Incoal, Inc.; Old Republic Insurance Company v. Director, Office of Workers’ Compensation Programs, U.s. Department of Labor

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0268p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
INCOAL, INC.; OLD REPUBLIC INSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR; JUDY
SHEPHERD, widow of Randell Shepherd,
Respondents.
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No. 23-3706
On Petition for Review from the Benefits Review Board.
No. 22-0109 BLA.
Decided and Filed: December 16, 2024
Before: MOORE, THAPAR, and DAVIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Michael A. Pusateri, Mark E. Solomons, GREENBERG TRAURIG, LLP,
Washington, D.C., for Petitioner. Kathleen H. Kim, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Federal Respondent. Jacob Thomas Moak, MOAK &
NUNNERY, P.S.C., Prestonsburg, Kentucky, for Respondent Shepherd.
MOORE, J., delivered the opinion of the court in which DAVIS, J., concurred, and
THAPAR, J., concurred in the judgment. THAPAR, J. (pp. 29–32), delivered a separate
concurring opinion.
>

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_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This case raises familiar issues. Randell
Shepherd, a career coal miner, brought a claim for benefits under the Black Lung Benefits Act
and invoked the Act’s presumption that—because he had mined for over fifteen years and was
totally disabled by a combination of chronic obstructive pulmonary disease (“COPD”),
bronchitis, and emphysema—he was entitled to federal benefits for disability due to
pneumoconiosis, also known as coal worker’s black lung. Incoal, Inc., Shepherd’s most recent
coal-mining employer and the operator potentially liable for his benefits, challenged his
entitlement to those benefits, submitting expert reports that, according to Incoal, demonstrated
that Shepherd’s smoking history and not his mining history was the cause of his disability. An
administrative law judge (“ALJ”) found that Incoal’s expert opinions were not well reasoned or
documented, first, because they conflicted with the Act’s regulations and underlying principles
as described in the preamble to the Act’s implementing regulations and, second, because the
opinions were internally inconsistent and unreasoned. Incoal had, the ALJ held, failed to rebut
the presumption that Shepherd was entitled to coal miners’ benefits. Incoal appealed to the
Benefits Review Board (“BRB” or “Board”), which affirmed the ALJ’s decision.
Incoal now petitions this court for review, arguing that the ALJ improperly credited the
Act’s regulatory preamble over Incoal’s allegedly “universal proof” against entitlement and that
the ALJ converted the Act’s rebuttable presumption into a de facto irrebuttable presumption in
violation of the Constitution and Administrative Procedure Act (“APA”).
None of Incoal’s arguments are novel; we have repeatedly held that an ALJ may, in its
capacity as the trier of fact, determine an expert’s credibility with reference to scientific
principles that, as part of the deliberative rulemaking process, the Department of Labor (“the
Department” or “DOL”) thoroughly examined through the regulatory process and endorsed in
the preamble. The ALJ in this case did nothing different. It is also a matter of settled law,
pursuant to Supreme Court precedent, that the Act’s rebuttable presumption is constitutional

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because it is based on a rational relationship between the length of a miner’s career and their risk
for pneumoconiosis. For these reasons, and because Incoal here attempts to rehash scientific
disputes the coal industry lost long ago, we conclude that the ALJ’s decision applied the correct
legal principles and was supported by substantial evidence. We therefore DENY review.
I. BACKGROUND
A. Legal Background—The Black Lung Benefits Act & Regulations
1. Benefits Entitlement
The Black Lung Benefits Act (“BLBA”), which is administered by the Department’s
Office of Workers’ Compensation Programs (“OWCP”), was enacted by Congress in 1969. 30
U.S.C. §§ 901, 903(a), 921; 20 C.F.R. §§ 718.1, 718.101. It provides benefits to coal miners (or,
if deceased, their beneficiaries) who are totally disabled because of coal-dust exposure and
resulting pneumoconiosis, sometimes called “black lung.” See 30 U.S.C. § 901(a). A claimant
is entitled to benefits under the BLBA if they are “(1) a coal miner [or qualified beneficiary of
one] (2) who suffers from pneumoconiosis (3) arising out of his coal mine employment and (4)
causing (5) his total disability.” Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1069 (6th Cir.
2013); 20 C.F.R. § 725.202(d).
The BLBA regulations recognize two types of qualifying pneumoconiosis, only one of
which is relevant here:1 “‘[L]egal pneumoconiosis’ includes any chronic lung disease or
impairment and its sequelae arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2).
The regulations explicitly provide that “[t]his definition includes, but is not limited to, any
chronic restrictive or obstructive pulmonary disease arising out of coal mine employment.” Id.
They further specify that “a disease ‘arising out of coal mine employment’ includes any chronic
pulmonary disease or respiratory or pulmonary impairment significantly related to, or
substantially aggravated by, dust exposure in coal mine employment.” Id. § 718.201(b). Lastly,
1The parties agree that Shepherd did not have “clinical pneumoconiosis,” defined as “those diseases
recognized by the medical community as pneumoconioses.” See 20 C.F.R. § 718.201(a)(1).

