NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 08

- 2222

____________ BETTY HIXSON (Survivo r of and o/b/o DEMPSEY HIXSON),

Petitio ners v. DIRECTOR OWCP, UNITED STATES DEPARTME N T OF LABOR;

U.S. STEEL MINING COMPANY, Respondents

____________ On Petition for Review from an Order of the Benefits Review Board, United States Departm ent of Labor (Benefits Review Board No. 07

- 0471 )

____________ Submitted Under Third Circuit LAR 34.1(a)

October 19, 2010

Before: HARDIMAN, GREENAWAY , JR. and NYGAARD , Circuit Judges

. (Filed: November 10, 2010 )

____________ OPINION OF THE COURT

____________2

HARDIMAN, Circuit Judge

. Betty Hixson (Hixson), widow of Dempsey Hixson (Dempsey), filed a petition for review of the Black Lung Benefits Review Board denying her claim for benefits under 30 U.S.C. § 921(a). We will deny the petiti on.

I. Because we write solely for the parties, we narrate only those portions of the facts and procedural history that are necessary to our decision. The Black Lung Benefits Act (Act) , 30 U.S.C. § 901 et seq. , and its implementing regulations impose upo n certain coal mine operators liability for the total disability or death of workers in the operators’ mines if the disability or death was caused by pneumoconiosis (a lung disease) arising out of coal mine employment. See 30 U.S.C. § 921(a); 20 C.F.R. §§ 718.204 (total disability), 718.205 (death). Dempsey Hixson , a coal miner for over 20 years, smoked cigarettes r egularly for

much of his life. Dempsey retired from mining in 1983, suffered various pulmonary and respiratory difficulties that increased in severity with time, and ultimately died from pneumonia in 2001. Dempsey filed multiple applications for benefits under the Act. In his final application, after protracted proceedings before multiple Administrative Law Judges (ALJs) and the Benefits Revi ew Board, Dempsey was ultimately found to be suffer ing from pneumoconiosis arising from coal mining and to be totally disabled. Nevertheless,3

the Board denied benefits based on a lack of proof that Dempsey’s total disability was caused by the pneumoconios is. Dempsey filed a number of motions for modification, some of them including additional evidence. Before his last motion could be heard, Dempsey died, and Hi xson added a survivor’s claim. Because the previous medical evidence had established Dempsey’s pneumoconiosis, U.S. Steel conceded that he had suffered from the disease and that it arose out of coal mine employment, but maintained that his disability and death were not caused by it. U.S. Steel offered the expert opinion of Dr. Everett Oesterling, a board

certified clinical pathologist, who opined that Dempsey’s pneumoconiosis was too minor in nature to have caused either his disability or his death. Oesterling instead pointed to Dempsey’s cigarett e smoking and asthma as the caus al agents behind hi s pulmonary and respiratory problems. 1 The ALJ found Dr. Oester ling’s opinion to be persuasive and in accord with the weight of the medical evidence adduced in prior proceedings. Accordingly, the ALJ denied the motion for modification. Hixson appealed t o the Board,

which affirmed.

1 We recognize that the record contains other medical evidence and that , in considering a motion for modification , an ALJ must consider all of the evidence, including that adduced in prior proceedings. See Nataloni v. Director, Officer of Wo rker’s Comp. Programs , 17 B.L.R. 1

- 82 (1993). We here address only Dr. Oesterling’s opinions because Hixson limits her competen ce objections to those opinions and does not lodge any complaint with respect to the ALJ’s weighing of the remaining evidence.4 II. Hixson now petitions for review of the denial of the motion for modification. 2 A n order denying benefits can be modified “on grounds of a change in conditions or because of a mistake in a [previous] determination of fact .” 20 C.F.R. § 725.310(a). In reviewing

an ALJ’s de cision with respect to benefits: [t]he Board is bound by the ALJ’s findings of fact if they are supported by substantial ev idence. Our review of the Board’ s decision is limited to a determination of whet her an error of law has been committed and whether the Board has adhered to its scope of review. In reviewing the Board’s decision, we must independently review the record and decide whether the ALJ’s findings are rational, consistent with applicable law and supported by substantial evidence on the record considered as a whole. Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” We exercise plenary review over the ALJ’s l egal conclusions that were adopted by the Board.

Hill v. Dir. , Office of Worker’s Comp. Programs , 562 F.3d 264, 268 (3d Cir. 2009) (citations and some internal quotation marks omitted). For the reasons that follow, we will deny the petition.

