Argued September 17, 2015.
On Petition for Review of an Order of the Benefits Review Board. (13-0531 BLA).
Mark Elliott Solomons, GREENBERG TRAURIG, LLP, Washington, D.C., for Petitioner.
Evan Barret Smith, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky; Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
Laura Metcoff Klaus, GREENBERG TRAURIG, LLP, Washington, D.C., for Petitioner.
M. Patricia Smith, Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs.
Before MOTZ, KING, and GREGORY, Circuit Judges. Judge King wrote the opinion, in which Judge Motz and Judge Gregory joined.
KING, Circuit Judge:
Eastern Associated Coal Corporation petitions for review of the 2014 decision of the Benefits Review Board (the " BRB" ) affirming an award of black lung benefits to Arvis R. Toler. Toler first applied for black lung benefits in 1993, but that claim was denied. In granting Toler's second claim for benefits, which was filed in 2008, an administrative law judge (" ALJ" ) invoked the rebuttable presumption that a coal miner with a fifteen-year work history of underground coal mining and a totally disabling pulmonary impairment is disabled due to pneumoconiosis (the " fifteen-year presumption" ). Eastern contends that, by applying the fifteen-year presumption to Toler's second claim, the ALJ contravened the Black Lung Benefits Act, 30 U.S.C. § § 901-945 (the " Act" ), and its regulations, as well as principles of finality and separation of powers. As explained below, we deny the petition for review and thereby affirm the BRB's decision.
Congress created the black lung benefits program in 1969 " to provide benefits . . . to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease." 30 U.S.C. § 901(a). Pneumoconiosis is defined as " a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." Id. § 902(b).
The Act empowers the Secretary of Labor (the " Secretary" ) to implement its provisions and promulgate appropriate standards for determining whether a coal miner is entitled to benefits thereunder. See 30 U.S.C. § § 902(c), 921(b), 936(a). Pursuant to the regulations, a miner must " establish" four " [c]onditions of entitlement" to obtain black lung benefits: (1) that he has pneumoconiosis; (2) that his pneumoconiosis arose out of coal mine employment; (3) that he is totally disabled; and (4) that pneumoconiosis contributes to his total disability. See 20 C.F.R. § 725.202(d); see also W.Va. CWP Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015).
The applicable regulations identify two types of pneumoconiosis: legal and clinical. 20 C.F.R. § 718.201(a). Clinical pneumoconiosis " consists of 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." Id. § 718.201(a)(1). Legal pneumoconiosis is defined more broadly to " include any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment." Id. § 718.201(a)(2). Clinical pneumoconiosis can be further classified as either " simple" or " complicated." See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). Complicated pneumoconiosis, sometimes referred to as " progressive massive fibrosis," see Lisa Lee Mines v. Dir., OWCP, 86 F.3d 1358, 1359-60 (4th Cir. 1996) (en banc), is characterized by the presence of " massive lesions" in the lungs that resolve on imaging as opacities at least one centimeter in diameter. See 30 U.S.C. § 921(c)(3).
Congress has occasionally " recalibrated" the applicable standards for entitlement to benefits under the Act. See W.Va. CWP Fund v. Stacy, 671 F.3d 378, 381 (4th Cir. 2011). In 1972, responding to mounting evidence that meritorious claims were being unjustifiably denied, Congress amended the Act to afford a presumption of total disability due to pneumoconiosis to a coal miner who could show that he had worked underground for at least fifteen years and was suffering from a totally disabling respiratory or pulmonary impairment. See Black Lung Benefits Act of 1972, Pub. L. No. 92-303, § 4(c), 86 Stat. 150, 154 (codified as amended at 30 U.S.C. § 921(c)(4)); Bozwich v. Mathews, 558 F.2d 475, 478-79 (8th Cir. 1977). The fifteen-year presumption could be rebutted " only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine." See 30 U.S.C. § 921(c)(4). In 1981, Congress repealed the fifteen-year presumption for claims filed on or after January 1, 1982. See Black Lung Benefits Revenue Act of 1981, § 202(b)(1), Pub. L. No. 97-119, 95 Stat. 1635, 1643 (repealed 2010); Bender, 782 F.3d at 134.
In March 2010, Congress restored the fifteen-year presumption -- after a twenty-nine-year hiatus -- by enacting § 1556(a) of the Patient Protection and Affordable Care Act (the " ACA" ), Pub. L. No. 111-148, 124 Stat. 119, 260 (2010) (codified at 30 U.S.C. § 921(c)(4)). Section 1556(c) of the ACA provided that the fifteen-year presumption " shall apply with respect to
claims filed . . . after January 1, 2005, that are pending on or after the date of enactment" of the ACA -- that is, March 23, 2010.
In 2013, the Secretary promulgated regulations implementing the revived fifteen-year presumption. See 20 C.F.R. § 718.305;
Bender, 782 F.3d at 134-35. Under those regulations, a party opposing a claim for benefits is entitled to rebut the fifteen-year presumption by establishing either (1) that the miner has neither legal pneumoconiosis nor clinical pneumoconiosis arising out of coal mine employment, or (2) " that no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis." 20 C.F.R. § 718.305(d)(1). In other words, to rebut the fifteen-year presumption, the opposing party is obliged to " 'rule out' any connection between [the] miner's pneumoconiosis and his disability."
See Bender, 782 F.3d at 135.
Under the regulations governing subsequent black lung benefits claims, a coal miner who has had an earlier claim for benefits denied must establish " that one of the applicable conditions of entitlement" specified in § 725.202(d) " has changed since the date upon which the order denying the prior claim became final." See 20 C.F.R. § 725.309(c). The regulations limit the " applicable conditions of entitlement" to " those conditions upon which the prior denial was based." Id. § 725.309(c)(3). If the applicable conditions of entitlement " relate to the miner's physical condition," then " the subsequent claim may be approved only if new evidence submitted in connection with the subsequent claim establishes at least one applicable condition of entitlement." Id. § 725.309(c)(4). If a claimant fails to show a change in an applicable condition of entitlement, the claim must be denied. Id. § 725.309(c). But, if the claimant shows a change in an applicable condition of entitlement, none of the findings from the prior adjudication are binding, and the new claim must be evaluated de novo, based on all of the evidence. Id. § 725.309(c)(5). Even if the claimant prevails on the subsequent claim, no benefits may be awarded for the period adjudicated by the prior claim. Id. § 725.309(c)(6).
Prior to 2000, § 725.309 required a coal miner whose earlier claim was denied to show a " material change in conditions" in order to pursue a subsequent claim.
See Lisa Lee Mines, 86 F.3d at 1360. During that period, the Director of the Office of Workers' Compensation Programs (the " Director" ), the BRB, and the courts of appeals rendered conflicting interpretations of the regulatory phrase " material change in conditions." To resolve that conflict and clarify the applicable standard, the Secretary initiated notice-and-comment rulemaking pursuant to the Administrative Procedure Act, 5 U.S.C. § 553. See Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 62 Fed.Reg. 3338-01, 3351-52 (proposed Jan. 22, 1997). At the conclusion of that rulemaking process, the Secretary promulgated a final rule (the " 2000 Final Rule" ) establishing the standard currently specified in § ...