                                                                               FILED
                                                                   United States Court of Appeals
                                       PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      March 3, 2014

                                                                       Elisabeth A. Shumaker
                                  TENTH CIRCUIT                            Clerk of Court


 ANTELOPE COAL COMPANY/RIO
 TINTO ENERGY AMERICA,

       Petitioner,

 v.
                                                            No. 12-9590
 ROLLAND E. GOODIN; DIRECTOR,
 OFFICE OF WORKERS’
 COMPENSATION PROGRAMS,
 UNITED STATES DEPARTMENT OF
 LABOR,

       Respondents.


          ON PETITION FOR REVIEW OF A DECISION AND ORDER
                   OF THE BENEFITS REVIEW BOARD,
                UNITED STATES DEPARTMENT OF LABOR
                           (No. 11-0843 BLA)


William S. Mattingly, Jackson Kelly PLLC, Morgantown, West Virginia, appearing for
Petitioner.

Jared L. Bramwell, Kelly & Bramwell, Draper, Utah, appearing for Respondent Rolland
E. Goodin.

Sean Bajkowski, Counsel for Appellate Litigation (M. Patricia Smith, Solicitor of Labor,
Rae Ellen Frank James, Associate Solicitor, and Rita A. Roppolo, Attorney, with him on
the briefs), United States Department of Labor, Office of the Solicitor, Washington, DC,
appearing for Respondent United States Department of Labor.


Before KELLY, McKAY, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.


       Rolland E. Goodin worked at surface coal mines for 25 years and smoked

cigarettes for more than 40 years. He developed a respiratory condition and filed for

benefits under the Black Lung Benefits Act (“BLBA”). 30 U.S.C. §§ 901, et seq. An

Administrative Law Judge (“ALJ”) awarded Mr. Goodin benefits. His employer,

Antelope Coal Company/Rio Tinto Energy America (“Antelope”), appealed, and the

Department of Labor Benefits Review Board (“Review Board”) affirmed the grant of

benefits. Antelope filed this petition for review of the Review Board’s order.

       Antelope’s primary argument is that the ALJ wrongly limited its options to rebut a

regulatory presumption that Mr. Goodin’s work as a coal miner caused his respiratory

condition. Specifically, it argues 20 C.F.R. § 718.305(d),1 a rule limiting the type of

evidence that may be used for rebuttal, should not apply to coal mine operators like

Antelope. Alternatively, Antelope argues even if the rule applies, the ALJ’s findings and

explanation concerning the cause of Mr. Goodin’s disability were incomplete. Exercising

jurisdiction under 33 U.S.C. § 921(a), we deny Antelope’s petition.

                                   I. BACKGROUND

       We begin with the relevant statutes and regulations and then turn to the facts and

       1
        A revision of this regulation became effective October 25, 2013. See infra Part
I.A.5. We apply the revised version for reasons noted later in this opinion. See infra Part
II.B. Unless otherwise indicated, all citations to the C.F.R. are to the 2013 regulations.

                                            -2-
procedural history of Mr. Goodin’s case.

                                   A. Legal Background

       Congress enacted the BLBA in 1969 to compensate miners who develop

pneumoconiosis—black lung disease. The BLBA provides benefits to coal miners who

become totally disabled from pneumoconiosis. Five parts of the BLBA and regulations

are particularly relevant here.

1. Elements of a Claim

       To obtain benefits under the BLBA, a claimant must prove: (1) he or she suffers

from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment; (3)

he or she is totally disabled due to a respiratory or pulmonary impairment; and (4)

pneumoconiosis is a substantially contributing cause of his or her total disability. See 20

C.F.R. §§ 725.202(d)(2), 718.204(c)(1); 30 U.S.C. §§ 902, 921; Energy West Mining Co.

v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009).

2. Pneumoconiosis Defined

       The BLBA recognizes two types of pneumoconiosis: clinical and legal. Clinical

pneumoconiosis refers to diseases the medical community recognizes as pneumoconiosis,

which includes “conditions characterized by . . . the fibrotic reaction of the lung tissue

to . . . deposition [of particulate matter] caused by dust exposure in coal mine

employment.” 20 C.F.R. § 718.201(a)(1).

       Legal pneumoconiosis, added in 1978, 30 U.S.C. § 902(b), is “any chronic lung



                                             -3-
disease or impairment and its sequelae2 arising out of coal mine employment. This

definition includes, but is not limited to, any chronic restrictive or obstructive pulmonary

disease arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2). This

encompasses “a broader class of lung diseases that are not pneumoconiosis as the term is

used by the medical community.” Andersen v. Dir., OWCP, 455 F.3d 1102, 1104 (10th

Cir. 2006). “Arising out of coal mine employment” means the disease or impairment is

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

employment.” 20 C.F.R. § 718.201(b).

3. The 15-year Presumption

       The BLBA created a presumption that a miner is disabled due to pneumoconiosis

when he or she has worked for 15 years in underground coal mines or substantially

similar conditions and is totally disabled from a respiratory or pulmonary condition (the

“15-year presumption”). In other words, a miner who proves 15 years of coal mine work

and total disability is entitled to a presumption that the remaining elements of his claim

are established. This presumption expired in 1982. 30 U.S.C. § 921(c)(4) (2006).

       In 2010, Congress adopted the Byrd Amendments to the BLBA as part of the

Affordable Care Act (“ACA”), Pub. L. No. 111–148, § 1556, 124 Stat. 119, 260 (2010).

The amendments reinstated the 15-year presumption for claims filed after January 1,

       2
         Sequelae is the “aftereffect of disease, condition, or injury” or its “secondary
result.” Merriam-Webster.com, http://www.merriam-webster.com/dictionary/sequela
(last accessed Dec. 9, 2013).


                                             -4-
2005. See 30 U.S.C. § 921(c)(4) (2012).3

      Section 921 provides that the Secretary of Labor can rebut the 15-year

presumption only by proving (1) the claimant does not have pneumoconiosis, or (2) the

claimant’s impairment “did not arise out of, or in connection with, employment in a coal

mine.” Id. § 921(c)(4). In 1976, the Supreme Court ruled the rebuttal limitations apply

only to the Secretary and do not apply to coal mine operators. Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 34-37 (1976).4



      3
          The statute reads in relevant part:

      [I]f a miner was employed for fifteen years or more in one or more
      underground coal mines, and if . . . a chest roentgenogram [(x-ray)]
      submitted in connection with such miner’s . . . claim . . . is interpreted as
      negative . . . and if other evidence 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. . . . The Secretary [of Labor] shall not apply . . . the
      requirement . . . that the miner work in an underground mine where he
      determines that conditions of a miner’s employment in a coal mine other
      than an underground mine were substantially similar to conditions in an
      underground mine. The Secretary may rebut such presumption only by
      establishing that (A) such miner does not, or did not, have pneumoconiosis,
      or that (B) his respiratory or pulmonary impairment did not arise out of, or
      in connection with, employment in a coal mine.

