                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0252n.06

                                        Case No. 17-4216

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
CONSOL OF KENTUCKY, INC.; CONSOL                     )                     May 23, 2018
                                                                       DEBORAH S. HUNT, Clerk
ENERGY, INC.,                                        )
                                                     )
        Petitioners,                                 )
                                                     )      ON PETITION FOR REVIEW OF
v.                                                   )      AN ORDER OF THE BENEFITS
                                                     )      REVIEW     BOARD,  UNITED
STEVE R. ESKUT; DIRECTOR, OFFICE                     )      STATES    DEPARTMENT   OF
OF WORKERS’ COMPENSATION                             )      LABOR
PROGRAMS; UNITED STATES                              )
DEPARTMENT OF LABOR,                                 )
                                                     )
        Respondents.                                 )

        BEFORE: SILER, COOK, and WHITE, Circuit Judges.

        COOK, Circuit Judge. Steve Eskut worked in coal mines for several decades until 1998

when his health no longer allowed it. An Administrative Law Judge granted his claim for federal

black lung benefits, which the Benefits Review Board affirmed. Eskut’s former employer,

Consol of Kentucky, Inc., petitions for review. For the following reasons, we DENY the

petition.

                                                I.

     A. Legal Framework

        The Black Lung Benefits Act, 30 U.S.C. § 901 et seq., entitles an individual to benefits if

he is (1) a miner (2) who suffers from pneumoconiosis (3) arising out of his coal mine
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employment and (4) causing (5) his total disability. 20 C.F.R. § 725.202(d); Big Branch Res.,

Inc. v. Ogle, 737 F.3d 1063, 1069 (6th Cir. 2013).         Better known as black lung disease,

pneumoconiosis is a “chronic dust disease of the lung and its sequelae, including respiratory and

pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). If the

miner worked for at least fifteen years in a coal mine and “demonstrates the existence of a totally

disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that

such miner is totally disabled due to pneumoconiosis.” Id. § 921(c)(4).1 “[T]he rest of the

elements outlined in 20 C.F.R. § 725.202(d) are presumed and the burden shifts to the employer

to rebut them.” Ogle, 737 F.3d at 1069.

       “The employer may rebut the fifteen-year presumption by establishing that: (1) the miner

has neither clinical nor legal pneumoconiosis, or (2) the miner’s respiratory or pulmonary

impairment did not arise out of, or in connection with, employment in a coal mine.” Duncan,

2018 WL 2050669, at *1 (quotation marks and citations omitted); 20 C.F.R. § 718.305(d)(1).

Clinical pneumoconiosis “consists of those diseases recognized by the medical community as

pneumoconioses,” 20 C.F.R. § 718.201(a)(1), whereas legal pneumoconiosis is “any chronic

lung disease or impairment and its sequelae arising out of coal mine employment,” id.

§ 718.201(a)(2). “[A] disease ‘arising out of coal mine employment’ includes 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(b).




       1
         The statutory presumption and corresponding regulations have evolved over the years.
See Zurich Am. Ins. Grp. v. Duncan, --- F.3d ---, 2018 WL 2050669, at *1 n.1 (6th Cir. May 3,
2018) (explaining their enactment, repeal, and reenactment).


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   B. Procedural Background

       Eskut filed his claim in 2012. He requested a hearing after the Office of Workers’

Compensation Programs proposed denying benefits, prompting the claim’s referral to an ALJ.

The ALJ found that Eskut had worked as a miner for at least twenty-four years, and that Eskut’s

pulmonary function tests indicated his total disability. With Eskut therefore entitled to the

rebuttable presumption that his total disability is due to pneumoconiosis, the ALJ considered

whether Consol rebutted the presumption. But Consol fell short, according to the ALJ, because

it failed to establish that Eskut did not have legal pneumoconiosis or that Eskut’s total disability

did not arise out of his coal mining work. So the ALJ awarded Eskut benefits.

       On appeal by Consol, the Board affirmed the award. This petition for review followed.

                                                II.

