                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 19a0234p.06

                UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



              18-3680 & 18-3909                       ┐
                                                      │
ISLAND CREEK COAL COMPANY,                            │
                                                      │
                                        Petitioner,   │
                                                      │
      v.                                              │
                                                       >      Nos. 18-3680/3909/4022
                                                      │
MELYNDIA BRYAN, Survivor of Bert F. Bryan;            │
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION             │
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,          │
Respondents.                                          │
                                                      │
                                                      │
                   18-4022                            │
                                                      │
DORRIS E. CUNNINGHAM,                                 │
                                        Petitioner,   │
                                                      │
                                                      │
      v.                                              │
                                                      │
ISLAND CREEK COAL COMPANY; DIRECTOR, OFFICE OF        │
WORKERS’ COMPENSATION PROGRAMS, UNITED                │
STATES DEPARTMENT OF LABOR,                           │
                                  Respondents.        │
                                                      ┘

                             On Petitions for Review of Orders
            of the Benefits Review Board, United States Department of Labor;
                            Nos. 17-0277 BLA; 17-0457 BLA.

                                  Argued: June 18, 2019

                         Decided and Filed: September 11, 2019

            Before: McKEAGUE, THAPAR, and MURPHY, Circuit Judges.
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.          Page 2


                                     _________________

                                          COUNSEL

                                      18-3680 & 18-3909

ARGUED: Jeffrey R. Soukup, JACKSON KELLY, PLLC, Lexington, Kentucky, for Petitioner.
Brent Yonts, LAW OFFICE OF YONTS, SHERMAN & DRISKILL, PSC, Greenville,
Kentucky, for Respondent Bryan. Edward Waldman, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Federal Respondent. ON BRIEF: Jeffrey R. Soukup, William
S. Mattingly, JACKSON KELLY, PLLC, Lexington, Kentucky, for Petitioner. Brent Yonts,
LAW OFFICE OF YONTS, SHERMAN & DRISKILL, PSC, Greenville, Kentucky, for
Respondent Bryan. Edward Waldman, Rita A. Roppolo, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Federal Respondent.

                                            18-4022

ARGUED: Austin P. Vowels, VOWELS LAW PLC, Henderson, Kentucky, for Petitioner.
Joseph D. Halbert, SHELTON, BRANHAM & HALBERT, PLLC, Lexington, Kentucky for
Respondent Island Creek. Edward Waldman, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Federal Respondent. ON BRIEF: Austin P. Vowels, VOWELS LAW
PLC, Henderson, Kentucky, for Petitioner. Joseph D. Halbert, SHELTON, BRANHAM &
HALBERT, PLLC, Lexington, Kentucky for Respondent Island Creek. Edward Waldman, Sean
G. Bajkowski, Sarah M. Hurley, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Federal Respondent.

                                     _________________

                                           OPINION
                                     _________________

       MURPHY, Circuit Judge. It has long been said that the doctrine of administrative
exhaustion “is as old as federal administrative law.” Raoul Berger, Exhaustion of Administrative
Remedies, 48 Yale L.J. 981, 981 (1939). But what is the doctrine’s source? A federal statute?
Federal common law?       A brooding omnipresence in the bureaucratic sky?        This question
confronts us in these petitions for review, which assert claims based on Lucia v. SEC, 138 S. Ct.
2044 (2018). There, the Court held that the SEC’s appointment of an administrative law judge
violated the Constitution’s Appointments Clause. Id. at 2049. Here, the petitioners argue that
Lucia renders unconstitutional the appointments of the administrative law judges who
adjudicated their black-lung-benefits disputes. But there is a catch: The petitioners raised this
issue for the first time in motions for reconsideration with the Benefits Review Board, the body
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.           Page 3


within the Department of Labor that hears appeals from decisions of administrative law judges.
The Board held that their constitutional claims came too late, so the Department of Labor asserts
that they forfeited this issue in court by failing to properly exhaust it with the agency. We must
consider, among other questions, whether the Black Lung Benefits Act contains a requirement to
exhaust issues with the Board and, if so, whether that requirement bars the petitioners’
constitutional claims.

                                                I.

       The Black Lung Benefits Act, 30 U.S.C. §§ 901–44, “provides federal funds to those who
have been totally disabled by pneumoconiosis, a respiratory disease commonly caused by coal
mine employment, and to their eligible survivors.” U.S. Dep’t of Labor v. Triplett, 494 U.S. 715,
717 (1990).    The Act grants broad authority to the Secretary of Labor to implement its
provisions. E.g., 30 U.S.C. § 902(f)(1); id. § 932(h). Regulations authorize benefits if miners
prove that they have “pneumoconiosis”; that the disease “arose out of coal mine employment”;
that they are “totally disabled”; and that their “pneumoconiosis contributes to the total
disability.” 20 C.F.R. § 725.202(d)(2). Regulations also establish a framework for identifying
the coal-mine “operator” who should be on the hook for paying the benefits. Id. §§ 725.494–.95;
see 30 U.S.C. § 932(b).

       To resolve benefits disputes between miners and operators, the Act incorporates many
claims-processing rules from the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.
§§ 901–50. 30 U.S.C. § 932(a). When a miner applies for benefits, a “district director” in the
Department of Labor investigates the claim and issues a proposed order granting or denying
benefits. 20 C.F.R. § 725.418(a). From that order, a miner or operator may request a hearing
before an administrative law judge. 33 U.S.C. § 919(d); 20 C.F.R. § 725.419(a). The judge
typically holds a hearing under the Administrative Procedure Act’s adjudication rules, 5 U.S.C.
§ 554, and issues a benefits decision with accompanying findings of fact and conclusions of law.
20 C.F.R. §§ 725.450–.79.      Following that decision, the miner or operator may appeal a
“substantial question of law or fact” to the Benefits Review Board. 33 U.S.C. § 921(b)(3);
20 C.F.R. § 725.481. After exhausting these internal agency steps, the miner or operator may
 Nos. 18-3680/3909/4022         Island Creek Coal Company et al. v. Bryan, et al.           Page 4


lastly obtain judicial review of “a final order of the Board” from a court of appeals. 33 U.S.C.
§ 921(c); 20 C.F.R. § 725.482(a).

       Department of Labor staff (not the Secretary of Labor) had been appointing the
administrative law judges who adjudicate benefits disputes within the agency.              Yet the
Constitution’s Appointments Clause dictates the method for appointing “Officers of the United
States,” allowing Congress to place the appointment power for “inferior Officers” only “in the
President,” the “Courts of Law,” or the “Heads of Departments.” U.S. Const. art. II, § 2, cl. 2.
Thus, if administrative law judges qualify as “inferior Officers” rather than employees, their staff
appointments violated the Constitution. In December 2017, anticipating that the Supreme Court
might review this question, the Secretary of Labor ratified the appointments of the existing
administrative law judges. Several months later, on June 21, 2018, the Court held that an SEC
administrative law judge was an inferior officer who had been unconstitutionally appointed.
Lucia, 138 S. Ct. at 2055.