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the regulations “recognize[]” pneumoconiosis “as a latent and progressive disease which may
first become detectable only after the cessation of coal mine dust exposure.” Id. § 718.201(c).
2. The Fifteen-Year Presumption
In 2010, Congress reinstated what has become known as the “fifteen-year presumption”
which provides that “if a miner was employed for fifteen years or more in one or more
underground coal mines” or in “substantially similar . . . conditions” in surface mines, and
“demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then
there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis,
that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled
by pneumoconiosis.” 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)(1). We have described the
operation of the presumption thus:
[A]fter a showing that the miner (1) was employed for at least fifteen years in
underground coal mines and (2) is totally disabled due to a respiratory or
pulmonary impairment, then the rest of the elements outlined in 20 C.F.R.
§ 725.202(d) are presumed and the burden shifts to the employer to rebut them.
Proof sufficient to invoke the presumption proves the first element—that the
individual is a coal miner—and the fifth element—that the individual is totally
disabled. The other three elements—that the individual suffers from
pneumoconiosis arising out of his coal mine employment and causing this
disability—are presumed.
Ogle, 737 F.3d at 1069.
In order to rebut the presumption, the party opposing benefits (here, the employer) must
present evidence that, if credited by the trier of fact, establishes “that (A) such miner does not, or
did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise
out of, or in connection with, employment in a coal mine.” 30 U.S.C. § 921(c)(4). To carry its
burden, the employer’s evidence must be sufficient to “‘rule[ ]out’ coal mine employment as a
cause of the disability.” Ogle, 737 F.3d at 1071. Only “[i]f an employer is able to prove that
pneumoconiosis played no part in causing a miner’s disability, [will] the employer . . . satisf[y]
the requirements” for rebuttal. Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1120 (6th Cir.
1984); accord Ogle, 737 F.3d at 1071.

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We have noted that, because “legal pneumoconiosis is defined as ‘any chronic lung
disease or impairment and its sequelae arising out of coal mine employment,’” and, in turn,
because “‘a disease arising out of coal mine employment’ includes any chronic pulmonary
disease or respiratory or pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment,” the two methods for rebutting the
fifteen-year presumption under 30 U.S.C. § 921(c)(4)—(A) disproving pneumoconiosis and
(B) disproving causation—“are closely related.” Island Creek Ky. Mining v. Ramage, 737 F.3d
1050, 1062 (6th Cir. 2013) (quoting 20 C.F.R. § 718.201(a)(2), (b)). We analyze them together.
See id.
3. The Preamble
In the years before the Department’s 2000 update to the regulations implementing the
BLBA, medical authorities and regulators, faced with a broad constellation of respiratory
symptoms in miners, struggled to define the outer bounds of the disease known as
pneumoconiosis: “Was illness from inhalation of coal mine dusts confined to one form of
[clinical] pneumoconiosis—a scarring of lung tissue that can be detected by ‘radiological
opacities’? Or could dust-induced respiratory disease include chronic bronchitis and
emphysema, conditions causing lung impairment by obstructing the airways but often not
detected on x-rays?” See Brian C. Murchison, Due Process, Black Lung, and the Shaping of
Administrative Justice, 54 Admin. L. Rev. 1025, 1049 (2002) (hereinafter “Murchison, Due
Process”). Despite the fact that federal regulations already recognized pneumoconiosis as
including “chronic dust disease of the lung and its sequelae . . . arising out of coal mine
employment . . . includ[ing] any chronic pulmonary disease . . . significantly related to, or
substantially aggravated by, dust exposure in coal mine employment,” Warth v. S. Oh. Coal Co.,
60 F.3d 173, 175 (4th Cir. 1995) (quoting 20 C.F.R. § 718.201), the definitional debate came to a
head in the 1990s as some experts contended that “obstructive lung disorders could not be caused
by inhalation of coal mine dusts,” Murchison, Due Process at 1049 (emphasis added) (citing
Warth, 60 F.3d at 174).
Importantly, “obstructive” lung conditions make it difficult for patients to exhale, Wilgar
Land Co. v. Dir., OWCP, 85 F.4th 828, 839 (6th Cir. 2023), whereas “restrictive” lung

