1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0175p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

C ENTRAL O HIO C OAL C OMPANY , Petitioner ,

v

.

D IRECTOR , O FFICE OF W ORKERS ’ C OMPENSATION P ROGRAMS ; L ARRY T. S TERLING , Respondents

. ┐ │ │ │ │ │ │ │ │ ┘ No. 13-3712

On Petition for Review of an Order of the Benefits Review Board. No. 12-0285-BLA Argued: June 19, 2014 Decided and Filed: August 7, 2014
Before: SILER, CLAY, and GIBBONS, Circuit Judges.

_________________ COUNSEL

ARGUED: William S. Mattingly, JA CKSON KELLY PLLC, Morganto wn, West Virginia, for Petitioner. Sean G. Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Heath M. Long, PAWLOWSKI, BILONICK & LONG, Edensburg, Pennsylvania, for Respondent Sterling. ON BRIEF: William S. Mattingly, JACKSON KELLY PLLC, Morgantow n, West Virginia, for Petitione r. Sean G. Bajkowski, Helen H. Cox, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Heath M. Long, PAWLOWSKI, BI LONICK & LONG, Edensburg, Pennsylvania, for Respondent Sterling. 

### >No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 2

_________________ OPINION

_________________ JULIA SMITH GIBBONS, Circuit Judge. Larry Sterling, a former coal miner for Central Ohio Coal Company, received a favorable decision from an administrative law judge (ALJ) declaring him eligible for benefits under th e Black Lung Benefits Act. The Department of
Labor’s Benefits Review Board affirmed the deci sion on appeal. Central Ohio now petitions this
court to review the awar d. It contends that the ALJ wrongly applied the statutory presumption of pneumoconiosis and improperly di scredited certain medical op inions disputing Sterling’s pneumoconiosis diagnosis, and further argues that the ALJ failed to explain his resolution of conflicting evidence about the extent of Sterling’s past cigarette smoking. The petition is denied.

I.
The Black Lung Benefits Act, 30 U.S.C. § 901 et seq. , provides for the payment of blacklung benefits through the United States Departme nt of Labor (DOL) to coal miners who are totally disabled due to pneumoconiosis, a “chr onic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). Pneumoconiosis comes in two forms: clinical pneumoconiosis and legal pneumoconiosis. “Clinical pneumoc oniosis” refers to certain l ung diseases that the medical community recognizes to be caused by exposure to coal dust—in the word s of the applicable regulation, diseases “characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibro tic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment.” 20 C.F. R. § 718.201(a)(1). “Legal pneumoconiosis” is a
broader and less definite term that refers to any chronic lung disease that was caused in this
instance by exposure to coal dust. 20 C.F.R. § 718.201(a)(2).

To establish entitlement to benefits, the cl aimant must prove by a preponderance of the evidence that (1) he has pneumoconiosis, (2) his pne umoconiosis arose in whole or in part out of his coal mine employment, (3) he is totally di sabled, and (4) the total disability is due to pneumoconiosis. Greene v. King James Coal Mining, Inc. , 575 F.3d 628, 634 (6th Cir. 2009)No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 3

(citing 20 C.F.R. §§ 718.202–04). The pneumoconiosis is deemed to “aris[e] out of coal mine employment” if it is “significantl y related to” or was “substantia lly aggravated by” dust exposure during the claimant’s coal mine employment. 20 C.F.R. § 718.201(b). A benefits claimant can establish the existence of pneumoconiosis with medical evidence such as a chest X-ray, autopsy or biopsy evidence, or reasoned medical opinions , or by invoking an applicable presumption. 20 C.F.R. § 718.202(a).
One such statutory presumption provides th at a claimant may establish a rebuttable presumption of pneumoconiosis if the claimant ha s a totally disabling re spiratory or pulmonary impairment and spent at least fifteen years work ing in an underground coal mine or “in coal mines other than underground mines in conditions substantially similar to those in underground mines.” 20 C.F.R. § 718.305(b)(1) (implementi ng 30 U.S.C. § 921(c)(4)). In September 2013 the DOL promulgated regulations further explica ting this presumption: “The conditions in a mine other than an underground mine will be cons idered ‘substantially si milar’ to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coalmine dust while working there.” 20 C.F.R. § 718.305(b)(2). Once the presumption is invoked, the burden of persuasion shifts to the employer to establish that (1) the mi ner has neither clinical nor legal pneumoconiosis, or (2) the miner’s resp iratory or pulmonary im pairment did not arise out of, or in connection wit h, employment in a coal mi ne. 30 U.S.C. § 921(c)(4); Morrison v.
Tenn. Consol. Coal Co. , 644 F.3d 473, 479 (6th Cir. 2011).

