                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-1839


WESTMORELAND COAL COMPANY, INCORPORATED,

                Petitioner,

           v.

JARRELL   D.   COCHRAN;   DIRECTOR,   OFFICE OF   WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
DEPARTMENT OF LABOR; BENEFITS REVIEW BOARD,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(10-0522-BLA)


Argued:   March 22, 2013                     Decided:   June 4, 2013


Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.


Petition for review denied by published opinion.    Judge Wynn
wrote the majority opinion, in which Judge Motz joined.  Chief
Judge Traxler wrote a dissenting opinion.


ARGUED: Thomas Michael Hancock, BOWLES RICE, LLP, Charleston,
West Virginia, for Petitioner.      Ryan Christopher Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia;
Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents. ON BRIEF: Paul E. Frampton,
BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner.
Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia, for Respondent Jarrell D. Cochran. M. Patricia Smith,
Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor,
Gary K. Stearman, Counsel for Appellate   Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington,   D.C., for Federal
Respondents.




                            2
WYNN, Circuit Judge:

        Westmoreland       Coal         Company,         Inc.            challenges         an

Administrative       Law   Judge’s      (“ALJ”)      decision,       affirmed        by    the

Benefits     Review    Board      (the    “Board”),          to     award     black       lung

benefits    to     Westmoreland’s        former      employee,       Jarrell     Cochran.

Because the award of benefits is supported by the record and

accords     with    applicable       law,       we    must        deny    Westmoreland’s

petition for review.



                                           I.

       The Black Lung Benefits Act (the “Act”), 30 U.S.C. § 901 et

seq.,     entitles     former      coal         miners       totally        disabled        by

pneumoconiosis—commonly called black lung disease—to benefits.

The Act’s implementing regulations define “pneumoconiosis” as “a

chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal mine

employment.”       20 C.F.R. § 718.201(a).

        “[P]neumoconiosis         can     take        two         forms”:      “clinical”

pneumoconiosis and “legal” pneumoconiosis.                         Harman Min. Co. v.

Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 308 (4th

Cir.     2012).       “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

                                            3
fibrotic reaction of the lung tissue to that deposition caused

by    dust    exposure     in     coal    mine       employment.”           20       C.F.R.    §

718.201(a)(1).          “Legal” pneumoconiosis is “significantly broader

than the medical definition,” Hobbs v. Clinchfield Coal Co., 45

F.3d 819, 821 (4th Cir. 1995), and includes “any chronic lung

disease or impairment . . . arising out of coal mine employment

. . . includ[ing] . . . any chronic restrictive or obstructive

pulmonary disease,” 20 C.F.R. § 718.201(a)(2).                            For purposes of

the    Act,        “arising     out      of        coal     mine    employment”          means

“significantly related to, or substantially aggravated by, dust

exposure in coal mine employment.”                   20 C.F.R. § 718.201(b).

      A claimant under the Act can establish pneumoconiosis with

the aid of a regulatory presumption of pneumoconiosis, id. §

718.305(a),        or   with    evidence       including       x-rays,      biopsies,         and

medical      opinions      from    physicians             “exercising      sound       medical

judgment,         notwithstanding     a       negative      X-ray,”       id.    §    718.202.

“[T]o determine whether a preponderance of all of the evidence

establishes the existence of pneumoconiosis,” ALJs must consider

all the relevant evidence together.                        Island Creek Coal Co. v.

Compton, 211 F.3d 203, 208 (4th Cir. 2000).



                                              II.

      For at least sixteen years between 1964 and 1995, Cochran

worked       in     West   Virginia       coal        mines,       most     recently          for

                                               4
Westmoreland.         At the mines, Cochran had various jobs—above and

below ground—working as a roof bolter, mechanic, shuttle car

operator, general laborer, and truck driver. Cochran also has a

history of smoking, approximately one pack of cigarettes per

week for twenty years.

       In February 2008, Cochran filed this claim for black lung

benefits. 1       The Department of Labor awarded benefits, payable by

Westmoreland, and Westmoreland requested a formal hearing before

an ALJ.