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conditions make it difficult for patients to inhale, Restrictive Lung Disease, Johns Hopkins Med.,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/restrictive-lung-disease (last
visited Sept. 9, 2016) (hereinafter “Restrictive Lung Disease, Johns Hopkins Med.”). Clinical
pneumoconiosis is “typified by lung scarring causing restrictive impairment,” which some
experts argued should preclude benefits for miners with chronic obstructive diseases.
Murchison, Due Process at 1050.
This definitional debate played out in the courts to mixed results. Compare Warth, 60
F.3d at 175 (holding that obstructive lung disorders can constitute pneumoconiosis when
“significantly related to, or substantially aggravated by, dust exposure in coal mine employment”
(quoting 20 C.F.R. § 718.201)), with Stiltner v. Island Creek Coal Co., 86 F.3d 337, 340–41, 343
(4th Cir. 1996) (refusing to disturb decision denying benefits when miner’s obstructive lung
disease was not accompanied by restrictive impairment).
Operators, claimants, and the government also debated whether pneumoconiosis
(restrictive or obstructive) could develop or worsen after a miner’s coal-dust exposure ceased, a
consequential question for claimant-miners who were not ill when they left the industry, but
subsequently sickened. The Department took the position that pneumoconiosis could progress
over time while the industry staked out the opposite stance. Murchison, Due Process at 1053–
54. Again, tribunals came to varying conclusions. Compare Old Ben Coal Co. v. Scott, 144 F.3d
1045, 1048 (7th Cir. 1998) (declining to disturb benefits award crediting later-in-time x-rays and
holding that the Department’s view “that pneumoconiosis is progressive” could “be upset only
by medical evidence of the kind that would invalidate a regulation,” which the coal company had
not adduced), with Taylor v. E. Associated Coal Co., 99-0388 BLA at *2 n.8 (Ben. Rev. Bd.
Sept. 27, 2000) (affirming denial of benefits because employer’s experts’ “belief that simple
pneumoconiosis does not generally progress once coal dust exposure ceases is not tantamount to
an opinion that pneumoconiosis is not a progressive disease” and thereby was not hostile to the
BLBA (emphasis added)).
By 2000, “uncertain signals on crucial issues surrounding the nature of pneumoconiosis
severely undermined the claims process [and] prompt[ed] in part the Department’s effort to
clarify matters through rulemaking.” Murchison, Due Process at 1058. Indeed, we have

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observed that the Department of Labor undertook its 2000 regulatory reform through notice and
comment rulemaking in order, among other things, “to resolve the scientific question of whether
coal mine dust exposure can cause obstructive respiratory impairments” in addition to restrictive
ones. Little David Coal Co. v. Dir., OWCP, 532 F. App’x 633, 635 (6th Cir. 2012).
After extensive study and engagement with various viewpoints, the Department answered
this question in the affirmative, recognizing that obstructive diseases could constitute “legal
pneumoconiosis”—a broader category than “clinical pneumoconiosis”—consistent with “the
prevailing view of the medical community and the substantial weight of the medical and
scientific literature . . . that exposure to coal mine dust may cause chronic obstructive pulmonary
disease.” 65 Fed. Reg. 79,923 (Dec. 20, 2000). The updated regulations also explicitly codified
the fact that “[f]or the purposes of this definition, ‘pneumoconiosis’ is recognized as a latent and
progressive disease which may first become detectable only after the cessation of coal mine dust
exposure.” 20 C.F.R. § 718.201(c).
Accompanying these regulations was a preamble “present[ing] a detailed account of the
medical and scientific literature supporting the DOL’s conclusion that exposure to coal mine dust
can cause such ailments.” Little David Coal, 532 F. App’x at 635. The preamble reflects the
reality that coal operators aggressively litigated (and the Department considered) the obstruction
and latency issues in various forums before, during, and after the 2000 regulatory update. The
preamble summarizes these debates, describing how coal operators lodged strenuous objections
to the recognition of coal-related obstructive lung disease and how they presented, among other
evidence, studies purporting to show that there was no evidence of a “clinically significant
reduction in the FEV1 [measure of lung obstruction] as a result of chronic obstructive lung
disease due to coal mine dust inhalation.” 65 Fed. Reg. at 79,938. As detailed in the preamble,
the Department carefully reviewed medical evidence in the record, including evidence submitted
by commenters and found that “the prevailing view of the medical community [and] the
substantial weight of the medical and scientific literature” supported its explicit recognition of
coal-linked obstructive conditions as pneumoconiosis because “there is overwhelming scientific
and medical evidence demonstrating that coal mine dust exposure can cause obstructive lung

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disease” and demonstrating that coal-linked obstructive conditions can be clinically significant.
Id. at 79,938–44.2
So too does the preamble evidence commenters’ objections to the “latency” principle,
that coal-linked disease could lie undetectable for an extended period of time and progress over
years. Commenters presented evidence purporting to demonstrate that “the medical literature
provide[d] no evidence that coal workers’ pneumoconiosis or silicosis in coalminers is a latent
disease [and that] [t]here [was] also no evidence to show that the development of pulmonary
impairment is latent.” Id. at 79,969 (quoting Rulemaking Record, Exhibit, 89–37, Appendix C at
29). But, the Department “reviewed all of the medical literature referenced in the record, and
d[id] not agree that it lack[ed] support for the proposition that pneumoconiosis is a latent,
progressive disease,” particularly in light of the fact that “Congress provided an exceptionally
broad definition of the term ‘pneumoconiosis.’” Id. at 79,969–70. In the preamble, the
Department systematically examined the evidence commenters had presented against the latency
principle and explained its reasons for arriving at the contrary conclusion, finding problems with
scientific evidence submitted by latency-opposed commenters and relying on additional medical
evidence. Id. at 79,969–72. Ultimately, the preamble reflected that, “[c]ontrary to the
commenters’ argument . . . the record d[id] contain abundant evidence demonstrating that
pneumoconiosis is a latent, progressive disease.” Id. at 79,971.
The preamble quickly became significant to the adjudication of black-lung claims
because it represented the agency’s considered analysis and assessment of the then-existing
science regarding the etiology and development of coal-linked lung diseases. It remains a
common reference for ALJs presiding over benefits disputes. Perhaps for this reason, the 2000
regulatory updates and preamble were instantly the subject of attacks by the coal industry,
including on the premise that the preamble would lead or even bind ALJs impermissibly to
2The agency explicitly relied on “the best science currently available to the Department while [also]
leaving with the miner the burden of persuading the factfinder that he has a lung disease falling within th[e]
definition,” 65 Fed. Reg. at 79,944; this “emphasized that [the Department’s] purpose was not to declare that all
obstructive lung disease claimed in a black lung case was automatically classifiable as pneumoconiosis—only that
the regulations would now reflect what courts had long recognized: that a coal miner may satisfy his burden of
proving pneumoconiosis by establishing that he has obstructive lung disease induced [or substantially aggravated]
by the inhalation of coal mine dust.” Murchison, Due Process at 1097.