30 U.S.C. § 921(c)(4). We note that a claimant with a positive x-ray is
eligible for a different presumption. Id. at § 921(c)(3).
      4
       The parties disagree whether Usery is still valid law in light of subsequent
amendments to the BLBA. We do not resolve this question because we conclude that
Mr. Goodin would have prevailed even without the rebuttal limitations.


                                                -5-
4. Rule-out Standard

       The U.S. Department of Labor (the “Department”) maintains that a rule-out

standard applies to the second method of rebuttal, requiring proof that rules out any

connection between the claimant’s disability and coal mine employment. See

Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act:

Determining Coal Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg. 59,101,

59,107 (Sept. 25, 2013). Some courts have agreed. See, e.g., Peabody Coal Co. v. Hill,

123 F.3d 412, 417-18 & n.9 (6th Cir. 1997); Rose v. Clinchfield Coal Co., 614 F.2d 936,

939 (4th Cir. 1980). This standard derives from 20 C.F.R. § 718.305(d) (2010), which,

before its revision in 2013, stated, “Where the cause of death or total disability did not

arise in whole or in part out of dust exposure in the miner's coal mine employment . . .

the presumption will be considered rebutted.” Id. (emphasis added).5

       Although we have not addressed whether the rule-out standard applies to rebuttal

of the 15-year presumption, we have held that a rule-out standard applied to a similar

presumption of pneumoconiosis arising from proof of total disability and 10 years of coal

mine employment. See Rosebud Coal Sales Co. v. Wiegand, 831 F.2d 926, 928-29 (10th

Cir. 1987). That presumption was based on a now-defunct interim regulation that

contained identical language to § 718.305(d) (2010). See id. To rebut that presumption,

       5
        As discussed below, a final rule effective October 25, 2013, changed the
language of this provision. But the revised language has the same effect—requiring the
rebutting party to establish that “no part of the miner’s . . . disability was caused by
pneumoconiosis . . . .” 20 C.F.R. § 718.305(d)(1)(ii).

                                             -6-
we said employers must show that “total disability or death of the miner did not arise in

whole or in part out of coal mine employment.” Id. at 928 (emphasis added) (quoting

interim regulation 20 C.F.R. § 727.203(b)(3) (1987)). The employer must “rule out any

relationship between the disability and the coal mine employment.” Mangus v. Dir.,

OWCP, 882 F.2d 1527, 1529 (10th Cir. 1989) (citing Rosebud Coal Sales, 831 F.2d at

928)). We see no reason to interpret § 718.305(d) (2010) or the revised

§ 718.305(d)(1)(ii) (2013) any differently and hold the rule-out standard applies here.

See Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1071 n.5 (6th Cir. 2013) (noting the

rule-out standard is consistent with the revised regulation).

5. The October 25, 2013 Final Rule

       After Congress enacted the ACA, the Department issued a Notice of Proposed

Rulemaking to implement the Byrd Amendments. See Regulations Implementing the

Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners’ and

Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19,455 (proposed Mar. 30, 2012). The

comment period closed May 29, 2012. Id. at 19,456. The Department issued its Final

Rule on September 25, 2013, with an effective date of October 25, 2013. See

Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act:

Determining Coal Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg. 59,101




                                             -7-
(Sept. 25, 2013).6 The Final Rule revised two sections of the regulations that are relevant

to this case: 20 C.F.R. § 718.305(b)(2),7 which defines when working conditions are

substantially similar to underground mining; and § 718.305(d)(1),8 which governs the

permissible methods of rebuttal.

                             B. Factual and Procedural History

       Mr. Goodin worked at surface coal mines, including the Antelope Coal Mine in

Wyoming, from 1981 to 2006, when he retired because of respiratory health issues. On

May 14, 2007, Mr. Goodin applied for BLBA benefits. As Mr. Goodin’s last employer,

       6
        Mr. Goodin filed his claim in 2007, after the January 1, 2005 filing date required
by the Byrd Amendments. The relevant procedural history in this case—the ALJ’s
August 2011 decision, the Review Board’s September 2012 ruling, and Antelope’s
November 2012 notice of appeal to this court—took place after the Byrd Amendments
were enacted, but before the Department issued its Final Rule.
       7
         This provision states, “The conditions in a mine other than an underground mine
will be considered ‘substantially similar’ to those in an underground mine if the claimant
demonstrates that the miner was regularly exposed to coal-mine dust while working
there.” 20 C.F.R. § 718.305(b)(2).
       8
           This provision states,

       In a claim filed by a miner, the party opposing entitlement may rebut the
       presumption by--
               (i) Establishing both that the miner does not, or did not, have:
                       (A) Legal pneumoconiosis as defined in § 718.201(a)(2); and
                       (B) Clinical pneumoconiosis as defined in § 718.201(a)(1),
                       arising out of coal mine employment (see § 718.203); or
               (ii) Establishing that no part of the miner's respiratory or pulmonary
               total disability was caused by pneumoconiosis as defined in
               § 718.201.

20 C.F.R. § 718.305(d)(1).

                                             -8-
Antelope is the named operator for his claim. A Department ALJ heard his case in

Casper, Wyoming on October 20, 2010.

1. Evidence Presented to the ALJ

       At the hearing, Mr. Goodin testified in person about his working conditions at

surface coal mines in the various positions he held, which included warehouse worker for

four to five years, equipment operator for 11-12 years, and equipment oiler in the mine

pit for nine years. We will discuss Mr. Goodin’s working conditions in more detail later

in the opinion. He also testified about his forty-year smoking history, stating that he

started smoking in his 20s, tried to quit multiple times, and successfully quit in 2004 or

2005. He smoked, on average, a pack of cigarettes each day.

       The parties introduced conflicting medical evidence regarding (1) readings of

chest x-rays and CT scans; (2) results from pulmonary function tests and arterial blood

gas studies; (3) interpretations of patient history; (4) statistical reasoning; and

(5) diagnoses.

       a. Mr. Goodin’s Medical Evidence

       Mr. Goodin submitted Dr. Andras Bodoni’s and Dr. Cecile Rose’s medical reports

and deposition testimony, Dr. Donald Smith’s treatment records, and additional x-ray and

CT scan interpretations.