       In November 2009, the ALJ conducted a hearing on Cochran’s

claim.        And in May 2010, the ALJ issued a detailed decision

awarding Cochran         benefits.        The   ALJ     found    that    the   evidence

failed       to    establish      that     Cochran      suffers        from    clinical

pneumoconiosis but did establish that Cochran suffers from legal

pneumoconiosis.          Regarding       this   legal    pneumoconiosis        finding,

the ALJ chose to credit Dr. D. L. Rasmussen’s medical opinion

over the opinions of Dr. George L. Zaldivar and Dr. Kirk E.

Hippensteel,          explaining     that       the     latter     two        “primarily

concentrated on explaining why . . . the miner did not suffer

from       clinical    pneumoconiosis”—which          does   not    preclude      legal

pneumoconiosis—and         that    their    conclusions         were    “inconsistent


       1
       Cochran previously filed a claim for benefits in 1995;
that claim was denied.



                                            5
with the scientific evidence set forth” in the Preamble of the

Act’s implementing regulations. 2                   J.A. 379.        Further, the ALJ

found      that    Cochran    is    totally        disabled   as   a   result    of    his

pneumoconiosis, and thus awarded Cochran black lung benefits.

       Westmoreland appealed to the Board, and in June 2011, the

Board concluded that the ALJ permissibly used the Preamble to

evaluate        conflicting        medical     opinions       about    the     cause   of

Cochran’s disability and that substantial evidence supported the

ALJ’s ultimate finding of legal pneumoconiosis. 3                         Accordingly,

the     Board      affirmed   the     ALJ’s        decision    and     order    awarding

benefits.         Westmoreland now petitions this Court for review.



                                           III.

       In black lung benefits cases, this Court’s “review of the

Board’s order is limited.”                 Harman, 678 F.3d at 310 (internal

quotations omitted).           We review “whether substantial evidence”—

i.e., “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion[,]” Consolid. Edison Co. of

NY    v.   NLRB,     305   U.S.     197,     229    (1938)—“supports      the    factual

       2
       “The preamble . . . sets forth the medical and scientific
premises relied on by the Department” of Labor when it amended
the black lung benefits regulations to revise the definition of
legal pneumoconiosis. Harman, 678 F.3d at 314.
       3
       Westmoreland did not appeal the ALJ’s finding that Cochran
suffers from a totally disabling respiratory impairment.



                                              6
findings of the ALJ and whether the legal conclusions of the

[Board]      and       ALJ     are    rational       and   consistent       with      applicable

law,” Harman, 678 F.3d at 310 (internal quotations omitted).

“As long as substantial evidence supports an ALJ’s findings,

‘[w]e must sustain the ALJ’s decision, even if we disagree with

it.’”        Id. (quoting Smith v. Chater, 99 F.3d 635, 637–38 (4th

Cir. 1996)).            We are not at liberty to “substitute our judgment

for   that        of    the     ALJ”       but    rather   must    “defer       to     the    ALJ’s

evaluation         of     the        proper       weight   to     accord”       the    evidence,

including “conflicting medical opinions.”                           Id. (quotation marks

omitted).

      On      appeal,          Westmoreland         argues      that:     (1)    the    evidence

derived       from       Dr.    Rasmussen’s          testimony      was     insufficient         to

support the ALJ’s finding of legal pneumoconiosis; (2) the ALJ

failed       to    consider          all    the    relevant      evidence       by     improperly

discounting certain expert opinions; and (3) the ALJ erroneously

interpreted the Preamble to create an irrebuttable presumption

of pneumoconiosis.              We address each argument in turn.



                                                   IV.

                                                    A.

        We    turn       first        to     Westmoreland’s        contention          that     Dr.

Rasmussen’s            testimony       was       insufficient     to    support        the    ALJ’s

finding       of       legal    pneumoconiosis.              Specifically,        Westmoreland

                                                    7
compares       Dr.    Rasmussen’s       testimony         here    to   his    testimony       in

another black lung case, United States Steel Mining Co., Inc. v.

