                                                                  FILED
                                                      United States Court of Appeals
                                 PUBLISH                      Tenth Circuit

                UNITED STATES COURT OF APPEALS                July 9, 2019

                                                          Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT                 Clerk of Court
                      _________________________________

ENERGY WEST MINING
COMPANY,

        Petitioner,
                                                   No. 18-9537
v.

JOANN H. LYLE, on behalf of
JAMES E. LYLE; DEPARTMENT
OF LABOR,

        Respondents.
                   _________________________________

     Petition for Review from an Order of the Benefits Review Board
                       (Benefits No. 13-05233 BLA)
                     _________________________________

William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for
Petitioner.

Victoria S. Herman (Joseph E. Wolfe, with her on the brief), Norton,
Virginia, for Joann H. Lyle, Respondent.

Edward Waldman, Attorney, Department of Labor (Kate S. O’Scannlain,
Solicitor of Labor; Kevin Lyskwoski, Acting Associate Solicitor; Gary K.
Stearman, Counsel for Appellate Litigation; and Ann Marie Scarpino,
Attorney, Department of Labor, on the brief), Washington, D.C., for
Department of Labor, Respondent.

                      _________________________________

Before TYMKOVICH, Chief Judge, and BACHARACH and MORITZ,
Circuit Judges.
                _________________________________
BACHARACH, Circuit Judge.
               _________________________________


     Mr. James Lyle worked as a coal miner for roughly 28 years. After

retiring, he sought benefits under the Black Lung Benefits Act. See 30

U.S.C. § 901 et seq. An administrative law judge concluded that Mr. Lyle

was entitled to benefits, and the U.S. Department of Labor’s Benefits

Review Board affirmed. Energy West has filed a petition for review of the

Board’s decision.

     We reject most of Energy West’s arguments but agree with its

challenge to the administrative law judge’s analysis of an opinion by Dr.

Joseph Tomashefski, Jr. In this analysis, the judge discounted Dr.

Tomashefski’s medical opinion for a reason unsupported by the record. We

thus vacate the award of benefits 1 and remand to the Board for

reconsideration of Dr. Tomashefski’s opinion.

I.   Because Energy West did not invoke the Appointments Clause in
     proceedings before the Benefits Review Board, we lack
     jurisdiction to consider the validity of the administrative law
     judge’s appointment.

     Energy West argues that the administrative law judge lacked

authority to award benefits because he

          was subject to the Constitution’s Appointments Clause and

1
      During the pendency of this appeal, Mr. Lyle died, resulting in
substitution of his surviving spouse as the respondent.


                                     2
           was not properly appointed under this clause. 2

But Energy West admittedly did not present this challenge to the Benefits

Review Board.

      Energy West contends that the Benefits Review Board couldn’t have

remedied the problem by appointing an administrative law judge. 3 But the

Board could have remedied a violation of the Appointments Clause by

vacating the administrative law judge’s decision and remanding for

reconsideration by a constitutionally appointed officer. See, e.g., Miller v.

Pine Branch Coal Sales, Inc., BRB No. 18-0323 BLA, 2018 WL 8269864

(Oct. 22, 2018) (per curiam) (en banc) (granting this relief). Given the

availability of a remedy, Energy West needed to present this challenge to

the Benefits Review Board. Energy West didn’t, precluding our exercise of

jurisdiction over the issue. See Big Horn Coal Co. v. Sadler, 924 F.3d

1317, 1325–26 (10th Cir. 2019) (holding that we lacked jurisdiction to



2
      Under this clause, “Officers of the United States” must be appointed
by the President, courts, or department heads. U.S. Const. art II, § 2, cl. 2.
The Supreme Court has held that the SEC’s administrative law judges are
“Officers of the United States” subject to the clause. Lucia v. SEC, 138 S.
Ct. 2044, 2055 (2018).
3
      For this argument, Energy West relies on Jones Bros., Inc. v. Sec’y of
Labor, 898 F.3d 669 (6th Cir. 2018), which addressed a provision specific
to the Federal Mine Safety and Health Amendments Act of 1977, Pub. L.
No. 95-164, 91 Stat. 1290. Our case does not concern that statute.