       Dr. Bodoni, board-certified in internal medicine, examined Mr. Goodin to satisfy

the Department’s obligation under 30 U.S.C. § 923(b) to provide each claimant-miner

with “an opportunity to substantiate his or her claim by means of a complete pulmonary
                                              -9-
evaluation.” See 30 U.S.C. § 923(b). Dr. Bodoni diagnosed Mr. Goodin with

pneumoconiosis from exposure to coal dust and with total disability from a combination

of pneumoconiosis and another respiratory disease. Appx., Vol. I at 17. He based this

diagnosis on a physical examination, patient history, and his positive x-ray reading. Id. at

41. Dr. Bodoni opined that although Mr. Goodin had other respiratory conditions, none

of them constituted the entire disability without pneumoconiosis. Id. Dr. Bodoni

testified it was impossible to tell the difference in impact between coal mine exposure

and smoking. Id. at 32-33.

       Dr. Rose—board-certified in pulmonary medicine, general

preventive/occupational medicine, and internal medicine, as well as a B-reader9—

examined Mr. Goodin at his request. She based her opinion on a physical examination,

patient history, and a positive x-ray and CT scan. Appx., Vol. I at 78-79. She also

reviewed the medical records and opinions from Dr. Bodoni and Antelope’s primary

medical experts. She concluded Mr. Goodin was totally disabled from his respiratory

condition, which resulted, at least in part, from his previous exposure to coal mine dust.

Id. at 84. Dr. Rose recognized that multiple factors, including smoking, caused Mr.

Goodin’s respiratory condition, but still concluded that coal mining was a substantially

contributing factor. Id. at 83-84. Dr. Rose disagreed with Antelope’s experts and filed a

supplemental report after their depositions to rebut their testimony.

       9
        A B-reader is a doctor who is certified to read x-rays for pneumoconiosis.
Appx., Vol. II at 276 n.8.

                                            -10-
         Dr. Smith was Mr. Goodin’s treating physician. Mr. Goodin submitted Dr.

Smith’s treatment notes, which said, “The patient has had abnormal lung function for

years and probably his recent exposures caused a mild exacerbation. The radiographic

picture is certainly not typical for Coal Worker’s pneumoconiosis but the patient may

have a slowly active fibrosis in addition to the emphysema.” Appx., Vol. II at 267.

         Mr. Goodin submitted additional interpretations of his tests. Dr. Afzal Ahmed

examined three admissible x-rays10 and found opacities in all zones indicating

pneumoconiosis. Id. at 277. Dr. David Lynch reviewed a 2010 CT scan that Dr. Rose

ordered. Id. at 279. Dr. Lynch determined that although the CT scan did “not show

typical features of coal workers [sic] pneumoconiosis, it could certainly be related to coal

dust exposure. Alternatively, this could be secondary to cigarette smoking. Moderate

emphysema may be related to coal dust exposure and/or smoking.” Appx., Vol. I at 93.

         b. Antelope’s Medical Evidence

         Antelope submitted Drs. Lawrence Repsher’s and Robert Farney’s reports and

deposition testimony as well as additional interpretations of Mr. Goodin’s x-rays and CT

scans.

         Dr. Repsher, board-certified in internal medicine and pulmonary disease and a B-

reader, examined Mr. Goodin at Antelope’s request. He concluded that Mr. Goodin’s

respiratory disease was chronic obstructive pulmonary disease (“COPD”) due to heavy

         10
        Dr. Ahmed reviewed a fourth x-ray, but it exceeded the number of x-rays Mr.
Goodin could submit and the ALJ did not consider it.

                                            -11-
smoking, noting that Mr. Goodin’s chest x-ray showed no evidence of pneumoconiosis.

Appx., Vol. II at 262. He based his opinion on Mr. Goodin’s chest x-ray and a CT scan

showing opacities consistent with smoking but not typical of pneumoconiosis. Id. He

also explained that although a few coal miners will develop COPD from coal mine dust,

statistically “in this individual coal miner, to an overwhelming probability, any detectable

COPD would be the result of cigarette smoking and/or asthma, but not the result of the

inhalation of coal mine dust.” Appx., Vol. I at 48. He thought Dr. Rose’s pulmonary

function tests were not reliable and probably invalid because the results were unlikely.

Dr. Repsher also concluded Mr. Goodin’s pulmonary capacity is likely sufficient to

perform his last coal mining job, and therefore Mr. Goodin is not totally disabled. Appx.,

Vol. II at 275.

       Dr. Farney, board-certified in internal medicine, pulmonary medicine, and sleep

medicine, examined Mr. Goodin at Antelope’s request. Unlike Dr. Repsher, he agreed

with Dr. Rose that Mr. Goodin is totally and permanently disabled, but stated that Mr.

Goodin does not have pneumoconiosis. Appx., Vol. II at 264. Instead, he diagnosed Mr.

Goodin with COPD from smoking. Id. He stated that coal dust exposure can cause

COPD, but the degree of COPD from coal dust is usually mild unless the dust exposure

was high, in which case a chest x-ray would be abnormal. Id. at 264-65. Dr. Farney

ruled out pneumoconiosis from coal dust exposure because “the risk of developing coal

worker’s [pneumoconiosis] is less in surface mining,” Appx., Vol. I at 64, smoking has a

higher risk of respiratory conditions than coal dust exposure, and Mr. Goodin’s chest
                                            -12-
x-ray was negative for pneumoconiosis.

       Antelope also submitted the following interpretations of Mr. Goodin’s tests. Dr.

Cristopher Meyer interpreted one x-ray (which Dr. Ahmed also reviewed) as negative for

pneumoconiosis. Appx., Vol. II at 277. Dr. Jerome Wiot interpreted another x-ray as

also negative for pneumoconiosis. Id. Dr. Wiot analyzed a 2008 CT scan, concluding,

“There is no evidence of coal worker’s pneumoconiosis. There is mild emphysema. There

is mild . . . fibrosis . . . [that] is not a manifestation of coal dust exposure.” Id. at 279.

Finally, Dr. Meyer reviewed Mr. Goodin’s 2010 CT scan, concluding that although

“there are many causes of pulmonary fibrosis, th[e] pattern is not typical of coal worker’s

pneumoconiosis . . . .” Appx., Vol. I at 90-91.11

                                           * * * *

       In summary, three of the four doctors, Drs. Bodoni, Rose, and Repsher, agreed Mr.

Goodin was totally disabled. They disagreed as to the cause. Mr. Goodin’s experts, Drs.

Bodoni and Rose, concluded his disability resulted, at least in part, from pneumoconiosis

due to coal mining. Antelope’s experts, Drs. Repsher and Farney, concluded Mr.

