               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0206n.06

                                       Case No. 13-3499
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Mar 18, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


LEMARCO, INC.; OLD REPUBLIC                         )
INSURANCE COMPANY,                                  )
                                                    )
       Petitioners,                                 )
                                                    )     ON PETITION FOR REVIEW OF
v.                                                  )     AN ORDER OF THE BENEFITS
                                                    )     REVIEW BOARD
NANCY HELTON, Widow of Wayne Helton;                )
DIRECTOR, OFFICE OF THE WORKERS’                    )
COMPENSATION PROGRAMS; UNITED                       )
STATES DEPARTMENT OF LABOR,                         )
                                                    )
       Respondents.                                 )


       BEFORE: KEITH, COOK, and KETHLEDGE, Circuit Judges.

       COOK, Circuit Judge. A coal company and its insurer (collectively “Lemarco”) petition

this court for review of an award of black-lung benefits to Nancy Helton, the widow of former

miner Wayne Helton. Discerning no legal error and finding that substantial evidence supports

the Administrative Law Judge’s (“ALJ”) conclusion, we deny the petition.

                                               I.

       Wayne worked as a coal miner for over thirteen years. After he died, Nancy filed for

survivor benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., as a dependent of a

miner who died from pneumoconiosis, commonly known as black-lung disease. The Department

of Labor (“DOL”) processed the claim, and the case proceeded to an ALJ for a hearing. To
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Lemarco, Inc. et al. v. Helton, et al.

prevail, Nancy needed to show that pneumoconiosis—defined as a chronic lung disease arising

out of coal mine employment, see 20 C.F.R. § 718.201(a)(2)—caused Wayne’s death. Wolf

Creek Collieries v. Dir., OWCP, 298 F.3d 511, 520 (6th Cir. 2002) (citing 20 C.F.R. § 718.205).

        In assessing the claim, the ALJ looked to the opinions of four doctors. Nancy submitted

opinions from Dr. William Clarke, an examining physician, and Dr. Rachel Eubank, Wayne’s

treating physician for the last three years of his life.     These doctors confirmed Wayne’s

pneumoconiosis on the basis that coal dust caused his chronic obstructive pulmonary disease

(“COPD”). Dr. Eubank also linked pneumoconiosis to Wayne’s death. Lemarco submitted

opinions from Dr. David Rosenberg and Dr. Matthew Vuskovich, who, after reviewing Wayne’s

medical records, each concluded that coal dust played no role in causing his COPD and that

pneumoconiosis did not hasten his death.

        The ALJ held that Nancy proved the required elements by a preponderance of the

evidence, according Lemarco’s doctors’ opinions “little weight” as flawed and conflicting with

the DOL’s positions as articulated in the preamble to the Black Lung Act’s regulations. The ALJ

credited Drs. Clarke and Eubank and determined that because Wayne suffered from COPD that

arose out of his coal mine employment, he had pneumoconiosis. From that conclusion, the ALJ

relied on Dr. Eubank’s report to find that pneumoconiosis hastened Wayne’s death because his

COPD led to cor pulmonale (heart strain resulting from a lung disease), which directly caused his

death from congestive heart failure.

        Lemarco appealed to the Benefits Review Board (“BRB”), which affirmed Nancy’s

award. After unsuccessfully moving for reconsideration before the BRB, Lemarco petitioned

this court for review, arguing that the record fails to establish that: (1) Wayne’s COPD arose out

of coal mine employment, and (2) pneumoconiosis caused Wayne’s death.



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                                                     II.

        Our review of the BRB’s decision “is limited to correcting errors of law and ensuring that

[it] adhered to the substantial evidence standard in its review of the ALJ’s factual findings.”

Cumberland River Coal Co. v. Banks, 690 F.3d 477, 482 (6th Cir. 2012) (internal quotation

marks omitted). “Substantial evidence is defined as relevant evidence that a reasonable mind

might accept as adequate to support a conclusion.” Arch of Kentucky, Inc. v. Dir., OWCP, 556

F.3d 472, 477 (6th Cir. 2009). “In deciding whether the substantial evidence requirement is

satisfied, we consider whether the [ALJ] adequately explained the reasons for crediting certain

testimony and evidence over other evidence in the record.” Wolf Creek Collieries, 298 F.3d at

519. We do not reweigh the evidence or substitute our judgment for that of the ALJ, and thus

reverse only if substantial evidence fails to support the decision below. Peabody Coal Co. v.

