                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               February 28, 2012
                                    PUBLISH                    Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 BRIDGER COAL COMPANY,

              Petitioner,
       v.                                                   No. 11-9531
 DIRECTOR, OFFICE OF WORKERS’
 COMPENSATION PROGRAMS, UNITED
 STATES DEPARTMENT OF LABOR,

              Respondent,

 and

 DELORES ASHMORE (Widow of and on
 behalf of Merrill Lambright),

              Claimant.


                ON PETITION FOR REVIEW OF AN ORDER
                   OF THE BENEFITS REVIEW BOARD,
                UNITED STATES DEPARTMENT OF LABOR
                 (Nos. BRB: 08-0500 BLA and 09-0401-BLA)


Ronald E. Gilbertson, Husch Blackwell LLP, Washington, DC, for Petitioner.

Barry H. Joyner, Attorney (M. Patricia Smith, Solicitor of Labor, Rae Ellen
James, Associate Solicitor, and Patricia M. Nece, Counsel for Appellate
Litigation, with him on the brief), Office of the Solicitor, U.S. Department of
Labor, Washington, D.C, for Respondent.


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
MURPHY, Circuit Judge.




I. INTRODUCTION

      Under the Black Lung Benefits Act (“the Act”), a coal miner who is totally

disabled due to pneumoconiosis 1 from coal mine employment is entitled to

lifetime benefits. 30 U.S.C. § 901(a). If the miner dies due to pneumoconiosis

from coal mine employment, the miner’s surviving spouse is entitled to benefits.

Id. In 2005, pursuant to the Act’s administrative provisions, an Administrative

Law Judge (“ALJ”) awarded lifetime benefits to Merrill D. Lambright and

survivor benefits to his widow, Delores Ashmore. Lambright’s claims arose out

of his employment with Bridger Coal Company. In 2006, a three-member panel

of the U.S. Department of Labor Benefits Review Board (the “Board”) vacated

the ALJ’s decision and remanded to the ALJ for reconsideration. In 2008, the

ALJ denied benefits on both the lifetime and survivor claims. In 2009, a three-

member panel of the Board reversed this decision and reinstated the 2005 ALJ’s

award of benefits. On reconsideration en banc, the full five-member Board was

unable to reach a disposition in which at least three permanent members



      1
        “The term ‘pneumoconiosis’ means 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.

                                       -2-
concurred. As a result, the 2009 panel decision stood. See 20 C.F.R.

§ 802.407(d). Bridger appeals, challenging the scope of the 2009 panel’s

authority to review the 2008 ALJ decision, the standard used in determining

whether to award benefits, and the onset-date determination. Exercising

jurisdiction pursuant to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a), this court

affirms the 2009 panel decision.

II. BACKGROUND

      A. Statutory Framework

      To be entitled to lifetime benefits under the Act, a miner must prove (1) he

suffers from pneumoconiosis; (2) which arose out of coal mining employment;

and (3) caused the miner to be totally disabled. 20 C.F.R. §§ 718.202–204;

Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009). To be

entitled to survivor benefits, a miner’s eligible survivor must prove: (1) the miner

had pneumoconiosis; (2) which arose out of coal mine employment; and (3)

caused the miner’s death. 20 C.F.R. § 718.205. Pneumoconiosis can be “simple”

or “complicated.”

      Simple pneumoconiosis . . . is generally regarded by physicians as
      seldom productive of significant respiratory impairment.
      Complicated pneumoconiosis, generally far more serious, involves
      progressive massive fibrosis as a complex reaction to dust and other
      factors (which may include tuberculosis or other infection), and
      usually produces significant pulmonary impairment . . . . This
      disability limits the victim’s physical capabilities, may induce death
      by cardiac failure, and may contribute to other causes of death.


                                         -3-
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976) (footnote omitted).

The Act does not use the term “complicated pneumoconiosis.” However, 30

U.S.C. § 921(c)(3) creates an irrebutable presumption of total disability due to

pneumoconiosis or death due to pneumoconiosis when the diagnostic criteria for

complicated pneumoconiosis are met. See Pittsburg & Midway Coal Mining Co.

v. Dir., Office of Workers’ Comp. Programs, 508 F.3d 975, 984 (11th Cir. 2007)

(discussing legislative history of the Act). Section 921(c)(3) provides:

      If a miner is suffering or suffered from a chronic dust disease of the
      lung which (A) when diagnosed by chest roentgenogram, yields one
      or more large opacities (greater than one centimeter in diameter) and
      would be classified in category A, B, or C in the International
      Classification of Radiographs of the Pneumoconioses by the
      International Labor Organization, (B) when diagnosed by biopsy or
      autopsy, yields massive lesions in the lung, or (C) when diagnosis is
      made by other means, would be a condition which could reasonably
      be expected to yield results described in clause (A) or (B) if
      diagnosis had been made in the manner prescribed in clause (A) or
      (B), then there shall be an irrebuttable presumption that he is totally
      disabled due to pneumoconiosis or that his death was due to
      pneumoconiosis, or that at the time of his death he was totally
      disabled by pneumoconiosis . . . .




