                                                 NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                           No. 08-2222
                          ____________

                          BETTY HIXSON
            (Survivor of and o/b/o DEMPSEY HIXSON),

                                           Petitioners
                                v.

  DIRECTOR OWCP, UNITED STATES DEPARTMENT OF LABOR;
             U.S. STEEL MINING COMPANY,

                                           Respondents
                          ____________

                  On Petition for Review from an
                Order of the Benefits Review Board,
                United States Department of Labor
               (Benefits Review Board No. 07-0471)
                           ____________

             Submitted Under Third Circuit LAR 34.1(a)
                         October 19, 2010

Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                    (Filed: November 10, 2010)

                          ____________

                    OPINION OF THE COURT
                         ____________
HARDIMAN, Circuit Judge.

       Betty Hixson (Hixson), widow of Dempsey Hixson (Dempsey), filed a petition for

review of the Black Lung Benefits Review Board denying her claim for benefits under

30 U.S.C. § 921(a). We will deny the petition.

                                              I.

       Because we write solely for the parties, we narrate only those portions of the facts

and procedural history that are necessary to our decision. The Black Lung Benefits Act

(Act), 30 U.S.C. § 901 et seq., and its implementing regulations impose upon certain coal

mine operators liability for the total disability or death of workers in the operators’ mines

if the disability or death was caused by pneumoconiosis (a lung disease) arising out of

coal mine employment. See 30 U.S.C. § 921(a); 20 C.F.R. §§ 718.204 (total disability),

718.205 (death).

       Dempsey Hixson, a coal miner for over 20 years, smoked cigarettes regularly for

much of his life. Dempsey retired from mining in 1983, suffered various pulmonary and

respiratory difficulties that increased in severity with time, and ultimately died from

pneumonia in 2001.

       Dempsey filed multiple applications for benefits under the Act. In his final

application, after protracted proceedings before multiple Administrative Law Judges

(ALJs) and the Benefits Review Board, Dempsey was ultimately found to be suffering

from pneumoconiosis arising from coal mining and to be totally disabled. Nevertheless,




                                              2
the Board denied benefits based on a lack of proof that Dempsey’s total disability was

caused by the pneumoconiosis. Dempsey filed a number of motions for modification,

some of them including additional evidence. Before his last motion could be heard,

Dempsey died, and Hixson added a survivor’s claim.

       Because the previous medical evidence had established Dempsey’s

pneumoconiosis, U.S. Steel conceded that he had suffered from the disease and that it

arose out of coal mine employment, but maintained that his disability and death were not

caused by it. U.S. Steel offered the expert opinion of Dr. Everett Oesterling, a board-

certified clinical pathologist, who opined that Dempsey’s pneumoconiosis was too minor

in nature to have caused either his disability or his death. Oesterling instead pointed to

Dempsey’s cigarette smoking and asthma as the causal agents behind his pulmonary and

respiratory problems.1 The ALJ found Dr. Oesterling’s opinion to be persuasive and in

accord with the weight of the medical evidence adduced in prior proceedings.

Accordingly, the ALJ denied the motion for modification. Hixson appealed to the Board,

which affirmed.




       1
        We recognize that the record contains other medical evidence and that, in
considering a motion for modification, an ALJ must consider all of the evidence,
including that adduced in prior proceedings. See Nataloni v. Director, Officer of
Worker’s Comp. Programs, 17 B.L.R. 1-82 (1993). We here address only Dr.
Oesterling’s opinions because Hixson limits her competence objections to those opinions
and does not lodge any complaint with respect to the ALJ’s weighing of the remaining
evidence.




                                             3
                                              II.

      Hixson now petitions for review of the denial of the motion for modification.2 An

order denying benefits can be modified “on grounds of a change in conditions or because

of a mistake in a [previous] determination of fact.” 20 C.F.R. § 725.310(a). In reviewing

an ALJ’s decision with respect to benefits:

      [t]he Board is bound by the ALJ’s findings of fact if they are supported by
      substantial evidence. Our review of the Board’s decision is limited to a
      determination of whether an error of law has been committed and whether the
      Board has adhered to its scope of review.

             In reviewing the Board’s decision, we must independently review the
      record and decide whether the ALJ’s findings are rational, consistent with
      applicable law and supported by substantial evidence on the record considered as a
      whole. Substantial evidence has been defined as “such relevant evidence as a
      reasonable mind might accept as adequate to support a conclusion.” We exercise
      plenary review over the ALJ’s legal conclusions that were adopted by the Board.

Hill v. Dir., Office of Worker’s Comp. Programs, 562 F.3d 264, 268 (3d Cir. 2009)

(citations and some internal quotation marks omitted).

      For the reasons that follow, we will deny the petition.

