In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2030

ROBERTS & SCHAEFER COMPANY,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS and

WILLIAM L. WILLIAMS,

Respondents.

____________

Petition for Review of an Order of the Benefits Review

Board, United States Department of Labor.

No. 03-386-BLA

____________

ARGUED DECEMBER 8, 2004—DECIDED MARCH 14, 2005

____________

Before FLAUM, Chief Judge, and POSNER and SYKES,

Circuit Judges.

FLAUM, Chief Judge. An administrative law judge (“ALJ”)

ordered petitioner Roberts & Schaefer Company (“R&S”) to

pay benefits to respondent William L. Williams under the

Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901 et seq.

Following affirmance by the Benefits Review Board, R&S

petitioned this Court for review. For the reasons stated

herein, we affirm.
2 No. 04-2030

1 The Secretary of Labor and the Secretary of Heath and Human

Services are vested with the authority to promulgate regulations

for the implementation and administration of the BLBA. See 30

U.S.C. § 936. The implementing regulations provide that a district

director shall designate a “responsible operator liable for the

payment” of a miner’s pneumoconiosis benefits. 20 C.F.R.

(continued...)

I. Background

Respondent Williams was a coal miner in the traditional

sense for little more than three years but he worked in coal

mine construction for much longer. Petitioner R&S employed

Williams between 1974 and 1984 as a laborer, demolishing

old tipples and other mining structures and repairing and

building new ones. After 1984, Williams worked for other

companies in various mining and non-mining jobs until he

retired in 1991 at the age of 58. Williams was also a

smoker. He quit in 1999 after smoking approximately one

pack of cigarettes per day for 46 years.

Williams first received treatment for respiratory problems

in 1991. Over the course of the next decade, he saw several

different doctors about his worsening condition. One of the

first doctors he consulted was Dr. Harold Johnson, whose

notes, dating from 1991 to 1995, refer to a diagnosis of

chronic obstructive pulmonary disease (“COPD”), but do not

indicate the cause of the condition. In 1992, Drs. Mason

Baker and Carroll Boyle, also without opining on etiology,

each diagnosed Williams with emphysema.

In November 1998, Williams filed an application for pneumoconiosis benefits with the Department of Labor’s Office

of Workers’ Compensation Programs (“OWCP”). Within a

month, the OWCP’s district director notified Amax Coal

Company that it had been designated the responsible operator liable for the payment of any benefits due to Williams.1
No. 04-2030 3

1 (...continued)

§ 725.410(a)(3). Generally, this is the owner or operator of a coal

mine, or the independent contractor performing construction work

at a coal mine, that most recently employed the miner for a

cumulative period of not less than one year. See 20 C.F.R.

§§ 725.491-725.497. Where there is no employer that qualifies as

a responsible operator, a miner may receive benefits from the

Black Lung Disability Trust Fund. 26 U.S.C. § 9501(d)(1)(B).

In March of the following year, Williams saw Dr. Reynaldo

Carandang who, after examining him and evaluating his

employment and smoking history, concluded that Williams

was totally disabled by COPD due to coal dust exposure and

smoking. Despite Dr. Carandang’s report, the OWCP denied

Williams’s claim three months later. Williams sought

reconsideration through the modification procedure set forth

in 20 C.F.R. § 725.310 in May 2000. In June, after determining that Amax Coal had been named in error, the district

director notified R&S that it was the responsible operator

in Williams’s case. In November, the OWCP denied

Williams’s request for modification.

Understanding that Williams would not be precluded from

filing another modification request, R&S sent him to be

examined by Dr. Jeff Selby, who diagnosed COPD and

asthma and opined that Williams’s condition was caused by

smoking and untreated asthma. He reasoned that, because

Williams’s lung function continued to deteriorate even after

he retired, the COPD was not “at all related to coal dust

exposure.” Also noting that Williams was unable to smoke

while working at the coal mines, Dr. Selby stated that,

“[c]learly coal mines actually probably helped preserve this

man’s lung function, not allowing him to smoke while there,

and this had a much more significant positive effect on his

health, than whatever small amount of negative effect of

breathing in coal mine dust may have had.” This opinion

was later contradicted by Dr. David Marder, who examined
4 No. 04-2030

Williams and found him to be totally disabled by COPD

“due in substantial part to coal dust exposure,” and Dr.

Robert Cohen, who concluded from a review of Williams’s

file that he was totally disabled by pneumoconiosis due to

both coal dust exposure and smoking.

Williams requested that his claim for pneumoconiosis

benefits be transferred to the Office of Administrative Law

Judges and, on January 28, 2003, following a formal hearing, an ALJ granted modification and ordered R&S to pay

BLBA benefits to Williams. The ALJ’s decision and order

were affirmed by the Benefits Review Board. R&S has petitioned this Court for review.