                                         -4-
30 U.S.C. § 921(c)(3); see also 20 C.F.R. § 718.304 2 (implementing regulation).



      2
       20 C.F.R. § 718.304, the implementing regulation for § 921(c)(3),
provides:

      There is an irrebuttable presumption that a miner is totally disabled
      due to pneumoconiosis, that a miner’s death was due to
      pneumoconiosis or that a miner was totally disabled due to
      pneumoconiosis at the time of death, if such miner is suffering or
      suffered from a chronic dust disease of the lung which:

      (a) When diagnosed by chest X-ray (see § 718.202 concerning the
      standards for X-rays and the effect of interpretations of X-rays by
      physicians) yields one or more large opacities (greater than 1
      centimeter in diameter) and would be classified in Category A, B, or
      C in:

            (1) The ILO–U/C International Classification of
            Radiographs of the Pneumoconioses, 1971, or
            subsequent revisions thereto; or

            (2) The International Classification of the Radiographs of the
            Pneumoconioses of the International Labour Office, Extended
            Classification (1968) (which may be referred to as the “ILO
            Classification (1968)”); or

            (3) The Classification of the Pneumoconioses of the Union
            Internationale Contra Cancer/Cincinnati (1968) (which may be
            referred to as the “UICC/Cincinnati (1968) Classification”); or

      (b) When diagnosed by biopsy or autopsy, yields massive lesions in
      the lung; or

      (c) When diagnosed by means other than those specified in
      paragraphs (a) and (b) of this section, would be a condition which
      could reasonably be expected to yield the results described in
      paragraph (a) or (b) of this section had diagnosis been made as
      therein described: Provided, however, that any diagnosis made under
      this paragraph shall accord with acceptable medical procedures.

                                        -5-
Section 921(c)(3) thus provides three means by which a miner can prove

complicated pneumoconiosis: x-ray, autopsy, or other equivalent evidence.

      Regarding the second of these, the Act does not define the term “massive

lesions” for purposes of applying clause (B) of the § 921(c)(3) presumption. Two

other circuits have considered the showing necessary for a claimant to obtain the

benefit of the presumption using autopsy evidence. The Fourth Circuit has held

§ 921(c)(3) implicitly requires an “equivalency determination,” i.e., a claimant

seeking to prove complicated pneumoconiosis under the “massive lesions” clause

of § 921(c)(3) must show that such lesions would show up as one-centimeter-or-

greater opacities if detectable by chest x-ray. See, e.g., E. Associated Coal Corp.

v. Dir., Office of Workers’ Comp. Programs, 220 F.3d 250, 255–56 (4th Cir.

2000), Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 243 (4th Cir. 1999).

The Eleventh Circuit, by contrast, rejects the “equivalency determination”

requirement. Pittsburg & Midway, 508 F.3d at 987 n.7. Under the Eleventh

Circuit approach, “[i]t is sufficient if the claimant can establish by a

preponderance of the evidence that the miner’s autopsy or biopsy results are

consistent with a diagnosis of complicated pneumoconiosis under accepted

medical standards.” Id. at 986.

      B. Lambright’s Claim

      Lambright filed a claim for black lung benefits on March 19, 1998, while

he was still employed as a coal mine welder by Bridger. His last day of work was

                                          -6-
June 26, 1998, and he died on January 31, 2002. Upon Lambright’s death, Dr.

Michael J. Dobersen, the medical examiner for Arapahoe County, Colorado,

conducted an autopsy. Dr. Dobersen is board certified in anatomic, clinical, and

forensic pathology. His macroscopic examination of Lambright’s lungs revealed

“extensive anthracosis with focal irregular areas of anthracotic scarring, some of

which measure up to 2½ inches in greatest dimension.” He attributed

Lambright’s death “to complications of complicated coal workers’

pneumoconiosis (progressive massive fibrosis) also known as black lung disease.

A component of silicosis was also apparent. Evidence of severe cor pulmonale

was also apparent.”

      Bridger retained two pathologists to review Dr. Dobersen’s findings, Drs.

Erika Crouch and Joseph Tomashefski. Dr. Crouch is board certified in anatomic

pathology. She reviewed Dr. Dobersen’s report, autopsy slides, and other of

Lambright’s medical records before issuing an opinion on December 3, 2002. Dr.

Crouch concluded Lambright suffered from “simple coal workers’

pneumoconiosis and simple siderosis arising from welding as well as centriacinar

emphysema, acute bronchopneumonia, and changes consistent with severe

pulmonary hypertension.” Reviewing the autopsy slides, she observed “no areas

of ‘massive fibrosis or complicated silicosis’” and described the lesions she did

observe as “relatively small in size and number.” Dr. Crouch ruled out

Lambright’s pneumoconiosis as a significant contributing factor to his death. Dr.