       This administrative backdrop sets the stage for these two benefits disputes. (We highlight
their general facts now and save the details for our later substantial-evidence review.)

       Dorris Cunningham (No. 18-4022). Petitioner Dorris Cunningham worked at a Kentucky
coal mine from 1952 until his 1993 retirement. Respondent Island Creek Coal eventually came
to operate the mine. After his retirement, Cunningham applied for black-lung benefits, but his
claims were denied because he was not “totally disabled.” In February 2014, Cunningham filed
his current application.     After a district director proposed awarding benefits, Island Creek
requested a hearing with an administrative law judge. The judge found that Cunningham again
failed to show that he was totally disabled. On June 27, 2018, a few days after Lucia, the
Benefits Review Board affirmed. In a motion for reconsideration, Cunningham argued for the
first time that the Secretary of Labor had not properly appointed the administrative law judge
who rejected his claim. The Board denied the motion. It found that Cunningham had “waived”
this constitutional issue because he raised it “only after the Board issued its decision on the
merits.”
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.            Page 5


        Melyndia Bryan (Nos. 18-3680, 18-3909). Bert Bryan worked in underground coal
mines for at least 16 years between 1972 and 1989. He applied for black-lung benefits in July
2010, but died two years later. His wife, Respondent Melyndia Bryan, assumed his claim and
filed a separate survivor’s claim. A district director awarded benefits on both claims and found
Island Creek (the Petitioner in Bryan’s cases) to be the responsible operator. Island Creek
requested a hearing with an administrative law judge. The judge found that Bert Bryan had a
total disability due to pneumoconiosis, that he had been entitled to benefits from the date of his
application to the date of his death, and that Melyndia was entitled to survivor’s benefits. Island
Creek appealed both claims to the Benefits Review Board. In February 2018, the Board affirmed
the judge’s decision on the original claim, but suggested that Island Creek had not appealed the
survivor’s claim. After Island Creek filed a motion for reconsideration, the Board recognized
that Island Creek had in fact appealed. Yet, on June 15, 2018, the Board affirmed the decision
on the survivor’s claim too. In another motion for reconsideration after Lucia, Island Creek for
the first time challenged the appointment of the administrative law judge who awarded benefits.
The Board found that Island Creek (like Cunningham) had “waived” this issue by failing to raise
it sooner.

        From these final orders of the Benefits Review Board, Cunningham and Island Creek
sought this court’s review, requesting a new hearing before a properly appointed administrative
law judge (and raising fact-specific substantial-evidence challenges). We consolidated their
petitions for review.   In this court, the Director of the Office of Workers’ Compensation
Programs in the Department of Labor (the “Department of Labor”) concedes that the
administrative law judges who oversaw these disputes were not constitutionally appointed. But
the Department of Labor argues that Island Creek and Cunningham forfeited their constitutional
claims by not exhausting them with the agency.

                                                 II.

        We start with the exhaustion question. At the outset, we note what this question is not
about. To begin with, it does not implicate our subject-matter jurisdiction. EPA v. EME Homer
City Generation, L.P., 572 U.S. 489, 512 (2014); Herr v. U.S. Forest Serv., 803 F.3d 809, 822
(6th Cir. 2015). The law grants the courts of appeals adjudicative authority over “a final order of
 Nos. 18-3680/3909/4022         Island Creek Coal Company et al. v. Bryan, et al.          Page 6


the Board,” 33 U.S.C. § 921(c), and Island Creek and Cunningham timely petitioned from final
orders. Cf. Weinberger v. Salfi, 422 U.S. 749, 763–67 (1975). This question also does not
implicate what some cases have called the “exhaustion of remedies”: a requirement that a party
complete the agency’s internal remedial steps (including administrative appeals) before turning
to the judiciary. Sims v. Apfel, 530 U.S. 103, 107 (2000). Island Creek and Cunningham
litigated these disputes before an administrative law judge, 33 U.S.C. § 919(d), and appealed the
judge’s decision to the Benefits Review Board, id. § 921(b)(3). The statute required them to
invoke no more agency processes before heading to court. Cf. Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 207–09 (1994); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48–51
(1938).

          This case instead implicates what cases have called “issue exhaustion.” Sims, 530 U.S. at
107; 2 Kristin E. Hickman & Richard J. Pierce, Jr., Administrative Law Treatise § 17.8 (6th ed.
2019). The Department of Labor argues that Island Creek and Cunningham should have raised a
specific issue (their Appointments Clause challenge) with the Benefits Review Board in order to
preserve that issue for judicial review. We addressed a similar issue-exhaustion claim in Jones
Brothers, Inc. v. Secretary of Labor, 898 F.3d 669 (6th Cir. 2018), which asked “three
interrelated questions” to resolve an agency’s argument that a party failed to exhaust a post-
Lucia constitutional challenge. Id. at 673. We ask three similar questions here: (1) Must parties
who seek judicial review of the Benefits Review Board’s orders exhaust issues with the Board?
(2) If so, did Island Creek and Cunningham exhaust their constitutional claims by raising them in
motions for reconsideration? (3) If not, do these constitutional claims nevertheless fall within an
exception to the exhaustion requirement? We conclude: Yes, No, and No. Our reasons follow.

            1. Does this administrative scheme contain an issue-exhaustion requirement?

          This question, the Department of Labor assures us, has an obvious answer: “Under
longstanding principles of administrative law, a party may not raise before the court an argument
it failed to preserve before the agency.” The Department’s categorical claim suggests that courts
have the power to impose a universal exhaustion requirement across all federal statutes in
common-law fashion. Admittedly, language in the caselaw could be read to support that notion.
Courts have described an implied requirement to raise issues with an agency as a “judge-made,”
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.            Page 7


“prudential,” or “common law” duty to exhaust. Ross v. Blake, 136 S. Ct. 1850, 1857 (2016);
Hettinga v. United States, 560 F.3d 498, 503 (D.C. Cir. 2009); Hickman & Pierce, supra, § 17.2,
at 1457. And the Supreme Court has noted that this implied exhaustion requirement can arise
from “judicial discretion.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992).

       On closer inspection, though, the Department of Labor’s generic framing—unconnected,
as it is, to any specific statute—overstates things. Just as the “common law is not a brooding
omnipresence in the sky,” S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J.,
dissenting), so too administrative law is not a hazy body of policy choices that courts are free to
“discover.”   See Patsy v. Bd. of Regents, 457 U.S. 496, 501–02 (1982); John F. Duffy,
Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 120 (1998). Instead,
exhaustion primarily raises a question of statutory interpretation about “the particular
administrative scheme at issue.” Salfi, 422 U.S. at 765; Darby v. Cisneros, 509 U.S. 137, 144–
45 (1993); Patsy, 457 U.S. at 501–02 & n.4. And, as with any interpretive question, courts must
adopt exhaustion rules that comport “with congressional intent and any applicable statutory
scheme.” McCarthy, 503 U.S. at 144. In that respect, the Supreme Court has identified three
categories of statutory schemes when deciding if a specific statute contains an issue-exhaustion
mandate. Sims, 530 U.S. at 107–10.

