NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0140n.06
No. 09-4589
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ISLAND CREEK COAL COMP ANY,
P etitioner ,

v. HAROLD CALLOWAY, Respondent. ) ) ) ) ) ) ) ) ) ) ON APP EAL F ROM THE BENEFITS REVIEW BOARD , UNITED STATE S DEP ARTMENT OF LABOR

Before: M OORE, GIBBONS, an d MCK EAGU E, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. I sland Creek Coal Company (“I sland Creek” )
appea ls a decision of the De p artment of L abor Be nefits Review Boa rd (“B RB”) aff

irming an Administrative L aw J udg e’s (“ AL J ”) decision to awa rd lifetime disability benef its to Har old Calloway pursuant to the provisions of the Bla ck L ung Be nefits Act, 30 U.S.C. §§ 901–45. I sland Creek arg ues t hat t he AL J incorre ctly applied a presumption t hat relieved C alloway of hi s burden
to prove the prese nce of leg al pneumoconiosis and causa tion; erred in weig hing the medical evidenc e; and failed to apply the appropr iate statutory causa tion standard. For the rea sons t h at follow, we rever se t he decision of the B RB and r emand the c ase f or fur ther proc eeding s in acc ord with this opi nion.No. 09-4589

Island Creek v . Callow ay

I

. Calloway worke d for I sland Creek in the coal mines for nineteen an d a h al f y ears. He testified t hat, after working a shift, he was cover ed in and spat up coal dust. After he lef t work in
1992 afte r being injured in a rock fall, his he alth declined. Now, he coug hs a lot and has problems with whee zing. He must use ox y g en sever al times a day and become s short of brea th afte r walking only fifty fee t or climbing a few steps. He has difficulty sleeping and often needs to sleep in a chair at nig ht. Calloway

takes medic ation to treat these sy mptoms. Calloway filed for benef

its in 1994, bu t his claim was denied by the Offic e of Workers’ Compensation Prog rams (“O WC P”). He filed ag ain in 1998, and the OWCP ag ain denied his claim.
Ca ll oway appea led that decision, but althoug h an administrator at OWCP initially g rante d his a p p e a l,

an AL J denied benef

its. On Dec ember 17, 2001, Calloway filed his third claim, which the OWCP
g rante d on J une 9, 2003. Calloway ’s ca se eve ntually came befor e another AL J on May 23, 2007. The sec ond AL J issued a De cision and Orde r aw arding benef its on J anuar

y 29, 2009. The AL J first summarized the new evidenc e that Calloway had offe red. Then, afte r setting
out the leg al standard, the AL J found that Calloway suffe rs from leg al pneumoconiosis, which was 1

Clini cal p n eumoconiosis consists of the diseases rec og nized as pneumoconiosis by the 1 medical community

. L eg al pneumoconiosis is a reg ulatory standard which comprises “any chronic lung dise ase a

nd its sequelae a

rising out of

coal mine employ

ment.” 20 C.F.R. §718.201(a )(2) . A disease “ar ising out of coal mine employ ment” includes “any chronic pulmonary d i s ea s e o r respira tory or pulmonary im p ai rm en t signific antly rela ted to, or substantially ag g rava ted by , dust exposure in coal mine empl o y m en t

. ” 2 0 C.F.R. § 718.201(b). L eg al pneumoconiosis is in the reg ulation s beca

use the Depa

rtment of L abor decide d “to include chronic obstructive pulmonary disease (“COPD”) in the definition of pneumoconiosis to the extent it is shown to have arisen from 2No. 09-4589

Island Creek v . Callow ay

cause d by his wo rk in the coal mine; that Calloway is totally disabled; and that his total disability

was c aused by

his pneumoconiosis.
I sland Creek appea led the AL J ’s d ec i sion to the BRB

. The BRB issued an unpublished opinion in November 2009 aff irming the AL J in whole beca use the decision was rational, supported by substantial evidence , and in ac corda nce w ith applicable law

