                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      _____________

                                       No. 09-2297
                                      _____________

                              CONSOLIDATION COAL,

                                                  Petitioner
                                           v.

               DIRECTOR OWCP, United States Department of Labor,
                          WILLIAM F. KUSCH,

                                                 Respondents
                                      _____________


                On Petition for Review of a Decision and Order of the
           Benefits Review Board for the United States Department of Labor
                           (Agency No. 2005-BLA-5078)

                              Argued: January 27, 2011

            Before: FUENTES, CHAGARES, and ROTH, Circuit Judges.

                              (Filed: February 16, 2011)


William S. Mattingly, Esq. (Argued)
Wendy G. Adkins
Jackson Kelly PLLC
P.O. Box 619
Morgantown, West Virginia 26507
      Counsel for Petitioner

Timothy C. MacDonnell, Esq.
Zachary I. Mills
Amanda K. Streff (Argued)
Washington and Lee University School of Law
Lewis Hall
Legal Clinic, Room 106
Lexington, Virginia 24450
      Counsel for Respondent Kusch

Deborah Greenfield, Esq.
Rae Ellen Frank James, Esq.
Patricia M. Nece, Esq.
Jeffrey S. Goldberg, Esq. (Argued)
U.S. Department of Labor
200 Constitution Avenue, N.W. N-2117
Washington, D.C. 20210
       Counsel for Respondent OWCP

                                      _____________

                                        OPINION
                                      _____________

CHAGARES, Circuit Judge.

       Consolidation Coal Company (“Consol”) has filed a petition for review of the

decision of the Benefits Review Board affirming the award of benefits to William S.

Kusch, Sr., under the Black Lung Benefits Act (“BLBA”). For the reasons set forth

below, we will deny the petition and affirm the award of benefits to Kusch.

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recite

the facts. Kusch was employed as a coal miner for thirty-three and one-half years, fifteen

of which were spent as an underground miner. During both his years as an underground

and an above-ground miner, Kusch was exposed to extensive amounts of coal dust, and

was not always provided with effective breathing protection. In addition to his exposure

to coal dust, Kusch was a smoker for thirty-two years, quitting for the last time in 1993.

                                             2
In 1998, he began to experience shortness of breath and a daily cough that varied in

severity with the weather. Kusch retired from coal mine employment in 2000.

       Kusch filed a claim for lifetime disability benefits under the BLBA on July 5,

2001. The BLBA entitles all claimants to a complete pulmonary evaluation, 30 U.S.C.

§ 923(b), and Kusch was examined by Dr. Basheda on August 30, 2001. Dr. Basheda

determined that Kusch did not have clinical pneumoconiosis, but that he suffered from an

obstructive lung disease that “may be related to smoking/coal dust,” and that Kusch also

suffered from asthma. Joint Appendix (“JA”) 4. The Department of Labor Claims

Examiner, Robert Bonfanti, wrote to Dr. Basheda to ask him to clarify whether Kusch’s

lung disease was legal pneumoconiosis, and whether it was related to employment in coal

mining. In response, Dr. Basheda stated only that “Mr. Kusch has obstructive lung

disease that may be related to his 34 years in the coal mining industry. . . . Therefore, the

severe airway obstruction seen on his pulmonary tests . . . could certainly be related to

coal dust exposure.” JA 5. The Claims Examiner proposed that Kusch receive benefits,

and the case was forwarded to Administrative Law Judge (“ALJ”) Lesniak for a formal

hearing at the request of Consol. Following the transfer to ALJ Lesniak, Kusch’s counsel

repeatedly tried to contact Dr. Basheda to clarify his opinion on Kusch’s entitlement to

benefits, but never received a response. Kusch then requested a remand for a second

complete pulmonary evaluation, pursuant to 20 C.F.R. § 725.456(e). ALJ Lesniak

granted the request on January 23, 2003, striking Dr. Basheda’s report from the record

because it was incomplete, and remanding the case.