       Category One: Many issue-exhaustion requirements are pure “creatures of statute.” Id. at
107. Consider the Mine Act addressed in Jones Brothers. 898 F.3d at 672–73. That statute tells
courts: “No objection that has not been urged before the [Federal Mine Safety and Health
Review] Commission shall be considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances.” 30 U.S.C. § 816(a)(1). An
issue-exhaustion mandate (with a built-in exception) could not be stated in plainer terms. Many
statutes fit the same mold. E.g., 15 U.S.C. § 77i(a); 29 U.S.C. § 160(e); 47 U.S.C. § 405(a);
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36 n.6 (1952). Others are written in
more general terms, requiring “administrative remedies” to be “exhausted.”              42 U.S.C.
§ 1997e(a). The Supreme Court has read this text to command “proper” exhaustion, which may
include issue exhaustion if an agency’s rules so require. Woodford v. Ngo, 548 U.S. 81, 90–91
(2006); cf. Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155 n.15 (1946).
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.           Page 8


       Category Two: Some statutes say nothing about exhaustion, but permit agencies to adopt
regulations detailing their internal claims-processing rules. In these regimes, “it is common for
an agency’s regulations to require issue exhaustion in administrative appeals.” Sims, 530 U.S. at
108. This type of regulation must comport with the statute under which it arose. See Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 156–57 (2013); Inova Alexandria Hosp. v. Shalala,
244 F.3d 342, 349 (4th Cir. 2001). And the agency must not misinterpret the regulation or apply
it in an arbitrary manner (by, for example, enforcing it against some parties but not others). See
Crockett Colleries, Inc. v. Barrett, 478 F.3d 350, 353–55 (6th Cir. 2007); compare Hooper v.
Nat’l Transp. Safety Bd., 841 F.2d 1150, 1151 (D.C. Cir. 1988) (per curiam), with Brown v. Nat’l
Transp. Safety Bd., 795 F.2d 576, 578–79 (6th Cir. 1986) (per curiam). But when an issue-
exhaustion regulation is valid, “courts reviewing agency action regularly ensure against the
bypassing of that requirement by refusing to consider unexhausted issues.” Sims, 530 U.S. at
108; Palladian Partners, Inc. v. United States, 783 F.3d 1243, 1255 (Fed. Cir. 2015); Vt. Dep’t
of Pub. Serv. v. United States, 684 F.3d 149, 156–58 (D.C. Cir. 2012). That is because courts
usually must enforce claims-processing rules when a party properly invokes them. Union Pac.
R.R. Co. v. Locomotive Eng’rs, 558 U.S. 67, 81 (2009).

       Category Three: When neither statute nor regulation says anything about exhaustion, the
Supreme Court has held that a court may still impose an implied exhaustion rule as long as the
rule comports with the statutory scheme. Sims, 530 U.S. at 108–10 (discussing L.A. Tucker
Truck Lines, 344 U.S. at 36–37). The Court, however, has yet to identify the source of the
judiciary’s authority to impose this “prudential” exhaustion mandate on top of a statutory scheme
that does not expressly contain one. See In re Univ. of Mich., __ F.3d __, No. 19-1636, 2019
WL 3979607, at *2 (6th Cir. Aug. 23, 2019). We see two potential views of this prudential-
exhaustion category—one that places it on firmer ground, the other that leaves it with shaky
foundations.

       Under the first view, prudential exhaustion may have roots in general constitutional or
statutory text. To begin with, perhaps as a “rule of judicial administration,” Myers, 303 U.S. at
50, it has a constitutional source. Article III’s “judicial Power” gives courts “certain ‘inherent
powers,’ not conferred by rule or statute, ‘to manage their own affairs so as to achieve the
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.           Page 9


orderly and expeditious disposition of cases.’” Goodyear Tire & Rubber Co. v. Haeger, 137 S.
Ct. 1178, 1186 (2017) (citation omitted). And the Supreme Court has compared prudential
exhaustion to the longstanding rule that an appellate court will not consider issues that were not
raised in district court. Sims, 530 U.S. at 108–09 (citing Hormel v. Helvering, 312 U.S. 552, 556
(1941)). The courts’ inherent authority likely allows them to adopt that “long unquestioned”
forfeiture rule, see Carlisle v. United States, 517 U.S. 416, 426 (1996) (citation omitted), which
dates to the writs of error from English common law. See Robert J. Martineau, Considering New
Issues on Appeal, 40 Vand. L. Rev. 1023, 1026–28 (1987); Roscoe Pound, Appellate Procedure
in Civil Cases 107–10, 133 (1941). Here, then, the key question would ask whether any inherent
authority to adopt forfeiture rules within the courts is broad enough to cover a rule requiring
parties to exhaust issues in an agency before reaching the courts. Cf. Degen v. United States,
517 U.S. 820, 823–29 (1996).

       If prudential exhaustion has these constitutional origins, it would raise other questions. Is
this judicial authority to adopt forfeiture rules “indefeasible” such that Congress may not intrude
on it? Chambers v. NASCO, Inc., 501 U.S. 32, 58 (1991) (Scalia, J., dissenting). Or may it “be
controlled or overridden by statute or rule”? Degen, 517 U.S. at 823; see Carlisle, 517 U.S. at
426–28. Congress has long acted on the latter view, as evidenced by the many statutes dictating
when courts may consider issues not raised with an agency. Hickman & Pierce, supra, § 17.8, at
1534. If Congress is correct, prudential exhaustion might be thought of as a “background
principle” against which Congress legislates, like federalism or equitable tolling. Bond v. United
States, 572 U.S. 844, 857–58 (2014); Young v. United States, 535 U.S. 43, 49–50 (2002). Courts
would retain an inherent authority to adopt exhaustion rules so long as a statute does not clearly
say otherwise. Cf. Link v. Wabash R.R. Co., 370 U.S. 626, 631–32 (1962).

       Aside from the Constitution, maybe prudential exhaustion has a general statutory source,
one tied to the remedy sought—vacatur of an agency order. If that relief can be characterized as
“equitable,” a statute might be read to give courts discretion over whether to grant it (just as
courts have discretion over whether to grant injunctions). Cf. Fed. Power Comm’n v. Transcon.
Gas Pipe Line Corp., 423 U.S. 326, 332–33 (1976) (per curiam); Ford Motor Co. v. NLRB, 305
U.S. 364, 373 (1939). Indeed, the exhaustion “doctrine had its origin in a discretionary rule
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.           Page 10


adopted by courts of equity to the effect that a petitioner will be denied equitable relief when he
has failed to pursue an available administrative remedy by which he might obtain the same
relief.” Smith v. United States, 199 F.2d 377, 381 (1st Cir. 1952). That said, the Supreme Court
long ago suggested that prudential exhaustion applies outside equity cases. See Myers, 303 U.S.
at 51 n.9.