. I sland Cree k now appe als that dec ision.
I I

. This c ourt aff

irms the BRB unless it c ommitt ed leg al err or or exceede d its scope of revie w of the AL J ’s finding s. Tenn. Consol. Coal Co. v. Kirk , 264 F.3d 602, 606 (6th Cir. 2001); Glen Coal
Co. v. Seals , 147 F.3d 502, 510 (6th Cir. 1998). An AL J ’s finding s are aff irmed by the BRB if they

are supported by substantial e vidence in the rec ord and are in a ccor dance with the applicable law. Glen Coal , 147 F.3d at 510. Be cause the BRB aff irmed the AL J ’s decision as based on substantial

ev i d en ce , it did not exceed the statutory scope of its revie w. Our revie w of the BRB there for e depends on whether substantial evidenc e supported the AL J ’s decision and whether either the AL J

coal mine employ

ment.” Reg ulations I mplementing the Fe dera l Coal Mine Hea lth and Safety Act of 1969, as Amended, 64 Fe d. Reg

. 79,920, 79,923 (De c. 20, 2000) (codifie d at 20 C.F.R. pt. 718). As the De partment e x plained, [T] he preva il i n g v i ew o f the medical community and the substantial weig ht of the medical and scientific literature supports the conclusion that exposure to coal dust may cause [C OPD]. Eac h miner must there fore be g iven the opport u n i t y to prove that his obstructive lung disease aros e out of his coal mine employ ment and constituted “leg al” pne umoconiosis. Id. The leg al pneumoconiosis reg ulatory standard came into exis tence in Dec emb er 2000, afte r Calloway had filed his ea

rlier c laims for bene fits.

3No. 09-4589

Island Creek v . Callow ay

o r t h e BRB committed leg al error. See id. (“The court of appea ls’ revie w of the Benef its Review
Boa rd is then ‘limited to a deter mination whether the outcome below is supported by substantial evidenc e and was rea ched in confor mance with applicable law.’” (quoting Y ork v. Bene

fits Rev iew Bd. , 819 F.2d 134, 136 ( 6th Cir. 1987))). Substantial evidenc e is “‘ such rele vant evidenc e as a rea sonable mind might acc ept as adequate to support a conclusion.’” Cross Mountain Coal, Inc. v. W ard , 93 F.3d 211, 216 (6th Cir. 1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971))

. We do not “re weig h the evidenc e

or substitut e our judgme nt for that of the AL J .” Tenn. Consol. , 264 F.3d at 606

. An AL J ’s conclusions will be aff

irmed if they are supported by substantial evidenc e, “‘e ven if the fac ts permit

an alterna tive conclusion.’” Id. (quoting Y oughiogheny & Ohio Coal Co. v. W ebb , 49 F.3d 244, 246 (6th Cir. 1995)).
I I I

. A.
I sland Creek makes three arg uments. First, it asser ts that the AL J applied a presumption that coal mine dust contributed to the development of Calloway ’s chronic obstructive pulmonary disease (“COPD”) , thus relieving Calloway of his proper burden of proof. I sland Creek asser ts that fede ral
reg ulations do not crea te such a presumption. There is no indication from the AL J ’s opinion that he applied such a presumption, and I sland Creek c ites no portion of the AL J ’s opinion refe rring to such a pre sumption. I n fac t, I sland Cree k does not ref

er at all to the ref

ere nces to a presumption included in the AL J ’s opinion, found on pag es 19 and 23 of the opinion. One rela tes to the rebuttable presumption arising under 4No. 09-4589

Island Creek v . Callow ay C.F.R. § 718.203(b) unde r which a miner suffering from pneumoconiosis and employ ed ten y ear s

or more in the mines is presumed to have pneumoconiosis arising from employ ment, and the others descr ibe the presumptions of C.F.R. §§ 718.304–718.306, which the AL J noted wer e inapplicable. Neither of these presumptions is the one about which I sland Creek complains. Moreov er , I sland Creek does not point to an y l an gu age in the AL J ’s opinion that might imply use of such a presumption, even if

the word “ presumption” is not used. When I sland Creek’ s ar gu m en t i s ex amined more closely , it is clea r that it focuse s not on application of an improper presumption but rathe r on disag ree ment with the AL J ’s evalua tion of the evidenc e. I sland Cree k’s ar g ument about a pr esumption in actua lity is not a leg al ar g ument about whether the AL J held Calloway to a proper standard and burden of proof but simply an evidentiar y
arg ument that is best considere d as part of the arg ument we next consider, which addre sses the evidenc e bef