II.
Sterling was born in 1945 and sp ent at least twenty-three y ears in the coal industry. Sterling never worked below ground , but he worked the gamut of aboveground jobs: strip mining and augering, loading coal trucks , driving those trucks, and doing ge neral maintenance. He spent most of his time operating a bulldozer, removing the dirt and rock that covered a coal seam and then replacing that material, called overburden, when mining was complete.
Sterling stopped mining in 1999, when the Cent ral Ohio Coal Company laid him off. Sometime thereafter he was asked to return to work at the mine, but he was unable to pass the requisite physical examination due to the poor condition of his lungs. Evidently the coal company worried that he “could pa ss out and hurt [him]self or so meone else.” Sterling has beenNo. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 4

using an oxygen tank since 1995, when Dr. Thomas Fo rrestal, Jr., his family doctor, instructed him to start using it. At some point Dr. Forrestal told Sterling to see Dr. Philip Diaz, who ran the Lung Center at Ohio State University. Dr. Diaz diagnosed Sterling w ith chronic obstructive pulmonary disease (COPD) caused by a comb ination of coal dust and cigarette smoke.
In October 2006 Sterling filed a claim for be nefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as ame nded by the Black Lung Benefits Act of 1977 and
the Patient Protection and Affordable Care Act of 2010. His claim was denied by the District
Director of the Division of Coal Mine Worker s’ Compensation within the U.S. Department of Labor’s Office of Workers’ Compensation Programs. After Sterling requested a formal hearing, an ALJ held a hearing in June 2011 to a ssess the merits of Sterling’s claim.
The ALJ first attempted to determine the full extent of Sterling’s history as a cigarette smoker. Sterling testified th at he was a heavy smoker fo r almost forty years—from Thanksgiving of 1966 until he quit on Valentine’s Day of 2005. For th e first ten or fifteen years, Sterling testified, he smoked about one pack a day. Then he began to smoke closer to two packs a day; on especially busy workdays, he would smoke upwards of three packs a day. The ALJ also considered prior statements that Sterli ng had made to various doctors about his smoking history. Noting that the evidence of Sterling’ s smoking history was “som ewhat contradictory,” the ALJ concluded that Sterling had averaged about one-and-a-hal f packs of cigarettes per day for thirty-eight years—a total of fi fty-seven pack-years of cigarettes.
The ALJ then determined that Sterling wa s entitled to a statutory presumption of pneumoconiosis because he had spent more than fifteen years working in aboveground coal mines whose conditions were substantially simila r to the conditions in underground mines. The ALJ credited Sterling’s testimony that the cond itions throughout his employment at the coal mine were “very dusty.” In the ALJ’s view , Sterling’s testimony “es tablishes that while [Sterling] was working in surface mine employme nt he was exposed to a heavy amount of dust to include coal dust”—especially on hot and dry da ys, when trucks would kick up a great deal of dust as they drove along the haul roads. A lthough Sterling usually operated bulldozers equipped with covered cabs, the seals in those cabs often leaked, and St erling spent much of the day working outside the cab in the ope n, dusty air. As a result, at the end of each day Sterling’sNo. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 5

clothes would be soiled with dirt , grease, and oil. Sterling’s “des cription of his clothes when he returned home from work is typical test imony by underground coal miners, who similarly complain about being exposed to dust while in the mines and having significant dust on their clothes when they return home from work.” That entitled Ster ling to the statutory presumption.