II. Discussion

When a party appeals a final decision of the Benefits

Review Board, “our task is to review the ALJ’s decision

which the Board affirmed.” Old Ben Coal Co. v. Director,

OWCP, 292 F.3d 533, 538 (7th Cir. 2002) (internal quotations

omitted). “We do so under a deferential standard of review:

We will not overturn the ALJ’s decision if it is rational, supported by substantial evidence and consistent with governing law.” Id. We affirm an ALJ’s factual findings “if they are

supported by relevant evidence that a rational mind might

accept as adequate to support a decision.” Zeigler Coal Co.

v. Director, OWCP, 326 F.3d 894, 897 (7th Cir. 2003) (internal

quotations omitted). “We do not reweigh the evidence,

resolve inconsistencies in the record, make credibility

determinations, or substitute our inferences for those drawn

below.” Freeman United Coal Mining Co. v. Summers, 272

F.3d 473, 478 (7th Cir. 2001). “Though we defer to the ALJ’s

factual determinations, we review questions of law de novo.”

Gulley v. Director, OWCP, 397 F.3d 535, 538 (7th Cir. 2005).

R&S asserts that Williams’s claim for benefits is procedurally barred and, in the alternative, that the ALJ’s decision is not supported by substantial evidence. We consider

each assertion in turn.
No. 04-2030 5

A. Procedural Bars

R&S argues that Williams’s claim is barred by the

BLBA’s statute of limitations, the doctrine of laches, and

the Due Process Clause of the Fifth Amendment to the

United States Constitution.

The BLBA provides that any claim for benefits by a miner

“shall be filed within three years after . . . a medical

determination of total disability due to pneumoconiosis.” 30

U.S.C. § 932(f). The implementing regulations recognize “a

rebuttable presumption that every claim for benefits is

timely filed,” and add that the limitations period begins to

run when “a medical determination of total disability due to

pneumoconiosis” is “communicated to the miner.” 20 C.F.R.

§§ 725.308(a), (c). The term “pneumoconiosis” is defined in

the BLBA as “a chronic 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).

R&S attempts to rebut the presumption of timeliness by

arguing that Williams must have the same disease now that

he had in 1992 when he saw Drs. Johnson, Baker, and

Boyle and, therefore, that the statute of limitations began

to run upon the first diagnosis of COPD or emphysema by

one of those doctors. In other words, if Williams’s current

condition was caused by coal dust exposure as the ALJ

found, then the COPD and emphysema diagnosed in 1992

were also caused by coal dust exposure and Williams was

required to bring his claim within three years of those

original diagnoses. This reasoning, however, is based on a

misinterpretation of the regulation. The limitations period

does not begin to run until the claimant is informed either

that his respiratory or pulmonary impairment is “pneumoconiosis” or that the impairment arose out of exposure to

coal dust. It is undisputed that Dr. Carandang’s 1999

medical report concluding that Williams’s condition was
6 No. 04-2030

caused at least in part by exposure to coal dust was the first

such determination to be communicated to Williams.

Therefore, Williams’s 1998 application for benefits is not

time-barred.

Next, R&S claims that the equitable doctrine of laches

bars Williams’s claim. It contends that the lengthy gap

between Williams’s last day of employment with R&S and

the filing of his claim compromised its ability to defend the

action. A party who asserts a laches defense must show “an

unreasonable lack of diligence by the party against whom

the defense is asserted” and “prejudice arising therefrom.”

Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 820 (7th

Cir. 1999). We will reverse a decision as to whether to apply

the doctrine of laches only for abuse of discretion. Id. at

819. Given his finding that Williams was first diagnosed

with pneumoconiosis in 1999 after he filed his claim, the

ALJ correctly concluded that Williams could not have been

expected to file a claim any earlier. The ALJ’s finding of no

lack of diligence is supported by substantial evidence and it

was not an abuse of discretion to decline to apply the

doctrine of laches to Williams’s claim.

Finally, R&S contends that its procedural due process

rights were violated by the OWCP’s delay in notifying it of

its potential liability as the responsible operator. R&S

states that its ability to mount a meaningful defense was

compromised by the delay and believes that it should not be

prejudiced by the OWCP’s error in initially notifying Amax

Coal, rather than R&S. On this basis, R&S seeks to have

liability transferred to the Black Lung Disability Trust

Fund.