                                              3
       Prior to the remand, but after Dr. Basheda’s initial examination, Kusch was also

examined by Dr. Renn, on November 28, 2001, Dr. Celko, on May 3, 2002, and Dr. Fino,

on October 10, 2002. On remand, Dr. Rasmussen provided Kusch with his second

pulmonary evaluation, which took place on June 24, 2004. Finally, Kusch hired Dr.

Parker to provide an additional opinion on April 29, 2005. None of the doctors

diagnosed Kusch with medical pneumoconiosis. Drs. Parker and Celko, who were hired

by Kusch, as well as Dr. Rasmussen diagnosed Kusch with legal pneumoconiosis, and

Dr. Renn and Dr. Fino, who were hired by Consol, both concluded that Kusch did not

have pneumoconiosis and, instead, that his lung impairment was caused by cigarette

smoking and untreated asthma.

       After all of the medical evidence was gathered, the case came to ALJ Leland, who

conducted a hearing and assembled a record on January 8, 2007. On September 28,

2007, the ALJ issued a decision and order awarding benefits to Kusch. In reaching this

decision, the ALJ credited the medical evidence supplied by Drs. Celko, Parker, and

Rasmussen, and found the medical evidence provided by Drs. Renn and Fino not to be

worth great weight.

       Consol appealed to the Benefits Review Board. On that appeal Consol not only

challenged the underlying ruling by ALJ Leland, but also sought to be dismissed from the

case due to purported violations of its procedural due process rights. Specifically, it

argued that ALJ Lesniak erred in remanding the case for a second pulmonary evaluation

when the first was complete, and argued that this caused it undue prejudice, mandating its

dismissal from the case. The Benefits Review Board affirmed the award of benefits and

                                             4
refused to dismiss Consol from the case on October 20, 2008. Consol filed a petition for

review in the United States Court of Appeals for the Fourth Circuit on December 23,

2008, and the case was transferred to this Court at Consol’s request because Kusch had

last worked as a coal miner in Pennsylvania.

                                             II.

       The Department of Labor had jurisdiction pursuant to the Black Lung Benefits

Act, 30 U.S.C. § 901 et seq. We have jurisdiction over a petition for review of the

Benefits Review Board under 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a),

and 28 U.S.C. § 1331. We must accept the ALJ’s findings of fact so long as they are

supported by substantial evidence. Balsavage v. Director, OWCP, 295 F.3d 390, 395 (3d

Cir. 2002). In reviewing the ALJ’s conclusions of law, we exercise plenary review.

Director, OWCP v. Barnes & Tucker Co., 969 F.2d 1524, 1527 (3d Cir. 1992). On issues

committed to the ALJ’s discretion by statute, however, we review only to ensure that his

actions were not arbitrary or capricious. Doroshow v. Harford Life & Accident Ins. Co.,

574 F.3d 230, 233 (3d Cir. 2009).

                                            III.

       Consol begins by arguing that the ALJ erred in his consideration of whether

Kusch’s lung disability was caused by exposure to coal dust. It states that the ALJ

improperly applied a presumption of causation, found at 30 U.S.C. § 921(c)(2) and in the

regulations at 20 C.F.R. § 718.203(b), that it argues is only available to cases in which

the claimant is alleging the existence of medical pneumoconiosis. Because Kusch only



                                             5
claims legal pneumoconiosis, Consol requests that we remand the case so that the issue of

causation can be addressed without applying the presumption.

       We need not reach the issue of the application of the statutory presumption of

causation in this case because the ALJ’s decision clearly addressed the issue and found

the existence of causation before any reference to the statutory presumption. The ALJ’s

decision sets forth, doctor by doctor, all of the medical evidence provided, including the

doctors’ opinions on the issue of whether Kusch’s disease was caused by coal dust,

smoking, asthma, or some combination of the three. At the conclusion of its analysis of

each doctor’s evidence, the ALJ stated whether he found that doctor’s opinion worthy of

weight. Importantly, the main point of contention between these doctors was whether

coal dust was a substantial contributing factor to Kusch’s pulmonary disability. As a part

of deciding which evidence to credit, the ALJ necessarily also resolved the conflict

regarding causation.

