                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-1923


EASTERN ASSOCIATED COAL CORPORATION,

                Petitioner,

           v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; CLARA SUE TOLER, Administratrix
of the Estate of Arvis R. Toler,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(13-0531 BLA)


Argued:   September 17, 2015                 Decided:   November 6, 2015


Before MOTZ, KING, and GREGORY, Circuit Judges.


Petition for review denied by published opinion.      Judge King
wrote the opinion, in which Judge Motz and Judge Gregory joined.


ARGUED:   Mark   Elliott  Solomons,    GREENBERG TRAURIG,   LLP,
Washington,   D.C.,   for  Petitioner.      Evan Barret   Smith,
APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky; Jeffrey
Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG
TRAURIG, LLP, Washington, D.C., for Petitioner.     M. Patricia
Smith, Solicitor of Labor, Rae Ellen Frank James, Associate
Solicitor, Gary K. Stearman, Counsel for Appellate Litigation,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director, Office of Workers’
Compensation Programs.




                              2
KING, Circuit Judge:

      Eastern Associated Coal Corporation petitions for review of

the   2014      decision    of   the     Benefits       Review    Board        (the    “BRB”)

affirming an award of black lung benefits to Arvis R. Toler.

Toler first applied for black lung benefits in 1993, but that

claim     was    denied.         In    granting     Toler’s           second    claim       for

benefits, which was filed in 2008, an administrative law judge

(“ALJ”) invoked the rebuttable presumption that a coal miner

with a fifteen-year work history of underground coal mining and

a   totally      disabling     pulmonary       impairment        is    disabled       due    to

pneumoconiosis         (the      “fifteen-year          presumption”).                Eastern

contends      that,    by     applying     the    fifteen-year           presumption         to

Toler’s      second    claim,      the    ALJ     contravened          the     Black       Lung

Benefits        Act,   30     U.S.C.     §§ 901-945       (the        “Act”),        and    its

regulations, as well as principles of finality and separation of

powers.      As explained below, we deny the petition for review and

thereby affirm the BRB’s decision.



                                           I.

                                           A.

                                           1.

      Congress created the black lung benefits program in 1969

“to   provide      benefits      . . .    to     coal    miners        who     are    totally

disabled due to pneumoconiosis and to the surviving dependents

                                            3
of miners whose death was due to such disease.”                                   30 U.S.C.

§ 901(a).     Pneumoconiosis is defined as “a chronic dust disease

of    the    lung    and     its    sequelae,          including          respiratory     and

pulmonary     impairments,         arising       out   of    coal    mine       employment.”

Id. § 902(b).

      The Act empowers the Secretary of Labor (the “Secretary”)

to implement its provisions and promulgate appropriate standards

for determining whether a coal miner is entitled to benefits

thereunder.        See 30 U.S.C. §§ 902(c), 921(b), 936(a).                           Pursuant

to    the     regulations,          a   miner          must        “establish[]”          four

“[c]onditions       of    entitlement”       to    obtain      black       lung    benefits:

(1)   that    he    has    pneumoconiosis;         (2)      that    his     pneumoconiosis

arose   out    of    coal    mine    employment;         (3)       that    he    is   totally

disabled; and (4) that pneumoconiosis contributes to his total

disability.         See 20 C.F.R. § 725.202(d); see also W. Va. CWP

Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015).

      The     applicable       regulations             identify           two     types    of

pneumoconiosis:           legal and clinical.               20 C.F.R. § 718.201(a).

Clinical pneumoconiosis “consists of 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.”          Id. § 718.201(a)(1).              Legal pneumoconiosis is

                                             4
defined more broadly to “include[] any chronic pulmonary disease

or respiratory or pulmonary impairment significantly related to,

or   substantially         aggravated      by,    dust     exposure         in    coal      mine

employment.”         Id. § 718.201(a)(2).              Clinical pneumoconiosis can

be further classified as either “simple” or “complicated.”                                   See

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

Complicated          pneumoconiosis,            sometimes            referred          to     as

“progressive        massive    fibrosis,”        see     Lisa       Lee   Mines       v.    Dir.,

OWCP,   86    F.3d    1358,    1359-60      (4th       Cir.     1996)      (en    banc),      is

characterized by the presence of “massive lesions” in the lungs

that resolve on imaging as opacities at least one centimeter in

diameter.     See 30 U.S.C. § 921(c)(3).

      Congress       has    occasionally         “recalibrated”            the    applicable

standards for entitlement to benefits under the Act.                              See W. Va.

CWP Fund v. Stacy, 671 F.3d 378, 381 (4th Cir. 2011).                                 In 1972,

responding     to    mounting       evidence     that     meritorious            claims      were

being unjustifiably denied, Congress amended the Act to afford a

presumption of total disability due to pneumoconiosis to a coal

miner who could show that he had worked underground for at least

fifteen      years    and     was    suffering         from     a     totally      disabling

respiratory or pulmonary impairment.                      See Black Lung Benefits

Act of 1972, Pub. L. No. 92-303, § 4(c), 86 Stat. 150, 154

(codified     as     amended    at    30   U.S.C.        § 921(c)(4));           Bozwich       v.

Mathews, 558 F.2d 475, 478-79 (8th Cir. 1977).                            The fifteen-year

                                            5
presumption could 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.”      See 30

U.S.C. § 921(c)(4). 1   In 1981, Congress repealed the fifteen-year

presumption for claims filed on or after January 1, 1982.      See

Black Lung Benefits Revenue Act of 1981, § 202(b)(1), Pub. L.

No. 97-119, 95 Stat. 1635, 1643 (repealed 2010); Bender, 782

F.3d at 134.

