Consolidation Coal Company v. Director , Office of Workers ’ Compensation Programs

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1329
C ONSOLIDATION C OAL C OMPANY ,
Petitioner,
v.
DIRECTOR , O FFICE OF W ORKERS ’ C OMPENSATION
PROGRAMS , et al.,
Respondents.
____________________
Petition for Review of an Order of the
Benefits Review Board.
Nos. 22-0238 BLA & 23-0020 BLA
____________________
A RGUED O CTOBER 30, 2024 — DECIDED F EBRUARY 18, 2025
____________________
Before S CUDDER , S T. EVE, and K IRSCH , Circuit Judges.
S CUDDER , Circuit Judge. Dale Staten worked as a coal miner
in Illinois for almost thirty years until his retirement in 2000.
After he passed away in January 2017 from respiratory failure
following a two-week hospitalization, his widow, Bernadette
Staten, filed for survivor benefits under the Black Lung Bene-
fits Act. A Department of Labor administrative law judge
awarded benefits after concluding that Bernadette qualified

-- 1 of 16 --

2 No. 24-1329
for a statutory presumption that Dale died from black lung
disease, or pneumoconiosis, because he mined underground
for more than 15 years and was totally disabled at the time of
his death. A divided Benefits Review Board affirmed.
Staten’s former employer, Consolidation Coal Company,
which refers to itself as CONSOL, now petitions for review.
The company challenges the ALJ’s award of benefits, includ-
ing the finding that Dale suffered from a total disability at the
time of his death, and invites us to draw a distinction between
pulmonary conditions which are chronic in nature (meaning
they develop over a long period of time) and those that are
acute (meaning they surface more suddenly and progress).
Relying on this difference, CONSOL contends that the 15-year
presumption applies only where a miner’s total disability re-
sults from a chronic pulmonary condition and not from an
acute illness like the respiratory failure that caused Dale’s
death. We see the legal issue differently and affirm the ALJ’s
award of benefits.
I
A
The Black Lung Benefits Act provides benefits for the sur-
viving spouse of a miner whose death was due to pneumoco-
niosis, which Congress defined as “a chronic dust disease of
the lung and its sequelae, including respiratory and pulmo-
nary impairments, arising out of coal mine employment.” 30
U.S.C. § 902(b); see id. § 901.
Because black lung cases present challenging issues of
proof for miners, Congress created “certain statutory pre-
sumptions” to “ease[] their burden.” Dir., Off. of Workers'
Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 280 (1994);

-- 2 of 16 --

No. 24-1329 3
see also Island Creek Coal Co. v. Blankenship, 123 F.4th 684, 688
(4th Cir. 2024) (describing the 15-year presumption as “ex-
pressly intended to relax the often insurmountable burden”
to prove a black lung claim (citation omitted)). As relevant
here, the Act provides a claimant a rebuttable presumption
that a miner’s death was due to pneumoconiosis upon a
showing that the miner engaged in underground coal-mine
employment for at least 15 years, and, at the time of his death,
had a “totally disabling respiratory or pulmonary impair-
ment.” 30 U.S.C. § 921(c)(4); see 20 C.F.R. § 718.305(b)(1). If
the claimant qualifies for the presumption, the burden shifts
to the employer to prove either that the miner did not have
pneumoconiosis or, alternatively, that “his respiratory or pul-
monary impairment did not arise out of, or in connection
with, employment in a coal mine.” 30 U.S.C. § 921(c)(4); see
20 C.F.R. § 718.305(d)(2)(i)–(ii).
The Department of Labor’s regulations explain that a
miner is totally disabled if he has a “pulmonary or respiratory
impairment which, standing alone, prevents or prevented the
miner: (i) [f]rom performing his or her usual coal mine work;
and (ii) [f]rom engaging in gainful employment in the imme-
diate area of his or her residence .…” 20 C.F.R.
§ 718.204(b)(1)(i)–(ii). To make a finding of total disability, the
ALJ may consider the opinion of a physician “exercising rea-
soned medical judgment,” as well as pulmonary function
tests and arterial blood-gas tests. Id. § 718.204(b)(2)(iv).
B
On December 17, 2016, an Illinois hospital admitted Dale
Staten for respiratory failure after he complained of shortness
of breath. His condition steadily deteriorated despite treat-
ment and resulted in diagnoses of respiratory failure,