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discard medical evidence inconsistent with it; these challenges were unsuccessful. See Nat’l
Mining Ass’n v. Dep’t of Lab., 292 F.3d 849, 863 (D.C. Cir. 2002) (rejecting as “meritless” the
argument that “the preamble to the regulations impermissibly suggests that an adjudicator may
ignore a medical report if the reporting doctor concludes that a miner’s obstructive lung disease
was caused by smoking, rather than mining.”); A&E Coal Co. v. Adams, 694 F.3d 798, 801 (6th
Cir. 2012) (“There is nothing in the preamble here to suggest that it is binding” so as to require
notice and comment rulemaking).
Instead, we have held that the preamble “merely explains why the regulations were
amended [and] does not expand their reach.” Adams, 694 F.3d at 802. Most importantly for the
instant case, we have held that ALJs are “entitled” to “look at the preamble to assess [expert
witnesses’] credibility.” Id. at 802 (citation omitted); see also Wilgar Land, 85 F.4th at 837–39.
“The preamble is an instructive resource that explains the DOL’s evaluation of conflicting
medical and scientific literature on the same complex issues with which . . . ALJ[s] . . . [are]
confronted.” Arch on the Green, Inc. v. Groves, 761 F.3d 594, 601 (6th Cir. 2014) (quoting
Little David Coal, 532 F. App’x at 636). Importantly, “[d]eterminations of whether a physician’s
report is sufficiently documented and reasoned is a credibility matter left to the trier of fact[,]”
the ALJ. Tenn. Consol. Coal Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989) (quoting Moseley v.
Peabody Coal Co., 769 F.2d 357, 360 (6th Cir. 1985)). And by “consult[ing] a part of the
preamble that contains a discussion of medical literature on black lung disease,” an ALJ “in
effect us[es] the preamble to test whether the theories of [experts] . . . [are] consistent with
medical literature.” Groves, 761 F.3d at 601. We have held that it is “reasonable for [an] ALJ to
give greater weight to the testimony of the medical expert whose opinion was supported by the
prevailing view of the medical and scientific community as reflected in the regulatory preamble.”
Little David Coal, 532 F. App’x at 636.
Though coal operators have long argued that ALJs improperly rely on the preamble in
discrediting employer experts, we have repeatedly (if not universally) declined to review or
displace ALJs’ decisions to credit or discredit expert witnesses based on inconsistency between
the expert opinion and the scientific analysis adopted by the regulations and explained by the
preamble. See, e.g., id.; Ogle, 737 F.3d at 1073–74; Adams, 694 F.3d at 801–02; Cent. Oh. Coal

