Today, the U.S. Court of Appeals for the Sixth Circuit affirmed a Kentucky coal miner’s award of federal black lung benefits in a “for publication” decision, Dixie Fuel Co., LLC v. Director, OWCP [Hensley II], 820 F.3d 833 (6th Cir. 2016) (slip op. available here).
Today’s decision is largely a rejection of Dixie Fuel’s challenges to how the ALJ weighed the medical evidence in Mr. Hensley’s claim. However, within the court’s analysis are numerous issues of law that establish or reaffirm the court’s precedent and warrant careful attention to the court’s decision. The holding that stands out the most is the court’s approval of the ALJ’s use of the internet to review medical literature cited by the experts. Apart from the evidentiary and legal issues, Mr. Hensley’s case also demonstrates the long delays that plague black lung benefits adjudication—even when the court instructs a claim (from 2006) to be resolved “expeditiously.”
Arlis Hensley worked as an underground coal miner in or around Harlan County, Kentucky for thirteen years until he was injured while working for Dixie Fuel .
Mr. Hensley filed his first claim on 1990 (which was denied in 1991) and his second in 2003 (which was denied in 2004).
Mr. Hensley’s current claim was filed in 2006. After the District Director awarded benefits in 2007, Dixie Fuel sought review from an ALJ. Judge Krantz awarded benefits in 2010 (decision here), finding that Mr. Hensley proved via x-ray evidence that he had pneumoconiosis. After the Benefits Review Board affirmed in 2011 (decision here), Dixie Fuel took its challenge to the U.S. Court of Appeals for the Sixth Circuit.
In Dixie Fuel Co., LLC v. Director, OWCP [Hensley I], 700 F.3d 878 (6th Cir. 2012), the court held that the ALJ erred by basing his finding of pneumoconiosis solely on the x-ray evidence without weighing it alongside the needle biopsy, CT scan, and medical opinion evidence. While remanding the claim to the ALJ, the court instructed (on November 28, 2012): “Because Hensley’s claim has been pending for so long, we hope (and expect) that the agency will resolve this claim once and for all expeditiously. If Hensley deserves benefits under the Act, he should not have to wait this long to obtain them.”
Eleven months later, ALJ Krantz reinstated Mr. Hensley’s award via a thorough 23-page decision (available here) that weighed all of the evidence regarding pneumoconiosis and one again found that Mr. Hensley proved that he had pneumoconiosis and that it was the cause of his respiratory disability. Ten months after that, the Benefits Review Board affirmed the award on remand (decision here) and then eight months after that denied Dixie Fuel’s motion for reconsideration. Finally, thirteen months after the Board’s last decision, and more than three years after the Sixth Circuit’s instruction that the claim be decided “expeditiously” on remand, the Sixth Circuit affirmed Mr. Hensley’s award.
Sixth Circuit Decision
The Sixth Circuit’s decision (authored by District Judge Oliver and joined by Circuit Judges Sutton and Griffin) focused in large part on the limited scope of review of the U.S. Court of Appeals. In doing so, though, the court not only issued holdings about deference and waiver, but also on legal issues that affect how ALJs should approach black lung benefits claim.
