NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-2067

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CONSOLIDATION COAL COMPANY,

Petitioner

v.

DIRECTOR OFFICE OF WORKERS COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR;

FRANCES FUNKA, on behalf of and as survivor of 

JOHN FUNKA,

Respondents

______________

On Petition for Review of a Decision and 

Order of the Benefits Review Board

(BRB No. 16-0184 BLA)

_______________

Submitted Under Third Circuit LAR 34.1(a)

January 12, 2018

Before: JORDAN, ROTH, Circuit Judges and MARIANI*, District Judge

(Filed: July 12, 2018)

_______________

OPINION

_______________

 

* Honorable Robert D. Mariani, United States District Court Judge for the Middle 

District of Pennsylvania, sitting by designation.

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

MARIANI, District Judge

Consolidation Coal Company (“Consolidation”) petitions for review of a decision 

of the United States Department of Labor Benefits Review Board (“BRB”), affirming an 

award of disability benefits to a deceased miner, John Funka, and an award of survivor’s

benefits to Mr. Funka’s widow, Frances Funka, under the Black Lung Benefits Act 

(“BLBA”), 30 U.S.C. §§ 901-944. For the reasons discussed below, we will deny 

Consolidation’s Petition for Review. 

I. Background

John Funka worked underground in coal mines for at least forty years. Mr. Funka 

spent the first twenty years of his career as a maintenance supervisor and section 

mechanic for Matthews Coal Company, now owned by Consolidation, before becoming a 

deep mine electrical inspector for the Office of Deep Mine Safety. Prior to retiring on 

December 13, 1991, Mr. Funka began experienced breathing difficulties. The problem

steadily worsened and, by 1993, Mr. Funka was receiving medical treatment to address 

his breathing.

On June 5, 2003, Mr. Funka filed a claim for benefits under the BLBA. After the 

district director proposed awarding benefits, Consolidation requested a formal hearing. 

On September 23, 2005, after conducting a formal hearing, Administrative Law Judge 

(“ALJ”) Michael Lesniak issued a Decision and Order denying benefits. Mr. Funka 

appealed ALJ Lesniak’s decision to the BRB. On December 11, 2005, before the BRB 

issued a decision on his appeal, Mr. Funka died. Mrs. Funka then filed a survivor’s claim 

on August 7, 2006. 
3

In a Decision and Order issued on November 15, 2006, the BRB affirmed in part, 

vacated in part, and remanded the matter. On remand, Mr. Funka’s claim was 

consolidated with Mrs. Funka’s claim and ALJ Lesniak remanded both claims to the 

district director to reopen the evidentiary record and consider, among other things, the 

autopsy evidence and death certificate. The district director proposed awarding benefits

on both claims and Consolidation timely requested a formal hearing. The case was

reassigned to ALJ Ralph Romano, who held a formal hearing and issued a Decision and 

Order awarding benefits on March 4, 2008. Consolidation appealed the decision to the 

BRB and, on March 26, 2009, the BRB vacated the award of benefits and remanded the 

matter for further consideration. 

In a Decision and Order issued on December 20, 2011, ALJ Romano once again 

awarded benefits on both the miner’s claim and the survivor’s claim. Consolidation 

appealed. During the proceedings before the BRB, Mrs. Funka raised the issue of 

whether Consolidation improperly exceeded the evidentiary limitations found in 20 

C.F.R. § 725.414 by submitting three medical opinions. On January 30, 2013, the BRB 

affirmed in part, vacated in part, and remanded. As part of its order, the BRB directed 

the ALJ to evaluate whether a report authored by Dr. Oesterling constituted rebuttal 

autopsy evidence pursuant to 20 C.F.R. § 725.414. 

On remand, the matter was reassigned to ALJ Theresa Timlin. ALJ Timlin 

directed the parties to submit “an evidence summary form designating evidence in the 

living miner’s claim and a separate evidence summary form designating evidence in the 

survivor’s claim.” (App. at 79.) Over Consolidation’s objections, ALJ Timlin issued an 
4

order on November 12, 2015, identifying what evidence would be considered in 

connection with the pending claims. 

