2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-9-2014 

# H a r r im a n C o al C or p v

. M a r y lou S choff s t al l

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t 13-2495

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w . v i l l a no v a . e du/thir dc ir c uit_2014/271NOT PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ No. 13

- 2495

_____________ HARRIMAN COAL CORPORATION; AMERICAN MINING INSURANCE COMPANY, Petitioners

v. MARYLOU SCHOFFSTALL, (W idow of Charles W. Schoffstall); DIRECTOR OFFICE WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR, Respondents

_______________ On Petition for Review of a Decision of the Black Lung

Benefits Review Board (BRB Nos. 12

- 0388 BLA and 12

- 0389 BLA)

_______________ Submitted Under Third Circuit LAR 34.1(a)

March 6, 2014 Before: AMBRO, J ORDAN and ROTH, Circuit Judges

.

(Filed : March 10, 2014 )

_______________ OPINION OF THE COURT

_______________2

JO RDAN, Circuit Judge

. Harriman Coal Corporation and American Mining Insurance Company (collectively, “ Harriman ”) seek review of an order by the Benefits Review Board (the “Board”) affirming an award to Mary Lou Schoffstall of survivor benefits pursuant to t he Black Lung Benefits Act, 30 U.S.C. § 901 et seq
. For the reasons that follow, we will deny the petition.
I. Background
Mrs. Schoffstall’s late husband, Charles, worked at four different coal companies over a forty

- year period

. H is final job was with Harriman, where he worked from 1997 through 2000 . He had worked around coal since he was 16 years old and spent about 10
years of his career working in the mines. He also worked above ground in various jobs requiring hands

- on labor with coal. He picked slate , which involves separating impurities from coal and sorting it i nto useful sizes for processing; he operated a “bull shaker,” a device that assists in cleaning coal; and he delivered coal by truck, which include d the responsibility of moving coal in and out of the truck bed. He claimed that his above

ground work exposed him to “a lot” of coal dust. On July 6, 2004, Mr. Schoffstall filed a claim for d isability benefits on the basis that he had contracted pneu moconiosis , otherwise known as black lun g disease, as a result of working in and around mines. At the time, t o recover under the Act, the burden was on Mr. Schoffstall to establish by a preponderance of the evidence that (1) he had pneumoconiosis; (2) it arose from his coal mine employment; and (3) it caused him “total
disabili ty.” 20 C.F.R. §§ 718.201

- 204.3

The case went before an administrative law judge ( “ ALJ ” ), who received f our medical opinion s : one concluded that Mr. Schoffstall ’s disability was a result of his exposure to mine dust, one was generally unclear about causation , and two concluded
t hat, although he suffered from “some restrictive impairment , ” it was not a result of his work in the mines. ( App. at A 60.) T he ALJ decide d that , while the X

- ray evidence submitted was “evenly bala nced,” (App. at A 55), he would accord greater weight to the latter two opinions. He thus found that , although Mr. Schoffstall suffered from a total disability , “the evidence is not sufficient to establish [ Mr. Schoffstall ’s] pulmonary disability is due to coal mine dust exposure or to coal worker’s pneumoconiosis , ” ( App.
at A60 .) The ALJ denied benefits, and Mr. Schoffstall appealed to the Board. On March 5, 2007, w hile Mr. Schoffstall ’s appeal was pending, he passed away , and Mrs. Schoffstall submit ted a survivor’s claim on April 6, 2007. To succeed on her claim, Mrs. Schoffstall also had to prove that her husband suffered from pneumoconiosis and that it was causally rel ated to his work in the mines. See 20 C.F.R. § 718.205(a)

. 1
She f iled a motion to remand her husband’s claim so that it and her own claim could be heard together. The Board obliged. Another ALJ took over the c ases and denied benefits as to each, finding that the evidence did not establish the existence of pneumoc oniosis

. Relevant here, that ALJ also credited Mr. Schoffstall with 21.27 years of coal mine work.
W hile Mrs. Schoffstall’s appeal was pending, Congress enacted the Patient Protection and Affordable Care Act (the “ACA”), Pub. L. No. 111

- 148, 124 Stat. 119,

1 Under 20 C.F.R. § 725.212(a)(1), (2), a widow must also prove that she was dependent on the miner and that sh e is not currently married. Those issues were never in dispute in this case

.4

§ 1556 , which , among other things, extended the so - called “15

- year presumption” found
in the Black Lung Benefits Act, 30 U.S.C. § 921(c)(4) , and made that statute applicable to all direct and survivor claims under the Black Lung Benefits Act. A claimant is entitled to the 15

- year presumption if the miner (1) “was employed for fifteen years or more in one or more underground coal mines” or in mining activity “substantially similar to conditions in an underground mine , ” and (2) suffered from “a totally disabling respirato ry or pulmonary impairment.” 30 U.S.C. § 921(c)(4). If those criteria are met, the claimant enjoys a rebuttable presumption that the miner was “totally disabled by pneumoconiosis [and] that his death was due to pneumoconiosis.” Id. The employer must th en rebut the presumption in one of two ways: (1) by demonstrating that the miner “does not, or did not, have pneumoconiosis ,” id. , or (2) by showing that “no part of the miner’s death was caused by pneumoconiosis.” 78 Fed. Reg. 59115 (revising 20 C.F.R. § 718.305(d)(2)). Prior to the ACA’s enactment, only claimants who filed before January 1, 1982, were entitled to the 15