                                         -7-
Tomashefski is board certified in clinical and anatomical pathology. He

concluded Lambright suffered from mild simple coal workers’ pneumoconiosis

and mild centracinar emphysema, and that the simple pneumoconiosis did not

cause or contribute to Lambright’s death. Dr. Tomashefski ruled out complicated

pneumoconiosis because the largest coalescent, pneumoconiotic lesion he

observed from the autopsy slides measured less than two centimeters in diameter,

which was below the minimum size required for a diagnosis of complicated

pneumoconiosis. See 20 C.F.R. § 718.304.

      The 2005 ALJ decision credited the opinion of Dr. Dobersen over the

contrary opinions of Drs. Crouch and Tomashefski for four reasons. First, Dr.

Dobersen was the prosector, and therefore the only reviewing pathologist who

made first-hand observations of Lambright’s lungs. 3 Second, Dr. Dobersen’s

report provided very specific measurements and detailed findings, including the

2.5 inch (6.35 cm) lesion. Third, the ALJ concluded Dr. Dobersen demonstrated

understanding of the concepts of simple and complicated pneumoconiosis.

Finally, the ALJ concluded Dr. Dobersen had superior qualifications because he

was board certified in more sub-disciplines of pathology than Drs. Crouch or

Tomashefski. The ALJ also reviewed the medical evidence, including chest x-

rays, CT-scans, hospitalization and treatment records, and medical opinion


      3
       The ALJ made clear Dr. Dobersen’s opinion was not accorded greater
weight for this reason alone.

                                       -8-
evidence. The ALJ nonetheless concluded the autopsy evidence was the most

compelling and accorded the most weight to Dr. Dobersen’s opinion. Applying

the irrebutable presumption of 20 C.F.R. § 718.304, the ALJ awarded benefits on

both the lifetime and survivor claims. The ALJ concluded the lifetime benefit

onset date was March, 1998, the month in which Lambright filed his claim. The

survivor benefit onset date began January, 2002, the month of Lambright’s death.

      C. Subsequent Proceedings

      Bridger appealed the 2005 ALJ decision to the Board. Pursuant to 33

U.S.C. § 921(5), Bridger’s appeal was heard by a three-member panel. This court

had not yet decided what showing was necessary for a claimant to be entitled to

the irrebutable presumption created by § 921(c)(3) of the Act. The panel

therefore looked to Fourth Circuit law for guidance in deciding this issue. See

Shuff v. Cedar Coal Co., 967 F.2d 977, 980 (4th Cir. 1992) (concluding board did

not act in good faith by completely ignoring out-of-circuit precedent simply

because it was out-of-circuit). Applying the Fourth Circuit’s Eastern Associated

Coal and Double B Mining opinions, the panel vacated the 2005 ALJ decision

because it “did not determine that the medical evidence established that the node

seen on CT scan, or the lesion seen on autopsy, would be seen on x-ray as an

opacity greater than one centimeter, and there is no evidence in the record which

would support such a determination.” The panel remanded the case to the ALJ to

determine whether Lambright suffered from total disability and/or death due to

                                        -9-
pneumoconiosis, 20 C.F.R. §§ 718.204(b), (c), 718.205(c), notwithstanding the

unavailability of the § 921(c)(3) irrebutable presumption.

      In a 2008 decision on remand, the ALJ concluded Ashmore failed to prove

either total disability or death due to pneumoconiosis by a preponderance of the

evidence. The 2008 ALJ decision relied principally on the opinions of Drs.

Crouch, Tomashefski, and Tuteur. 4 Those opinions were credited over the

contrary opinion of Dr. Dobersen because, the ALJ concluded, the 2006 decision

of the Board “discredited the opinion of Dr. Doberson [sic] that the pathology

slides showed complicated pneumoconiosis as the Board held that there is no

evidence in the record, which would include the death certificate and autopsy

report of Dr. Doberson [sic], which would support a finding of complicated

pneumoconiosis.” On the lifetime claim, reviewing the medical evidence, the

ALJ found Lambright suffered from simple pneumoconiosis and cor pulmonale,

but concluded the pneumoconiosis was insufficient to have caused his disabling

pulmonary impairment. The ALJ similarly resolved the survivor claim,

concluding Lambright’s simple pneumoconiosis was insufficient to have caused

or contributed to his death.




      4
       Dr. Peter G. Tuteur, board certified in internal medicine and pulmonary
medicine was another of Bridger’s medical experts. He reviewed Lambright’s
medical records and issued a report which concluded Lambright suffered from
simple pneumoconiosis which was insufficient to cause or hasten his death.

                                        -10-
      In 2009, Ashmore, proceeding pro se, appealed the 2008 ALJ decision. By

this time, the Eleventh Circuit had decided Pittsburg & Midway, which created a

circuit split on the issue of whether equivalency determinations were necessary in

applying the irrebutable presumption of pneumoconiosis set forth in § 921(c)(3)

and its implementing regulation, 20 C.F.R. § 718.304. The Board, again acting

through a three-member panel, ordered supplemental briefing on what standard it

should apply in reviewing the ALJ’s 2008 decision and whether it should reaffirm

the 2005 ALJ decision in the event it applied the Eleventh Circuit standard.