On December 10, 2015, ALJ Timlin issued a Decision and Order awarding 

benefits on both the miner’s claim and the survivor’s claim. Noting that no regulatory 

presumption of pneumoconiosis applied to Mr. Funka’s claim1and that the BRB had

already affirmed ALJ Romano’s finding that pneumoconiosis was not established through 

X-ray evidence, ALJ Timlin evaluated the autopsy evidence. After reviewing the autopsy

report of Dr. James Holimon and Dr. Everett Oesterling, ALJ Timlin credited Dr. 

Oesterling’s opinion that the autopsy did not reveal pneumoconiosis. Turning to the 

physician opinion evidence, ALJ Timlin outlined the findings of the three doctors who

submitted medical reports: Dr. Joseph Tomashefski, Dr. Gregory Fino, and Dr. Francis 

Green. 

Dr. Tomashefski, who is board-certified in anatomic and clinical pathology, 

reviewed twenty of Mr. Funka’s autopsy slides and Mr. Funka’s medical records. Dr. 

Tomashefski concluded that Mr. Funka died as a result of diffuse end state interstitial 

 

1 Twenty C.F.R. § 718.305 creates a regulatory presumption that a miner has 

pneumoconiosis if certain criteria are met. This presumption, however, applies only to 

claims filed after January 1, 2005. 20 C.F.R. § 718.305(a). As ALJ Timlin correctly 

concluded, Mr. Funka was not entitled to the § 718.305 presumption because Mr. Funka 

filed his claim on June 5, 2003. Further, although this presumption did apply to Mrs. 

Funka’s claim, which was filed on August 7, 2006, ALJ Timlin never analyzed the merits 

of the survivor’s claim. Instead, after awarding benefits on Mr. Funka claim, ALJ Timlin 

automatically awarded benefits on Mrs. Funka’s claim. See 30 U.S.C. § 932(l) (“In no 

case shall the eligible survivors of a miner who was determined to be eligible to receive 

benefits under this subchapter at the time of his or her death be required to file a new 

claim for benefits, or refile or otherwise revalidate the claim of such miner.”). 
5

fibrosis. The doctor opined that Mr. Funka did not have coal workers’ pneumoconiosis 

based upon the lack of coal macules and micronodules. Dr. Tomashefski also noted

minimal black pigment in the slides of Mr. Funka’s lungs and observed that the 

pigmentation was consistent with the amount one would expect to find in the lungs of 

someone who had never worked in coal mines. Ultimately, Dr. Tomashefski diagnosed 

Mr. Funka with idiopathic pulmonary fibrosis. Dr. Tomashefski cited to several articles 

to support his conclusion, including articles authored by Dr. Green. At his deposition, 

Dr. Tomashefski testified that several rationales supported his diagnosis, including that

(1) Mr. Funka’s pulmonary function decreased more rapidly between 2003 and 2005 than 

would be expected in a retired coal miner, (2) the honeycombing in Mr. Funka’s lungs 

was inconsistent with coal mine dust exposure, and (3) the regional variability of fibrosis 

in Mr. Funka’s lungs was inconsistent with pneumoconiosis. 

Dr. Fino, who is board-certified in internal medicine and pulmonary medicine, 

offered his opinion based on a review of Mr. Funka’s medical records and two pathology 

reports. Dr. Fino also diagnosed Mr. Funka with idiopathic pulmonary fibrosis because 

Mr. Funka had diffuse interstitial pulmonary fibrosis and Dr. Fino’s review of the

medical literature found no support for a link between this type of fibrosis and coal dust 

inhalation. Dr. Fino noted that in the few studies that connect pulmonary fibrosis to 

pneumoconiosis, the fibrosis was heavily pigmented. Thus, because Dr. Fino found 

minimal anthracotic pigment, he opined that coal mine dust did not cause Mr. Funka’s 

disability or death. Dr. Fino supported his conclusion with citation to the medical 

literature including a book and article authored by Dr. Green. At his deposition, Dr. Fino 
6

also noted that Mr. Funka’s disease progressed rapidly, unlike what would be expected 

with pulmonary fibrosis induced by coal dust exposure. Dr. Fino also noted the presence

of honeycombing in Mr. Funka’s lungs and testified that coal mine dust does not cause 

honeycombing. 