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Co. v. Dir., OWCP, 762 F.3d 483, 491–92 (6th Cir. 2014); Kentucky Prince Mining Co. v. Dir.,
OWCP, 800 F. App’x 410, 413 (6th Cir. 2020); Robert Coal Co. v. Dir., OWCP, 753 F. App’x
350, 358–59 (6th Cir. 2018); Quarto Mining Co. v. Dir., OWCP, 657 F. App’x 428, 436–37 (6th
Cir. 2016); Little David Coal, 532 F. App’x at 635–36; Peabody Coal Co. v. Belt, 486 F. App’x
593, 594 (6th Cir. 2012).
B. Factual and Procedural Background
Under today’s claims-administration system, OWCP processes claims through its district
directors’ offices, which make initial determinations concerning whether a coal miner is entitled
to benefits under the BLBA and which employer is responsible for paying those benefits. 20
C.F.R. §§ 725.350–51, 725.418. A party disagreeing with the district director’s determination
may obtain a de novo hearing before an ALJ, whose decision may be challenged by dissatisfied
or aggrieved parties before the BRB and, later, the Court of Appeals for the Circuit where the
claimant’s injury occurred. Id. §§ 725.421, 725.481–82.
Claimant Randell Shepherd filed the claim that is the subject of this appeal in January
2014. Dir. Ex. 5 (2014 Claim).3 On November 20, 2014, the district director issued a proposed
decision and order denying benefits. Dir. Ex. 57 (Proposed Decision and Order at 1–3).
Shepherd requested a hearing in front of an ALJ on December 5, 2014. Dir. Ex. 58 (Request for
Hearing). On April 25, 2018, an ALJ issued a Decision and Order awarding benefits to
Shepherd, Pet. Appendix (“App.”) at 1–36, but, for reasons not at issue here, the BRB vacated
the award and remanded the case for reassignment on February 25, 2019, id. at 74–79.
On remand before a new ALJ, and as relevant here, Shepherd argued that he was entitled
to benefits because evidence showed that he had mined for fifteen years and had a totally
disabling respiratory or pulmonary impairment, invoking the BLBA’s rebuttable presumption
that his total disability was due to pneumoconiosis and that he was thereby entitled to benefits.
Id. at 187–89. Shepherd relied on record evidence that he had worked in a coal mine for more
3Shepherd died on July 12, 2021, Dir. Ex. 23 (Death Cert.), making his widow, Judy Shepherd,
automatically eligible for survivor’s benefits under the ALJ’s December 2, 2021 order granting benefits. App. at
270. On February 20, 2024, Mrs. Shepherd (through counsel) filed a motion to be substituted as the claimant in this
court, D. 20, which we granted on April 5, 2024, D. 23.

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than 18 years and was exposed to significant concentrations of coal dust. Id. at 188. He also
cited pulmonary function studies and reasoned medical opinions, which, he argued, established
his totally disabling respiratory impairment. Id. Shepherd argued that Incoal could not rebut the
fifteen-year presumption because it could not show the absence of clinical or legal
pneumoconiosis or show that no part of his disability was caused by pneumoconiosis. Id. at
188–89. Shepherd cited an initial expert report by Dr. Mettu that acknowledged Shepherd’s
smoking history but nonetheless linked his condition to past coal-mine employment. Id. at 190.
Such evidence, Shepherd argued, precluded a finding that no part of his disability was caused by
coal-dust exposure, and prevented Incoal from carrying its burden to rebut the presumption. Id.
at 190–91.
Incoal responded that, with or without the fifteen-year presumption, the evidence failed to
support Shepherd’s entitlement to benefits. Id. at 212. Relying on expert reports, Incoal argued
that Shepherd’s lung-function tests indicated an obstructive respiratory condition not attributable
to coal dust, as did the timeline on which he sickened, and the type of emphysema from which he
suffered. Id. at 215–16. “Irrespective of where the burden [of proof] l[ay],” Incoal argued that
what it characterized as “universal proof, explaining that no part of any disability was due to coal
dust,” could not be ignored. Id. at 217. Acknowledging that case law allowed ALJs to “consult
the preamble when deciding a case,” Incoal argued that “the preamble may [not] be relied on to
resolve conflicts in the medical evidence on questions of causation where the fifteen-year
presumption is invoked,” or “become a vehicle for an adjudicator to substitute his medical
judgment for that of the experts.” Id. at 218. Incoal asserted that “[t]he preamble . . . may not
carry [Shepherd’s] evidentiary burden,” despite the burden-shifting effect of the fifteen-year
presumption. Id. at 219.
On December 2, 2021, the ALJ issued a decision and order awarding benefits, finding
that none of the expert opinions on which Incoal relied to contest entitlement—those of Drs.
Rosenberg, Tuteur, and Mettu4—were well-documented or well-reasoned, because in some
4In the petition for review before us, Incoal does not articulate why it believes the ALJ was incorrect to
discredit Dr. Mettu’s later opinion and we therefore decline to displace the ALJ’s decision on that point.

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places their opinions conflicted with the regulations and preamble, and in others they were
internally inconsistent or unreasoned. Id. at 225, 253–56.
Incoal petitioned the BRB for review of the ALJ’s decision, id. at 276, accusing the ALJ
of “wielding the [preamble] as a subterfuge to avoid having to assess what the experts (and the
literature that informed their conclusions) did and did not say,” id. at 278. According to Incoal,
the ALJ had impermissibly “discredit[ed] all three board-certified pulmonologists’ opinions that
found, universally, that Shepherd had no legal pneumoconiosis and that coal dust played no part
in his respiratory impairment.” Id. at 280–81. Lastly, on appeal to the BRB, Incoal argued that
“the ALJ’s holding on this record proves the rebuttable presumption is irrebuttable, violating the
Act, the APA, and due process and demonstrating the preamble’s status as an illegal rule.” Id. at
310 (capitalization omitted).
Shepherd replied that the ALJ’s decision was supported by substantial evidence in the
record that Shepherd had legal pneumoconiosis and that his condition could be attributed to coal
dust exposure. Id. at 340. Further, Shepherd argued, Incoal had failed to show he did not have
legal pneumoconiosis or that no part of his disability was caused by pneumoconiosis. Id. at 340–
41. Lastly, Shepherd asserted that, to the extent Incoal attacked the lawfulness of the preamble,
that argument was unsupported. Id. at 341.
On June 29, 2023, the BRB affirmed the ALJ’s decision, holding that the ALJ
permissibly weighed the evidence and discredited the expert opinions in light of the scientific
findings endorsed as credible by the Department in the preamble. Id. at 360–64. Incoal and its
insurer (together “Incoal”) petitioned this court for review, which Shepherd and the Department
opposed. D. 1, 16, 25, 26. Petitioners argue that “reversal . . . is required” “[i]n light of the
uncontroverted evidence rebutting any presumption of entitlement.” Pet. Br. at 16.5
5Incoal asserts that here “the proof agrees, universally, with [its] case” that Shepherd did not have
pneumoconiosis. Pet. Br. at 16. But a review of the record reveals evidence that, if credited, could support the
opposite conclusion: Shepherd had qualifying lung-function values on at least one test, App. at 236 (citing Dir. Ex.
24 (Rosenberg 2014 Rep. at 18)), and the Department’s expert Dr. Mettu concluded in his initial evaluation that
Shepherd did have pneumoconiosis, Dir. Ex. 19 (Mettu Feb. 2014 Rep. at 31).

