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Consolidation Coal Company v. Everett Galusky, 4th Cir. (2016)
Consolidation Coal Company v. Everett Galusky, 4th Cir. (2016)
No. 15-1302
Argued:
Decided:
ARGUED:
William
Steele
Mattingly,
JACKSON
KELLY
PLLC,
Lexington, Kentucky, for Petitioner.
Heath M. Long, PAWLOWSKI,
BILONICK & LONG, Ebensburg, Pennsylvania, for Respondent.
ON
BRIEF:
Kevin M. McGuire, Amy Jo Holley, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner.
administrative
law
judge
(ALJ)
found
that
Galusky
was
ALJ
then
presumption
by
held
that
showing
CONSOL
either
had
that
failed
to
Galusky
rebut
that
not
have
does
pneumoconiosis
did
not
cause
his
total
disability.
The
standard
presence
of
in
considering
pneumoconiosis,
whether
improperly
it
had
disproved
requiring
it
to
the
rule
Because
inappropriate
standard
ALJ
of
did
proof,
not
and
err
by
because
applying
an
substantial
I.
A.
The Black Lung Benefits Act, 30 U.S.C. 90144, awards
benefits
to
coal
pneumoconiosis,
miners
popularly
U.S.C. 901(a).
who
are
known
as
totally
black
disabled
lung
due
disease.
to
30
v.
Epling,
783
F.3d
498,
501
(4th
Cir.
Hobet Mining,
2015)
(footnote
omitted). 1
For certain miners, Congress has made it easier to show an
entitlement to benefits.
Id.
the
Acts
both
fifteen-year
prongs
of
the
presumption,
showing
under
required
for
which
we
benefits
502.
That presumption may be rebutted in two ways.
First, a
coal mine operator may establish that the claimant does not have
pneumoconiosis arising out of coal mine employment.
718.305(d)(1)(i);
see
Epling,
783
F.3d
at
502.
20 C.F.R.
Under
the
So
to
satisfy
this
first
rebuttal
20 C.F.R.
method,
an
or
pulmonary
pneumoconiosis.
added).
heavy
20
total
C.F.R.
disability
was
718.305(d)(1)(ii)
caused
by
(emphasis
one.
It
is
not
enough
for
an
operator
to
show
that
was
coal
miner
for
at
least
26
years,
last
After unsuccessfully
in
approved
his
2010,
and
claim.
this
time
CONSOL
the
opposed
Department
of
Galuskys
claim
Labor
and
that
included
medical
tests
and
studies,
x-ray
Begley;
that
and
Galusky
Stephen
suffered
G.
Basheda.
from
While
totally
all
four
disabling
Begley,
conditions
pulmonary
and
like
disease,
Basheda
pulmonary
and
instead
diagnosed
emphysema,
asthma,
and
Galusky
chronic
all
three
with
obstructive
attributed
decades-long
smoking
habit,
rather
than
his
coal
mine
employment.
After
conducting
hearing
and
reviewing
the
medical
for more than fifteen years in coal mines and suffered from a
totally disabling respiratory impairment, the ALJ invoked the
fifteen-year presumption.
Galusky
has
pneumoconiosis
arising
from
coal
mine
physician
presumption.
opinions,
CONSOL
had
failed
to
rebut
the
first rebuttal method: showing that Galusky did not suffer from
legal
pneumoconiosis,
or
lung
impairment
significantly
mine
employment.
pneumoconiosis);
acknowledged
see
that
id.
doctors
J.A.
at
296
Begley,
297
(defining
n.23
(same).
Basheda,
and
Renn
legal
The
had
ALJ
not
Basheda, the ALJ noted, had been able to rule out coal dust as
a
contributing
cause
to
Galuskys
impairment.
See
J.A.
290
out
exposure
to
coal
dust
as
contributor);
J.A.
301
Moreover,
though
both
Basheda
and
Renn
had
that
definition
of
asthma,
legal
which
might
bring
pneumoconiosis.
it
within
the
the
ALJ
Finally,
doctors
had
made
statements
questioning
the
progressive
rebuttal
pneumoconiosis
Citing
method:
did
longstanding
not
demonstrating
contribute
Fourth
to
Galuskys
total
disability.
his
that
Circuit
precedent,
the
ALJ
failed
to
determination
diagnose
Basheda,
pneumoconiosis,
Renn,
and
contrary
Begley.
to
The
his
ALJ
own
also
inconsistent
regulations.
with
the
Act
and
the
preamble
to
its
opinions, the ALJ determined that CONSOL had failed to rebut the
presumption
that
Galuskys
pneumoconiosis
caused
his
total
Both doctors,
as
reflected
in
the
Act
and
the
preamble
to
its
after
the
imposition
of
dust-control
measures
was
as
to
the
second
presumption
that
Galuskys
rule-out
standard,
and
appropriately
8
discounted
the
II.
