                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-3022
                                     ___________

                                ISPAT/INLAND, INC.,
                                               Petitioner

                                           v.

        DIRECTOR OWCP, UNITED STATES DEPARTMENT OF LABOR;
                          HOWARD CURTIS
                       _______________________

                       On Petition for Review of an Order of the
              Benefits Review Board, United States Department of Labor
                               (BRB No. 09-0356 BLA)
                                   ______________

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

             Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges.

                                 (Filed: April 6, 2011)
                                  _________________

                             OPINION OF THE COURT
                                _________________

SCIRICA, Circuit Judge.

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

Review Board awarding benefits to Howard Curtis under the Black Lung Benefits Act,

30 U.S.C. § 901 et seq. (―BLBA‖). According to Ispat/Inland, the coal mine operator

responsible for paying benefits, the administrative law judge wrongly presumed any
obstructive pulmonary disease in an individual with both a history of coal dust exposure

and a longstanding smoking habit will necessarily ―arise out of‖ coal mine employment

and therefore qualify as ―legal‖ pneumoconiosis under the statute and regulations.

Because neither the ALJ nor the Board employed such a presumption, we will affirm.1

                                             I.

         Congress enacted BLBA to compensate miners who are totally disabled by

pneumoconiosis, which the statute defines as ―a chronic dust disease of the lung and its

sequelae, including respiratory and pulmonary impairments, arising out of coal mine

employment.‖ 30 U.S.C. §§ 901(a), 902(b). Under the statute, pneumoconiosis may be

―clinical‖ or ―legal.‖ The former label refers to the category of diseases recognized by the

medical community as pneumoconiosis. 20 C.F.R. § 718.201(a)(1). The latter is defined

as ―any chronic lung disease or impairment . . . arising out of coal mine employment‖

including, without limitation, ―any chronic restrictive or obstructive pulmonary disease

arising out of coal mine employment.‖ 20 C.F.R. § 718.201(a)(2). An obstructive

pulmonary condition caused by coal-dust exposure satisfies the definition of legal

pneumoconiosis. See id.; LaBelle Processing Co. v. Swarrow, 72 F.3d 308, 315 (3d Cir.

1995).

         To recover benefits under BLBA, a claimant must demonstrate (1) he suffers from

pneumoconiosis; (2) he is ―totally disabled‖; and (3) the pneumoconiosis is a substantial


1
  The Board upheld the ALJ’s award and denied Ispat/Inland’s motion for
reconsideration. We have jurisdiction under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 921(c), which is incorporated by reference in BLBA, 30
                                             2
contributing cause of his total disability. See 20 C.F.R. §§ 718.201–204. By definition,

legal pneumoconiosis refers to a class of pulmonary impairments arising out of coal mine

employment. See 30 U.S.C. § 902(b). A claimant, therefore, bears the burden of proof on

two distinct causation inquiries — disease causation and disability causation. See 20

C.F.R. § 725.103; Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 861 (D.C. Cir.

2002) (―a claimant . . . bears the burden of demonstrating that he meets all of the relevant

conditions‖). First, to qualify under the statute as an individual afflicted by ―legal‖

pneumoconiosis, a claimant must prove his obstructive pulmonary condition arose out of

his coal mine employment. 20 C.F.R. § 718.201(a)(2). Subsequently, he must

demonstrate pneumoconiosis is a ―substantially contributing cause‖ of his totally

disabling pulmonary impairment. 20 C.F.R. § 718.204(c). Pneumoconiosis is a

―substantially contributing cause‖ of a miner’s disability if it (1) ―[h]as a material adverse

effect on the miner’s respiratory or pulmonary condition;‖ or (2) ―[m]aterially worsens a

totally disabling respiratory or pulmonary impairment which is caused by a disease or

exposure unrelated to coal mine employment.‖ 20 C.F.R. § 718.204(c).

       BLBA and its implementing regulations employ a number of presumptions

―intended to ease a claimant’s burden by allowing an element of the required proof to be

presumed from the existence of other rationally-related facts.‖ Andersen v. Dir., OWCP,

455 F.3d 1102, 1104 (10th Cir. 2006) (quotation omitted). In the realm of disease

causation, ―[i]f a miner who is suffering or suffered from pneumoconiosis was employed


U.S.C. § 932(a).
                                              3
for ten years or more in one or more coal mines there shall be a rebuttable presumption

that his pneumoconiosis arose out of such employment.‖ 30 U.S.C. § 921(c)(1); 20

C.F.R. § 718.203(b).2 The regulations ―do[ ] not . . . create a presumption that all or even

more obstructive disease is caused by exposure to coal dust. . . . [E]ach miner bears the

burden of proving that his obstructive lung disease did in fact arise out of his coal mine

employment.‖ Nat’l Mining Ass’n, 292 F.3d at 862–63 (internal quotation omitted).