   A. Standard of Review

       We review de novo the Board’s legal conclusions. Ogle, 737 F.3d at 1068. We will

leave in place “the Board’s decision unless the Board has committed legal error or exceeded its

scope of review.” Id. On factual issues, we look to see “whether the ALJ applied the applicable

law correctly to reach a conclusion supported by substantial evidence.” Id.           “‘Substantial

evidence’ means ‘such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.

1985) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “In deciding whether the

substantial evidence standard is satisfied, we consider whether the ALJ adequately explained the

reasons for crediting certain testimony and documentary evidence over other testimony and

documentary evidence.” Cent. Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs,

762 F.3d 483, 488–89 (6th Cir. 2014) (quoting Greene v. King James Coal Mining, Inc.,

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575 F.3d 628, 634 (6th Cir. 2009)). “We do not reweigh the evidence or substitute our judgment

for that of the ALJ.” Ogle, 737 F.3d at 1069 (quoting Tenn. Consol. Coal Co. v. Kirk, 264 F.3d

602, 606 (6th Cir. 2001)).

   B. Discussion

       Consol’s argument on appeal is threefold. First, Consol claims that the ALJ held it to the

wrong standard to rebut the presumption of legal pneumoconiosis. Second, the company urges

that the ALJ “provided invalid reasons to discredit” the opinions of the doctors (Dr. Allan

Goldstein and Dr. Kirk Hippensteel) who examined Eskut at Consol’s request. Third, Consol

maintains the ALJ “failed to correctly consider” the diagnosis of Dr. Phillip O’Reilly, who

evaluated Eskut on behalf of the Department of Labor.

       1. Rebuttal Standard

       The ALJ found that neither of Consol’s doctors “adequately explained why [Eskut’s]

legal pneumoconiosis did not contribute, even minimally, to his respiratory disability. In other

words, their opinions did not ‘rule out’ legal pneumoconiosis as a contributing factor in [Eskut’s]

respiratory impairment.” The ALJ concluded that Consol “failed to rebut the presumption at

§ 718.305, because it did not establish, by a preponderance of the evidence, that ‘no part’ of

[Eskut’s] impairment was due to pneumoconiosis.”

       Consol argues that this amounts to an “incorrect, heightened” standard to rebut legal

pneumoconiosis—that the “no-part” standard applies to rebutting disability causation but not to

rebutting the presence of legal pneumoconiosis. According to Consol, the ALJ instead should

have “determine[d] if the medical evidence demonstrated [that] a chronic pulmonary disease or

respiratory or pulmonary impairment was significantly related to or substantially aggravated by

dust exposure in coal mine employment.”

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       The company misses the mark. In fact, the ALJ recited the standard in almost the exact

terms proposed by Consol. She explained:

       Thus, in order to rebut the presumption that the Claimant has pneumoconiosis, the
       Employer must establish the absence of any respiratory or pulmonary impairment
       arising out of coal mine employment, including chronic pulmonary disease
       resulting from respiratory or pulmonary impairment significantly related to or
       significantly aggravated by dust exposure in coal mine employment.

This explication corresponds with the regulations’ definition of “legal pneumoconiosis” and their

instruction regarding when a disease “aris[es] out of coal mine employment.”           20 C.F.R.

§ 718.201(a)(2), (b).

       True, the “no-part” standard applies specifically to the second rebuttal method (disability

causation).   See id. § 718.305(d)(1)(ii) (“[T]he party opposing entitlement may rebut the

presumption by . . . [e]stablishing that no part of the miner’s respiratory or pulmonary total

disability was caused by pneumoconiosis . . . .”). But we do not conclude that the ALJ held

Consol to the wrong standard.      For one, as their regulatory definitions demonstrate, legal

pneumoconiosis and disability causation are “closely related.” Island Creek Ky. Mining v.

Ramage, 737 F.3d 1050, 1062 (6th Cir. 2013); see also Brandywine Explosives & Supply v.

