                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 19a0016p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 IMOGENE SHEPHERD, widow of Tramble Shepherd,          ┐
                                       Petitioner,     │
                                                       │
                                                        >      No. 17-4313
       v.                                              │
                                                       │
                                                       │
 INCOAL, INC.; AMERICAN BUSINESS & MERCANTILE          │
 INSURANCE MUTUAL, INC.; DIRECTOR, OFFICE OF           │
 WORKERS’ COMPENSATION PROGRAMS, UNITED                │
 STATES DEPARTMENT OF LABOR,                           │
                                   Respondents.        │
                                                       ┘

                  On Petition for Review from the Benefits Review Board;
                                     No. 17-0081 BLA.

                                Argued: December 5, 2018

                           Decided and Filed: February 6, 2019

             Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Evan B. Smith, APPALACHIAN CITIZENS’ LAW CENTER, Whitesburg,
Kentucky, for Petitioner. Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington,
D.C., for Respondents Incoal and American Business & Mercantile Insurance. Jeffrey S.
Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent. ON BRIEF: Evan B. Smith, APPALACHIAN CITIZENS’ LAW CENTER,
Whitesburg, Kentucky, for Petitioner. Laura Metcoff Klaus, GREENBERG TRAURIG LLP,
Washington, D.C., for Respondents Incoal and American Business & Mercantile Insurance.
Jeffrey S. Goldberg, Sean G. Bajkowski, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Federal Respondent.
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                         Page 2


                                      _________________

                                            OPINION
                                      _________________

       MARTHA CRAIG DAUGHTREY, Circuit Judge. More than ten years ago, claimant
Imogene Shepherd filed for survivor’s benefits under the Black Lung Benefits Act (BLBA),
30 U.S.C. §§ 901–944, contending that her husband, a coal miner, died from respiratory
complications exacerbated by exposure to coal dust during his years working in underground
coal mines. To date, respondent Incoal, Inc., has continued to challenge that claim, insisting that
Tramble Shepherd, the claimant’s deceased husband, should not be credited with 15 years of
underground coal mine employment, a length of time that would call into play a statutory and
regulatory presumption that would justify an award of survivor’s benefits to Imogene Shepherd.
In its most recent decision in this litigation, the Benefits Review Board (BRB or Board) of the
United States Department of Labor agreed with Incoal and denied Shepherd the relief she sought.

       Despite the need to resolve this litigation, further factfinding by an administrative law
judge is required to ensure that all relevant evidence regarding the propriety of the claim has
been considered.    We thus grant the petition for review and remand this matter to the
administrative agency for further factual findings and determinations.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Tramble Shepherd (the miner) worked for various coal companies in Kentucky from no
later than May 1963 until June 1985. Although Imogene Shepherd (the claimant) later testified
under oath that her husband ceased his coal mine employment because “he was having a hard
time breathing and he couldn’t catch his breath,” the miner’s 1987 claim for benefits under the
BLBA indicated that he had stopped working in or around coal mines due to a back injury he
suffered on the job approximately two years prior to his retirement. Indeed, the administrative
law judge who first presided over the miner’s claim for benefits noted that “[t]he [miner] stated
that his breathing problem was one reason for not returning to coal mining but that he quit in
1985, on the advice of his physician, due to a back injury.”
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                         Page 3


       In any event, in April 1987, the miner filed with the United States Department of Labor
for benefits under the BLBA. An administrative law judge conducted a hearing and concluded
that the evidence presented by the miner and by Incoal, Inc.—the last mining company with
which the miner was employed for at least one year—supported the stipulation of the parties that
the miner “ha[d] 17 years of qualifying coal mine employment.” Nevertheless, despite the
administrative law judge’s conclusion “that the medical evidence established that the Miner
suffered from coal workers’ pneumoconiosis[, h]e determined . . . that the evidence did not
support a finding that the Miner was totally disabled by the disease.”         Consequently, the
administrative law judge denied the claim for benefits, and the miner chose not to appeal that
determination.

       After the miner’s death in July 2008, however, his widow, the claimant, filed with the
Department of Labor for survivor’s benefits to which she claimed she was entitled. The District
Director of the Department’s Office of Workers’ Compensation Programs agreed that such
benefits were appropriate. Incoal appealed that ruling, and an evidentiary hearing on the claim
was held before an administrative law judge in August 2011. Because the passage of the Patient
Protection and Affordable Care Act (ACA) in 2010 had revived a “rebuttable presumption that a
miner’s death was due to pneumoconiosis if he was totally disabled by a respiratory or
pulmonary impairment and worked for at least 15 years in underground mines (or in substantially
similar conditions),” a crucial aspect of the hearing involved the proper way in which to calculate
the duration of the miner’s coal mine employment. In a 51-page “Decision and Order,” the
administrative law judge found that the miner “had at least 15.25 years of underground coal mine
employment” and thus was entitled to the presumption that his “death was due to
pneumoconiosis if [his surviving spouse] can establish with medical evidence that the Miner
suffered from a totally disabling respiratory or pulmonary impairment.” The administrative law
judge then concluded that the claimant met that burden. Because Incoal failed to rebut the
 No. 17-4313                           Shepherd v. Incoal, Inc., et al.                                 Page 4


statutory and regulatory presumption, the administrative law judge ordered the company to pay
survivor’s benefits to the claimant.1