Goodin’s disability may have resulted from COPD caused by heavy smoking. They

based this conclusion on test results not typical for pneumoconiosis and Mr. Goodin’s

health history. They also opined that Mr. Goodin’s work at a surface mine made


       11
          Antelope argues the ALJ improperly failed to consider Dr. Meyer’s
interpretation of this CT scan because the ALJ did not specifically mention it in his
analysis. This issue is addressed below.

                                               -13-
pneumoconiosis statistically improbable because (1) most miners will not develop

chronic COPD from coal dust exposure, and (2) because the risk of developing

pneumoconiosis from surface mining is less than from underground mining due to lower

coal dust exposure.

2. The ALJ’s Decision

      The ALJ found Mr. Goodin (1) had worked for more than 15 years in surface

mining conditions substantially similar to underground mining and (2) was totally

disabled from his respiratory impairment. Appx., Vol. II at 271, 275. These findings

established the 15-year presumption. The ALJ stated Antelope had the burden under

§ 921 to rebut this presumption by a preponderance of the evidence showing (1) Mr.

Goodin did not have pneumoconiosis or (2) his disability did not arise out of coal mine

employment. Id. at 276.

      The ALJ held that Antelope had failed to rebut the presumption and awarded Mr.

Goodin BLBA benefits. Id. at 283. He found the x-ray evidence to be in equipoise and

Dr. Rose’s report and conclusions to be persuasive.12 Id. at 278, 281, 283. He found Drs.

Repsher’s and Farney’s statistical reasoning unpersuasive because they failed to show

why Mr. Goodin was not within the subgroup of individuals who suffer from

pneumoconiosis caused by surface mining conditions or why coal dust could not have

aggravated the COPD the doctors attributed to smoking. Id. at 282-83. Accordingly, the

      12
          The ALJ did not place much weight on Dr. Bodoni’s conclusions due to his
relative lack of credentials.

                                           -14-
ALJ concluded, Antelope “has not rebutted the presumption . . . by showing a

preponderance of the evidence that [Mr. Goodin] does not have pneumoconiosis” or that

the “pneumoconiosis did not arise out of his coal mine employment . . . .” Id. at 283.

3. Subsequent Proceedings

       The Benefits Review Board affirmed the ALJ’s decision on September 27, 2012.

It determined the ALJ had applied the proper legal standard, substantial evidence

supported his factual findings, and the decision contained no reversible error.

       Antelope petitioned this court, challenging the legal standard applied to its rebuttal

evidence, the test for determining substantial similarity to underground coal mining

conditions, the completeness of Mr. Goodin’s Department-provided pulmonary exam, the

ALJ’s consideration of medical evidence, and the completeness of the ALJ’s analysis.

       On the day of oral argument, September 25, 2013, the Department issued its Final

Rule implementing and interpreting statutory changes made by the ACA, which became

effective on October 25, 2013. The parties submitted supplemental briefing on the

applicability and impact of the Final Rule on this case.

                                    II. DISCUSSION

                                  A. Standard of Review

       For questions of fact, we determine whether the Review Board “properly

concluded that the ALJ’s decision was supported by substantial evidence.” Hansen v.




                                            -15-
Dir., OWCP, 984 F.2d 364, 368 (10th Cir. 1993).13 “Substantial evidence is ‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

       We do not reweigh the evidence, but instead ask if, based on the record as a

whole, substantial evidence is present to support the ALJ’s decision. See Energy West

Min. Co. v. Oliver, 555 F.3d 1211, 1217 (10th Cir. 2009). “[T]he task of weighing

conflicting medical evidence is within the sole province of the ALJ.” Hansen, 984 F.2d

at 368. “[W]here medical professionals . . . disagree[], the trier of fact is in a unique

position to determine credibility and weigh the evidence.” Id. at 370.

       For questions of law, we review the Review Board’s decision de novo. See

Mangus v. Dir., OWCP, 882 F.2d 1527, 1530 (10th Cir. 1989). We give no deference to

the Review Board’s interpretation, see Lukman v. Dir., OWCP, 896 F.2d 1248, 1251

(10th Cir. 1990), “however, we give ‘considerable weight’ to the Department[’s] . . .

construction of the statute it is entrusted to administer and ‘substantial deference’ to the

agency’s reasonable interpretation of its own regulations,” Andersen, 455 F.3d at 1103

(citations omitted), unless such interpretation is “plainly erroneous or inconsistent with

the regulation,” Mullins Coal Co. v. Dir., OWCP, 484 U.S. 135, 159 (1987); see also

Auer v. Robbins, 519 U.S. 452, 461 (1997).

       13
          Although we are formally reviewing the Review Board’s decision, because the
standard of review for questions of fact requires us to determine whether the ALJ’s
decision is supported by substantial evidence, we focus on the ALJ’s decision and
analysis.

                                             -16-
                                  B. Final Rule Applicability

       Before we discuss the ALJ’s and Review Board’s determinations, we first address

whether relevant provisions of the Final Rule, which became effective October 25, 2013,

apply to this case. They do.

       The relevant provisions concern (1) how to establish the 15-year presumption by

showing above-ground mining conditions are substantially similar to underground mine

conditions, 20 C.F.R. § 718.305(b)(2), and (2) how to rebut the presumption, 20 C.F.R.

§ 718.305(d)(1).14 These provisions apply because they do not change existing law and

are substantially consistent with prior regulations and agency practices. See Nat’l Mining

Ass’n v. Dep’t of Labor, 292 F.3d 849, 859 (D.C. Cir. 2002); Farmers Tel. Co., Inc. v.

FCC, 184 F.3d 1241, 1250 (10th Cir. 1999) (stating an interpretive rule may operate

retrospectively when it “merely clarifies or explains existing law or regulations”).

       “If a new regulation is substantively consistent with prior regulations or prior

agency practices, and has been accepted by all Courts of Appeals to consider the issue,

then its application to pending cases” is proper. Nat’l Mining, 292 F.3d 860. Here,

neither provision changes the substantive law because each merely clarifies the

Department’s position and conforms to circuit court cases.

       Section 718.305(b)(2) addresses when a surface miner’s working conditions are

substantially similar to underground mining working conditions. The only circuit to


       14
            The rules are quoted in full in footnotes 7 and 8, supra.

                                              -17-
address this issue has long held that surface miners do not need to provide evidence of

underground mining conditions to compare with their own working conditions. See, e.g.,

Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 479 (7th Cir. 2001); Blakley

v. Amax Coal Co., 54 F.3d 1313, 1319 (7th Cir. 1995); Dir., OWCP v. Midland Coal Co.,

855 F.2d 509, 512 (7th Cir. 1988). These decisions validate the Department’s

longstanding position that consistently dusty working conditions are sufficiently similar

to underground mining conditions. See, e.g., Midland Coal, 855 F.2d at 511-12. The

revised regulation codifies that interpretation by making regular exposure to coal mine

dust the standard to determine substantial similarity of surface working conditions to

those in underground mines. See 20 C.F.R. § 718.305(b)(2).

