          Case: 15-13804   Date Filed: 06/21/2016   Page: 1 of 7


                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-13804
                       Non-Argument Calendar
                     ________________________

                    Agency No. BRB 14-0382 BLA



CHEVRON MINING, INC.,

                                                                   Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
HENRY CHERRY,

                                                              Respondents.

                     ________________________

                Petition for Review of a Decision of the
                         Benefits Review Board
                      ________________________

                            (June 21, 2016)
              Case: 15-13804    Date Filed: 06/21/2016   Page: 2 of 7


Before HULL, MARCUS, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Chevron Mining, Inc. petitions for review of the Benefit Review Board’s

decision affirming the administrative law judge’s (“ALJ’s”) award of benefits to

Henry Cherry, III (“Claimant”), under the Black Lung Benefits Act, 30 U.S.C. §

901 et. seq. (“Act”). We deny the petition.

      In a petition for review under the Act, we review a decision by the ALJ

under a deferential standard, determining only whether the ALJ’s decision is in

accordance with the law and is supported by substantial evidence in the light of the

entire record. Pittsburg & Midway Coal Mining Co. v. Dir., OWCP, 508 F.3d 975,

980 (11th Cir. 2007). Substantial evidence is “such relevant evidence as a

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

      The Act provides benefits to miners who are totally disabled due to coal

workers’ pneumoconiosis. 30 U.S.C. § 901(a). Pneumoconiosis is “a chronic dust

disease of the lung and its sequelae, including respiratory and pulmonary

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

definition encompasses both “clinical” and “legal” pneumoconiosis. Id. “Clinical

pneumoconiosis” includes “those diseases recognized by the medical community


                                         2
               Case: 15-13804    Date Filed: 06/21/2016    Page: 3 of 7


as pneumoconioses,” including, among other things, coal workers’

pneumoconiosis. Id. § 718.201(a)(1). “Legal pneumoconiosis” means “any

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

employment” including, but “not limited to, any chronic restrictive or obstructive

pulmonary disease arising out of coal mine employment.” Id. § 718.201(a)(2).

      A miner is presumed to be totally disabled due to pneumoconiosis if he (1)

worked in an underground coal mine for 15 years or more and (2) suffers from a

totally disabling respiratory or pulmonary impairment. 20 C.F.R. § 718.305(b)(1),

(c). Once a miner demonstrates total disability and invokes the 15-year

presumption, the burden shifts to the employer to rebut the presumption by proving

either (1) that the miner suffers no legal or clinical pneumoconiosis or (2) that the

miner’s totally disabling impairment is wholly unrelated to his pneumoconiosis.

Id. § 718.305(d).

      That Claimant meets the criteria for eligibility under the 15-year

presumption is undisputed. The issue in this appeal is on whether substantial

evidence supports the ALJ’s determination that Chevron failed to rebut the

presumption.

      In a detailed written order granting Claimant benefits, the ALJ described the

contents of Claimant’s medical records and the medical opinions of several

doctors. Based on this evidence, the ALJ first determined that Claimant had no


                                          3
              Case: 15-13804     Date Filed: 06/21/2016   Page: 4 of 7


clinical pneumoconiosis. Applying the 15-year presumption, however, the ALJ

concluded that Chevron failed to satisfy its burden of demonstrating that Claimant

suffered from no legal pneumoconiosis. About causation, the ALJ noted that,

where a miner is found to have legal pneumoconiosis, the ALJ need not determine

separately whether the disease “arose out of” the miner’s coal mine employment.

      To rebut the regulatory presumption that a miner has pneumoconiosis, the

employer must present “affirmative proof that pneumoconiosis does not and did

not exist”: mere silence or the absence of an express diagnosis of pneumoconiosis

is not enough. Black Diamond Coal Mining Co. v. Benefits Review Rd., 758 F.2d

1532, 1534 (11th Cir. 1985) (discussing rebuttal of interim entitlement

presumption under 20 C.F.R. § 727.203(b)(4)). To rebut the presumption on

causal grounds, “the employer must show that no part of the claimant’s disability

arose out of mine employment.” Id. Thus, “[e]ven where pneumoconiosis is only

a ‘contributing cause’ of claimant’s total disability, benefits must be awarded as

long as no other ground for rebuttal has been established.” Id.