- year presumption. See 30 U.S.C. § 921(a) , (c)(4)

- (5) (19 82)

. The ACA, however, made the presumption applicable to all claims, includ ing survivor claims, filed after January 1, 2005, and pending on or after the enactment date of the ACA, i.e. , March 23, 2010. Pub. L. No. 111

- 148, § 1556; see Keene v. Cons. Coal Co. , 645 F.3d 844, 849 (7th Cir. 2011) (finding that the revived presumptio n applies to a widow’s claim filed within the applicable time period). Thus, because Mrs. Schoffstall’s claim was filed
after January 1, 2005 and was pending at the time of the ACA’s enactment, the Board concluded that she qualified for the 15

- year presum ption

. T he Board vacated the ALJ’s5

decision as to M rs. Schoffstall’s claim, remanded for further consideration , and directed the ALJ to determine whether Mr. Schoffstall’s 21.27 years of combined underground and surface mining activities were equivalent t o at least fifteen years of mining in conditions substantially similar to those of an underground mine

. I t affirmed the ALJ’s denial of benefits on Mr. Schoffstall’s claim. 2 On remand, additional evidence was submitted, and the ALJ determined that all 21.27 years of Mr. Schoffstall’s coal mine employment qualified to invok e the presumpti on. According to the ALJ , although Mr. Sch offstall worked only ten years in underground mines, he spent at least an addition al five years laboring on the surface in

co nditions substantially similar to those within an underground mine

. The ALJ also found that the medical evidence established a totally disabling respi ratory condition, satisfying the second of the presumption’s two prerequisites

. The ALJ reviewed the med ical report of Dr

. Frederick Seidel, the physician who , after conducting two pulmonary function tests on Mr. Schoffstall , diagnosed him with pneumoconiosis, and the ALJ also reviewed the findings of Dr. Gregory Fino, Harriman’s expert medical witness , who , after reviewing the pulmonary function tests, determined Mr. Schoffst all did not have pneumoconiosis. Dr. Fino also provided deposition testimony discrediting the pneumoconiosis diagnosis. The ALJ further reviewed and found persuasive a one page letter add ressed to Dr. Seidel from Dr. Henry Smith, a radiologist, who “reviewed several X

- rays” of Mr. Schoffstall “and determined they w ere positive for

2 Because Mr. Schoffstall filed his claim before January 1, 2005, the Board determined that the 15

- year presumption did not apply

.6

pneumoconiosis.” (App. at A27). In the end, the ALJ accorded only minimal wei ght to Dr. Fino’s report and testimony because she determined that (1) his diagnosis was unexplained and contradicted by first

- hand observations recorded by Mr. Schoffstall’s
doct or ; (2) his conclusion that better effort on the part of Mr. Schoffstall during the tests would have prod uced normal results was unexplained and speculative; and (3) his statement that Mr. Schoffstall’s doctor did not diagnose a respiratory impairment was
incorrect

. The ALJ determined that the 15

- year presumption should be invoked , thereby shifting the burde n to Harriman to prove that the miner did not have pneumoconiosis or that his disabling respiratory impairment was not related to his coal mine employment. The ALJ then determined that Harrima n had not rebut ted the presumption, noting that Dr. Fino actua lly conceded the presence of pneumoconiosis based on a later set of x

ray readings and that Harriman submitted no evidence challenging the causal relationship between the malady and the nature of Mr. Schoffstall’s employment

. Accordingly, the
ALJ awarded benefits to Mrs. Schoffstall , ruling that the widow had “established that [Mr. Schoffstall] died d ue to pneumoconiosis, based on [Harriman] ’s failure to rebut the [15

- year] presumption

. ” (App. at 30.) Harriman appealed to the Board, which determined tha t the ALJ applied the proper burden of proof and that the finding that Harriman failed to rebut the 15

- year presumption was supported by substantial evidence. It noted that Harriman wrongly focused on the first ALJ ’s finding of no pneumoconiosis, which di d not govern because of the change in the law that rendered the 15

- year presumption applicable. It further noted that Harriman failed to challenge the final ALJ’s finding that Mr. S choffstall had7

worked for at least five years in conditions substantially similar to an underground mine and thus satisfied the presumption’s temporal condition; rather, Harriman erroneously argued that Mr. Schoffstall had to labor underground for all 15 years to satisfy that condition , disregarding the “substantially similar” l anguage in the statute. Accordingly, the Board affirmed the decision awarding Mrs. Schoffstall benefits

