                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                    September 18, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ANTELOPE COAL COMPANY,

             Petitioner,

v.                                                         No. 14-9506
                                                        (No. 13-0092 BLA)
SANDRA J. GODDARD, on behalf of                        (Petition for Review)
and widow of Benjamin F. Goddard;
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT
OF LABOR,

             Respondents.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.


      In this case under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945,

Antelope Coal Company petitions for review of awards of miner’s benefits to

Benjamin F. Goddard and survivor’s benefits to his widow Sandra J. Goddard. The


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Director of the Office of Workers’ Compensation Program elected not to file a brief

in this appeal. Exercising jurisdiction under 33 U.S.C. § 921(c), as incorporated by

30 U.S.C. § 932(a), we deny the petition for review.

                                      Background

I.     Introduction

       Mr. Goddard was born in 1933. He worked as a warehouse technician at a

coal mine and at a uranium mine in the 1970s and 1980s before Antelope employed

him to work in its warehouses in 1989. He retired in 2000. His warehouse position

exposed him to varying amounts of coal dust, some days light and some days heavy.

       In the late 1990s, Mr. Goddard started experiencing respiratory trouble. He

was diagnosed with idiopathic pulmonary fibrosis (IPF)—“a disease of unknown

cause that is characterized by progressive fibrosis of the lungs,” Emp’r Hrg. Exh. 4 at

6—and with a related disease, usual interstitial pneumonitis (UIP). Within about six

months of his retirement, he was on oxygen. Mr. Goddard filed for miner’s benefits

in April 2002. He died in October 2003; his death certificate specified cause of death

as IPF. In November 2003, Mrs. Goddard filed for survivor’s benefits.

       After the Department of Labor initially awarded benefits on both claims,

Antelope sought a hearing before an administrative law judge (ALJ). The hearing

was held on May 24, 2006. Since then, there have been four ALJ decisions and four

appeals to the Department of Labor’s Benefits Review Board (Review Board). We

discuss those rulings later in this decision.


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II.   Legal Framework

      To make sense of the evidence and administrative decisions, it is helpful to

understand the legal framework for black lung claims. “To obtain benefits under the

Act, a miner must demonstrate that he satisfies three conditions: (1) he or she suffers

from pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment;

and (3) the pneumoconiosis is totally disabling.” Energy W. Mining Co. v. Oliver,

555 F.3d 1211, 1214 (10th Cir. 2009).

      “Pneumoconiosis” includes both clinical pneumoconiosis and legal

pneumoconiosis. See 20 C.F.R. § 718.201(a). Clinical pneumoconiosis “consists of

those diseases recognized by the medical community as pneumoconioses, i.e., the

conditions characterized by permanent deposition of substantial amounts of

particulate matter in the lungs and the fibrotic reaction of the lung tissue to that

deposition caused by dust exposure in coal mine employment.” Id. § 718.201(a)(1).

Legal pneumoconiosis is “any chronic lung disease or impairment and its sequelae

arising out of coal mine employment,” id. § 718.201(a)(2), including “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).

      The regulations list four ways to make a finding of pneumoconiosis. See id.

§ 718.202(a). The first is through x-ray evidence, id. § 718.202(a)(1), and the second

is through biopsy or autopsy evidence, id. § 718.202(a)(2). The third is through


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certain presumptions that are inapplicable in this case. Id. § 718.202(a)(3). And the

fourth is through “a physician, exercising sound medical judgment . . . , find[ing] that

the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any

such finding must be based on objective medical evidence . . . [and] must be

supported by a reasoned medical opinion.” Id. § 718.202(a)(4).

      After finding pneumoconiosis, the ALJ must determine whether it “arose at

least in part out of coal mine employment.” Id. § 718.203(a). “If a miner who is

suffering or suffered from pneumoconiosis was employed for ten years or more in

one or more coal mines, there shall be a rebuttable presumption that the

pneumoconiosis arose out of such employment.” Id. § 718.203(b). This

presumption, however, is applicable only to clinical pneumoconiosis, not to legal

pneumoconiosis. See Andersen v. Dir., Office of Workers’ Comp. Programs,

455 F.3d 1102, 1105 (10th Cir. 2006).

      Next the ALJ must determine whether the miner is (or was at the time of

death) totally disabled due to pneumoconiosis. 20 C.F.R. § 718.204(a). “A miner

shall be considered totally disabled due to pneumoconiosis if pneumoconiosis, as

defined in § 718.201, is a substantially contributing cause of the miner’s totally

disabling respiratory or pulmonary impairment.” Id. § 718.204(c)(1). Total

disability can be established by various evidence: pulmonary function tests, arterial

blood gas tests, evidence that the miner has pneumoconiosis and suffers from

cor pulmonale with right-side congestive heart failure, or a physician’s conclusion