        As was its prerogative, Incoal then appealed the administrative law judge’s decision to
the BRB. In its unanimous decision, the Board determined that the administrative law judge
both failed to address all relevant evidence regarding the length of the miner’s coal mine
employment and failed to explain adequately how he calculated the 15.25-year figure that
justified application of the 15-year presumption. The Board thus remanded the matter for the
required clarifications but specifically stated that “[i]f the administrative law judge finds that
claimant has established that the miner had fifteen years of qualifying coal mine employment, he
may reinstate his finding that claimant invoked the [15-year] presumption.” Furthermore, “[i]n
the interest of judicial economy, and to avoid the repetition of any error on remand,” the BRB
addressed other contentions of error put forth by Incoal and affirmed the administrative law
judge’s determinations that the company failed to prove that the miner did not suffer from legal
pneumoconiosis or “that the miner’s death did not arise out of, or in connection with, his coal
mine employment.” Thus, as expressed by the Board, “if the administrative law judge again
finds, on remand, that claimant has invoked the [15-year] presumption, he may reinstate the
award of benefits.”

        On remand, the administrative law judge explained that, when calculating a miner’s coal
mine employment, he first should determine, if possible, the beginning and ending dates of any
such employment. If those dates are not ascertainable, however, “an administrative law judge
may use any reasonable means of calculating the length of the claimant’s coal mine employment.
Clark v. Barnwell Coal Co., 22 B.L.R. 1-275, 1-280, 1-281, BRB Nos. 01-0876 BLA and 02-
0280 BLA (Apr. 30, 2003).” For calendar years prior to 1978, the administrative law judge
concluded that it would be reasonable to “count[ ] quarters [of years] in which the Miner’s Social
Security earnings records show that he earned $50.00 or more, while not counting the quarters in
which he earned less.” Doing so, and discounting any quarters in which the miner worked at


        1Despite   the fact that the parties previously had stipulated that the miner had 17 years of coal mine
employment, the administrative law judge held that the stipulation no longer was binding on the parties, given the
change in the applicable law resulting from passage of the ACA.
 No. 17-4313                           Shepherd v. Incoal, Inc., et al.                                Page 5


jobs that were not related to coal extraction, the administrative law judge calculated that the
miner should be credited with 27 quarters, or 6.75 years of coal mine employment prior to 1978.2

        For years after 1977, the miner’s Social Security Earning Statement did not break down
his earnings by quarters. Consequently, for those later years, when the evidence in the record
was insufficient to establish the beginning and ending dates of any employment, the
administrative law judge chose to “credit [the] Miner with a full calendar year of coal mine
employment where the Miner’s yearly income, as reflected in Social Security earnings records,
exceeds the yearly wage base as reported by Exhibit 609 of the Office of Workers’
Compensation Programs Coal Mine Procedure Manual, Wage Base History (‘Exhibit 609’).”
When the evidence indicated that the miner was employed for less than the entire calendar year,
however, the administrative law judge divided the miner’s “yearly income from coal mine
employment by ‘the coal mine industry’s average daily earnings for that year, as reported by the
Bureau of Labor Statistics.’ § 725.101(a)(32)(iii); see Exhibit 10 of the Office of Workers’
Compensation Programs Coal Mine Procedure Manual, Average Earnings of Employees in Coal
Mining (Apr. 2012) (‘Exhibit 610’).” (Other citations and footnote omitted.) In applying that
computational framework, the administrative law judge attributed an additional 6.33 years of
coal mine employment to the miner for the years 1978–1985. Combined with the 6.75 years of
coal mine employment that the administrative law judge found should be credited to the miner,
the administrative law judge determined “that the Miner worked in coal mine employment for a
total of 13.08 years.”

        Because that figure fell short of the 15 years of coal mine employment that would justify
application of the presumption applied in his earlier decision, the administrative law judge noted
that the claimant bore “the burden of proving that the miner had pneumoconiosis that arose out
of coal mine employment, and that his death was due to pneumoconiosis.” (Quotation marks and
footnote omitted.) An analysis of medical evidence and opinions regarding the miner’s health
and the effect that exposure to coal dust during coal mine employment might have had on it did

        2In   making the calculation of quarters worked by the miner in coal mine employment prior to 1978, the
administrative law judge apparently failed to account for one quarter of such work in 1966 and another quarter in
1967. Consequently, a proper calculation of the quarters worked in coal mine employment in which the miner
earned at least $50.00 could have yielded a sum of 29 quarters, or 7.25 years.
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                        Page 6


not convince the administrative law judge that the miner suffered from pneumoconiosis, that any
pulmonary conditions from which the miner suffered arose from his coal mine employment, or
that the miner’s death was due to pneumoconiosis. Accordingly, the administrative law judge
determined that the claimant was not entitled to survivor’s benefits.

       The claimant filed a timely motion for reconsideration, arguing that additional qualifying
quarters of coal mine employment should have been credited to the miner for his pre-1978 work
and that the administrative law judge should have used “Exhibit 610 of the Office of Workers’
Compensation Programs Coal Mine Procedure Manual, Wage Base History instead of Exhibit
609 to compare the Miner’s actual earnings to the earnings he would be expected to make if he
worked a full year.” Applying the formulas suggested by the claimant, the administrative law
judge recalculated the miner’s years of coal mine employment and determined that the miner
should have been credited with a total of 15.07 years of such work. Because the 15-year
presumption of total disability due to pneumoconiosis once again was determined to be
applicable, and because the BRB previously had held that “if the administrative law judge again
finds, on remand, that claimant has invoked the [15-year] presumption, he may reinstate the
award of benefits,” the administrative law judge ordered Incoal to “pay the Claimant all benefits
to which she is entitled.”

