James. The Board remanded 

for Judge Malamphy to weigh the conflicting medical reports and provide a 

reasoned decision. 

 On remand, the case was reassigned to a different administrative law 

judge (Judge Paul Johnson, Jr.).3

 Judge Johnson disagreed with Judge 

 

2

 “COPD is a respiratory impairment characterized by chronic 

bronchitis or emphysema and airflow obstruction.” Anderson v. Dir., Office 

of Workers’ Comp. Programs, 455 F.3d 1102, 1104 n.3 (10th Cir. 2006). 

3

 Judge Malamphy had retired by the time of the reassignment. 
4 

Malamphy’s original decision, concluding that Energy West had not 

rebutted the statutory presumption. For this conclusion, Judge Johnson 

reasoned that Doctors Farney and Tuteur were not credible. On appeal, the 

Board affirmed. 

 Energy West petitions for review, arguing that the Board erred when 

reviewing the decisions of both administrative law judges. For the first 

decision, Energy West contends that Judge Malamphy provided an 

adequate explanation. For the second decision, Energy West maintains that 

Judge Johnson erroneously ruled beyond the scope of the remand, rendered 

a decision unsupported by substantial evidence, drew his own medical 

conclusions, treated the regulatory “preamble” as if it had the force of law, 

failed to review the medical opinions in an even-handed way, and applied 

the wrong legal standard. 

We deny Energy West’s petition. We agree with the Board that 

 Judge Malamphy did not adequately explain his decision and 

 Judge Johnson rendered a decision that was within the scope of 

the remand, was supported by substantial evidence, and did not 

improperly draw medical conclusions. 

We also conclude that Judge Johnson did not treat the preamble as if it had 

the force of law and did not improperly review the medical opinions. We 

need not decide whether Judge Johnson applied the wrong legal standard 

because any error would have been harmless. 

 
5 

II. Federal law creates a rebuttable presumption that disabled 

miners with at least 15 years of employment are entitled to 

benefits. 

Congress enacted the Black Lung Benefits Act to compensate coal 

miners who become disabled from certain lung diseases (known 

collectively as “pneumoconiosis”) that arose out of employment in a coal 

mine. 30 U.S.C. § 901. To be entitled to benefits, a claimant must establish 

four elements: 

1. Disease (the miner suffers from pneumoconiosis), 

2. Disease causation (the pneumoconiosis arose out of coal-mine 

employment), 

3. Disability (the miner is totally disabled because of a 

respiratory or pulmonary impairment), and 

4. Disability causation (the pneumoconiosis is a substantially 

contributing cause of the miner’s total disability). 

Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1335 

(10th Cir. 2014).4

 

There are two definitions of pneumoconiosis—“clinical” and “legal.” 

20 C.F.R. § 718.201(a). This case involves legal pneumoconiosis, not 

clinical pneumoconiosis. For legal pneumoconiosis, a miner must suffer 

from “any chronic lung disease or impairment and its sequelae” that 

 

4

 Our opinions have often combined the third and fourth elements into 

a single third element. See, e.g., Blue Mountain Energy v. Dir., Office of 

Workers’ Comp. Programs, 805 F.3d 1254, 1256 (10th Cir. 2015) 

(providing a three-element test). 
6 

“ar[ose] out of coal mine employment.” Id. § 718.201(a)(2); see Anderson 

v. Dir., Office of Workers’ Comp. Programs, 455 F.3d 1102, 1104 (10th 

Cir. 2006). Thus, for legal pneumoconiosis, claimants must satisfy both the 

Disease and Disease causation elements. See 20 C.F.R. § 718.201(a)(2); 

Anderson, 455 F.3d at 1105-07. In other words, the miner must suffer from 

a chronic lung disease or impairment arising out of coal-mine employment. 

 Ordinarily, claimants must prove each of the four elements. Goodin, 

743 F.3d at 1335. But Mr. Blackburn had worked in a coal mine for at least 

15 years. Thus, the Act softens his burden: The “15-year presumption” 

provides that if Mr. Blackburn had established the Disability element, he 

would have been entitled to a rebuttable presumption that the remaining 

three elements (Disease, Disease causation, and Disability causation) were 

also established.5 See 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)-(c).6

 

5

 Mr. Blackburn also cannot “establish entitlement under [20 

C.F.R.] § 718.304 by means of chest x-ray evidence.” 20 C.F.R. § 

718.305(b)(1)(ii) (requirement for the 15-year presumption). 

6

 This presumption originally expired in 1982. See 30 U.S.C. § 

921(c)(4) (2006) (“The provisions of this paragraph shall not apply with 

respect to claims filed on or after the effective date of the Black Lung 

Benefits Amendments of 1981.”); Black Lung Benefits Amendments of 

1981, Pub. L. No. 97-119, tit. II, § 206, 95 Stat. 1635, 1645. In 2010, 

Congress reinstated the presumption for claims filed after January 1, 2005, 

that were pending on or after March 23, 2010. Patient Protection and 

Affordable Care Act, Pub. L. No. 111-148, tit. I, § 1556, 124 Stat. 119, 

260 (2010).
7 

The burden would then shift to Energy West to disprove one of these three 

elements. See 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(d)(1). 