                                      3
consider an argument that the petitioner had not presented to the Benefits

Review Board); McConnell v. Dir., Office of Workers’ Comp. Programs,

U.S. Dep’t of Labor, 993 F.2d 1454, 1460 n.8 (10th Cir. 1993) (concluding

that the petitioner’s “failure to raise [an] argument with the [Benefits

Review] Board ‘constitutes failure to exhaust administrative remedies and

deprives the Court of Appeals of jurisdiction to hear the matter’” (quoting

Rivera-Zurita v. I.N.S., 946 F.2d 118, 120 n.2 (10th Cir. 1991))). 4

II.   We reverse the administrative law judge’s award of benefits
      based on an error in discounting Dr. Tomashefski’s opinion.

      The administrative law judge concluded that Mr. Lyle was entitled to

benefits under the Black Lung Benefits Act. Energy West challenges this

conclusion, arguing in part that the judge erroneously discounted Dr.

Tomashefski’s opinion on legal pneumoconiosis. We agree with this part of

Energy West’s argument but reject its other arguments.

      A.    We engage in limited review of the agency’s determination.

      The Black Lung Benefits Act permits judicial review to determine

whether

           the legal conclusions of the agency are rational and consistent
            with the law and


4
      In Big Horn, we observed that “[t]here may be some question about
the long-term viability of McConnell describing the exhaustion
requirement as jurisdictional in light of subsequent Supreme Court
authority.” 924 F.3d at 1325. But we added that McConnell remains
binding precedent. Id. at 1326.

                                      4
           substantial evidence supports the agency’s factual findings.

Spring Creek Coal Co. v. McLean, 881 F.3d 1211, 1217 (10th Cir. 2018).

We engage in de novo review of the administrative law judge’s legal

conclusions and consider whether substantial evidentiary support exists for

his factual findings. Id.

      Evidence is substantial if a reasonable person might view it “as

adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. N.L.R.B.,

305 U.S. 197, 229 (1938). We do not reweigh the evidence; we instead ask

whether the administrative law judge’s determination is supported by

substantial evidence. Antelope Coal Co./Rio Tinto Energy Am. v. Goodin,

743 F.3d 1331, 1341 (10th Cir. 2014). The task of evaluating medical

evidence lies solely with the administrative law judge, who is ideally

positioned to assess credibility and balance conflicting evidence.

Rockwood Cas. Ins. Co. v. Dir., Off. of Workers’ Comp. Programs, U.S.

Dep’t of Labor, 917 F.3d 1198, 1214 (10th Cir. 2019).

      B.    If a miner worked in a coal mine for at least fifteen years
            and becomes disabled from a respiratory or pulmonary
            impairment, a rebuttable presumption would support an
            award of benefits.

      The Black Lung Benefits Act provides benefits to coal miners who

become disabled from pneumoconiosis (commonly known as black-lung

disease) arising from coal-mine employment. Goodin, 743 F.3d at 1335. To

be eligible for benefits, a miner must establish four elements:


                                      5
     1.       Disease: The miner suffers from pneumoconiosis.

     2.       Disease causation: The pneumoconiosis arose out of coal-
              mine employment.

     3.       Disability: The miner is totally disabled because of a
              respiratory or pulmonary impairment.

     4.       Disability causation: The pneumoconiosis substantially
              contributes to the miner’s total disability.

Energy West Mining Co. v. Estate of Blackburn, 857 F.3d 817, 821 (10th

Cir. 2017).

     But if a miner has worked in a coal mine for at least fifteen years and

establishes the disability element, we would presume satisfaction of the

remaining three elements. Id. at 822; see 30 U.S.C. § 921(c)(4); 20 C.F.R.

§ 718.305(b)–(c). The burden would then shift to the employer to rebut the

presumption on at least one of the three remaining elements. Estate of

Blackburn, 857 F.3d at 822; see 30 U.S.C. § 921(c)(4); 20 C.F.R.

§ 718.305(d).

     Applying this burden-shifting framework, the administrative law

judge concluded that

             the presumption applied because Mr. Lyle had worked in a coal
              mine for at least fifteen years and had established the disability
              element and

             Energy West had not rebutted the presumption.