        The second view of prudential exhaustion, by contrast, places it in a far different light.
As one scholar has suggested, Duffy, 77 Tex. L. Rev. at 152–54, it may be a relic of the “ancien
regime” of statutory interpretation in which federal courts, acting like common-law courts,
imposed judicial glosses on legislative texts to make statutes work “better.” See Alexander v.
Sandoval, 532 U.S. 275, 287 (2001). Two doctrines exemplified this old regime. Under the
doctrine of implied rights of action, the Supreme Court once added private causes of action to
statutes whenever it decided that private suits would better promote statutory goals. J.I. Case
Co. v. Borak, 377 U.S. 426, 433 (1964). Likewise, under the doctrine of prudential standing, the
Court once applied judicial “limits” on legislative causes of action whenever it found that a party
should not be able to assert the right to sue. See Allen v. Wright, 468 U.S. 737, 751 (1984). In
recent years, however, the Court has rejected these atextual approaches. Nowadays, when a
statute’s text and structure do not establish a private cause of action, courts “may not create one,
no matter how desirable that might be as a policy matter.” Alexander, 532 U.S. at 286–87. And
when a statute’s text and structure do not restrict a private cause of action, courts “cannot limit
[the] cause of action that Congress has created merely because ‘prudence’ dictates.” Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014).

        Prudential exhaustion bears some resemblance to these now-disfavored doctrines. It rests
less on a statute’s text and structure, and more on policy grounds unmoored from those sources.
The Supreme Court has justified it on such objectives as avoiding “interruption” of agency
autonomy, McKart v. United States, 395 U.S. 185, 194–95 (1969), and promoting “judicial
efficiency,” McCarthy, 503 U.S. at 145. Perhaps these are good policies, but what gives courts
the authority to impose them? Not only that, the many statutes that contain exhaustion rules
prove that Congress knows how to write them. Some might read this disparate inclusion and
exclusion as an intentional legislative choice. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S.
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.           Page 11


83, 88–92 (1991), superseded by statute as recognized by L & W Supply Corp. v. Acuity,
475 F.3d 737, 740 (6th Cir. 2007); Russello v. United States, 464 U.S. 16, 23 (1983). Prudential
exhaustion also sits uncomfortably next to the traditional rule that courts have “no more right to
decline the exercise of jurisdiction which is given, than to usurp that which is not given.”
Cohens v. Virginia, 19 U.S. 264, 404 (1821). Chief Justice Marshall did not add the disclaimer:
except courts may refuse to hear an issue if they think it makes sense to demur under a balancing
test that juggles the interests of the plaintiff, the agency, and the court. But see McCarthy,
503 U.S. at 146. If this view of prudential exhaustion prevails, it may (and perhaps should) go
the way of other atextual doctrines. See Duffy, 77 Tex. L. Rev. at 152; cf. Philip Hamburger,
Is Administrative Law Unlawful? 304 n.d (2014).

       In short, the Supreme Court may someday have a choice to make—either align prudential
exhaustion with the Court’s modern textualist approach or distance itself from that exhaustion
category.

       Thankfully for us, this is not the case to make the choice. We need not rely on our
“prudence” to conclude that the Black Lung Benefits Act requires exhaustion. Lexmark, 572
U.S. at 128. To be sure, the case for exhaustion here is harder than it was in Jones Brothers.
Unlike the Mine Act, the Black Lung Benefits Act contains no statutory text directing parties to
raise issues with the Benefits Review Board. 33 U.S.C. § 921(c). But a regulation (not our
discretion) bridges this gap by requiring parties to file petitions for review identifying “specific
issues to be considered” by the Board. 20 C.F.R. § 802.211(a). This case thus falls into the
second exhaustion category. Indeed, the Supreme Court highlighted this specific regulation
when noting that agencies may impose exhaustion mandates through their rulemaking. Sims,
530 U.S. at 108.

       Nor do Island Creek or Cunningham argue that this regulation conflicts with the Black
Lung Benefits Act or the Longshore and Harbor Workers’ Compensation Act (whose claims-
processing rules it incorporates). As a general matter, both laws give the Department of Labor
the authority to issue regulations to carry out their provisions. 30 U.S.C. § 936(a); 33 U.S.C.
§ 939(a). As a specific matter, our court has recognized a reason—one rooted in the statutory
text—to require parties to identify specific issues with the Board. See Cox v. Benefits Review
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.             Page 12


Bd., 791 F.2d 445, 446–47 (6th Cir. 1986) (per curiam). The statute does not give parties the
right to a “do over” with the Board; it instead circumscribes the Board’s review. The Board may
decide only “substantial question[s] of law or fact”; it must limit its review to the “hearing
record”; and it must defer to the administrative law judge’s fact-findings if supported by
“substantial evidence.” 33 U.S.C. § 921(b)(3); 20 C.F.R. § 802.301(a)–(b). By requiring parties
to highlight specific errors, the regulation implements these statutory limits on the Board’s
review. Cox, 791 F.2d at 446–47. And courts of appeals have jurisdiction to review only orders
of the Board, not of administrative law judges. 33 U.S.C. § 921(c). If a party flouts the
regulation by failing to raise with the Board an issue that the party asserts in court, the court
generally has no basis for “setting aside” the Board’s order (even assuming the administrative
law judge erred). Id.

        Unsurprisingly, then, our decades-long precedent has refused to consider issues that
parties failed to present to the Board. See Island Fork Constr. v. Bowling, 872 F.3d 754, 758
(6th Cir. 2017); Premium Coal Co. v. Dir., Office of Workers’ Comp. Programs, 619 F. App’x
447, 450 (6th Cir. 2015); Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp.
Programs, 790 F.3d 657, 663–64 (6th Cir. 2015); Arch on the Green, Inc. v. Groves, 761 F.3d
594, 602 (6th Cir. 2014); Ramey v. Ky. Carbon Corp., No. 95-3204, 1996 WL 221415, at *5 (6th
Cir. May 1, 1996) (per curiam); Hix v. Dir., Office of Workers’ Comp. Programs, 824 F.2d 526,
527–28 (6th Cir. 1987); Buckner v. Benefits Review Bd., No. 86-3461, 1987 WL 37753, at *2
(6th Cir. June 19, 1987) (per curiam); Honaker v. Benefits Review Bd., No. 85-3960, 1986 WL
18101, at *1–2 (6th Cir. Oct. 20, 1986) (per curiam); Cox, 791 F.2d at 447; Blevins v. Dir.,
Office of Workers’ Comp. Programs, 683 F.2d 139, 142–43 (6th Cir. 1982); cf. Gibas v. Saginaw
Mining Co., 748 F.2d 1112, 1119 (6th Cir. 1984). We reaffirm this issue-exhaustion requirement
in this case.