Dr. Green, who is board-certified in anatomic pathology, offered an opinion based 

upon his review of Mr. Funka’s autopsy slides and medical records. Dr. Green described 

fibrosis that had been present for many years and showed some, but minimal, 

pigmentation. He opined that the lack of pigmentation was likely due to Mr. Funka’s 

lungs clearing the coal mine dust. The doctor noted the presence of coal dust macules 

and micronodules in parts of the lungs and rounded opacities in the upper lung consistent 

with pneumoconiosis. Dr. Green diagnosed minimally severe simple coal worker

pneumoconiosis and opined that pneumoconiosis was the direct cause of Mr. Funka’s 

death. Based upon the advanced state of the interstitial fibrosis in 2003, Dr. Green 

estimated a “conservative” onset date of 1998. (App. at 102.) The doctor noted that 

idiopathic pulmonary fibrosis is rare in the general population. Citing to the medical 

literature, Dr. Green provided three reasons why idiopathic pulmonary fibrosis was an 

improper diagnosis: (1) several experts have determined that idiopathic pulmonary 

fibrosis is an inappropriate diagnosis for those who have a history of fibrogenic dust 

exposure; (2) Mr. Funka lived significantly longer than would be typical for someone 

diagnosed with idiopathic pulmonary fibrosis; and (3) recent studies have indicated that 

idiopathic pulmonary fibrosis is usually due to dust and fume exposure. At his 

deposition, Dr. Green explained that coal mine induced fibrosis and idiopathic pulmonary 
7

fibrosis are clinically indistinguishable. That is, doctors cannot distinguish the two 

conditions “radiologically or by pulmonary function testing.” (App. at 397.) According 

to Dr. Green, the only notable difference is that a longer survival rate is associated with

coal mine induced fibrosis. 

ALJ Timlin found that “Dr. Green’s opinion on legal and clinical pneumoconiosis 

merits significant probative weight because it is well reasoned and well documented.” 

(App. at 105.) The ALJ afforded less weight to the opinions of Dr. Tomashefski and Dr. 

Fino, finding that both doctors’ opinions were contrary to the BLBA’s regulations and 

ignored the possibility of legal pneumoconiosis. Thus, based on Dr. Green’s opinion, 

ALJ Timlin concluded that Mr. Funka suffered from pneumoconiosis. Next, finding that 

Mr. Funka’s years of coal mine employment entitled him to a regulatory presumption that 

his pneumoconiosis arose out of his coal mine employment,2the ALJ concluded that 

Consolidation failed to rebut this presumption. Finally, the ALJ concluded that Mr. 

Funka was totally disabled due to pneumoconiosis caused pulmonary fibrosis. Having 

made these findings, ALJ Timlin awarded benefits both on Mr. Funka’s claim and Mrs. 

Funka’s survival claim. 

 

2 This regulatory presumption, found in 20 C.F.R. § 718.203(b), should not be 

confused with the § 718.305 regulatory presumption discussed above. Section 718.305 

concerns a rebuttable presumption that miners who meet certain criteria have established 

that they have pneumoconiosis. Section 718.203(b), in contrast, provides that once a 

miner establishes that he or she has pneumoconiosis, there is “a rebuttable presumption 

that the pneumoconiosis arose out of” coal mine employment if the miner “was employed 

for ten years or more in one or more coal mine.” 
8

Consolidation appealed the ALJ’s decision to the BRB. The BRB affirmed the 

award of benefits on March 15, 2017, finding that the ALJ did not abuse her discretion in 

ordering the evidence re-designated and that she did not err in weighing the respective 

medical opinions. Consolidation then petitioned for review by this Court. 

II. Standard of Review

We have jurisdiction under 30 U.S.C. § 932(a), which incorporates the review 

procedures of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 

921(c), in pneumoconiosis cases involving coal miners. See Labelle Processing Co. v. 

Swarrow, 72 F.3d 308, 310 (3d Cir. 1995). “We review the [BRB]’s decision to 

determine whether it committed an error of law and whether it adhered to its scope of 

review. In performing the latter function, we must independently review the record and 

decide whether the ALJ’s findings are supported by substantial evidence.” Wensel v. 

Dir., Office of Workers’ Comp. Programs, 888 F.2d 14, 16 (3d Cir. 1989) (quotation 

marks omitted). “Substantial evidence has been defined as ‘such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.’” Hill v. Dir., Office 

of Workers’ Comp. Programs, 562 F.3d 264, 268 (3d Cir. 2009) (quoting Mancia v. Dir., 

Office of Workers’ Comp. Programs, 130 F.3d 579, 584 (3d Cir. 1997)). “The [BRB]’s

decisions on matters of law are subject to plenary review.” Marmon Coal Co. v. Dir., 

Office of Workers’ Comp. Programs, 726 F.3d 387, 391 (3d Cir. 2013). 

