                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-1302


CONSOLIDATION COAL COMPANY,

                Petitioner,

           v.

EVERETT   D.   GALUSKY;   DIRECTOR,   OFFICE    OF   WORKERSʹ
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(14-0187-BLA; 11-5535-BLA)


Argued:   March 22, 2016                     Decided:   May 10, 2016


Before SHEDD, THACKER, and HARRIS, Circuit Judges.


Petition for review denied by unpublished opinion. Judge Harris
wrote the opinion, in which Judge Shedd and Judge Thacker
joined.


ARGUED:     William   Steele  Mattingly,   JACKSON  KELLY  PLLC,
Lexington, Kentucky, for Petitioner.   Heath M. Long, PAWLOWSKI,
BILONICK & LONG, Ebensburg, Pennsylvania, for Respondent.     ON
BRIEF:   Kevin M. McGuire, Amy Jo Holley, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner.


Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:

       Consolidation Coal Company (“CONSOL”) petitions for review

of a decision awarding black lung benefits to Everett Galusky.

An    administrative           law    judge     (“ALJ”)       found       that      Galusky     was

entitled to rely on the “fifteen-year presumption,” a statutory

provision that presumes eligibility for benefits if an applicant

has worked in coal mines for at least fifteen years and suffers

from a totally disabling respiratory or pulmonary impairment.

The     ALJ   then       held     that      CONSOL      had     failed         to     rebut    that

presumption         by    showing      either         that     Galusky         does      not   have

pneumoconiosis — commonly known as black lung disease — or that

his   pneumoconiosis            did   not      cause   his     total       disability.          The

Benefits Review Board affirmed the ALJ’s decision.

       On appeal, CONSOL argues primarily that the ALJ used the

wrong    standard         in    considering          whether       it    had    disproved       the

presence      of    pneumoconiosis,            improperly       requiring           it   to    “rule

out” any connection between Galusky’s coal dust exposure and

Galusky’s condition.             We think this reflects a misreading of the

record.            Because      the      ALJ     did    not        err     by       applying     an

inappropriate            standard      of      proof,        and        because       substantial

evidence supports the ALJ’s decision, we deny CONSOL’s petition

for review.




                                                 2
                                              I.

                                              A.

      The Black Lung Benefits Act, 30 U.S.C. §§ 901–44, awards

benefits      to    “coal     miners    who        are    totally      disabled    due   to

pneumoconiosis,”           popularly    known       as    black   lung    disease.       30

U.S.C. § 901(a).            Under the Act, a miner can prove entitlement

to benefits by showing through medical evidence that “he has

pneumoconiosis arising from coal mine employment, and that this

disease is a substantially contributing cause of [a] totally

disabling respiratory or pulmonary impairment.”                           Hobet Mining,

LLC   v.   Epling,     783     F.3d    498,       501    (4th   Cir.    2015)     (footnote

omitted). 1

      For certain miners, Congress has made it easier to show an

entitlement to benefits.              Id.     A claimant with at least fifteen

years of underground coal employment and a “totally disabling

respiratory or pulmonary impairment,” 30 U.S.C. § 921(c)(4), may

invoke     the     Act’s    “fifteen-year          presumption,”       under    which    “we

presume     both     prongs     of     the     showing      required      for     benefits

eligibility: that the claimant has pneumoconiosis arising from

coal mine employment, and that this disease is a substantially


      1The statutory definition of “pneumoconiosis” encompasses
not only the diseases clinically known as pneumoconiosis, but
also “legal pneumoconiosis,” defined as “any chronic lung
disease or impairment” “arising out of coal mine employment.”
20 C.F.R. § 718.201(a)(2); see 30 U.S.C. § 902(b).


                                              3
contributing cause of his disability.”                      See Epling, 783 F.3d at

502.

       That presumption may be rebutted in two ways.                          First, a

coal mine operator may establish that the claimant does not have

pneumoconiosis “arising out of coal mine employment.”                        20 C.F.R.

§ 718.305(d)(1)(i);        see     Epling,      783    F.3d    at   502.     Under    the

governing regulations, a lung disease or impairment “arises out

of coal mine employment” if it is “significantly related to, or

substantially aggravated by,” coal dust exposure.                            20 C.F.R.

§ 718.201(b).        So    to    satisfy    this       first   rebuttal     method,   an

operator must prove the converse: that a miner’s impairment is

not “significantly related to, or substantially aggravated by,”

the fifteen years or more spent in coal mines.