ore the AL J in a more stra ightf orwa rd manne r. B.
I sland Creek also arg ues that the AL J err ed in weig hing the medical evidenc e and resolving conflicts withi n the evidence, calling both the AL J ’s reasoning and that of t he doctors he credited “irrational.” I n order to assess this arg ument, we must examine the medical evidenc e prese nted and the AL J ’s re asoning and conc lusions with respect to the medica l opinions offere d. The AL J decision considere d evidenc e from four phy sicians, who offe red various opinions about the ca

uses of Calloway ’s medica l maladies. Calloway relied on Dr. Manoj Maj m u d ar and Dr. Glen Ba ker. Majmudar diag nosed Calloway with chronic obstr u cti ve pulmonary disease, chronic bronchitis, and pneumoconiosis.
5No. 09-4589

Island Creek v . Callow ay Majmudar testified that twenty y ear s in the coal mines is sufficie nt to develop pneumoconiosis and that Calloway ’s smoking was “not considere d very , very signific ant”; thus Majmudar conclude d that coal mine dust inhalation “is the predominate cause of his pneumoconiosis and COPD” which have rende red Calloway completely disabled. Ba ker diag nosed Calloway with coa l worke rs pneumoconiosis, COPD, bronchitis, and arte rial hy pox emi a, wh i ch he attributed to coal dust exposure, smoking, a

nd, potentially , asthma. Ba ker f ound that Calloway

has chr onic lung disease

cause d by his coal mine employ ment, which indicates the prese nce of pneumoconi o s i s . Ba ker acknow ledg ed Calloway ’s smoking history but found that of people who smoke at Calloway ’s rate , “only 1 5 % o f [ t h em ]

. . . have any problems whatsoeve r with their lungs.” Ba ker conclude d that Calloway ’s “primar

y problem is proba b l y t h at of asthma, though there may be some contribution from his coa l dust ex posure a s well.”
I sland Creek Coal Company used examinations from Dr. L awr ence Repsher and Dr. J eff rey Selby

. Repsher diag nosed Calloway with COPD but not pneumoconio s i s . R ep sher found that Calloway ’s medical problems wer e serious but that they stemmed primarily fr om smoking and asthma. Repsher found that Calloway was exposed to coal mine dust, but he stated that Calloway ’s
exposure was less than the aver ag e worke r. T houg h Repsher “could not absolutely rule out leg al [coal worke rs’ pneumoconiosis] beca use [C alloway ] does have COPD,” h e co n cl uded that “the

overw helming probability is that all of the individually testable abnorma li t i es o f h is pulmonary function are due to his cig are tte smoking” with “no signific ant impairment rela ted to the inhalation of coal dust.” Selby found that Calloway does not have any pulmonary problems as a result of coal dus t ex p o s u re; rathe r, Calloway has sever e obstructive lung defe ct as a result of asthma and 6No. 09-4589

Island Creek v . Callow ay emphy sema from cig are tte smoke. Selby stated that Calloway would have the same problems even if he had never set foot in a mine and that working in the coal mine had improved Calloway ’s health beca use he was not permitted to smoke while in the mine. Selby admitted that C all oway ’s employ ment history could cause pneumoconiosis, but he conclude d that cig are tte smoking was the primary cause of Calloway ’s health problems. Significa ntly , Sel b y found that Calloway smoked

near ly thirty packs of cig are ttes a month, a signific antly highe r es t i m at e than those of the other phy sicians. Howeve r, S elby also said t h at a lower amount of sm oking—e ven ten to fiftee n packs per month—would still be enoug h to cause Calloway ’s disability

. The AL J resolved the smoking history disparity by weig hing the repor ts of all the phy sicians and the testimony of Calloway

. Although there was “some inconsist ency reg arding Claimant’s smoking history ,” beca

use all repor

ts indicated a half pack per day or a half pack to one pack per day , the AL J cre dited Calloway ’s testimony and found a

fourtee n pack pe r month history that ended in
2003. 2
Th e AL J considere d next whether the rec ord showed that Calloway suffe red from pneumoconiosis. The AL J found that Cal lo w a y h a d f a il e d to establish clinical pneumoconiosis—the diseases rec og nized as pneumoconiosis b y t h e m ed ical community

. But the AL J found that Calloway had met his burden for establishing legal pneumoconiosis. See 20 C.F.R. § 718.202(a) (4).