     In   March   2010,    Congress   restored   the   fifteen-year

presumption — after a twenty-nine-year hiatus — by enacting

§ 1556(a) of the Patient Protection and Affordable Care Act (the

“ACA”), Pub. L. No. 111-148, 124 Stat. 119, 260 (2010) (codified

at 30 U.S.C. § 921(c)(4)).     Section 1556(c) of the ACA provided

that the fifteen-year presumption “shall apply with respect to

claims filed . . . after January 1, 2005, that are pending on or

after the date of enactment” of the ACA — that is, March 23,

2010.

     In 2013, the Secretary promulgated regulations implementing

the revived fifteen-year presumption.     See 20 C.F.R. § 718.305;

Bender, 782 F.3d at 134-35.      Under those regulations, a party

     1 A coal miner with complicated pneumoconiosis is entitled
to an irrebuttable presumption of total disability due to
pneumoconiosis. See 30 U.S.C. § 921(c)(3).



                                  6
opposing a claim for benefits is entitled to rebut the fifteen-

year presumption by establishing either (1) that the miner has

neither legal pneumoconiosis nor clinical pneumoconiosis arising

out of coal mine employment, or (2) “that no part of the miner’s

respiratory        or    pulmonary       total     disability         was   caused     by

pneumoconiosis.”         20 C.F.R. § 718.305(d)(1).               In other words, to

rebut     the   fifteen-year       presumption,          the     opposing     party     is

obliged    to   “‘rule     out’    any     connection      between      [the]   miner’s

pneumoconiosis and his disability.”                      See Bender, 782 F.3d at

135.

                                            2.

       Under    the     regulations        governing      subsequent        black     lung

benefits claims, a coal miner who has had an earlier claim for

benefits    denied       must   establish        “that    one    of   the    applicable

conditions      of      entitlement”       specified       in     § 725.202(d)        “has

changed since the date upon which the order denying the prior

claim     became      final.”        See    20    C.F.R.        § 725.309(c).          The

regulations limit the “applicable conditions of entitlement” to

“those conditions upon which the prior denial was based.”                             Id.

§ 725.309(c)(3).          If the applicable conditions of entitlement

“relate to the miner’s physical condition,” then “the subsequent

claim     may   be      approved   only      if    new    evidence      submitted      in

connection with the subsequent claim establishes at least one

applicable condition of entitlement.”                    Id. § 725.309(c)(4).           If

                                            7
a claimant fails to show a change in an applicable condition of

entitlement, the claim must be denied.                         Id. § 725.309(c).         But,

if the claimant shows a change in an applicable condition of

entitlement, none of the findings from the prior adjudication

are binding, and the new claim must be evaluated de novo, based

on all of the evidence.                 Id. § 725.309(c)(5).                 Even if the

claimant prevails on the subsequent claim, no benefits may be

awarded for the period adjudicated by the prior claim.                                   Id.

§ 725.309(c)(6).

       Prior   to     2000,    § 725.309            required     a   coal    miner     whose

earlier    claim      was     denied       to       show   a     “material      change    in

conditions” in order to pursue a subsequent claim.                           See Lisa Lee

Mines, 86 F.3d at 1360.             During that period, the Director of the

Office of Workers’ Compensation Programs (the “Director”), the

BRB,     and    the        courts      of       appeals         rendered      conflicting

interpretations       of    the     regulatory        phrase      “material     change     in

conditions.”          To      resolve       that      conflict        and    clarify     the

applicable standard, the Secretary initiated notice-and-comment

rulemaking     pursuant       to     the    Administrative           Procedure     Act,    5

U.S.C. § 553.         See Regulations Implementing the Federal Coal

Mine Health and Safety Act of 1969, as Amended, 62 Fed. Reg.

3338-01, 3351-52 (proposed Jan. 22, 1997).                        At the conclusion of

that rulemaking process, the Secretary promulgated a final rule

(the   “2000   Final        Rule”)    establishing         the       standard    currently

                                                8
specified       in    § 725.309.         See     Regulations        Implementing        the

Federal Coal Mine Health and Safety Act of 1969, as Amended, 65

Fed. Reg. 79,920-01, 79,968, 80,067-68 (Dec. 20, 2000) (to be

codified at 20 C.F.R. § 725.309).

       The    Secretary’s       2000    Final        Rule    expressly     adopted      our

Court’s en banc 1996 decision in Lisa Lee Mines on the meaning

of a “material change in conditions.”                        In the preamble to the

2000       Final     Rule,    the      Secretary       explained         that    she    was

“effectuat[ing]” Lisa Lee Mines.                     See 2000 Final Rule, 65 Fed.

Reg. at 79,968; see also Regulations Implementing the Federal

Coal Mine Health and Safety Act of 1969, as Amended, 64 Fed.

Reg.       54,966-01,        54,984     (proposed           Oct.    8,     1999)       (“The

[Secretary]’s subsequent claims provision gives full effect to

the    Fourth      Circuit’s    decision        in    Lisa    Lee   Mines       . . . .”).

Because the Secretary expressly endorsed and adopted Lisa Lee

Mines when she promulgated the 2000 Final Rule, Lisa Lee Mines

remains the law of this Circuit and guides our interpretation of

§ 725.309. 2




       2
       As we recognized in Harman Mining Co. v. Director, OWCP,
the preamble to the 2000 Final Rule “may serve as a source of
evidence concerning contemporaneous agency intent.”     See 678
F.3d 305, 316 (4th Cir. 2012) (internal quotation marks
omitted).



                                            9
                                             3.