       This conclusion is reinforced by the structure of the opinion. Immediately before

the only mention of the § 718.203(b) presumption, the ALJ stated “[a]fter weighing all

the evidence, I find that the miner has established that he has legal pneumoconiosis.” JA

10A. This conclusion is important, as the regulations define legal pneumoconiosis as

“any chronic lung disease or impairment and its sequelae arising out of coal mine

employment.” 20 C.F.R. § 718.201(a)(2). The finding of causation, therefore, was

subsumed in the ALJ’s finding of legal pneumoconiosis. Both the content and structure

of the ALJ’s opinion lead us to conclude that the ALJ determined the issue of causation

without relying on the statutory presumption, and we need not reach the question of that

                                             6
presumption’s applicability to cases of legal pneumoconiosis in order to deny the petition

for review.

       Consol next challenges the ALJ’s treatment of the evidence in a number of

respects, arguing that he irrationally, selectively, and inconsistently considered the

evidence provided by the medical experts. Consol disagrees with the ALJ’s decision to

discredit the testimony of Drs. Renn and Fino entirely, and also asserts that it was

inconsistent to credit the testimony of Drs. Celko, Parker, and Rasmussen, when these

three experts did not all agree on what caused Kusch’s disability. In discussing this

testimony, Consol urges this Court to wade into the medical details of this case, arguing

that Kusch’s test results are indicative of lung disease caused by smoking and asthma

rather than lung disease caused by exposure to coal dust. It states that it is not asking this

Court to reweigh the evidence, but merely to demand that the ALJ base his decision upon

substantial evidence and resolve any material disputes in the record.

       As noted above, we review only to ensure that the ALJ’s findings of fact are

supported by substantial evidence. In this case, regardless of the arguments that Consol

makes to the contrary, we are compelled to conclude that the ALJ based his finding on

substantial evidence. The record here consisted of medical evidence from five experts,

and three of these experts produced reasoned, detailed opinions concluding that Kusch

was totally disabled due to a chronic obstructive pulmonary disease that was substantially

contributed to by his exposure to coal dust. This was more than a sufficient basis on

which the ALJ could reasonably base his decision. Further, the ALJ clearly set forth his

reasons for crediting the testimony of Drs. Celko, Parker, and Rasmussen, and rejecting

                                              7
the testimony of the other two. We certainly cannot describe his conduct as irrational,

arbitrary, or capricious.

       In addition, we reject Consol’s argument that the ALJ did not resolve all material

conflicts in the record. Although we recognize that a failure to resolve material conflicts

would require a remand, Wensel v. Director, OWCP, 888 F.2d 14, 16 (3d Cir. 1989), the

only conflict that was material in this case was whether Kusch’s pulmonary disability

was caused by coal dust exposure. Importantly, this determination does not require

establishing that coal dust exposure was the sole or even most important factor in the

lung disease; instead, the causation element of pneumoconiosis is met so long as the

disease is “significantly related to, or substantially aggravated by, dust exposure in coal

mine employment.” 20 C.F.R. § 718.201(b). The questions of whether Kusch’s smoking

and asthma also contributed to his pulmonary disability, therefore, are not material to the

issue of whether Kusch’s pulmonary disability was caused by coal mine employment.

Because of this, the ALJ’s failure to resolve any conflict regarding the apportionment of

causation between smoking and asthma is not one that requires a remand. The ALJ

resolved the material issues in this case in concluding that Kusch had a total pulmonary

disability that was related to or aggravated by his exposure to coal dust in mining

employment. For this reason, we will deny the petition for review on the basis of his

consideration of the evidence.

       Consol’s final argument is that the ALJ erred in striking Dr. Basheda’s evaluation

and remanding the case for a second complete pulmonary evaluation. Consol states that

Dr. Basheda’s report was merely inconclusive rather than incomplete, as it did include an

                                              8
opinion on the issue of causation. It further argues that even if this report was not

complete, the ALJ exceeded the scope of his authority under 20 C.F.R. § 725.456(e) in

remanding for a second complete pulmonary evaluation rather than merely remanding for

an opinion on the issue of causation. Consol asserts that this error amounts to a due

process violation that justifies its dismissal from this case and the transferal of any

liability to the Black Lung Trust Fund.