 The parties agree that Mr. Blackburn satisfied his threshold burden, 

triggering the presumption of Disease, Disease causation, and Disability 

causation. Energy West tried to rebut the presumption by showing that Mr. 

Blackburn never had legal pneumoconiosis because his lung disease had 

not arisen out of his employment in a coal mine (Disease causation). See 

20 C.F.R. § 718.305(d)(1)(i)(A) (indicating that the presumption may be 

rebutted by establishing that the miner never had legal pneumoconiosis). 

The Benefits Review Board affirmed Judge Johnson’s conclusion that 

Energy West had not rebutted the presumption. On appeal, we consider the 

correctness of the Board’s decision. 

 
8 

III. Standard of Review 

For questions of fact, we formally review the Board’s two decisions, 

but focus on the decisions by the two administrative law judges. See 

Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1341 

n.13 (10th Cir. 2014). For questions of law, we engage in de novo review 

of the Board’s decisions. Id. at 1341. 

IV. Judge Malamphy did not adequately explain his decision. 

Energy West contends that the Board improperly concluded that 

Judge Malamphy had not provided an adequate explanation for his denial 

of benefits. This contention triggers de novo review. Gunderson v. U.S. 

Dep’t of Labor, 601 F.3d 1013, 1021 (10th Cir. 2010). In conducting de 

novo review, we agree with the Board that Judge Malamphy failed to 

adequately explain the reasons for his conclusion.7

An agency’s adjudicative decision must be “‘accompanied by a clear 

and satisfactory explication of the basis on which it rests.’” Id. at 1022 

(quoting Barren Creek Coal Co. v. Witmer, 111 F.3d 352, 356 (3d Cir. 

1997)). This duty of explanation does not mandate “‘verbosity or 

pedantry,’” but requires only that the administrative law judge provide an 

 

7

 In 2016, when this case reached the Board for a second time, the 

Board declined to disturb its earlier disposition. Blackburn v. Energy W. 

Mining Co., BRB No. 15-0290 BLA, slip. op. at 4, 2016 WL 8260661, at 

*2 (Ben. Rev. Bd. Apr. 26, 2016) (per curiam) (unpublished) (“Second 

Board Decision”). 
9 

explanation that allows us to discern the decision and the reasons for it. Id. 

(quoting Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th 

Cir. 1999)). 

In cases involving conflicting medical or scientific evidence, an 

administrative law judge must “‘articulate a reason and provide support’” 

to favor one opinion over another. Id. (quoting Stalcup v. Peabody Coal 

Co., 477 F.3d 482, 484 (7th Cir. 2007)). This requires more than a 

“‘cursory statement’” that one expert’s opinion is more persuasive than 

another’s. Id. at 1023 (quoting Barren Creek, 111 F.3d at 354).8

 Instead, an 

administrative law judge must use his or her expertise to evaluate the 

expert opinions. See id. at 1022-23. 

Judge Malamphy’s decision failed to provide an adequate 

explanation. The relevant portion of his written opinion consisted almost 

entirely of summaries of the medical evidence and block quotations from 

the physicians’ reports. See Petitioner’s Opening Br., Attachment A at 6-

 

8

 In Energy West’s view, Gunderson stands only for the proposition 

that “[t]he mere fact equally qualified experts gave conflicting testimony 

does not authorize an [administrative law judge] to avoid the scientific 

controversy by declaring a tie.” Petitioner’s Opening Br. at 18 (citing 

Gunderson, 601 F.3d at 1024). Energy West attempts to distinguish 

Gunderson from the present case because Judge Malamphy did not declare 

a tie. Notwithstanding this difference, Gunderson shows that an 

administrative law judge, in resolving a scientific or medical controversy, 

must explain why one expert’s opinion is more persuasive than another’s. 
10 

15. Following the summaries and block quotations, Judge Malamphy stated 

that Energy West had successfully rebutted the 15-year presumption: 

Drs. James, Farney, and Tuteur have given detailed 

reasoning for their opinions. Each party has relied on published 

treatises for their positions. [Mr. Blackburn’s] history of 

smoking is clearly more extensive than he acknowledged at the 

hearing. 

I find [Energy West] has rebutted the 15-year 

presumption by showing that [Mr. Blackburn] does not have 

pneumoconiosis. All of [Mr. Blackburn’s] X-ray readings and 

his CT-scan readings were negative for pneumoconiosis. 

Further, the medical opinion evidence does not support a 

finding of legal pneumoconiosis. 

Therefore, I find that evidence does not support a finding 

that [Mr. Blackburn] has pneumoconiosis. 

Id. at 15. This explanation references the medical-opinion evidence, Mr. 

Blackburn’s smoking history, and his negative x-rays and CT-scans. 

Energy West makes two arguments for why Judge Malamphy’s 

explanation was sufficient, pointing to (1) his selection of quotations and 

(2) his observation that the x-rays and CT-scans were negative for 

pneumoconiosis. These references do not substitute for an articulation of 

why Judge Malamphy chose to believe Doctor Farney and Doctor Tuteur 

over Doctor James. 