       On appeal, Ispat/Inland contests the ALJ’s findings concerning legal

pneumoconiosis and disability causation. Ispat/Inland argues the ALJ, in according less

weight to the testimony of a physician who theorized that the contribution of coal dust

exposure to Curtis’ pulmonary impairment was ―clinically insignificant‖ in light of his

well-documented smoking history, effectively fashioned an irrebuttable presumption in

favor of entitlement to benefits under BLBA. That is, by crediting medical testimony

ascribing Curtis’ lung disease to both coal dust exposure and cigarette smoke over

testimony pinning the obstruction solely on cigarette smoke, the ALJ impermissibly

facilitated Curtis’ efforts to demonstrate disease causation. Ispat/Inland argues this

adjudicatory tack leads invariably to the awarding of benefits under BLBA despite the

theoretically disproportionate contributions of cigarette inhalation and coal dust exposure



2
 The ALJ concluded Curtis was entitled to this presumption. The Tenth Circuit has
concluded this presumption applies strictly to claims of clinical pneumoconiosis and does
not extend to claims of legal pneumoconiosis. Andersen, 455 F.3d at 1105–06.
Nevertheless, because a finding of legal pneumoconiosis subsumes a finding of disease
causation, the Board reasoned the ALJ’s misguided application of the presumption was
harmless error. We concur.
                                              4
to a miner’s pulmonary disorder. For the reasons outlined below, Ispat/Inland’s argument

fails.3

                                              II.

          In January 2009, the ALJ awarded Curtis’ claim for benefits based on a finding of

legal pneumoconiosis. The ALJ found Curtis worked thirteen years in coal mine

employment and had smoked ―between 50 and 60 [cigarette] pack years.‖ Based on his

assessment of eleven x-ray interpretations, the ALJ found the evidence insufficient to

establish the presence of clinical pneumoconiosis. See 20 C.F.R. § 718.202(a)(1) (―A

chest X-ray conducted and classified in accordance with § 718.102 may form the basis

for a finding of the existence of pneumoconiosis.‖). However, the ALJ also assessed

testimony proffered by five medical witnesses and concluded Curtis had satisfied his

burden of establishing legal pneumoconiosis. See 20 C.F.R. § 718.202(a)(4) (―A

determination of the existence of pneumoconiosis may also be made if a physician,

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




3
 We review a Board decision to determine whether an error of law has been made and
whether the Board has adhered to its own standard of review. Lombardy v. Dir., OWCP,
355 F.3d 211, 213 (3d Cir. 2004). We review questions of law de novo, and we note the
Board is bound by an ALJ’s findings of fact ―if they are supported by substantial
evidence in the record considered as a whole.‖ Id. ―Appellate review thus necessarily
entails an independent review of the record and a decision as to whether the
administrative law judge’s findings were supported by substantial evidence.‖
Consolidation Coal Co. v. Kramer, 305 F.3d 203, 207 (3d Cir. 2002). ―If substantial
evidence exists, we must affirm the ALJ’s interpretation of the evidence even if we might
have interpreted the evidence differently in the first instance.‖ Balsavage v. Dir., OWCP,
295 F.3d 390, 395 (3d Cir. 2002) (internal quotation omitted).
                                               5
miner suffers or suffered from pneumoconiosis as defined in § 718.201. . . . Such a

finding shall be supported by a reasoned medical opinion.‖).

       The parties stipulated that Curtis suffers from a totally disabling chronic

obstructive pulmonary disease. Thus, as to both disease and disability causation, the

unifying question on appeal is whether Curtis demonstrated his condition was caused, in

some material part, by his occupational exposure to coal mine dust. On this issue, the

testimony of three physicians is germane.4 Dr. Donald L. Rasmussen, a medical witness

whose report was submitted by Curtis, conceded cigarette smoke was likely a more

determinative factor in Curtis’ obstruction than was coal mine dust but concluded the

dust exposure was ―significant‖ and had ―contribute[d] in a material way to his disabling

lung disease.‖ Dr. John E. Parker, another medical witness whose report was submitted

by Curtis, cited a wealth of research attesting to the causal link between coal dust and

obstructive lung disease and similarly fixed blame for Curtis’ obstruction on both coal

dust and tobacco smoke. To the contrary, Dr. Gregory J. Fino, Ispat/Inland’s medical

witness, placed sole responsibility for the pulmonary condition on cigarette smoke and

opined that coal dust exposure was ―of no clinical significance‖ in Curtis’ case. He also

concluded that, even if Curtis suffered from pneumoconiosis, his disability was caused

uniquely by cigarette smoke.