       Alva Rutter, the coal miner-claimant in Lisa Lee Mines,

unsuccessfully sought black lung benefits in 1986.                             See 86 F.3d

at    1360.      Three   years    thereafter,          he       filed   a    second     claim,

supported by more recent x-rays that indisputably established

his entitlement to benefits.                 Id. at 1359-60.             Lisa Lee Mines,

the responsible operator, contested Rutter’s claim solely on the

ground      that   Rutter     had      not     shown        a    “material          change    in

conditions.”       Id. at 1360.          An ALJ ruled that Rutter had shown

such a change, reasoning that the medical evidence showed “a

definite       progression”       of     Rutter’s           disease         “resulting        in

[Rutter’s] reduced capacity to do his former coal mine work.”

Id.     The ALJ further concluded that, even if Rutter failed to

show    a     material   change     in   conditions,             the    1986    denial       was

“erroneous on its face and ‘null and void ab initio.’”                                        Id.

Accordingly, the ALJ awarded benefits effective on the date that

Rutter’s first claim was filed.                Id.     The BRB affirmed the award

of benefits, but concluded that the ALJ was not entitled to

reopen the 1986 denial.           Id.     It therefore modified the award to

provide     that   benefits      would    be      payable        only   as     of    the     date

Rutter filed his second claim.               Id.

       Lisa Lee Mines then sought review in this Court.                              In our en

banc decision, we agreed that the BRB had properly reversed the

ALJ’s reopening of the 1986 denial.                  See Lisa Lee Mines, 86 F.3d

                                             10
at   1361.         We     explained     that,    because         the    1986     decision    was

“final,” that decision “and its necessary factual underpinning”

must be accepted as “correct.”                        Id.        We emphasized, however,

that the first BRB decision did not bar a subsequent claim “as a

matter of ordinary res judicata,” because “[t]he health of a

human       being       is     not     susceptible          to     a    once-in-a-lifetime

adjudication.”            Id. at 1362.           Rutter’s second claim for black

lung benefits required an assessment of his condition when that

claim was filed, an issue which neither was — nor could have

been — litigated in connection with Rutter’s first claim.                                 Id.

       We then addressed the appropriate standard for evaluating

subsequent claims for black lung benefits, and we adopted the

“one element” standard advanced by the Director.                                 See Lisa Lee

Mines, 86 F.2d at 1362-64.                    That rule required the claimant “to

prove,      under       all    of    the   probative         medical     evidence       of   his

condition after the prior denial, at least one of the elements

previously adjudicated against him.”                        Id. at 1362.          We rejected

a    more   stringent         standard,       drawn    from       the   Seventh     Circuit’s

decision in Sahara Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir.

1991), that would have required the claimant to show a change in

condition         on    every       element    previously         decided       against      him,

because      it     did      not    “account    for    the       frailty    of    alternative

holdings,”        and     because     it   required         “a   plenary       review   of   the

evidence behind the first claim.”                       Lisa Lee Mines, 86 F.3d at

                                                11
1363.       We also rejected the standard sponsored by the BRB in

Spese v. Peabody Coal Co., 11 BLR 1-174, 1-176 (Ben. Rev. Bd.

1988), which would have allowed a coal miner’s subsequent claim

to proceed if the miner presented new evidence that raised a

reasonable possibility of changing the result, deeming such a

standard vague, illogical, and “arguably” too lenient.                         Lisa Lee

Mines, 86 F.3d at 1363.

                                              B.

                                              1.

      For twenty-seven years, Arvis Toler worked in and about

Eastern’s coal mines in southern West Virginia, primarily as an

electrician.             For    sixteen       of    those     years,   Toler     toiled

underground, where he was exposed to high concentrations of coal

dust.      Between approximately 1966 and 1997, he generally smoked

a   pack    of    cigarettes      each       day.     Toler    began   to    experience

shortness of breath in the mid-1980s.                        His breathing problems

worsened,        and,    in    1993,    at    age   fifty-five,    Toler’s      failing

health caused him to quit his job as a coal miner.

        In 1993, shortly before he left Eastern, Toler filed his

first claim for black lung benefits.                     An ALJ found that Toler

was totally disabled by severe obstructive pulmonary disease,

but also that Toler had failed to show that his work in the coal

mines      (rather      than   his     smoking      habit)    caused   his   pulmonary

illness.         As such, the ALJ denied Toler’s claim for benefits.

                                              12
The BRB affirmed the ALJ’s decision, explaining that the ALJ had

properly weighed the evidence and permissibly found that Toler

had    not   shown       by   a   preponderance          of    the     evidence        that    he

suffered from pneumoconiosis.                   Toler thereafter petitioned this

Court for review of the BRB’s adverse decision.                                  In 1998, we

denied Toler’s petition for review and affirmed the BRB.                                      See

Toler v. E. Assoc. Coal Corp., No. 97-2148 (4th Cir. Aug. 19,

1998) (unpublished).

                                                2.

                                                a.

       Despite     leaving        his    coal    mine        work    and   abandoning         his

smoking      habit,       Toler’s       respiratory           condition      continued         to

decline.         By 2000, Toler required supplemental oxygen, and he

began using oxygen twenty-four hours per day in 2008.

       Toler filed his second claim for black lung benefits on

February     26,    2008.         In    April        2008,    the    Director     had    Toler

undergo      a    complete        pulmonary          evaluation.           See    20     C.F.R.