       Again finding itself liable for payment of benefits to the miner’s widow, Incoal petitioned
the BRB for further review of the administrative law judge’s decision. Among the allegations of
error raised by Incoal were claims that the administrative law judge accorded too much credit for
the miner’s employment in calendar years 1963, 1964, and 1973. In each of those years, argued
Incoal, the administrative law judge credited the miner with full quarters of work when the
miner’s own listings of his dates of employment indicated that he had not worked for each of the
three months in the contested quarters. The BRB agreed with Incoal that the miner could not be
credited with a full quarter of coal mine employment when other evidence indicated that less
time had been spent in qualified mine work. For example, the BRB noted:

       The miner indicated that he worked for Allen Fork [Coal Company] from May of
       1963 to July of 1963, and for Expert Coal from August of 1963 to November of
       1964. Consequently, the miner’s self-reported and uncontradicted employment
       history reveals that he was not engaged in coal mine employment during the first
 No. 17-4313                         Shepherd v. Incoal, Inc., et al.                     Page 7


       four months of 1963 or the last month of 1964. Thus, the miner was entitled to, at
       most, nineteen months (1.59 years) of coal mine employment from 1963 through
       1964. Consequently, we hold that the administrative law judge, by crediting the
       miner with 1.75 years of coal mine employment during this period, overestimated
       the length of the miner’s coal mine employment by 0.16 of a year.

(Citations and footnotes omitted.)

       Similarly, the administrative law judge credited the miner with 0.50 of a year for his coal
mine employment in 1973 because the miner earned more than $50.00 in both the third and
fourth quarters of that year. However, the miner’s own records indicated that he was not
engaged in coal mine employment until September 1973, meaning that he “was entitled to, at
most, 0.34 of a year of coal mine employment in 1973.” That 0.16 overage, in conjunction with
the 0.16 overage from the 1963–1964 years, meant that the administrative law judge credited the
miner with 0.32 years of coal mine employment that was unearned. Deducting 0.32 years from
the 15.07 years of coal mine employment found by the administrative law judge meant that the
miner had accumulated only 14.75 years of coal mine employment, three months less than
necessary to justify application of the 15-year presumption that the miner died from
pneumoconiosis brought on by exposure to coal dust during coal mine employment. Because the
claimant had not challenged the earlier finding by the administrative law judge that, absent that
presumption, she could not establish that the miner suffered from pneumoconiosis or that his
death was due to that condition, the award of benefits was reversed. The claimant now petitions
for review of that decision.

                                            DISCUSSION

Standard of Review

       When addressing a petition for review in a black-lung-benefits case, we review the legal
conclusions of the Benefits Review Board de novo. Big Branch Res., Inc. v. Ogle, 737 F.3d
1063, 1068 (6th Cir. 2013). Even so, “our review actually focuses on whether the ALJ’s
decision is supported by substantial evidence.” Island Creek Ky. Mining v. Ramage, 737 F.3d
1050, 1056 (6th Cir. 2013). In other words, “[r]eview on appeal should be focused on whether
the ALJ—not the Board—had substantial evidence upon which to base his or her decision.”
 No. 17-4313                     Shepherd v. Incoal, Inc., et al.                        Page 8


Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 742 (6th Cir. 1997) (citation omitted). “Substantial
evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). To satisfy the
substantial-evidence standard, the administrative law judge must explain adequately “the reasons
for crediting certain testimony and documentary evidence over other testimony and documentary
evidence.” Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 478 (6th Cir. 2011). The
reviewing court may not reweigh the evidence, substitute its judgment for that of the
administrative law judge, or reverse the administrative law judge’s decision simply because “we
would have taken a different view of the evidence were we the trier of facts.” Ramey v. Kentland
Elkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985).

Framework of the Black Lung Benefits Act

       In 1969, noting the “significant number of coal miners living today who are totally
disabled due to pneumoconiosis arising out of employment in one or more of the Nation’s coal
mines,” Congress enacted the Black Lung Benefits Act in an effort to combat that health crisis.
30 U.S.C. § 901(a). To do so, the Act proposed “to provide benefits . . . to coal miners who are
totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death
was due to such disease.” Id.

       The Act, and the regulations promulgated pursuant to it, define “pneumoconiosis” as “a
chronic disease of the lung and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment.”       30 U.S.C. § 902(b); 20 C.F.R. §§ 718.201(a) and
725.101(a)(25).   “This definition includes both medical, or ‘clinical’, pneumoconiosis and
statutory, or ‘legal’, pneumoconiosis.” 20 C.F.R. § 718.201(a). The regulations further define
“clinical pneumoconiosis” as “those diseases recognized by the medical community as
pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial
amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that
deposition caused by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1).
“Legal pneumoconiosis,” however, has a much broader definition, including, but “not limited to,
any chronic restrictive or obstructive pulmonary disease” “significantly related to, or
substantially aggravated by, dust exposure in coal mine employment.”                 20 C.F.R.
 No. 17-4313                           Shepherd v. Incoal, Inc., et al.                                 Page 9


§ 718.201(a)(2) and (b). Thus, the surviving spouse of a miner shall be entitled to benefits under
the Act if the survivor can establish that the deceased spouse was a miner who suffered from a
chronic pulmonary disease that was aggravated by coal dust exposure that arose out of coal mine
employment and that contributed to the miner’s total disability or death.                       See 20 C.F.R.
§§ 725.201(a)(2) and 725.202(d).