       Second, an employer may show that “no part of the miner’s

respiratory     or    pulmonary       total           disability     was    caused    by

pneumoconiosis.”            20     C.F.R.       § 718.305(d)(1)(ii)          (emphasis

added).    Known as the “rule-out” standard, this burden is a

heavy   one.    It    is    not    enough       for    an   operator   to    show    that

pneumoconiosis is a “minor or even an incidental cause” of a

miner’s disability.             W. Va. CWP Fund v. Bender, 782 F.3d 129,

143 (4th Cir. 2015).             Instead, an operator must show that the

miner’s disability is caused exclusively by something other than

pneumoconiosis, “rul[ing] out any connection between a miner’s



                                            4
pneumoconiosis and his disability.”                      Id. at 135 (emphasis added)

(internal quotation marks omitted).

                                              B.

     Galusky       was    a    coal     miner      for    at    least      26     years,    last

working in coal mines in 1995 for CONSOL. 2                         After unsuccessfully

applying for black lung benefits about a decade before, Galusky

reapplied     in    2010,       and    this     time      the       Department       of     Labor

approved     his    claim.            CONSOL       opposed       Galusky’s          claim    and

requested a hearing in front of an ALJ.

     In the proceedings before the ALJ, the parties presented

evidence     that        included       medical         tests       and    studies,         x-ray

readings, and, most critically, the reports and opinions of four

physicians: Doctors Andrzej J. Jaworski; Joseph J. Renn, III;

Christopher    Begley;         and    Stephen      G.    Basheda.           While    all     four

agreed     that     Galusky           suffered      from        a     totally        disabling

impairment, only Jaworski diagnosed Galusky with pneumoconiosis.

Renn,    Begley,     and        Basheda       instead         diagnosed         Galusky     with

conditions        like        pulmonary       emphysema,            chronic       obstructive

pulmonary     disease,          and     asthma,         and     all       three     attributed

Galusky’s impairment either entirely or primarily to Galusky’s




     2 As Galusky’s last coal employer, CONSOL is liable for
benefits potentially owed to Galusky, a fact that it does not
contest. See generally 20 C.F.R. §§ 725.490, 725.495.


                                               5
decades-long        smoking       habit,          rather      than     his       coal        mine

employment.

       After     conducting       a    hearing          and   reviewing         the    medical

evidence, the ALJ awarded benefits.                      Because Galusky had worked

for more than fifteen years in coal mines and suffered from a

totally disabling respiratory impairment, the ALJ invoked the

fifteen-year presumption.                CONSOL does not dispute that this

presumption applies, and so we presume, as did the ALJ, both

that     Galusky     has        pneumoconiosis           arising      from       coal        mine

employment and that his total disability is substantially caused

by his pneumoconiosis.

       The ALJ went on to find that based on the medical evidence

and     physician     opinions,         CONSOL          had   failed       to    rebut        the

presumption.       According to the ALJ, CONSOL could not satisfy the

first rebuttal method: showing that Galusky did not suffer from

legal    pneumoconiosis,          or     a    lung        impairment       “significantly

related to, or substantially aggravated by, dust exposure in

coal      mine      employment.”                  J.A.        297     (defining             legal

pneumoconiosis);          see    id.     at       296     n.23      (same).           The     ALJ

acknowledged       that    doctors      Begley,         Basheda,     and    Renn      had     not

diagnosed Galusky with pneumoconiosis.                        But neither Begley nor

Basheda, the ALJ noted, had been able to “rule out” coal dust as

a   contributing     cause       to    Galusky’s        impairment.          See      J.A.    290

(quoting Begley’s deposition testimony that he “could not ‘rule

                                              6
out’     exposure         to    coal     dust   as      a    contributor”);             J.A.   301

(discussing Begley’s testimony); J.A. 303 (discussing Basheda’s

testimony).           Moreover,          though      both         Basheda     and       Renn   had

diagnosed Galusky with asthma, the ALJ observed, neither had

considered the possibility that coal dust exposure could have

aggravated       that          asthma,    which      might         bring     it     within     the

definition       of        legal       pneumoconiosis.                  Finally,        the     ALJ

discredited the opinions of Basheda and Renn on the ground that

the    doctors    had          made    statements       questioning         the     progressive

nature of pneumoconiosis that were inconsistent with the Act and

the preamble to its regulations, and, in Basheda’s case, for

suggesting without record support that most of Galusky’s mining

work occurred only after certain coal dust controls had been

implemented.

       The ALJ then determined that CONSOL could not satisfy the

second      rebuttal             method:        demonstrating               that        Galusky’s

pneumoconiosis            did    not     contribute         to    his    total      disability.