Director, Office of Workers’ Compensation Programs, 187 F.3d 384

(4th Cir. 1999) (“Jarrell”), in which this Court found that the

evidence in the record was insufficient to support an award of

benefits.

       In   Jarrell,      the   ALJ     had    awarded       survivor        benefits    to    a

claimant       “relying    solely”       on    Dr.    Rasmussen’s        testimony        that

“[i]t    is     possible    that       [the    coal       miner’s]     death    could     have

occurred as a consequence of his pneumonia superimposed upon his

chronic lung disease, including his occupational pneumoconiosis

and occupationally related emphysema” and “[i]t can be stated

that     [the    coal     miner’s]       occupational            pneumoconiosis         was    a

contributing factor to his death.”                        Id. at 387, 389 (emphasis

added).        This Court reversed, holding that the mere possibility

of causation was insufficient to support finding a nexus between

a claimant’s pneumoconiosis and his death.

       Here, by contrast, Dr. Rasmussen did not testify that coal

mine dust or cigarette smoke could be the cause of Cochran’s

respiratory impairment.            Nor did he testify that he did not know

or     could    not     tell    whether       coal        mine    dust   contributed          to

Cochran’s        respiratory       impairment.               Rather,      Dr.     Rasmussen

testified       that    both    coal    mine       dust    and   cigarette      smoke     were

causes, affirmatively asserting “Mr. Cochran’s coal mine dust

                                               8
exposure must be considered a significant contributing factor to

his what should be described as overlap syndrome . . . and that

he does have at least legal pneumoconiosis, i.e. COPD/emphysema

caused in significant part by coal mine dust exposure.”                J.A.

39.

      Dr. Rasmussen stated that the effects of coal mine dust and

cigarette smoke exposure “are independent, but additive[,] with

those smokers or non-smokers who are exposed to the greatest

amount of dust exhibit[ing] the greatest impairment.”             J.A. 38.

And as the ALJ correctly explained, the Act does not require

that coal mine dust exposure be the sole cause of a claimant’s

respiratory impairment.        See 20 C.F.R. § 718.201(b) (defining

“arising out of coal mine employment” as “significantly related

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

employment”); see also Consolidation Coal Co. v. Swiger, 98 F.

App’x 227, 238 (4th Cir. 2004) (affirming award of black lung

benefits   in   case   in   which   experts   “found   that   [claimants]’s

disability was caused in part by smoking and conceded that it

was difficult to differentiate between the effects caused by

smoking and the effects caused by coal mine dust”).

      Given Dr. Rasmussen’s expert opinion, the ALJ’s conclusion

that Cochran’s “COPD/emphysema [is] due in part to coal mine

dust exposure” was supported by substantial evidence.            J.A. 379.



                                      9
Thus, the Board did not err in affirming the ALJ’s finding of

legal pneumoconiosis.



                                          B.

       Westmoreland also argues that the ALJ erred by improperly

discounting the opinions of Dr. Zaldivar and Dr. Hippensteel in

favor of Dr. Rasmussen’s.            Specifically, in deciding to credit

Dr.     Rasmussen’s      opinion      over        Dr.      Zaldivar’s          and   Dr.

Hippensteel’s, the ALJ stated that

       much of the pertinent dispute between these medical
       experts centers on the etiology of the miner’s
       emphysema. In this particular regard, the opinions of
       Drs. Hippensteel and Zaldivar are inconsistent with
       the scientific evidence set forth in the [Act’s]
       Preamble . . . Thus, I give their opinions concerning
       the etiology of the miner’s emphysema less credit than
       Dr. Rasmussen’s.

J.A.    379.     Westmoreland        contends       that       the     ALJ   erred   by

misinterpreting the Preamble and discrediting the testimony of

Dr. Zaldivar and Dr. Hippensteel.               We disagree.