Kennard, 790 F.3d 657, 668 (6th Cir. 2015) (“[T]he only remaining question was what caused

the additional respiratory impairment—an issue resolved by the earlier finding of legal

pneumoconiosis. There was no need for the ALJ to analyze the [doctors’] opinions a second

time.”). Plus, as the Board put it, the ALJ “permissibly determined that the reasons that undercut

the probative value of the opinions of Drs. Goldstein and Hippensteel on the issue of legal

pneumoconiosis also undercut the probative value of their opinions that pneumoconiosis did not

play any role in claimant’s totally disabling respiratory or pulmonary impairment.” Indeed,



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because the issues overlap, the ALJ signaled that she would “address most of the rebuttal

evidence at the same time.”

       At bottom, rebutting the presumption of legal pneumoconiosis “requires ‘that the

evidence affirmatively proved the absence of pneumoconiosis.’” Kennard, 790 F.3d at 668

(quoting Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 480 n.5 (6th Cir. 2011)). Here, the

ALJ found that “the medical evidence does not establish that [Eskut] does not have legal

pneumoconiosis.” We discern no reversible error on this issue.

       2. ALJ’s Assessments of Dr. Goldstein and Dr. Hippensteel

       Consol insists that the ALJ’s reasons for discrediting Dr. Goldstein’s and Dr.

Hippensteel’s opinions that Eskut did not suffer legal pneumoconiosis were “irrational,

unsupported by substantial evidence, and contrary to law.” We disagree.

           a. Dr. Goldstein

       The ALJ reviewed Dr. Goldstein’s opinion and deposition testimony, summarizing both

thoroughly. Dr. Goldstein opined that Eskut’s ailments showed no evidence of pneumoconiosis.

In particular, he concluded that coal dust did not cause Eskut’s COPD because Eskut’s

pulmonary function testing showed reversibility. According to Dr. Goldstein, Eskut’s COPD

would not be reversible if it related to pneumoconiosis, and so Eskut’s decades of smoking

cigarettes must have caused his lung impairment.

       But the ALJ discredited Dr. Goldstein for failing to “address what may have caused the

residual impairment that remained after bronchodilators were administered.” She continued:

       For example, in the pulmonary function test Dr. Goldstein administered on June
       20, 2013, the Claimant’s FEV1 value rose, with bronchodilators, from 46% of
       predicted (1.53 liters), but only to 57% of predicted (1.89 liters). I would expect a
       Board-certified pulmonary physician, cognizant that a patient has a significant
       history of coal mine employment, as well as a significant past history of smoking,

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       would recognize the import of a significant residual irreversible impairment.
       Such an impairment, as Dr. Goldstein himself recognized may be indicative of
       pneumoconiosis.

Consol stresses this as an example of the ALJ inappropriately playing doctor. We, however,

perceive this as the ALJ properly explaining a reason for discrediting Dr. Goldstein’s opinion.

See, e.g., Kennard, 790 F.3d at 666 (citing favorably the ALJ’s discounting a doctor’s opinion of

no pneumoconiosis because doctor overlooked several respiratory tests that “showed that

Kennard’s disease was not responsive to bronchodilators”). And the several lines Consol cites

from Dr. Goldstein’s deposition do not convince us that the doctor actually addressed, with any

sufficiency, Eskut’s residual post-bronchodilator impairment.

       The ALJ also discounted Dr. Goldstein’s opinion that cigarette smoking caused Eskut’s

chronic bronchitis. As she explained, “the fact that cigarette smoking is the ‘most common’

cause of chronic bronchitis and emphysema is not sufficient to establish the cause of chronic

bronchitis in” Eskut’s case because of his significant residual post-bronchodilator impairment

and twenty-plus years working in the mines. Again, Consol implores us to conclude that the ALJ

overlooked Dr. Goldstein’s discussion of these issues. But the company misapprehends our role.

“Rather than review whether the ALJ has meticulously discussed every piece of evidence that

may be missing, we review merely whether [s]he has reviewed all relevant evidence, applied the

proper legal standard, and reached a conclusion based on substantial evidence.” Ogle, 737 F.3d

at 1073. With respect to Dr. Goldstein’s opinions, we conclude that the ALJ has done all three.

           b. Dr. Hippensteel

       The ALJ reviewed Dr. Hippensteel’s opinion and deposition as thoroughly as she did Dr.