       Similar reasoning applies to revised § 718.305(d)(1), which outlines the

permissible methods of rebutting the 15-year presumption. The changes to

§ 718.305(d)(1) also comport with the Department’s ongoing interpretation and do not

substantively change the law. The original regulation required, for rebuttal, proof the

disability did not arise from coal mine employment. 15 See, e.g., Blakley, 54 F.3d 1313 at



       15
          The original language states, “The presumption may be rebutted only by
establishing that the miner does not, or did not have pneumoconiosis, or that his or her
respiratory or pulmonary impairment did not arise out of, or in connection with,
employment in a coal mine.” 20 C.F.R. § 718.305(a) (2010).
        The new regulation states, “In a claim filed by a miner, the party opposing
entitlement may rebut the presumption by . . . (i) [e]stablishing both that the miner does
not, or did not, have . . . [l]egal pneumoconiosis . . . [and c]linical pneumoconiosis . . .
arising out of coal mine employment . . . or (ii) [e]stablishing that no part of the miner’s
                                                                                Continued . . .
                                             -18-
1319. The revised regulation requires proof that pneumoconiosis, as defined in the

statute, did not cause any part of the disability. See 20 C.F.R. § 718.305(d)(1). Because

the statute defines pneumoconiosis as “arising out of coal mine employment,” see 20

C.F.R. § 718.201(a), the practical effect of the revised rule is the same, and it therefore

applies to this case.

                    C. Did the ALJ Err in Finding that Mr. Goodin Is
                            Entitled to the 15-Year Presumption?

       The ALJ determined and the Review Board affirmed that Mr. Goodin is entitled to

the 15-year presumption because he (1) worked for at least 15 years in conditions

substantially similar to underground mining and (2) was totally disabled from a

respiratory or pulmonary impairment. See 30 U.S.C. § 924(c)(4). Substantial evidence

supported this determination.

1. 15 Years Working in Conditions Substantially Similar to Underground Coal
   Mining

       The ALJ found that Mr. Goodin worked as a coal miner for at least 25 years in

surface mining. The question in this petition is whether the ALJ properly determined that

Mr. Goodin’s surface mining working conditions were substantially similar to those in

underground mining.


______________________________________
Cont.

respiratory or pulmonary total disability was caused by pneumoconiosis . . . .” 20 C.F.R.
§ 718.305(d)(1) (2013).


                                             -19-
       Mr. Goodin testified he held three different jobs while working in the mines—

warehouse worker, equipment operator, and equipment oiler. Appx., Vol. I at 122-23.

He started as a warehouse worker for four to five years and then worked as an equipment

operator for three years. Id. As an equipment operator, he drove a truck with an attached

shovel, drove a water truck, and operated a machine called a scraper. Id. at 123.

Although he was located in the cabs of the vehicles, and some trucks had air filtration,

“there was no way [to keep the dust out], even when you closed the doors, it was just like

a cloud of dust inside the cabs.” Id. at 148. He also described that the truck was “always

kicking up a puff of dust,” and the dust would just hang in the air. Id. at 127, 148. When

the wind blew, it was “like a sand blaster sometimes.” Id. at 132. His duties frequently

required him to get in and out of the equipment and work outside for a period of time. Id.

at 125. Mr. Goodin next worked as an equipment oiler for nine years. During this time,

he serviced the equipment exclusively in the mine pit while the other equipment was

running, “so it would get pretty dusty out there . . . .” Id. at 130. Finally, he returned to

working as an equipment operator for eight to nine years.

       The ALJ said Mr. Goodin had the burden of showing substantial similarity

between his surface and underground mining conditions, but “must only establish that he

was exposed to sufficient coal dust in his surface mine employment.” Appx., Vol. II at

270 (quoting Blakley, 54 F.3d at 1319); see also Summers, 272 F.3d at 480.

       The ALJ found Mr. Goodin to be a credible witness and said, “Based on my

experience with the testimony of underground miners, I find [Mr. Goodin’s] description
                                             -20-
of the conditions in the strip mines where he worked to be substantially similar.” Appx.,

Vol. II at 271.16 Because Mr. Goodin worked as an equipment operator and oiler for

more than fifteen years, the ALJ did not consider the working conditions in the

warehouse.

      The ALJ’s decision and most of Antelope’s arguments were based on the previous

version of § 718.305(b)(2). Antelope argues that the “substantial similarity” standard

under that regulation, without additional guidance, is arbitrary and gives the Review

Board and this court no meaningful basis to evaluate the ALJ’s decision. Although we

find some merit in this argument, we conclude the revised regulation provides such

guidance.

      The revised regulation states, “The conditions in a mine other than an underground

mine will be considered ‘substantially similar’ to those in an underground mine if the

claimant demonstrates that the miner was regularly exposed to coal-mine dust while

working there.” 20 C.F.R. § 718.305(b)(2). It instructs ALJs to find substantial

similarity if the miner was regularly exposed to coal dust. The clarified standard—

regular dust exposure—provides sufficient guidance to measure similarity.

      Under this standard, Antelope argues the evidence fails to show that Mr. Goodin’s

surface mine working conditions were substantially similar to those in an underground

      16
          The ALJ erred in basing his opinion on his personal experience with the
testimony of underground miners. This error is harmless, however, because the evidence
the ALJ properly accepted was sufficient to meet the “regular exposure” standard under
the revised regulation. See 20 C.F.R. § 718.305(b)(2).

                                           -21-
mine. We do not reweigh the evidence, but merely ask if there is substantial evidence to

support the ALJ’s determination. See Energy West, 555 F.3d at 1217.

       Mr. Goodin testified at length about the working conditions in his various

positions.17 His testimony provided substantial evidence of regular exposure to coal dust.

We agree with the Review Board that there was substantial evidence to support the ALJ’s

finding that Mr. Goodin worked for at least 15 years in surface mining conditions

substantially similar to underground mining.

2. Total Disability From a Respiratory or Pulmonary Condition

       The ALJ determined that Mr. Goodin is totally disabled from a respiratory

condition. Appx., Vol. II at 275. Although Antelope presented the ALJ with evidence to

rebut Mr. Goodin’s disability, it does not, as the Review Board noted, challenge the

ALJ’s determination of total disability. See id. at 287 n.3.

