                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1777


ISLAND CREEK COAL COMPANY,

                Petitioner,

          v.

CARLES DYKES; DIRECTOR, OFFICE OF WORKERS’         COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(11-0558-BLA)


Submitted:   May 11, 2015                    Decided:   May 21, 2015


Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.


Petition denied by unpublished per curiam opinion.


George E. Roeder, III, Kathy L. Snyder, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Appellant. Joseph E. Wolfe, Ryan
C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia;    M. Patricia Smith, Solicitor of Labor, Rae Ellen
James, Associate Solicitor, Sean G. Bajkowski, Helen H. Cox,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Island Creek Coal Company (employer) seeks review of the

Benefits Review Board’s (Board) decision and order affirming the

administrative law judge’s (ALJ) award of black lung benefits to

Carles Dykes pursuant to 30 U.S.C. §§ 901-945 (2012).                                  This case

was    held    in   abeyance       pending       our    decisions          in    Hobet       Mining

LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), and W. Va. CWP Fund

v. Bender, 782 F.3d 129 (4th Cir. 2015).

       The ALJ found that Dykes worked for more than fifteen years

in    underground      coal      mine    employment         and     that    he       was    totally

disabled       from     a    respiratory             standpoint,        and      invoked         the

statutory presumption that Dykes was totally disabled due to

pneumoconiosis.             30     U.S.C.       § 921(c)(4)          (2012).               The   ALJ

considered employer’s rebuttal evidence and found that it failed

to rebut the existence of legal pneumoconiosis and failed to

rule    out     pneumoconiosis          as   a       cause     of    Dykes’          disability.

Because the presumption applied and was not rebutted, the ALJ

awarded       benefits.          The    Board       affirmed,       and    employer          timely

petitioned for review.

       Employer does not assert that the ALJ erred in invoking the

§ 921(c)(4) presumption.                 Instead, employer first argues that

the    ALJ    and     BRB   impermissibly            limited      its      rebuttal         of   the

statutory presumption to the two methods in the statute that

specifically        govern       rebuttal       by    the    Secretary          of    Labor,      in

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contravention of Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

(1976).     Employer also argues that the ALJ erred in applying the

“rule out” standard to its attempt to rebut the presumption.

See 20 C.F.R. § 718.305(d) (2014).

      In    Bender,      this    court    recently     considered    and    rejected

arguments identical to employer’s.                   The Bender court concluded

“that Section 921(c)(4) is silent regarding the standard that an

operator must meet to rebut the presumption.”                    Bender, 782 F.3d

at   138.       Thus,    the    Department      of   Labor   (DOL)   possessed     the

authority to promulgate regulations establishing the applicable

standard.       Id.     The court rejected the argument that the Supreme

Court’s     decision       in     Usery     usurped      the    DOL’s     regulatory

authority.        Id. at 138-40.          Further, the court held “that the

rule-out        standard    set    forth        in   Section    718.305(d)    is     a

reasonable exercise of the agency’s authority under Chevron,[ *]

and lawfully applies to coal mine operators as well as to the

Secretary.”        Id. at 143.       Accordingly, coal mine operators may

rebut     the    15-year    presumption         of   total   disability    “only   by

proving that ‘no part of the miner’s respiratory or pulmonary

total disability was caused by pneumoconiosis.’”                        Id. (quoting

20   C.F.R.      § 718.305(d)).          Employer’s     arguments    regarding     the




      *
          Chevron v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).



                                            3
available methods          of    rebuttal      and      the   rule   out    standard      are

therefore without merit.

     Employer also argues that the ALJ erred in considering the

physicians’      opinions        and   therefore        her    finding     that    employer

failed to rebut the presumption is not supported by substantial

evidence.        The ALJ found that the x-ray evidence rebutted the

existence of clinical pneumoconiosis.                         The ALJ summarized the

opinions of the four doctors who examined Dykes, and concluded

that the evidence supported a finding that Dykes suffered from

bronchial asthma.          Considering the medical opinions offered by

employer    in    rebuttal       of    the   presumption,        the     ALJ     found   that

Doctors Fino and Castle failed to explain how coal mine dust

exposure    could     be        excluded     as     a    causative       factor     in    the

development of asthma.                 The ALJ thus concluded that employer

failed to rebut the existence of legal pneumoconiosis.

     The    ALJ     also    found       that       employer     failed      to    rule   out

pneumoconiosis as a cause of Dykes’ disability.                            The ALJ noted

that Doctors Agarwal and Baker found that Dykes’ respiratory

impairment was caused by exposure to coal dust.                            Addressing the

opinions of employer’s physicians, the ALJ found that “Dr. Fino

conceded that a portion of the Claimant’s impairment was likely

attributable to his coal mine employment.                        Although Dr. Castle

disagreed, he did not provide support for his conclusion that he



                                               4
could    rule    out    the    contribution           by    coal    mine    dust     to    the

Claimant’s disability.”             (J.A. 44).