III. Discussion

“Benefits are provided under the [BLBA] for or on behalf of miners who are 

totally disabled due to pneumoconiosis, or who were totally disabled due to 
9

pneumoconiosis at the time of death.” 20 C.F.R. § 718.204(a). “[A] miner shall be 

considered totally disabled if the miner has a pulmonary or respiratory impairment which, 

standing alone,” meets certain regulatory criteria. 20 C.F.R. § 718.204(b)(1). “A miner 

shall be considered totally disabled due to pneumoconiosis if pneumoconiosis . . . is a 

substantially contributing cause of the miner’s totally disabling respiratory or pulmonary 

impairment.” 20 C.F.R. § 718.204(c)(1). An eligible survivor is automatically entitled to 

benefits if the miner was eligible for benefits at the time of the miner’s death. 30 U.S.C. 

§ 932(l). Here, there is no dispute that Mr. Funka was totally disabled from a pulmonary 

impairment. Instead, the dispute centers on whether Mr. Funka had pneumoconiosis and 

whether his disability was due to pneumoconiosis. 

The regulations enacted pursuant to the BLBA define pneumoconiosis as “a 

chronic dust disease of the lung and its sequelae, including respiratory and pulmonary 

impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a). The 

regulations recognize both “Clinical Pneumoconiosis,” defined as “those diseases 

recognized by the medical community as pneumoconioses, i.e., the conditions 

characterized by permanent deposition of substantial amounts of particulate matter in the 

lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust 

exposure in coal mine employment,” and “Legal Pneumoconiosis,” defined as “any 

chronic lung disease or impairment and its sequelae arising out of coal mine 

employment.” 20 C.F.R. § 718.201(a)(1)-(2). “[P]neumoconiosis may be shown through 

1) a chest x-ray; 2) a biopsy; 3) statutory presumptions . . . ; 4) a physician’s evaluation.” 
10

Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 23 (3d Cir. 1997) (citing 20 C.F.R. § 

718.202). 3 

Broadly speaking, Consolidation raises two issues on appeal. First, Consolidation 

claims that ALJ Timlin committed various errors when she credited Dr. Green’s medical 

opinion and rejected the medical opinions of Dr. Tomashefski and Dr. Fino. Second, 

Consolidation argues that ALJ Timlin abused her discretion when she ordered certain 

evidence withdrawn on remand. We will address each issue in turn.

A. Weighing of the Medical Opinions

Consolidation’s arguments largely concern whether ALJ Timlin committed errors 

when she credited Dr. Green’s medical opinion that Mr. Funka had legal and clinical 

pneumoconiosis and rejected the contrary opinions of Dr. Tomashefski and Dr. Fino. An 

“ALJ has broad discretion to determine the weight accorded each doctor’s opinion.” 

Balsavage v. Dir., Office of Workers’ Comp. Programs, 295 F.3d 390, 396 (3d Cir. 

2002). “In reaching a decision, an ALJ should set out and discuss the pertinent medical 

evidence presented.” Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 

1986). “The ALJ is not bound to accept the opinion or theory of any medical expert, but 

may weigh the medical evidence and draw its own inferences.” Id. “Moreover, the ALJ 

 

3 To be eligible for benefits, a claimant must also show “that the miner’s 

pneumoconiosis arose at least in part out of coal mine employment.” 20 C.F.R. § 

718.203(a). “If a miner who is suffering or suffered from pneumoconiosis was employed 

for ten years or more in one or more coal mines, there shall be a rebuttable presumption 

that the pneumoconiosis arose out of such employment.” 20 C.F.R. § 718.203(b). ALJ 

Timlin’s finding that this presumption was applicable and unrebutted by Consolidation is 

not specifically challenged on appeal. 
11

should reject as insufficiently reasoned any medical opinion that reaches a conclusion 

contrary to objective clinical evidence without explanation.” Id.

Initially, Consolidation contends that ALJ Timlin’s decision is internally 

inconsistent because it both credits Dr. Oesterling’s opinion that the autopsy evidence 

does not prove that Mr. Funka had pneumoconiosis and also credits Dr. Green’s opinion 

that the autopsy evidence did reveal pneumoconiosis. This argument, however, 

misconstrues the ALJ’s decision.