-- 3 of 16 --

4 No. 24-1329
pneumonia, pulmonary emboli, and pulmonary fibrosis. On
December 30, Dale entered a long-term care facility where
medical staff intubated him and placed him on a ventilator in
a final effort to save his life. He passed away a few days later,
on January 4, after his family removed him from life support.
Dale’s health challenges predated his hospitalization. Fol-
lowing his retirement from CONSOL in 2000, he saw several
doctors for shortness of breath, coughing, and existing cardiac
conditions. By any measure, Dale’s medical history is long
and rather complex. Take, for example, his pulmonary func-
tion tests, which are just one metric by which a claimant may
establish total disability under the regulations. See 20 C.F.R.
§ 718.204(b)(2)(i). Dale’s 2013 test results qualified him as to-
tally disabled, but a subsequent test in 2016 did not. And
though never formally diagnosed with pneumoconiosis prior
to his hospitalization and death, one of Dale’s doctors inter-
preted a 2012 CT scan as positive for “possible pneumoconio-
sis.”
We distill this years-long history to a single point for pur-
poses of our review: the ALJ faced a voluminous medical rec-
ord to examine, which contained some changing, incon-
sistent, and uncertain results. Ultimately, however, Dale’s
various test results need not consume or detain us, because
the ALJ acted within its authority not only in choosing to
credit a well-reasoned medical opinion finding that Dale was
totally disabled at the time of his death but also in concluding
that CONSOL offered insufficient medical evidence to rebut
the presumption.

-- 4 of 16 --

No. 24-1329 5
C
Dale’s wife, Bernadette, applied for black lung benefits in
March 2017. In support of her claim, Bernadette retained Dr.
Sanjay Chavda, who opined that Dale was totally disabled
when he died because his placement and dependence on a
ventilator precluded him from engaging in any physical ac-
tivity. For its part, CONSOL provided the competing opin-
ions of Dr. James Castle and Dr. Robert Farney who both re-
lied upon Dale’s medical history predating his December 2016
hospitalization to conclude that Dale “was not disabled dur-
ing his life based on the objective testing in the record.” Both
doctors discounted the relevance of his hospitalization as re-
flecting not so much a chronic disabling condition, but instead
an “acute illness” at the time of his death.
After finding that Dale’s pulmonary function tests and ar-
terial blood-gas studies did not suffice to establish that he suf-
fered from a totally disabling pulmonary condition, the ALJ
turned to the relevant medical opinions. The ALJ relied on Dr.
Chavda’s account as part of finding that Dale “was clearly
disabled from a respiratory standpoint” during his hospitali-
zation “and unable to do any work,” and therefore totally dis-
abled at the time of his death. Applying the same reasoning,
the ALJ declined to credit the opinions of CONSOL’s experts
because they failed to address whether Dale “was disabled at
the time of his death, not at some prior point.”
Because Dale mined underground for more than 15 years
and suffered from a totally disabling pulmonary or respira-
tory impairment, the ALJ applied the 15-year presumption
that Dale’s “death was due to pneumoconiosis,” entitling Ber-
nadette to benefits. 30 U.S.C. § 921(c)(4). The burden then
shifted to CONSOL to rebut that presumption by establishing