          2. Did a motion for reconsideration suffice to exhaust the constitutional issue?

        We next consider whether Island Creek and Cunningham satisfied this exhaustion rule by
raising their constitutional claims in motions for reconsideration with the Board. Cases applying
prudential and statutory exhaustion alike identify a simple principle for determining what parties
must do to exhaust an issue: follow the agency’s rules governing how to assert the issue with the
 Nos. 18-3680/3909/4022         Island Creek Coal Company et al. v. Bryan, et al.         Page 13


agency. The Supreme Court has said, for example, that prudential exhaustion requires a party to
raise an issue with an agency “at the time appropriate under its practice” in order to preserve the
issue for judicial review. L.A. Tucker Truck Lines, 344 U.S. at 37. And when interpreting a
statute requiring exhaustion, the Court likewise held that a party need only “complete the
administrative review process in accordance with the applicable [agency’s] procedural rules.”
Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88).

          Two regulations concerning the Benefits Review Board illustrate this principle. One
regulation requires parties to file appeals with the Board within 30 days from an administrative
law judge’s decision. 20 C.F.R. § 802.205(a). When the Board dismissed an untimely appeal,
we held that the party failed to exhaust any merits issues for judicial review by disregarding the
agency’s timelines. Blevins, 683 F.2d at 142–43. Another regulation, as noted, requires petitions
for review to contain “the specific issues to be considered” by the Board.               20 C.F.R.
§ 802.211(a).     When the Board affirmed an administrative law judge’s decision because a
generic petition for review did not list specific issues, we held that the party “failed to properly
exhaust her administrative remedies and preserve the merits of this appeal for review.” Cox, 791
F.2d at 447. In short, if the Board does not consider a merits issue because a party failed to
follow the Board’s procedural rules, the party generally has not exhausted that issue for a court’s
review.

          This reasoning points us to the right question here: Do the Department of Labor’s claims-
processing rules permit a party to raise a new constitutional issue in a motion for reconsideration
with the Benefits Review Board? They do not. A regulation does permit parties to file motions
for reconsideration explaining the “supporting rationale for the request.” 20 C.F.R. § 802.408(a).
Yet, as in this case, the Board has long interpreted this regulation to bar parties from raising new
arguments “for the first time in a motion for reconsideration.”         Parks v. Navy Personnel
Command/MWR, No. 04-0179, 2006 WL 6869771, at *7 (Ben. Rev. Bd. Feb. 3, 2006); Ravalli v.
Pasha Mar. Servs., No. 01-0572, 36 Ben. Rev. Bd. Serv. 91 (Sept. 12, 2002).

          Island Creek and Cunningham do not claim that the Board’s interpretation—barring
parties from raising new issues on reconsideration—misreads the regulation or is otherwise
arbitrary or capricious. Cf. Crockett Colleries, 478 F.3d at 353–55. Nor could they. After all,
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.           Page 14


they sought consideration (not reconsideration) of this constitutional issue. And appellate courts
have long interpreted analogous rules as prohibiting parties from raising new issues at the
rehearing stage. See Costo v. United States, 922 F.2d 302, 302–03 (6th Cir. 1990) (order); see
also Easley v. Reuss, 532 F.3d 592, 593–94 (7th Cir. 2008) (per curiam) (citing cases); cf. SSA
Terminals, LLC v. Bell, 653 F. App’x 528, 532 (9th Cir. 2016). Island Creek and Cunningham
also do not challenge the Board’s application of this rule to their cases. They do not argue, for
example, that the Board has applied its interpretation inconsistently. Cf. Hooper, 841 F.2d at
1151. They thus give us no grounds for overlooking the Board’s procedural requirements, which
means they failed to exhaust their constitutional claims before the Department of Labor.

                     3. Does any exception to this exhaustion mandate apply?

          We lastly ask whether any exception to the exhaustion mandate saves the constitutional
claims.     When it comes to exceptions, a sharp divide separates statutory from prudential
exhaustion. For exhaustion rules that originate with a clear statutory command, courts have
“refus[ed] to add unwritten” exceptions on top of those in the text itself. Ross, 136 S. Ct. at
1857. For exhaustion rules that originate with judicial prudence, courts have felt free to adopt
“judge-made exceptions” in the same prudential fashion.        Id.   In that setting, courts have
developed several standard exceptions, including a “futility” exception for parties who assert
claims that an agency cannot consider, see McCarthy, 503 U.S. at 147–49, and a “hardship”
exception for parties who face undue harm from agency exhaustion, see McKart, 395 U.S. at
197.

          In between a rigorous statutory mandate and a purely prudential one, other regulatory
regimes establish nuanced rules that turn on the proper reading of a statutory or regulatory text.
Ross, 136 S. Ct. at 1858 n.2. At times, exhaustion language “might be best read to give judges
leeway to create exceptions or to itself incorporate standard administrative-law exceptions.” Id.;
Wash. Ass’n for Television & Children v. FCC, 712 F.2d 677, 681–83 (D.C. Cir. 1983). Our
reading of the Mine Act in Jones Brothers proves this point. That act, as noted, bars courts from
considering objections that were not raised before the Federal Mine Safety and Health Review
Commission except in “extraordinary circumstances.”         30 U.S.C. § 816(a)(1).     Yet Jones
Brothers read the act as barring the Commission from reviewing “facial constitutional
 Nos. 18-3680/3909/4022         Island Creek Coal Company et al. v. Bryan, et al.        Page 15


challenges.” 898 F.3d at 674. Putting the act’s moving pieces together, we held, it should be
interpreted to exclude these facial challenges (which the Commission could not consider) from
its requirement to raise issues with the Commission. Id. at 673–74. But, we added, the Mine Act
does require parties to exhaust as-applied or constitutional-avoidance claims because the
Commission may address those narrower arguments. Id. at 674–77.

       Here, then, we must ask whether the regulation ordering parties to identify “specific
issues” with the Benefits Review Board, 20 C.F.R. § 802.211(a), is best read to grant “courts
some discretion to” overlook a failure to follow it. Wash. Ass’n for Television, 712 F.2d at 681.
We have already suggested (implicitly) that it permits excuses by applying the “futility”
exception in this context. See Consolidation Coal Co. v. McMahon, 77 F.3d 898, 904 (6th Cir.
1996). But we need not decide what exceptions (if any) exist. Even if the regulation includes
some, Island Creek and Cunningham have not shown that their claims would fall within one.

       They both rely on Jones Brothers to identify exceptions, so we start with that decision. It
held that a constitutional challenge to the appointment of an administrative law judge did not fall
within its exception for facial constitutional claims. 898 F.3d at 676–77. That was so because
the Mine Act allowed the Commission (the “Head of Department” under the Appointments
Clause) to appoint administrative law judges “as it deems necessary.” 30 U.S.C. § 823(b)(2).
The petitioner challenged only the way that the Commission had applied the statute (delegating
appointments to staff); the petitioner did not challenge a statute that, say, ordered judges to be
appointed in a manner that flouts the Constitution. Jones Bros., 898 F.3d at 676–77. The
Commission thus had the power to fix this problem simply by reading the statute to require it to
make appointments itself. Id. at 677. And because the petitioner’s constitutional claim asserted
an as-applied challenge, it should have raised the claim with the Commission. Id. At the same
time, we held that the petitioner qualified for the Mine Act’s statutory “extraordinary
circumstances” exception. 30 U.S.C. § 816(a)(1). We did so because of “the absence of legal
authority addressing whether the Commission could entertain” this type of as-applied claim.
Jones Bros., 898 F.3d at 677.