Under 20 C.F.R. § 718.202, an ALJ may find that a miner has pneumoconiosis on 

the strength of one of several categories of evidence, including a chest X-ray, a biopsy or 

autopsy, or a physician’s “reasoned medical opinion” if such opinion is “based on 

objective medical evidence.” 20 C.F.R. § 718.202(a)(1)-(4). Here, ALJ Timlin found 

that Dr. Holimon’s diagnosis of clinical pneumoconiosis based upon his autopsy findings 

lacked credibility for a variety of reasons. The ALJ also found that Dr. Oesterling’s 

opinion that the autopsy did not show pneumoconiosis was “well reasoned and well 

documented” based in part on Dr. Oesterling’s finding that the autopsy showed “minimal 

anthracotic pigment” in Mr. Funka’s lungs. (App. at 95.) Thus, the ALJ concluded that 

“Claimant failed to establish that Miner had pneumoconiosis by a preponderance of the 

autopsy evidence.” (App. at 96.) When evaluating the medical opinions—a wholly 

separate category of evidence on which a finding of pneumoconiosis may be based under 

20 C.F.R. § 718.202(a)—the ALJ credited Dr. Green’s diagnosis of clinical and legal 

pneumoconiosis. In doing so, the ALJ found that Dr. Green provided a well-supported 

and reasoned explanation of why Mr. Funka “could have had an advanced form of 
12

interstitial fibrosis despite a limited amount of black pigment in his lungs.” (App. at 

106.) 

Contrary to Consolidation’s argument, these findings are not contradictory or 

inconsistent. The ALJ found that the autopsy evidence alone was insufficient to establish 

that Mr. Funka had pneumoconiosis but that Dr. Green’s medical opinion, which was 

based upon the autopsy evidence and other medical evidence, did establish that Mr. 

Funka had pneumoconiosis. 

Similarly, Consolidation argues that the ALJ erred when she credited Dr. Green’s 

diagnosis of coal dust-induced fibrosis based upon Dr. Green’s finding that Mr. Funka 

had black pigment within his lungs. Consolidation argues that black pigment is not 

sufficient to base a diagnosis of coal workers’ pneumoconiosis. Consolidation cites to 20 

C.F.R § 718.202, which provides, in part, that “[a] finding in an autopsy or biopsy of 

anthracotic pigmentation . . . must not be considered sufficient, by itself, to establish the 

existence of pneumoconiosis.” 20 C.F.R § 718.202(a)(2). This provision, however, 

relates to biopsy or autopsy evidence. As discussed above, ALJ Timlin concluded that 

Mr. Funka had legal and clinical pneumoconiosis based on medical opinion evidence, not 

on autopsy evidence. Further, as Consolidation admits, Dr. Green’s diagnosis was based 

on the “presence of black pigment and birefringent particles, as well as the presence of 

macules and micronodules consistent with pneumoconiosis in areas less affected by the 

fibrosis.” (Petitioner’s Br. at 37) (emphasis added). Thus, Consolidation acknowledges

that Dr. Green did not base his opinion solely on the presence of black pigmentation in 
13

Mr. Funka’s lungs, but instead considered the pigmentation in conjunction with other 

evidence.4

Next, Consolidation argues that the ALJ erred when she found that Mr. Funka had 

a pulmonary disability prior to 2003 based upon Mr. Funka’s testimony about his 

shortness of breath in the 1990s. Pointing to 20 C.F.R. § 718.204(d)(3), Consolidation 

further contends that even if the ALJ was permitted to draw this inference from the lay 

evidence, it was improper for her to use this conclusion to credit Dr. Green’s diagnosis. 

Under 20 C.F.R. § 718.204, 

affidavits (or equivalent sworn testimony) from persons knowledgeable of 

the miner’s physical condition shall be sufficient to establish total disability 

due to pneumoconiosis if no medical or other relevant evidence exists which 

addresses the miner’s pulmonary or respiratory condition; however, such a 

determination shall not be based solely upon the affidavits or testimony of 

any person who would be eligible for benefits (including augmented 

benefits) if the claim were approved.

20 C.F.R. § 718.204(d)(3). This regulation was violated, Consolidation argues, because 

Mr. Funka was a person eligible for benefits if his claim was approved and his testimony 

was used to establish his disability. 