                                        6
     Energy West concedes that Mr. Lyle worked in a coal mine for at

least fifteen years. But Energy West challenges the evidentiary support for

the administrative law judge’s findings regarding

          a total disability from a respiratory or pulmonary impairment
           and

          a failure to rebut the presumption of legal pneumoconiosis.

     C.    The disability element: Substantial evidence supports the
           administrative law judge’s finding of a total disability from
           a respiratory or pulmonary impairment.

     To establish the disability element, a coal miner must prove a total

disability from a respiratory or pulmonary impairment. Energy West

Mining Co. v. Estate of Blackburn, 857 F.3d 817, 821 (10th Cir. 2017).

Miners are considered “totally disabled” if the pulmonary or respiratory

impairment prevents them from performing

          their customary coal-mine work and

          other jobs in the community that require skills resembling those
           used in the prior coal-mine work.

20 C.F.R. § 718.204(b)(1).

     “In the absence of contrary probative evidence,” certain types of

evidence “shall” establish the disability element. 20 C.F.R.

§ 718.204(b)(2). Such evidence includes

          arterial blood-gas studies and




                                     7
           medical-opinion evidence regarding the impact of a pulmonary
            or respiratory impairment on a miner’s employment. 5

20 C.F.R. § 718.204(b)(2)(ii), (iv).

      Arterial blood-gas studies gauge the lungs’ ability to oxygenate the

blood. Rockwood Cas. Ins. Co. v. Dir., Off. of Workers’ Comp. Programs,

U.S. Dep’t of Labor, 917 F.3d 1198, 1209 (10th Cir. 2019). For an arterial

blood-gas study to establish the disability element, the results must show

that the blood’s oxygen-pressure level dipped below the regulatory

threshold. See 20 C.F.R. pt. 718, App. C.

      The regulatory threshold varies based on

           the altitude where the study is conducted and

           the carbon-dioxide pressure level of the miner’s blood.

See id. For example, if the study is conducted between 3,000 and 5,999

feet above sea level, a miner with a carbon-dioxide pressure level of 26

should have an oxygen-pressure level exceeding 69; if the oxygen-pressure

level of the miner’s blood is 69 or below, the oxygen-pressure level would

be considered too low, indicating a “total disability.” Id.



5
      Evidence establishing the disability element also includes
           pulmonary function tests and
           medical evidence of cor pulmonale with right-sided congestive
            heart failure.
20 C.F.R. § 718.204(b)(2)(i), (iii).

                                       8
     If an arterial blood-gas study yields qualifying values, the

administrative law judge must find a total disability “in the absence of

rebutting evidence.” Id.; see Regulations Implementing the Byrd

Amendments to the Black Lung Benefits Act: Determining Coal Miners’

and Survivors’ Entitlement to Benefits, 77 Fed. Reg. 19456, 19464 (Mar.

30, 2012) (“A test that produces ‘qualifying’ values is deemed, in the

absence of contrary evidence, indicative of a totally disabling respiratory

or pulmonary impairment.”).

     Applying the regulatory thresholds, the administrative law judge

concluded that Mr. Lyle had established the disability element based on

          arterial blood-gas studies in 2011 and 2012 and

          a written report by Dr. Shane Gagon after examining Mr. Lyle.

As the judge explained, the arterial blood-gas studies in 2011 and 2012

showed qualifying values under the applicable regulations. In his report,

Dr. Gagon opined that

          Mr. Lyle had a mild-to-moderate respiratory or pulmonary
           impairment and

          chronic bronchitis was the primary contributor to Mr. Lyle’s
           impairment. 6




6
      In his report, Dr. Gagon also opined that the impairment had caused
abnormal blood-gas levels and shortness of breath when Mr. Lyle walked
less than half a mile.

                                      9
In arriving at these opinions, Dr. Gagon relied partly on the 2011 arterial

blood-gas study. According to Dr. Gagon, this study showed “abnormal

blood gases.” Joint App’x at 12.