§ 725.406(a).           As part of that evaluation, Toler had a chest x-

ray,    which       a     radiologist           read     as     positive         for    simple

pneumoconiosis,          as   well      as    blood    gas     and    pulmonary        function

tests, which indicated that Toler was permanently disabled due

to a pulmonary impairment.                   Based on those tests, and on his own

examination        of    Toler,      Dr.      John     Burrell       diagnosed     “[s]imple

pneumoconiosis          category       s/t,     1/0;    severe       chronic     obstructive

                                                13
pulmonary disease; [and] [arteriosclerotic heart disease] with

[coronary artery disease], based on history, physical, chest x-

ray, [arterial blood gas test results] & [pulmonary function

studies].”          See J.A. 243. 3      Dr. Burrell identified smoking and

occupational         exposure     to     coal      dust     as    causes        of     Toler’s

pulmonary impairments.

     Both Toler and Eastern submitted additional evidence to the

Director       regarding       the     second      claim.         Toler     furnished          a

radiologist’s reading of a July 14, 2008 x-ray that was also

positive      for    simple    pneumoconiosis,        and        Eastern    introduced          a

negative reading of the April 2, 2008 x-ray.

     On       October    23,     2008,       the   district        director          issued    a

proposed      decision     and       order    granting      Toler’s        second       claim.

Because Eastern objected to the decision, Toler’s second claim

was scheduled for a March 17, 2010 hearing before an ALJ.                                Toler

testified at the hearing and introduced several new exhibits.

Toler’s exhibits included a second reading of the July 14, 2008

x-ray    as    positive    for       pneumoconiosis,        as    well     as    additional

pulmonary function and blood gas studies.                        Toler also submitted

a letter from his treating physician advising that Toler “has

severe     obstructive         lung    disease      with     pulmonary          nodule        and



     3 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.



                                              14
intermittent infiltrates” and opining that “it is quite probable

given the severity of Mr. Toler’s disease that coal dust played

an integral role in [its] development.”                    J.A. 103.

       Eastern   introduced       several       other      exhibits    into   evidence,

including negative readings of the April and July 2008 x-rays, a

December 11, 2009 digital x-ray, and five CT scans taken between

December 2006 and November 2008.                In addition, Eastern furnished

reports by Dr. David Rosenberg and Dr. Joseph Renn concluding

that Toler did not have pneumoconiosis.                      Finally, Eastern took

the    uncontested     depositions     of       Drs.       Rosenberg    and   Renn    and

introduced those depositions.

                                           b.

       On June 15, 2010, the ALJ issued his Decision and Order

(the “2010 ALJ Order”) granting Toler’s claim for benefits.                           The

ALJ accepted the parties’ stipulations that Toler was a coal

miner,    that    Toler    was     totally        disabled       from    a    pulmonary

impairment,      and   that      Eastern    was       the    responsible      operator.

Based thereon, the ALJ applied the newly restored fifteen-year

presumption to Toler’s claim and identified the only remaining

issue as “[w]hether [Eastern] can establish that [Toler] does

not suffer from pneumoconiosis.”                See 2010 ALJ Order 3.          The ALJ

then examined the opinions of Drs. Rosenberg and Renn, rejecting

both   because    they    were    grounded       in    a    misinterpretation        of   a

medical study and because those experts had failed to consider

                                           15
Toler’s     twenty-seven-year             history          of     coal        mine       employment.

Accordingly,       the      ALJ    concluded         that       Eastern         had       failed     to

demonstrate that Toler did not have pneumoconiosis or that his

pulmonary      impairment         did    not    arise       out    of,    or        in    connection

with, Toler’s coal mine employment.

       Eastern     appealed        the    2010       ALJ    Order        to    the       BRB,    which

promptly remanded to the ALJ to afford Eastern the opportunity

to    submit     new   evidence         aimed    at        rebutting          the     fifteen-year

presumption.           On    remand,       Eastern         submitted           to    the     ALJ     an

additional report from Dr. Rosenberg, and both Eastern and Toler

submitted briefs supporting their respective positions.

       On August 1, 2013, the ALJ issued his second Decision and

Order (the “2013 ALJ Order”) granting Toler’s claim for black

lung benefits.           Relying on the Seventh Circuit’s decision in

Consolidation Coal Co. v. Director, OWCP, 721 F.3d 789 (7th Cir.

2013) (hereinafter “Bailey”), the ALJ again applied the fifteen-

year presumption to Toler’s second claim.                           In assessing whether

Eastern had rebutted that presumption, the ALJ discussed the

evidence    in    some      detail.        The       ALJ    first    concluded             that      the

radiological evidence was inconclusive as to pneumoconiosis, and

thus   insufficient         to    meet    Eastern’s          burden.           Turning          to   the

expert evidence, the ALJ again rejected Drs. Rosenberg’s and

Renn’s opinions for much the same reasons specified in the 2010

ALJ    Order.      The      ALJ    evaluated         and     rejected          Dr.       Rosenberg’s

                                                16
supplemental report, reasoning, inter alia, that Dr. Rosenberg’s

conclusions were “inconsistent with the [Secretary]’s findings

in the preamble to” the 2000 Final Rule.                     See 2013 ALJ Order 10. 4

Thus, the ALJ concluded that Eastern had failed to rebut the

fifteen-year     presumption            and    that        Toler    was    entitled      to

benefits.

      Eastern thereafter appealed the 2013 ALJ Order to the BRB,

which affirmed the ALJ by its Decision and Order of July 7, 2014

(the “BRB Decision”).          The BRB considered and rejected Eastern’s

arguments that principles of finality and res judicata precluded

application of the fifteen-year presumption to Toler’s second

claim.    In rejecting Eastern’s contention that Toler improperly

sought to relitigate or reopen his first claim, the BRB invoked

our   teaching   in    Lisa     Lee       Mines,      86     F.3d   at    1362,   that    a

subsequent claim is not the same as a prior claim and is not

barred    by   the    denial       of    the       earlier    claim.       Because    the

adjudication of Toler’s second claim did not disturb either the

denial    of   benefits       on        his    first       claim    or    this    Court’s



      4In the preamble to the 2000 Final Rule, the Secretary
explained that “[e]pidemiological studies have shown that coal
miners have an increased risk of developing COPD.”    2000 Final
Rule, 65 Fed. Reg. 79,973.      The Secretary’s review of the
medical literature revealed that the severity of COPD among coal
miners “was related to the amount of dust in the lungs,” and
that this correlation “held even after controlling for age and
smoking habits.” Id. at 79,941.