        The burden placed upon disabled miners and the survivors of deceased miners to
establish entitlement to black lung benefits was lessened somewhat with the enactment of the
ACA in 2010. As part of that sweeping legislation, Congress reinstated within the BLBA what is
known as the “15-year presumption.”3 In relevant part, that presumption states:

        [I]f a miner was employed for fifteen years or more in one or more underground
        coal mines, . . . 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, that his
        death was due to pneumoconiosis, or that at the time of his death he was totally
        disabled by pneumoconiosis.

30 U.S.C. § 921(c)(4).

        The regulations promulgated by the Office of Workers’ Compensation Programs of the
United States Department of Labor echo those provisions. For claims (like the one at issue here)
that were filed after January 1, 2005, and were pending on or after March 23, 2010, 20 C.F.R.
§ 718.305 authorizes application of a rebuttable presumption that a miner’s death was due to
pneumoconiosis if a surviving spouse can establish, in the absence of a chest x-ray showing that
the miner suffered from clinical pneumoconiosis, that:

        The miner engaged in coal-mine employment for fifteen years, either in one or
        more underground coal mines, or in coal mines other than underground mines in
        conditions substantially similar to those in underground mines, or in any
        combination thereof; and
                                                      ***



        3“The  presumption was first added to the BLBA in 1972. In 1981, Congress eliminated the presumption.
Congress reinstated the presumption in 2010, making it retroactive to claims filed after January 1, 2005 that were
pending on or after March 23, 2010.” Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp.
Programs, 790 F.3d 657, 662 (6th Cir. 2015) (citations omitted).
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                       Page 10


       The miner has, or had at the time of his death, a totally disabling respiratory or
       pulmonary impairment.

20 C.F.R. § 718.305(b). “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).

       Once invoked, the 15-year presumption may be rebutted “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.”
Id. As conceded by Incoal in its appellate brief, once the 15-year presumption is invoked,
requiring a “claim defendant to disprove the existence of pneumoconiosis, either clinical or legal,
or to disprove that pneumoconiosis influenced the miner’s death in any way, [is] a difficult if not
impossible burden.”

Calculation of the Duration of the Miner’s Coal Mine Employment

       Certain elements of Imogene Shepherd’s claim for survivor’s benefits under the BLBA
are not disputed at this stage of the litigation. For example, the parties agree that the claimant
properly may seek payment of benefits as her husband’s survivor and that the miner was
employed for much of his working life as a coal miner. Furthermore, neither party contests that
any coal mine employment with which the miner should be credited was either in underground
mines or in mines “substantially similar” to underground mines. Nor do the parties contest the
fact that chest x-rays taken of the miner prior to his death failed to show signs of clinical
pneumoconiosis. The parties agree that the miner suffered from, and was disabled by, chronic
obstructive pulmonary disease (COPD), but disagree about the cause. Despite that disagreement,
Incoal again recognizes that if the 15-year presumption is applicable, the coal company cannot
overcome the medical evidence linking the miner’s exposure to coal dust over the years to his
COPD and, ultimately to his death.

       Thus, at its essence, this appeal is a dispute over whether the miner accumulated 15 years
of creditable underground coal mine employment before his death. A resolution of that dispute
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                       Page 11


necessarily leads back to the applicable regulations and an interpretation of the term “year” as it
is used in the regulations.

       In 20 C.F.R. § 725.101(a)(32), the Department of Labor defines “year” as “a period of
one calendar year (365 days, or 366 days if one of the days is February 29), or partial periods
totaling one year, during which the miner worked in or around a coal mine or mines for at least
125 working days.” Despite that seemingly straight-forward definition, the regulation itself
contains plain language offering alternative methods of determining the duration of a miner’s
coal mine employment:

       (i) If the evidence establishes that the miner worked in or around coal mines at
       least 125 working days during a calendar year or partial periods totaling one year,
       then the miner has worked one year in coal mine employment for all purposes
       under the Act. If a miner worked fewer than 125 working days in a year, he or
       she has worked a fractional year based on the ratio of the actual number of days
       worked to 125. Proof that the miner worked more than 125 working days in a
       calendar year or partial periods totaling a year, does not establish more than one
       year.
       (ii) To the extent the evidence permits, the beginning and ending dates of all
       periods of coal mine employment must be ascertained. The dates and length of
       employment may be established by any credible evidence including (but not
       limited to) company records, pension records, earnings statements, coworker
       affidavits, and sworn testimony. If the evidence establishes that the miner’s
       employment lasted for a calendar year or partial periods totaling a 365-day period
       amounting to one year, it must be presumed, in the absence of evidence to the
       contrary, that the miner spent at least 125 working days in such employment.
       (iii) If the evidence is insufficient to establish the beginning and ending dates of
       the miner’s coal mine employment, or the miner’s employment lasted less than a
       calendar year, then the adjudication officer may use the following formula:
       divide the miner’s yearly income from work as a miner by the coal mine
       industry’s average daily earnings for that year, as reported by the Bureau of Labor
       Statistics (BLS). A copy of the BLS table must be made a part of the record if the
       adjudication officer uses this method to establish the length of the miner’s work
       history.