     Energy West argues that the administrative law judge

          erroneously discounted three medical opinions stating that Mr.
           Lyle’s level of oxygen pressure was normal,

          mistakenly credited Dr. Gagon’s written report over his
           deposition testimony,

          failed to weigh the significance of a third arterial blood-gas
           study, and

          erroneously discounted Dr. Robert Farney’s opinion as to a
           total disability. 7


7
      In addition, Energy West argues that the administrative law judge
erred in discounting Dr. Tomashefski’s opinion on total disability. But this
argument is not adequately developed. Energy West’s discussion of Dr.
Tomashefski’s opinion focuses mostly on his opinion involving legal
pneumoconiosis (rather than total disability). For example, Energy West
does not discuss the administrative law judge’s reasons for discounting Dr.
Tomashefski’s opinion as to the presence of a total disability. We thus
decline to consider the administrative law judge’s assessment of this
opinion.
       Energy West also argues that the Benefits Review Board erroneously
added to the administrative law judge’s justification for discounting Dr.
Tomashefski’s opinion as to a total disability. This argument does not
support reversal. Our question is whether substantial evidence exists for
the administrative law judge’s decision, and evidence presented to the
administrative law judge was either substantial or it wasn’t. Our evaluation
of that evidence is unaffected by the Benefits Review Board’s additional
justifications for the administrative law judge’s decision. See Energy West
Mining Co. v. Estate of Blackburn, 857 F.3d 817, 822 (10th Cir. 2017)
(noting that we review decisions of the Benefits Review Board de novo and
focus on the administrative law judge’s evaluation of the evidence).

                                     10
We reject these arguments.

      Following the applicable regulations over contrary medical opinions.

At his deposition, Dr. Gagon testified that the 2011 arterial blood-gas

study had yielded normal results. Similarly, Dr. Farney testified at his

deposition that the 2012 arterial blood-gas study had shown “blood gases”

within “normal limits.” Id. at 185. And Dr. Tomashefski opined in a

written report that the 2011 and 2012 arterial blood-gas studies had shown

oxygen pressure “in the low normal range” given the altitudes at the test

sites. Id. at 100.

      The administrative law judge rejected the doctors’ opinions because

the arterial blood-gas studies had shown that Mr. Lyle’s oxygen-pressure

level was too low under the applicable regulations. Energy West contends

that the judge erred in rejecting the doctors’ opinions. We disagree.

      An agency must follow its own regulations. Cherokee Nation of Okla.

v. Norton, 389 F.3d 1074, 1087 (10th Cir. 2004). The administrative law

judge thus rejected inadequately supported medical opinions that conflicted

with these regulations. See Rockwood Cas. Ins. Co. v. Dir., Off. of

Workers’ Comp. Programs, U.S. Dep’t of Labor, 917 F.3d 1198, 1218–19

(10th Cir. 2019) (upholding the administrative law judge’s decision to

follow the applicable regulations over contrary medical testimony).

      Energy West contends that the administrative law judge should have

discounted the results under the regulations in light of the contrary

                                     11
opinions presented by Drs. Farney, Tomashefski, and Gagon. But the judge

determined that these opinions were entitled to little probative weight, and

this assessment was reasonable. Neither Dr. Gagon nor Dr. Tomashefski

explained how he had assessed a normal oxygen-pressure level for Mr.

Lyle. Dr. Farney was different, for he stated that he had relied on research

by his colleagues. But Energy West did not submit this research to the

agency or to us. 8 And none of the three doctors explained why they had

deviated from the applicable regulations.

     Crediting Dr. Gagon’s written report and rejecting his deposition

testimony. In his written report, Dr. Gagon opined that Mr. Lyle had a

mild-to-moderate respiratory or pulmonary impairment primarily because

of chronic bronchitis. See p. 9, above. But Dr. Gagon testified differently

at his deposition, stating that Mr. Lyle had no pulmonary impairment that

prevented a return to his most recent coal-mine work.

     The administrative law judge credited Dr. Gagon’s written report

over his deposition testimony. Energy West contends that the

administrative law judge failed to explain why he had credited the written

report over the deposition testimony. We disagree.




8
       At oral argument, Energy West pointed to a document that allegedly
cites the research. The citation, however, is not self-explanatory and does
not substitute for the research itself.

                                     12
      In relying on the written report, the administrative law judge noted

that Dr. Gagon had

           examined Mr. Lyle before producing the report and

           relied on “objective medical evidence” for his “examination
            findings.”