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II. ANALYSIS
A. Standard of Review
We review de novo the BRB’s legal conclusions. Ramage, 737 F.3d at 1056. “While we
must affirm the Board’s decision unless the Board has committed legal error or exceeded its
scope of review, our review actually focuses on whether the ALJ’s decision is supported by
substantial evidence.” Id. We deny review where the ALJ “applied the governing law correctly
to reach a conclusion supported by substantial evidence.” Id. “An ALJ’s decision is supported
by substantial evidence if ‘such relevant evidence as a reasonable mind might accept as
adequate’ supports the conclusion.” Island Creek Coal Co. v. Maynard, 87 F.4th 802, 809 (6th
Cir. 2023) (quoting Ogle, 737 F.3d at 1068–69). “We do not reweigh the evidence or substitute
our judgment for that of the ALJ.” Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602, 606 (6th Cir.
2001). “[W]e may affirm an ALJ’s decision even though ‘we would have taken a different view
of the evidence were we the trier of facts.’” Ogle, 737 F.3d at 1069 (quoting Ramey v. Kentland
Elkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985)). “[A] reviewing court may not set aside
an inference because it finds another more reasonable.” Moseley, 769 F.2d at 360.
In particular, “[t]he law requires the [ALJ as] trier of fact to determine whether the
medical evidence before him is sufficiently documented and reasoned, and to weigh the evidence
accordingly.” Grayson Coal & Stone Co. v. Teague, 688 F. App’x 331, 336 (6th Cir. 2017). The
ALJ’s “determination[] to credit or discredit . . . medical opinions based on whether they are
sufficiently documented and reasoned is a credibility matter that we must leave to the ALJ.”
Ogle, 737 F.3d at 1073. “If the ALJ has adequately explained why he weighed the evidence as
he did, then he has satisfied the substantial evidence standard.” Id. at 1069. “A remand or
reversal is only appropriate when the ALJ fails to consider all of the evidence under the proper
legal standard or there is insufficient evidence to support the ALJ’s finding.” Id. (quoting
McCain v. Dir., OWCP, 58 F. App’x 184, 201 (6th Cir. 2003)).

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B. Incoal’s Arguments
1. Latency
Incoal’s first argument relates to a finding by its expert, Dr. Rosenberg, that Shepherd’s
bronchitis, having worsened since he left the mines, could not be attributed to pneumoconiosis.
Dr. Rosenberg opined that, because “chronic bronchitis dissipates within months of the time that
inhalation factors causing its presence cease to occur,” “remote [coal] exposures are not
aggravating factors for current bronchitic symptoms [and] specific to Mr. Shepherd, mine dust
exposures ending in the 1980s are not causing aggravation of bronchitis in 2014.” Dir. Ex. 24
(Rosenberg 2014 Rep. at 11).
The ALJ found that Dr. Rosenberg’s opinion was “contrary to the premise underlying the
regulations that . . . pneumoconiosis is a latent and progressive disease which may first become
detectable only after the cessation of coal mine dust exposure.” App. at 255. Incoal accuses the
ALJ of using the preamble to “create a presumption that all or even most obstructive disease is
caused by exposure to coal dust.” Pet. Br. at 18 (quoting Nat’l Mining Ass’n, 292 F.3d at 862–
63).
That argument is misplaced for two reasons: First, the premise that pneumoconiosis may
be latent and progressive does not just underlie the regulations; it is in the regulations. 20 C.F.R.
§ 718.201(c) (“For purposes of this definition, ‘pneumoconiosis’ is recognized as a latent and
progressive disease which may first become detectable only after the cessation of coal mine dust
exposure.”). Accordingly, the ALJ’s “conclusion had nothing to do with the preamble” because
“the Department placed the ‘latency’ principle in the regulation itself [and so] [t]he judge did
have a duty to follow that regulation.” Wilgar Land, 85 F.4th at 841.6 It was thus perfectly
appropriate for the ALJ to “discredit a medical opinion that fails to account for this latency
possibility.” Id.; see also Sunny Ridge Mining Co. v. Keathley, 773 F.3d 734, 738 (6th Cir.
2014) (finding no error where the ALJ discredited doctor who “ruled out coal dust exposure as a
cause” of the claimant’s chronic bronchitis on the grounds that “the bronchitis associated with
6We note that Incoal’s counsel also represented the coal operator in Wilgar Land and so is aware of this
holding. Wilgar Land, 854 F.4th at 833.