 

4 Nor did the ALJ engage in inconsistent reasoning by discrediting the opinions of 

Dr. Tomashefski and Dr. Fino that Mr. Funka did not have coal workers’ pneumoconiosis 

because those opinions were based on the absence of black pigmentation and macules or 

micronodules in Mr. Funka’s lungs. As the ALJ correctly noted, the regulations do not 

require anthracotic pigment or pneumoconiotic macules or micronodules to support a 

pneumoconiosis finding. Thus, even if Mr. Funka did not have anthracotic pigment or 

pneumoconiotic macules or micronodules in his lungs, it would not necessarily follow 

that Mr. Funka did not have coal workers’ pneumoconiosis. Therefore, the ALJ 

permissibly concluded that the opinions of Dr. Tomashefski and Dr. Fino were not wellreasoned. 
14

Consolidation’s argument once again misconstrues the ALJ’s decision. ALJ 

Timlin did not establish that Mr. Funka was disabled based upon his lay testimony. 

Indeed, the ALJ did not even determine Mr. Funka’s disability onset date based upon lay 

testimony. The ALJ specifically noted, “[t]he record does not disclose when Miner first 

became totally disabled due to pneumoconiosis.” (App. at 111.) ALJ Timlin simply

credited Dr. Green’s medical opinion that Mr. Funka was disabled due to pneumoconiosis 

and then found that the doctor’s opinion about the disease’s progression was consistent 

with Mr. Funka’s testimony about when he started experiencing symptoms. Section 

718.204(d)(3) provides that a total disability cannot be established based solely on a 

claimant’s testimony; it does not prohibit an ALJ from using lay testimony to determine 

when a claimant first became symptomatic. Thus, it was entirely permissible for the ALJ 

to evaluate whether Dr. Green’s medical opinion was corroborated by Mr. Funka’s lay 

testimony. See Soubik v. Dir., Office of Workers’ Comp. Programs, 366 F.3d 226, 230, 

238 (3d Cir. 2004). 

Relying on United States Steel Mining Company, Inc. v. Director, Office of 

Workers’ Compensation Programs, 187 F.3d 384 (4th Cir. 1999), Consolidation next 

argues that the ALJ erred in crediting Dr. Green’s “highly speculative” opinion about the 

absence of black pigment in Mr. Funka’s lungs. (Opening Br. at 41-43.) In United States 

Steel, the Fourth Circuit held that a doctor’s statement that “it is possible that [the 

claimant’s] death could have occurred as a consequence of his pneumonia superimposed 

upon . . . his occupational pneumoconiosis” was insufficient “to establish by a 

preponderance of the evidence that there was a causal link between [the claimant]’s
15

pneumoconiosis and his death.” United States Steel, 187 F.3d at 390, 391 (second 

alteration in original). Consolidation argues that Dr. Green’s opinion regarding the lack

of significant amounts of black pigment in Mr. Funka’s lungs is similarly speculative as 

he used uncertain words and phrases such as “can” and “could in part be due to.” 

(Opening Br. at 41-43.)

This argument, however, relies on a selective reading of Dr. Green’s report and 

deposition testimony and ignores Dr. Green’s overall conclusions. Dr. Green explained

that 

[t]he most likely diagnosis, in my opinion, is that this is the variant of simple 

coal worker’s pneumoconiosis characterized by interstitial fibrosis (Green 

and Vallyathan, 1998). . . . [A]lthough some of the interstitial fibrosis was 

pigmented (as shown in Figures 5 and 6), a majority was not (Figure 1). The 

lack of pigmentation could in part be due to clearance of coal mine dust from 

the lungs following retirement from the mining industry in 1992, a period of 

13 years. In addition, episodes of congestive cardiac failure can enhance 

clearance of a dust from the interstitium (Green and Vallyathan, 1998). 

Variability of pigmentation appears to be a feature of this form of coal 

worker’s pneumoconiosis (Green and Vallyathan, 1998; McConnochie et al., 

1998).

Silica exposure can also produce interstitial fibrosis (Craighead et al., 1982; 

Honma et al., 1993) and evidence of significant silica exposure was shown 

by the presence of large confluent silicotic nodules in the tracheo-bronchial 

lymph nodes. Thus, it is my opinion that the interstitial fibrosis was causally 

related to coal mine dust exposure which included the silica component. 