. Harriman timely appealed.
II. Discussion 3 Harriman brings two arguments in support of its contention that the Board’s ruling

was not supported by sub stantial evidence. First, it argues that the Board erred in determining that Mrs. Schoffstall satisfied the requirement in 20 U.S.C. § 921(c)(4) that her husband worked at least 15 years in an underground coal mine or in conditions substantially similar t o those in an underground mine. Harriman points out that the ALJ only found that Mr. Schoffstall “ had ‘ at least ’ 10 years of underground coalmine employment. ” ( Petitioner’ s Br. at 13 (quoting App. at A16).) Because the evid ence of

3 The ALJ and the Board had jurisdiction pursuant to 30 U.S.C. § 932(a) and 33 U.S.C. § 921(b). We have jurisdiction under 30 U.S.C. § 932(a) and 33 U.S.C. § 9 21(c). We review Board decisions for errors of law and to determine whether the Board adhered to its own standard of review. Lombardy v. Dir., OWCP , 355 F.3d 211, 213 (3d Cir. 2004). We review questions of law de novo. Id. The Board is bound, as are w e, by the ALJ’ s findings of fact, if those findings are supported by substantial evidence. Id. In cases where a party challenges a finding of fact, we independently review the record and decide whether that finding is supported by substantial evidence. Helen Min. Co. v. Dir., OWCP , 650 F.3d 248, 254 (3d Cir. 2011). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Coal Co. v. Kramer , 305 F.3d 203, 207 (3d Cir. 2002). Under t hat standard, we wil l not disturb an ALJ’ s factual findings if they are supported by substantial evidence, even if we “ might have interpreted the evidence dif ferently in the first instance.” Balsavage v. Dir., OWCP , 295 F.3d 390, 395 (3d Cir. 2002) (citat ion omitted) (internal quotation marks omitted).8

record only supports a finding of 10 years of underground employment, Harriman argues, Mrs. Schoffstall is not entitled to the 15

- year presumption. Second, Harriman argues that the opinion of Dr. Fino serves as substantial evidenc e of a lack of pneumoconiosis sufficient to reb ut the presumpt ion

. Regarding the temporal requirement of the statute, Harriman does not meaningfully challenge the application of the presumption. It simply fails to accept tha t the additional finding that Mr. Schoffstall worked in substantially simila r conditions above ground for at least 5 years, combined with the 10 years he spent below ground, was suffi cient to meet the requirement. See 20 C.F.R. § 718.305(b)(1)(i). But Harriman makes no argument challenging that additional finding. 4 Thus, the AL J’s application of the statute on this point is essentially unchallenged, see Kost v. Kozakiewicz , 1 F.3d 176, 182 (3d Cir. 1993) (“[A]ppellants are required to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief.”), and , in any
event , substantial evidence suggests that Mrs. Schoffstall is entitled to the 15

- year presumption.
R egarding the issue of pneumoconiosis, Harriman overlooks the significance of the presumption’s invocation: Mrs. Schoff stall was no longer required to affirmatively
prove the presence of the disease

– she only had to demonstrate that Mr. Schoffstall

4 Harriman also argues that the ALJ should not have credited Mr. Schoffstall with 10 years of underground work and that “[t]he Judge substituted her own opinions for that of the actual evidence of rec ord.” (Appellant’s Br. at 14.) But Harriman points to no actual evidence to support its contention, and instead cites Mr. and Mrs. Schoffstall’s testimony supporting the ALJ’s determination. T he ALJ’s credibility determination as to those witnesses is hardly a substitution of opinion for contradictory evidence.9

suffered from a total disability. O nce the presumption was invoked, the existence of pneumoconiosis was presumed and the bur den shifted to Harriman to prove the absence of the condition

. See Morrison v. Tenn. Consol. Coal Co. , 644 F.3d 473, 480 (6th Cir. 2011) (“[R]ebuttal requires an affirmative showing ... that the claimant does not suffer from pneumoconiosis ... .”)

. Important ly , even if Dr. Fino’s opinion were given greater weight, it still conflicts with Dr. Seidel’s convincing evidence of the ex istence of pneumoconiosis, which would certainly support a conclusion that Harriman did not demonstrate the absence of the disease. In addition, po sitive x

- ray readings suggest that Mr. Schoffstall indeed suffered from the disease

. Harriman’s only expert, Dr. Fino, failed to explain his conclusions, see Lango v. Dir., OWCP , 104 F.3d 573, 577 (3d Cir. 1997) (“The mere statement of a c onclusion by a physician, without any explanation of the basis for that statement, does not take the place of the required reasoning.”) , and Dr. Fino also acknowledged under oath that “there was radiographic pneumoconiosis based on the new chest X

- ray read ings that were forwarded to me” ( App. at A 143 ) . S ubstantial evidence thus supports the ALJ’s determination that Harriman failed to rebut the presumption that Mr. Schoffstall suffered pneumoconiosis

. 5
III. Conclusion For the foregoing reasons, we will de ny the petition for review.

5 Harriman does not make any argument bearing on the alternative basis for rebutting the 15

- year presumption

– that pneum oconiosis played no role in Mr. S choffstall’s death. Therefore, there is no n eed to consider that alternative.