On January 7, 2015, the U.S. Court of Appeals for the Third Circuit affirmed (decision here) a miner’s award of black lung benefits, holding that substantial evidence supported the award by the administrative law judge (“ALJ”) and the ALJ did not err by considering the preamble to the Department of Labor’s 2001 regs.
In Carpentertown Coal & Coke Co. v. Director, OWCP [Jenkins], Judge Greenaway wrote an unpublished opinion (joined by Chief Judge McKee and Judge Krause) that rejected a coal company’s challenge to Patrick Jenkins’s black lung benefits award.
The Court analyzed Carpentertown Coal’s challenge as follows:
The ALJ’s findings that Jenkins has legal pneumoconiosis and that he is totally disabled due to pneumoconiosis are supported by substantial evidence. Dr. Shockey’s opinion, supported by Dr. Gagon’s opinion, was based on his consideration of Jenkins’s coal mine employment history, his smoking history, and physical examination findings. Dr. Shockey specified that his diagnosis of CWP was based, in part, on claimant’s pulmonary function study, which indicated severe obstruction, and his chest x-ray, which indicated both COPD and CWP. The ALJ found that this record established the existence of pneumoconiosis. Because there was “such relevant evidence as a reasonable mind might accept as adequate to support [the ALJ’s] conclusion,” the award of benefits to Jenkins was justified and the Board did not err in affirming it. Consolidation Coal Co. v. Kramer, 305 F.3d 203, 207 (3d Cir. 2002).
Petitioners also argue that the opinions of Drs. Farney and Goodman should have been credited, and that the ALJ improperly considered the Department of Labor’s Preamble to the Regulations to the Act (“Preamble”), 65 Fed.Reg. 79920 (Dec. 20, 2000), “as guidance in evaluating and assessing the probative weight to be assigned to the medical opinion evidence….” Pet. at 45. Petitioners’ arguments ignore that the ALJ did more on remand than just consider the Preamble.
The ALJ rejected the opinions of Drs. Farney and Goodman for several reasons unrelated to the Preamble. First, the ALJ determined that both opinions were undermined because they each had indicated that positive x-ray evidence was required to attribute Jenkins’s COPD to coal-mine dust exposure. This position stands in contravention to the Act. See 20 C.F.R. § 718.202(a)(4) (noting that the “determination of the existence of pneumoconiosis may also be made” by a physician “exercising sound medical judgment, notwithstanding a negative X-ray”). Second, the ALJ also gave less weight to the opinions of Drs. Farney and Goodman because each doctor failed to explain convincingly why Jenkins’s COPD was not “significantly related to, or substantially aggravated by, dust exposure….” Id. § 718.201(b).
Having determined that substantial evidence supports the decision of the ALJ, we also conclude that the Board properly applied its scope of review, and did not err by affirming the ALJ’s award of black lung benefits to Jenkins.
The Court also included a footnote (n.11) explaining why, even if the ALJ’s opinion had turned on the preamble, this would not be reversible error because Courts of Appeals have “endorsed” an ALJ’s use of the preamble.
Even assuming arguendo that the ALJ considered the Preamble when evaluating the medical opinion evidence, an ALJ’s reliance on the Preamble has been explicitly endorsed by various courts of appeal. See Helen Mining Co. v. Dir., OWCP, 650 F.3d 248, 257 (3d Cir. 2011) (stating that “[t]he ALJ’s reference to the preamble … unquestionably supports the reasonableness of his decision to assign less weight” to a medical expert’s opinion); Peabody Coal Co. v. Dir., OWCP, 746 F.3d 1119, 1125 (9th Cir. 2014) (finding that the Preamble may be used to give an ALJ understanding of a scientific or medical issue); Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 314–15 (4th Cir. 2012) (concluding that “the ALJ was entitled to” look to the Preamble to assess a medical expert’s credibility); Consolidation Coal Co. v. Dir., OWCP, 521 F.3d 723, 726 (7th Cir. 2008) (describing as “sensible” an ALJ’s decision to discredit a medical expert’s opinion that was inconsistent with the Preamble).
(For a post about the 9th Circuit decision in Peabody Coal v. Director, see previous post here.)
Congratulations to Dianna Cannon for her success on behalf of Mr. Jenkins and to Sean Bajkowski & Barry Joyner for their success on behalf of the Department of Labor.