                                              III.

      Hixson first assails the Board’s affirmance of the ALJ’s conclusion that she failed

to prove that Dempsey’s total disability was due to his pneumoconiosis. She does so by

maintaining that U.S. Steel’s admission that Dempsey suffered from pneumoconiosis




      2
          We have jurisdiction pursuant to 33 U.S.C. § 921(c).




                                               4
arising from his coal mine employment eliminated the requirement that she make any

showing of causation.

       20 C.F.R. § 718.204(c)(1) provides that, in order to establish that her husband was

“totally disabled due to pneumoconiosis,” Hixson must demonstrate that the disease

either had “a material adverse effect on [his] respiratory or pulmonary condition,” id.

§18.204(c)(1)(I), or “[m]aterially worsen[ed]” some other “totally disabling respiratory or

pulmonary impairment.” Hixson’s argument relies on the regulatory definition of

“pneumoconiosis” found at 20 C.F.R. § 718.201, which reads:

       (a) For the purpose of the Act, “pneumoconiosis” means a chronic dust
       disease of the lung and its sequelae, including respiratory and pulmonary
       impairments, arising out of coal mine employment. This definition includes
       both medical, or “clinical”, pneumoconiosis and statutory, or “legal”,
       pneumoconiosis.
              ....
       (b) For purposes of this section, a disease “arising out of coal mine
       employment” includes any chronic pulmonary disease or respiratory or
       pulmonary impairment significantly related to, or substantially aggravated
       by, dust exposure in coal mine employment.

Hixson maintains that the phrase “substantially aggravated by[] dust exposure in coal

mine employment,” as used in this regulatory definition of pneumoconiosis, is

substantively identical to § 718.204(c)(1)(i)’s causation requirement of a “materially

adverse effect on the miner’s respiratory or pulmonary condition.” Under Hixson’s

theory, U.S. Steel’s admission that her husband had pneumoconiosis arising out of coal

mine employment absolves her from submitting further proof of causation.




                                             5
       The Board rejected this argument, citing multiple authorities for the proposition

that causation is an element of a benefits claimant’s case distinct from the existence of

pneumoconiosis. We agree. If § 718.201(b) provided that an illness can be regarded as

pneumoconiosis only if it is “substantially aggravated” by such employment, Hixson’s

argument might have some merit. But § 718.201(b) expressly states that a lung ailment

can also qualify as pneumoconiosis simply by being “significantly related to” mine

employment. We think it abundantly clear that this “significantly related” standard can

be satisfied even in cases where the illness does not create any material adverse effects on

the miner’s health, within the meaning of § 718.204(c)(1). Accordingly, an admission

that a miner has pneumoconiosis is not equivalent to an admission that the illness caused

any total disability the miner may have suffered, and we will affirm the Board’s decision

in this regard.

                                            IV.

       Hixson also argues that the testimony of Dr. Oesterling, U.S. Steel’s expert, was

incompetent because it contradicted the fundamental premises of the statutory and

regulatory regime:

       The Act and its implementing regulations provide compensation and other
       benefits . . . to miners’ surviving dependents where death is due to
       pneumoconiosis. For purposes of the Act, death is considered due to
       pneumoconiosis if the disease was a “substantially contributing cause or
       factor” leading to death. 20 C.F.R. §718.205(c). This term has been held to
       encompass situations in which pneumoconiosis “actually hastened” the
       miner’s death.




                                             6
Consol. Coal Co. v. Kramer, 305 F.3d 203, 205 (3d Cir. 2002). Thus, it is axiomatic to

this remedial scheme that pneumoconiosis is indeed capable of hastening death. We have

held that ALJs may disregard as incompetent expert opinion evidence that contradicts

fundamental tenets of this sort. Id. at 210.

       Hixson, however, overstates the import of the regulatory scheme at issue here.

She states that “[u]nder the Rules as promulgated by the Director, one cannot have de

minimis pneumoconiosis,” Pet. Br. at 29 n.3, implying that every case of the illness

necessarily hastens death, thus invalidating any evidence that a given individual’s death

was not caused by it. This is plainly wrong. The regulations indicate only that it is

possible for pneumoconiosis to hasten death, not that it always does so. And, as the

Board noted, Dr. Oesterling’s testimony in this regard was not at all in tension with the

regulations. Oesterling simply opined that pneumoconiosis did not hasten Dempsey’s

death, not that it was incapable of hastening anyone’s death. Accordingly, the Board did

not err in affirming the ALJ’s consideration of Oesterling’s testimony.

                                               V.

       For the reasons stated, we find no legal error in the Board’s conclusions and

substantial evidence supported the ALJ’s findings of fact. Accordingly, we will deny

Hixson’s petition for review.




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