       Island Creek relies on Jones Brothers’ exception for facial constitutional challenges,
whereas Cunningham asserts its extraordinary-circumstances exception. Neither applies.
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.           Page 16


       Facial Challenge. Distinguishing the as-applied claim in Jones Brothers, Island Creek
argues that its constitutional claim raises a facial challenge. This argument has two problems.

       Problem One: Unlike the Commission in Jones Brothers, the Benefits Review Board may
well be able to consider facial claims—a fact that would eliminate this exception’s raison d’être.
The Board serves the same functions that district courts performed before its 1972 creation—
reviewing benefits decisions made by agency officials (deputy commissioners before 1972,
administrative law judges thereafter). Gibas, 748 F.2d at 1116. Thus, “it appears that Congress
intended to vest in the Board the same judicial power to rule on substantive legal questions as
was possessed by the district courts.” Id. at 1118. District courts, of course, may consider facial
claims, Marbury v. Madison, 5 U.S. 137, 177–78 (1803), so the Board has long asserted “that it
possesses sufficient statutory authority to decide . . . the constitutional validity of statutes and
regulations within its jurisdiction,” Duck v. Fluid Crane & Constr. Co., No. 02-0335, 2002 WL
32069335, at *2 n.4 (Ben. Rev. Bd. Oct. 22, 2002). This should be unsurprising. The executive
branch has just as much of an obligation to comply with the Constitution when enforcing the law
as the judicial branch does when interpreting it (and, for that matter, the legislative branch does
when enacting it). See Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905
(1990); cf. Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018).

       Problem Two: We need not resolve whether the Board may consider facial challenges
because Island Creek does not, in fact, present one. There is something conspicuously missing
from its facial challenge: a statute that would be rendered unconstitutional if the administrative
law judges were unconstitutionally appointed. A critical ingredient of any facial constitutional
challenge to a statute is a statute. Instead, the claim here concerns how the Department of Labor
applied its statutory appointment power. See 33 U.S.C. § 919(d); 5 U.S.C. § 3105. Proving this
point, the Secretary of Labor himself ratified the appointments of the existing administrative law
judges in December 2017 (months before Lucia) without any evident statutory obstacle. This as-
applied claim is thus like the as-applied claim in Jones Brothers. See 898 F.3d at 676–77.

       To be sure, Island Creek does identify a factual distinction between this case and Jones
Brothers. The Commission that would have considered the constitutional claim there was also
the “Head of Department” under the Appointments Clause, and so would be the entity to cure
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.             Page 17


any constitutional problem by making proper appointments. Here, by contrast, the Board (which
would consider the constitutional claim) is not the Head of Department; the Secretary of Labor
needed to cure the problem by making proper appointments. We fail to see why this distinction
matters. The Board had the authority to address this constitutional issue and provide effective
relief (a new hearing before a properly appointed judge), as evidenced by the many cases in
which it has done just that for parties who preserved their claims. E.g., Miller v. Pine Branch
Coal Sales, Inc., No. 18-0323 BLA, 2018 WL 8269864, at *2–3 (Ben. Rev. Bd. Oct. 22, 2018)
(en banc).

       Extraordinary Circumstances. Cunningham relies on the “extraordinary circumstances”
exception that succeeded in Jones Brothers. His argument contains two similar problems.

       Problem One: Jones Brothers’ “extraordinary circumstances” exception originates with
the Mine Act’s statutory text. Neither the Black Lung Benefits Act nor its implementing
regulations contain similar language. And Cunningham points to no caselaw identifying a well-
established administrative exception for “extraordinary circumstances.” Cf. Woodford, 548 U.S.
at 103 (Breyer, J., concurring in the judgment). So it is not clear that this exception exists either.

       Problem Two: Regardless, Cunningham identifies no extraordinary circumstances. A
critical difference exists between the Mine Act in Jones Brothers and the Black Lung Benefits
Act in this case. Jones Brothers recognized “the absence of legal authority” over whether the
Commission could address this as-applied claim. 898 F.3d at 677. Here, abundant authority—
including decisions from our court and from the Board—showed that the Board could hear the
claim. See Gibas, 748 F.2d at 1118; Duck, 2002 WL 32069335, at *2 n.4. Thus, the absence of
authority that Jones Brothers found extraordinary is itself absent here.

       Cunningham next turns to Lucia, which issued after he filed his brief with the Board. He
argues that this decision departed from preexisting law and so qualifies as an “exceptional
circumstance” for his failure to raise the claim earlier. We have already rejected this argument
when a party raised the same constitutional challenge for the first time in a reply brief in court.
Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 257 (6th Cir. 2018). As we said there, many
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.          Page 18


litigants had been “press[ing] the issue before Lucia,” and “Lucia itself noted that existing case
law ‘says everything necessary to decide this case.’” Id. (citation omitted).

       Cunningham lastly points to Freytag v. Commissioner, 501 U.S. 868 (1991).                 It
considered an Appointments Clause challenge to the appointment of a special trial judge within
the Internal Revenue Service even though the petitioners had not objected to the judge’s
appointment with the agency (and, indeed, had consented to the judge’s adjudication of the trial).
See id. at 871–73. Yet Freytag treated the exhaustion mandate in that tax context as arising on
purely prudential grounds, which allowed it to adopt any purely prudential exception that it felt
proper. Id. at 878–79; Hormel, 312 U.S. at 555–59. Courts also have not read Freytag’s
exception broadly and have regularly declined to consider unexhausted Appointments Clause
challenges like the challenges here.     See Jones Bros., 898 F.3d at 678 (citing cases); cf.
Wilkerson, 910 F.3d at 256.

                                              * * *

       To recap: Our cases require parties to exhaust issues with the Benefits Review Board to
preserve them in court. By asserting new constitutional claims in motions for reconsideration,
Cunningham and Island Creek did not properly exhaust these claims because they did not follow
the agency’s claims-processing rules governing how to raise them. And the claims fall within no
exception to exhaustion. These three points add up to our bottom-line conclusion: Cunningham
and Island Creek forfeited their constitutional claims in court by failing to exhaust them with the
Board. Turner Bros., Inc. v. Conley, 757 F. App’x 697, 699–700 (10th Cir. 2018) (same).

                                                III.