      As an initial matter, Chevron urges this Court to consider whether the

preponderance of the evidence in this case demonstrates the existence of

Claimant’s pneumoconiosis. The scope of our review, however, is limited to

whether the ALJ’s decision is supported by substantial evidence on the record.

The weight to be afforded the evidence is a matter within the ALJ’s discretion; and


                                          4
              Case: 15-13804     Date Filed: 06/21/2016   Page: 5 of 7


we are precluded from reweighing the evidence. See Bradberry v. Dir., OWCP,

117 F.3d 1361, 1367 (11th Cir. 1997) (“The ALJ is responsible for making

credibility determinations and for weighing conflicting evidence”); Vintson v.

Califano, 592 F.2d 1353, 1357 (5th Cir. 1979) (when reviewing for substantial

evidence, “[i]t is not the task of a reviewing court to reweigh the evidence”).

      On this record, we conclude that substantial evidence supports the ALJ’s

determination that Chevron failed to satisfy its burden of rebutting the 15-year

presumption. Chevron has identified no “affirmative proof” that Claimant’s

respiratory condition does not qualify as a chronic lung disease arising out of his

coal mine employment: that is, legal pneumoconiosis. That Claimant has never

been diagnosed formally with pneumoconiosis, in and of itself, is insufficient

rebuttal evidence. See Black Diamond Coal Mining Co., 758 F.2d at 1534.

      Although Dr. Lipscomb and Dr. Bailey opined that Claimant suffered no

coal workers’ pneumoconiosis, each doctor based his or her opinion largely on

Claimant’s negative chest x-rays and CT scans. As a result, the ALJ noted

correctly that Dr. Lipscomb’s and Dr. Bailey’s opinions were limited to whether

Claimant had clinical pneumoconiosis and failed to address -- and, thus, to rebut --

the issue of legal pneumoconiosis. And substantial evidence supports the ALJ’s

finding that Dr. Bailey’s opinion was incomplete and unclear in the light of Dr.

Bailey’s reliance on negative x-rays, and on inaccurate information about


                                          5
              Case: 15-13804     Date Filed: 06/21/2016   Page: 6 of 7


Claimant’s lung resection. See 20 C.F.R. § 718.202(a)(4) (“notwithstanding a

negative X-ray,” a physician may find, based on sound medical judgment, that a

miner suffers from pneumoconiosis).

      The ALJ also acted in a reasoned manner in giving little weight to Dr.

Goldstein’s opinion that Claimant’s condition was “consistent with” Claimant’s

smoking history and lung surgery (and, implicitly, not a result of pneumoconiosis).

First, Dr. Goldstein’s report included the wrong date for Claimant’s lung resection

surgery and failed to discuss the impact Claimant’s lung surgery may have had on

Claimant’s respiratory condition. Dr. Goldstein’s report also failed to discuss the

significance of the non-reversibility of Claimant’s condition and of Claimant’s

post-bronchodilator pulmonary function tests. Moreover, in the light of the

deficiencies in Dr. Goldstein’s report, the ALJ acted reasonably in determining that

Dr. Goldstein’s opinion failed to establish that no part of Claimant’s impairment

was due to pneumoconiosis.

      Because we conclude that the ALJ’s decision is both in accordance with the

law and supported by substantial evidence, we deny the petition for review. In

addition, we note that the record contains evidence of Claimant’s pneumoconiosis.

Both Dr. Barney and Dr. Hawkins opined that Claimant’s coal dust exposure

contributed, at least to some extent, to Claimant’s impairments. Dr. Goldstein also




                                          6
              Case: 15-13804   Date Filed: 06/21/2016   Page: 7 of 7


noted pleural abnormalities consistent with pneumoconiosis in Claimant’s May

2011 x-ray.

      DENIED.




                                       7