       This    court    reviews      decisions        of    the    Board    to     determine

whether the Board properly found the ALJ’s decision supported by

substantial evidence and in accordance with law.                            Consolidation

Coal Co. v. Held, 314 F.3d 184, 186 (4th Cir. 2002).                               In making

this determination, the court conducts an independent review of

the record to decide whether the ALJ’s findings are supported by

substantial evidence.              Dehue Coal Co. v. Ballard, 65 F.3d 1189,

1193    (4th    Cir.    1995).       Substantial           evidence   is    more     than    a

scintilla, but only such evidence that a reasonable mind could

accept    as    adequate      to    support       a   conclusion.          Lane    v.    Union

Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997).                                 Subject to

the    substantial      evidence      requirement,           the    ALJ    has     the    sole

authority       to     make    credibility            determinations        and      resolve

inconsistencies         or    conflicts       in      the    evidence.            Grizzle v.

Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993).                                “As

long as substantial evidence supports an ALJ’s findings, we must

sustain    the       ALJ’s    decision,   even         if    we    disagree       with    it.”

Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs,

678 F.3d 305, 310 (4th Cir. 2012) (internal quotation marks and

brackets omitted).

       Employer argues that the ALJ erred in applying selected

passages of the Preamble to the 2000 amendments to the black

                                              5
lung benefits regulations to discredit Dr. Fino’s opinion.                               The

ALJ   noted   that    Dr.      Fino    opined     that   Dykes     had   only     minimal

respiratory obstruction that was not disabling when he left the

mines in 1994.       The ALJ then stated:

      To the extent that Dr. Fino may be suggesting that,
      because Claimant was not disabled after leaving the
      coal mines, his present disability is unrelated to
      coal mine employment, his opinion is at odds with the
      Department of Labor’s findings that pneumoconiosis is
      a progressive disease that can worsen after cessation
      of coal mine dust exposure.    20 C.F.R. § 718.201(c).
      Indeed, in the Preamble to the amended regulations,
      the Department of Labor specifically rejected Dr.
      Fino’s   position    that   pneumoconiosis    was  not
      progressive.   See Preamble, Regulations Implementing
      the Federal Coal Mine Health and Safety Act of 1969,
      65 Fed. Reg. 79920, 79969-79971 (Dec. 20, 2000).

(J.A. 41).      Employer argues that the ALJ erred because this

statement     implies      her      belief     that     pneumoconiosis       is    always

progressive,    and       it   is   the     ALJ’s     statement,    rather      than     Dr.

Fino’s, that is contrary to the Preamble.

      Employer’s     argument         is   without     merit.      The   ALJ      did    not

explicitly discredit Dr. Fino’s opinion based on this conflict

with the Preamble.             Moreover, in the Preamble, the Department

clearly rejected Dr. Fino’s opinion that pneumoconiosis is not

latent or progressive, and cited medical studies supporting its

position.        Although           the     Preamble      does     not    state         that

pneumoconiosis       is   always      progressive,       the     Department     retained

its   regulatory      provisions           specifying    that     pneumoconiosis          is

latent and progressive.               In his deposition, Dr. Fino explained

                                              6
that he believed pneumoconiosis can be progressive, but only in

a small portion of miners, “maybe 10 to 15 percent at most, but

it clearly can be progressive.”                       (J.A. 177).          The ALJ properly

evaluated Dr. Fino’s opinion.

      Employer      finally          argues      that       the    ALJ     applied        a     more

demanding    standard          of    review      to     the    opinions         of   employer’s

physicians       than      she           applied       to      claimant’s            physicians,

particularly       regarding         the    existence         of   legal    pneumoconiosis.

We   disagree.        Once         the    § 921(c)(4)         presumption        was      invoked,

employer bore       the    burden          of   establishing         that    Dykes        did    not

suffer from pneumoconiosis or that his disability was not caused

by pneumoconiosis.             Thus, the ALJ’s focus on the opinions of

Doctors Fino and Castle was appropriate.                           Indeed, she relied on

their opinions to find that the evidence supported a diagnosis

of bronchial asthma.                She properly found, however, that their

opinions     fell    short          of    establishing         that      Dykes’      coal       dust

exposure     was    not        a     contributing           factor    in     his        disabling

respiratory      impairment          because     both       doctors      acknowledged           that

Dykes could suffer from pneumoconiosis and asthma.

      Our    review       of       the     record     discloses          that     the      Board’s

decision    is     based       upon       substantial        evidence       and      is   without

reversible error.          Accordingly, we deny the petition for review.

We   dispense      with    oral          argument     because      the     facts      and     legal



                                                7
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                         PETITION DENIED




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