The ALJ next concluded that Central Ohio failed to rebut the presumption through proof that Sterling has neither clinical nor legal pneumoconiosis. He deemed the X-ray evidence
inconclusive on the whole because various radi ologists had reached contradictory views about the presence of pneumoconiosis af ter reviewing three separate X-ra ys. The ALJ also considered medical opinions prepared by five different doctors. Two doc tors diagnosed Sterling with clinical pneumoconiosis, while the three others opined that Sterli ng’s lung disease was not due to clinical pneumoconiosis. Yet the ALJ credited none of those five opinions due to various methodological flaws, and the ALJ therefore dete rmined that the pres umption of clinical pneumoconiosis withstood scrutiny.
On the issue of legal pneumoc oniosis, three doctors conclude d that Sterling did not have legal pneumoconiosis, but the ALJ discredite d those opinions due to either internal inconsistencies or incompatibility with appli cable DOL regulations. The other two opinions— those provided by Drs. Diaz and Forrestal—both diagnosed Sterli ng with legal pneumoconiosis, and the ALJ afforded those opinions full proba tive weight. The ALJ thus held that the presumption of legal pneumoconiosis survived examination and that Sterling had established legal pneumoconiosis by a preponderance of the evidence, even without application of the statutory presumption.
Central Ohio appealed the ALJ’s decision to the DOL’s Benefits Review Board, making the same three objections that the company now rais es in this court. When the Board upheld the ALJ’s decision, Central Ohio timely appealed the Board’s decision to the United States Court of Appeals for the Fourth Circuit. Counsel for Ce ntral Ohio was informed that he had filed the appeal in the wrong court, and Cent ral Ohio filed a motion to transf er venue to this court. The Fourth Circuit granted the motion in June 2013.No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 6

III.
In black-lung-benefits cases, we review the Board’s legal conclusions de novo and review the ALJ’s decision (not the Bo ard’s) to determine whether it was supported by substantial
evidence. Greene v. King James Coal Mining, Inc. , 575 F.3d 628, 633 (6th Cir. 2009). “The ALJ’s findings are conclusive if they are suppor ted by substantial evidence and accord with the applicable law.” Id. (citing Tenn. Consol. Coal Co. v. Kirk , 264 F.3d 602, 606 (6th Cir. 2001)).
“‘Substantial evidence’ means ‘s uch relevant evidence as a re asonable mind might accept as adequate to support a conclusion.’” Kolesar v. Youghiogheny & Ohio Coal Co. , 760 F.2d 728, 729 (6th Cir. 1985) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). “In deciding
whether the substantial evidence standard is sati sfied, we consider whether the ALJ adequately explained the reasons for crediting certain testimony and documentary evidence over other testimony and documentary evidence.” Greene , 575 F.3d at 634. “Where the substantial evidence requirement is satisfied, the court may not set aside the ALJ’s findings, ‘even if [the court] would have taken a differe nt view of the evidence were we the trier of facts.’” Id. (alteration in original) (quoting Ramey v. Kentland Elkhorn Coal Corp. , 755 F.2d 485, 486 (6th Cir. 1985)).

IV.
Central Ohio raises three points of error in this a ppeal. It contends that the ALJ wrongly applied the statutory presumption of pneumoconi osis, improperly discredited certain medical opinions disputing Sterling’s pneumoconiosis dia gnosis, and failed to explain his resolution of conflicting evidence about the extent of Sterling’s past cigarette smoking. We take each in turn.

A.
According to Central Ohio, the ALJ made two errors in applying the rebuttable presumption of pneumoconiosis. 1 The company first argues that the ALJ’s application of the

1 Application of the statutory presumption was not nece ssary for the ALJ’s decision, as the ALJ concluded that Sterling established legal pneumoconiosis by a preponderance of the evidence. But neither Sterling nor the DOL urges us to decide this appeal without determining whether the ALJ properly app lied the presumption. We therefore consider the propri ety of the presumption in th is case even though the presum ption was not necessary for the ALJ’s decision.No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 7