20 C.F.R. § 725.101(a)(32)(i)–(iii).

       The Director of the Office of Workers’ Compensation Programs and Incoal read this
regulation to require, in all instances, that the miner be employed by a coal mining company for
a full calendar year and that the miner work for at least 125 days in the mines during that 365- or
 No. 17-4313                     Shepherd v. Incoal, Inc., et al.                      Page 12


366-day period.    According to the respondents, therefore, absent proof that a miner was
employed by a coal mining company for a full calendar year, that miner never can claim a full
year of coal mine employment.

       Ordinarily, we “give substantial deference to an agency’s interpretations of its own
regulations unless the interpretation is plainly erroneous or inconsistent with the published
regulations.” Bidwell v. Univ. Med. Ctr., Inc., 685 F.3d 613, 619 (6th Cir. 2012) (internal
quotation marks and citation omitted). Here, such deference need not be accorded because the
Director’s (and Incoal’s) reading of 20 C.F.R. § 725.101(a)(32) ignores the clear language of the
regulation. In fact, rather than limiting the manner in which years of coal mine employment can
be calculated, the regulation sets out four alternate ways in which a claimant can establish
requisite periods of coal mine employment.

       First, if the miner was employed by a coal mining company for 365 (or 366 days if one
day is February 29) and the miner worked for at least 125 days in or around a coal mine, the
miner clearly established one year of coal mine employment. 20 C.F.R. § 725.101(a)(32).

       Second, if the miner worked at least 125 days in or around coal mines, it will be
presumed that the miner “has worked one year in coal mine employment for all purposes under
the Act.” 20 C.F.R. § 725.101(a)(32)(i). Consequently, under subsection (i), regardless of how
long the miner actually was employed by the mining company in any one calendar year or partial
periods totaling one year, if the miner worked for at least 125 days, the miner will be credited
with one year of coal mine employment.

       Third, if the beginning and ending dates of a miner’s employment with a mining
company can be determined, and if that evidence shows that the miner was employed by the
mining company for one calendar year or partial periods totaling a 365- or 366-day year, it will
be presumed, absent evidence to the contrary, that the miner worked in or around the mines for at
least 125 days. 20 C.F.R. § 725.101(a)(32)(ii). Thus, in many cases, simply being in the employ
of a mining company for a calendar year is sufficient to qualify the miner for one year of coal
mine employment.
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                       Page 13


       Fourth, if the beginning and ending dates of the miner’s employment cannot be
determined or— even if such dates are ascertainable—if the miner was employed by the mining
company for “less than a calendar year,” the adjudicator may determine the length of coal mine
employment by dividing the miner’s yearly income from coal mine employment by the average
daily earnings of an employee in the coal mining industry. If the quotient from that calculation
yields at least 125 working days, the miner can be credited with a year of coal mine employment,
regardless of the actual duration of employment for the year. 20 C.F.R. § 725.101(a)(32)(iii). If
the calculation shows that the miner worked fewer than 125 days in the calendar year, the miner
still can be credited with a fractional portion of a year based on the ratio of the days worked to
125. 20 C.F.R. § 725.101(a)(32)(i).

       Despite § 725.101(a)(32)’s unambiguous nature, the respondents rely on the prefatory
language in 20 C.F.R. § 725.101(a)(32) that defines a “year” as 365 or 366 consecutive days, as
well as the directive in 20 C.F.R. § 725.101(a)(32)(ii) to ascertain the beginning and ending dates
of any coal mine employment, “[t]o the extent the evidence permits.” In reading those two
provisions, the Director and Incoal conclude hyperbolically that “[t]here would be little point in
ascertaining the specific dates if 125 working days always established a year of coal mine
employment,” Director’s Br. at 21, and that crediting a miner with one year of coal mine
employment upon proof that the miner worked only 125 days within a calendar year would
“redefine time,” Incoal’s Br. at 14-18. Those arguments, however, misread both the underlying
intent of the BLBA and the clear language of the applicable regulations in numerous regards.

       First, “[t]his court has often repeated that the [BLBA] is remedial legislation that should
be liberally construed so as to include the largest number of miners within its entitlement
provisions.” Adams v. Dir., Office of Workers’ Comp. Programs, 886 F.2d 818, 825 (6th Cir.
1989) (citations omitted). The efforts of the Director and Incoal to have this court read the
language of the regulations narrowly in an effort to limit the number of miners and miners’
survivors eligible for benefits runs counter to that mandate.

       Second, just because the preamble to § 725.101—found in the Federal Register at
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended,
65 Fed. Reg. 79920, 79959-60 (Dec. 20, 2000)—provides that “in order to have one year of coal
 No. 17-4313                     Shepherd v. Incoal, Inc., et al.                      Page 14


mine employment, the regulation contemplates an employment relationship totaling 365 days,
within which 125 days were spent working and being exposed to coal mine dust,” does not mean
that the only way to establish a year of coal mine employment is by proving both that the miner
was employed by a mining company for 365 consecutive days and that the miner spent 125 of
those days working in or around a coal mine. For one, because the plain language of the
regulation unambiguously permits a one-year employment finding without a 365-day
requirement, we cannot consult the preamble. See, e.g., Tenn. Hosp. Ass’n v. Azar, 908 F.3d
1029, 1044 (6th Cir. 2018). For another, to assign any other meaning to the provisions—such as
accepting the interpretations of the Director and Incoal—would, for example, read out of the
regulation § 725.101(a)(32(i)’s recognition that working 125 days in or around a coal mine
within a calendar year will count as a year of coal mine employment “for all purposes under the
[BLBA].”