-- 5 of 16 --

6 No. 24-1329
that Dale did not have pneumoconiosis or that his impair-
ment did not arise out of his employment in a coal mine. See
id.
CONSOL presented x-rays, CT scans, treatment records,
and medical opinions as rebuttal evidence, but the ALJ found
in the end that the company failed to carry its burden of prov-
ing that Dale did not have pneumoconiosis. See 20 C.F.R.
§ 718.202(a). Most of Dale’s scans and medical records, the
ALJ explained, were inconclusive. As for Dr. Castle and Dr.
Farney’s opinions that Dale never suffered from pneumoco-
niosis, the ALJ found the doctors well-qualified to offer their
opinions but nevertheless concluded that they overlooked
certain evidence (for example, the results of Dale’s 2012 CT
scan and pulmonary function tests), making their opinions
less credible. Because CONSOL failed to rebut the 15-year
presumption, the ALJ awarded Bernadette benefits.
CONSOL appealed to the Benefits Review Board, which
affirmed the ALJ in a 2-1 decision. The company presented
the same issue to the Board that it raises in its petition for re-
view in our court: whether a finding of total disability may be
based on evidence of a miner’s acute condition—in this case,
Dale’s hospitalization for respiratory failure leading to his
death—rather than a chronic pulmonary impairment. Two
members of the Board answered in the affirmative, explaining
that “[n]othing in the Act or regulations requires a showing
that the Miner’s total disability was chronic in order to invoke
the [15-year] presumption.” The Board nonetheless con-
cluded that the record showed that Dale suffered from a
chronic impairment, which the ALJ considered in crediting
Dr. Chavda’s opinion.

-- 6 of 16 --

No. 24-1329 7
One member of the Board dissented. Characterizing
CONSOL’s challenge as an evidentiary one, the dissent found
error in the ALJ’s reliance on medical evidence arising from
Dale’s hospitalization, which it attributed to an acute condi-
tion, without conducting an independent inquiry to ensure
the reliability of the evidence.
CONSOL then sought our review and, in doing so, renews
its legal contention that the Act and its implementing regula-
tions require an ALJ to establish total disability by reference
to a chronic pulmonary condition. So, the company argues,
the ALJ erred when it found Dale totally disabled based on
the acute illness and condition that befell him in the weeks
preceding his death. The company also continues that the
ALJ’s award of benefits lacks evidentiary support in the ad-
ministrative record.
II
Taking CONSOL’s legal challenge first, we conclude that
the Black Lung Benefits Act does not require a claimant to
prove that a miner was suffering from a chronic pulmonary
condition to invoke the 15-year presumption Congress estab-
lished in 30 U.S.C. § 921(c)(4). See Gulley v. Dir., Off. of Work-
ers' Comp. Programs, 397 F.3d 535, 538 (7th Cir. 2005) (afford-
ing no deference to an ALJ’s legal determinations and instead
conducting independent review of questions of law).
Starting, as we must, with the text of the Act, we see noth-
ing requiring a claimant to rely upon a chronic pulmonary
impairment to establish total disability. The 15-year presump-
tion requires that a miner establish the “existence of a totally
disabling respiratory or pulmonary impairment.” 30 U.S.C.
§ 921(c)(4). The Act’s implementing regulations define a

-- 7 of 16 --

8 No. 24-1329
totally disabling impairment as a condition “which, standing
alone” prevented the miner from “performing his or her usual
coal mine work” and “engaging in gainful employment in the
immediate area of his or her residence.” 20 C.F.R.
§ 718.204(b)(1)(i)–(ii). Neither the statute nor the regulations
say that the disabling impairment must be “chronic” or, for
that matter, draw any distinction between acute and chronic
medical conditions. We “resist reading words or elements
into a statute that do not appear on its face.” Bates v. United
States, 522 U.S. 23, 29 (1997).
Our conclusion finds reinforcement in how Congress
drafted other provisions of the Act. Indeed, the word
“chronic” appears in another provision of the same statutory
section setting out a series of presumptions. See Russello v.
United States, 464 U.S. 16, 23 (1983) (“[W]here Congress in-
cludes particular language in one section of a statute but
omits it in another section of the same Act, it is generally pre-
sumed that Congress acts intentionally and purposely.” (cita-
tion omitted)). In neighboring subsection (c)(3), for instance,
Congress provided miners who are “suffering or suffered
from a chronic dust disease of the lung” and can satisfy other
diagnostic requirements an irrebuttable presumption “that he
is totally disabled.” 30 U.S.C. § 921(c)(3) (emphasis added).
Yet the term “chronic” does not appear in subsection (c)(4),
which requires only that a miner have a “totally disabling pul-
monary or respiratory impairment” to benefit from the 15-
year presumption. Id. § 921(c)(4).
Consider also subsection (c)(1), which extends to miners
who are both “suffering or suffered from pneumoconiosis,”
and were “employed for ten years or more in one or more coal
mines” the benefit of a rebuttable presumption that the