Goldstein’s. Dr. Hippensteel diagnosed an obstructive respiratory impairment consistent with



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asthmatic bronchitis, concluding that the condition was not caused by coal dust exposure because

it developed after Eskut left the mines.

       The ALJ downplayed Dr. Hippensteel’s opinion because he “did not explain why, in

[Eskut’s] case, he ruled out his history of coal dust exposure as a factor in the development of his

asthmatic bronchitis.” Consol avers otherwise, noting that Dr. Hippensteel’s reasons for this

conclusion included that the presence of tree-in-bud opacities on the CT scan did not reveal

pneumoconiosis and that the medical literature does not associate asthma with coal mine dust.

But the ALJ’s conclusion that Dr. Hippensteel’s opinion was not sufficiently reasoned “is a

matter of credibility, which we cannot revisit.” Ogle, 737 F.3d at 1073 (citation omitted).

Reweighing the evidence would also be inappropriate. See id.

       Further discrediting Dr. Hippensteel’s opinion that Eskut did not have legal

pneumoconiosis, the ALJ expounded:

       Dr. Hippensteel also relied on the fact that the Claimant’s chronic bronchitis
       developed long after he left the coal mines, whereas in Dr. Hippensteel’s view
       chronic bronchitis due to coal mine dust exposure would be expected to impair
       function during active exposure, and improve after such exposure ceased. This is
       contrary to the concept, recognized by the Act, that disabling pneumoconiosis,
       whether clinical or legal, can develop years after a miner leaves the mines.

Consol declares that this overextends the concept of latent and progressive pneumoconiosis,

professing that merely because “pneumoconiosis may develop after exposure ceases does not

mean that all miners that develop lung disease after exposure ceases always have ‘progressive

and latent’ forms of pneumoconiosis.” Yet we deem this a reasonable determination for the ALJ

to make, especially given its consistency with federal regulations. See Duncan, 2018 WL

2050669, at *8 (“[T]he regulatory recognition in 20 C.F.R. § 718.201(c) that pneumoconiosis is




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a latent and progressive disease applies to both clinical and legal pneumoconiosis,” and “the lack

of medical evidence about legal pneumoconiosis is a feature, not a bug.”).

       Consol contends that cigarette smoking and asthma were better clinical explanations for

Eskut’s disability than coal mine dust. It thus asks us to reweigh the evidence and substitute our

judgment for the ALJ’s. We cannot and do not—even if we would have viewed the evidence

differently, “[w]e defer to the ALJ’s determination whether the explanations are adequate and

will not disturb [her] reasonable findings.” Ogle, 737 F.3d at 1074.

       3. ALJ’s Assessment of Dr. O’Reilly

       Consol briefly presses that Dr. O’Reilly’s medical opinion helped rebut the presumption

of legal pneumoconiosis. But the ALJ’s contrary conclusion seems a reasonable one, given Dr.

O’Reilly testified “I think [Eskut] has legal pneumoconiosis.” Yes, O’Reilly opined that Eskut’s

respiratory disability was caused primarily by smoking and secondarily by coal mine dust. But

this does not mean that, as Consol submits, “the ALJ overlooked that Dr. O’Reilly failed to find

the necessary significant causal role or substantial aggravating factors necessary to diagnose

legal pneumoconiosis.” In fact, Dr. O’Reilly testified “that the coal dust exposure caused or

contributed to cause” Eskut’s COPD. Cf. Kennard, 790 F.3d at 668 (“The only question is

whether smoking alone caused the COPD or whether it was also caused or worsened by the coal-

mine dust exposure.”). The ALJ thoroughly reviewed Dr. O’Reilly’s opinions and deposition

testimony; her “determination[] to credit . . . these medical opinions based on whether they are

sufficiently documented and reasoned is a credibility matter that we must leave to the ALJ.”

Ogle, 737 F.3d at 1073.

                                               III.

       For those reasons, we DENY the petition for review.

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