statutory presumption was deficient because th e ALJ failed to explain how the conditions of Sterling’s employment were substantially simi lar to the conditions prevalent in underground
mines. In Central Ohio’s view the comparison of the conditions in two separate places requires the ALJ to explain what conditions are prevalent in each of those places before comparing them. Because the ALJ never explained the conditions in underground mines, Central Ohio argues that the ALJ’s decision is effectively in sulated from appellate review.
Whatever facial appeal this argument might have, it is inconsistent with a DOL regulation providing that “[t]he conditions in a mine othe r than an underground mine will be considered ‘substantially similar’ to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coal-min e dust while working there.” 20 C.F.R. § 718.305(b)(2). 2 The DOL did not promulgate that regulation until September 2013—more than eighteen months after the ALJ issued the decision in this case. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act (Final Rule), 78 Fed. Reg. 59102, 59104–05 (Sept. 25, 2013). But a new interpreti ve regulation that “is substantively consistent with prior regulations or prior agency practices, and has been accepted by all Courts of Appeals to consider the issue,” can be applied to cases pending at the time the regulation is promulgated. Nat’l Mining Ass’n v. Dep’t of Labor , 292 F.3d 849, 860 (D.C. Cir. 2002).
The 2013 regulation reflects the DOL’s longs tanding interpretation of the statutory presumption. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act (Notice of Proposed Rulemaking), 77 Fed. Reg. 19456, 19461 (Mar. 30, 2012) (“The proposed standard reflects the Director’s longsta nding interpretation of the ‘substantially similar’ language [in the statute] . . . .”). It also reflects an interpretati on of the regulati on that has been accepted by both of the courts of appeal s that have considered the issue. See Antelope Coal Co./Rio Tinto Energy Am. v. Goodin , 743 F.3d 1331, 1342 (10th Cir. 2014); Freeman United Coal Mining Co. v. Summers , 272 F.3d 473, 479–80 (7th Cir. 2001) (citing Dir. of Office of Workers’ Comp. Programs v. Midland Coal Co. , 855 F.2d 509, 512 (7th Cir. 1988)). The September 2013 regulation therefore applies to St erling’s claim, and accordingly the ALJ did not

2 At oral argument Central Ohio waived any challenge to the validity (though not the applicability) of the DOL regulation.No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 8

err by failing to discuss the conditions th at are prevalent in underground mines. See Antelope
Coal Co. , 743 F.3d at 1342 (applying this same regula tion to a case that wa s pending at the time the DOL promulgated the regulation). Sterling n eeded only to establish that he “was regularly exposed to coal-mine dust while working” at the mine. 20 C. F.R. § 718.305(b)(2).
Central Ohio maintains that Sterling failed to meet this burden because having dirty
clothes at the end of a shift is not equivalent to inha ling dust all day. But this argument misses the point of the ALJ’s analysis. The ALJ di d not apply the presump tion because Sterling’s
clothes were covered in dirt at the end of each workday; the judge applied the presumption because Sterling testified that th e conditions at the mine were “very dusty,” and this testimony was corroborated by other testimony about the heavy truck traffic at the mine and the amount of dust that covered Sterling’s clot hes at the end of his shifts.
At oral argument Central Ohio maintained th at the ALJ’s decision must be vacated and
remanded because the ALJ failed to differentiate between coal dust and dust from dirt. The statutory presumption applies only if “the miner was regularly exposed to coal-mine dust while working” at the aboveground mine, 20 C.F.R. § 718.305(b)(2) (emphasis added), and the distinction therefore may be significant. Yet Cent ral Ohio did not raise this issue in its briefs, and accordingly it has forfeited the argument. See Rawe v. Liberty Mut. Fire Ins. Co. , 462 F.3d 521, 525 n.4 (6th Cir. 2006). And in all events, Ce ntral Ohio’s argument lacks merit because the ALJ found that Sterling “was expos ed to a heavy amount of dust to include coal dust .”
Central Ohio also focuses on testimony by Dr . Paul Knight, who said (based on what Sterling previously had told him about the conditi ons at the mine) that “it was hard to say” whether the conditions at the aboveground mine where Sterling worked were substantially similar to the conditions pr evalent in underground mines. But the statute places the responsibility for making the subs tantial-similarity finding in the hands of the ALJ, not the claimant’s examining doctors. The ALJ was not required to dispel with the presumption simply
because a doctor was not sure whether the presumption should be applied.

This court’s review of the ALJ’s factual conc lusion is limited to determining whether it was supported by substantial evidence, a nd that standard is satisfied here.No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 9