Joint App’x at 293. In considering the deposition testimony, the

administrative law judge stated that Dr. Gagon had

           “contradicted” his own report without any explanation and

           stated that the 2011 arterial blood-gas study had shown a
            normal oxygen-pressure level even though that level had fallen
            below the regulatory thresholds.

Id. With these statements, the administrative law judge adequately

explained his decision to credit Dr. Gagon’s written report over his

contrary deposition testimony.

      Failure to weigh a third arterial blood-gas study. Energy West

argues that the administrative law judge failed to weigh a third arterial

blood-gas study. 9 But Energy West concedes that it failed to present this

argument to the Benefits Review Board. Energy West thus forfeited this

argument, precluding our exercise of jurisdiction over this argument. See

Part I, above.




9
      In a footnote, the administrative law judge mentioned the results of
the third study.

                                     13
      Discounting Dr. Farney’s opinion as to a total disability. Dr. Farney

opined that Mr. Lyle was not totally disabled from a respiratory

impairment, and the administrative law judge rejected this opinion. Energy

West challenges this part of the decision. But Energy West did not present

this challenge to the Benefits Review Board. We thus lack jurisdiction to

consider the argument. See Part I, above.

                                    * * *

      The administrative law judge found that Mr. Lyle was totally

disabled from a respiratory or pulmonary impairment. In making this

finding, the administrative law judge considered all of the evidence and

explained his conclusion. This explanation is supported by substantial

evidence, so we uphold the judge’s finding of a total disability from a

respiratory or pulmonary impairment.

      D.    The disease element: When deciding whether Energy West
            had rebutted the presumption on the disease element, the
            administrative law judge erroneously discounted Dr.
            Tomashefski’s opinion because of a perceived lack of
            explanation.

      Because Mr. Lyle had established the disability element and worked

in a coal mine for at least fifteen years, the administrative law judge

presumed satisfaction of the three remaining elements for black-lung

benefits (disease, disease causation, and disability causation). Energy West

Mining Co. v. Estate of Blackburn, 857 F.3d 817, 822 (10th Cir. 2017); see

30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)–(c). The burden then shifted

                                     14
to Energy West to rebut the presumption on at least one of the three

remaining elements. See Estate of Blackburn, 857 F.3d at 822; 30 U.S.C.

§ 921(c)(4); 20 C.F.R. § 718.305(d). On appeal, Energy West focuses on

the disease element.

     To rebut the presumption on the disease element, an employer must

show that a miner does not suffer from pneumoconiosis. See Estate of

Blackburn, 857 F.3d at 821. The pneumoconiosis may be either “clinical”

or “legal.” 20 C.F.R. § 718.201(a).

     This case involves legal pneumoconiosis, 10 which encompasses “any

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

mine employment.” Id. § 718.201(a)(2). Diseases “arising out of coal mine

employment” 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(b).

     Given this definition, Drs. Farney and Tomashefski opined that Mr.

Lyle did not have legal pneumoconiosis. The administrative law judge

regarded the probative value of these opinions as minimal to none. 11




10
      The administrative law judge concluded that Energy West had
rebutted the presumption of clinical pneumoconiosis. None of the parties
has questioned this conclusion.
11
     When discussing Dr. Tomashefski’s opinion on legal
pneumoconiosis, the administrative law judge referred once to the doctor’s

                                      15
     Energy West argues that the administrative law judge erred in

discounting the opinions of Drs. Farney and Tomashefski. 12 We disagree

with Energy West’s argument as to Dr. Farney and agree as to Dr.

Tomashefski.

     Dr. Farney’s opinion on legal pneumoconiosis. The administrative

law judge concluded that Dr. Farney’s opinion on legal pneumoconiosis

had no probative value. 13 For this conclusion, the administrative law judge

gave four reasons:

     1.    Internal inconsistency: In his written report, Dr. Farney agreed
           with Dr. Fernando Rodriguez’s assessment of a CT scan. Dr.
           Rodriguez had opined that this CT scan showed signs of
           obstructive pulmonary disease. But Dr. Farney opined that he
           could not diagnose Mr. Lyle with emphysema because of a lack
           of evidence involving obstructive pulmonary disease.