We have recognized the general proposition that “[t]here

can be no due process without ‘the opportunity to be heard

at a meaningful time and in a meaningful manner.’ ” Baird

v. Bd. of Educ. for Warren Cmty. Unit Sch. Dist. No. 205,

389 F.3d 685, 690 (7th Cir. 2004) (quoting Mathews v.

Eldridge, 424 U.S. 319, 333 (1976)). Not every delay, how-
No. 04-2030 7

2 R&S argues that Kelly is inapplicable because it was based on

a different regulation. Such a distinction is of no consequence,

however, because regulations cannot abrogate, or authorize violations of, a party’s constitutional rights. We held that the delay

in Kelly did not result in a deprivation of due process and that

holding properly guides our decision in this case.

ever, will deprive a litigant of a meaningful opportunity to

be heard. For instance, in Midland Coal Co. v. Director,

OWCP [“Kelly”], 120 F.3d 64 (7th Cir. 1997), the responsible

operator alleged a due process violation where the miner

filed his claim in 1976, the district director denied the claim

in 1980, the miner died in 1982, and the district director

notified the responsible operator of its potential liability two

months after the miner’s death. We held that the delay

alone did not constitute a due process violation absent a

showing that the employer had been unable to defend

against the claim after the claimant’s death.2

Here, the delay in notification was even shorter than in

Kelly and R&S has not shown that it was denied a meaningful opportunity to defend against the claim. When R&S

received notice of potential liability in June 2000, Williams

had only recently obtained counsel and filed for modification

of the district director’s denial. After R&S was notified, two

years passed before the ALJ’s hearing, during which time

R&S had the opportunity to subject Williams to a medical

examination by its expert, obtain his medical records, serve

interrogatories, and investigate his employment and medical

history. These circumstances provided R&S with a sufficient opportunity to defend against the claim and its vague

assertion that earlier notification might have enabled it to

develop the case more fully does not make the delay

unconstitutional. R&S has failed to demonstrate that

liability must be shifted to avoid a due process violation.
8 No. 04-2030

B. Substantial Evidence

R&S next argues that the ALJ’s decision was not supported by substantial evidence. Under the BLBA, “benefits

are provided to miners who are totally disabled due to pneumoconiosis.” 20 C.F.R. § 718.1(a). A claimant is entitled to

benefits if he establishes that: (1) he suffers from pneumoconiosis; (2) the pneumoconiosis arose at least in part out of

his employment as a coal miner; (3) he is totally disabled;

and (4) the pneumoconiosis contributes to his total disability.

See 20 C.F.R. §§ 725.202(d), 718.202-718.204. R&S contends

that there is insufficient evidence to satisfy the first two

elements.

Chest x-rays, biopsies, and physicians’ medical opinions

are among the types of evidence that may be relied upon in

determining whether a claimant suffers from pneumoconiosis. See 20 C.F.R. § 718.202(a). The record did not contain

any biopsy evidence and of the 24 interpretations of 13

chest x-rays, 13 were negative for pneumoconiosis, 1 was

positive, and 10 were silent. Although the ALJ concluded

that this evidence did not support a finding of pneumoconiosis, he went on to find that the medical opinions of

Williams’s doctors did.

Contrary to R&S’s assertion that it was unreasonable for

the ALJ to overlook the negative x-ray interpretations in

evaluating the medical opinions, the regulations expressly

provide that pneumoconiosis may be determined to exist

based on the judgment of a physician, notwithstanding

negative x-ray evidence. Id. In addition to highlighting

Williams’s chest x-rays, R&S suggests that the ALJ’s finding

of pneumoconiosis may not stand because his assessment of

the medical opinion evidence was unreasonable. Under the

BLBA, pneumoconiosis is a “chronic dust disease of the

lung.” 30 U.S.C. § 902(b). Williams’s doctors agreed that he

suffered from a serious respiratory impairment but disa-
No. 04-2030 9

greed about whether his condition arose from exposure to

coal dust. Drs. Marder and Carandang diagnosed COPD

due substantially to coal dust exposure. Drs. Baker, Boyle,

and Johnson each diagnosed COPD or emphysema but

did not discuss etiology. Dr. Selby diagnosed COPD due to

smoking and asthma, opining that Williams’s worsening

lung function in recent years could not be due to coal dust

exposure because he was no longer working in or around

coal mines. Finally, Dr. Cohen diagnosed pneumoconiosis

due to coal dust exposure and smoking. In his analysis,

Dr. Cohen addressed Dr. Selby’s diagnosis of asthma and

found it to be without merit because there had been no previous diagnoses of that disease, no treatment had been

administered for asthma, and Williams had not responded

to bronchodilators (medications commonly given to asthma

sufferers that widen the air passages of the lungs).

In considering the medical opinion evidence, the ALJ gave

less weight to Dr. Selby’s opinion in part because it is

contrary to the Department of Labor’s recognition of pneumoconiosis “as a latent and progressive disease which may

first become detectible only after the cessation of coal mine

dust exposure.” 20 C.F.R. § 718.201(c). Greater weight was

assigned to Dr. Cohen’s opinion because of his standing in

the field, “substantial expertise,” and “well-reasoned and

well-documented opinion.” The ALJ concluded: “In sum, the

substantial weight of Dr. Cohen’s opinion buttressed by

those of Drs. Marder and Carandang outweigh the discounted opinion of Dr. Selby. Therefore, I find that the

weight of the evidence of record supports a finding of pneumoconiosis.” (Jan. 28, 2003 ALJ Order at 17.)