For the first argument, Energy West does not suggest that Judge 

Malamphy expressly articulated his reasons for crediting the opinions of 

Doctors Farney and Tuteur. Instead, Energy West contends that Judge 

Malamphy’s rationale is discernible “when one reads between the lines of 
11 

the decision” or analyzes the decision as a whole. See Petitioner’s Reply 

Br. at 7. 

This argument fails as a matter of law. Like the Board, we are unable 

to discern Judge Malamphy’s reasoning. Perhaps some readers may believe 

that they can glean Judge Malamphy’s reasoning from his selection of 

quotations. But these readers would ultimately only be guessing at Judge 

Malamphy’s reasoning. This kind of guesswork should be unnecessary 

because administrative law judges must articulate why they credit one 

medical expert over another. Gunderson, 601 F.3d at 1022. As a result, we 

decline to look between the lines and into the mind of Judge Malamphy, 

hoping to find a rationale where none has been articulated.9

Second, Energy West points to Judge Malamphy’s explanation that 

“none of the chest x-rays or CT-scans reflect the existence of clinical 

[pneumoconiosis, also known as] medical pneumoconiosis.” Petitioner’s 

Opening Br. at 23. But the x-rays and CT-scans provide little help because 

Mr. Blackburn relies on legal pneumoconiosis rather than on clinical

pneumoconiosis. 

 

9

 The respondents contend that Judge Malamphy’s “long-form quotes” 

constitute only his “summary of the facts, not his analysis of causation.” 

Respondents’ Resp. Br. at 28. We need not consider this contention, for we 

reject Energy West’s argument on other grounds. 
12 

At oral argument, Energy West shifted its theory, pointing to the 

negative CT-scans to explain Judge Malamphy’s finding that Mr. 

Blackburn did not have legal pneumoconiosis: 

The CT-scan demonstrated Dr. Farney[’s] [conclusion], as he 

explained, there was emphysema, he attributed the emphysema 

to cigarette smoking. So it supports his conclusion that legal 

pneumoconiosis was not present. 

Oral Argument at 11:34-45. This argument is waived and unpersuasive. 

The argument is waived because it was raised for the first time at oral 

argument. See United States v. Burns, 775 F.3d 1221, 1223 n.2 (10th Cir. 

2014). The argument is also unpersuasive. As quoted above, Energy West 

points out that the CT-scans showed emphysema and Dr. Farney attributed 

the emphysema to smoking rather than exposure to coal-mine dust. But 

everyone agrees that Mr. Blackburn had emphysema; Judge Malamphy did 

not say that the CT-scans had supported Dr. Farney’s conclusion about the 

cause of the emphysema. As a result, we can only speculate about why 

Judge Malamphy might have regarded the CT-scans as relevant to his 

conclusion on legal pneumoconiosis. 

* * * 

Judge Malamphy did not articulate why he believed that Energy West 

had rebutted the presumption of legal pneumoconiosis. Thus, the Board 

correctly vacated Judge Malamphy’s decision. 

 
13 

V. The Board properly affirmed Judge Johnson’s decision. 

On remand, Judge Johnson decided to award benefits to Mr. 

Blackburn. Petitioner’s Opening Br., Attachment C at 18. In reaching this 

decision, Judge Johnson considered all of the medical opinions, including 

those of Doctors Farney and Tuteur, who had attributed Mr. Blackburn’s 

lung disease to smoking. Judge Johnson decided that the opinions of 

Doctor Farney and Doctor Tuteur were not credible. As a result, Judge 

Johnson concluded that Energy West had failed to rebut the presumption of 

an entitlement to benefits. The Board upheld that decision. 

 On appeal, Energy West presents six challenges to Judge Johnson’s 

decision, arguing that Judge Johnson 

1. ruled beyond the scope of the remand, 

2. rendered a decision unsupported by substantial evidence, 

3. improperly drew his own medical conclusions, 

4. improperly relied on the “preamble” to the applicable 

regulations, 

5. failed to compare the medical opinions in an even-handed way, 

and 

6. applied the wrong legal standard. 

A. Judge Johnson did not rule beyond the scope of the remand. 

Energy West contends that Judge Johnson’s ruling went beyond the 

scope of the remand. We disagree. 
14 

After Judge Malamphy initially denied benefits, the Board vacated 

the decision and remanded for the administrative law judge to provide an 

adequate explanation. According to Energy West, the remand instructions 

required Judge Johnson to provide an adequate explanation in Energy 

West’s favor.

10 For this proposition, Energy West relies on the following 

statement from the Board’s first decision: 

 

10 Energy West appears to reframe its argument between the filing of its 

opening and reply briefs. 

 In its opening brief, Energy West contended: 

 The suggestion the case was remanded for an 

Administrative Law Judge to determine the weight to accord of 

these [medical] opinions and because the [administrative law 

judge] had discretion on remand to reconsider credibility 

findings, the prior determinations were not binding on rebuttal, 

is untenable. This is not what the 2013 Board found. The 

arguments claimants made to [Judge] Johnson had been made to 

the 2013 Board and it ruled there was no merit in the 

contention that the opinions of Drs. Farney and Tuteur were 

insufficient to support a finding of rebuttal of the presumption 

of total disability due to pneumoconiosis. Yet, those same 

arguments are now credited when [Judge] Johnson finds merit 

in the arguments that the opinions of Drs. Farney and Tuteur 

are insufficient to support a finding of rebuttal. The law-of-the 

case doctrine would not allow for such a bipolar interpretation 

of the same facts. The Board’s 2013 finding should have been 

applied. 