                                              17
disposition of his petition for review, the BRB concluded that

granting        the   second       claim    did    not    offend   any     constitutional

principles relating to separation of powers.                             Relying on the

Seventh         Circuit’s      Bailey      decision,       the     BRB     also   rejected

Eastern’s contention that the fifteen-year presumption cannot be

used       to   establish      a    change     in    an    applicable       condition    of

entitlement.          Finally, the BRB rejected Eastern’s contentions

that the ALJ had applied an improper rebuttal standard and erred

in     ruling      that     Eastern        failed    to    rebut     the     fifteen-year

presumption.

       Eastern has filed a timely petition for review of the BRB

Decision, in which the Director and Toler’s widow are presently

the respondents. 5           We possess jurisdiction to consider Toler’s

petition for review pursuant to 30 U.S.C. § 932(a) and 33 U.S.C.

§ 921(c).



                                              II.

       We review an ALJ decision that has been affirmed by the BRB

to   determine        whether       it   is   in    accordance      with    the   law   and

supported by substantial evidence.                   See Island Creek Coal Co. v.



       5
       On March 19, 2015, after this matter was fully briefed,
Toler   passed  away.      His  widow,  Clara  Sue   Toler,  as
administratrix of her husband’s estate, has been substituted as
a respondent in his place and stead.



                                              18
Compton, 211 F.3d 203, 207-08 (4th Cir. 2000).                In so doing, we

confine our review to the grounds upon which the BRB based its

decision.       See Grigg v. Dir., OWCP, 28 F.3d 416, 418 (4th Cir.

1994).       As always, we review de novo the BRB’s conclusions of

law.       See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th

Cir. 1998).



                                      III.

       Eastern presses two primary assignments of error in its

petition for review:            (1) that, by applying the fifteen-year

presumption to Toler’s second claim, the ALJ reopened a final

judgment of an Article III court, in contravention of separation

of powers principles; and (2) that the ALJ improperly used the

fifteen-year presumption to establish that one of the applicable

conditions      of   entitlement    had     changed   since   the   denial   of

Toler’s      first   claim. 6      Because    Eastern’s   first     contention


       6
       In its briefs in this Court, Eastern also contended that
the ALJ erred in requiring Eastern to “rule out” either
pneumoconiosis or disability due to pneumoconiosis in order to
rebut the fifteen-year presumption.    Eastern conceded at oral
argument, however, that our recent decision in West Virginia CWP
Fund v. Bender forecloses that contention.    See 782 F.3d 129,
143 (4th Cir. 2015) (upholding “rule-out” standard).         Our
precedent also readily dispatches Eastern’s complaints about the
ALJ’s consideration of the preamble to the 2000 Final Rule in
evaluating the opinions of Drs. Rosenberg and Renn. See Harman
Mining Co. v. Dir., OWCP, 678 F.3d 305, 314-16 (4th Cir. 2012)
(concluding that ALJ did not err in invoking regulatory preamble
in   assessing   medical   expert’s   credibility);   see   also
(Continued)
                                       19
requires us to pass on the constitutionality of agency action,

we are obliged to first address its second contention.                                     See

Marshall v. Stevens People & Friends for Freedom, 669 F.2d 171,

175     (4th      Cir.     1981)       (resolving          statutory      challenges        to

administrative subpoenas before addressing constitutional issues

(citing      Ashwander      v.       Tenn.   Valley       Auth.,   297    U.S.      288,   347

(1936) (Brandeis, J., concurring))).

                                               A.

       First,     Eastern       maintains      that       utilizing    the    fifteen-year

presumption       to     show    a    change    in    a    condition     of   entitlement

pursuant to 20 C.F.R. § 725.309(c) contravenes the Act and the

implementing regulations.               We disagree.

       Both the Act and the regulations show plainly that a coal

miner     armed    with     new       evidence       may    invoke     the    fifteen-year

presumption to establish a change in an applicable condition of

entitlement.        Section 725.309(c) requires a coal miner to show

that    an     “applicable       condition[]         of    entitlement”       has    changed

since    the    prior     denial.        “If    the       applicable     condition(s)       of

entitlement relate to the miner’s physical condition,” then the

miner may rely only on new evidence to show a change in an




Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 323 (4th Cir.
2014) (explaining that ALJ “may consider” regulatory preamble
“in assessing medical expert opinions”).



                                               20
applicable condition of entitlement.                     See id. § 725.309(c)(4);

see also Consol. Coal Co. v. Williams, 453 F.3d 609, 617 (4th

Cir. 2006) (“[O]nly new evidence following the denial of the

previous claim, rather than evidence predating the denial, can

sustain a subsequent claim.”).                     Section 725.202(d) lists the

“conditions of entitlement” for a coal miner’s claim, including

that the miner must have “pneumoconiosis” as it is defined in

§ 718.202.    Section 718.202 identifies several ways a miner can

establish pneumoconiosis, including by use of the fifteen-year

presumption      described         in         § 718.305.           See      20       C.F.R.