The court issued the following eight holdings (in the order summarized below):
- The Board correctly held that it was harmless error for the ALJ not to specifically rule on Dixie Fuel’s request to substitute Dr. Paul S. Wheeler’s (negative) reading of the July 2008 x-ray for Dr. Rosenberg’s (negative) reading of the same x-ray. This holding is highly factual, but in short, Dixie Fuels wished to substitute a highly qualified—even if somewhat tainted—radiologist’s reading for that of a pulmonologist. The Board held that even though Dixie Fuel was correct that the ALJ failed to rule on this request, that this error was harmless because the ALJ’s statement that “the most recent x-rays,” weighed in favor of a positive or equipoise reading was still consistent. The Board also noted in a footnote: “Moreover, the Department of Labor has concluded that Dr. Wheeler’s negative readings for pneumoconiosis are not to be credited ‘in the absence of persuasive evidence challenging’ published reports finding that Dr. Wheeler’s negative readings are not credible, or otherwise rehabilitating Dr. Wheeler’s x-ray readings. See BLBA Bulletin No. 14-09 (June 2, 2014), Office of Workers’ Compensation Programs, Division of Coal Mine Workers’ Compensation.” Before the Sixth Circuit, Dixie Fuel argued that the Board resolved this dispute as a matter of law by relying on the bulletin and that this violated the Administrative Procedure Act. The Sixth Circuit rejected this argument, holding that the Board’s “decision can be read, quite logically, as wholly untethered to the Board’s reference, in a footnote clearly meant as an aside, to the Department of Labor’s bulletin.” Instead, the Sixth Circuit found that the Board correctly found that even if Dr. Wheeler’s reading had been substituted and credited, then the weight of the “most recent x-rays” would still positive. (Because regardless, an April 2008 x-ray was read as positive by Dr. Dahhan, a pulmonologist)
- Because Dixie Fuel declined to raise some issues before the Sixth Circuit in the second round before the court, Dixie Fuel could not complain that the Board resolved those issues using “law of the case” doctrine. The Sixth Circuit explained, “By invoking what it deemed the law of the case doctrine, the Board was simply declining to revisit its prior judgments. . . . Yet, there was no suggestion by the Board that Dixie would be foreclosed from renewing their objections before this court. . . . However, Dixie has foreclosed the remaining three issues—to which the Board applied the law of the case doctrine—from our consideration inasmuch as they have failed to specifically raise their objections here.“
- Dixie Fuel waived its argument that the ALJ erred by finding that x-rays are a more objective test than needle biopsies, CT scans, and Dr. Rosenberg’s opinion because it did not specifically raise this issue before the Board. The court explained, “A generalized challenge to the ALJ’s weighing of the evidence does not preserve the specific objections raise here, and we, thus, decline to consider them.“
- The ALJ properly discredited Dr. Dahhan’s opinion that Mr. Hensley does not have pneumoconiosis and instead has respiratory impairments due to rheumatoid arthritis because (1) Dr. Dahhan himself originally believed that the April 2008 x-ray showed pneumoconiosis, and (2) Dr. Dahhan simultaneously recognized that coal dust can have a latent impact, but also said that in Mr. Hensley’s case it “should not.” As the Sixth Circuit explained, “the doctor inexplicably adopted a position seemingly inconsistent with his own understanding of the medical literature.“
- The ALJ properly conducted internet research and took administrative notice of a medical article that Dr. Rosenberg cited to find that Dr. Rosenberg mischaracterized the medical literature that he relied on. Dr. Rosenberg said that Mr. Hensley did not suffer from pneumoconiosis because the the x-rays showed linear interstitial scarring. To support his view, Dr. Rosenberg cited the Cockroft study, and criticized it saying, “‘the findings cannot be used to support primary linear interstitial disease as being coal mine dust related’ because the researchers failed to control for smoking.” The ALJ found the Cockroft study via the internet and explained, “it is quite clear that the authors did take smoking into account when interpreting their data, breaking down the group into smokers, non-smokers, and ex-smokers. . . . they noted that both non-smokers and smokers separately showed an increase in the irregularity of opacities related to years of underground exposure, with a greater effect in non-smokers.” Dr. Rosenberg also criticized another study for lacking control data, when the ALJ noted—after finding it online—that it in fact controlled for age, smoking, and level of dust exposure. The Sixth Circuit held that because Dixie Fuel “do[es] not claim to have been unaware of the articles or their contents” and “makes no attempt to argue that the ALJ misread or misinterpreted the article. Any error by the ALJ was, thus, harmless.“
- The ALJ properly characterized the results of the needle biopsy and CT scans as “neutral” rather than “negative.” In short, the Sixth Circuit explained that the needle biopsy and CT scan evidence did not speak directly to the presence of pneumoconiosis, so the ALJ properly considered it to be “neutral” (allowing for the positive x-ray evidence to be given more weight) rather than “negative.”
- The ALJ properly applied the “substantially contributing cause” standard in assessing disability causation. The Sixth Circuit considered Dixie Fuel’s argument (that the ALJ did not insist that pneumoconiosis be a substantial cause of Mr. Hensley’s disability) to be based on a misrepresentation of the ALJ’s actual analysis.