     2.    Misunderstanding of Mr. Lyle’s actual work: Dr. Farney based
           his opinion partly on a belief that Mr. Lyle had worked in

conclusion on clinical pneumoconiosis. The reference to clinical
pneumoconiosis was apparently a mistake.
12
      Energy West also argues that the administrative law judge erred in
discounting Dr. Farney’s opinion on clinical pneumoconiosis. But the
administrative law judge concluded that Energy West had rebutted the
presumption of clinical pneumoconiosis, and no party has challenged this
conclusion. See note 10, above. Thus, even if we were to conclude that the
administrative law judge had erred in discounting Dr. Farney’s opinion on
clinical pneumoconiosis, the error would have been harmless. See
Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013, 1021 (10th Cir. 2010).
13
      The administrative law judge had earlier stated that Dr. Farney’s
opinion on legal pneumoconiosis was entitled to “minimal probative
value.” Joint App’x at 301. Ultimately, however, the administrative law
judge gave no weight to the opinion.


                                     16
           mines primarily when coal was not being extracted. But Mr.
           Lyle had spent 23 of his 28 years working in mines while coal
           was being extracted.

     3.    Infrequency of coal workers’ pneumoconiosis in the western
           states: Dr. Farney based his opinion in part on a belief that coal
           workers’ pneumoconiosis is relatively infrequent in the western
           United States. 14 But data on the general prevalence of coal
           workers’ pneumoconiosis did not explain whether Mr. Lyle was
           among the small group of western miners affected by exposure
           to coal dust.

     4.    Failure to explain the preclusive effect of a diagnosis of usual
           interstitial pneumonia: At his deposition, Dr. Farney testified
           that he had not diagnosed pneumoconiosis because he believed
           that Mr. Lyle’s symptoms were consistent with usual interstitial
           pneumonia, which is not caused by exposure to coal dust. But
           Dr. Farney did not explain why a diagnosis of usual interstitial
           pneumonia precluded a diagnosis of legal pneumoconiosis.

     Energy West challenges the administrative law judge’s first three

reasons for discounting Dr. Farney’s opinion on legal pneumoconiosis. 15

We reject these challenges.

     First, Energy West argues that Dr. Farney’s deposition testimony

explained his reasoning concerning obstructive lung disease. But when Dr.

Farney testified about the CT scan, he relied on Dr. Christopher Meyer’s

interpretation (rather than Dr. Rodriguez’s). So Dr. Farney never explained

the discrepancy between his opinions that


14
     Coal workers’ pneumoconiosis is a type of clinical pneumoconiosis.
20 C.F.R. § 718.201(a)(1).
15
      Energy West does not challenge the fourth reason on appeal and
didn’t do so in its appeal to the Benefits Review Board.

                                    17
           Mr. Lyle didn’t have obstructive pulmonary disease and

           the CT scan showed air trapping consistent with obstructive
            pulmonary disease.

      Second, Energy West argues that the administrative law judge failed

to consider the relevance of Mr. Lyle’s history of working when coal

wasn’t being extracted. The judge did not conclude that this history was

irrelevant; rather, he concluded that (1) Dr. Farney had misunderstood Mr.

Lyle’s employment history and (2) this misunderstanding had undercut Dr.

Farney’s opinion.

      Energy West argues that Dr. Farney knew that Mr. Lyle (1) had

worked as a coal miner for nearly three decades and (2) had worked most

recently as a belt installer. For the sake of argument, let’s assume that

Energy West is correct. Even with this knowledge, Dr. Farney appears to

have mistakenly thought that Mr. Lyle spent most of his mining career

working when the coal was not being extracted. 16


16
      Dr. Farney stated:

      His total years of work in the coal industry was almost 30 years,
      all of which was spent underground at or near the face. Based
      upon this duration he would appear to have a substantial risk for
      developing pulmonary disease related to coal dust exposure.
      However, his job was consistently performed during the “down
      shift” from 11:00 PM until 9:00 AM at which time coal
      extraction was not being performed. His duties involved repair
      and maintenance of equipment which may have created some
      dust exposure but this would be considerably less than during
      active mining.

                                      18
     Lastly, Energy West argues that the administrative law judge erred

by discounting Dr. Farney’s opinion based on his reliance on the

prevalence of coal workers’ pneumoconiosis in the western United States.