An ALJ does not exceed his authority in discounting a

medical opinion that is influenced by the physician’s “subjective personal opinions about pneumoconiosis which are

contrary to the congressional determinations implicit in the

Act’s provisions.” Midland Coal Co. v. Director, OWCP, 358
10 No. 04-2030

F.3d 486, 491-92 (7th Cir. 2004) (internal quotations

omitted). Dr. Selby’s medical opinion conflicts with

§ 718.201(c)’s recognition that pneumoconiosis can be latent

and progressive, and his statement that coal mine employment “helped preserve [Williams’s] lung function” and had

a “positive effect on his health” is contrary to the congressional findings and purpose central to the BLBA. See 30

U.S.C. § 901(a). Because these are appropriate reasons to

limit the weight assigned to Dr. Selby’s opinion, and because

the finding of pneumoconiosis is supported by substantial

evidence, we will not disturb the ALJ’s conclusion. The first

requirement for receiving benefits remains satisfied.

As to the causation element, if a claimant was employed

for ten years or more as a miner, there is a rebuttable presumption that his pneumoconiosis arose out of his coal mine

employment. 20 C.F.R. § 718.203(b). A coal mine construction worker is deemed a miner to the extent he “was exposed to coal mine dust as a result of employment in or

around a coal mine or coal preparation facility.” 20 C.F.R.

§ 725.202(b). R&S contends that the ALJ’s determination

that Williams was exposed to coal dust for more than ten

years, and thus entitled to the causation presumption, is

not supported by substantial evidence.

The ALJ found Williams to be a credible witness and

relied primarily on his testimony in calculating the length

of his employment as a miner. The ALJ determined that

prior to 1974, Williams worked for 31⁄4 years as a traditional

miner and that he worked in mine construction for R&S and

other companies from 1974 to 1984. The majority of his

work was performed at actively operating mines with coal

sifting and grinding occurring nearby. In addition, Williams

testified that in tearing out the old beams and trenches

from the tipples as part of the construction work, there was

“dust flying all the time” and his face was black with coal

dust by the end of the day. Although concrete dust also was
No. 04-2030 11

3 R&S contends that the documentary evidence establishes that

Williams worked for only 71⁄2 months, rather that a full year,

between 1983 and 1984. Even if true, this would not bring the

cumulative length of Williams’s mine employment below the 10

years sufficient to trigger the presumption.

present, Williams testified that he could tell the difference

between dust from coal and concrete. Based on these facts,

the ALJ found that Williams worked for 131⁄4 years in coal

mine employment.

R&S first attacks the ALJ’s finding by asserting that it

was unreasonable to credit Williams’s testimony because it

was contradicted by other evidence. It contends that

Williams was incorrect in stating that the “biggest majority” of his work assignments were at functioning mines. In

particular, R&S points to its own project 7515, where

Williams was employed for almost 17 months from 1977 to

1979. R&S cites a former employee’s testimony in a different case that R&S was building a new plant during this

time and that the employees were not exposed to coal dust.

The ALJ considered this evidence but found that it did not

outweigh Williams’s own credible testimony about his work

experience. R&S asks us to second guess the ALJ’s credibility

determination and reweigh the evidence but, as stated above,

we may not do so. Freeman United Coal Mining Co., 272

F.3d at 478.3

R&S also argues that the ALJ should have discounted

Williams’s testimony that he regularly was exposed to coal

dust because his claim that he was able to distinguish

between coal and concrete dust was incredible. Williams

explained that he could identify coal dust because it is of a

darker color than concrete dust and has a different taste in

the air. In addition, he recalled coal being run through the

plants while he was working, having a face black with coal
12 No. 04-2030

dust by the end of the day, and seeing “black stuff” when he

blew his nose. Although R&S criticizes Williams’s “taste

test” as an “unfounded scientific theory,” it points to no

authority for the proposition that only scientific evidence is

admissible to prove exposure to coal dust. It was appropriate for the ALJ to credit the firsthand observations of one

experienced in working with and around coal.

R&S has not succeeded in undermining the ALJ’s finding

that Williams worked as a miner for more than ten years

and therefore has not shown that the ALJ should not have

employed the presumption that Williams’s pneumoconiosis

arose out of coal mine employment. Because R&S also has

not rebutted the causation presumption, the second requirement for receiving benefits remains satisfied.

III. Conclusion

 Having held that Williams’s claim is not procedurally

barred and that the ALJ’s findings are supported by substantial evidence that a rational mind could accept as adequate, we AFFIRM the award of benefits.
No. 04-2030 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-14-05