                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-4461
                                     ___________

                                ISPAT/INLAND, INC,
                                               Petitioner

                                           v.

       DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
               UNITED STATES DEPARTMENT OF LABOR;
                           LLOYD L. LENTZ,
                                         Respondents
                        _______________________

                       On Petition for Review of an Order of the
              Benefits Review Board, United States Department of Labor
                               (BRB No. 08-0640 BLA)
                                   ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 11, 2011

            Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges.

                                 (Filed April 6, 2011)
                                 _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Ispat/Inland, Inc. appeals a final decision of the Department of Labor’s Benefits

Review Board awarding Lloyd L. Lentz’s claim under the Black Lung Benefits Act, 30
U.S.C. § 901 et seq. (“BLBA”). After the administrative law judge awarded benefits in

2006, the Board vacated the ALJ’s decision in part and remanded for reconsideration of

the proffered medical opinion testimony. The ALJ again awarded benefits on May 5,

2008, and, this time, the Board affirmed. Ispat/Inland, the mine operator responsible for

paying benefits, moved unsuccessfully for reconsideration of the Board’s decision and

then filed a timely appeal with this Court. We will affirm.1

                                             I.

       Congress enacted BLBA to compensate miners who are totally disabled by

pneumoconiosis, which the statute defines as “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. §§ 901(a), 902(b). To recover benefits under BLBA, a claimant

must demonstrate (1) he suffers from pneumoconiosis; (2) he is “totally disabled”; and


1
  We have jurisdiction under the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 921(c), which is incorporated by reference in BLBA, 30 U.S.C. § 932(a). We
review a Board decision to determine whether an error of law has been made and whether
the Board has adhered to its own standard of review. Lombardy v. Dir., OWCP, 355 F.3d
211, 213 (3d Cir. 2004). We review questions of law de novo, and we note the Board is
bound by an ALJ’s findings of fact “if they are supported by substantial evidence in the
record considered as a whole.” Id.
       Mr. Lentz died on Feb. 11, 2009, without having received any benefit payments
from Ispat/Inland. The Black Lung Disability Trust Fund, administered by the Director,
commenced paying interim benefits. Our affirmance of the Board’s award will obligate
Ispat/Inland to reimburse the Trust Fund. See 20 C.F.R. 725.603(a). Therefore, the
adversity between these parties presents us with a justiciable case or controversy
regardless of whether the interest retained by Mr. Lentz’s estate (if such exists) would
independently suffice to confer jurisdiction. See Krolick Contracting Corp. v. Benefits
Review Bd., 558 F.2d 685, 689 (3d Cir. 1977); Old Ben Coal Co. v. Dir., OWCP, 292
F.3d 533, 538 n.4 (7th Cir. 2002).
                                             2
(3) pneumoconiosis is a “substantial contributing cause” of his total disability. See 20

C.F.R. §§ 718.201–204.2 Under the statute, pneumoconiosis may be “clinical” or “legal.”

The former label refers to the category of diseases recognized by the medical community

as pneumoconiosis. 20 C.F.R. § 718.201(a)(1). The latter is defined as “any chronic lung

disease or impairment . . . arising out of coal mine employment” including, without

limitation, “any chronic restrictive or obstructive pulmonary disease arising out of coal

mine employment.” 20 C.F.R. § 718.201(a)(2). An obstructive pulmonary condition

caused by coal dust exposure satisfies the definition of legal pneumoconiosis. See id.;

LaBelle Processing Co. v. Swarrow, 72 F.3d 308, 315 (3d Cir. 1995). Chronic bronchitis,

along with emphysema and certain forms of asthma, is a species of chronic obstructive

pulmonary disease. 65 Fed. Reg. 79939 (Dec. 20, 2000).

       On appeal, Ispat/Inland contends the ALJ improperly created a presumption in

favor of entitlement to benefits by discounting their medical opinion testimony to the

effect that Lentz’s pulmonary obstruction was solely attributable to his extensive history

of cigarette smoking and that the contribution of coal dust exposure to his condition was

“clinically insignificant.” However, the ALJ, on remand, found Lentz to be suffering

from both clinical and legal pneumoconiosis. Therefore, because we can affirm the award




2
  Pneumoconiosis is a “substantially contributing cause” of a miner’s disability if it (1)
“[h]as a material adverse effect on the miner’s respiratory or pulmonary condition;” or
(2) “[m]aterially worsens a totally disabling respiratory or pulmonary impairment which
is caused by a disease or exposure unrelated to coal mine employment.” 20 C.F.R. §
718.204(c).
                                             3
of benefits on grounds unrelated to this allegedly impermissible presumption, we need

not conduct a detailed analysis of Ispat/Inland’s claim.3

                                             II.