(App. at 265-266) (emphasis added.) Unlike United States Steel where the doctor could 

not opine with any definiteness that the claimant’s pneumoconiosis was related to his 

death, Dr. Green opined that Mr. Funka’s interstitial fibrosis was caused by his exposure 

to coal dust and further diagnosed him with coal workers’ pneumoconiosis. He supported 

his conclusions with citations to the medical literature, his own findings, and his 
16

explanations of the evidence that appeared to contradict his diagnosis. The mere fact that 

Dr. Green used some less than definite language before coming to his ultimate conclusion 

does not mean that the ALJ was not entitled to credit his medical opinion and diagnosis. 

Indeed, “a testifying physician need not express his conclusions in terms of reasonable 

degree of medical certainty to be credited by the ALJ; the ALJ must instead accept a 

documented opinion of a physician exercising reasoned medical judgment.” Mancia v.

Dir., Office of Workers’ Comp. Programs, 130 F.3d 579, 588 (3d Cir. 1997) (alteration 

and quotation marks omitted).

5

Relatedly, we find no merit in Consolidation’s contention that the ALJ 

impermissibly credited Dr. Green’s interpretation of a particular research study, the 

McConnochie study, over the interpretations of Dr. Fino and Dr. Tomashefski, simply 

because Dr. Green was a co-author of the study. As the ALJ correctly pointed out, 

neither party placed the McConnochie study in the record. While the ALJ certainly could 

have directed either party to place the study into evidence, the ALJ permissibly credited

Dr. Green’s interpretation of the study over that of Dr. Fino and Dr. Tomashefski on the 

basis that Dr. Green co-authored the study and therefore had a more in-depth 

understanding of the study’s conclusions and implications. 

 

5 Consolidation also argues that the ALJ improperly found legal pneumoconiosis 

in connection with Mr. Funka’s bronchitis because Dr. Green only stated that Mr. 

Funka’s bronchitis was “probably” related to his coal mine dust exposure. (App. at 395.) 

Such a finding, however, was not necessary to award benefits because the ALJ also 

concluded that Mr. Funka had both clinical and legal pneumoconiosis with respect to his 

pulmonary fibrosis. Thus, even assuming the ALJ did err in this respect, any such error 

was harmless. 
17

Consolidation also puts forth a variety of arguments as to why the ALJ erred in 

assigning little weight to the medical opinions of Dr. Tomashefski and Dr. Fino. Having 

already concluded that the ALJ did not err in her analysis of Dr. Green’s medical opinion 

and therefore permissibly assigned that opinion significant probative weight, we see no 

error in the comparative weight that the ALJ assigned to the opinions of Dr. Tomashefski 

and Dr. Fino. ALJ Timlin reviewed all the evidence in the record and explained that she 

assigned little probative weight to the opinion of Dr. Tomashefski because, among other 

reasons, (1) his conclusion that Mr. Funka did not have pneumoconiosis was based on the 

absence of pigmentation and macules or micronodules, the presence of which are not 

required to support a diagnosis of pneumoconiosis under the BLBA regulations, (2) he 

provided no explanation or citation to the medical literature to support his claim that coal 

mine dust induced fibrosis does not cause honeycombing, (3) his interpretation of the 

McConnochie study to support his conclusion was contradicted by the study’s co-author, 

and (4) he failed to address the possibility that Mr. Funka could have legal 

pneumoconiosis. Further, the ALJ noted that Dr. Tomashefski’s opinion that Mr. Funka 

had idiopathic pulmonary fibrosis was in conflict with Dr. Green’s explanation, 

supported by citations to the medical literature, that such a diagnosis was inappropriate 

for individuals with a history of coal dust exposure. Despite this conflict, the ALJ 

explained that “Dr. Tomashefski did not discuss why Miner’s fibrosis was idiopathic in 

light of Miner’s coal dust exposure history.” (App. at 108.) 

These were all permissible considerations for ALJ Timlin to take into account 

when weighing the competing medical opinions. See Kertesz, 788 F.2d at 163 (“[T]he 
18

ALJ should reject as insufficiently reasoned any medical opinion that reaches a 

conclusion contrary to objective clinical evidence without explanation.”). The ALJ

adequately explained why she assigned Dr. Tomashefski’s opinion less weight and 

substantial evidence in the record supports the ALJ’s findings.