III.

Hixson first assails the Board’s affirmance of the ALJ’s conclusion that she failed to prove that Dempsey’s total disability was due to his pneumoconiosis. She does so by maintaining that U.S. Steel’s admission that Dempsey suffered from pneumoconiosis

2 We have jurisdiction pursuant to 33 U.S.C. § 921(c)

.5

arising from his coal mine employment eliminated the requirement that she make any showing of causation. 20 C.F.R. § 718.204(c)(1) provides that, in order to establish that her husband was “totally disabled due to pneumoconiosis,” Hixson must demonstrate that the disease either had “a material adverse effect on [his] respiratory or pulmonary condition,” id. §18.204(c)(1)(I), or “[m]aterially worsen[ed]” some other “totally disabling respiratory or pulmonary impairment.” Hixson’s argument relies on the regulatory definition of “pneumoconiosis” found at 2 0 C.F.R. § 718.201, which reads : (a) For the purpose of the Act, “pneumoconiosis” means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes both medical, or “clinical”, pneumoconiosis and statutory, or “legal”, pneumoconiosis.

. . . . (b) For purposes of this section, a disease “arising out of coal mine employment” includes any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment. Hixson maintains that the phrase “substantially aggravated by[] dust exposure in coal mine employment,” as used in this r egulatory definition of pneumoconiosis, is substantively identical to § 718.204(c)(1)(i)’s causation requirement of a “materially adverse effect on the miner’s respiratory or pulmonary condition.” Under Hixson’s theory, U.S. Steel’s admission that her hus band had pneumoconiosis arising out of coal mine employment absolves her from submitting further proof of causation.6

The Board rejected this argument, citing multiple authorities for the proposition

that causation is an element of a benefits claimant’s ca se distinct from the existence of pneumoconiosis. We agree. If § 718.201(b) provided that an illness can be regarded as pneumoconiosis only if it i s “substantially aggravated” by such employment, Hixson’s argument might have some merit. But § 718.201(b) expressly states that a lung ailment

can also qualify as pneumoconiosis simply by being “significantly related to” mine employment. We think it abundantly clear that this “significantly related” standard can

be satisfied even in cases where the illness d oes not create any material adverse effects on the miner’s health, within the meaning of § 718.204(c)(1). Accordingly, an admission that a miner has pneumoconiosis is not equivalent to an admission that the illness caused any total disability the miner ma y have suffered, and we will affirm the Board’s decision in this regard.

IV

. Hixson also argues that the testimony of Dr. Oesterling, U.S. Steel’s expert, was incompetent because it contradicted the fundamental premises of the statutory and regulatory reg ime: The Act and its implementing regulations provide compensation and other benefits . . . to miners’ surviving dependents where d eath is due to pneumoconiosis. For purposes of the Act, death is considered due to pneumoconiosis if the disease was a “subst antially contributing cause or factor” leading to death. 20 C.F.R. §718.205(c). This term has been held to encompass situations in which pneumoconiosis “actually hastened” the miner’s death.7

Consol. Coal Co. v. Kramer , 305 F.3d 203, 205 (3d Cir. 2002). T hus, it is axiomatic to this remedial scheme that pneumoconiosis is indeed capable of hastening death. We have held that ALJs may disregard as incompetent expert opinion evidence that contradicts

fundamental tenets of this sort. Id. at 210. Hixson, howe ver, overstates the import of the regulatory scheme at issue here. She states that “[u]nder the Rules as promulgated by the Director, one cannot have de

minimis pneumoconiosis,” Pet. B r. at 29 n.3, implying that every case of the illness necessarily haste ns death, thus invalidating any evidence that a given individual’s death was not caused by it. This is plainly wrong. The regulations indicate only that it is possible for pneumoconiosis to hasten death, not that it always does so. And , as the

Board not ed, Dr. Oesterling’s testimony in this regard was not at all in tension with the regulations. Oesterling simply opined that pneumoconiosis did not hasten Dempsey’s death, not that it was incapable of hastening anyone’s death. Accordingly, the Board did

n ot err in affirming the ALJ’s consideration of Oesterling’s testimony.

V. For the reasons stated, we find no legal error in the Board’s conclusions and substantial evidence support ed the ALJ’s findings of fact. Accordingly, we will deny Hixson’s petition for review.