       Third, the respondents misread the significance of the provision in § 725.101(a)(32)(ii)
that directs that the beginning and ending dates of a miner’s employment be ascertained. The
Director argues that “[t]here would be little point in ascertaining the specific dates if
125 working days always established a year of coal mine employment.” Director’s Br. at 21.
Incoal similarly contends “that where the record contains proof of the beginning and ending
dates of employment, resort to calculating whether the claimant worked for 125 days in a year is
not permitted.” Incoal’s Br. at 17. Clearly, determining that a miner has worked for a mining
company for any combined period of 125 days will not establish a year of coal mine
employment. Instead, what § 725.101(a)(32)(ii) purports to do is to have an administrative law
judge first ascertain, if possible, the beginning and end dates of coal mine employment. If the
miner’s employment with a mining company indeed did last for 365 consecutive days, it must be
presumed, unless the evidence proves otherwise, that the miner has accumulated the necessary
125 days of coal mine employment and should be credited with one year of such employment for
purposes of establishing entitlement to benefits. In other words, the direction to determine the
exact dates of employment should not be read as an effort to restrict the ability of a miner or a
miner’s survivor to recover black lung benefits, but rather an effort to make it easier to prove
entitlement to such payments.
 No. 17-4313                       Shepherd v. Incoal, Inc., et al.                       Page 15


       Fourth, to accept the argument of the Director and Incoal that, in order to be credited with
one year of coal mine employment, a miner must be on the payroll of a mining company for 365
consecutive days and have worked 125 of those days in or around a coal mine effectively would
read out of § 725.101(a)(32) the provisions of subsection (iii) of that regulation. Such elision is
not allowed because any interpretation of a statute or regulation must, if possible, give effect to
every provision of the legislation or guidance.       See, e.g., Siding & Insulation Co. v. Alco
Vending, Inc., 822 F.3d 886, 895 (6th Cir. 2016) (“[a] court should give effect to all words and
phrases in the text at issue”). The plain language of subsection (iii) applies not only when the
beginning and ending dates of a miner’s employment cannot be ascertained, but also, even if
such evidence is available, if “the miner’s employment lasted less than a calendar year.” Thus,
contrary to the positions espoused by the respondents, the regulation expressly provides that even
if a miner cannot show that he or she was employed by a mining company for a calendar year, he
or she still can be credited with a year of coal mine employment, or a fraction of a year of such
employment, if the calculation outlined in subsection (iii) so establishes.

       Indeed, we recently recognized:

       [A] miner is entitled to credit for one year of coal mining employment if he
       worked “in or around a coal mine” for at least 125 “working days” during the
       year. See C.F.R. § 725.101(32). Under the regulations, [a miner] may be entitled
       to credit for 15 years of coal mining employment even though he worked for less
       than 15 actual years in an underground coal mine.

Barnett v. Tenn. Consol. Coal Co., No. 16-3983, slip op. at 5 (6th Cir. July 14, 2017) (order).
Although Barnett is an unpublished order, and thus is not controlling authority, see, e.g.,
Fonseca v. Consol. Rail Corp., 246 F.3d 585, 591 (6th Cir. 2001), the quoted portion of the
decision is in accord with the express language of the relevant regulatory provision and is,
therefore, persuasive authority when examining the contrary conclusion of the BRB in this case.

       Not surprisingly, both the Director and Incoal attempt to undermine even the persuasive
value of Barnett. The Solicitor of Labor argues in the appellate brief on behalf of the Director:

       And Barnett’s persuasive value is limited. It does not discuss the regulatory
       calendar-year requirement. Moreover, the issue was not presented to the Barnett
       panel in an adversarial context. The Director did not participate in that case, and
       both our files and PACER’s online record indicate that the employer did not file a
 No. 17-4313                      Shepherd v. Incoal, Inc., et al.                        Page 16


       response brief. The language in Barnett that Mrs. Shepherd relies on is therefore
       not a considered rejection of the regulatory calendar-year requirement. It does not
       trump the plain language of the regulation.

Director’s Br. at 20-21. The Director’s arguments fail to cast doubt on the persuasive value of
the Barnett panel’s discussion of § 725.101(a)(32), however. Although the Barnett opinion did
not discuss the “calendar-year requirement” in depth, the panel did consider and reject the
application of that provision to Barnett’s claim. In fact, the panel specifically noted that the
administrative law judge in Barnett erroneously “reached his determination that Barnett does not
have 15 years of coal mining employment through ‘simple mathematics’—i.e., Barnett’s coal
mining employment from April 1964 to March 1979 did not equal exactly 15 years.” Barnett,
slip op. at 5. Such a recognition necessarily entailed an evaluation of the applicability of
§ 725.101(a)(32)’s initial pronouncement that “[y]ear means a period of one calendar year.”

       Furthermore, the fact that the Director and the employer did not choose to contest
Barnett’s assertions on appeal does not indicate that the process was not adversarial. The
administrative proceedings resulted in a decision in favor of the employer, and both the Director
and the employer were apprised of Barnett’s petition for review in this court. In fact, both the
Department of Labor attorney and the Department’s counsel for appellate litigation filed
appearances on behalf of the Director in Barnett. The fact that the Director later chose not to file
a responsive brief, and that Barnett’s employer affirmatively chose not to file an appearance or
participate in the case, if anything, speaks to a recognition that Barnett’s arguments in favor of
receipt of benefits were meritorious.