Petitioner’s Opening Br. at 26-27 (citations omitted). 

Though this segment appears to challenge the administrative law 

judge’s discretion to arrive at a different result on remand, Energy West 

states in its reply brief that it “does not suggest” that the Board, when 

reviewing Judge Malamphy’s decision, had made “an unrestricted holding 
15 

We find no merit . . . to [Mr. Blackburn’s] contention that the 

opinions of Drs. Farney and Tuteur are insufficient to support a 

finding of rebuttal, as both doctors opined that [Mr. 

Blackburn’s] respiratory impairment was not due, in whole or 

in part, to his coal mine employment. 

Blackburn v. Energy W. Mining Co., BRB 12-0607 BLA, slip. op. at 5, 

2013 WL 4407026, at *2 (Ben. Rev. Bd. July 24, 2013) (per curiam) 

(unpublished) (“First Board Decision”); see also Oral Arg. at 8:05-8:15 

(counsel for Energy West stating that “[t]he instruction to the 

[administrative law judge] was, ‘[y]ou can’t discredit them because they 

did not say anything inappropriate’”). 

 We disagree with Energy West’s interpretation of the Board’s 

instructions. The Board was simply saying that the opinions by Doctor 

Farney and Doctor Tuteur were not necessarily insufficient to rebut the 

presumption—rather, that determination could be made only after the 

administrative law judge determined which medical opinions were 

persuasive: 

On remand, the administrative law judge must discuss and 

weigh all of the relevant evidence, resolve any scientific 

dispute on scientific grounds, and set forth the specific bases 

for his findings. The administrative law judge is reminded that 

 

that the Board had reviewed, assessed, and found [Doctor Farney’s and 

Doctor Tuteur’s] opinions sufficient to prove rebuttal.” Petitioner’s Reply 

Br. at 16-17. Instead, Energy West insists that it is arguing only that the 

first Board decision had rejected the idea that the medical opinions by 

Doctors Farney and Tuteur were “invalid or contrary to the [regulatory] 

Preamble and legally unable to establish rebuttal of the 15-year 

presumption.” Id. at 17. 
16 

it is [Energy West]’s burden on rebuttal to [rebut the 

presumption]. 

First Board Decision at 5, 2013 WL 4407026, at *3; see Second Board 

Decision at 5-6, 2016 WL 8260661, at *3. In other words, the Board was 

just saying that the administrative law judge should determine whether the 

employer had presented sufficient evidence to rebut the presumption, not 

that the administrative law judge should decide in favor of the employer. 

Otherwise the remand would have been pointless.11

 Accordingly, we conclude that Judge Johnson did not deviate from 

the remand instructions.12

B. Judge Johnson’s decision was supported by substantial 

 evidence. 

Energy West also contends that Judge Johnson’s decision was not 

supported by substantial evidence. We disagree, concluding that the record 

contains evidence that “‘a reasonable mind might accept as adequate to 

support’” the administrative law judge’s conclusion. Energy W. Mining Co. 

 

11 The respondents also argue that (1) Judge Johnson “was not bound by 

prior determinations of credibility” and (2) Judge Malamphy’s presence at 

the hearing did not provide an advantage over Judge Johnson when 

evaluating the experts’ credibility. Respondents’ Resp. Br. at 31 n.15. We 

need not address these arguments. 

12 In arguing that Judge Johnson ruled beyond the scope of the remand, 

Energy West assumes that the law-of-the-case doctrine applies to Board 

decisions. For the sake of argument, we may assume that Energy West is 

correct because this assumption would not affect the outcome. 
17 

v. Oliver, 555 F.3d 1211, 1217 (10th Cir. 2009) (quoting Hansen v. Dir., 

Office of Workers Comp. Programs, 984 F.2d 364, 368 (10th Cir. 1993)). 

Judge Johnson provided four reasons to question Dr. Farney’s 

credibility13 and one reason to question Dr. Tuteur’s credibility.14

 

13 Judge Johnson stated: 

[First,] th[e] study [relied upon by Dr. Farney], to the extent 

that it concluded there is a distinction between the contribution 

of cigarette smoking and that of coal-dust exposure to 

centrilobular emphysema is not actually addressed in the 

article, at least according to his summary. The article instead 

focused on the existence of clinical pneumoconiosis. [¶] 

Second, Dr. Farney’s reference to “the established pathogenesis 

and natural history of pulmonary diseases secondary to coal 

dust exposure” implies that centrilobular emphysema caused by 

coal-dust exposure is due to a different process from that 

caused by cigarette smoking. That position is contrary to the 

premise underlying the Black Lung regulations that coal dust 

exposure and cigarette smoking cause damage to the lungs by 

similar mechanisms. [¶] 

Third, Dr. Farney’s report is internally inconsistent in that he 

exhaustively discussed Mr. Blackburn’s smoking history, but 

then relied in part on the Rom study’s conclusion regarding 

non-smoking Utah coal miners. [¶] 

Fourth, Dr. Farney’s opinion fails to recognize that the 

Department of Labor has determined that coal dust and smoking 

have additive effects, and he did not discuss that possibility. 