Concluding the Eleventh Circuit’s interpretation of § 921(c)(3) was superior to

that of the Fourth Circuit, the Board vacated its 2006 Decision and Order and

reinstated the 2005 ALJ Decision and Order awarding benefits.

      Bridger filed a motion for reconsideration and suggestion for

reconsideration en banc of the 2009 panel decision, which the full five-member

Board considered. The en banc panel could not reach a disposition in which at

least three permanent members of the Board concurred. Two members of the en

banc Board would have affirmed the 2009 panel decision, two members of the en

banc Board would have reversed the 2009 panel decision, and one member of the

en banc Board would have affirmed the 2009 panel’s adoption of the Eleventh

Circuit’s § 921(c)(3) standard but remanded the case to the ALJ to apply it in the

first instance. Therefore, pursuant to 20 C.F.R. § 802.407(d), the 2009 three-

member panel decision was left undisturbed.

                                        -11-
III. DISCUSSION

      A. Standard of Review

      Bridger’s appeal presents issues of statutory and regulatory interpretation

as well as challenges to the factual findings of the ALJ. The issues of statutory

and regulatory interpretation are reviewed de novo. Andersen v. Dir., Office of

Workers’ Comp. Programs, 455 F.3d 1102, 1103 (10th Cir. 2006). However,

“[o]ur review of alleged errors of law, and the effect they may have had on the

benefits decision, must be made in light of the premise that the Act is intended to

be remedial in nature, and doubts should be resolved in favor of the disabled

miner or his or her survivors.” Bosco v. Twin Pines Coal Co., 892 F.2d 1473,

1476 (10th Cir. 1989) (quotations and alterations omitted). In reviewing the

challenges to the factual findings of the ALJ, this court’s task is to determine

whether the Board properly concluded the decision of the ALJ was supported by

substantial evidence. Energy W. Mining Co., 555 F.3d at 1217. On substantial

evidence review, the court “will not reweigh the evidence considered by the

agency, but only inquire into the existence of evidence in the record that a

reasonable mind might accept as adequate to support its conclusion.” Id.

(quotation and emphasis omitted). “Additionally, the task of weighing conflicting

medical evidence is within the sole province of the ALJ.” Hansen v. Director,

Office of Workers’ Comp. Programs, 984 F.2d 364, 368 (10th Cir. 1993).




                                        -12-
      B. Scope of Board’s Authority

      Bridger first argues the 2009 panel decision is invalid because a majority of

the full Board did not vote for its outcome. Because the 2009 panel decision was

based on a 2-1 majority, and because no additional members of the en banc Board

voted to affirm the panel decision, Bridger argues, it would be improper to allow

two members of a five-member board to control the outcome of the case.

Bridger’s argument misconstrues the statutory structure governing the Board’s

review authority. The Board is composed of five members and is empowered to

“hear and determine appeals . . . from decisions with respect to claims of

employees” under the Act. 33 U.S.C. § 921(b)(1), (3) 5. Further,

      The Board is authorized to delegate to panels of three members any
      or all of the powers which the Board may exercise. . . . Official
      adjudicative action may be taken only on the affirmative vote of at
      least two members of a panel. Any party aggrieved by a decision of
      a panel of the Board may . . . petition the entire permanent Board for
      review of the panel’s decision. Upon affirmative vote of the majority
      of the permanent members of the Board, the petition shall be granted.

Id. § 921(b)(5). Here, the Board delegated its power to hear Ashmore’s appeal

from the 2008 ALJ decision to a three-member panel. On the affirmative vote of

two members of the panel, the 2008 ALJ decision was reversed and the 2005 ALJ

decision was reinstated. Bridger petitioned the entire permanent five-member



      5
      The Act incorporated the benefit review provisions of the Longshore and
Harbor Workers’ Compensation Act for claims arising after December 31, 1973.
30 U.S.C. § 932(a).

                                        -13-
Board for review of the panel’s decision. 6 However, there was no “affirmative

vote of the majority of the permanent members of the Board” granting the relief

Bridger requested. Instead, the en banc Board was divided 2-2-1 and could not

reach a consensus on any disposition. The Board therefore properly left the 2009

panel decision undisturbed. See Curry v. Beatrice Pocahontas Coal Co., 67 F.3d

517, 522 n.8 (4th Cir. 1995) (stating where three members of Board did not vote

affirmatively to “vacate” decision under review, Board’s action constitutes

“affirmance-by-necessity” subject to judicial review as an effective affirmance).