       The   Preamble    states,     in        pertinent       part,    that     medical

literature     “support[s]     the   theory       that   dust-related          emphysema

and smoke-induced emphysema occur through similar mechanisms . .

. .”    Regulations Implementing the Federal Coal Mine Health and

Safety Act of 1969, 65 Fed. Reg. 79920, 79943 (Dec. 20, 2000).

In Harman, a recent, very similar black lung case, this Court

made   plain   that     an   ALJ   may    consider       the    Act’s    Preamble     in


                                          10
assessing medical expert opinions.                   Harman, 678 F.3d at 314–15.

We   also     noted    that     “the   only    other     circuits    to   address        the

question have upheld an ALJ’s invocation of the same preamble.”

Id. at 315 (citing Helen Mining Co. v. Dir., O.W.C.P., 650 F.3d

248,    256     (3d    Cir.   2011)    (noting       that   “[t]he    ALJ    gave       less

weight” to the opinions of an employer’s expert because it was

“inconsistent with 20 C.F.R. § 718.202(a)(1)-(4) and with the

preamble to the regulations”); and Consolidation Coal Co. v.

Dir., O.W.C.P., 521 F.3d 723, 726 (7th Cir. 2008) (describing as

“sensible”       the    ALJ’s    decision      to    give   little    weight       to   the

opinion of employer’s expert because, in part, it conflicted

with the Preamble’s statements on the clinical significance of

coal dust-induced COPD)).

        Nevertheless,           Westmoreland         argues        that      the         ALJ

misinterpreted the Preamble to mean that smoke-induced and coal

mine      dust-induced           respiratory         impairments          always         are

indistinguishable.            According to Westmoreland, Dr. Zaldivar and

Dr. Hippensteel relied on advancements in science and medicine

since     the    implementation        of      the   Preamble      that     purportedly

facilitate       the    differentiation        of    coal   mine    dust-induced         and

smoke-induced          emphysema,      which       the   ALJ   supposedly      ignored

because of how he interpreted the Preamble.                          In so arguing,

Westmoreland overstates the ALJ’s reliance on the Preamble.



                                              11
       Indeed, the ALJ did not state that he would not consider

Dr.    Zaldivar’s          and     Dr.     Hippensteel’s       opinions,      nor    did     he

suggest that he was obligated to accept the scientific studies

in    the    Preamble         over     any     other   evidence.        Rather,      the    ALJ

explained that he chose to give Dr. Rasmussen’s opinion more

weight in part because it aligned with the scientific findings

in the Preamble.              And neither Dr. Zaldivar nor Dr. Hippensteel

testified          as    to      scientific       innovations        that    archaized      or

invalidated the science underlying the Preamble.                             In fact, only

Dr. Zaldivar cited literature that post-dates the Preamble—none

of which appears to even discuss the effects of coal mine dust

exposure on the lungs.

       Moreover, the ALJ did not rely solely on the Preamble for

giving       less       weight    to     Dr.     Zaldivar’s    and    Dr.    Hippensteel’s

opinions.           Rather,       the      ALJ   discredited     their      opinions       also

because both experts “primarily concentrated on explaining why

they     believed          the       miner       did   not     suffer       from     clinical

pneumoconiosis             and       why       clinical      pneumoconiosis         was     not

responsible for his symptoms or impairment” without addressing

legal pneumoconiosis.                  J.A. 379.          The evidence in the record

bears this out:               For example, when Dr. Hippensteel was asked

“why    do    you       think     that     Mr.    Cochran’s     problem      is    asthma    as

opposed       to    legal        pneumoconiosis,”         he   replied      “there    is     no

specific association between coal mine dust exposure and the

                                                  12
development or causation of asthma . . . . It has not been

associated with any other findings that would suggest that he

had developed clinical pneumoconiosis . . . .”                         J.A. 175.

       The ALJ agreed with Dr. Hippensteel and Dr. Zaldivar that

Cochran does not suffer from clinical pneumoconiosis.                                   But the

Preamble and regulations make clear that the absence of clinical

pneumoconiosis cannot be used to rule out legal pneumoconiosis.