-- 8 of 16 --

No. 24-1329 9
pneumoconiosis arose out of their employment. Id.
§ 921(c)(1). In plainer terms, miners seeking to benefit from a
presumption under (c)(1) must establish that they have pneu-
moconiosis—a condition everyone agrees is chronic in nature.
Again, though, subsection (c)(4), which creates the 15-year
presumption at issue here, contains no such reference to
pneumoconiosis or any other chronic condition. See id. §
921(c)(4).
This distinction comes into even sharper focus if we look
at how Congress defined pneumoconiosis and contrast that
with the conditions it established for invoking these various
presumptions. The Act defines pneumoconiosis as “a chronic
dust disease of the lung and its sequelae, including respira-
tory and pulmonary impairments, arising out of coal mine
employment.” 30 U.S.C. § 902(b); see 20 C.F.R.
§ 718.201(a)(1)–(2) (defining pneumoconiosis similarly). Be-
cause subsection (c)(4) operated to provide Bernadette the
benefit of a rebuttable presumption that Dale’s “death was
due to pneumoconiosis,” it makes little sense to hinge the
availability of the presumption in the first instance on the
miner (or his surviving spouse) proving that he suffers from
pneumonoconiosis or another chronic lung disease. To con-
clude otherwise is to presume some level of statutory circu-
larity.
Put another way, we read subsection (c)(4) as exempting
the miner from the evidentiary burden of showing he has
pneumonoconiosis and instead presuming it upon a showing
of a “totally disabling respiratory or pulmonary impairment.”
We see no reason Congress would use the language it did in
articulating the Act’s evidentiary requirements, presump-
tions, and key definitions if it intended, much more simply, to

-- 9 of 16 --

10 No. 24-1329
say that the 10- and 15-year presumptions both require an af-
firmative showing of a chronic pulmonary condition. See
Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86 (2017)
(“[D]ifferences in language … convey differences in mean-
ing.”).
What concerns us most with CONSOL’s reading is that it
would invert the 15-year presumption’s burden-shifting
framework. Whether a miner has a chronic lung condition is
relevant to the employer’s burden on rebuttal where they
must prove either that the miner does not have pneumoconi-
osis or that his pulmonary impairment did not arise out of
coal mine work. But the burden does not rest with the claim-
ant to prove chronic illness at the first step. See 30 U.S.C.
§ 921(c)(4). The Benefits Review Board has recognized this
precise point, explaining that, “[t]he cause of a miner’s totally
disabling respiratory impairment is not relevant to invocation
[of the 15-year presumption], but is to be considered on rebut-
tal.” Tanner v. Freeman United Coal Co., 10 BLR 1-85, 1987 WL
107328, at *1 (DOL Ben. Rev. Bd. July 27, 1987) (concluding
that a “claimant is not required to establish that his totally dis-
abling respiratory or pulmonary impairment is chronic”). We
agree.
Perhaps recognizing the shortfalls of its statutory position,
CONSOL redirects our focus to the Act’s regulations and, in
particular, to the use of “pneumoconiosis” and “chronic” in a
subsection defining the term “total disability.” That provision
tells us that “miners who are totally disabled due to pneumo-
coniosis” are entitled to benefits. 20 C.F.R. § 718.204(a). In as-
sessing total disability, the regulation continues, ALJs shall
not consider nonpulmonary or nonrespiratory conditions, un-
less those conditions cause “a chronic respiratory or