Citing     longstanding               Fourth       Circuit         precedent,           the    ALJ

discredited the disability-causation opinions of the experts who

had    failed    to       diagnose       pneumoconiosis,            contrary       to    his   own

determination         —     Basheda,       Renn,     and      Begley.         The       ALJ    also

reiterated his concerns about statements by Basheda and Renn

deemed    inconsistent            with    the     Act       and    the     preamble       to   its

regulations.        Having accorded little weight to these physicians’

                                                7
opinions, the ALJ determined that CONSOL had failed to rebut the

presumption      that    Galusky’s       pneumoconiosis            caused   his    total

disability, and accordingly held that Galusky was entitled to

benefits.

      On appeal, the Benefits Review Board affirmed the ALJ’s

decision.     As to the first presumption — that Galusky suffers

from pneumoconiosis — the Board rejected CONSOL’s argument that

the ALJ provided invalid reasons for discounting the views of

doctors Renn and Basheda.             According to the Board, the ALJ acted

within his discretion in concluding that both doctors failed to

explain why Galusky’s many years of coal dust exposure were not

an aggravating cause of his asthma.                    The Board also endorsed the

ALJ’s rationale for discrediting the views of doctors Renn and

Basheda as to the existence of pneumoconiosis.                         Both doctors,

the Board determined, had made statements inconsistent with the

principle that pneumoconiosis is a progressive and irreversible

disease,    as   reflected       in    the       Act   and   the    preamble      to   its

regulations; and Basheda’s claim that Galusky’s work occurred

primarily   after       the    imposition        of    dust-control     measures       was

“factually unsupported by any evidence in the record,” J.A. 321.

Finally,    as    to     the    second       presumption       —     that    Galusky’s

pneumoconiosis is a substantial cause of his total disability —

the Board held that the ALJ properly analyzed the question under

the   rule-out      standard,         and        appropriately       discounted        the

                                             8
disability-causation views of doctors who had failed to diagnose

pneumoconiosis in the first instance.             CONSOL timely petitioned

this court for review.



                                   II.

      In black lung cases, our review is highly deferential.                 We

ask   only   “whether    substantial       evidence   supports    the   factual

findings of the ALJ and whether the legal conclusions of the

Board and ALJ are rational and consistent with applicable law.”

Bender, 782 F.3d at 144 (internal quotation marks omitted).                  We

are mindful that “it is for the ALJ, as the trier of fact, to

make factual and credibility determinations, and we therefore

defer to the ALJ’s evaluation of the proper weight to accord

conflicting    medical    opinions.”          Epling,   783      F.3d   at   504

(citation and internal quotation marks omitted).

                                   A.

      As described above, an operator may rebut the fifteen-year

presumption in one of two ways: (1) by showing that a claimant

does not have pneumoconiosis arising out of coal mine employment

(“pneumoconiosis rebuttal”), or (2) by showing that even if the

claimant does have pneumoconiosis, that disease did not cause

his total disability (“disability-causation rebuttal”).                 See 20

C.F.R. § 718.305(d)(1).        Under the first rebuttal prong, the

standard of proof requires an operator to show that a miner’s

                                       9
respiratory or pulmonary condition is not “significantly related

to, or substantially aggravated by, dust exposure in coal mine

employment.”    Id. § 718.201.            But under the second, the standard

of proof is higher:           Here, the rule-out standard requires an

operator   to   show   that    “no    part”       of    a    miner’s   disability   is

caused by pneumoconiosis.            Id. § 718.305(d)(1)(ii); see Bender,

782 F.3d at 141 (describing application of rule-out standard to

second rebuttal prong).

     Before this court, CONSOL’s primary argument is that the

ALJ committed legal error by applying the rule-out standard to

its efforts to disprove pneumoconiosis, extending the rule-out

standard from the second rebuttal prong to the first. 3                      We read

the ALJ’s opinion differently.              The regulatory framework here is

technical and a bit cumbersome, and the ALJ’s opinion is long

and complex.     Nevertheless, it is clear that the ALJ correctly

distinguished the governing standards of proof, applying each to

the appropriate inquiry.         In the section of his opinion devoted

to   pneumoconiosis      rebuttal,          the        ALJ    required    CONSOL    to

demonstrate     the    absence       of    legal        pneumoconiosis,     properly


     3 Before the Board, CONSOL’s argument was that the ALJ
improperly applied the strict rule-out standard to the second
rebuttal prong, and that it should have been permitted to rebut
disability causation under a more lenient standard.   Our court
recently affirmed the regulatory rule-out standard in West
Virginia CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015), and
CONSOL no longer presses that argument.