Here, the ALJ found these experts’ opinions had less probative

value with regard to whether Cochran has legal pneumoconiosis,

the salient diagnosis for awarding benefits here.                             Thus, the ALJ

provided an alternate basis sufficient to uphold his weighing of

the evidence even if his use of the Preamble were error—although

we    conclude   that       it    was     not.        See   Harman,     678   F.3d      at   313

(“[E]ven if we were to agree . . . that the ALJ’s invocation of

the preamble in discrediting [an expert’s] opinion was improper

(which    we    do    not),       any    such    error      would    likely    be    harmless

because    the       ALJ    provided       []    independent        reasons    .    .    .   for

dismissing [the] opinion.”).

       Ultimately, as the ALJ explained, Cochran’s claim reduces

to a case of conflicting medical opinions, i.e., a “battle of

the experts.”              It is the role of the ALJ—not the appellate

court—to resolve that battle.                      E.g., Harman, 678 F.3d at 310.

The     ALJ’s        lengthy,           detailed       order        reveals     a       careful

consideration         of    the    experts’       qualifications,        their      opinions,

                                                 13
and the underlying medical science.                 The order also explains why

the    ALJ   chose    to     give   Dr.    Rasmussen’s      opinion       more    weight.

Nothing before us indicates that the ALJ “substitute[d] his own

medical opinion” for those of Dr. Zaldivar and Dr. Hippensteel,

Reply Br. at 6l, or otherwise committed reversible error.                             Nor

may we substitute our own judgment for the ALJ’s and reweigh the

evidence.        Accordingly,       we    conclude    that    the    Board       properly

affirmed     the     ALJ’s    finding     that    Cochran    suffers       from    legal

pneumoconiosis.



                                           C.

       Finally,      Westmoreland        contends    that    the    ALJ    erroneously

placed the burden of proof on Westmoreland to rule out coal mine

dust    as   a     cause     of   Cochran’s      respiratory       impairment.        In

particular, Westmoreland cites to a single sentence in the ALJ’s

order stating that “it is not established that coal dust did not

aggravate [Cochran’s] asthma.”                  J.A. 379.      Westmoreland takes

this sentence out of context.

       Indeed, reading the decision and order as a whole, it is

clear that this was not a statement of the ALJ’s view as to the

claimant’s burden or the sufficiency of the evidence.                            Rather,

this was simply part of the ALJ’s explanation for why he chose

not to credit the opinions of Dr. Hippensteel and Dr. Zaldivar

regarding the cause of Cochran’s condition.                        Elsewhere in the

                                           14
order, the ALJ clearly stated “[t]he claimant has the burden of

proving        the    existence     of    pneumoconiosis[,]”       J.A.    372,     and

recognized       that    the     claimant   bears    the    “burden   of   proof     in

establishing the existence of ‘legal’ pneumo-coniosis.”                           J.A.

379.     Accordingly, we hold that ALJ properly placed the burden

of     proof     on    Cochran     to    establish    the    existence     of     legal

pneumoconiosis.



                                            V.

       In sum, the ALJ’s decision and order to award benefits was

supported by substantial evidence, rational, and consistent with

applicable law.           The Board therefore did not err in affirming

the     ALJ’s        decision     and    order,     and     we   accordingly      deny

Westmoreland’s petition for review.

                                                     PETITION FOR REVIEW DENIED




                                            15
TRAXLER, Chief Judge, dissenting:

      With respect, I dissent.            In my opinion, the ALJ’s decision

to award benefits is not supported by substantial evidence, and

the ALJ erred in shifting the burden to Westmoreland to disprove

pneumoconiosis.      I also believe the ALJ erred in discrediting

the opinions of Drs. Zaldivar and Hippensteel based upon the

language in the Preamble.

                                          I.

      Highlighting     generic       findings            and    general       statistics

regarding the physiological effects of coal dust exposure and

cigarette   smoking,    and    based       upon      a    perceived      inability        to

distinguish between diseases and symptoms caused by them, Dr.