-- 10 of 16 --

No. 24-1329 11
pulmonary impairment.” Id. So, the company says, the regu-
lations require that a claimant prove the existence of a chronic
lung condition and prohibit the use of acute impairment to
establish disability.
The point is fair if we limit our review to subsection (a).
But CONSOL’s position falters the moment we broaden our
focus to another subsection of the same regulation. For its
part, subsection (c)(2) specifies that “proof that the miner …
suffered from a totally disabling respiratory or pulmonary
impairment … shall not, by itself, be sufficient to establish
that the miner’s impairment is or was due to pneumoconio-
sis,” except as provided by the 15-year presumption found in
§ 718.305. 20 C.F.R. § 718.204(c)(2). Put another way, subsec-
tion (c)(2) establishes that a claimant invoking the 15-year pre-
sumption shoulders no obligation to show that a miner suf-
fered from pneumoconiosis to establish entitlement to bene-
fits.
All of this matters here because CONSOL makes no claim
that the ALJ failed to comply with the limitations in subsec-
tion (a) in finding Dale totally disabled based on a nonpulmo-
nary or nonrespiratory condition. Nor could it. As the ALJ de-
scribed it, Dale received treatment for “several respiratory
conditions including pulmonary fibrosis and ground-glass
opacities, pulmonary emboli, and pneumonia” shortly before
his death.
Finally, CONSOL relies on the so-called regulatory Ap-
pendix, which sets out the qualifying criteria for pulmonary
function studies and arterial blood-gas tests—the two types
of medical evidence, apart from qualified medical opinions,
that ALJs may consider in assessing total disability. See 20
C.F.R. § 718.204(b)(2). The Appendix specifies that both types

-- 11 of 16 --

12 No. 24-1329
of medical evidence are not admissible if “performed during
or soon after an acute respiratory illness.” App. B to Part 718
(2)(i). The company views this limitation as suggesting that
ALJs may consider only chronic impairments—and not acute
conditions—when assessing total disability.
Here, too, we cannot get there. The company’s contention
overlooks the fact that the regulations permit an ALJ to find a
miner totally disabled—even in the absence of other qualified
medical evidence—based on a physician’s “reasoned medical
judgment” that a “miner’s respiratory or pulmonary condi-
tion … prevented the miner from engaging in employment.”
20 C.F.R. § 718.204(b)(2)(iv). We see no language in § 718.204,
the section of the regulation describing total disability, requir-
ing that a physician consider only the impact of a chronic con-
dition on a miner’s ability to engage in employment.
Our adopting CONSOL’s position would effectively re-
quire a claimant to prove a miner had pneumoconiosis, or
some other chronic lung disease, to benefit from the presump-
tion that a miner had or died from pneumoconiosis. This re-
quirement finds no footing in the text of the Act or its regula-
tions. Nor, to our knowledge, has any circuit adopted the in-
terpretation advanced by CONSOL, and the Benefits Review
Board has expressly held (now, on two occasions) to the con-
trary. In the end, then, the ALJ committed no legal error.
III
Separate and apart from its statutory argument, CONSOL
also challenges the broader merits of the ALJ’s decision to
award benefits. In the company’s view, the ALJ erred by cred-
iting Dr. Chavda’s opinion and not those of Dr. Castle and Dr.
Farney.

-- 12 of 16 --

No. 24-1329 13
On appeal, CONSOL faces a steep climb. We affirm an
ALJ’s findings so long as they are “rational, supported by sub-
stantial evidence and consistent with governing law.” Old Ben
Coal Co. v. Dir., Off. of Workers' Comp. Programs, 292 F.3d 533,
538 (7th Cir. 2002). The substantial evidence standard is some-
what of a misnomer, however, because “the threshold for
such evidentiary sufficiency is not high.” Biestek v. Berryhill,
587 U.S. 97, 103 (2019). Substantial evidence means “more
than a mere scintilla,” which is only “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 217
(1938). In assessing whether an ALJ’s decision has substantial
evidentiary support, we undertake a full review of the record
though “[w]e cannot reweigh the evidence or make credibility
determinations.” Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1393
(7th Cir. 1994).
The ALJ’s decision finds ample support in the administra-
tive record.
A
We find no fault with the ALJ’s reliance on Dr. Chavda’s
opinion, which CONSOL claims is replete with inconsisten-
cies, fails to adequately explain the medical evidence, and
mistakenly relies upon Dale’s hospitalization. The central
shortcoming in the company’s position, however, is that it de-
pends on our adoption of its legal contention that total disa-
bility must arise from a chronic pulmonary condition. But we
have reached the opposite conclusion. And with the legal is-
sue resolved, CONSOL does little to undermine Dr. Chavda’s
assessment that Dale was totally disabled at the time of his
death.

