Ninth Circuit Holds ALJs Can Use the Regulatory Preamble in Weighing Medical Evidence (Peabody Coal Co. v. Director, OWCP)

Yesterday in Peabody Coal Co. v. Director, OWCP (decision here), the U.S. Court of Appeals for the Ninth Circuit affirmed a miner’s award of federal black lung benefits.  The Ninth Circuit joined every other circuit to consider the issue—the 3rd, 4th, 6th, and 7th—and held that when weighing medical evidence, an ALJ may consider the medical facts that are contained in the preamble to the 2001 amendments to the Department of Labor’s regulations.  The Ninth Circuit also held that the ALJ’s decision in Robert Dale Opp’s claim was supported by substantial evidence.

The issue in the Opps’ claim was whether Mr. Opp’s COPD was caused at least in part by his nearly 40 years of coal mine dust exposure or whether it could be explained entirely by his 50-year smoking history.  In explaining his decision not to credit the opinions of Peabody’s physicians, the ALJ referred to the preamble which accompanied the 2001 amendments to the Department of Labor’s regulations as a statement of the prevailing medical views regarding the relationship between coal mine dust and COPD.

In a published opinion written by Circuit Judge Pregerson (and joined by Circuit Judges Murguia and Christen), the Court rejected Peabody Coal’s argument that reliance upon the preamble violated the Administrative Procedures Act.  The Court looked at the medical literature that the preamble cited in support of its statements regarding the etiology of coal workers’ pneumoconiosis and determined that the preamble was being cited as a sources of facts, not as an interpretation of law.  The court said “the preamble in this case aids in achieving a general understanding of the statute because it simply explains the scientific and medical basis for the regulations.”  (internal quotation marks and modification omitted)

The court then went on to hold that substantial evidence supported the ALJ’s conclusion that coal mine dust exposure contributes to COPD and that the physicians who said otherwise could be properly discounted.

The tragedy of this case is that Mr. Opp filed his claim in 2000 and it took 14 years for this case to reach (what should be) finality.  During the pendency of the claim, Mr. Opp passed away, leaving his widow to pursue his claim.

This decision is good news for miners and their families.  It was good to see the Ninth Circuit recognize that the attorneys for Peabody Coal made (and lost) the same argument before the Sixth Circuit in a case in which Appalachian Citizens’ Law Center represented a miner (A & E Coal Co. v. Adams, 694 F.3d 798 (6th Cir. 2012)).

This decision combined with last weeks’ decision by the Fourth Circuit (see post here for summary of Westmoreland Coal v. Stidham) should be the nail in the coffin for this argument related to the preamble.  The argument is plainly wrong because an ALJ could certainly cite a law review article which summarized the prevailing medical views around black lung and there’s no reason to give the well-supported analysis in the Department of Labor’s preamble less weight.

Congratulations to Martin J. Linnet and Jonathan Wilderman (for Mrs. Opp) and Jeffrey S. Goldberg of the U.S. Department of Labor and for their success.

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