B.
Because the ALJ properly applied the stat utory presumption, Central Ohio bore the burden to prove that Sterling suffered from neith er clinical nor legal pneumoconiosis. With respect to legal pneumoconiosis, Central Ohio concedes that Sterling is totally disabled due to COPD. The sole question before this court is whether Sterling’s COPD was “significantly
related to” or “substant ially aggravated by” coal-dust expos ure during Sterling’s employment at the mine. 20 C.F.R. § 718.201(b).
Central Ohio argues that the ALJ improperl y discredited the opinions of Drs. David Rosenberg and Herbert Grodner, which, if properl y considered, would ha ve established that Sterling’s COPD was not attribut able to coal-dust exposure. Dr. Rosenberg concluded that Sterling’s COPD was not attributable to co al-dust exposure because Sterling’s COPD was “characterized by a severe reduction of his FEV 1 and FEV 1 /FVC ratio,” while “the FEV 1 /FVC ratio is generally preserved” wh en an individual’s COPD is cau sed by coal-dust exposure. Dr. Rosenberg stated that a marked decrement in the FEV 1 /FVC ratio 3 is attributable to a smokingrelated form of COPD rather than COPD caused by coal-dust exposure.
The ALJ appropriately declined to credit Dr. Rosenberg’s medical opinion because it was inconsistent with the DOL’s position that “co al mine dust exposure may cause COPD, with
associated decrements in FEV 1 /FVC.” See Joint Appendix at 67 (citing Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed. Reg. 79920, 79943 (Dec. 20, 2000)). Dr. Rosenberg’s medical opinion discusses at great length the effects of both cigarette smoking a nd coal-dust exposure on the FEV 1 /FVC ratio. He explains
that both DOL and the Global Initiative for Chronic Obstructive Lung Disease overbroadly
define COPD as a reduction in the FEV 1 /FVC ratio, whereas “recent literature (including literature published after D.O.L.’s revisions to the black lung regula tions) establishes the limitation of defining COPD as simply a reduction in FEV 1 or FEV 1 % values.” In short, Dr. Rosenberg suggests that, contrary to DOL’s purpor tedly oversimplistic definition, there may be

3 FEV 1 is “forced expiratory volume in one second.” FVC is “forced vital capacity.” Both are pulmonaryfunction tests that measure the volume of air that can be blown out of the lungs after taking a full breath: FVC tests total volume, and FEV 1 tests how much air is emitted in one second.No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 10

forms of COPD that are not correlated with a reduced FEV 1 /FVC ratio, and those forms of COPD are much more likely to be a ssociated with coal-dust exposure.
Dr. Rosenberg may be right as a matter of scientific fact, but his analysis plainly contradicts the DOL’s position that COPD caused by coal-dust exposure may be associated with
decrements in the FEV 1 /FVC ratio. The ALJ was entitled to consider the DOL’s position and to discredit Dr. Rosenberg’s testimony because it wa s inconsistent with the DOL position set forth in the preamble to the applicable regulation. See A&E Coal Co. v. Adams , 694 F.3d 798, 801–02 (6th Cir. 2012) (stating that a lthough ALJs need not look at the regulation’s preamble to assess doctors’ credibility, they are entitled to do so). Central Ohio does not challenge the substance of the DOL’s position as articulated in the regula tion’s preamble—that is, Central Ohio does not argue that COPD resulting from coal-dust e xposure is not correlated with a reduced FEV 1 /FVC ratio. Were Central Ohio to make that argument, this court would need to engage the substance of that scientific dispute. See Harman Mining Co. v. Dir. of Office of Workers’ Comp. Programs , 678 F.3d 305, 314 n.3 (4th Cir. 2012). But this court could do that only after Central Ohio submitted “the type and quality of medical evidence th at would invalidate” the DOL’s position in that scientific dispute. Midland Coal Co. v. Dir. of Office of Workers’ Comp. Programs , 358 F.3d 486, 490 (7th Cir. 2004). Central Oh io has presented no such evidence, and it asks this court to make no such determination. The sole issue presented here is whether the ALJ was entitled to discredit Dr. Rosenberg’s me dical opinion because it was inconsistent with the DOL position set forth in the preamble, and the answer to that question is unequivocally yes. See Harman Mining Co. , 678 F.3d at 315 (citing Helen Mining Co. v. Dir. of Office of Workers’ Comp. Programs , 650 F.3d 248, 256 (3d Cir. 2011); Consolidation Coal Co. v. Dir. of Office of Workers’ Comp. Programs , 521 F.3d 723, 726 (7th Cir. 2008)).
Nor did the ALJ commit reversible error by discrediting the opinion of Dr. Grodner, who concluded that Sterling did not have legal pn eumoconiosis. Dr. Grodner first concluded that Sterling did not have clinical pneumoconiosis because the X-ray evidence was negative. Dr. Grodner instead diagnosed Sterling with COPD. But when asked whether the COPD arose in whole or in part from Ster ling’s coal-mine employment— i.e. , whether Sterling had legal pneumoconiosis—Dr. Grodner answere d, “Not applicable since he does not have coal workers’No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 11