       Aside from their constitutional claims, Cunningham and Island Creek raise fact-specific
challenges to the Board’s decisions affirming the denial of benefits (in Cunningham’s case) and
affirming the grant of benefits (in Bryan’s case). We review the Board’s legal conclusions de
novo, and, in doing so, we must ensure that the Board applied the deferential “substantial
evidence” test to the administrative law judge’s fact findings. See Wilkerson, 910 F.3d at 257;
33 U.S.C. § 921(b)(3). “‘Substantial evidence’ means ‘such relevant evidence as a reasonable
 Nos. 18-3680/3909/4022       Island Creek Coal Company et al. v. Bryan, et al.         Page 19


mind might accept as adequate to support a conclusion.’” Kolesar v. Youghiogheny & Ohio Coal
Co., 760 F.2d 728, 729 (6th Cir. 1985) (per curiam) (citation omitted).

                                     A. Dorris Cunningham

       To obtain benefits, Cunningham needed to prove that he was “totally disabled.”
20 C.F.R. § 725.202(d)(2)(iii). A regulation defines “total disability” to require “a pulmonary or
respiratory impairment which, standing alone, prevents” the miner from performing his usual
coal-mine work or comparable work. Id. § 718.204(b)(1); 30 U.S.C. § 902(f)(1). It also lists
ways to prove total disability. 20 C.F.R. § 718.204(b)(2). Cunningham sought to do so with
pulmonary-function tests and medical opinions. Id. § 718.204(b)(2)(i), (iv). The administrative
law judge rejected both arguments, and the Board affirmed. Cunningham now challenges both
aspects of the judge’s decision. We reject his arguments. And because the Board correctly held
that substantial evidence supported the judge’s total-disability conclusion, we do not address
Cunningham’s other arguments about different elements for obtaining benefits.

       1. Pulmonary-Function Tests.      A miner must meet two requirements to prove total
disability through pulmonary-function tests, which measure how well a person’s lungs work. Id.
§ 718.204(b)(2)(i). The miner must initially satisfy a metric (not so helpfully) named the “forced
expiratory volume in one second” (FEV1) test. The miner’s FEV1 results must equal or fall
below the relevant “qualifying value” identified in federal regulatory tables that catalogue a
range of values for miners of different ages, heights, and sexes. Id.; 20 C.F.R. Pt. 718, App’x B.
(The “qualifying value” represents 60% of the lung capacity that one would predict from a
healthy individual of the miner’s age, height, and sex. See K.J.M. v. Clinchfield Coal Co., No.
07-0655 BLA, 2008 WL 2758455, at *4 (Ben. Rev. Bd. June 30, 2008).) Next, the miner must
meet one of three other metrics. A miner’s results under either the “forced vital capacity” (FVC)
test or the “maximum voluntary ventilation” (MVV) test also must equal or fall below the
relevant qualifying values in the regulatory tables. Or the miner’s tests must satisfy a math
problem: the miner’s FEV1 result when divided by the miner’s FVC result must generate a
percentage that is 55% or less. 20 C.F.R. § 718.204(b)(2)(i)(A)–(C).
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.         Page 20


       Here, Cunningham took two pulmonary-function tests (at the ages of 84 and 85). The
administrative law judge relied on the regulatory tables’ qualifying values for a 71-year-old male
who is 66.5 inches tall. To pick the height, the judge averaged the different heights (66 and 67
inches) listed on Cunningham’s different tests. To pick the age, the judge used the oldest one
(71) listed in the regulatory tables. Cunningham’s FEV1 results were lower than the qualifying
value for that test, so he met the first regulatory requirement.       But he failed the second
requirement because his other test results were not at or below the relevant numbers:

                         Qualifying     Cunningham’s Cunningham’s
                                                                           Qualifying?
                          Values         3/5/14 Test 11/20/14 Test
         Age                  71               84              85                  --

         Height             66.5”             67”              66”                 --
                                                               1.40
         FEV1                1.60             1.54                             Yes
                                                               1.53
                                                               2.09
         FVC                 2.08             2.21                                 No
                                                               2.27
         MVV                  64               66            Missing               No
                                                             66.99%
         FEV1/FVC            55%            69.68%                                 No
                                                             66.96%

See 20 C.F.R. Pt. 718, App’x B. Because Cunningham met only one of two requirements, the
judge concluded that neither test proved total disability.

       Cunningham attacks the judge’s conclusion in three ways.         First, he challenges the
decision to use a height of 66.5 inches (the average of the two heights listed on his tests) when
choosing the proper “qualifying values” from the regulatory tables. If the judge had used the
qualifying values for someone who was 67.3 inches, Cunningham adds, his first test would have
met both requirements to prove total disability. But a miner’s height is a quintessential fact
question subject to substantial-evidence review. And a “reasonable mind” could conclude that
Cunningham’s height was 66.5 inches given that his tests listed heights that were a little higher
and a little lower than the chosen average. Kolesar, 760 F.2d at 729 (citation omitted); see
K.J.M., 2008 WL 2758455, at *3.
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.             Page 21


       Second, Cunningham asks us to “assume that [his] MVV value” for the second test—
which was not recorded—“would have been qualifying.” But he bears the burden of proving
total disability. See Zurich Am. Ins. Grp. v. Duncan, 889 F.3d 293, 297 (6th Cir. 2018).
A missing MVV result does not do the job.

       Third, Cunningham says Island Creek stipulated that his tests showed total disability. He
relies on a table in the “Stipulated Facts” section of the parties’ joint prehearing statement that
said the tests had “Qualifying Values.” Read narrowly, this “stipulation” identifies a fact that
nobody disputes: Both tests showed qualifying values for the FEV1 test. But Cunningham uses
the stipulation broadly. He argues that the parties agreed that the tests were qualifying and
proved total disability. To the extent the stipulation was ambiguous, the record clarifies that
Island Creek did not stipulate to that broader proposition. The same prehearing statement listed
the question whether “[t]he miner is totally disabled” in its “Disputed Facts” section. And the
judge noted at the hearing that one issue she “still ha[d] to decide that the parties still disagree[d]
on” was “whether he’s totally disabled.” Rather than tell her about this supposed stipulation,
Cunningham’s counsel agreed that total disability remained disputed. Because the parties did not
stipulate that the tests showed total disability, we need not address Island Creek’s argument that
this stipulation would have been an impermissible “legal” one. See Navistar, Inc. v. Forester,
767 F.3d 638, 643–44 (6th Cir. 2014).

       2. Medical Opinions. If a miner cannot prove total disability in other ways, the miner
may use medical opinions. 20 C.F.R. § 718.204(b)(2)(iv). In this case, Drs. Sanjay Chavda and
Akshay Sood opined that Cunningham was totally disabled, but Dr. Jeffrey Selby opined that he
was not. The administrative law judge discredited Chavda’s and Sood’s opinions, and the Board
upheld her findings under substantial-evidence review.

       We agree with the Board. A “reasonable mind” who reviewed Dr. Chavda’s opinion
could discount it (as the judge did) for relying too much on the mistaken view that the
pulmonary-function test proved Cunningham’s total disability.           Kolesar, 760 F.2d at 729.
Cunningham cites portions of Chavda’s opinion allegedly offering reasons other than the test for
a total-disability finding.   But the portion of Chavda’s report specifically addressing total
disability reasoned that Cunningham’s test results fell below the regulatory tables’ qualifying
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.            Page 22


values (using a different height) and “because of that reason” Cunningham had a total disability.
That specific analysis provides substantial evidence for the judge’s credibility finding.