       Finally, for the reasons previously discussed, the Director’s argument that “the plain
language of the regulation” disproves the claimant’s assertion that a miner is entitled to invoke
the 15-year presumption by establishing 125 “working days” of coal mine employment with
15 different 365-day periods is baffling.      Indeed, it is the very language of the various
subsections of § 725.101(a)(32) that permit the calculations to which the Director now objects.

       Incoal’s attacks on the validity of the principle recognized in Barnett are of even more
questionable validity. The company suggests that Barnett is not persuasive authority because the
administrative law judge in that matter “overlooked that all of the parties stipulated that Barnett
 No. 17-4313                       Shepherd v. Incoal, Inc., et al.                        Page 17


worked as a miner for fifteen years and that pursuant to 20 C.F.R. § 725.101(a)(32), he could be
credited for fifteen years of coal mine employment even if he worked less than fifteen years.”
Incoal’s Br. at 16. Of course, parties to a dispute cannot stipulate to legal conclusions. See, e.g.,
Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). In any event, the prior panel of
this court did not rely on any stipulation regarding an interpretation of regulation at issue.
Instead, the court conducted its own analysis of the provisions and concluded that Barnett’s
claim for benefits was meritorious because spending 125 dates in a 365-day period in and around
coal mines could constitute a year of coal mine employment.

        Even more puzzling, Incoal chides the claimant for relying upon an unpublished, but in-
circuit decision that dealt directly with the issue of attributable coal mine employment. All the
while, the coal company itself relies upon a decision from the Fourth Circuit, an opinion with
even less persuasive appeal than Barnett. Not only did that out-of-circuit decision, Daniels Co.
v. Mitchell, 479 F.3d 321 (4th Cir. 2007), address a dispute over timing to determine whether a
company was the responsible coal mine operator, but the Fourth Circuit specifically noted that,
“[b]y its terms, [20 C.F.R. § 725.101(a)(32)(iii)] may be used in situations where the miner’s
employment lasted less than one year.” Id. at 335 (emphasis added). Moreover, other factors in
Mitchell justified abstaining from using the subsection (iii) calculation to establish the length of
the miner’s work history in that case. Specifically, the administrative law judge failed to attach
the Bureau of Labor Statistics table as required in subsection (iii), failed to explain the
calculations made, and failed to take into account uncontroverted evidence that Mitchell was
paid “inflated overtime rates”—a fact that would overestimate the days worked in or around a
coal mine. Id. Incoal’s reliance on Mitchell thus does nothing to advance the coal company’s
position in this matter.

        As detailed previously, the administrative law judge used two different methods to
determine the length of the miner’s creditable coal mine employment in this case. For the years
between 1963 and 1977, the administrative law judge credited the miner with a quarter-year of
coal mine employment for each calendar quarter in which the miner earned at least $50.00 from
mining. For the years from 1978 until 1985, however, the administrative law judge examined the
miner’s gross earnings for each year and compared them to the average annual hourly wage for
 No. 17-4313                         Shepherd v. Incoal, Inc., et al.                             Page 18


coal miners across the United States. If that comparison indicated that the miner had worked for
more than 125 days in any calendar year, the miner was credited with one year of coal mine
employment.      If the calculation showed that the miner worked less than 125 days, the
administrative law judge determined the fractional part of the year worked in coal mine
employment by dividing the credited days by 125. Using that bifurcated analytical framework,
the administrative law judge determined that the miner should be credited with 15.07 years of
coal mine employment. However, based on information provided by the miner himself that he
had not worked all three months of certain quarters, the BRB recalculated the time worked in
coal mine employment and concluded that the miner could claim only 14.75 years of coal mine
employment with the various coal mining companies with which the miner had been employed
prior to his retirement.

        Despite a lack of reference in the applicable regulations to calculating coal mine
employment by counting quarters of a year in which a miner earned at least $50.00 from mining
operations, the BRB previously has found such a method of computation to be reasonable. See
Tackett v. Dir., Office of Workers’ Comp. Programs, 6 B.L.R. 1-839, 1-841 n.2 (Benefits Rev.
Bd. Jan. 20, 1984); Combs v. Dir., Office of Workers’ Comp. Programs, 2 B.L.R. 1-904, 1-906
(Benefits Rev. Bd. May 16, 1980).4 That is so even though earning only $50.00 in a quarter-year
averages out to a monthly gross pay of $16.67. Clearly, then, as quarterly income approaches
that floor of $50.00, it seems reasonable to conclude that the miner did not work in the mines
most days in the quarter.

        Prior to December 20, 2000, nothing in the applicable regulations precluded
administrative reliance on the $50.00/quarter method when calculating the duration of a miner’s
coal mine employment, regardless of the actual dates of a miner’s tenure with an employer.
With the promulgation of 20 C.F.R. § 725.101(a)(32), however, a factfinder is required, if
possible, to ascertain the beginning and ending dates of any such employment. If such an inquiry
leads to a recognition that the miner was not employed by a coal mining company for a full
calendar quarter, the previously applicable quarter method cannot be used. Moreover, even

         4In Combs, the BRB noted that this method of calculating the length of employment was borrowed from
regulations of the Social Security Administration. Combs, 2 B.L.R. at 1-906.
 No. 17-4313                       Shepherd v. Incoal, Inc., et al.                         Page 19


though 20 C.F.R. § 725.101(a)(32)(ii) was not effective until January 19, 2001, the provisions of
that section expressly apply to all claims filed after that date, regardless of the years of coal mine
employment under consideration. See 20 C.F.R. § 725.2(c).