The fourtee n pack p er month history found by the AL J in connec tion with this claim is 2 signific antly less than the twenty -six pack per month history found by the AL J who hear d Calloway ’s ear lier cla im. Calloway

testified both times that he smoked half a pack pe r day

. 7No. 09-4589

Island Creek v . Callow ay The AL J found Majmudar’ s repor t and finding s well-doc umented and well-re asoned. He

acc orded Ma

jmudar less we ight than he would have otherwise because Majmudar had found only

a ten and a half pack per month history , but he found Majmudar’ s diag nosis of p n eumoconiosis probative. The AL J found Ba ker’ s repor

t “equivoc al” beca

use Ba ker hedg ed his diag nosis betwee n asthma and pneumoconiosis; Ba ker’ s repor

t was well-re asoned to support pneumoconiosis but not worthy of the same weig ht as Majmudar’ s opinion. The AL J found Repsher’ s opinion n o t wellrea soned and acc orded it less weig ht than the opinions of Majmudar and Ba ker beca use Repsher had not expl ained why he had eliminated coal mine dust as a cause of C alloway ’s C OPD and bec ause his deposition testimon y wa s i n consistent—at one point he admitted coal mine dust might be a possible cause , but later he insisted that only smoking had cause d Calloway ’s health probl ems. Finally , the AL J discounted Selby ’s finding s beca use Selby never explained w hy he ruled out c oal dust exposure as a cause of Calloway ’s COPD. The AL J conclude d, “[T] here is one repor t with probative weig ht and one repor t with less weig h t t h at diag nosed leg al pneumoconiosis and two
repor ts with less weig ht that found no pneumoconiosis at all. There fore , I find that Claiman t has
proven by a preponde ranc e of the evidenc e that he suffe rs from pneumoconiosis under [20 C.F.R.] § 718.202(a) (4).” After finding that Calloway suffe rs from p n eu moconiosis, the AL J turned to the issue of 3

causa tion. A miner who suffe rs fr o m pneumoconiosis and worke d in coal mines for ten or more
y ear s enjoy s a rebuttable pres u m p t ion that the pneumoconiosis arose out of the coal mining

Unl ess otherwise specifie d, from this point any ref ere nces to “pneumoc oniosis” re fe r t o 3 “leg al pneumoconiosis.” 8No. 09-4589

Island Creek v . Callow ay employ ment. 20 C.F.R. § 718.203(b). The AL J found t hat, because C al l o wa y h ad worked i n the mines for nineteen y ear s and I sland Creek had offe red no rebutt al ev i d ence , Calloway enjoy s the presumption. There fore Calloway ’s leg al pneumoconiosis was cause d by his work in the coal mine. The AL J then found that Calloway is totally d i s ab l ed

. T h e ALJ n o t ed that, beca use C al l o wa y ’s pulmonary function studies wer e below the values listed in the reg ulatory tables, Calloway is totally d i sabled under 20 C.F.R. § 718.204(b)( 2)(i). Additionally , the AL J found Calloway totally disabled under section 718.204(b)( 2)(iv), beca use all four doctors found that Calloway could not eng ag e in his usual coal mine employ ment or compar able g ainful employ ment. Finally , the AL J considere d whether C al loway ’s total disability was cause d by his pneumoconiosis. The reg ulations require the pneumo conios is to be a “substantially contributing

cause ” of the miner’s re spiratory ailment in order f

or the total disability

to be ca used by it. Ci ting
20 C.F.R. §§ 718.204(c) (1)( i) and (ii), the ALJ noted that pneumoconiosis is considere d a substantially contributing cause if it “ has a materia l e ffe ct on the miner’s respira tory or pulmonary condition or if it materia lly worsens a totally disabling respira tory or pulmonary impairment which is caused by

a disea se or e x posure unr elated to c oal mine employ ment.” The AL J rew eig hed the evidenc e submitt ed by the phy sicians and found that Calloway had proved by a p re p o n d er an ce of the evidenc e that “his total disability was due in part to [hi s] pneumoconiosis.” The AL J noted that Majmudar found “coa l mine dust is t he predominate cause of his pneumoconiosis and COPD.” Ba ker attributed Calloway ’s pneumoconiosis to coal mine dust, expressly denied the impact of smoking on Calloway ’s respira tor y ailments, and found that pneumoconiosis was partly to blame. R ep s h er co u l d not rule out coal mine dust and 9No. 09-4589