4
  The ALJ accorded little weight to the opinions of Drs. Celko and Altmeyer. Because
Ispat/Inland has not contested these evaluations, we will devote the bulk of our analysis
to the three medical opinions most heavily relied upon by the ALJ.
                                             6
       The ALJ found the testimony of Drs. Rasmussen and Parker more persuasive than

the opinion forwarded by Dr. Fino. Specifically, he found Dr. Fino ―failed to explain how

the literature related to [Curtis’] case‖ and could not offer a convincing explanation for

how he had managed to distinguish the effects of cigarette smoke from the effects of coal

dust in this instance. The Board affirmed, holding the ALJ had acted within his discretion

in discounting Dr. Fino’s opinion and in concomitantly crediting the pneumoconiosis

diagnoses offered by Drs. Rasmussen and Parker.

       We too conclude the ALJ acted properly in scrutinizing and weighing the

competing medical testimony. Under the BLBA’s adjudicatory scheme, the ALJ

―evaluate[s] the reasoning and credibility‖ of medical opinions, Kertesz v. Crescent Hills

Coal Co., 788 F.2d 158, 163 (3d Cir. 1986), and ―has discretion to accord varying weight

to physician testimony,‖ Consolidation Coal Co. v. Kramer, 305 F.3d 203, 207 n.7 (3d

Cir. 2002). At no point did the ALJ or the Board afford Curtis the benefit of a

presumption that his obstruction or his total disability arose out of coal dust exposure.

Instead, the ALJ assessed the medical evidence regarding the etiology of Curtis’

condition and found the diagnoses offered by Drs. Rasmussen and Parker comparatively

credible. The ALJ found their opinions — which factored into the equation Curtis’

smoking and employment histories — squarely supported by adequate data and sound

analysis. Neither witness blindly assumed Curtis suffered from legal pneumoconiosis

simply by virtue of his affliction with a chronic pulmonary condition, and the ALJ did not

make this inferential leap on the issue of disease causation without first rigorously

                                              7
evaluating the competing testimony. The burden remained on Curtis to demonstrate

disease causation, and the ALJ properly determined he had satisfied this burden by

presenting medical testimony that weighed in his favor. See 20 C.F.R. § 718.202(a)(4).

       ―Whether a medical opinion is reasoned . . . is a decision that rests ultimately with

the ALJ . . . . The ALJ needs only to be persuaded, on the basis of all available evidence,

that pneumoconiosis is a contributing cause of the miner’s disability.‖ Freeman United

Coal Mining Co. v. Summers, 272 F.3d 473, 483 (7th Cir. 2001). Here, the ALJ found Dr.

Fino’s opinion deficient in several respects. Critically, both the ALJ and the Board found

Dr. Fino failed to articulate a viable explanation for why the selections from the relevant

medical literature upon which he relied were directly applicable to Curtis. Quite clearly,

the ALJ did not discredit Dr. Fino’s testimony simply because it posited cigarette smoke

as the sole underlying cause of Curtis’ condition. Indeed, far from overlooking the

potentially confounding influence of cigarette smoke in Black Lung cases in which x-ray

evidence does not demonstrate the existence of clinical pneumoconiosis, the ALJ

prefaced his decision by acknowledging a claimant’s cigarette smoking history ―is of

particular importance because the pulmonary manifestations of smoking are often similar

to [those] of coal workers’ pneumoconiosis.‖

       Based on the available evidence, the ALJ reasonably concluded coal dust exposure

was a significant contributing cause of Curtis’ chronic obstructive pulmonary disease,

and that Curtis’ condition therefore comports with the statutory definition of legal

pneumoconiosis. See 30 U.S.C. §902(b); 20 C.F.R. § 718.201(a)(2). The ALJ acted

                                             8
within his discretion in crediting the testimony of Drs. Rasmussen and Parker over the

testimony of Dr. Fino and in determining Curtis had satisfied each element of entitlement

to benefits based on this medical testimony.5

                                           III.

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

order of the Benefits Review Board.




5
 The Board declined to review the ALJ’s finding of disability causation under 20 C.F.R.
§ 718.204(c) because Ispat/Inland had neglected to challenge the issue on appeal. In
affirming the ALJ’s award of benefits, our reasoning applies with equal force to both
disease and disability causation.
                                            9
