NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 23-1481

_____________

KEYSTONE COAL MINING CORPORATION;

CONSOL ENERGY, INCORPORATED,

Petitioners

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR; MICHAEL W. CHONCEK

_____________

On Petition for Review of an 

Order of the Benefits Review Board

(Agency Case No. 22-00153 BLA)

Administrative Law Judge: Drew A. Swank

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Argued April 3, 2024

Before: RESTREPO, MATEY and McKEE, Circuit Judges.

(Filed: April 24, 2024)

_____________

Christopher L. Wildfire [ARGUED]

Toni Williams

Sutter Williams

850 Ridge Avenue

Suite 300

Pittsburgh, PA 15212

Counsel for Petitioners

Haley L. Carter [ARGUED]

Timothy C. MacDonnell [ARGUED]

Washington & Lee University School of Law
2

Room 106

1 E Denny Circle

Lexington, VA 24450

Counsel for Respondent

_____________

OPINION*

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MATEY, Circuit Judge.

Keystone Coal Mining Corporation and Consol Energy, Incorporated (together, 

“Keystone”) petition for review of an order from the United States Department of Labor 

Benefits Review Board (“Board”) affirming the decision of an Administrative Law Judge 

(“ALJ”) to award disability benefits to Michael Choncek. Because the determination is 

supported by substantial evidence and complies with applicable law, we will deny the 

petition for review.

1

I.

Michael Choncek worked as an underground coal miner for over 20 years. In 

2018, he filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C § 901 et 

seq., for coal workers’ pneumoconiosis (“CWP”), or black lung disease. Responding, the 

District Director of the Office of Workers’ Compensation Programs issued a proposed 

decision and order awarding benefits. Keystone requested a formal hearing, and an ALJ

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

does not constitute binding precedent.

1 We thank the Washington and Lee University School of Law’s Advanced 

Administrative Litigation Clinic, appearing on behalf of the Respondent, for its able and 

zealous advocacy.
3

confirmed the award. Following a remand by the Board,2 the ALJ again found that 

Choncek was totally disabled and again confirmed the benefits award. The Board

affirmed the ALJ’s decision, and Keystone now brings this petition for review.

3

II.

To qualify for CWP benefits, a claimant must prove that he has pneumoconiosis 

from coal mine employment causing a totally disabling respiratory impairment. See 20 

C.F.R. §§ 718.202–204. The claimant can invoke a rebuttable presumption of total

disability caused by pneumoconiosis if he worked in underground coal mines for at least 

fifteen years, submitted a compliant chest X-ray that was negative for complicated 

pneumoconiosis, and “other evidence demonstrates the existence of a totally disabling 

respiratory or pulmonary impairment . . . .” App. 24; 30 U.S.C. § 921(c)(4). A totally 

disabling respiratory or pulmonary impairment prevents a claimant from performing his 

“usual coal mine work” or comparable employment. 20 C.F.R. § 718.204(b)(1).

A.

A claimant may prove total disability by submitting evidence that his pulmonary 

function tests or arterial blood-gas tests yield qualifying values under the Department of 

2 The Board held the ALJ erred by “not adequately address[ing] the specific 

rationales for the opinions of” Keystone’s physician experts on legal pneumoconiosis and 

“explain[ing] the weight he accorded them,” App. 57, and in finding Keystone failed to 

establish that no part of Choncek’s disability was caused by pneumoconiosis.

3 We have jurisdiction over a petition for review of a final order of the Board 

under 33 U.S.C. § 921(c). We review the Board’s decisions “for errors of law and to 

assure that it has adhered to its own standard of review.” BethEnergy Mines Inc. v. Dir., 

Off. of Workers’ Comp. Programs, 39 F.3d 458, 462–63 (3d Cir. 1994). The ALJ’s 

findings of fact are “conclusive if supported by substantial evidence in the record 

considered as a whole.” 33 U.S.C. § 921(b)(3), as incorporated by 30 U.S.C. § 932(a).
4

Labor’s regulations, or that he has been diagnosed with pneumoconiosis and cor 

pulmonale (pulmonary heart disease) with right-sided congestive heart failure. See 20 

C.F.R. § 718.204(b)(2)(i–iii). Even absent such evidence, however, total disability can 

also be found “if a physician exercising reasoned medical judgment, based on medically 

acceptable clinical and laboratory diagnostic techniques, concludes that a miner’s 

respiratory or pulmonary condition” qualified the worker as totally disabled. 20 C.F.R. 

§ 718.204(b)(2)(iv).

Here, the ALJ found Choncek totally disabled based on the opinions of three of 

the five medical experts offered and concluded that Choncek would be unable to perform

his usual work as a coal miner or something comparable. Keystone disagrees with the 

“reasoned medical judgment” of these physicians on whom the ALJ relied. 20 C.F.R. 

§ 718.204(b)(2)(iv). But we decline to reweigh this evidence. See Rutherford v. Barnhart, 

399 F.3d 546, 552 (3d Cir. 2005) (“In the process of reviewing the record for substantial 

evidence, we may not weigh the evidence or substitute our own conclusions for those of 

the fact-finder.”) (cleaned up).

B.

Nor do we see error in the ALJ’s conclusion that “after considering all of the 

evidence together,” App. 33, Keystone could not show Choncek had neither clinical nor 

legal pneumoconiosis.4 Again, Keystone contests the ALJ’s evidentiary analysis, but 

4 Clinical pneumoconiosis is narrow, consisting “of those diseases recognized by 

the medical community as pneumoconioses . . . .” 20 C.F.R. § 718.201(a)(1). Legal 

pneumoconiosis is a broader term that “includes any chronic lung disease or impairment 
5 

disagreement does not make the ALJ’s decision irrational or unsupported. And Keystone 

did not demonstrate that “no part of [Choncek’s] respiratory or pulmonary total disability 

was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii). Three of the medical 

experts consulted by the ALJ attributed at least part of Choncek’s total pulmonary 

disability to pneumoconiosis, while Keystone’s two medical experts “did not offer an 

explanation” as to whether “pneumoconiosis caused [Choncek’s] total respiratory 

disability.” App. 12 n.10. The ALJ’s decision to pick which evidence to credit, and which 

to decline, is a discretionary function we will not disturb. See Rutherford, 399 F.3d at 

552. 

* * * 

For these reasons, we will deny the petition for review. 

and its sequelae arising out of coal mine employment,” 20 C.F.R. § 718.201(a)(2), or that 

is “significantly related to, or substantially aggravated by, dust exposure in coal mine 

employment,” 20 C.F.R. § 718.201(b).