       Discounting the months that the miner himself indicated he had not worked in the coal
mines, the BRB determined that Tramble Shepherd could be credited with only 14.75 years of
underground mining employment. In her claim for survivor’s benefits, however, the miner’s
widow offered a different recollection of her late-husband’s coal mine employment. Her claim
form, certified to be true and correct to the best of her knowledge and belief, and prepared with
an awareness that willfully made false or misleading statements shall be punished by a fine,
imprisonment, or both, indicated that the miner worked for coal mining companies for additional
periods of time.

       Despite the requirement in administrative hearings that all evidence be considered before
a decision is rendered, neither the administrative law judge nor the BRB discussed the weight to
be given to the evidence put forth by Imogene Shepherd. Crediting that evidence, however, even
without reference to information offered by the miner himself, would lead to a finding that the
miner was employed for more than the 15 years needed to invoke the rebuttable presumption of
30 U.S.C. § 921(c)(4).

       Although the BRB cavalierly referred to the miner’s reports of his employment history in
1963, 1964, and 1973 as “uncontradicted,” the claim form for survivor’s benefits filed by
Imogene Shepherd listed different lengths of employment for her husband than did the miner’s
earlier claim form. Specifically, the miner indicated that his first employment in the coal mining
industry was with Allen Fork Coal Company in May 1963. His widow, however, in her claim
for survivor’s benefits, asserted that the miner began working for Hueysville Coal Company in
July 1962, a full ten months prior to the date on which both the administrative law judge and the
BRB began counting the miner’s employment in the coal industry. Furthermore, in his claim for
benefits, the miner indicated that he was not employed by a mining company between September
1967 and September 1973. The claimant nevertheless stated that the miner began his work with
Hite Preparation Company in May 1971, 32 months earlier than the date indicated by the miner.
Clearly, if the claimant’s recollection of her late-husband’s mining employment is given
 No. 17-4313                              Shepherd v. Incoal, Inc., et al.                                   Page 20


credence, those 42 additional months of coal mine employment would be sufficient to justify
invocation of the 15-year presumption.5

         Consequently, before any definitive determination can be made regarding the duration of
the miner’s coal mine employment, this matter must be remanded to the administrative law judge
to consider and weigh, in the first instance, all evidence related to the beginning and ending dates
of each of the miner’s stints of coal mine employment, including the evidence submitted by
Imogene Shepherd—evidence that the administrative law judge and BRB failed to discuss. See
20 C.F.R. § 802.301(a). Her claims of her deceased husband’s coal mine employment can be
supported by earnings statements, pay stubs, specific remembrances, or other indicia of
reliability. Only after such an evaluation of relevant, creditable evidence is completed should the
administrative law judge determine whether the miner accumulated the 15 years of coal mine
employment necessary to invoke the rebuttable presumption of 30 U.S.C. § 921(c)(4). In doing
so, the administrative law judge should give effect to all provisions and options set forth in
20 C.F.R. § 725.101(a)(32), not just the regulation’s prefatory language.6




         5Alsonoteworthy is the claimant’s account of her deceased husband’s coal mine employment that shows
no such employment after October 1984. Evidence in the record offered by the miner himself, by Incoal, and by
Trojan Mining, Inc., however, indicates that the miner worked sporadically in the coal mines in November and
December of 1984 and at other times between February and June of 1985. Those additional months of coal mine
employment could add to the creditable years of the miner’s coal mine employment.
         6In  her appellate brief, the claimant makes much of the fact that the BRB cited in its final decision the Sixth
Circuit case of Aberry Coal, Inc. v. Fleming (Aberry I), 843 F.3d 219 (6th Cir. 2016), a decision that later was
amended on rehearing in Aberry Coal, Inc. v. Fleming (Aberry II), 847 F.3d 310 (6th Cir. 2017). In Aberry I, this
court determined that the administrative decision-maker had erred in crediting a miner with 15 years of coal mine
employment both by double-counting two years of employment and by giving the miner credit for two additional
full years of coal mine employment when the miner had worked for less than 12 months in each of those years. In
Aberry II, the court focused on the double-counting only and did not discuss the validity or invalidity of counting
less than a full calendar year of mining as a year of coal mine employment. The claimant in this case thus reads
Aberry II as disagreeing with the Aberry I finding that only 12 full months of employment can count as a year of
coal mine employment for purposes of the 15-year presumption.
         Clearly, however, no such implied holding can be read into Aberry II, especially when an independent,
sufficient ground for the court’s decision was relied upon and discussed. In any event, the issue not discussed in
Aberry II ultimately can be resolved in this case by reference to the language in all subsections of 20 C.F.R.
§ 725.101(a)(32).
 No. 17-4313                   Shepherd v. Incoal, Inc., et al.                  Page 21


                                     CONCLUSION

      Both the administrative law judge and the BRB failed to examine all evidence in the
record when determining the duration of the miner’s coal mine employment. Consequently, we
GRANT the claimant’s petition to review and REMAND the matter for appropriate
consideration of all relevant evidence relating to the time spent by the miner working in
underground coal mines.