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that the miner’s respiratory or pulmonary condition prevents or prevented the miner

from working. Id. § 718.204(b)(2)(i)-(iv).

       For survivor’s benefits, the claimant must prove the miner had pneumoconiosis

that arose out of coal mine employment and the miner’s death was due to

pneumoconiosis. Id. § 718.205(a). Death is considered “due to pneumoconiosis”

when “competent medical evidence establishes that pneumoconiosis was the cause of

the miner’s death” or when “pneumoconiosis was a substantially contributing cause

or factor leading to the miner’s death,” meaning it “hasten[ed] the miner’s death.”

Id. § 718.205(b)(1), (2), (6).

III.   Medical Evidence

       Mr. Goddard saw several physicians and submitted to various tests, including

x-rays and a lung biopsy. In addition to his treatment records, the parties proffered

expert reports and opinions supporting their opposing positions.

       Donald Smith, a board-certified pulmonary specialist, diagnosed Mr. Goddard

with IPF and treated him until his death. Dr. Smith stated Mr. Goddard was totally

incapacitated by his respiratory impairment. He opined that Mr. Goddard did not

have “classic coal worker’s pneumoconiosis,” Emp’r Hrg. Exh. 4 at 8, but it was

more likely than not that coal-mine-dust exposure contributed to the development of

IPF and Mr. Goddard’s death was hastened by it.

       Joshua Portnoy and Kevin Brown of National Jewish Medical Center in

Denver examined Mr. Goddard and also diagnosed IPF, with features consistent with


                                         -5-
UIP. They opined that “his environmental and occupational exposures may

potentially cause pulmonary fibrosis with UIP pathology,” but in light of the biopsy

results, “these etiologies are possible, but unlikely as the cause of his lung disease.”

8/31/2001 Report at 2.

      Three pathologists reviewed the biopsy. Carlyne Cool of National Jewish

Medical Center diagnosed interstitial fibrosis and honeycombing consistent with UIP.

According to Drs. Portnoy and Brown, she found no evidence of pneumoconiosis.

Anita Stinson diagnosed UIP. Everett Oesterling opined that Mr. Goddard “had

minimal anthracotic pigmentation of his lung tissue” and that “[t]here is no evidence

of coal worker’s pneumoconiosis.” Emp’r Hrg. Exh. 1 at 3.

      Three board-certified radiologists and certified B-readers of x-rays reviewed

various x-rays. Thomas Miller reported “[f]indings consistent with simple

pneumoconiosis.” Claimant Hrg. Exh. 1 at 1. Michael Alexander reported an

impression of coal worker’s pneumoconiosis. Jerome Wiot opined that the x-ray he

examined was abnormal, but did not show coal worker’s pneumoconiosis and instead

was more consistent with IPF.

      Michelle Bennett, a family practitioner in Wyoming and former medical

director of Northern Wyoming Respiratory Care, examined Mr. Goddard for the

Office of Coal Worker’s Compensation. Dr. Bennett agreed with Dr. Smith’s

diagnosis of IPF, and stated she would diagnose coal worker’s pneumoconiosis based

on a chest x-ray, work history, and the progress of the disease. She stated there is


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medical evidence that coal dust can cause fibrotic lung disease; she believed coal

dust exposure had a material effect on Mr. Goddard’s respiratory condition and it was

a significantly aggravating factor of his IPF.

       Joshua Perper, a board-certified forensic pathologist, reviewed the records and

concluded Mr. Goddard suffered “severe coal workers’ pneumoconiosis of the

interstitial fibrosis type” because of his coal mining work and the disease “resulted

in progressive, severe and permanent respiratory disability and ultimately caused and

hastened his death in respiratory failure.” Claimant Hrg. Exh. 3 at 32.