Island Creek v . Callow ay pneumoconiosis, and his opinion w a s le s s p ersua sive beca use of his failure to acc ount for Calloway ’s coal mi n e wo rk

. S el b y ’s opinion failed to addre ss the coal dust exposure and did not offe r a

rea soned opinion for why smoking a lone is to blame for Callowa y ’s illnesses.
Be cause the AL J found Calloway had met his burden on all counts, he awa rded Calloway disability benef its. Reviewing the AL J ’s decision for substantial evidenc e, we find that the rec ord does not support I sland Creek’ s asser tions. Testimony showed that Calloway was covere d in black dust at the end of the day and spat up black coal dust. Both Calloway and I sland Creek’ s phy sicians ag ree d that C al l oway suffe red from COPD, and three of the four phy sicians who testified found that the inhalation of coal d u s t ei t h er did cause or could have cause d the COPD. Thus the AL J had substantial evidenc e to support a conclusion of leg al pneumoconiosis. Be cause all phy sicians ag ree d

on Calloway ’s disability , once the AL J had substantial evidenc e of pneumoconiosis cause d by coal mine dust, he also had substantial evide nce the pneumoconiosis cause d his disabilit y . The primary counter -ar g ument made b y th e c o mp a ny ’ s phy sicians was that smoking, not coal d u s t, h a d c a u s e d Calloway ’s difficulties. Calloway ’s phy sicians, Doctors Manoj Majmu d a r a n d G le n Ba ker, found that coal dust inhalation had cause d his pneumoconiosis, b u t I sland Creek’ s phy sicians,
Doctors L awr ence Repsher and J eff rey Selby , found that Calloway ’s medical maladies stemmed primarily from smoking and asthma. The AL J , howeve r, had g ood rea son to pref er the opinions of Majmudar and Ba

ker to those of Repsher and Selby

. First, Majmudar and Ba ker both explained that the scientific literature showed smoking was highly unlikely to have cause d Calloway ’s problems. Repsher and Selby did not s i m i l ar l y explain why coal dust was not to blame. I n fac t, Repsher 10No. 09-4589

Island Creek v . Callow ay

co n cede d that coal dust inhalation might be a cause of Calloway ’s health problems. Be ca u s e Majmudar’ s and Ba

ker’ s opinions wer e more compre hensive than Repsher’ s and Selby ’s, it was not

unrea sonable for

the AL J to g ive their opinions more we ight. Sec ond, Selby estimated a smoking history for Callowa

y that was more than twice tha t which the other phy sicians noted and to whic h
C all oway had testified. Be cause Selby —the only phy sician to unequivoca lly blame smoking for Calloway ’s health problems—made fac tual finding s so i n co n sistent from the others, it was not

unrea sonable for

the AL J to distrust his opinion. Third, the A L J had testimony from Selby

that in fiftee n y ear s of m ak i n g diag noses for the coal company , he could not offe r one example of a case wher e he diag nosed disability from brea thing coal dust instead of smoking. For a doctor to diag nose miners for fiftee n y ear s y et not f ind a single miner disabled f rom coa l dust strains c redibility

. The
AL J might rig htfully have distrusted Selby ’s opinion. I n light of such evidenc e it was not “ar bitrary and capr icious” or “irrational” for the AL J to c redit Majmudar and Ba ker’ s opinions over Repsher and Selby ’s. Having deter

mined that Calloway had leg al pneumoconiosis, the AL J relied on reg ulations
to establish a rebuttable presumption that the p n eu m o co n i osis was caused by Calloway ’s work in the coal mines. Thoug h the AL J did relieve Calloway of the burden of disease causa tion, such relief is c alled for in the reg ulations. See 20 C.F.R. § 718.203(b). Moreove r, Repsher and Selby did not rebut the presumpti o n b y ex p l ai n i n g wh y coal dust did not cause Calloway ’s pneumoconiosis—Repsher in fa ct conc eded it mig ht be a c ause. I sland Creek also asser

ts that the AL J failed to resolve considera ble and materia l conflicts in the evidenc e as require d by the Administrative Proce dure A ct. See 5 U.S.C. § 557(c) (3)( A). I n 11No. 09-4589