In black lung cases, our review is highly deferential.
ask
only
whether
substantial
evidence
supports
the
We
factual
We
medical
opinions.
Epling,
783
F.3d
at
504
See 20
Id. 718.201.
of proof is higher:
operator
to
show
that
no
caused by pneumoconiosis.
part
of
miners
disability
is
We read
pneumoconiosis
demonstrate
the
rebuttal,
absence
of
the
legal
ALJ
required
CONSOL
pneumoconiosis,
to
properly
defined
as
substantially
employment.
lung
impairment
aggravated
J.A. 297.
significantly
by,
dust
related
exposure
in
to,
coal
or
mine
the other hand, the ALJ expressly invoked the rule-out standard,
explaining
that
relationship
an
between
operator
a
must
miners
rule
disability
out
and
his
any
causal
coal
mine
that Begley could not rule out a coal dust etiology, or cause,
for Galuskys lung impairment, J.A. 301, and in the second, that
Basheda could not 100% rule out a coal dust contribution to
Galuskys lung condition, J.A. 303.
In context, however, it is
of
20
C.F.R.
718.305(d)(1)(ii),
but
instead
using
out
that
[Galuskys]
exposure
to
coal
dust
could
have
do
we
detect
any
substantive
error
in
the
ALJs
It is
indeed the case that under the first rebuttal prong, the burden
is on the operator to rule out, colloquially speaking, the
possibility that coal mine employment is significantly related
to
or
has
impairment.
substantially
20
C.F.R.
aggravated
718.201(b).
lung
And
while
disease
or
Begley
and
lung
condition,
neither
could
say
that
coal
dust
to
determine
testimony,
Bender,
the
782
persuasiveness
F.3d
at
144,
of
and
[these
to
take
as
rebuttal
factual
showing.
matter
in
assessing
According
to
the
CONSOL,
strength
substantial
of
its
evidence
Again, we disagree.
sufficient
significantly
to
show
related
that
to
or
Galuskys
lung
substantially
condition
aggravated
is
by
not
coal
Both Renn
Renn,
pulmonary
emphysema
and
severe
obstructive
disease
to
(COPD)
CONSOL,
by
with
tying
an
Galuskys
asthma
lung
component.
impairment
to
emphysema and COPD arising from tobacco use rather than coal
dust, this expert testimony disproves coal mine employment as a
significant contributor to Galuskys impairment.
The
problem,
as
both
the
ALJ
and
Board
noted,
is
that
CONSOL
Galuskys
asthma
is
relevant
to
its
burden
on
and that its experts in fact did assess whether Galuskys asthma
was aggravated by coal dust, and explained why it was not.
But
as
the
noted
above,
it
is
for
the
ALJ
to
determine
127;
diagnoses
asthma,
J.A.
231;
or
states
without
anything
that
an
ALJ
would
be
Nowhere, however, is
obliged
to
treat
as
while
lung
not
in
condition,
their
did
14
view
not
the
play
primary
some
cause
of
significant
contributing role.
dust
exposure
might
have
aggravated
Galuskys
asthma.
supports
of
the
review,
we
determination
find
of
that
the
ALJ
substantial
that
CONSOL
total
disability
was
caused
by
his
pneumoconiosis
discussed
above,
contending
that
the
ALJ
simply
We have
all,
unless
an
ALJ
is
able
to
identify
specific
and
question
of
disability
predicate
misdiagnosis.
quotation
marks
and
causation
Epling,
alterations
does
783
not
F.3d
rest
at
omitted).
505
Here,
upon
the
(internal
there
is
pneumoconiosis
independent
of
pneumoconiosis
did
their
at
all,
not
cause
view
and
that
CONSOL
Galuskys
Galusky
does
not
disability
does
argue
not
is
have
otherwise.
or
no
weight
to
these
experts
views
on
disability
16
III.
For the foregoing reasons, we deny CONSOLs petition for
review.
PETITION FOR REVIEW DENIED
17