                                         * * * *

       For the foregoing reasons, we conclude the ALJ did not err in finding that Mr.

Goodin is entitled to the 15-year presumption. The Review Board properly concluded


       17
           Antelope does not dispute Mr. Goodin’s recounting of his working conditions.
It contends the air filter in the trucks protected Mr. Goodin from exposure to enough dust
to meet the standard. The evidence showed the dust was only kept out in one truck, which
Mr. Goodin only operated about ten percent of his time as an equipment operator. Even
in that truck, Mr. Goodin testified there was still dust in the cab because he was required
to get in and out of the truck frequently throughout the day. Appx., Vol. I at 147-48. The
ALJ, in weighing this evidence, concluded Mr. Goodin was regularly exposed to coal
dust even inside the trucks. Appx., Vol. II at 271. We find substantial evidence to
support this conclusion.

                                            -22-
there was sufficient evidence to support the ALJ’s determination.

    D. Did the ALJ Err in Finding that Antelope Did Not Rebut the Presumption?

       The ALJ correctly stated that Mr. Goodin had the burden to establish by a

preponderance of the evidence that “(1) he suffers from pneumoconiosis; (2) arising out

of coal mine employment; (3) he is totally disabled; and (4) his total disability is caused

by pneumoconiosis.” Appx., Vol. II at 256; see 20 C.F.R. §§ 725.202(d)(2),

718.204(c)(1). The ALJ determined Mr. Goodin was totally disabled (element (3)) and

the 15-year presumption satisfied the remaining three elements ((1), (2), and (4)).

       Section 921(c)(4) states the Secretary may rebut the 15-year presumption only two

ways: by proving (1) the claimant does not have pneumoconiosis (legal and clinical), or

(2) the claimant’s impairment “did not arise out of, or in connection with, employment in

a coal mine.” 30 U.S.C. § 921(c)(4). The Department has applied this limitation to both

the Secretary and mine operators like Antelope, and it has enacted regulations reflecting

this interpretation. See 20 C.F.R. 718.305(d)(1).

       We first review (1) whether there is substantial evidence to support the ALJ’s

conclusion that Antelope failed to rebut the 15-presumption under these two methods.

We conclude there was. We then address (2) whether Mr. Goodin can prevail even if the

ALJ erred in determining that an operator such as Antelope is limited to the two rebuttal

methods. We conclude Antelope failed to rebut Mr. Goodin’s claim even without the

rebuttal limitations and therefore any error in applying the rebuttal limitations was

harmless.
                                            -23-
1. Did Antelope Rebut the Presumption under the Rebuttal Limitations?

      We review the ALJ’s determination that Antelope failed to rebut the presumption

under the substantial evidence standard. See Hansen, 984 F.2d at 368. This analysis is

divided between the two rebuttal limitations—the presence of pneumoconiosis and

whether pneumoconiosis caused the total disability.

             a. Did Antelope rebut that Mr. Goodin has pneumoconiosis?

      The ALJ concluded Antelope failed to rebut the presumption that Mr. Goodin

suffered from legal pneumoconiosis because the medical tests were inconclusive and

Antelope’s experts were unpersuasive.18

      First, as to the medical tests, the ALJ found the x-ray evidence “in equipoise for

the existence of pneumoconiosis” and “not sufficient for [Antelope] to show that [Mr.

Goodin] does not have pneumoconiosis.” Appx., Vol. II at 278. Although Mr. Goodin’s

“CT scan[s were] not typical of pneumoconiosis,” they did show that Mr. Goodin “does

have some lung disease” and Antelope failed to show why this lung disease was not

pneumoconiosis because Antelope’s experts were not persuasive. Id. at 283.

      18
         As stated above, legal pneumoconiosis is “any chronic lung disease or
impairment and its sequelae arising out of coal mine employment.” 20 C.F.R.
§ 718.201(a)(2) (emphasis added). “[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).
       Clinical pneumoconiosis includes “those diseases recognized by the medical
community as pneumoconiosis” characterized by the “deposition [of particulate matter]
caused by dust exposure in coal mine employment.” Id. § 718.201(a)(1) (emphasis
added).

                                           -24-
       Second, as to Antelope’s experts, Dr. Repsher stated that “to an overwhelming

probability, any detectable COPD would be the result of cigarette smoking and/or

asthma, but not the result of the inhalation of coal mine dust.” Id. at 263. Dr. Farney’s

main reason that smoking and not coal dust caused Mr. Goodin’s lung disease “is the

absence of a significant risk factor for coal dust. He worked on a surface mine, which

statistically has less risk.” Id. at 266. The ALJ found the Antelope’s experts’ reliance on

statistical probabilities undermined their ultimate conclusion that Mr. Goodin did not

have pneumoconiosis because they did not show why Mr. Goodin is not among the

cohort of those who suffer COPD from surface coal mining. Id. at 282-83. Antelope did

not show that Mr. Goodin did not have legal pneumoconiosis. It therefore did not rebut

the presumption.

       We do not reweigh the evidence on appellate review, see Energy West, 555 F.3d at

1217, and conclude the record adequately supports the ALJ’s determination.

              b. Did Antelope rebut that pneumoconiosis caused any part of Mr.
                 Goodin’s disability?

       The ALJ, applying the rule-out standard, concluded Antelope did not show that

“no part” of Mr. Goodin’s respiratory disability “was caused by pneumoconiosis.” 20

C.F.R. § 718.305(d)(1)(ii); see Appx., Vol. II at 282-83. To rebut the presumption using

this method, Antelope needed to rule out any connection between Mr. Goodin’s disability

and his pneumoconiosis. The relevant medical evidence is the same evidence the ALJ

considered in determining whether Antelope rebutted the presumption that Mr. Goodin

                                           -25-
has pneumoconiosis.

       Although the ALJ did not specifically analyze disability causation, he made

findings showing that Antelope did not rebut the presumption.19 The ALJ found that Mr.

Goodin suffered from a totally disabling respiratory condition. Appx., Vol. II at 276. He

found persuasive Dr. Rose’s conclusion that Mr. Goodin was totally disabled from his

respiratory condition, which, she said, resulted, at least in part from his previous exposure

to coal mine dust. Id. at 283. Dr. Rose recognized that multiple factors, including

smoking, caused Mr. Goodin’s lung condition, but she still concluded that coal mining

was a substantially contributing factor. Id. at 260-61.