Island Creek v . Callow ay

connec tion with this arg ument, I sland Creek say s that Majmudar and Ba ker’ s opinions are “irrational and not supported by

substantial evidence in the rec ord, and cannot car ry the claimant’s burden of proof.” To t h e ex t en t t h at this asser tion mirrors I sland Creek’ s ear lier arg ument that the AL J improperly

shifted the burde n from Calloway , this arg ument has alre ady been a ddresse d above.
I sland Creek arg ues that there are flaws in the Majmudar and Ba ker opinions. For example, the AL J reje cted Majmudar’ s x -ra y diag nosis, so I sl and Creek wonder s how he could then trust Majmudar’ s overa ll diag nosis. But the AL J ’s reje ction of the x -ra y evince s the delibera teness with which he examined the rec ord. Majmudar’ s opinion wa s based on many fac tors besides the x -ra y , and Majmudar’ s conclusion was supported by Ba ker and conce ded as a possibili ty by Repsher. Wit h three doctors testify ing to likely or possible pneumoconiosis, the AL J ’s decision was supported by substantial evidenc e. The AL J summarized and considere d the testimony , opinions, and radiog raphic evidenc e of all four phy sicians; explained why he aff orded g rea ter or lesser weig ht to vario u s opinions; weig hed the evidenc e; and made a deter mination. To say that he failed to adequately

weig h all materia l evidence of the phy sicians’ opinions is belied by the re cord.
I sland Creek also arg ues that the second AL J failed to weig h discrepa ncies in Calloway ’s

s moking history

. I sland Creek notes the phy sicians’ differ ent estimates of Calloway ’s smoking history and arg ues that the second AL J was bound by 20 C.F.R. § 725.309(d)( 1) to f ollow the first
AL J ’s pre vious finding that Callowa y had a twe nty -six pack pe r month smoking history

. I sland Creek’ s citation to section 725.309(d)( 1) is meritless. The reg ulation provides that “[a]ny evidenc e submitt ed in c onnection with a ny prior cla im shall be made a part of the rec ord in the subsequent claim.” The reg ulation does not require that two AL J s rea ch the same conclusions; 12No. 09-4589

Island Creek v . Callow ay it mere ly require s that the prior evidenc e be made part of the rec ord. The prior AL J had substantially the same evidenc e but pref err ed Selby ’s testimony to Calloway ’s and that of other phy sicians. The
AL J in this case had Selby ’s testimony but pref err ed the opinion of Calloway and the ot her three phy sicians. This was not err or. Be cause the second AL J made the prior evidenc e part of the rec ord, he fulfilled his reg ulatory obliga tion. The fact that he gave g rea ter weig ht to the sworn testi mony of four people than to the testimony of one in no way evince s a failure to resolve materia l conflicts; rathe r, it shows car eful re solution of disparate f acts.
I n a rela ted arg

ument, I sland Creek maintains t h at t h e p rior AL J ’s deter mination of Calloway ’s smoking history may not be set aside. Citi ng comments to the reg ulations, I sland Creek
states that a subsequent claim must be denied if it is based on fi n d i n gs fr o m the previous adjudication that are “not subject to c hang e.” See 65 Fe d. Reg

. 79,972–73. The reg ulations of fer the example of a finding that a miner never worke d in a mine as an example of an adjudication not

s u b j ec t to chang e. 20 C.F.R. § 725.309(d)( 2). I sland Creek contends that Calloway ’s smokin g history is simi larly

not subject to chang e. I sland Creek’ s contention i s direc tly contra ry to the reg ul ati ons. Section 725.309 require s a mi ner raising a subsequent claim t o “mee t at l east one of t he criteria t h at h e or she did not meet previously .” Id

. at § 725.309(d) (2). I f the chang e in entitlement rela tes to a miner’s phy sical condition, the subsequent claim can be approve d if new evidenc e es t ab l ishes the applicable condition. Id

. at § 725.309(d)( 3). Once the applicant demonstrates a chang e in phy sical condition,

no finding s from the prior claim are binding in adjudicating the second claim. Id

. at § 725.309(d)( 4).
Her e the AL J deter

mined that new evidenc e showed Calloway ’s phy sical condition had chang ed so 13No. 09-4589

Island Creek v . Callow ay that he now had leg al pneumoconiosis. Having found such a chang e, the second AL J was not bound by the prior AL J ’s finding

