                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 11-2416


WEST VIRGINIA CWP FUND, as carrier for Daniel Boone Coal
Company of WV, Inc.,

                 Petitioner,

           v.

ARDIS J. GUMP; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                 Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(11-0134-BLA)


Argued:   March 19, 2014                      Decided:      April 15, 2014


Before GREGORY    and   FLOYD,    Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


ARGUED:   William   Steele  Mattingly,    JACKSON    KELLY    PLLC,
Morgantown, West Virginia, for Petitioner.        Heath M. Long,
PAWLOWSKI BILONICK & LONG, Ebensburg, Pennsylvania; Sean Gregory
Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents. ON BRIEF: Ashley M. Harman, Kevin T. Gillen,
JACKSON KELLY PLLC, Morgantown, West Virginia, for Petitioner.
M. Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate   Solicitor,  Ann  Marie   Scarpino,   Office    of   the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for  Respondent   Director,   Office  of   Workers’   Compensation
Programs, United States Department of Labor.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      As      amended,      the     Black       Lung      Benefits       Act     (“the      Act”)

provides      to     claimants      a     rebuttable       presumption          favoring      the

award of benefits if they can establish fifteen years of coal

mining      employment       and    the     existence          of   a   totally        disabling

respiratory or pulmonary impairment. 30 U.S.C. § 921(c)(4). This

presumption          is     referred       to        as   the       “15-year          rebuttable

presumption.”             Here,     the       West        Virginia         Coal        Workers’

Pneumoconiosis Fund (“the Fund”) challenges the Department of

Labor Benefits Review Board’s award of black lung benefits to

Ardis J. Gump, who worked as a miner in West Virginia for over

thirty      years.    Gump’s       claim    relied        on    the     15-year       rebuttable

presumption as applied by the Administrative Law Judge (“ALJ”).

For   the     reasons      set     forth    within,       we    deny     the    petition      for

review.

                                                I.

      After thirty-four years as a coal miner, at least fifteen

of    which    were       spent     working      underground,           Ardis        Gump   began

suffering from obstructive lung disease sometime around 1998.

Gump’s      breathing         and       respiratory         impairments           have      since

worsened.      At    the     time    of    the       evidentiary        hearing,       Gump   was

unable to shower or climb steps without losing his breath.

      On February 27, 2008, Gump filed a sixth claim for lifetime

benefits      with    the    Department         of    Labor     against        the    Fund,   the

                                                 3
carrier      for    Daniel    Boone   Coal   Company,   one   of     his    former

employers. He had previously filed five subsequent claims, each

of which was denied. ALJ Thomas M. Burke presided over a formal

hearing on Gump’s sixth claim on September 22, 2009. The ALJ

heard testimony from Gump’s wife (Gump’s dementia prevented him

from testifying) and he admitted and considered corroborative

medical evidence and reports from five physicians.

       Gump’s previous claims had been denied because he had been

unable to establish the existence of a total disability or a

qualifying disease. Although the physicians agreed that Gump was

now totally disabled by a pulmonary impairment, they disagreed

as    to    the    disability’s   diagnosis    and   cause.   Aside    from     his

exposure to coal dust, Gump was a heavy smoker, smoking about

half-a-pack per day. Three physicians, Dr. Martin, Dr. Schaaf,

and        Dr.     Saludes,    diagnosed      Gump    with    coal         workers’

pneumoconiosis, attributable to his employment, 1 while the other




       1
       Although Drs. Martin, Schaaf, and Saludes diagnosed Gump
with both clinical and legal pneumoconiosis, the ALJ found that
Gump prevailed as to legal pneumoconiosis only. For purposes of
the Act, clinical pneumoconiosis consists of “those diseases
recognized by the medical community as pneumoconiosis,” whereas
legal pneumoconiosis expands the scope to encompass “any chronic
lung disease or impairment and its sequelae arising out of coal
mine employment,” including, as is relevant in this case, an
obstructive   pulmonary  disease   arising  out  of   coal  mine
employment. 20 C.F.R. § 718.201(a) (2008).



                                         4
two, Dr. Renn and Dr. Bellotte, opined that Gump did not have

pneumoconiosis and that his disability was caused by smoking.