       In 2006, the ALJ awarded Lentz’s claim for benefits based on legal

pneumoconiosis after assessing the competing medical testimony. See 20 C.F.R. §

718.202(a)(4) (“A determination of the existence of pneumoconiosis may also be made if

a physician, exercising sound medical judgment, notwithstanding a negative X-ray, finds

that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. . . . Such

a finding shall be supported by a reasoned medical opinion.”). Although the ALJ found

the x-ray evidence did not support a finding of clinical pneumoconiosis, he credited the

testimony of Lentz’s medical witness, Dr. John T. Schaff, in concluding Lentz’s

pulmonary condition arose out of his coal mine employment and thus qualified under the

statute and regulations as legal pneumoconiosis. See 30 U.S.C. § 902(b); 20 C.F.R. §

718.201(a)(2). The ALJ discounted the opinion of the employer’s competing medical

witness, Dr. Gregory J. Fino, as inconsistent with the regulations. Specifically, the ALJ

found Dr. Fino erroneously believed Lentz had to establish the presence of clinical

pneumoconiosis in order to qualify for recovery under BLBA. Additionally, the ALJ

found Lentz had satisfied the other elements of entitlement: the parties stipulated to the

existence of a totally disabling pulmonary impairment pursuant to 20 C.F.R. §


3
 We may affirm on any grounds supported by the record. See Hughes v. Long, 242 F.3d
121, 123 n.1 (3d Cir. 2001).
                                             4
718.204(b), and Lentz successfully demonstrated pneumoconiosis was a substantial

contributing cause of his disability.

       The Board vacated the ALJ’s award and remanded for further consideration of the

medical testimony. Notably, the Board wrote: “If the administrative law judge finds that

claimant has met his burden under Section 718.202(a)(4), he must then weigh all of the

evidence relevant to the existence of pneumoconiosis together to determine whether the

presence of the disease has been established at Section 718.202(a).”

       On remand, the ALJ again awarded benefits. Conceding Dr. Fino’s opinion was

not contrary to the regulations, the ALJ nevertheless found it poorly reasoned and ill-

substantiated. The ALJ opined that Dr. Fino had both confused the issues of disease

causation (whether his pulmonary condition arose out of exposure to coal dust) and

disability causation (whether pneumoconiosis contributed to his total disability) and had

failed to offer a reasoned explanation for why coal dust exposure was not a factor in

Lentz’s chronic bronchitis. More importantly, however, in heeding the Board’s

instruction to reweigh all the evidence on the existence of pneumoconiosis, the ALJ

reexamined the x-ray evidence and discovered he had made factual errors in reaching his

initial decision. See 20 C.F.R. § 718.202(a)(1) (“A chest X-ray conducted and classified

in accordance with § 718.102 may form the basis for a finding of the existence of

pneumoconiosis. . . . [W]here two or more X-ray reports are in conflict, in evaluating




                                             5
such X-ray reports consideration shall be given to the radiological qualifications of the

physicians interpreting such X-rays.”).4

       Upon revisiting the x-ray evidence and reanalyzing the diverging medical

opinions, the ALJ concluded Lentz “established the existence of both clinical and legal

pneumoconiosis by a preponderance of the evidence.” As for disability causation, the

ALJ found Dr. Fino’s opinion unworthy of credence because it rested largely on the

premise that the x-ray evidence was negative for pneumoconiosis.

       Ispat/Inland again appealed to the Board, challenging the ALJ’s findings of legal

pneumoconiosis and disability causation. On this occasion, the Board affirmed the award.

It concluded the ALJ had acted in accordance with its instructions in reevaluating the

evidence and determining Lentz had established both clinical and legal pneumoconiosis.