      Bridger next argues the 2009 panel lacked authority to review and reinstate

the 2005 ALJ decision after it concluded its prior reversal of that decision, and

the subsequent 2008 ALJ decision on remand, was erroneous. We reject this

argument. 33 U.S.C. § 921(b)(3) provides:

      The Board shall be authorized to hear and determine appeals raising
      a substantial question of law or fact taken by any party in interest
      from decisions with respect to claims of employees under this
      chapter and the extensions thereof. The Board’s orders shall be
      based upon the hearing record. The findings of fact in the decision
      under review by the Board shall be conclusive if supported by
      substantial evidence in the record considered as a whole.



      6
       In its Reply Brief, Bridger argues the “actual decision under review” by
the en banc Board was not the 2009 panel decision at all, but rather, the 2008 ALJ
order denying benefits after remand from the 2006 panel decision. This argument
is implausible. The statutory scheme contemplates en banc review of an adverse
panel decision, not an adverse ALJ decision. See 33 U.S.C. § 921(b)(5).
Moreover, it was the 2009 panel decision from which Bridger sought
reconsideration and requested rehearing en banc.

                                        -14-
The relevant regulations further describe the scope of the Board’s review

authority:

      The Benefits Review Board is not empowered to engage in a de novo
      proceeding or unrestricted review of a case brought before it. The
      Board is authorized to review the findings of fact and conclusions of
      law on which the decision or order appealed from was based. Such
      findings of fact and conclusions of law may be set aside only if they
      are not, in the judgment of the Board, supported by substantial
      evidence in the record considered as a whole or in accordance with
      law.

20 C.F.R. § 802.301(a). Bridger’s reading of these provisions restricting the

Board’s authority elevates form over substance. Reviewing the 2008 ALJ

decision in light of what it considered new developments in the law on the

§ 921(c)(3) presumption, the Board determined that decision was not “in

accordance with law.” Although the Board went on to “reconsider whether the

administrative law judge’s 2005 Decision and Order . . . is supported by

substantial evidence and in accordance with applicable law,” such

“reconsideration” necessarily occurred within the scope of its initial review of the

ALJ’s 2008 order. Moreover, Bridger’s supplemental brief reiterated its

objections to the 2005 ALJ decision. Having concluded the ALJ applied the

wrong legal standard in its 2008 decision, the Board in its discretion could have

remanded the case to the ALJ for a third hearing to apply the Eleventh Circuit




                                        -15-
approach to the § 921(c)(3) presumption. 7 However, none of the statutes or

authorities Bridger cites indicate such remand was required. 8

      Bridger also argues the Board was precluded by the law of the case doctrine

from reconsidering its prior approach to the complicated pneumoconiosis issue.

Initially, Bridger cites no authority, and the court is unaware of any, indicating

the law of the case doctrine applies between administrative courts. See Andersen

v. U.S. Dep’t of Labor, 422 F.3d 1155, 1180 n.50 (10th Cir. 2005). Assuming

without deciding law of the case does apply, Bridger overstates the breadth of the

doctrine. Bridger characterizes the law of the case doctrine as a rigid rule that

“an issue once litigated and decided in a case is put to an end,” absent an

intervening change in controlling law which dictates a different result. Bridger is

correct that, “[g]enerally, the ‘law of the case’ doctrine dictates that prior judicial

decisions on rules of law govern the same issues in subsequent phases of the same

case.” Been v. O.K. Indus., Inc., 495 F.3d 1217, 1224 (10th Cir. 2007).

However, “the rule is a flexible one that allows courts to depart from erroneous

      7
     Indeed, this was the preferred disposition of the fifth en banc Board
member.
      8
        Bridger’s reliance on Bartley v. L & M Coal Co., 901 F.2d 1311 (6th Cir.
1990), is misplaced. Bartley concerned the court’s jurisdiction to review an ALJ
decision which was subsequently vacated by the Board and superseded by a new
decision and order by the ALJ on remand. See 901 F.2d at 1312. The Sixth
Circuit stated it did not have such authority, as its jurisdiction is limited to review
of final orders from the Board. Id. Here, the scope of this court’s jurisdiction is
not at issue, as Bridger’s appeal is from a final order of the 2009 three-member
panel of the Board.

                                         -16-
prior rulings, as the underlying policy of the rule is one of efficiency, not restraint

of judicial power . . . .” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d

818, 823 (10th Cir. 2007) (citation omitted); see also United States v. U.S.

Smelting Ref. & Mining Co., 339 U.S. 186, 199 (1950) (characterizing the law of

the case doctrine as “only a discretionary rule of practice”).

      Even if it were bound by the law of the case doctrine, therefore, the Board

appropriately exercised its discretion to depart from the doctrine here.

Intervening binding law from the controlling circuit is not the only circumstance

in which it is reasonable for the Board to reconsider its prior interpretation of

governing law. The development of a circuit split on an issue central to the

Board’s resolution of a case that occurs during the pendency of that case is a

legitimate reason for the Board to reconsider prior rulings.