       We again find Consol’s arguments to be without merit. Under 20 C.F.R.

§ 718.101(a), each claimant is granted an opportunity to “develop the medical evidence

necessary for a determination with respect to each claimant’s entitlement to benefits,”

and 20 C.F.R. § 725.202(d) includes the issue of causation as one element of entitlement.

Dr. Basheda refused to take a position on the issue of causation, even when requested to

clarify his position, and certainly did not state that he believed that the results of the tests

were entirely equivocal and did not allow him to reach a conclusion, as Consol seems to

characterize his position. Instead, Dr. Basheda only stated that the coal dust exposure

“could” or “might” have contributed to Kusch’s pulmonary disability. This certainly is

not definitive on the issue of whether coal dust was responsible for or substantially

aggravated Kusch’s condition, and, therefore, did not provide Kusch with a complete

pulmonary evaluation.

       Having concluded that Dr. Basheda did not provide a complete pulmonary

evaluation, we will also affirm the ALJ’s decision to rectify the deficiency by remanding

for a second complete evaluation. Although it is true that 20 C.F.R. § 725.456(e) allows

for a remand with instructions “to develop only such additional evidence as is required,”

                                               9
it was not arbitrary to conclude that an ultimate opinion on entitlement would require that

the doctor providing it have the opportunity to perform his own evaluation. Further, 20

C.F.R. § 725.351(b)(5) gives the ALJ substantial authority over procedural issues,

including to “[d]o all other things necessary to enable him or her to discharge the duties

of the office.” In the absence of an arbitrary or capricious resolution of a matter

committed to the ALJ’s discretion, we will affirm the ALJ’s decision to remand to the

Office of Worker’s Compensation Programs (“OWCP”) for a second complete

pulmonary evaluation.

       Despite the fact that we find no error in the ALJ’s decision to remand the case, we

still must address Consol’s due process argument, as the OWCP concedes that it violated

its own procedures in certifying the medical record as complete and transferring the case

to the ALJ before a complete pulmonary evaluation was, in fact, concluded. The harm

that was suffered from this procedural failing, according to Consol, was that it relied on

Dr. Basheda’s report in developing its own evidence, and that its evidence became stale

due to the length of time that passed between the decision to remand and the second time

that the case came before an ALJ.

       We conclude that, Consol’s claimed harm simply does not rise to the level of a

procedural due process violation. Consol’s experts were given an opportunity to

comment on the evidence produced from the second complete pulmonary evaluation and

to update their opinions at depositions that occurred after the remand. In addition, the

ALJ’s decision to reject testimony rested not on the timing of the examinations but on the

reasoning contained in these opinions, and this reasoning was not affected by the delay.

                                             10
Simply put, Consol has identified a minor procedural problem, but has not established

any prejudice arising from that error that would rise to the level of a due process violation

that would justify the transfer of liability. See C&K Coal Co. v. Taylor, 165 F.3d 254,

259 (3d Cir. 1999) (stating that even an extensive delay in proceedings will not allow for

a transfer of liability absent a demonstration of prejudice that resulted from the

procedural difficulties). Further, this Court’s decision in Venicassa v. Consolidation Coal

Co., 137 F.3d 197 (3d Cir. 1998), makes clear that a transfer of liability is only

appropriate in situations where the operator of the mine could not be determined or where

the errors of the OWCP would leave the claimant unable to recover. Venicassa, 137 F.3d

at 204. Because the errors of the OWCP did not amount to a due process violation, there

is no reason that Kusch cannot still recover from Consol, leaving no justification for

transferring liability. We will decline to dismiss Consol as a party to this case and will

also deny its request to transfer liability to the Black Lung Trust Fund.

                                             IV.

       For the foregoing reasons, we will deny the petition for review of the Benefits

Review Board’s decision.




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