       Similarly, a “reasonable mind” could find (as the judge again did) that Dr. Sood’s opinion
rested too much on generalities rather than the specifics of Cunningham’s case. Id. Sood
conceded that he did not know Cunningham’s lung capacity or the lung capacity necessary for
his coal-mine work and that he extrapolated numbers from general studies. While Cunningham
provides arguments why Dr. Sood’s analysis tied back to his facts, these arguments were for the
administrative law judge. Under the deferential standard of review, courts have repeatedly
upheld decisions to discredit expert opinions that used generalities. Island Creek Coal Co. v.
Marcum, 657 F. App’x 370, 379–80 (6th Cir. 2016); Consolidation Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 732 F.3d 723, 735 (7th Cir. 2013). Substantial evidence supported
the judge’s finding that Dr. Sood’s opinion rested on those generalities here.

       Cunningham lastly argues that the administrative law judge wrongly ignored his
testimony when finding that he was not totally disabled. Not so. The judge’s opinion previously
recounted Cunningham’s description of his breathing problems, and the opinion’s later total-
disability finding resulted from “weighing all of the evidence as a whole.”

                                        B. Melyndia Bryan

       The second case involves a role-reversal: Island Creek contests the decision that
Melyndia Bryan’s late husband (Bert Bryan) was totally disabled due to pneumoconiosis. To
reach that conclusion, the administrative law judge invoked the Affordable Care Act. Among its
many provisions, that act reintroduced a statutory rebuttable presumption that a miner is totally
disabled due to pneumoconiosis if the miner has 15 years of underground coal-mine experience
and a totally disabling lung impairment. Patient Protection and Affordable Care Act, Pub. L. No.
111-148, § 1556(a), 124 Stat. 119, 260 (2010) (amending 30 U.S.C. § 921(c)(4)). The judge
applied this presumption to Bert, and Island Creek does not dispute this aspect of his decision.

       Instead, this case involves the way that a mine operator may rebut the presumption. An
operator has two paths. 20 C.F.R. § 718.305(d)(1)(i)–(ii); 30 U.S.C. § 921(c)(4). Under the first
path, the operator must show that the miner did not have pneumoconiosis. This path requires the
 Nos. 18-3680/3909/4022          Island Creek Coal Company et al. v. Bryan, et al.      Page 23


operator to prove that the miner had neither clinical pneumoconiosis (diseases that the medical
community recognizes as pneumoconiosis, 20 C.F.R. § 718.201(a)(1)) nor legal pneumoconiosis
(a broader category of lung impairments that are significantly related to, or substantively
aggravated by, coal dust, id. § 718.201(a)(2), (b)).       Sunny Ridge Mining Co. v. Keathley,
773 F.3d 734, 738–39 (6th Cir. 2014). Under the second path, the operator must show that “no
part of the miner’s respiratory or pulmonary total disability was caused by” pneumoconiosis.
20 C.F.R. § 718.305(d)(1)(ii).

       Here, Island Creek disputes the administrative law judge’s finding that the company
failed to rebut the presumption that Bert had legal pneumoconiosis. The parties submitted
dueling medical opinions on this point. On Island Creek’s side, Drs. Peter Tuteur and Kirk
Hippensteel opined that Bert did not have legal pneumoconiosis because his lung impairments
were aggravated by his muscle disease and smoking rather than coal dust. On Melyndia Bryan’s
side, Drs. William Houser and Glen Baker opined that Bert had legal pneumoconiosis. A fifth
doctor, Dr. Chavda (the same Dr. Chavda from Cunningham’s case) diagnosed legal
pneumoconiosis, but was more equivocal when asked to clarify his opinion. To rule against
Island Creek, the judge discredited the opinions of Drs. Tuteur and Hippensteel. He decided that
these experts failed to adequately explain why Bert’s lung impairments were caused by his
muscle disease and smoking, not by his coal-dust exposure. And, apart from their opinions, the
judge noted that the other experts confirmed (rather than rebutted) that Bert suffered from legal
pneumoconiosis.

       Before the Benefits Review Board, Island Creek argued that the judge gave invalid
reasons to discredit the opinions of Drs. Tuteur and Hippensteel and overlooked that Dr.
Chavda’s opinion helped rebut the presumption.            The Board disagreed, concluding that
substantial evidence supported the judge’s findings.

       We again agree with the Board. Island Creek starts with Dr. Chavda, who stated, when
clarifying his opinion, that coal dust may have caused “some aggravation” of Bert’s impairment.
That statement, Island Creek argues, suggests that coal dust did not substantially aggravate his
lung impairment (as required by legal pneumoconiosis’s definition). Id. § 718.201(b). But Dr.
Chavda diagnosed Bert as having legal pneumoconiosis. So even assuming his later statement
 Nos. 18-3680/3909/4022        Island Creek Coal Company et al. v. Bryan, et al.        Page 24


conflicted with that diagnosis, this inconsistency itself provides “substantial evidence” for the
judge’s finding that Chavda did not help Island Creek rebut the presumption. See Brandywine
Explosives, 790 F.3d at 668.

       Island Creek next disputes the judge’s finding that Dr. Tuteur failed to adequately explain
why Bert’s muscle disease and smoking (rather than coal dust) caused his impairments. The
judge reasoned that Tuteur differentiated coal-dust impairments from smoking-related
impairments in a way that conflicted with federal regulations noting that the two sources cause
similar impairments in similar ways. And the judge asserted that Tuteur’s claim that Bert’s
impairments were “typical” for patients with his muscle disease conflicted with his own analysis
that different patients suffer from this disease differently.        In response, Island Creek
distinguishes the regulations and seeks to reconcile Tuteur’s statements about the muscle disease.
But these kinds of nitpicks fall well short of meeting Island Creek’s burden when attempting to
overturn credibility findings in this court. See Big Branch Res., Inc. v. Ogle, 737 F.3d 1063,
1073–74 (6th Cir. 2013).

       Island Creek lastly challenges the judge’s finding that Dr. Hippensteel failed to explain
his conclusion that Bert’s impairments were not caused by coal dust. Island Creek ignores a
separate reason why the judge discredited Dr. Hippensteel. Cf. Island Creek Ky. Mining v.
Ramage, 737 F.3d 1050, 1061 (6th Cir. 2013). The doctor suggested that a miner’s symptoms
from coal dust usually subside within a year of ending coal-mine work—an opinion conflicting
with regulations recognizing pneumoconiosis as a latent disease that may develop after coal-dust
exposure ends. 20 C.F.R. 718.201(c). We have repeatedly upheld credibility findings where, as
here, an opinion conflicted with these regulations. Sunny Ridge, 773 F.3d at 738–39.

                                             * * *

       We deny the petitions for review.