      C. Standard for Applying 30 U.S.C. § 921(c)(3) and 20 C.F.R. § 718.304

      This court has not considered what showing is necessary for a claimant,

like Ashmore, who relies on the “massive lesions” prong of § 921(c)(3) of the Act

to claim entitlement to the irrebutable presumption of disability and/or death due

to pneumoconiosis. Neither the Act itself nor its implementing regulations define

the term “massive lesions.” Under the approach of the Fourth Circuit, 9 to obtain

      9
       The court disagrees with Bridger’s assertion that the Fourth Circuit’s
requirement of equivalency determinations is followed by the Third and Sixth
Circuits. In Clites v. Jones & Laughlin Steel Corp., 663 F.2d 14, 16 (3d Cir.
1981), the Third Circuit held equivalency determinations were necessary to apply
                                                                     (continued...)

                                          -17-
the benefit of the § 921(c)(3) presumption, a claimant relying on autopsy

evidence as set forth in clause (B) of the statute must show such lesions would, if

measured by x-ray, produce opacities greater than one centimeter as set forth in

clause (A) of the statute. Double B Mining, 177 F.3d at 243. The central

justifications for this approach were stated in Double B Mining:

             Because clauses (A), (B), and (C) of § 921(c)(3) are three
      different ways of diagnosing complicated pneumoconiosis, in
      construing the requirements of each, one must perform equivalency
      determinations to make certain that regardless of which diagnostic
      technique is used, the same underlying condition triggers the
      irrebuttable presumption. In other words, the same condition that
      triggers the presumption by producing opacities greater than one
      centimeter in diameter on an x-ray should be considered “massive
      lesions” under the statute if diagnosed through biopsy. By explicitly
      referencing prongs (A) and (B) as guides, prong (C) of the statute
      requires “plainly that equivalency determinations shall be made.”
      Logic commands that prongs (A) and (B) be similarly equivalent.
      Any other rule would lead to the irrational result that the
      determination of whether a miner has totally disabling
      pneumoconiosis could turn on the method of diagnosis rather than on
      the severity of his disease.

            Because prong (A) sets out an entirely objective scientific
      standard, it provides the mechanism for determining equivalencies
      under prong (B) or prong (C). In prong (A), Congress mandated that
      the condition that triggers the irrebuttable presumption is one that
      creates, on an x-ray, at least one opacity greater than one centimeter
      in diameter. When that condition is diagnosed by biopsy rather than

      9
       (...continued)
clause (C) of § 921(c)(3), but did not decide whether such a requirement is
implicit in clause (B). The Sixth Circuit, in Gray v. SLC Coal Co., 176 F.3d 382,
390 (6th Cir. 1999), stated the § 921(c)(3) presumption could be invoked only if
an autopsy physician opined that a lesion discovered during autopsy would
produce an opacity of greater than one centimeter if viewed by x-ray or that such
lesion constitutes a “massive lesion.”

                                        -18-
      x-ray, it must therefore be determined whether the biopsy results
      show a condition that would produce opacities of greater than one
      centimeter in diameter on an x-ray. That is to say, “massive lesions,”
      as described in prong (B), are lesions that when x-rayed, show as
      opacities greater than one centimeter in diameter.

Id. (citation omitted).

      The Eleventh Circuit described “at least four basic shortcomings” with the

equivalency determination requirement of the Fourth Circuit. Pittsburg &

Midway, 508 F.3d at 987 n.7. First, the Fourth Circuit’s approach conflates

clause (A) with clause (B) of § 921(c)(3). Congress used the term “or” when

setting forth the three ways complicated pneumoconiosis could be established

under § 921(c)(3), indicating alternatives were intended. Id. Second, reading

clause (B) to require an equivalency determination would make it superfluous in

light of clause (C), which makes the irrebutable presumption applicable where a

claimant shows, by “other means,” a condition which would be expected to yield

results described in parts (A) and (B). Id. Third, citing Supreme Court precedent

and the legislative history of the Act, the Eleventh Circuit noted autopsy

examinations frequently reveal a greater prevalence of pneumoconiosis than x-ray

examinations. Id. (citing Usery, 428 U.S. at 32). Fourth, the equivalency

determination requirement appears to conflict with the Act’s mandate that claims

not be denied solely on the basis of negative x-ray results. Id. (citing 208 U.S.C.

§ 923(b)).




                                        -19-
      This court is persuaded by the approach of the Eleventh Circuit. Requiring

“equivalency determinations” in applying the § 921(c)(3) presumption is contrary

to the plain language of the statute and, thus, inconsistent with congressional

intent. The Fourth Circuit’s rationale that “logic commands” equivalency

determinations be implied in interpreting clauses (A) and (B) because they are

expressly required by clause (C) is unpersuasive. To the extent clause (C)

demonstrates Congress knew how to require equivalency determinations through

the use of specific language in one part of the statute, the lack of similar language

in another part of the statute indicates congressional intent not to require such

determinations. See United States v. Salas-Mendoza, 237 F.3d 1246, 1248 (10th

Cir. 2001). Additionally, it is not at all “irrational” that claimants in some cases

will be able to demonstrate entitlement to benefits under one clause of the statute

even if they are unable to demonstrate such entitlement under another clause.