Groves, 277 F.3d 829, 833 (6th Cir. 2002).

        A. COPD Arising Out of Coal Mine Employment

        Lemarco first argues that the record fails to support the ALJ’s conclusion that Wayne’s

COPD “arose out of” his coal mine employment.              “[A] disease ‘arising out of coal mine

employment’ includes any chronic pulmonary disease . . . significantly related to, or substantially

aggravated by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201(b). In finding

Wayne’s COPD significantly related to or aggravated by coal dust, the ALJ first looked to Dr.

Clarke’s opinion “that the most likely cause” of Wayne’s disease was “the breathing of the

irritants of coal mine employment.” Dr. Clarke could “not find any other significant etiology for

[Wayne’s] disability.” (Id.) The ALJ rationally found that Dr. Clarke’s opinion deserved “some

weight” insofar as he “took histories, performed objective testing and examined” Wayne, and

then explained his report in light of a chest x-ray, pulmonary function test, and Wayne’s



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symptoms.     Dr. Eubank, Wayne’s treating physician for the last three years of his life,

corroborated Dr. Clarke’s opinion, finding that Wayne’s disease arose out of coal mine

employment.1     Reasonable minds might accept the reports of Drs. Clarke and Eubank as

adequate to support the ALJ’s conclusion that Wayne had pneumoconiosis.

        Lemarco also asserts that the ALJ treated the preamble to the DOL’s regulations as

binding in determining the credibility of the doctors. When assessing a doctor’s credibility, the

ALJ may consult the preamble as a statement of medical principles accepted by the DOL. A&E

Coal Co. v. Adams, 694 F.3d 798, 801-02 (6th Cir. 2012); see also Little David Coal Co. v. Dir.,

OWCP, 532 F. App’x 633, 636 (6th Cir. 2012) (“[I]t was permissible for the ALJ to turn to the

preamble for guidance when determining the relative weight to assign two conflicting medical

opinions.”). The ALJ acted reasonably within its discretion here, determining that Lemarco’s

doctors deserved less weight given the clash between aspects of their opinions and DOL

standards. Specifically, Dr. Rosenberg excluded coal dust as a cause of Wayne’s COPD due to a

lack of fibrosis, even though a claimant need not show fibrosis to establish pneumoconiosis. See

Cornett v. Benham Coal, Inc., 227 F.3d 569, 576 (6th Cir. 2000) (discounting a doctor’s opinion

that relied on a lack of fibrosis). And Dr. Vuskovich attributed Wayne’s COPD entirely to

cigarette smoking but “offered no explanation” for excluding coal dust as at least a “contributing

factor,” thus failing to address DOL’s position that coal dust and smoking may combine to cause

pneumoconiosis.2 See 65 Fed. Reg. 79,940 (Dec. 20, 2000).


        1
           Lemarco also appears to challenge the credibility of these opinions, but this
determination belongs to the ALJ as the factfinder and exceeds our scope of review. See Wolf
Creek Collieries, 298 F.3d at 522; Peabody Coal Co., 277 F.3d at 836; Moseley v. Peabody Coal
Co., 769 F.2d 357, 360 (6th Cir. 1985).
        2
          Lemarco also suggests that the Administrative Procedure Act required the ALJ to notify
the parties of any intent to use the preamble, but our precedent holds otherwise. A&E Coal Co.,
694 F.3d at 802.


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        Moreover, the ALJ gave additional convincing reasons (beyond the preamble) for

discounting the credibility of these doctors’ reports.    The ALJ noted that Dr. Vuskovich

determined that Wayne showed no signs of cor pulmonale, contravening the cardiovascular-

disease specialists who examined him. Though Lemarco maintains that Dr. Vuskovich made no

such determination, his report stated unequivocally that “there was no evidence of chronic cor

pulmonale.” Additionally, the ALJ discredited Dr. Rosenberg’s opinion that attributed Wayne’s

obstructive disease to his congestive heart failure while ignoring the uncontested evidence that

the obstructive disease predated the congestive heart failure. Lemarco questions the ALJ’s

characterization of Dr. Rosenberg’s opinion, but the record reflects that Dr. Rosenberg did

consider Wayne’s lung disease “consequent to congestive heart failure.”