       Conversely, the ALJ found unpersuasive Antelope’s evidence that smoking alone

caused Mr. Goodin’s condition. Id. at 282-83. The ALJ further said that even if

Antelope’s evidence had persuaded him that smoking caused Mr. Goodin’s condition,

Antelope still had failed to show that coal dust had not aggravated or materially worsened

Mr. Goodin’s condition. Id. at 283 (“Both doctors simply eliminate coat dust exposure as

a cause, but do not adequately explain why it could not have contributed to [Mr.

Goodin’s] lung disease in addition to his history of smoking.”); see 20 C.F.R.

§ 718.201(b).

       Finally, the ALJ found that Antelope had “not rebutted the presumption by

showing [Mr. Goodin’s] pneumoconiosis did not arise out of his coal mine employment

       19
         See Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1061-62 (6th Cir.
2013) (holding ALJ’s “brief” reasoning on disability causation was sufficient).

                                            -26-
as the definition of legal pneumoconiosis subsumes that finding.” Appx., Vol. II at 283.

Because (1) the ALJ found that Mr. Goodin has legal pneumoconiosis, which Antelope

failed to rebut; (2) legal pneumoconiosis by definition arises from exposure to dust in

coal mining employment; and (3) Dr. Rose concluded that Mr. Goodin’s total disability

resulted in part from coal dust exposure, Antelope failed to rule out any connection

between Mr. Goodin’s pneumoconiosis and his total disability.20

       We conclude the record supports the ALJ’s decision and the Review Board’s

affirmance.

2. Was the ALJ’s Application of the Rebuttal Limitations Harmless Error?

       Antelope argues the rebuttal limitations (1) may not be applied to operators, and

(2) impermissibly restricted its ability to prove and argue that coal mining did not

substantially contribute to Mr. Goodin’s disability. We do not decide whether the

rebuttal limitations apply to Antelope21 because any error in the ALJ’s invocation of the

rebuttal limitations was harmless. See 5 U.S.C. § 706(2)(F) (“[D]ue account shall be

       20
          Antelope argues the ALJ did not make a finding and explanation as to whether it
successfully rebutted the presumption that the disability arose from coal mining
employment. As explained above, although the ALJ did not provide a separate analysis
for this particular element, the reasoning and evidentiary analysis throughout the ALJ’s
opinion supports the ALJ’s holding that the presumption was not rebutted. This fulfills
the ALJ’s duty of explanation under the Administrative Procedure Act (“APA”) because
we can “discern what the ALJ did and why he did it.” Gunderson v. U.S. Dep’t of Labor,
601 F.3d 1013, 1022 (10th Cir. 2010) (quotations omitted).
       21
        The Sixth Circuit has addressed this issue. See Big Branch Res., Inc. v. Ogle,
737 F.3d 1063, 1069-70 (6th Cir. 2013) (citing Morrison v. Tenn. Consol. Coal Co., 644
F.3d 473, 479 (6th Cir. 2011) (holding the rebuttal limitations applied to the employer)).

                                            -27-
taken of the rule of prejudicial error.”); Hillsdale Envtl. Loss Prevention, Inc. v. U.S.

Army Corps of Eng’rs, 702 F.3d 1156, 1165 (10th Cir. 2012) (“[E]ven if an agency

violates the APA, its error does not require reversal unless a plaintiff demonstrates

prejudice resulting from the error.”); Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013,

1022 (10th Cir. 2010) (“[W]e may overturn the ALJ’s decision only if the error . . .

prejudicially affected a substantial right of a party.” (quotations omitted)).

       The ALJ did not limit Antelope’s presentation of rebuttal evidence, and the record

contains substantial evidence that Antelope did not rebut the four elements of Mr.

Goodin’s prima facie case. See Island Creek Ky. Mining v. Ramage, 737 F.3d 1050,

1061 n.4 (6th Cir. 2013) (stating the ALJ did not restrict the employer’s rebuttal methods

and the employer could not otherwise rebut the presumption); Mingo Logan Coal Co. v.

Owens, 724 F.3d 550, 555-56 (4th Cir. 2013) (same).22

       Despite the ALJ’s finding that Mr. Goodin was entitled to the 15-year presumption

and that the rebuttal limitations applied, the ALJ still allowed Antelope to present rebuttal

evidence without restriction, and Antelope does not contest otherwise. The ALJ did not

even decide that the 15-year presumption applied until all evidence from both parties had

been submitted. Antelope’s evidence was insufficient to rebut any of the presumptively

established elements of Mr. Goodin’s claim.

       22
          As stated above, the four elements of Mr. Goodin’s prima facie case are, “(1) he
suffers from pneumoconiosis; (2) arising out of coal mine employment; (3) he is totally
disabled; and (4) his total disability is caused by pneumoconiosis.” Appx., Vol. II at 256;
see 20 C.F.R. §§ 725.202(d)(2), 718.204(c)(1).

                                             -28-
       First, as to Mr. Goodin suffering from pneumoconiosis, we have already upheld

the ALJ’s finding that Antelope did not rebut this element.

       Second, as to Mr. Goodin’s pneumoconiosis arising out of coal mine employment,

the ALJ noted that legal pneumoconiosis by statutory definition arises from coal mining.

Appx., Vol. II at 283; 20 C.F.R. § 718.201(a)(2). Because Antelope failed to rebut the

first element—the presence of legal pneumoconiosis—Antelope also failed to rebut the

presumption that the pneumoconiosis arose out of Mr. Goodin’s coal mine employment.

Appx., Vol. II at 283.

       Third, as to Mr. Goodin being totally disabled, Drs. Bodoni, Rose, and Farney all

agreed Mr. Goodin was totally disabled. Id. at 275. The ALJ discounted Dr. Repsher’s

opinion to the contrary because Dr. Repsher appeared to misunderstand Mr. Goodin’s job

duties and because he did not consider Mr. Goodin’s more recent test results. Id.

       Fourth, as to pneumoconiosis having caused Mr. Goodin’s total disability,

Antelope needed to show that coal mining was not a “substantially contributing cause” to

rebut this fourth element.23 It did not do so.

       The ALJ quoted the correct standard:

       A miner shall be considered totally disabled due to pneumoconiosis if
       [it] . . . is a substantially contributing cause of the miner’s totally disabling
       respiratory or pulmonary impairment. Pneumoconiosis is a “substantially
       contributing cause” of the minder’s disability if it:

       23
          The rule-out standard does not factor into this analysis because it is tied to the
rebuttal limitations.


                                              -29-
       (i) Has a material adverse effect on the miner’s respiratory or pulmonary
       condition; or

       (ii) Materially worsens a totally disabling respiratory or pulmonary
       impairment which is caused by a disease or exposure unrelated to coal mine
       employment.