Rasmussen   summarily      concluded       that      “Cochran’s        coal   mine    dust

exposure must be considered a significant contributing factor

to” his pulmonary condition.              J.A. 39.        The conclusion contains

the   requisite   words,    but     the    underlying          basis    rests    in   mere

speculation   and    possibilities.             See      J.A.    39    (“While       it   is

theoretically possible that all of Mr. Cochran’s impairment and

lung damage is the consequence of cigarette smoking, it is also

theoretically     possible     it    is        all    due      to     coal    mine    dust

exposure.”); id. (Cochran’s condition “could be caused by both

asthma and toxic effects of smoking and coal mine dust.”); id.

(“We have no basis for excluding either” as a cause.).



                                          16
       Apparently       accepting       the    view       that    neither      theoretical

cause could be ruled out as a contributing one, the ALJ then

compounded the error by imposing upon the employer the burden of

proving that coal dust exposure was not a contributing cause,

finding that:

       it [was] not established that coal dust did not
       aggravate[]   [Cochran’s]   asthma.    I   note,  in
       particular, Dr. Hippensteel’s admission on cross-
       examination that coal dust could aggravate one’s
       asthma.   Dr. Zaldivar explained that coal mine dust
       “can cause physiological changes that are eventually
       indistinguishable from emphysema.”

J.A. 379 (emphasis added).

       This     is   not    a   valid   basis       for   awarding      benefits.        See

United States Steel Mining Co. v. Dir., OWCP, 187 F.3d 384, 390

(4th     Cir.    1999)      (“Jarrell”)         (rejecting         as   insufficient      a

similarly speculative opinion offered by Dr. Rasmussen - that it

was “‘possible that death could have occurred as a consequence

of     [the      miner’s]       pneumonia           superimposed        upon     ...     his

occupational         pneumoconiosis’          and    therefore      ‘[i]t      c[ould]    be

stated    that       [the   miner’s]     occupational            pneumoconiosis     was    a

contributing factor to his death’” (emphasis omitted)); Peabody

Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997) (A “miner’s

pneumoconiosis must be more than merely a speculative cause of

his    disability”      before     an   ALJ     can    award      benefits).       In    the

absence of x-rays, a biopsy, or a valid regulatory presumption,

the burden rests squarely upon the miner to prove by a reasoned

                                              17
medical opinion that his coal mine dust exposure significantly

contributed         to      or        substantially           aggravated          his   chronic

obstructive pulmonary disease.                      Dr. Rasmussen’s opinion fails to

rise    to    the   requisite          standard        and    the    ALJ,   in     consequence,

improperly shifted the burden to the employer to disprove that

Cochran      suffered       from       legal     pneumoconiosis.                Accordingly,    I

would reverse the award of benefits.

                                                 II.

       Even    if    I     were      to    consider      Dr.    Rasmussen’s         opinion    as

sufficiently reliable and probative on the issue, I believe the

ALJ    additionally         erred         in   discrediting         the   opinions      of   Drs.

Hippensteel         and     Zaldivar           based    upon        the   language      in    the

Preamble.

       The Preamble intended to make clear that obstructive lung

diseases      (such       as    chronic        obstructive          pulmonary      disease    and

emphysema)          can        fall        within       the     legal           definition     of

pneumoconiosis, but only if the claimant can satisfy his burden

of     proving      that       the     pulmonary        condition         was     significantly

related to or substantially aggravated by coal dust exposure:

       The Department attempts to clarify that not all
       obstructive lung disease is pneumoconiosis.         It
       remains   the  claimant’s   burden  of   persuasion to
       demonstrate that his obstructive lung disease arose
       out of his coal mine employment and therefore falls
       within the statutory definition of pneumoconiosis.