        B. Death Due to Pneumoconiosis

        Lemarco further maintains that, because the record fails to show that pneumoconiosis

“substantially contribut[ed]” to Wayne’s death, Nancy cannot qualify for survivorship benefits.

But because “[p]neumoconiosis is a ‘substantially contributing cause’ of a miner’s death if it

hastens the miner’s death,” 20 C.F.R. § 718.205(b)(6), Nancy could satisfy this standard by

providing medical evidence describing “a specifically defined process” by which

pneumoconiosis “reduce[d] the miner’s life by an estimable time.” Eastover Mining Co. v.

Williams, 338 F.3d 501, 518 (6th Cir. 2003).

        As the ALJ rationally explained, Dr. Eubank’s opinion, supported by medical records,

provided sufficient evidence to establish that pneumoconiosis substantially contributed to

Wayne’s death, qualifying Nancy for survivor benefits. Dr. Eubank concluded that Wayne’s

COPD led to cor pulmonale, which directly caused his death from congestive heart failure. The




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ALJ then explained how Wayne’s treatment records supported Dr. Eubank’s conclusion—

cardiovascular-disease specialists diagnosed, and confirmed via a catheterization, congestive

heart failure and cor pulmonale. Moreover, Wayne’s death certificate listed the cause of death as

“congestive heart failure due to cor pulmonale as a consequence of [COPD].” Cf. Lango v. Dir.,

OWCP, 104 F.3d 573, 577 (4th Cir. 1997) (finding insufficient evidence of causation where the

death certificate and doctor’s statement failed to explain how pneumoconiosis hastened the

decedent’s death).

        After explaining why Dr. Eubank’s opinion deserved controlling weight, the ALJ

identified specific flaws in the reports of Lemarco’s doctors. Dr. Vuskovich denied that Wayne

had cor pulmonale near the end of his life, and Dr. Rosenberg offered no explanation for

Wayne’s hyponatremia (low sodium), while failing to address a theory that linked it to

congestive heart failure. Further, as the BRB explained, Lemarco’s doctors deserved diminished

weight because they denied that Wayne had pneumoconiosis, contrary to the ALJ’s earlier

finding. See Toler v. E. Associated Coal Co., 43 F.3d 109, 116 (4th Cir. 1995) (noting that if an

ALJ determines that a claimant suffers from pneumoconiosis, a doctor who denied the existence

of the disease will receive “little weight” in determining whether it caused the claimant’s total

impairment).

        Lemarco nevertheless posits that Dr. Eubank’s opinion is legally insufficient to establish

causation, pointing to Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003). There, a

testifying physician concluded that pneumoconiosis hastened the miner’s death because “lack of

oxygen and his retained carbon dioxide all played an effect on all parts of his body.” Id. at 517

(alteration omitted). We rejected this conclusion as legally inadequate because “[o]ne can

always claim . . . that if pneumoconiosis makes someone weaker, it makes them less resistant to



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other trauma.” Id.; see also Conley v. Nat’l Mines Corp., 595 F.3d 297, 303 (6th Cir. 2010)

(finding statement that “the healthier we are, the better we’re able to deal with serious problems”

too general to link pneumoconiosis to death).         Here, by contrast, Dr. Eubank specifically

diagnosed that pneumoconiosis led to cor pulmonale, which directly caused Wayne’s death from

congestive heart failure.      With this evidence, a reasonable person could conclude that

pneumoconiosis hastened Wayne’s death. See Sandy Fork Min. Inc. v. Delphia Beverly, 491 F.

App’x 662, 663 (6th Cir. 2012) (finding sufficient evidence where doctor testified “that

pneumoconiosis was the primary cause of the respiratory failure that killed [the decedent]”).


                                                     III.


        We thus DENY the petition for review.




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