 Petitioner’s Opening Br., Attachment C at 15-16. 

14 Judge Johnson stated: 

[Dr. Tuteur’s] attempts to show that Mr. Blackburn developed 

his disease from smoking, and not from coal-dust exposure, 
18 

Energy West contends that Judge Johnson’s third and fourth reasons 

for rejecting Dr. Farney’s opinion—an internal inconsistency and a 

failure to consider the possibility of additive effects from coal-mine 

dust and smoking—are unsupported by substantial evidence. 

First, Energy West challenges Judge Johnson’s conclusion that 

Doctor Farney’s report was “internally inconsistent.” Petitioner’s Opening 

Br., Attachment C at 16. This challenge involves Judge Johnson’s 

reference to Doctor Farney’s discussion of a medical article. According to 

Doctor Farney’s discussion, the article indicated that “non-cigarette 

smoking” coal miners have a low risk of developing pneumoconiosis. See 

id.; Respondents’ Supp. App’x at 112. Because Mr. Blackburn was a 

smoker, Judge Johnson found it inconsistent for Doctor Farney to rely on 

the article as a basis to conclude that Mr. Blackburn had a low risk of 

developing legal pneumoconiosis. Petitioner’s Opening Br., Attachment C 

at 16; Respondents’ Supp. App’x at 112. 

Energy West denies an inconsistency. Energy West appears to assume 

that Mr. Blackburn’s smoking would not increase his risk of legal 

pneumoconiosis. Petitioner’s Opening Br. at 35-36. Based on this apparent 

assumption, Energy West suggests that Judge Johnson misunderstood how 

 

suffer from over-reliance on statistics and a lack of 

individualized application of those data to Mr. Blackburn. 

 Petitioner’s Opening Br., Attachment C at 16. 
19 

Mr. Blackburn’s situation had related to Dr. Farney’s conclusion from the 

article. See id.

The record supports Judge Johnson’s finding of an inconsistency. 

Judge Johnson noted that according to the Department of Labor, medical 

evidence shows that smoking can increase the risk of a miner developing 

pneumoconiosis from coal-mine dust. Petitioner’s Opening Br., Attachment 

C at 14-15. Based on the Department of Labor’s position, Judge Johnson 

could reasonably find it inconsistent for Doctor Farney to conclude that 

Mr. Blackburn had a low risk for legal pneumoconiosis just because the 

risk was low for miners who had not smoked. 

Second, Energy West challenges Judge Johnson’s conclusion that 

Doctor Farney did not consider the possibility that “coal dust and smoking 

have additive effects.” Petitioner’s Opening Br., Attachment C at 16. This 

challenge is two-fold: (1) that Judge Johnson erred in interpreting Doctor 

Farney’s opinion and (2) that Judge Johnson misunderstood the preamble, 

which states only that coal-mine dust and smoking can have additive 

effects, not that they will always have additive effects. We reject both 

challenges. 

Energy West first asserts that Doctor Farney considered the 

possibility of additive effects. See Petitioner’s Opening Br. at 45-46 (“Dr. 

Farney specifically recognizes the potential additive contribution of coal 

dust, but negates any such contribution in Mr. Blackburn’s case based on a 
20 

reasoned medical opinion.”). For this assertion, Energy West provides no 

record citation. 

We conclude that substantial evidence supports Judge Johnson’s 

finding. Doctor Farney stated that coal-mine dust can cause legal 

pneumoconiosis “independent” of smoking, and he regarded this risk as 

low. Respondents’ Supp. App’x at 111-12. Doctor Farney then concluded 

that Mr. Blackburn’s risk of legal pneumoconiosis was the same as the risk 

for a non-smoker. See id. at 112. Judge Johnson could reasonably conclude 

that Doctor Farney had failed to consider the additive effects of coal-mine 

dust and smoking. 

Energy West also asserts that the preamble states only that coal-mine 

dust and smoking “can” have additive effects, not that they always “have” 

additive effects. Petitioner’s Opening Br. at 45 (emphasis in original). 

Again, Energy West provides no citation for this proposition. 

We conclude that Judge Johnson did not misunderstand the preamble. 

The preamble favorably cites studies saying that coal-mine dust and 

smoking have additive effects: 

[Lung function] decline occurs at a similar rate in smokers and 

nonsmokers, although the loss of lung function overall is 

greater in smokers, the two effects being additive. . . . 

. . . . 

. . . Smokers who mine have additive risk for developing 

significant obstruction. . . . [¶] 
21 

The message from the Marine study is unequivocal: Even 

in the absence of smoking, coal mine dust exposure is clearly 

associated with clinically significant airways obstruction and 

chronic bronchitis. The risk is additive with cigarette smoking. 

. . . . 