pneumoconiosis.” In essence, Dr. Grodner said that Sterling’s COPD was not legal pneumoconiosis because he did not have clin ical pneumoconiosis. The ALJ appropriately
concluded that Dr. Grodne r’s opinion was not entitled to any weight because it conflated clinical and legal pneumoconiosis. That medical opinion conflicts with the statute, which differentiates between legal and clinical pneumoconiosis, and accord ingly the ALJ was entitl ed to give it little or no weight. See Harman Mining Co. , 678 F.3d at 313.
Central Ohio next argues that the ALJ impr operly credited Dr. Di az’s opinion diagnosing Sterling with legal pneumoconiosis . According to Central Ohio, Dr. Diaz’s opinion should have
been discredited because Dr. Diaz conceded that many of Sterling’s symptoms were associated with cigarette smoking rather th an coal-dust exposure. But the ALJ repeatedly acknowledged that Dr. Diaz attributed many of Sterling’s symptoms to ciga rette smoking. The ALJ simply credited Dr. Diaz’s opinion that “both cigarette smoking and coal dust exposure co ntributed to [Sterling’s] COPD.” This court previously has he ld that a benefits claima nt is “not required to
demonstrate that coal dust was the only cause of his current respir atory problems”; rather, a medical opinion that cannot eliminate cigarette smoking as a cause of the claimant’s COPD
nevertheless must be considered evidence of le gal pneumoconiosis if th e opinion is “unequivocal that coal dust exposure aggravated [t he claimant’s] pulmonary problems.” Cornett v. Benham Coal, Inc. , 227 F.3d 569, 576 (6th Cir. 2000 ). Dr. Diaz unequivocally concluded that coal-dust exposure contributed to Sterling’s COPD, and the ALJ properly considered that opinion when determining that Central Ohio failed to re but the presumption of legal pneumoconiosis.
Finally, Central Ohio disputes the ALJ’s interpretation of the X-ray evidence and challenges the ALJ’s decision not to credit Dr. Diaz’s testimony with respect to the presence of clinical pneumoconiosis. We need not consider these arguments, both of which relate to the presumption of clinical pneumoconiosis, becau se substantial evidence supported the ALJ’s conclusion that Central Ohio failed to rebut the presumption of legal pneumoconiosis. Coal miners are entitled to black-lung benefits if they es tablish either legal or c linical pneumoconiosis. Because Central Ohio failed to rebut the presump tion of legal pneumoconiosis, it is irrelevant whether the ALJ erred in concluding that Centra l Ohio also failed to re but the presumption of clinical pneumoconiosis.No. 13-3712 Central Ohio Coal Co. v DOWCP, et al. Page 12

C.
In its final claim, Central Ohio argues th at the ALJ’s calculation of Sterling’s smoking history was “irrational, arbitrary, and capricious.” The Board halfheartedly agreed, stating that the ALJ “did not fully explain how he resolved the conflicts in the evidence as to the extent of [Sterling’s] smoking,” but concluded that re mand was not necessary because any error was
harmless. Central Ohio now ar gues that the error wa s not harmless because Sterling provided his treating physicians with an understated smoking history, presumab ly to deter those doctors from attributing his COPD to cigarettes.
Central Ohio suggests that St erling averaged three packs a da y, but that misrepresents the evidence. Sterling apparently told one doctor th at he smoked three packs on his heaviest days. But he never said that he averaged three packs pe r day for thirty-eight years, and he told other doctors that he smoked two packs per day “for most of his life.” He told at least one doctor that he smoked one pack per day for ten years, then two packs per day after that. The record
therefore does not substantiate Central Ohio’s allegation of a three-pack-per-day smoking history. And in any event, Cent ral Ohio has not established any re versible error. To establish that Central Ohio failed to rebut the presump tion of legal pneumoconiosis, the ALJ relied in large part on the opinion of Dr. Diaz. Centra l Ohio does not contend that Dr. Diaz used an inaccurate smoking history when formulating his medical opinion as to the cause of Sterling’s COPD, and Central Ohio thus ca nnot establish harmful error.

V.
For these reasons, the peti tion for review is denied.