       Before the adjudication of Gump’s claim, Congress enacted

amendments to the Act, see Patient Protection and Affordable

Care   Act,    Pub.     L.    No.     111-148,     § 1556,       124     Stat.    119,    260

(2010), which eased the path for miners to establish a claim for

benefits. Relevant here, the amendment reinstated a rebuttable

presumption of total disability due to pneumoconiosis, or the

“15-year rebuttable presumption.” Under the presumption, if a

claimant      establishes       the     existence         of    a    totally      disabling

respiratory      or     pulmonary       impairment         and       fifteen     years    of

underground      coal        mining    employment,         he       is   entitled    to     a

rebuttable       presumption           that        pneumoconiosis           caused        his

disability. Id. at § 1556(a), codified at 30 U.S.C. § 921(c)(4).

       On September 30, 2010, the ALJ issued a Decision and Order

awarding black lung benefits to Gump. Applying § 921(c)(4), the

ALJ    held   that    Gump      was    entitled      to    the      15-year      rebuttable

presumption because he had worked in coal-mining for thirty-four

years and because all five physicians agreed that he was, from a

pulmonary      standpoint,          totally       disabled.         He   then     addressed

whether    the   Fund    had     established        either       that     Gump    does    not

suffer from pneumoconiosis or that Gump’s disability did not

arise out of coal mine employment. The ALJ concluded that, due

to inadequate presentations by its physician experts, the Fund

                                              5
had not met its burden on either score. Upon appeal, the Board

issued a per curiam opinion accepting the ALJ’s reasoning and

affirming the ALJ’s decision.

      The Board agreed with the ALJ’s conclusion that the Fund

failed to disprove the existence of legal pneumoconiosis. It

pointed     out       that     the    two        physicians       who     had     disputed     the

diagnosis       had     not       sufficiently          accounted       for   Gump’s     positive

response        to    bronchodilator             medications,       a    reaction      typically

consistent           with     coal-related          disease       and     not     tobacco.     In

addition, one of the experts demonstrated an incomplete grasp of

relevant legal definitions, in that he attributed his diagnosis

of no legal pneumoconiosis to other physicians’ diagnosis of no

clinical pneumoconiosis.

      The Board also accepted the ALJ’s finding that the Fund had

failed     to    disprove          that    Gump’s        disability       arose    out    of   his

employment       in     a    coal    mine.        The    same    two     physicians      who   had

disputed        the    diagnosis          also    questioned        disability       causation;

because their analyses of the latter rested on their conclusion

on   the   former,          the    Board     agreed       with   the      ALJ’s    decision     to

discredit their testimony.

                                                  II.

      The Fund challenges the Board’s decision on three grounds.

First, it contends that the ALJ’s application of the 15-year

rebuttable presumption violated the Supreme Court’s decision in

                                                   6
Usery       v.    Turner      Elkhorn   Mining       Co.,      428       U.S.       1    (1976),     by

limiting          its    rebuttal     options       to    the       text       of       § 921(c)(4).

Second,      it     asserts     that    the    ALJ       erroneously              discredited       its

physicians’ conclusions as to disability causation. Finally, it

asks for a review of the sufficiency of the evidence presented

to rebut the presumption of Gump’s legal pneumoconiosis.

       In        reviewing     administrative         decisions              regarding         benefit

claims under the Act, we determine whether “substantial evidence

supports the factual findings of the ALJ and whether the legal

conclusions of the [Board] and ALJ are rational and consistent

with    applicable         law.”     Harman     Mining        Co.       v.    Dir.,       Office     of

Workers’         Comp.    Programs,     678     F.3d      305,      310       (4th       Cir.    2012)

(internal          citation      omitted).      Substantial              evidence         is     “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB,

305 U.S. 197, 229 (1938).

                                               A.

        The Fund first argues that the ALJ misapplied the 15-year

rebuttable          presumption       established         by       30    U.S.C.          § 921(c)(4)

because he improperly restricted its efforts to rebut it. We

disagree.

        In order to establish an entitlement to benefits under the

Act,    a    claimant         must   demonstrate         by    a    preponderance              of   the

evidence         that    he    is    totally    disabled           due       to     pneumoconiosis

                                                7
arising out of coal mine employment. 30 U.S.C. § 901(a); Dehue

Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th Cir. 1995). In

other words, the Act requires that a claimant demonstrate

       (1) that he has pneumoconiosis, in either its
       “clinical” or “legal” form [“disease”]; (2) that the
       pneumoconiosis arose out of coal mine employment
       [“disease causation”]; (3) that he is totally disabled
       by    a    pulmonary    or    respiratory   impairment
       [“disability”]; and (4) that his pneumoconiosis is a
       substantially   contributing   cause   of  his   total
       disability [“disability causation”].

Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013)

(citing 20 C.F.R. § 725.202(d)(2)); see also Buck Creek Coal Co.

v. Sexton, 706 F.3d 756, 758 (6th Cir. 2013).

       If   a    claimant        qualifies      for    the    15-year      rebuttable

presumption      under     30    U.S.C.   § 921(c)(4),        however,     the    burden

shifts.     The        15-year     rebuttable         presumption        tracks     the

requirements          of   § 901(a):      if    a     claimant   establishes        the

existence of a qualifying disability (element 3) and 15 years of

coal   mining        employment,   then    he    is   entitled    to   a   rebuttable

presumption that he suffers from pneumoconiosis and that the

pneumoconiosis caused his disability (elements 1, 2, and 4).

Mingo, 724 F.3d at 555. It thus follows that a party may defeat

the presumption by rebutting any one of those three elements:

existence       of    pneumoconiosis      (1),      disease    causation     (2),    or

disability causation (4).




                                           8
       Here, the ALJ analyzed all three issues in turn. As to

element      (1),     the     existence         of     pneumoconiosis,       the     ALJ

comprehensively examined the evidence presented by the Fund and

found that it had successfully refuted the presence of clinical

pneumoconiosis        but    did     not    refute      the    presence     of     legal

pneumoconiosis.        The    ALJ    also       considered       disease    causation,

element      (2),     as     part    of     his      analysis        regarding     legal

pneumoconiosis, concluding that “Employer has failed to rebut

the presumption that Claimant’s lung disease is caused in part

by his exposure to coal dust.” J.A. 45. Finally, the ALJ looked

to the Fund’s evidence on disability causation, element (4).

Rejecting the Fund’s experts as unpersuasive on whether Gump’s

disability was caused by pneumoconiosis, the ALJ concluded that

the Fund failed to rebut the presumption.

       Likewise, the Board also duly examined all three avenues of

rebuttal. The Board considered whether the evidence disproved

the existence of legal pneumoconiosis, element (1), and held

that   the    ALJ     properly      discounted       the     physicians’     testimony

because    they     failed    to    disassociate        Gump’s    disease    from    his

exposure     to    coal    dust,    element     (2).    It    also   considered,     and

ultimately        agreed    with,    the    ALJ’s      conclusion      of   sufficient

evidence of disability causation (4). We conclude that the ALJ’s

findings of fact and conclusions of law, as well as the Board’s



                                            9
subsequent affirmance of his findings, appropriately scrutinized

each aspect of rebuttal evidence offered by the Fund.

        The Fund’s argument to the contrary relies primarily on the

Supreme Court’s decision in Usery v. Turner Elkhorn Mining Co.,

428 U.S. 1 (1976), in which the Court held that the language of

30 U.S.C. § 921(c)(4) delineating methods of rebuttal applies

only        to   the   Secretary   of   the     Department    of    Labor       and   “is

inapplicable to operators.” Id. at 35. According to the Fund,

the ALJ improperly limited its rebuttal options to those listed

in § 921(c)(4) even though it is a private mine operator.

        We are not persuaded that the ALJ limited his analysis in

such a manner. Under § 921(c)(4), “[t]he 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). Even though the ALJ’s analysis was structured along

this two-pronged format, his analysis nevertheless examined all

three       elements     covered   by   the     presumption    in   a   substantive

manner. 2 E.g., Mingo, 724 F.3d at 555 (“Although Mingo Logan


        2
        It is unexceptional that the ALJ chose to collapse his
analysis of presence of disease (element 1) and disease
causation (element 2). Since at least 1978, the definition of
legal pneumoconiosis has been defined as “any chronic lung
disease    or  impairment . . . arising  out   of  coal   mine
(Continued)
                                          10
argues that the ALJ limited its ability to rebut the presumption

by applying to it the rebuttal methods applicable only to the

Secretary, the record in fact shows that the ALJ did no such

thing. Rather, the ALJ considered all of the evidence that Mingo

Logan presented and found that it did not rebut any of the three

elements covered by the presumption.”). Here, as in Mingo, the

ALJ considered all possibilities for rebuttal; accordingly, as a

matter of law, he did not err under Usery.

      The Fund argues, alternatively, that the ALJ utilized an

improper standard of proof with respect to the three rebuttal

options. It posits that as a private mine operator, not bound by

the   language        of    § 921(c)(4),        it     could     rebut     the   15-year

presumption upon a lesser showing than could the Secretary. Cf.

Mingo,    724    F.3d      at   560    (Niemeyer,      J.,     concurring);      but    see

Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir.