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coal dust exposure usually ceases with cessation of exposure” because that statement was
“inconsistent with 20 C.F.R. § 718.201(c)” (quoting expert)).
Second, Incoal’s argument that the ALJ’s purported reliance on the preamble “create[d] a
presumption that all or even most obstructive disease is caused by exposure to coal dust,” Pet.
Br. at 18 (quoting Nat’l Mining Ass’n, 292 F.3d at 862–63), is wrong as a matter of settled law.
In National Mining, which Incoal quotes in support of its own position, the D.C. Circuit held that
the regulations did not create “an irrebuttable presumption that the miners’ pneumoconiosis is
progressive,” and instead “simply prevent[ed] operators from claiming that pneumoconiosis is
never latent and progressive.” 292 F.3d at 863–64 (emphasis in original);7 see also Dixie Fuel
Co. v. Dir., OWCP, 820 F.3d 833, 844–45 (6th Cir. 2016) (holding that the ALJ did not
“wrongly presume[] that pneumoconiosis is always latent and progressive” when the ALJ found
the expert’s opinion—that “coal dust exposure ‘should not’ account for the changes in [miner’s]
pulmonary functions, since [miner] left mining work [20 years earlier]”—“should be accorded
little weight”). In fact, the preamble expressly disavows such a presumption: “Although one
commenter asserts that the regulation creates an irrebuttable presumption that each miner’s
condition is progressive, it actually does no such thing” because “[t]he revised regulation
continues to afford coal mine operators an opportunity to introduce contrary evidence weighing
against entitlement.” 65 Fed. Reg. at 79,972.
Additionally, Incoal’s assertion that the ALJ assumed pneumoconiosis is always latent
and progressive is unconvincing in light of the fact that, once Shepherd properly invoked the
fifteen-year presumption (which Incoal does not challenge here), Incoal bore the burden of proof.
See 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)(1). The ALJ did not decide that chronic
bronchitis in coal miners like Shepherd was always related to coal mining, but instead he held
that Incoal had failed to show that Shepherd’s bronchitis was not caused or aggravated by his
work in the mines. See Maynard, 87 F.4th at 815 (holding the ALJ did not err in finding expert
“did not provide any convincing rationale to rebut the presumption” where expert opined that
7The D.C. Circuit held in National Mining that “[t]he medical literature makes it clear that pneumoconiosis
may be latent and progressive, and appellants do not dispute this point.” 292 F.3d at 863. Incoal fails to dispute the
underlying science here as well.

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“any chronic bronchitis from occupational exposure occurs at the time of exposure, but then
‘almost always’ disappears within months after exposure ceases” (quoting ALJ)); Consol of Ky.,
Inc. v. Eskut, 734 F. App’x 964, 969 (6th Cir. 2018) (determining the ALJ did not err in finding
employer failed to rebut the fifteen-year presumption with expert’s “view [that] chronic
bronchitis due to coal mine dust exposure would be expected to impair function during active
exposure, and improve after such exposure ceased” (quoting ALJ)).
Like many ALJs before him, the ALJ here found Dr. Rosenberg’s opinion insufficiently
persuasive to rebut the fifteen-year presumption given the Department’s well-supported position
that a persistent pulmonary condition like chronic bronchitis is not inconsistent with legal
pneumoconiosis. The coal industry has contested this finding again and again, including by
ample participation in the deliberative process through which the current regulations were
promulgated. See supra Section I(a)(3). It failed to prove its case then just as it failed to prove
its case before the ALJ and before us.
Incoal tries to save its challenge by asserting that “Dr. Rosenberg ‘agree[d] that
[pneumoconiosis] can be latent and progressive.’ Thus, he ‘did not dispute that the disease can
develop later, . . . [and] ‘asserted only that this type of delayed onset is rare, and that nothing in
[Shepherd’s] case suggested it was a rare one.’” Pet. Br. at 17–18 (quoting Wilgar Land, 85
F.4th at 843). This objection appears calculated to show that Dr. Rosenberg’s opinion was not in
fact in conflict with the regulations; however, “[a]s a whole, Dr. Rosenberg’s testimony suggests
that he objects to the Department of Labor’s view. . . . [W]hile he admits that the Department of
Labor’s view is sometimes true, he mainly disagrees.” Kentucky Prince, 800 F. App’x at 414.
“So the ALJ did not read Dr. Rosenberg’s8 statements disagreeing with the Department of Labor
out of context. Rather, the ALJ read Dr. Rosenberg’s statement agreeing with the Department of
Labor in context.” Id. (emphasis in original). And regardless of whether the position that
pneumoconiosis is not usually latent and progressive does in fact conflict with the regulations, it
would still be Incoal’s burden to persuade the ALJ that the post-mining development of
8In Kentucky Prince and elsewhere we have considered opinions by the same Dr. Rosenberg whose opinion
is at issue here; he is a frequent expert witness for coal operators.