Consequently, it found the ALJ acted within his discretion in according little weight to




4
  Originally, the ALJ found the x-ray evidence to be in equipoise. However, upon review,
he realized he had erroneously listed the qualifications of the two physicians who read a
June 12, 2003 x-ray. Whereas in his first decision he stated that a “B-reader” had
interpreted the x-ray as positive for pneumoconiosis and a “duly-qualified physician” had
interpreted the x-ray as negative, he realized upon review that it was in fact the duly-
qualified physician who had interpreted the x-ray as positive. Because the interpretation
proffered by the B-reader is entitled to less weight, this reversal allowed the ALJ to find
the June 12 x-ray was positive for pneumoconiosis. Moreover, the ALJ discovered he had
listed a reading of a May 13, 2003 x-ray as negative when it was, in fact, simply a “re-
reading for quality only” that did not include any findings as to the presence or absence
of pneumoconiosis. Removing that “re-reading” from the calculus, the ALJ found the
May 13 x-ray to be positive for pneumoconiosis as well. Weighing all the x-rays together,
the ALJ found one to be in equipoise and three to be positive. Accordingly, he found
Lentz had indeed established clinical pneumoconiosis.
                                             6
Dr. Fino’s opinion on the issue of disability causation because it conflicted with the

ALJ’s finding on remand that the x-ray evidence evinced clinical pneumoconiosis.

       Under BLBA, both clinical and legal pneumoconiosis are compensable forms of

the disease; a miner need only prove the existence of one form to achieve eligibility for

benefits. Before this Court, Ispat/Inland challenges exclusively the ALJ’s findings as to

legal pneumoconiosis. However, the ALJ, upon review of the x-ray evidence on remand,

found Lentz to be afflicted with clinical pneumoconiosis. The Board acknowledged the

ALJ had, in adhering to the Board’s admonition to reconsider “all of the evidence

relevant to the existence of pneumoconiosis, . . . determined that clinical and legal

pneumoconiosis had been established at Section 718.202(a).” Ispat/Inland did not contest

this finding before the Board and has not raised the issue in its brief on appeal. Therefore,

for our purposes, the finding of clinical pneumoconiosis is a settled matter. See

Balsavage v. Dir., OWCP, 295 F.3d 390, 395 (3d Cir. 2002) (“If substantial evidence

exists, we must affirm the ALJ’s interpretation of the evidence even if we might have

interpreted the evidence differently in the first instance.”) (internal quotation omitted);

Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 110 (3d Cir. 1989) (declaring an

issue waived if not presented to the Board on administrative appeal).

       Lentz established each of the other elements of entitlement. Under the statute, a

miner suffering from clinical pneumoconiosis who worked for ten or more years in coal-

mine-related employment is entitled to a rebuttable presumption that his pneumoconiosis



                                              7
arose out of that employment. 20 C.F.R. § 718.203(b).5 Ispat/Inland conceded Lentz was

totally disabled due to a pulmonary condition. And the Board held the ALJ “permissibly

accorded little weight to Dr. Fino’s opinion” on the issue of disability causation because

it was predicated on the assumption that Lentz did not have clinical pneumoconiosis. By

contrast, the ALJ found Dr. Schaff’s opinion on disability causation “adequately

reasoned” and concluded Lentz had satisfied his burden with regard to this issue.

       The Board affirmed the ALJ’s finding “that the weight of the evidence of record

was sufficient to establish the existence of pneumoconiosis at Section 718.202(a), and

disability causation at Section 718.204(c).” Significantly, the Board did not differentiate

between § 718.202(a)(1), which allows for a finding of the existence of pneumoconiosis

based on positive x-ray reports, and § 718.202(a)(4), which allows for a claimant to

satisfy his burden through medical opinion testimony even in the face of negative x-rays.

The Board ordered the ALJ to reconsider all evidence relevant to pneumoconiosis, the

ALJ revisited both the x-ray reports (which he concluded established clinical

pneumoconiosis under § 718.202(a)(1)) and the testimony (which he concluded

established legal pneumoconiosis under § 718.202(a)(4)), and the Board affirmed the

ALJ’s finding with regard to “the existence of pneumoconiosis at Section 718.202(a).”

       Therefore, the Board found the ALJ acted appropriately in finding Lentz had

satisfied each element of his claim, and we discern neither an error of law nor a deviation


5
 Ispat/Inland disputed whether Lentz’s legal pneumoconiosis arose out of his coal-mine
work but did not rebut the presumption as to clinical pneumoconiosis. Upon stipulation of
                                             8
from the Board’s standard of review. Given Ispat/Inland’s cognizance of the ALJ’s

revised stance on the weighting of the x-ray evidence and the Board’s acceptance of the

ALJ’s findings, we are able to affirm the Board’s decision without pronouncing, in this

particular case, on the propriety of the ALJ’s treatment of the competing medical

testimony on the issue of legal pneumoconiosis. See Lombardy, 355 F.3d at 213.

                                           III.

      For the foregoing reasons, we will deny the petition for review and affirm the

order of the Benefits Review Board.




the parties, the ALJ credited Lentz with eighteen years of coal-mine employment.

                                            9