§ 718.202(a)(3) (requiring the decisionmaker to presume that the

coal miner has pneumoconiosis “[i]f the presumptions described

in   § 718.304   or    § 718.305         are       applicable”).         And     § 718.305

tracks the fifteen-year presumption revived in 2010 by § 1556(a)

of the ACA, which, pursuant to § 1556(c), applies to Toler’s

second claim because that claim was “filed . . . after January

1,   2005,”   and     was   “pending          on    or   after”    March       23,    2010.

Congress’s use of the term “claims” in § 1556(c) “without any

qualifying language . . . supports [the] position that amended

[§ 921(c)(4)]       applies   to        all     claims     that    comply      with    [§]

1556(c)’s time limitations, including subsequent claims.”                             Union

Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013)

(citations and internal quotation marks omitted).



                                              21
       The preamble to the 2000 Final Rule reinforces our textual

conclusion that the fifteen-year presumption, together with new

evidence, may establish a change in a condition of entitlement.

In the preamble, the Secretary rejected a comment suggesting

that    a    coal   miner      should      be    obliged      to     “submit    scientific

evidence establishing that the change in his specific condition

represents     latent,        progressive        pneumoconiosis.”             See    65     Fed.

Reg. at 79,972.          Instead, as the Secretary explained, “the miner

continues      to    bear     the     burden         of    establishing       all     of     the

statutory elements of entitlement, except to the extent that he

is aided by [the] two statutory presumptions” in effect at the

time the Secretary promulgated the 2000 Final Rule.                                 Id.       In

other words, the preamble evinces the Secretary’s intention that

any    applicable          statutory       presumptions         may     aid    a      miner’s

subsequent claim.

       Thus, the text of the statute and regulations, as well as

the    preamble     to     the    2000     Final      Rule,    demonstrate          that     the

fifteen-year presumption applies to subsequent claims and may be

used    to    establish       a   change        in    an    applicable       condition       of

entitlement.        Even if we harbored doubts about that conclusion,

we    would   defer      to    the    Director’s           reasonable    and    consistent

interpretation of the applicable regulations.                           See Clinchfield

Coal    Co.    v.    Harris,         149   F.3d       307,     310    (4th     Cir.        1998)

(explaining         that      Director’s         interpretation          of     applicable

                                                22
regulation is entitled to “substantial deference” and will be

respected    unless         “plainly     erroneous        or    inconsistent      with    the

express language” thereof (quoting Mullins Coal Co. v. Dir.,

OWCP, 484 U.S. 135, 159 (1987))).

      Contrary        to     Eastern’s         suggestion,        application      of     the

fifteen-year presumption to a coal miner’s subsequent claim does

not amount to a “double presumption.”                      See Br. of Petitioner 22.

Under the one-element test, the miner is required to “prove,

under all of the probative medical evidence of his condition

after the prior denial, at least one of the elements previously

adjudicated against him.”                See Lisa Lee Mines, 86 F.3d at 1362;

see   also    20      C.F.R.       § 725.309(c)          (requiring      the    miner      to

“demonstrate[]         that       one    of     the      applicable      conditions        of

entitlement . . . has changed”).                      The fifteen-year presumption

merely     helps      the      miner      to     establish         the   conditions        of

entitlement in the second claim.                    It does not allow the ALJ to

“waive finality by presuming that something changed.”                              See Br.

of Petitioner 22.

      In advancing its preferred interpretation of the relevant

statutory     and     regulatory         provisions,           Eastern   relies    on     the

Secretary’s concession in National Mining Ass’n v. Department of

Labor that     “the        most   common       forms     of    pneumoconiosis      are    not

latent,”     see      292    F.3d       849,    863      (D.C.    Cir.   2002).          That

concession,      in    Eastern’s         view,      is    simply     inconsistent        with

                                               23
utilization       of     the       fifteen-year          presumption           to     establish       a

change in a condition of entitlement.                          Although Eastern does not

dispute     that       complicated          pneumoconiosis              can     be     latent        and

progressive,        it    insists          that        “simple      clinical[]          and        legal

pneumoconiosis[] are neither latent nor progressive,” and that

the Secretary conceded as much in National Mining Ass’n.                                            See

Br. of Pet’r 18.

     Put succinctly, we are not “empowered to substitute [our]

judgment    for     that      of    the     [Secretary]”           on    matters       within       the

Secretary’s       area       of    expertise.            See       Hughes      River       Watershed

Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999); see

also Midland Coal Co. v. Dir., OWCP, 358 F.3d 486, 490 (3d Cir.

2004)     (“[W]e       see     no     reason       to        substitute         our     scientific

judgment, such as it is, for that of the responsible agency.”).

Eastern    therefore         bears     a    “heavy       burden      of       showing       that    the

[Secretary] was not entitled to use [her] delegated authority to

resolve the scientific question in this manner.”                                     Midland Coal,

358 F.3d at 490.           Eastern has failed to meet that burden in this

proceeding.

     The     Secretary,             after        reviewing         “all       of     the      medical

literature referenced in the [2000 rulemaking] record,” located

“abundant     evidence            demonstrating           that       pneumoconiosis            is     a

latent,    progressive            disease.”            See    65    Fed.      Reg.     at     79,970,

79,971.       The      discussion           of    the     medical         literature          in    the

                                                  24
preamble to the 2000 Final Rule demonstrates that both simple

and complicated pneumoconiosis can be latent and progressive.

In one study, fourteen of the thirty-three miners who showed

progression     of    pneumoconiosis        after    leaving     the     coal    mining

industry had simple pneumoconiosis.                 See 65 Fed. Reg. at 79,970;

see     also    P.T.     Donnan       et     al.,     Progression          of    Simple

Pneumoconiosis in Ex-Coalminers After Cessation of Exposure to

Coalmine Dust (Inst. of Occupational Med., Dec. 1997).                          Another

study     “reported     both     small      opacities       (evidence      of   simple

pneumoconiosis)        and    large   opacities      (evidence      of     complicated

pneumoconiosis) in ex-miners who did not show evidence of coal

workers’    pneumoconiosis       after      the    miners    left    the    industry.”