       In contrast, Lawrence Repsher, a board-certified pulmonary specialist,

reviewed the records and concluded there was no evidence of coal workers’

pneumoconiosis and Mr. Goddard’s pulmonary issues were accounted for by the

UIP/IPF diagnoses. He rejected the idea that IPF/UIP is connected to work in a coal

mine and stated that evidence to the contrary “carr[ies] essentially no weight as far as

establishing some causal connection.” Emp’r Hrg. Exh. 10 at 17.

       David Rosenberg, a board-certified physician specializing in lung disease and

pulmonary disorders, reviewed the records and opined that Mr. Goddard’s “disability

and ultimate death[] were not related in any fashion to past coal dust exposure or the

presence of [coal worker’s pneumoconiosis].” Emp’r Hrg. Exh. 6 at 6. He also

stated that “no causative relationship between coal dust exposure and linear

interstitial fibrosis has been proven,” and that “pathologically, coal mine dust

exposure does not cause linear interstitial fibrosis.” Id. at 5.


                                           -7-
IV.   Administrative Decisions

      A.     First Agency Decisions

      In his first decision, issued on May 3, 2007, the ALJ found both clinical and

legal pneumoconiosis. Evaluating each category of § 718.202(a) evidence, he

concluded that x-ray evidence under § 718.202(a)(1) and the weight of the evidence

under § 718.202(a)(4) established pneumoconiosis. Based on the opinions of

Drs. Bennett, Smith, and Perper, the ALJ determined that pneumoconiosis was a

substantially contributing cause of Mr. Goddard’s totally disabling pulmonary

impairment and, ultimately, his death. He therefore granted both miner’s and

survivor’s benefits.

      Antelope appealed. On May 29, 2008, the Review Board affirmed the ALJ’s

finding of clinical pneumoconiosis based on the x-ray evidence, pursuant to

§ 718.202(a)(1). In doing so, the Review Board rejected Antelope’s argument that

the agency cannot find pneumoconiosis solely on one § 718.202(a) category of

evidence. But the Review Board agreed with Antelope that the ALJ did not

adequately explain his finding of legal pneumoconiosis or why he credited the

opinions of Drs. Bennett, Smith, and Perper over the opinions of Drs. Repsher and

Rosenberg. Accordingly, the Review Board vacated the ALJ’s findings and directed

him to “assess the probative value of all relevant medical opinions” and to “consider

the physicians’ qualifications and determine whether their conclusions are reasoned.”

5/29/2008 Rev. Bd. Dec. at 6.


                                         -8-
      B.     Second Agency Decisions

      In his second decision, issued on December 9, 2008, the ALJ again undertook

a § 718.202(a)(4) analysis. He credited the opinions of Drs. Bennett and Smith and

concluded that “in this case, IPF falls within the definition of [coal worker’s

pneumoconiosis], meeting the criteria in 20 C.F.R. § 718.202(a)(4).” 12/9/2008 ALJ

Dec. at 6. Because pneumoconiosis was demonstrated by evidence under

§ 718.202(a)(1) and (a)(4), the ALJ concluded that pneumoconiosis was shown. He

further found total disability under § 718.204. Thus, he again awarded both miner’s

and survivor’s benefits.

      Antelope appealed to the Review Board, which determined on January 8, 2010,

that the ALJ had not complied with its remand instructions. In relevant part, the

Review Board held the ALJ had failed to adequately discuss and assign weight to the

medical opinions under § 718.202(a)(4). Accordingly, the Review Board vacated the

decision and remanded the case for further consideration.

      C.     Third Agency Decisions

      On January 10, 2011, the ALJ issued his third decision. This time, after

reviewing the medical evidence, the ALJ concluded under § 718.202(a)(4) that the

record did not establish Mr. Goddard had pneumoconiosis. He determined that the

lack of evidence under § 718.202(a)(4) outweighed the x-ray evidence under

§ 718.202(a)(1). Consequently, he denied benefits on both claims.




                                          -9-
      Mrs. Goddard appealed. On February 29, 2012, the Review Board agreed with

her that the ALJ had failed to comply with its instructions, holding that he had not

adequately explained his findings or how he considered the conflicting evidence.

The Review Board again vacated the decision and remanded for further proceedings,

this time before a new ALJ.