- The ALJ properly weighed the evidence regarding disability causation. The Sixth Circuit held that even though the ALJ discredited Dr. Baker’s diagnosis of pneumoconiosis, that after finding pneumoconiosis proven through other means, the ALJ properly credited Dr. Baker’s opinion about the cause of Mr. Hensley’s disability. In addition, the ALJ properly credited the conclusions of Dixie Fuel’s experts that Mr. Hensley was disabled by an interstitial lung disease to support his finding of disability due to pneumoconiosis because the ALJ previously found that Mr. Hensley’s interstitial lung disease was pneumoconiosis (rather some other disease.)
The main takeaway from Hensley II is the same thing that is seen time and again in the approach that the U.S. Courts of Appeals take to federal black lung claims these days: a light-touch review that uses the Court’s limited scope of review to justify affirming decisions that “rest within the realm of rationality” as the Sixth Circuit repeated. As result, parties wishing to bring a challenge to the court must ensure their challenges are preserved to avoid waiver holdings (see #2 & #3 above) as well as ensure that the alleged errors were not harmless (#1, & #5). And then, because the court considers evidence weighing to be the ALJ’s prerogative, many other challenges are unlikely to succeed (#4, #6 & #8).
A few aspects about Hensley II standout.
First, the discussion of the ALJ’s use of internet research to probe Dr. Rosenberg’s opinion suggests that the court is generally comfortable with such extra-record inquiry by the ALJ. For such a challenge to succeed, it appears that a party needs to be able to show that, it was unaware of the article and if given an opportunity to challenge the article, it would have been able to show that the ALJ “misread or misinterpreted” the study. This should embolden ALJs to conduct more probing research and encourage attorneys to cite and explain more literature in their briefs.
Second, the court’s discussion of the Department of Labor’s BLBA Bulletin discrediting Dr. Wheeler was interesting. On the one hand, the court clearly acknowledged the bulletin, on the other hand, the court ducked the issue about whether a Department of Labor adjudicator can properly weigh the evidence in an individual case by relying upon the bulletin.
If you’ll bear my reading of the tea leaves, however, comparing the ALJ’s decision to Dixie Fuel’s argument and the court’s ultimate decisions suggests that the court found something fishy about Dr. Wheeler and did not want to remand Mr. Hensley’s claim for this purpose. I say this because the ALJ specifically weighed the July 2008 evidence based on the readers’ credentials, giving more weight to a reading by a radiologist (Dr. Alexander) of pneumoconiosis than a negative reading by a pulmonologist (Dr. Rosenberg), resulting in an overall finding of pneumoconiosis for the July 2008 x-ray. If the ALJ had used Dr. Wheeler’s reading instead, then there would be another equivocal reading, leaving the only x-ray weighing positive to be the April 2008 reading—which was read by a pulmonologist, Dr. Dahhan. And because the overall weight to give the x-rays readings was so important to the ALJ’s analysis, it would not be surprising if (another) remand was warranted. The court’s decision to skip a remand, makes the most sense if it was implicitly suggesting that it wanted to respect the Department of Labor’s determination regarding Dr. Wheeler. Of course this is not a holding—it’s not even dicta—but it should make coal operators more hesitant to rely on a Dr. Wheeler reading to support their argument because the Wheeler reading in Hensley II appears to have warranted little weight.
And finally, as mentioned earlier in the post, apart from the merits of the decision, the timeline of Mr. Hensley’s case is notable. It has taken nearly a decade for Mr. Hensley’s black lung benefits claim to be resolved—and even three and a half years after the Sixth Circuit said: “Because Hensley’s claim has been pending for so long, we hope (and expect) that the agency will resolve this claim once and for all expeditiously. If Hensley deserves benefits under the Act, he should not have to wait this long to obtain them.”
At least in the end the court agreed that Mr. Hensley did deserve benefits, even if he had to wait even longer than he should have.
Arlis Hensley was represented by Joseph E. Wolfe, Esq. of Wolfe, Williams & Reynolds and previously by nonattorney representatives from Stone Mountain Health Services.
Dixie Fuel Co., LLC and Bituminous Casualty Corp. were represented by Mark E. Solomons, Esq. and Laura Metcoff Klaus, Esq. of Greenberg Traurig LLP and earlier by Gayle Huff, Esq.
The Director, OWCP was represented by Gary K. Stearman, Esq. and Rebecca J. Fiebig, Esq. of the U.S. Department of Labor’s Solicitor’s Office.