                                          10
defined    as   a     lung    impairment    “significantly          related      to,   or

substantially        aggravated     by,     dust     exposure       in     coal    mine

employment.”        J.A. 297.      In analyzing disability causation, on

the other hand, the ALJ expressly invoked the rule-out standard,

explaining      that    an     operator     “must     ‘rule    out’        any    causal

relationship        between   a   miner’s       disability    and    his    coal   mine

employment” under the second rebuttal prong.                   J.A. 308 (emphasis

added).    All of that is indisputably correct.

     To suggest that the ALJ nevertheless applied the rule-out

standard to pneumoconiosis rebuttal, improperly requiring CONSOL

to disprove even the slightest connection between Galusky’s coal

mine employment and his lung impairment, CONSOL points to two

references to the phrase “rule out” in the ALJ’s discussion of

the existence of pneumoconiosis.                 In the first, the ALJ notes

that Begley “could not rule out a coal dust etiology,” or cause,

for Galusky’s lung impairment, J.A. 301, and in the second, that

Basheda “could not 100% rule out a coal dust contribution” to

Galusky’s lung condition, J.A. 303.                 In context, however, it is

apparent that the ALJ is not referring to the so-called rule-out

standard   of    20    C.F.R.     § 718.305(d)(1)(ii),        but     instead      using

“rule out” in its everyday sense — precisely as it was used by

the two doctors in their depositions, in the very passages from

which the ALJ is quoting when he in turn uses the phrase in his

opinion.     See J.A. 201 (Begley testifying that “we can’t rule

                                           11
out   that        [Galusky’s]      exposure      to   coal      dust        could      have

contributed” to his lung disease); J.A. 242 (Basheda testifying

that “you can never a hundred percent rule out” a different

causal factor, “but [Galusky’s] medical condition and findings

are [very] typical of tobacco use”).                     The ALJ’s allusions to

“ruling out,” in other words, come directly from the doctors’

testimony as to the causes of Galusky’s lung disease, and not

from the regulatory rule-out standard.

      Nor    do    we     detect   any    substantive      error       in    the      ALJ’s

consideration of the doctors’ testimony on this point.                                It is

indeed the case that under the first rebuttal prong, the burden

is on the operator to “rule out,” colloquially speaking, the

possibility that coal mine employment is “significantly related

to”   or    has     “substantially        aggravated”      a     lung       disease      or

impairment.         20    C.F.R.   §   718.201(b).        And    while      Begley      and

Basheda opined that Galusky’s smoking habit was the “majority,”

J.A. 246 (Basheda), or “primar[y],” J.A. 202 (Begley), cause of

Galusky’s    lung        condition,    neither    could    say     that      coal      dust

exposure might not also play a contributing or aggravating part,

J.A. 241 (Basheda), J.A. 201 (Begley).                “It was within the ALJ’s

prerogative”        to     “determine     the     persuasiveness            of      [these

experts’]    testimony,”        Bender,    782    F.3d    at    144,    and      to    take

account of the doctors’ uncertainty on this point in determining

whether CONSOL had met its burden of demonstrating that coal

                                          12
mine employment was not significantly related to and did not

substantially aggravate Galusky’s lung disease.

                                                    B.

      In the alternative, CONSOL argues that the ALJ and Board

erred    as   a      factual      matter       in       assessing        the    strength    of    its

rebuttal      showing.         According            to    CONSOL,        substantial       evidence

does not support the determination that it failed to meet its

burden under either of the rebuttal prongs.                               Again, we disagree.

      As to the first rebuttal prong — disproving pneumoconiosis

— CONSOL argues that the opinions of doctors Renn and Basheda

are   sufficient        to   show       that    Galusky’s           lung       condition    is   not

significantly         related      to     or    substantially             aggravated       by    coal

mine employment, pursuant to 20 C.F.R. § 718.201(b).                                      Both Renn

and Basheda diagnosed Galusky with a tobacco-induced condition —

for     Renn,        pulmonary      emphysema              and      a     severe     obstructive

ventilatory defect; and for Basheda, severe chronic obstructive

pulmonary         disease      (“COPD”)             —     with      an     asthma     component.

According       to    CONSOL,      by     tying          Galusky’s        lung    impairment      to

emphysema and COPD arising from tobacco use rather than coal

dust, this expert testimony disproves coal mine employment as a

significant contributor to Galusky’s impairment.

