Harman Mining Co. v. Director, OWCP, Nos. 05-1620 and 1101450

Decided: May 15, 2012

The Black Lung Benefits Act (“the Act”) grants benefits to people or their dependents afflicted with pneumoconiosis, or black lung disease.  To be eligible, one must prove that they have a total disability due to pneumoconiosis arising out of employment as a coal miner.  The Department of Labor distinguishes between “clinical” and “legal” pneumoconiosis: the former is characterized by the typical conditions of the disease, while the latter is “any chronic lung disease or impairment … arising out of coal mine employment,” which means it is “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.”

Gary Looney worked in coal mines for nearly seventeen years, the last ten working for Harman Mining Company (“Harman”), and was also a smoker.  Looney filed a claim for black lung benefits and his case was before an administrative law judge (“ALJ”) seven times, who found Looney was totally disabled due to legal pneumoconiosis and ordered Harman to pay black lung benefits. On Harman’s seventh appeal, the award was affirmed by the Benefits Review Board (“Board”).  Harman moved for reconsideration, which was denied March 30, 2005, and filed a petition for modification, asserting the ALJ made a mistake of fact in determining the cause of Looney’s disability.  Harman also appealed the original award and asked the Court to stay its appeal of benefits pending resolution of its petition for modification. On June 30, 2009, the ALJ denied the petition for modification. Harman appealed the denial of his petition.

Harman challenges the order awarding Looney black lung benefits and the order denying Harman’s petition for modification.  The parties stipulate that Looney was totally disabled by his COPD and Harman does not challenge its responsibility for any black lung benefits due to Looney.  Harman does, however, contest the cause of Looney’s COPD.  A circuit court’s review of the Board’s order is limited to assessing whether “substantial evidence supports the factual findings of the ALJ and whether the legal conclusions of the [Board] and ALJ are rational and consistent with applicable law.”  Lewis Coal Co. v. Dir., O.W.C.P., 373 F.3d 570, 576 (4th Cir. 2004).  The Court will defer to the ALJ’s decisions as the trier of fact.

The ALJ “considered all of the medical evidence” and found that Looney established he suffered from legal pneumoconiosis.  The ALJ primarily considered the opinions of two doctors who said Looney’s COPD was from coal mining and two who said it was from smoking, finding the former more persuasive.  This was within the ALJ’s authority.  The ALJ denied Harman’s petition for modification, finding that the expert opinions presented by Harman were flawed and had no support in the Department of Labor’s regulations.  The regulations state that “[n]o claim for benefits shall be denied solely on the basis of a negative chest X-ray,” the argument advanced by Harman’s experts.  Substantial evidence supported the denial of a modification.

Harman argues that in awarding black lung benefits to Looney, the ALJ and Board violated the Administrative Procedure Act (“APA”), primarily by invoking the preamble to the 2000 Department of Labor regulations which sets forth the reasons for distinguishing between legal and clinical pneumoconiosis and states legal pneumoconiosis can exist independently of clinical pneumoconiosis.  The extent of the ALJ’s and Board’s reliance on the preamble was limited —the ALJ referred to the preamble in rejecting Harman’s petition for modification, which is permissible.  Harman contends that the ALJ violated the APA by giving less weight to an opinion that conflicted with the preamble’s position.  There is no support for this argument.  The Third and Seventh Circuits, the only courts to address this question, have upheld invocation of the preamble.  Harman attempts to distinguish these cases asserting that they do not “condone what the ALJ did,” when in fact that is exactly what they do.

Harman claims that the invocation of the preamble violates the APA’s rulemaking requirements because it was not subject to notice-and-comment rulemaking, but this argument also fails.  The preamble is a source of explanation of the Department’s rationale in amending the regulations.  The ALJ was within her discretion to find opinions that conflicted with the preamble less persuasive. The Board did not err in concluding the ALJ permissibly referenced the preamble.

Next, Harman maintains that the invocation of the preamble violates the APA because it was not placed in the administrative record.  The APA does not require that public law documents such as the preamble be made part of the administrative record.  Harman’s final argument is that the ALJ’s weighing of the evidence violated the APA’s requirement that agency decisions include both a statement of findings and conclusions and a rationale as to the basis of those findings and conclusions.  As long as a reviewing court can determine what the judge did and why, the duty of explanation under the APA is satisfied.  This requirement is satisfied in this case.  The fact that Harman disagrees with the ALJ’s findings does not make its argument successful.

The award of black lung benefits will be upheld.  The record contains conflicting medical opinions as to whether Looney suffered from legal pneumoconiosis.  The ALJ conscientiously weighed the expert opinions and resolved the conflict in favor of Looney.

Full Opinion

-Michelle Theret

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