When Congress provides multiple methods by which claimants can demonstrate

entitlement to benefits, it is to be expected such claimants will attempt to prove

their claims using the easiest method available to them. This result is also

consistent with the broad remedial purposes of the Act. See Magnus v. Dir.,

Office of Workers’ Comp. Programs, 882 F.2d 1527, 1531 (10th Cir. 1989).

Moreover, regardless of whether equivalency determinations are required, the

ALJ is not relieved of its obligation to consider “all relevant evidence” in making

a benefits determination. See 30 U.S.C. § 923(b).

                                         -20-
      Bridger argues the 2005 ALJ decision was not supported by substantial

evidence even if no equivalency determination is required. This court disagrees.

The 2005 ALJ decision involved the weighing of conflicting medical evidence,

i.e., the weighing of the opinion of Dr. Dobersen against the contrary opinions of

Drs. Crouch, Tomashefski, and Tuteur. Such weighing is the sole province of the

ALJ and cannot be disturbed by this court on substantial evidence review.

Hansen, 984 F.2d at 368. As Bridger acknowledges, Lambright’s medical history

was extremely complex. The opinion of the ALJ reviewed Lambright’s medical

history and included a detailed discussion of the opinions of Drs. Dobersen,

Crouch, Tomashefski, and Tuteur, as well as more than a dozen other doctors who

either treated or examined Lambright or analyzed his medical records. The ALJ

found the autopsy evidence the most compelling and credited the opinion of Dr.

Dobersen over the contrary opinions of Drs. Crouch and Tomashefski.

      The ALJ provided four reasons for preferring the opinion of Dr. Dobersen:

his board certifications in the most sub-disciplines of pathology, his position as

prosector, his detailed findings, and his demonstrated understanding of

complicated and simple pneumoconiosis. Dr. Dobersen’s opinion included an

observation of a 2.5 inch (6.35 cm) lesion of anthracotic scarring in Lambright’s

lung, which was consistent with one of Bridger’s doctor’s observation of a “large

node” on earlier CT scans. Although Bridger claims this observation was

unsupported by Drs. Crouch and Tomashefski, Bridger does not attempt to argue

                                         -21-
such a lesion would not qualify as “massive” under § 921(c)(3)(B). While the

other reasons Bridger advances for preferring the opinions of its experts over that

of Dr. Dobersen might be persuasive on de novo review, they ultimately amount

to invitations to re-weigh the evidence, which this court may not do. See Energy

W. Mining Co., 555 F.3d at 1217.

      D. Benefits Award Period

      Bridger challenges the ALJ’s award of benefits on Lambright’s lifetime

claim commencing in March, 1998, the month in which his claim was first filed.

Bridger does not suggest an alternative entitlement date. A miner is entitled to

benefits under the Act beginning the month he becomes totally disabled due to

pneumoconiosis. 20 C.F.R. § 725.503(b). If the evidence does not establish the

onset date of the miner’s total disability, benefits become payable the month the

miner filed his claim. Id. However, if the evidence affirmatively shows the

miner was not disabled for some period of time after the claim filing date,

benefits cannot be backdated to the filing date. Dir., Office of Workers’ Comp.

Programs v. Gurule, 653 F.2d 1368, 1371–72 (10th Cir. 1981), abrogated on

other grounds by Lukman v. Dir., Office of Workers’ Comp. Programs, 896 F.2d

1248, 1250–51 (10th Cir. 1990); see also Rochester & Pittsburgh Coal Co. v.

Krecota, 868 F.2d 600, 603–04 (3d Cir. 1989). Because a miner with complicated

pneumoconiosis is irrebutably presumed to be totally disabled, see supra Part

II.A., a miner is entitled to benefits the month his simple pneumoconiosis

                                        -22-
becomes complicated pneumoconiosis, or, if the onset date of complicated

pneumoconiosis cannot be determined, the month he filed his claim.

      The exact month Lambright’s simple pneumoconiosis became complicated

pneumoconiosis cannot be determined because the diagnosis of complicated

pneumoconiosis came from Dr. Dobersen’s autopsy report. Therefore, absent an

affirmative showing that Lambright did not have complicated pneumoconiosis, an

award of lifetime benefits as of his filing date was appropriate. Bridger argues

the onset date for Lambright’s lifetime benefits can be no earlier than the month

of his death because Dr. Dobersen’s autopsy was the first diagnosis of

complicated pneumoconiosis. The autopsy evidence, however, does not establish

the date of onset, but merely shows Lambright developed complicated

pneumoconiosis at some point prior to his death. “It is well recognized that

pneumoconiosis is often a latent, progressive and insidious disease and therefore

evidence establishing total disability due to pneumoconiosis may relate backward

in time to establish an earlier onset date in the absence of earlier contradictory

like evidence.” Gurle, 653 F.2d at 1368 (emphasis added). 10 Therefore, to

establish a benefits onset date subsequent to Lambright’s claim-filing date,




      10
        In support of its argument Bridger relies on two prior ALJ decisions. See
Gruller v. BethEnergy Mines, Inc., 11 Black Lung Rep. 3-316 (1988); Gordon v.
Cedar Coal Co., 13 Black Lung Rep. 3-146 (1989). These decisions have no
precedential value and are not binding on this court.