. . . “[T]he combined effects of coal mine dust and 

smoking on [lung function] appear to be additive.” . . . 

. . . [“I]t appears that the major damages caused by 

cigarette smoking is additive to the minor damage which can be 

attributed to coal dust.” 

Regulations Implementing the Federal Coal Mine Health and Safety Act of 

1969, as amended, 65 Fed. Reg. 79,920, 79,939-41 (Dec. 20, 2000) 

(emphasis added) (citations omitted). 

 This additive effect results in increased susceptibility to lung disease 

for the group of coal miners who both smoked cigarettes and exposed 

themselves to coal-mine dust. 
22 

Addressing this group, Judge Johnson stated: “[T]he Department of Labor 

has determined that coal dust and smoking have additive effects . . . .” 

Petitioner’s Opening Br., Attachment C at 16. In our view, this statement 

does not mischaracterize the preamble. 

 We therefore reject Energy West’s factual challenges to Judge 

Johnson’s criticisms regarding an inconsistency in Doctor Farney’s report 

and his failure to consider the additive risk created by exposure to coalmine dust and smoking. 

C. Judge Johnson did not interject his own medical opinions. 

Energy West also challenges Judge Johnson’s first criticism of 

Doctor Farney’s opinion and the single criticism of Doctor Tuteur’s 

opinion. According to Energy West, these criticisms show that Judge 

Johnson interjected his own medical opinions. We disagree, concluding 

that Judge Johnson properly weighed the medical opinions. 

First, Energy West challenges Judge Johnson’s criticism of Doctor 

Farney’s reliance on a particular medical article. Dr. Farney had diagnosed 

Mr. Blackburn’s lung disease as characterized by emphysema. Petitioner’s 

Opening Br., Attachment C at 4 n.5. In light of this diagnosis, Judge 

Johnson criticized Doctor Farney’s reliance on a medical article, stating 

that “at least according to [Doctor Farney’s] summary,” the article had not 

actually addressed the distinction between the contributions of smoking 
23 

and coal-dust exposure on emphysema.15 Id. at 15-16; see id. at 4 n.5. This 

criticism leads Energy West to argue that Judge Johnson improperly acted 

as a “medical expert.” Petitioner’s Opening Br. at 29. We disagree with 

this characterization. 

Judge Johnson simply weighed the different medical opinions, as he 

was required to do. Administrative law judges sometimes improperly 

exceed their role by making their own medical diagnoses or using nonscientific evidence to resolve a conflict between medical experts. Here, 

though, Judge Johnson simply resolved a medical conflict on scientific 

grounds. See Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013, 1023 (10th 

Cir. 2010) (stating that an administrative law judge must rely on “scientific 

grounds” “to resolve a scientific dispute”); id. at 1022-23 (indicating that 

an administrative law judge can make “scientific and technical judgments 

within the scope of agency expertise” (quoting Wyoming v. United States, 

279 F.3d 1214, 1240 (10th Cir. 2002))); see also Dixie Fuel Co. v. Dir., 

 

15 It is unclear whether Judge Johnson read this article or relied 

solely on Doctor Farney’s summary of the article. But Energy West 

has not argued that Judge Johnson failed to read the article or that he 

mischaracterized the article. We therefore do not consider these 

potential arguments. 
24 

Office of Workers’ Comp. Programs, 820 F.3d 833, 845-46 (6th Cir. 

2016).16

Second, Energy West challenges Judge Johnson’s criticism of Doctor 

Tuteur’s reliance on statistics. Doctor Tuteur concluded that Mr. Blackburn 

probably did not have legal pneumoconiosis because only a small 

percentage of coal miners suffer from legal pneumoconiosis. Petitioner’s 

Opening Br., Attachment C at 16. Judge Johnson thought that this 

conclusion relied too heavily on statistics rather than “individualized 

application.” Id. 

Energy West characterizes this criticism as Judge Johnson’s 

interjection of his own medical opinion. We reject this characterization. 

Judge Johnson simply analyzed Doctor Tuteur’s opinion based on a 

scientific ground: the overreliance on statistics and lack of individualized 

application. An administrative law judge can undertake this sort of 

analysis. See, e.g., Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 

 

16 In Dixie Fuel Co., an administrative law judge concluded that a 

medical report was not credible because the physician had relied partly on 

medical articles that did not support the physician’s conclusions. 820 F.3d 

at 845-46. The employer argued that the administrative law judge had 

improperly “play[ed] expert” by examining the medical articles. Id. at 845. 

The Sixth Circuit disagreed, explaining that the administrative law judge 

had “merely fulfilled his role as fact-finder by evaluating the credibility of 

[the physician’s] conclusions.” Id. 
25 

F.3d 1331, 1345-46 (10th Cir. 2014);17 see also Consol. Coal Co. v. Dir., 

Office of Workers Comp. Programs, 732 F.3d 723, 735 (7th Cir. 2013) 

(holding that the administrative law judge did not err by discrediting the 

medical opinion of a doctor who had relied on general statistics because 

the doctor had not related these statistics to the particular coal-mining 

employee). We therefore reject Energy West’s argument. 

D. Judge Johnson did not improperly rely on the “preamble” 

 to the applicable regulations. 