In discounting this opinion, the administrative law judge relied on

Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331 (10th

Cir. 2014). Energy West argues that this reliance was misguided. We

disagree. Goodin is relevant and supports the administrative law judge’s

decision to discount Dr. Farney’s opinion.

     In Goodin, another administrative law judge discounted an opinion

by Dr. Farney, reasoning that he had relied on “statistical probabilities”

without explaining why a specific miner didn’t suffer from legal

pneumoconiosis. Goodin, 743 F.3d at 1345–46. We upheld the

administrative law judge’s reasoning for his decision to discount Dr.

Farney’s opinion. See id. at 1346.

     Our discussion in Goodin applies here. Dr. Farney has again relied on

statistical probabilities. Under Goodin, the administrative law judge could

reasonably fault Dr. Farney for failing to explain why Mr. Lyle wasn’t

among the miners in the western United States suffering legal

pneumoconiosis from exposure to coal dust.



Joint App’x at 27. But the administrative law judge found that for 23 years,
Mr. Lyle had worked “during actual coal mine extraction.” Id. at 302.

                                     19
      Dr. Tomashefski’s opinion on legal pneumoconiosis. The

administrative law judge concluded that Dr. Tomashefski’s opinion was

entitled to “no probative value.” Joint App’x at 303. Dr. Tomashefski

acknowledged that Mr. Lyle suffered from constrictive bronchiolitis and

interstitial fibrosis, but opined that these diseases were unconnected to Mr.

Lyle’s decades of coal-dust exposure. According to the administrative law

judge, Dr. Tomashefski failed to explain why those diseases were unrelated

to coal-dust exposure.

      At his deposition, however, Dr. Tomashefski was asked why he

believed that coal-dust exposure hadn’t caused Mr. Lyle’s constrictive

bronchiolitis and interstitial fibrosis. Dr. Tomashefski answered:

             Well, let’s start with the constrictive bronchiolitis. In the
      first place, coal dust, when it affects the small airways, produces
      what I refer to as a coal macule, not constrictive bronchiolitis.
      The changes of constrictive bronchiolitis are much different
      from the coal macule, and furthermore, there was no histologic
      evidence of dust deposition in those airways that were
      constricted.

            And then if we move to the interstitial fibrosis, it’s the
      same thing, that the pattern of interstitial fibrosis did not qualify
      as pneumoconiosis, and although coal mine dust can cause
      interstitial fibrosis, to make that diagnosis, you need to see
      deposition of pigment and mineral particles significantly present
      in the areas of interstitial fibrosis. That was not seen here.

Id. at 151.

      In finding that Dr. Tomashefski had not explained his conclusion that

the diseases were unrelated to coal-dust exposure, the administrative law


                                       20
judge apparently overlooked this deposition testimony. In this excerpt, Dr.

Tomashefski explained why he believed that exposure to coal dust hadn’t

contributed to Mr. Lyle’s chronic bronchiolitis or interstitial fibrosis. The

judge might have had reasons to disagree, but he couldn’t simply deny the

existence of any explanation. See Peabody Coal Co. v. Helms, 859 F.2d

486, 490–91 (7th Cir. 1988) (reversing because the administrative law

judge erroneously regarded a physician’s opinion on causation as

equivocal); see also Hamlin v. Barnhart, 365 F.3d 1208, 1218–20 (10th

Cir. 2004) (reversing the denial of Social Security benefits because the

administrative law judge had erroneously regarded a physician’s opinion as

conclusory). By relying solely on the lack of any explanation, the

administrative law judge erred.

                                    * * *

      The administrative law judge discounted Dr. Tomashefski’s opinion

on legal pneumoconiosis for failing to explain why he had concluded that

coal-dust exposure had not caused Mr. Lyle’s respiratory or pulmonary

disease. But Dr. Tomashefski did explain this opinion. Because the judge’s

explanation is unsupported, we grant Energy West’s petition for review,

vacate the administrative law judge’s award of benefits, and remand the




                                      21
matter to the Benefits Review Board to reconsider Dr. Tomashefski’s

opinion on the cause of legal pneumoconiosis. 17




17
      On remand, the Board has discretion to remand to an administrative
law judge to reconsider Dr. Tomashefski’s opinion.

                                    22