-- 13 of 16 --

14 No. 24-1329
Even if we determined that Dale’s hospitalization and con-
dition preceding his death were not appropriate factors to
consider in evaluating total disability, CONSOL’s challenge
to the ALJ’s assessment of the other medical evidence
amounts to little more than an invitation for us to reweigh the
evidence. The company claims that Dr. Chavda erred in cred-
iting a 2013 pulmonary function test which produced results
qualifying Dale as totally disabled, even though a later 2016
test produced a non-qualifying result, for example. But
whether the results of the 2013 or 2016 pulmonary function
tests should control is the type of contention with which we
are ill-equipped to engage. To the contrary, “weighing con-
flicting medical evidence is precisely the function of the ALJ
as fact-finder.” Poole v. Freeman United Coal Min. Co., 897 F.2d
888, 895 (7th Cir. 1990); see Blakley v. Amax Coal Co., 54 F.3d
1313, 1322 (7th Cir. 1995) (“We do not fashion ourselves as
medical experts and do not reweigh each bit of medical testi-
mony.”). For our purposes, CONSOL’s challenge fails be-
cause it does not prove any error with the “ALJ’s choice of
methodology,” which need only “be reasonable and informed
by evidence.” Safeco Ins./Liberty Mut. Sur. v. Dir., Off. of Work-
ers' Comp. Programs, 103 F.4th 1285, 1291 (7th Cir. 2024).
Here, the ALJ found Dr. Chavda’s opinion more credible
because he accounted for the entirety of the medical evi-
dence—including Dale’s hospitalization and condition prior
to his death—which is something Dr. Castle and Dr. Farney
failed to do. Even though the ALJ concluded that Dr. Castle
and Dr. Farney were similarly qualified, “[t]he ALJ may, after
considering all relevant medical evidence, disregard the med-
ical conclusions of a qualified physician when confronted
with countervailing clinical evidence,” which is exactly what
happened here. Blakley, 54 F.3d at 1321.

-- 14 of 16 --

No. 24-1329 15
CONSOL raises a range of other medically-detailed chal-
lenges to the ALJ’s ruling—so many so that we, as generalist
judges, have a hard time keeping one straight from the other.
Do not read this as a criticism but instead as our saying that
we have taken a close look at the ALJ’s opinion and, in the
end, conclude it grounds itself in substantial evidence.
B
CONSOL also takes issue with the Benefits Review
Board’s decision affirming the ALJ’s award of benefits. The
company alleges that the Board exceeded the scope of its stat-
utory authority by conducting an independent review of the
medical evidence. But as we have explained many times over,
when a black lung case comes before our court, “our principal
focus is on the reasoning of the ALJ,” not that of the Board.
Apogee Coal Co. v. Dir., Off. of Workers' Comp. Programs, 113
F.4th 751, 758 (7th Cir. 2024). And because our scope of review
is similar to that of the Board—ensuring that the ALJ’s deci-
sion is “rational, supported by substantial evidence, and in
accordance with applicable law,” Consol. Coal Co. v. v. Dir.,
Off. of Workers' Compensation Programs, 911 F.3d 824, 838 (7th
Cir. 2018)—any misstep by the Board stands to be corrected
by our subsequent review of the ALJ’s decision. See Crowe ex
rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 440 (7th Cir. 2011)
(“The [BRB] has the identical scope of review when sitting as
an appellate panel reviewing decisions of the ALJ.” (quoting
Zettler v. Dir., Off. of Workers' Comp. Programs, 886 F.2d 831,
834 (7th Cir. 1989)).
This is not to suggest that we see any infirmity, substan-
tive or procedural, in the Board’s order, however. On the con-
trary, we see no merit to the contention that the Board ex-
ceeded its scope of review, and we reach the same conclusion

-- 15 of 16 --

16 No. 24-1329
on the merits regardless: the ALJ’s award of benefits finds
support in substantial evidence.
We therefore DENY the petition for review and AFFIRM
the judgment of the Benefits Review Board.

-- 16 of 16 --