Energy West also argues that Judge Johnson improperly relied on the 

“preamble” to the applicable regulations.18 According to Energy West, 

Judge Johnson treated the preamble as the law even though the preamble 

had not been subject to the Administrative Procedure Act’s notice-andcomment requirements. 

 

17 In Goodin, the employer also presented testimony by medical 

experts, who had opined that a coal miner’s chronic obstructive pulmonary 

disease was statistically more likely to be caused by cigarettes or asthma 

than by inhalation of coal-mine dust. 743 F.3d at 1339, 1345. The 

administrative law judge rejected this reliance on statistical probabilities 

because the medical experts had failed to account for the possibility that 

this coal miner fell within the statistical minority of individuals 

contracting chronic obstructive pulmonary disease from coal mining. Id. at 

1345-46. We upheld this rationale as adequately supported by the record. 

Id. at 1346. 

18 The preamble to the 2001 amendments to the black lung regulations 

provides the medical principles that underlie the Department of Labor’s 

current regulations. See Regulations Implementing the Federal Coal Mine 

Health and Safety Act of 1969, as amended, 65 Fed. Reg. 79,920, 79,920-

80,045 (Dec. 20, 2000). 
26 

We disagree based on our treatment of the issue in Blue Mountain 

Energy v. Director, Office of Workers’ Compensation Programs, 805 F.3d 

1254 (10th Cir. 2015). There we distinguished between two distinct uses of 

the preamble. In one, an administrative law judge uses the preamble to 

“effect[] some sort of change in the law” or to create “a broadly-applicable 

rule.” 805 F.3d at 1261. This use of the preamble is improper. Id. But an 

administrative law judge can consider the preamble as a tool to gauge an 

expert’s credibility. See id. Because the administrative law judge in Blue 

Mountain had used the preamble only as a tool to weigh the causation 

evidence for that case (rather than for a broader legal principle), we did 

not fault the Board for affirming the administrative law judge’s decision. 

Id. at 1261-62. 

This dichotomy guides our consideration of Judge Johnson’s use of 

the preamble. Energy West points to two of Judge Johnson’s statements: 

(1) that Doctor Farney’s understanding of how coal-mine dust and cigarette 

smoke affects the lungs was “contrary to the premise underlying the Black 

Lung regulations,” and (2) that Doctor Farney had failed to acknowledge 

the Department of Labor’s recognition of the additive effects of coal-mine 

dust and smoking. Petitioner’s Opening Br., Attachment C at 16. 

We believe that Judge Johnson’s use of the preamble was proper. As 

in Blue Mountain, the administrative law judge’s language refers to 

analysis of the evidence “in this case.” Blue Mountain, 805 F.3d at 1261 
27 

(emphasis omitted). After discussing the premises underlying the preamble, 

Judge Johnson indicated that 

 he understood that all issues “must be resolved on a claim-byclaim basis” and 

 he would “weigh the conflicting medical opinions in this case 

based on these principles.” 

Petitioner’s Opening Br., Attachment C at 15. 

The disputed statements of Judge Johnson were nearly identical to 

the administrative law judge’s language in Blue Mountain. There the 

administrative law judge had said: 

Dr. Repsher’s opinion fails to address whether coal dust 

exposure and smoking could have been additive causes of 

Claimant’s lung disease, an etiology clearly adopted in the 

Preamble to the Regulations. . . . Dr. Parker specifically linked 

Claimant’s symptoms to the documented effects of coal mine 

exposure and cited to literature that has been approved by the 

Department in the Preamble. 

Blue Mountain, 805 F.3d at 1261 (emphasis modified) (ellipsis in original) 

(citation omitted). Here too Judge Johnson indicated that he understood the 

need to resolve each case on an individual basis. Thus, if use of the 

preamble was permissible in Blue Mountain, the same must be true here. 

 Energy West argues that this case differs from Blue Mountain 

because the administrative law judge there made “limited references to the 

preamble and looked to other portions of the medical opinions.” 

Petitioner’s Opening Br. at 34. According to Energy West, Judge Johnson’s 

use of the preamble was more expansive, using the preamble to conclude 
28 

that “medical opinions which are based on the premise that coal dustrelated obstructive disease is completely distinct from smoking-related 

disease are errant” and that “coal dust and smoking . . . always have 

additive effects.” Petitioner’s Opening Br. at 33, 45 (emphasis omitted). 

We disagree. Judge Johnson simply pointed out that Doctor Farney was 

making unsupported assumptions that conflicted with the preamble. Had 

Doctor Farney provided reasons for his assumptions, Judge Johnson would 

have been bound to consider them. See Blue Mountain, 805 F.3d at 1261 

(“[A party] always ha[s] the ability to counter . . . the medical literature 

cited in the preamble.”). 

 We therefore conclude that Judge Johnson did not improperly treat 

the preamble as the law.19

E. The administrative law judge did not err when considering 

Dr. James’s opinion. 

Energy West contends that Judge Johnson was overly generous in his 

consideration of Dr. James’s opinion. This contention reflects a 

misunderstanding of how Judge Johnson applied Dr. James’s opinion. 