1984) (“[T]he employer must rule out the causal relationship

between    the        miner’s    total     disability          and   his    coal       mine

employment       in     order     to    rebut        the   interim       presumption.”)



employment.” 20 C.F.R. § 718.201(a)(2) (emphasis added). Thus,
if an ALJ finds that legal pneumoconiosis has been established
(1), it logically follows that the miner’s qualifying disease
was caused by coal mining (2). As we have explained, the fact
that the ALJ employed a two-element analytical structure does
not obscure the fact that he duly considered three elements.
See, e.g., Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063,
1070 (6th Cir. 2013).



                                           11
(emphasis      added).      We    need   not       resolve       this    issue,      however,

because      the   record     demonstrates         that    the        Fund’s   presentation

would have failed under any standard. As discussed in greater

detail below, the ALJ rejected, on sound grounds, the testimony

of the two expert physicians proffered by the Fund. Save for the

testimony of those experts, the Fund submitted minimal evidence

(if any at all) to corroborate its assertions as to existence of

disease, disease causation, and disability causation. Thus, we

find that the Fund was not restricted, either by form or by

standard,     in   the    evidence       it   presented          to    rebut   the   15-year

presumption. 3

                                              B.

      The Fund also challenges the ALJ’s conclusion that it did

not meet its burden of rebutting Gump’s disability causation, or

whether Gump’s disability arose out of his coal mine employment.

In rejecting the argument as to disability causation, the ALJ

had   referred      —    in      the   Fund’s      view,     erroneously         —    to   his

conclusion as to the existence of disease. The ALJ observed that

the   sole    evidence      presented      by      the    Fund    to     rebut   disability

causation was comprised of the expert opinions of Dr. Renn and

      3
       Nor will we reach the validity of 20 C.F.R. § 718.305
(2013), the DOL’s regulation implementing § 921(c)(4). Our
holding today rests on the ALJ’s application of the statutory
15-year rebuttable presumption and its interplay with Usery. On
the facts of this case, we find no reversible error.



                                              12
Dr. Bellotte, but that neither doctor had found the existence of

legal    pneumoconiosis       in    the     first      instance;       importantly,      the

physicians’ conclusion that Gump’s disability was unrelated to

pneumoconiosis       was    based    on   their        premise     that   Gump    did    not

suffer    from   pneumoconiosis          in    the     first     place.   The    ALJ    thus

concluded     that      the      experts’          conclusions     as     to    disability

causation lacked credibility and failed to satisfy the Fund’s

burden on rebuttal. See also Board Decision, J.A. 56 (“The same

reasons for which the administrative law judge discredited the

opinions    of   Drs.      Renn    and    Bellotte,       that     claimant      does    not

suffer from legal pneumoconiosis, also undercut their opinions

that     claimant’s     impairment        is        unrelated     to    his     coal    mine

employment.”).

        We do not find error in the ALJ’s analysis. The ALJ noted

that these physicians in particular relied on a finding of no

legal pneumoconiosis to conclude that Gump’s disability was not

caused by his exposure to coal dust. If the premise upon which a

conclusion was based is determined to lack credibility (and thus

probative value), then it follows that the conclusion itself

lacks    credibility,       as    well.       We    are   also    unpersuaded      by    the

Fund’s attempted distinction between a finding of pneumoconiosis

and a presumption of pneumoconiosis. This ostensible distinction

does not change the fact that the ALJ had legitimate reason to



                                              13
discredit the physicians’ opinions on an issue that served as

the basis for a second and derivative opinion.

                                    C.

      Finally, after reviewing the record, we hold that the ALJ

relied on substantial evidence in concluding that the Fund did

not meet its burden to rebut the presumption that Gump suffered

from legal pneumoconiosis. The ALJ reviewed the opinions of four

physicians    who   had   opined     on     whether    Gump   had   legal

pneumoconiosis, two of whom answered in the affirmative and two

in the negative. The ALJ found, however, that the opinions of

the two physicians who found no disease were “not persuasive”

and   “not   well-reasoned,”   in    part    because   they   failed   to

disassociate Gump’s disease from his exposure to coal dust and,

as to Dr. Bellotte in particular, because he had reversed his

original opinion and displayed a flawed understanding of the

definition of legal pneumoconiosis. We agree with the Board that

the ALJ’s credibility determinations are rational and supported

by substantial evidence in the record. Doss v. Dir., Office of

Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995).

                                   III.

      For the reasons set forth above, we deny the petition for

review.

                                                         PETITION DENIED



                                    14