                                                 18
65 Fed. Reg. 79920-01, 79923; see also 65 Fed. Reg. 79920-01,

79938       (“The    revised     definition       will   eliminate       the      need     for

litigation of this issue on a claim-by-claim basis, and render

invalid as inconsistent with the regulations medical opinions

which       categorically        exclude    obstructive        lung    disorders         from

occupationally-related pathologies.                   The Department reiterates,

however, that the revised definition does not alter the former

regulations’         requirement     that    each    miner     bear     the       burden    of

proving that his obstructive lung disease did in fact arise out

of    his     coal   mine    employment,      and    not     from     another      source.”

(emphasis added) (internal citation omitted)).

       Consistent with the conclusion that coal dust exposure can

cause obstructive lung disease, the Preamble also notes medical

studies that “support the theory that dust-induced emphysema and

smoke-induced emphysema occur through similar mechanisms.” id.

at    79943     (emphasis        added).          However,     while        the    Preamble

recognizes that the mechanisms by which smoke and coal mine dust

cause lung destruction are similar, it does not state that the

mechanisms or “the signs and symptoms [are] identical”, J.A. 39,

as Dr. Rasmussen opined, J.A. 39, or that the causes of an

obstructive pulmonary disease (smoking and/or coal dust exposure

and/or asthma) cannot be determined or ruled out by a qualified

physician.          If that were the case, no physician could ever rule

out     any     degree      of    coal     dust     exposure     as     a     significant

                                            19
contributing cause of an obstructive pulmonary disease, and the

Preamble     would    effectively       become     an    irrebuttable       presumption

that coal dust exposure, if it is proven, must be considered to

have     significantly      caused      or       substantially        aggravated      the

pulmonary condition because no one could rule it out.                               Taking

the language of the Preamble at face value, it is clear to me

that   the   opinions      of   Drs.    Zaldivar         and     Hippensteel    are   not

inconsistent with the Preamble’s findings.

       This case is also distinguishable from Harman, wherein we

upheld the decision of an ALJ discrediting a physician’s opinion

as inconsistent with the Preamble.                   The physician in that case

“based    [his]     conclusion,    in     part,     on    his     opinion    that    legal

pneumoconiosis       ‘cannot’     cause      obstructive         pulmonary     disease.”

Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 311 (4th Cir.

2012) (emphasis added).            We also upheld the ALJ’s decision to

discredit a second physician’s opinion because he “improperly

believed     that    pneumoconiosis         cannot       cause    disability     in    the

absence of a positive x-ray,” another categorical rejection of

the DOL’s conclusions in the Preamble.                    Id. at 311-12 (emphasis

added) (internal quotation marks omitted).                       The opinions of Drs.

Zaldivar     and     Hippensteel,      in     contrast,        are   not    categorical

rejections     of    the   premise     that      chronic       obstructive     pulmonary

disease can be caused or aggravated by coal dust exposure, or



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that pneumoconiosis cannot exist in the absence of a positive x-

ray finding.

       Finally, the ALJ’s conclusion that the opinions of Drs.

Zaldivar     and       Hippensteel      should      be    discredited       because     they

focused more on clinical than legal pneumoconiosis also finds no

support in the record.                When the evaluations were conducted by

Drs.    Zaldivar        and    Hippensteel,         Dr.   Rasmussen        had   diagnosed

clinical pneumoconiosis based upon his positive x-ray reading.

It     is   not    surprising,          therefore,        that    Drs.     Zaldivar     and

Hippensteel might likewise be focused more on addressing the

diagnosis of clinical pneumoconiosis made by their colleague at

the time.         Nevertheless, both physicians addressed the then-

alternative claim of legal pneumoconiosis, exhibited (as the ALJ

acknowledged) a correct understanding of its distinction from

clinical     pneumoconiosis,            and    explained        their    rationales     for

rejecting both forms of pneumoconiosis.

        Accordingly,          because    I    believe     the    ALJ    discredited      the

opinions of Drs. Zaldivar and Hippensteel on invalid bases, I

would,      at     a    minimum,        vacate      and     remand       the     case    for

reconsideration         in    light     of    all   of    the    medical    evidence     and

pursuant to a proper interpretation of the Preamble.




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