Likewise, ALJ Timlin assigned little probative weight to Dr. Fino’s opinion that 

Mr. Funka did not have pneumoconiosis because (1) Dr. Fino based his conclusion on 

findings of minimal to no anthracotic pigment and his assertion that coal mine induced 

fibrosis is usually associated with heavy anthracotic pigment within the fibrosis, a finding 

which is not required to support a diagnosis of pneumoconiosis under the BLBA 

regulations, (2) Dr. Fino’s assertion that Mr. Funka’s pulmonary fibrosis began in 2003 

was contradicted by both Mr. Funka’s testimony and medical reports from 2003 showing 

that Mr. Funka already had advanced pulmonary fibrosis at that time, and (3) Dr. Fino did 

not explain why his diagnosis of idiopathic pulmonary fibrosis was appropriate in light of 

Mr. Funka’s history of significant coal dust exposure. Once again, the ALJ adequately 

explained why she rejected Dr. Fino’s opinion as insufficiently reasoned and not well 

supported. In light of the facts discussed above, we find that substantial evidence in the 

record supports the ALJ’s findings with respect to Dr. Fino’s opinion.

6

 

6 Additionally, Consolidation argues that ALJ Timlin failed to address matters the 

BRB directed her to consider on remand. As Consolidation readily admits, however, it 

did not raise this argument before the BRB. Because Consolidation did not raise this 

argument before the BRB, we deem it waived. See Penn Allegheny Coal Co. v. 

Mercatell, 878 F.2d 106, 110 (3d Cir. 1989).
19

In sum, we find that ALJ Timlin did not err in her evaluation of the medical 

opinions and that her findings were supported by substantial evidence.

B. Withdrawing Evidence 

Finally, Consolidation argues that ALJ Timlin abused her discretion and violated 

Consolidation’s due process rights to a full and fair hearing when it ordered certain 

evidence withdrawn from the record. Pursuant to 20 C.F.R. § 725.414, parties are limited 

in the amount of medical evidence they may submit in support of their cases.

7

 When this 

matter reached the BRB for the third time, Mrs. Funka argued that Consolidation 

exceeded the limitations found in § 725.414. The BRB instructed that, on remand, the 

ALJ should determine whether Dr. Oesterling’s report constituted rebuttal evidence, thus

falling outside of the evidentiary limitations. In response, ALJ Timlin ordered the parties 

to submit a summary which designated their evidence with respect to the § 725.414 

limitations. According to Consolidation, this had the effect of forcing Consolidation to 

withdraw evidence that it had relied on over the duration of the litigation. Consolidation 

objected, but ALJ Timlin found that the “evidentiary limitations are mandatory and not 

 

7 For example, under the regulation, 

The claimant is entitled to submit, in support of his affirmative case, no more 

than two chest X-ray interpretations, the results of no more than two 

pulmonary function tests, the results of no more than two arterial blood gas 

studies, no more than one report of an autopsy, no more than one report of 

each biopsy, and no more than two medical reports.

20 C.F.R. § 725.414(a)(2)(i).
20

waivable” and that Consolidation failed to “show[ ] good cause for including evidence in 

excess of the evidentiary limitations.” (App. at 81.) The BRB affirmed. 

Consolidation argues that it was prejudiced by being forced to comply with the 

limitations contained in § 725.414. To be clear, Consolidation does not argue that § 

725.414 is itself problematic. Instead, Consolidation contends that it litigated this matter 

over the course of many years and relied on the evidence that it submitted when 

fashioning its arguments. Thus, Consolidation argues that when the § 725.414 limitations 

were enforced at such a late stage, Consolidation’s right to a full and fair hearing was 

violated. 

We discern no error in the ALJ’s enforcement of the § 725.414 evidentiary 

limitations under these facts. Although Consolidation argues that the ALJ sua sponte

ordered evidence withdrawn, the record shows that Consolidation was afforded a full 

opportunity to decide what evidence it wished to submit in support of its case within the 

confines of the § 725.414 limitations. Further, although Consolidation makes generalized 

and conclusory allegations of prejudice, Consolidation fails to identify any specific 

argument that was foreclosed to it or any other specific prejudice it suffered as a result of 

ALJ Timlin’s Order. 

IV. Conclusion

For the reasons discussed above, we will deny Consolidation Coal Company’s

Petition for Review.