2000 Final Rule, 65 Fed. Reg. at 79,970.                     Thus, “[t]he medical

literature makes it clear that pneumoconiosis” — even in its

simple form — “may be latent and progressive.”                           Nat’l Mining

Ass’n, 292 F.3d at 863; accord RAG Am. Coal Co. v. OWCP, 576

F.3d    418,   426-27    (7th    Cir.      2009)    (rejecting      suggestion        that

simple pneumoconiosis can never be progressive or latent absent

further    exposure      to    coal   dust);       Labelle    Processing        Co.    v.

Swarrow, 72 F.3d 308, 315 (3d Cir. 1995) (same).

       None of Eastern’s other contentions against application of

the    fifteen-year      presumption        have    merit.       Although       Eastern

contends that Toler’s second claim is “the same claim” as his

first claim “with a new label,” see Reply Br. of Pet’r 10, we

                                           25
rejected that very proposition in Lisa Lee Mines.                See 86 F.3d

at 1362 (“A new black lung claim is not barred . . . by an

earlier denial, because the claims are not the same.”).                    That

precept    also        suffices    to   address   Eastern’s     reliance     on

principles of finality, to the extent those principles bear on

our interpretation of the statutory and regulatory provisions at

issue in this matter.             Furthermore, Lisa Lee Mines forecloses

Eastern’s suggestion that Toler should be compelled to prove

that the etiology of his condition has changed by comparing the

evidence pertaining to Toler’s second claim with the evidence

underlying the denial of his first claim.           See id. at 1361 (“The

final decision of the ALJ (or BRB or claims examiner) on the

spot is the best evidence of the truth at the time [of the first

claim].”); id. at 1363 (explaining that “plenary review of the

evidence behind the first claim” is impermissible); accord U.S.

Steel Mining Co. v. Dir., OWCP, 386 F.3d 977, 989 (11th Cir.

2004) (“[T]he ‘one element’ test does not compel a comparison of

the evidence associated with the second claim with the evidence

presented at the first claim; rather, it mandates a comparison

of the second claim’s evidence with the conclusions reached in

the prior claim.”).

     Finally, Eastern’s suggestion that Toler failed to submit

new evidence — postdating the denial of his first claim — as

required   by     20    C.F.R.    § 725.309(c)(4)   and   our   decision    in

                                        26
Williams,        453    F.3d    at   617,   is    factually     incorrect.         Toler

introduced two positive readings of the July 2008 x-ray, results

of two spirometry and arterial blood gas tests, and a letter

from       his   treating       physician.         In    addition,      the    complete

pulmonary         examination        conducted       pursuant      to     20     C.F.R.

§ 725.406(a) yielded another x-ray reading that was positive for

pneumoconiosis, spirometry and blood gas tests consistent with

total disability, and Dr. Burrell’s examination report, in which

he opined that Toler’s pulmonary disability was caused in part

by coal dust exposure.                Despite Eastern’s intimations to the

contrary, that evidence is new.                  Although Eastern may not regard

that evidence as “reliable or probative,” see Reply Br. of Pet’r

9,   weighing      the    evidence     is   for    the   ALJ,   not     the    court    of

appeals or appellate counsel. 7

       In sum, Eastern has presented no good reason why the 2010

reenactment        of     the    fifteen-year        presumption        required       the

Secretary to revise his subsequent-claim rule or deviate from

his longstanding interpretation of that rule.                      The BRB and ALJ

       7
       At oral argument and in a post-argument Rule 28(j) letter,
Eastern heaved a Hail Mary pass, invoking the principle that
courts    should    construe   statutes    to   avoid    “serious
[constitutional] doubt[s]” when such a construction is “fairly
possible.”    See Ashwander, 297 U.S. at 348 (Brandeis, J.,
concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
That contention also falls short, not least because Eastern has
raised no “serious” doubt about the constitutionality of any
particular statute or regulation.



                                            27
“must apply the law in effect at the time of a decision,” see

Bailey, 721 F.3d at 795, which is exactly what they did here.

Accordingly,        we     reject     Eastern’s        contention        that          the    ALJ

contravened       either     the    Act    or    the    applicable      regulations             by

applying the fifteen-year presumption to Toler’s second claim.

                                            B.

       Having rejected Eastern’s statutory argument, we turn to

its remaining constitutional contention:                        that utilization of

the    fifteen-year        presumption      to    decide       Toler’s       second          claim

contravened constitutional principles of separation of powers.

Eastern     contends        that     the   ALJ     exercised          the     Article         III

“judicial     Power”        in     contravention        of     the     Supreme          Court’s

decision     in     Plaut    v.    Spendthrift         Farm,    Inc.,       514    U.S.        211

(1995), by permitting Toler to “relitigat[e] a final judgment of

this Court” — namely, our 1998 denial of his petition for review

of    the   BRB’s    decision       affirming     the       ALJ’s    denial       of    Toler’s

first claim.        See Br. of Pet’r 10.