      The     problem,       as    both    the          ALJ   and       Board    noted,    is    that

neither expert explained why the asthma component of Galusky’s

condition was not aggravated by exposure to coal dust.                                       CONSOL

                                                    13
does not dispute that whether coal mine employment substantially

exacerbated      Galusky’s       asthma    is     relevant       to   its    burden      on

rebuttal.     Rather, it argues that the ALJ misread the record,

and that its experts in fact did assess whether Galusky’s asthma

was aggravated by coal dust, and explained why it was not.                            But

as   noted    above,        it    is    for     the      ALJ     to   determine       the

persuasiveness of expert testimony, see Bender, 782 F.3d at 144,

and we cannot say that the ALJ erred in concluding that Renn and

Basheda failed to explain whether coal dust exposure could have

aggravated Galusky’s asthma.               CONSOL directs us to deposition

passages in which an expert distinguishes Galusky’s asthma from

pneumoconiosis or from emphysema caused by coal dust, see J.A.

124–25,   127;     diagnoses      asthma,       J.A.     231;    or   states    without

discussion that Galusky’s conditions are caused by tobacco use

rather than coal dust exposure, J.A. 139.                       Nowhere, however, is

there   anything     that    an   ALJ     would    be    obliged      to    treat   as    a

reasoned and persuasive explanation of why Galusky’s prolonged

exposure to coal dust did not “substantially aggravate[]” the

asthma component of his impairment.

     We have explained already that in analyzing pneumoconiosis

rebuttal, the ALJ was entitled to consider that experts Begley

and Basheda were unable to state definitively that coal mine

employment,      while   not      in    their     view    the     primary     cause      of

Galusky’s     lung    condition,          did     not    play     some      significant

                                           14
contributing role.             And for the reasons given above, the ALJ

also was entitled to discount the testimony of Basheda and Renn

because they failed to provide a reasoned explanation of whether

coal       dust    exposure    might    have     aggravated         Galusky’s     asthma.

Finally, CONSOL does not challenge on appeal the ALJ’s decision,

affirmed by the Board, to discredit Basheda’s opinion because

there is no factual support for Basheda’s claim that Galusky

performed most of his mining work after dust-control measures

were imposed.         In light of all of those factors, and under our

deferential         standard      of   review,     we    find       that   substantial

evidence      supports      the    determination        of    the    ALJ   that    CONSOL

failed to rebut the fifteen-year presumption by disproving the

existence of pneumoconiosis. 4

       As to the second rebuttal prong — showing that “no part” of

Galusky’s         total   disability    was    caused        by   his   pneumoconiosis

under 20 C.F.R. § 718.305(d)(1)(ii) — CONSOL offers the same

arguments         discussed    above,    contending          that    the   ALJ     simply

incorporated by reference his flawed analysis of its experts’


       4
       Accordingly, we need not decide whether the ALJ properly
discredited doctors Basheda and Renn on the additional ground
that they had made statements questioning the progressive nature
of pneumoconiosis that were inconsistent with the Act and the
preamble to its regulations.    With or without that alternative
reason for discounting the opinions of Basheda and Renn, there
is   substantial   record   evidence   to   support  the   ALJ’s
determination that CONSOL did not meet its burden under the
first rebuttal prong.


                                          15
testimony regarding the existence of pneumoconiosis.                                    We have

addressed those arguments already.                       And in any event, the ALJ’s

analysis under this prong rests critically on a different point:

Under well-established Fourth Circuit law, an expert’s opinion

on whether a claimant’s disability is caused by pneumoconiosis

“can carry little weight” if that expert does not believe the

claimant even has pneumoconiosis, contrary to a determination by

the ALJ.       See J.A. 311 (quoting Toler v. E. Associated Coal Co.,

43 F.3d 109, 116 (4th Cir. 1995)).                              In fact, “opinions that

erroneously fail to diagnose pneumoconiosis may not be credited

at     all,    unless       an    ALJ     is     able     to     identify       specific       and

persuasive reasons for concluding that the doctor’s judgment on

the    question      of     disability         causation        does    not    rest    upon    the

predicate      misdiagnosis.”              Epling,        783    F.3d    at     505    (internal

quotation      marks        and   alterations            omitted).            Here,    there    is

nothing to suggest that the view of Renn, Basheda, and Begley

that     pneumoconiosis           did     not     cause        Galusky’s       disability       is

independent       of        their        view     that      Galusky        does       not     have

pneumoconiosis         at    all,    and        CONSOL    does     not    argue       otherwise.

Accordingly, the ALJ was well within his discretion in assigning

little    or    no     weight       to    these       experts’     views        on    disability

causation, and the ALJ’s determination that CONSOL failed to

meet its rebuttal burden is supported by substantial evidence.



                                                 16
                           III.

    For the foregoing reasons, we deny CONSOL’s petition for

review.

                                   PETITION FOR REVIEW DENIED




                            17