                                         -23-
Bridger must point to “earlier contradictory like evidence” disproving the

presence of complicated pneumoconiosis.

      In this respect, Bridger points to x-ray, CT-scan, biopsy, and medical

opinion evidence produced prior to Lambright’s death which did not diagnose

complicated pneumoconiosis. This showing is inadequate. As both Congress and

the Supreme Court have recognized, x-ray evidence is not a reliable indicator of

the absence of complicated pneumoconiosis, particularly when weighed against

contrary autopsy evidence. See Usery, 428 U.S. at 31–32. The CT-scan evidence

is not wholly inconsistent with Dr. Dobersen’s diagnosis of complicated

pneumoconiosis. As early as 2000, one of the CT-scans revealed the presence of

a “large mass” which the 2005 ALJ considered consistent with Dr. Dobersen’s

observation of a 2.5 inch lesion of anthracotic scarring. By rule, negative biopsy

evidence cannot establish the absence of pneumoconiosis. 20 C.F.R.

§ 718.106(c). Lastly, as set forth supra Part III.C., the decision of the ALJ to

credit the opinion of Dr. Dobersen over the contrary opinions of Bridger’s experts

was rational and supported by substantial evidence.

      Bridger also attempts to avoid this result by characterizing the ALJ’s award

of benefits to Lambright as subsequent to a modification proceeding. After a

finding of entitlement, the Act permits the district director to modify an award on

his own motion or upon request of either party. 33 U.S.C. § 922; 30 U.S.C.

§ 932(a) (incorporating modification provisions of Longshore and Harbor

                                         -24-
Workers’ Compensation Act). Modification may be granted based on a change in

conditions or because of a mistake in a determination of fact. 33 U.S.C. § 922; 30

U.S.C. § 932(a); 20 C.F.R. § 725.310(a) (1999). When the grant of a

modification request is based on a change in conditions and the evidence does not

establish the onset date of total disability due to pneumoconiosis, benefits are

payable as of the date of the modification request rather than the initial filing

date. 20 C.F.R. § 725.503(d)(2). The default entitlement date does not change,

however, when a modification request is granted based on mistake of fact.

Bridger therefore argues the decision of the ALJ was preceded by a grant of a

“change in conditions” modification request based on Lambright’s death, and so

benefits cannot be backdated further than the month of death. 11 This argument is

not supported by the record.

      Lambright initially filed his claim for lifetime benefits in March 1998. On

December 21, 1998, the district director entered a determination of entitlement,

awarding lifetime benefits to Lambright. Bridger subsequently requested

modification of this award. On February 23, 2001, pursuant to Bridger’s request,

the director issued a “Proposed Decision and Order Approving Request for

Modification After Remand.” The director suspended payment of benefits

pending the final adjudication of Lambright’s claim. The order also specified: “If


      11
       Bridger’s interpretation of the proceedings would therefore entitle
Lambright to one month of lifetime benefits. See 20 C.F.R. § 725.502(c).

                                         -25-
no request for a formal hearing is received within 30 . . . days from the date of

this Proposed Order . . ., the proposed order will be deemed to have been accepted

by all parties and the findings set forth herein shall become final.” On March 14,

2001, within the appropriate thirty-day window, Lambright requested a hearing

before an ALJ. Before that request was acted on, Lambright died.

      On March 19, 2002, Ashmore filed her claim for survival benefits and

submitted additional medical evidence, including Dr. Dobersen’s autopsy report.

The claim was not styled as a request for modification. Nonetheless, on August

3, 2002, the district director issued a new order, styled as a “Proposed Decision

and Order Granting Request for Modification,” which awarded Ashmore benefits

on Lambright’s lifetime claim and on her survivor claim. The Decision and Order

thereby disposed of all pending motions, implicitly denying Bridger’s original

motion for modification which had not yet been finally ruled on. Thus, it appears

the director interpreted Ashmore’s motion as a motion for modification based on

change in conditions, but only to the extent Ashmore alleged she was entitled to

additional (survivor) benefits due to Lambright’s death. To the extent the order

granting modification was based on a change in conditions, the ruling only

implicated the claim for survivor benefits, not Lambright’s original claim for

lifetime benefits. Therefore, there are no grounds for a change in the default

entitlement date for Lambright’s lifetime benefits.




                                        -26-
IV. Conclusion

     For the foregoing reasons, the decision of the Board is AFFIRMED.




                                    -27-