Judge Johnson did describe Dr. James’s opinion as “well-documented and 

 

19 At oral argument, Energy West also argued that when Judge 

Johnson had relied on the preamble, he “appl[ied] arguments never 

made by the claimant.” Oral Argument at 8:20-35. If Energy West is 

arguing that Judge Johnson erred in discussing the preamble without 

a request by the claimant, this argument is waived by omission in 

Energy West’s briefs. See United States v. Burns, 775 F.3d 1221, 

1223 n.2 (10th Cir. 2014). 
29 

well-reasoned.” Petitioner’s Opening Br., Attachment C at 16. But Judge 

Johnson simply concluded that Dr. James’s opinion had not helped Energy 

West to rebut the presumption. Id. This conclusion appears unassailable. 

Energy West might disagree with Dr. James, but his opinion certainly did 

not help Energy West to rebut the presumption. 

F. If Judge Johnson had erroneously used the wrong legal 

standard, the error would have been harmless. 

Finally, Energy West argues that Judge Johnson applied an improper 

legal standard that unfairly intensified Energy West’s burden. We need not 

decide whether Judge Johnson erred because any such error would have 

been harmless. See Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 

F.3d 1331, 1348 (10th Cir. 2014) (concluding that “any alleged error was 

harmless because Mr. Goodin would have prevailed even without the 

[error]”). 

Energy West’s argument is straightforward. A federal regulation 

allows Energy West to rebut the 15-year presumption by establishing that 

Mr. Blackburn did not have legal pneumoconiosis or clinical 

pneumoconiosis. 20 C.F.R. § 718.305(d)(1)(i). Only legal pneumoconiosis 

is at issue here, for no one contends that Mr. Blackburn had clinical 

pneumoconiosis. A different federal regulation defines legal 

pneumoconiosis as a chronic lung disease or impairment “arising out of 

coal mine employment.” Id. § 718.201(a)(2). The phrase “arising out of 
30 

coal mine employment” “includes” any chronic disease or impairment 

“significantly related to, or substantially aggravated by” dust from coalmine employment. Id. § 718.201(b) (emphasis added). According to Energy 

West, § 718.201(b) sets forth the relevant standard and Judge Johnson 

deviated from this standard by requiring Energy West to completely “rule 

out” any causal link between Mr. Blackburn’s exposure to coal-mine dust 

and his lung disease. 

For the sake of argument, we can assume that Energy West is correct 

regarding the standard and Judge Johnson’s failure to apply that standard. 

Even with these assumptions, the alleged error would have been harmless 

because Judge Johnson did not base his decision on Energy West’s failure 

to rule out every connection between coal-mine dust and Mr. Blackburn’s 

lung disease. Instead, Judge Johnson reasoned that Energy West’s evidence 

was not credible. 

 Energy West asserts that “[e]valuation under the correct legal 

standard may have changed the credibility determinations.” Petitioner’s 

Opening Br. at 28. We disagree. Judge Johnson rejected Doctor Farney’s 

opinion because it had been unsupported by the referenced medical 

literature, had contained an inconsistency, and had failed to address 

important issues. And Judge Johnson rejected Doctor Tuteur’s opinion 

because it had relied on statistics rather than on Mr. Blackburn as an 
31 

individual. The rebuttal standard did not affect Judge Johnson’s analysis of 

either doctor’s opinion. 

 Energy West argues that a Board case, Minich v. Keystone Coal 

Mining Corp., demonstrates that any error here was not harmless. 

Petitioner’s Opening Br. at 28-29 (citing Minich v. Keystone Coal Mining 

Corp., 25 Black Lung Rep. (Juris) 1-149 (Ben. Rev. Bd. 2015)). But 

Minich did not need to address harmlessness because the administrative 

law judge’s conclusion there had resulted directly from the administrative 

law judge’s use of the wrong legal standard. There one doctor had found 

that the effect of coal-mine dust was “insignificant,” and another doctor 

had found that the effect was “not clinically significant.” Minich, 25 Black 

Lung Rep. at 1-158. The administrative law judge decided in favor of the 

claimant because the physicians could not exclude the possibility that 

exposure to coal-mine dust had contributed to the claimant’s disability. Id.

at 1-157 to -158. The Board agreed with the employer’s criticism of the 

rule-out standard and vacated the administrative law judge’s decision 

awarding benefits to the coal miner. Id. at 1-158. 

 In Minich, the Board never mentioned harmlessness or an issue 

involving the credibility or persuasiveness of the doctors’ opinions. See id.

Presumably, these considerations appeared unimportant because the 

administrative law judge had taken the doctors’ opinions at face value. 

Doing so, the administrative law judge had reasoned that the doctors’ 
32 

opinions would require an award of benefits under the rule-out standard. 

See id. 

 That is not the case here, for Judge Johnson did not take the medical 

opinions at face value. Instead, Judge Johnson decided that the opinions of 

Doctor Farney and Doctor Tuteur were not credible. In reaching this 

decision, Judge Johnson had no reason to rely on the rule-out standard and 

he didn’t. As a result, Minich bears little relevance and the alleged error 

here was harmless. 

VI. Disposition 

We deny the petition for review.