      D.     Fourth Agency Decisions

      In the fourth ALJ decision, issued on October 31, 2012, the new ALJ started

with the § 718.202(a)(4) analysis. He outlined the various physicians’ reports and

ultimately considered the opinions of Drs. Smith, Oesterling, and Perper to be

entitled to the most weight. He afforded Dr. Perper’s opinion more weight than

Dr. Oesterling’s, and, based on the opinions of Drs. Smith and Perper, he found that

Mrs. Goddard had established legal pneumoconiosis under § 718.202(a)(4). He then

found total disability under § 718.204(b). For the claim to survivor’s benefits, he

found that Mr. Goddard’s death was due to legal pneumoconiosis. He therefore

granted both claims for benefits.

      On November 27, 2013, the Review Board affirmed both awards. It rejected

Antelope’s contention that the new ALJ should have made a de novo finding on

clinical pneumoconiosis, holding that the new ALJ had discretion to rely on the

finding in the first decision, affirmed on review, that clinical pneumoconiosis was

shown under § 718.202(a)(1). It also held the ALJ had followed its instructions to

reweigh the evidence of legal pneumoconiosis under § 718.202(a)(4) and had


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adequately explained why he gave less weight to Antelope’s experts and more weight

to Dr. Perper’s opinion. Addressing Antelope’s complaint that the ALJ had not made

a finding regarding causation under § 718.204(c), the Review Board stated:

      [A]ny error by the [ALJ] in failing to render a specific finding under
      20 C.F.R. §718.204(c) is harmless. The Board’s remand order made
      clear that the central issue for resolution in this case is whether the
      evidence established that the miner’s disabling interstitial fibrosis was
      due to coal dust exposure, an analysis relevant to both the issues of the
      existence of legal pneumoconiosis at 20 C.F.R. §718.202(a)(4) and
      disability causation at 20 C.F.R. §718.204(c). As discussed supra, the
      [ALJ] permissibly credited Dr. Perper’s opinion that the miner had
      disabling interstitial fibrosis caused by coal dust exposure. Because the
      [ALJ’s] analysis of the evidence at 20 C.F.R. §718.202(a)(4)
      encompassed the issue of disability causation, it is not necessary that we
      remand the case for a specific finding pursuant to 20 C.F.R.
      §718.204(c).

11/27/2013 Rev. Bd. Dec. at 7-8 (footnotes and citations omitted). Antelope’s

petition for review followed.

                                      Analysis

I.    Standard of Review

      “For questions of law, we review the Review Board’s decision de novo.”

Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1341 (10th Cir.

2014). “For questions of fact, we determine whether the Review Board properly

concluded that the ALJ’s decision was supported by substantial evidence.

Substantial evidence is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (citation and internal quotation marks

omitted).


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II.   Discussion

      Antelope argues: (1) the Review Board erred in affirming the finding of

pneumoconiosis based on x-ray evidence alone, rather than requiring the ALJ to

weigh all relevant evidence of pneumoconiosis together; (2) the fourth ALJ decision

is inadequate and not supported by substantial evidence; and (3) the Review Board

exceeded its authority in vacating the third ALJ decision because it was based on

substantial evidence and consistent with the law.

      A.     Weighing Evidence Together

      Antelope first attacks the agency’s finding of pneumoconiosis based solely on

x-ray evidence under § 718.202(a)(1). It urges us to join three other circuits in

holding that “although section 718.202(a) enumerates four distinct methods of

establishing pneumoconiosis, all types of relevant evidence must be weighed together

to determine whether the claimant suffers from the disease.” Penn Allegheny Coal

Co. v. Williams, 114 F.3d 22, 25 (3d Cir. 1997) (internal quotation marks omitted);

accord Dixie Fuel Co., LLC v. Dir., Office of Workers’ Comp. Programs, 700 F.3d

878, 880 (6th Cir. 2012); Island Creek Coal Co. v. Compton, 211 F.3d 203, 209-10

(4th Cir. 2000).