       At issue in Plaut was a 1991 amendment to the Securities

and    Exchange      Act    of     1934    (the    “Exchange         Act”)     adopted         in

response     to     the    Court’s    decision         in    Lampf,    Pleva,          Lipkind,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991).                              In Lampf,

the Court held that actions under § 10(b) of the Exchange Act

“must be commenced within one year after the discovery of the

facts constituting the violation and within three years after

                                            28
such violation.”         501 U.S. at 364.           The Lampf Court overruled

several courts of appeals that had applied state statutes of

limitations to § 10(b) actions.             See Plaut, 514 U.S. at 216.             In

Lampf’s wake, several actions pending in the lower courts were

dismissed because of Lampf’s holding.                  See Plaut, 514 U.S. at

214, 216.     Six months after the Court decided Lampf, Congress

enacted a statute requiring the district courts to reinstate

certain § 10(b) actions dismissed based on Lampf and to treat

those actions as being timely filed.                   See Plaut, 514 U.S. at

214-15.

     In Plaut, the Court held that the mandatory reinstatement

provision    of    the   1991    amendment     contravened      the    doctrine     of

separation of powers by requiring the federal courts to reopen

closed cases that were not pending on direct appeal.                        See 514

U.S. at 219, 225.        The Court reasoned that the “judicial Power”

includes the power to render final judgments in cases, subject

to review only by superior courts, and that, by retroactively

requiring     courts     to      reopen    such     judgments,        Congress     was

infringing on that authority.             Id. at 218-19.

     Simply       put,   Plaut     presents    no    obstacle     to     the     ALJ’s

consideration      of    Toler’s    second     claim    under    post-ACA        legal

standards.    The ALJ’s award of benefits on Toler’s second claim

did not “retroactively . . . reopen” anything, much less a final

judgment of an Article III court.                 As we explained in Lisa Lee

                                          29
Mines, a subsequent claim based on new evidence is not the same

claim      as    the     one    previously       denied.           See       86   F.3d    at     1362.

Indeed, pursuant to Lisa Lee Mines, the ALJ was required to, and

did,       accept      the     correctness      of    the    administrative              denial    of

Toler’s      1993      claim     —     and,    by     necessary        extension,         our    1998

denial of Toler’s petition for review.                        Moreover, as in Lisa Lee

Mines,       Toler’s         second    claim    required      the        ALJ      to   assess     his

pulmonary impairment and its etiologies at the time that claim

was    filed,       an     issue      which    neither      was        nor    could      have    been

litigated in connection with Toler’s first claim.

       Notably,          Eastern      has     identified          no    authority         extending

Plaut       to      these       or     similar        circumstances.                   Indeed,     in

Consolidation Coal Co. v. Maynes, 739 F.3d 323, 326, 328 (6th

Cir. 2014), the Sixth Circuit rejected a coal mine operator’s

contention          that      Plaut    applied        to    bar    a     widow’s         claim    for

survivor’s benefits under § 1556(b) of the ACA, where a federal

court of appeals had previously affirmed the Secretary’s denial

of a prior claim for survivor’s benefits under pre-ACA law. 8


       8
       Section 1556(b) of the ACA restored to the Act a statutory
provision making the payment of benefits to “eligible survivors”
automatic upon the death of a coal miner “who was determined to
be eligible” for miner’s benefits “at the time of his or her
death.”     See 30 U.S.C. § 932(l).       Like the fifteen-year
presumption, the automatic survivor’s benefits provision had
been repealed by Congress in the 1981 amendments to the Act.
See Stacy, 671 F.3d at 381-82 (outlining history of automatic
survivor’s benefits provision).


                                                 30
Maynes is closer to Plaut than this proceeding is, as the widow

in Maynes was not required to show a change in any condition of

entitlement.        See    20   C.F.R.   § 725.309(c)(1)         (providing      that

survivor whose claim was denied under pre-ACA law but would be

granted under current law need not show change in condition of

entitlement). 9

      In   sum,     we    reject     Eastern’s   suggestion       that    the    ALJ

exercised “the judicial Power” when he granted Toler’s second

claim.     The ALJ in this matter simply considered Toler’s second

claim based on new evidence under the law in effect at the time

of   the   second   claim.      In    doing   so,    the   ALJ   did   not     reopen

Toler’s    first     claim;     he    accepted      that   decision      and    “its

necessary factual predicate” as correct.               See Lisa Lee Mines, 86

F.3d at 1362.        And the ALJ certainly did not reopen our 1998

denial of Toler’s petition for review. 10



      9 In its reply brief and at oral argument, Eastern
encouraged us to reject Maynes on the basis of a two-judge
concurrence in a default denial of rehearing en banc in Peabody
Coal Co. v. Director, OWCP, No. 12-4366 (6th Cir. Dec. 23,
2014).   The operator in Peabody presented the same contention
the Maynes court rejected, and the Peabody panel relied on
Maynes to deny the petition for review.    See 577 F. App’x 469,
470 (6th Cir. 2014), cert. denied, No. 14-1278, __ S. Ct. ___
(Oct. 5, 2015). We have reviewed the Peabody concurrence in the
denial of rehearing en banc and deem it unpersuasive.
      10Although Eastern asserted at oral argument that its
constitutional argument relates to separation of powers, it
summarily suggested in its opening brief that, by allowing Toler
to use the fifteen-year presumption in conjunction with new
(Continued)
                                         31
                              IV.

     Pursuant to the foregoing, we deny Eastern’s petition for

review.

                                      PETITION FOR REVIEW DENIED




evidence to establish a change in a condition of entitlement,
the Director denied Eastern due process.     We are satisfied to
reject Eastern’s scantily developed due process contention.   As
legislation “adjusting the burdens and benefits of economic
life,” § 1556(a) enjoys “a presumption of constitutionality, and
. . . the burden is on one complaining of a due process
violation to establish that the legislature has acted in an
arbitrary and irrational way.”     See Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 15, 20 (1976) (rejecting coal company’s
due process challenge to fifteen-year presumption).


                               32