Id. at 274; see 20 C.F.R. § 718.204(c)(1).24 As stated above, the ALJ found that Mr.

Goodin suffered from a totally disabling respiratory condition and that Antelope had not

shown that coal dust had not aggravated or materially worsened Mr. Goodin’s condition.

The record contains substantial evidence to support these findings.

       The ALJ ultimately concluded that Antelope had failed to rebut any of the

presumptively established elements of Mr. Goodin’s claim and that Mr. Goodin “has

established that he suffers from pneumoconiosis which is totally disabling and is caused

by his coal mine employment.” Appx., Vol. II at 283.

       After careful review of the record and the ALJ’s opinion and reasoning, we

conclude the rebuttal limitations did not affect the outcome. The ALJ did not limit

Antelope’s evidence, and any alleged error was harmless because Mr. Goodin would

have prevailed even without the rebuttal limitations.

                          E. Antelope’s Remaining Arguments

       Antelope contends the Department’s Office of Workers’ Compensation Programs

       24
         This regulation provides instruction when, as here, the claimant’s respiratory
condition is the product of both smoking and coal mine dust. The coal mine dust is a
substantial cause if it had a material adverse effect on the condition. See 20 C.F.R.
§ 718.204(c)(1)(i).

                                           -30-
(“OWCP”) did not perform a complete pulmonary exam on Mr. Goodin because the

x-ray from the exam was unreadable. Antelope also maintains the ALJ erred in not

considering all of the medical evidence it presented.

1. Incomplete Pulmonary Exam

       30 U.S.C. § 923(b) states, “Each miner who files a claim for benefits under this

subchapter shall upon request be provided an opportunity to substantiate his or her claim

by means of a complete pulmonary evaluation.” “A complete pulmonary evaluation

includes a report of physical examination, a pulmonary function study, a chest

roentgenogram [(x-ray)] and, unless medically contraindicated, a blood gas study.” 20

C.F.R. § 725.406. A report from a physical examination submitted with a claim must

include results from a chest x-ray that is conducted and interpreted pursuant to the

regulations in § 718.102. Id. § 718.104(a)(5). Section 718.102 provides that an x-ray

must be of suitable quality for proper classification of pneumoconiosis and cannot be

used as evidence of pneumoconiosis unless it abides by the provisions in the section. Id.

§ 718.102.

       Antelope argues that the OWCP failed to perform a complete pulmonary

examination on Mr. Goodin due to the poor quality of the chest x-ray from the OWCP

exam. Although the Department and Mr. Goodin agree that Mr. Goodin was entitled to a

complete pulmonary exam, they argue that Antelope cannot challenge the completeness

of the exam because the exam was for Mr. Goodin’s benefit in establishing his claim, not

for the operator’s benefit in defending the claim.
                                            -31-
       Dr. Bodoni conducted the OWCP exam, including the chest x-ray interpretation.

He thought the x-ray showed complicated pneumoconiosis. 25 Appx., Vol. II at 258-59.

The ALJ discounted Dr. Bodoni’s findings because of his lack of expertise in reading

x-rays, his failure to rate the x-ray’s quality, and Antelope’s rebuttal evidence that the

x-ray was unreadable. Id. at 277-78, 281. The ALJ stated that the x-ray, while arguably

readable, was not of good quality. Id. The ALJ therefore put little weight on Dr.

Bodoni’s reading and found the x-ray was neither positive nor negative for

pneumoconiosis. Id. Even so, the ALJ held the quality of the x-ray did not render the

entire examination deficient. Id.

       Antelope’s argument to the contrary fails. Mr. Goodin underwent five additional

chest x-rays, including one just five months after the challenged OWCP examination,

which Antelope’s expert, Dr. Repsher, reviewed. Id. at 277. In fact, Mr. Goodin had so

many chest x-rays interpretations that the ALJ was not able to consider them all because

of evidentiary limitations.

       Moreover, the chest x-ray concerns clinical pneumoconiosis, and the ALJ

determined that Mr. Goodin suffers from legal pneumoconiosis. Even if the x-ray had

been more readable and had shown no clinical pneumoconiosis, the ALJ’s determination

of legal pneumoconiosis would stand because legal pneumoconiosis can be found without

evidence of clinical pneumoconiosis.

       25
         Per Antelope’s request, Drs. Wiot and Meyer, both B-readers, also reviewed the
x-ray and found it unreadable.

                                             -32-
2. Failure to Consider Medical Evidence

       The BLBA states that “all relevant evidence shall be considered . . . .” 30 U.S.C.

§ 923(b). Antelope argues that the ALJ’s failure to consider some of its medical evidence

calls for a remand for full consideration of the evidence.

       Antelope contends the ALJ failed to consider three parts of the medical evidence.

First, it argues that because the ALJ did not discuss Dr. Meyer’s late-submitted

interpretation of a CT scan in the analysis section of his decision, he must not have

considered it. Second, Antelope complains the ALJ did not state what role Dr. Smith’s

treatment notes played in the outcome. Finally, Antelope argues the ALJ failed to credit

Drs. Farney’s and Repsher’s explanations that Mr. Goodin’s smoking, not his exposure to

coal dust, produced his respiratory condition.

       These arguments lack merit. The ALJ mentioned all of this evidence—Dr.

Meyer’s interpretation of the CT scan, Dr. Smith’s treatment records, and the reports and

depositions of Drs. Farney and Repsher. Appx., Vol. II at 255, 262-67. That the ALJ did

not discuss every aspect of the evidence in his analysis does not mean he did not consider

the evidence. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (“The record

must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required

to discuss every piece of evidence.”).

       Moreover, Antelope does not persuasively argue that this evidence would have

affected the outcome. As with the challenged x-ray discussed above, the CT scan

interpretation could only rebut evidence of clinical pneumoconiosis, and the ALJ found
                                            -33-
Antelope had failed to meet its burden of rebutting legal pneumoconiosis. The treatment

notes also only go to clinical pneumoconiosis: Dr. Smith wrote, “The radiographic

picture is certainly not typical for Coal Worker’s pneumoconiosis but the patient may

have a slowly active fibrosis in addition to the emphysema.” Appx., Vol. II at 267.

          Antelope’s arguments are more a matter of disagreement with the ALJ’s

assessment of the evidence as opposed to whether he considered the evidence at all. We

may not reweigh the evidence but can only determine whether substantial evidence

supported the decision. Energy West, 555 F.3d at 1217. “[T]he task of weighing

conflicting medical evidence is within the sole province of the ALJ.” Hansen, 984 F.2d

at 368.

                                     III. CONCLUSION

          Based on the foregoing, we deny Antelope’s petition for review.




                                             -34-