      We need not decide this issue in this case, however, because the agency

arrived at its finding of legal pneumoconiosis through a comprehensive review and

weighing of the medical evidence. Therefore, it appears that the agency performed

the weighing that Antelope seeks. And in light of the agency’s finding of legal


                                         - 12 -
pneumoconiosis, even if the agency erred in finding clinical pneumoconiosis based

solely on x-ray evidence, it would not be reversible error unless the determination of

legal pneumoconiosis also is reversible error. See Antelope Coal Co./Rio Tinto

Energy Am., 743 F.3d at 1349 (“Even if the x-ray had been more readable and had

shown no clinical pneumoconiosis, the ALJ’s determination of legal pneumoconiosis

would stand because legal pneumoconiosis can be found without evidence of clinical

pneumoconiosis.”). As discussed below, we do not conclude the finding of legal

pneumoconiosis was reversible error, so we need not consider whether the agency

erred in finding clinical pneumoconiosis based only on x-ray evidence.

      B.     Fourth Agency Decisions

      Antelope argues the fourth ALJ decision was insufficient for three reasons.

First, Antelope suggests the ALJ inadequately explained his decision. But “[i]f a

reviewing court can discern what the ALJ did and why he did it, the duty of

explanation is satisfied.” Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013, 1022

(10th Cir. 2010) (internal quotation marks omitted). We have had no trouble

discerning what the agency did and why it did it; “[b]oth the Board and the ALJ have

shown their work,” Energy W. Mining Co., 555 F.3d at 1219.

      Second, Antelope contends the ALJ failed to resolve disability causation under

§ 718.204, asserting he did not find that Mrs. Goddard had shown pneumoconiosis to

be a material or substantial contributing cause to the totally disabling pulmonary

impairment. The Review Board held, however, any error in not making a more


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specific § 718.204(c) finding was harmless because the ALJ’s analysis under

§ 718.202(a)(4) also “encompassed the issue of disability causation” under

§ 718.204(c). 11/27/2013 Rev. Bd. Dec. at 8. Antelope does not take issue with the

Review Board’s determination of harmless error, and we agree with the Review

Board that no remand is required, because the ALJ effectively resolved the issue of

disability causation when he found legal pneumoconiosis. See Andersen, 455 F.3d at

1105 (stating that a claimant establishes legal pneumoconiosis only by proving that

his respiratory condition “is significantly related to, or substantially aggravated by,

dust exposure in coal mine employment” (internal quotation marks omitted)).

      Third, Antelope asserts the ALJ’s analysis of the medical opinions is

impermissibly selective and unsupported by substantial evidence. We have reviewed

each of Antelope’s specific contentions with regard to this argument and conclude

that none of them compel us to vacate the agency decision.

      “Our task is to determine whether the Board properly concluded that the ALJ’s

decision was supported by substantial evidence.” Energy W. Mining Co., 555 F.3d at

1217 (internal quotation marks omitted). We agree with the Review Board that, at a

minimum, Dr. Perper’s opinion constitutes substantial evidence to support the

decision. In large part, Antelope’s arguments are based on disagreements with the

ALJ’s assessment of the evidence. “However, in deciding whether substantial

evidence exists to support the ALJ’s decision, the court cannot reweigh the evidence,

but may only inquire into the existence of evidence to support the trier of fact.”


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N. Coal Co. v. Dir., Office of Workers’ Comp. Programs, 100 F.3d 871, 873

(10th Cir. 1996) (internal quotation marks omitted). Further, this record presents a

conflict of medical opinions, and “[w]e are especially mindful that the task of

weighing conflicting medical evidence is within the sole province of the ALJ and that

where medical professionals are in disagreement, the trier of fact is in a unique

position to determine credibility and weigh the evidence.” Energy W. Mining Co.,

555 F.3d at 1217 (citation and internal quotation marks omitted).

      C.     Vacatur of Third ALJ Decision

      Finally, Antelope argues the Review Board should not have vacated the third

ALJ decision because that decision was adequately explained and supported by

substantial evidence. Again, we disagree with Antelope’s position. The Review

Board did not err in concluding the ALJ failed to comply with its instructions on the

second remand and failed to adequately explain his findings. Particularly, the third

ALJ decision neglected to explain why the ALJ credited the opinions against finding

pneumoconiosis over the opinions in favor of finding pneumoconiosis.

                                      Conclusion

      The petition for review is denied.


                                                    Entered for the Court


                                                    Bobby R. Baldock
                                                    Circuit Judge



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