. Moreove r, t he ex tent to which sm oking cause d Calloway ’s di sability is not a matter completely “not subject to chang e” in the same way his never having been in the mine would be. Calloway ’s health can chang e in way s that his work hist ory cannot. We there fore find this arg ument to be without merit. The rec ord shows that the AL J weig hed all the evidenc e and resolved materia l conflicts. His decision is supported by

substantial evidence

. C. Finally , I sland Creek asser ts that the AL J err ed i n requiring that Calloway show that his pneumoconios i s wa s o nly a “contr ibuting cause ” to his total disability , rathe r than apply ing the highe r reg ulatory require ment of showing pneumoconiosis was a “substant ia lly contributing cause .” The reg ulations in question wer e chang ed in 2000 to require th at p n eu m o co niosis be “a substantially contributing cause of the miner’s total l y d i s abling respira tory or pulmonary impairment” in order for a miner to show that h e is totally disabled due to pneumoconiosis. 20
C.F.R. § 718.204(c) (1) ( 2000). See also Reg ulations I mplementing the Fe dera l Coa l Mine Hea lth and Safety Act of 1969 as Amended, 65 Fe d. Reg

. 79920, 79946 (De c. 2 0, 2000) (discussing amendment)

. I sland Creek protests that an ear lier holding of this ci rcuit requiring that pneumoconiosis be only more than a “de minimi s or infinitesimal contribution” to the miner’s total disability is contra

ry t o t he curr ent reg ulations. See Peabody Coal Co. v. Smith , 127 F.3d 504,
506–07 (6th Cir. 1997). Be cause the AL J cited Peabody and found th at p n eu moconiosis

14No. 09-4589

Island Creek v . Callow ay “contr ibuted, at least in part, to [C alloway ’s] total disability ,” I sland Creek arg ues that the AL J acte d
contra ry to the reg ulatory

require ment and applied a standard tha t is too l ow. We ag ree . Peabody , which wa s d ecide d prior to the amendment, expli citly reje cted the “substantial

co n t ri b u ting cause ” standard. 127 F.3d at 507 (“Mor eover , we believe that the substantia l contributing cause standard adopted by the Third and Eleventh Circuits place s an i n appropriately heavy burden on the miners that is incon s i s t en t wi t h [a prior Six th Circuit case ].”). I nstead, the Peabody court adopted a standard in which a miner must “af firmatively establish that pneumoconiosis is a contributing cause of some discerna ble conseque nce”

— i.e. , provide more than

a de minimis contribution—to the miner’s totally disabling respira tory impairment. Id

. I t is still true that pneumoconiosis must be at least more than a de minimis contribution to the miner’s total disability , but to the extent Peabody permits a miner to preva il by showing pneumoconi o s i s by
any thing less than a “substantial contributing cause ,” the case is contra ry to the curr ent reg ulations and is no long er g ood law. Although the AL J did initially cite 20 C.F.R. § 718.204(c) and the corr ect standard, he never
ag ain ref ere nced the “substantially contributing cause ” lang uag e. I nstead, the AL J appea rs to have applied a less rig orous standard in which “a claimant must aff irmatively establish only that his totally disabling respira tory impairment

. . . was due—at least in part—to his pneumoconiosis.” The AL J
repe atedly ref

ere nced this less demanding standard when perf orming his analy sis of the doctors’ evalua tions. For example, when summarizing his assessment, the AL J stated that “Dr s. Majmudar and Ba ker both opined that Claimant’s coal mine employ ment contributed, at least in part , to his total disabilit y .” (e mphasis added) 15No. 09-4589

Island Creek v . Callow ay The AL J never found that Calloway ’s coal mine employ ment or his pneumoconiosis was a “substantially contributing cause ” of his total disability

. Rather, the AL J very clea rly stated that “I find that Claimant has established by a prepondera nce of the evidence that his total disability was due in part to his pneumoconiosis.” This conclusion clea rly fails to use the corr ect standard in which

t h e cl ai m ant’s pneumoconiosis must be a substantial ly contributing cause of his or her tota l disability

. Acc ording ly , re m an d is nece ssary in order to provide the AL J with an opportunity to assess the c ase using the prope r standar d.
I V.
For the fore g oing rea sons, we revers e t he decision of the BRB and rema nd the case for further proce eding s in acc ord with this opinion.

16