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Shepherd’s bronchitis disproved a connection to his coal mining history. See Gibas, 748 F.2d at
1120.
The ALJ was entitled to weigh Dr. Rosenberg’s opinion against the preamble and—
informed by the fact that Dr. Rosenberg’s main conclusion on the latency issue conflicted with
the regulations themselves—to find Dr. Rosenberg’s opinion insufficiently persuasive to carry
Incoal’s burden. See Groves, 761 F.3d at 601; Little David Coal, 532 F. App’x at 636.
2. FEV1/FVC
Incoal next argues that the ALJ impermissibly relied on the preamble to discredit Dr.
Rosenberg on an issue about which the preamble was “wholly silent”—Dr. Rosenberg’s
contention that Shepherd’s reduced FEV1/FVC ratio showed his COPD was attributable to
smoking and not coal dust exposure. Pet. Br. at 21 (quoting Consol. Coal Co. v. Shipley, No. 19-
1738, 2022 WL 402432, at *9 (4th Cir. Feb. 9, 2022) (Quattlebaum, J., dissenting)).
“FEV1 is ‘forced expiratory volume in one second.’9 FVC is ‘forced vital capacity.’
Both are pulmonary-function tests that measure the volume of air that can be blown out of the
lungs after taking a full breath: FVC tests total volume, and FEV1 tests how much air is emitted
in one second.” Cent. Oh. Coal Co., 762 F.3d at 491 n.3. “The lower the ‘FEV1/FVC ratio’ (that
is, the longer it takes a person to exhale the total amount of air that the person can inhale), the
more likely the person has an obstructive condition that makes it difficult to exhale,” Wilgar
Land, 85 F.4th at 839 (emphasis in original), whereas a person with a restrictive lung condition
may have difficulty fully expanding their lungs when inhaling which would not cause a similar
reduction in the ratio, Restrictive Lung Disease, Johns Hopkins Med.
Dr. Rosenberg opined that, given “Mr. Shepherd’s marked reduction of the FEV1 in
relationship to FVC, [Rosenberg’s] findings [were] inconsistent with the presence of legal
[pneumoconiosis]. Rather, they [were] classic for smoking-related airflow obstruction.” Emp.
Ex. 2 (Rosenberg 2020 Rep. at 9). He noted that “studies show that coal dust reduces FEV1 and
9In legal and scientific materials, the numeral “1,” which denotes the number of seconds for which an FEV
value was measured, is often (but sometimes inconsistently) depicted using subscript. We follow that convention
here.

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FVC in equal measure,” resulting in a stable ratio, while “cigarette smoking drives the FEV1
down much farther than FVC,” causing a reduction in ratio. Id. at 5. But, we have held that
“[a]ny broad-based argument that coal dust never lowers the FEV1/FVC ratio is simply the
scientific way of arguing that coal dust never causes obstructive diseases,” which is in direct
conflict with the regulations themselves. Wilgar Land, 85 F.4th at 840. That is exactly the
argument that coal companies have made since before the preamble was ever written, that the
Department considered and rejected in its 2000 regulatory update, and that Incoal nonetheless
attempts to make here, however indirectly.
Incoal argues that the ALJ erred in discrediting Dr. Rosenberg’s opinion on this point
because, it asserts, the preamble and regulations have nothing to say about the “significance of a
reduced FEV1/FVC ratio ‘in distinguishing the effects of coal dust and tobacco,’” and instead
“merely ‘discuss[] the general idea that chronic obstructive pulmonary diseases can be detected
by decreases in either the FEV1 or the FEV1/FVC ratio.’” Pet. Br. at 21 (quoting Shipley, 2022
WL 402432, at *9 (Quattlebaum, J., dissenting)). The ALJ did remark that “it would not make
sense for the regulations to allow a claimant to establish total disability due to pneumoconiosis
by showing a reduced FEV1 or FEV1/FVC ratio were Dr. Rosenberg correct.” App. at 254. But
the preamble’s discussion of the FEV1/FVC ratio goes beyond mere detection and expresses the
Department’s position that coal dust exposure has been shown to cause reduced lung function
and obstructive pulmonary diseases, which manifest with a reduced FEV1/FVC ratio. 65 Fed.
Reg. at 79,943 (“In addition to the risk of simple” and more prototypical clinical pneumoconiosis
and progressive massive fibrosis, “epidemiological studies have shown that coal miners have an
increased risk of developing COPD. COPD may be detected from decrements in certain
measures of lung function, especially FEV1 and the ratio of FEV1/FVC. [Such] decrements in
lung function associated with exposure to coal mine dust are severe enough to be disabling in
some miners, whether or not [clinical] pneumoconiosis is also present.” (quoting Criteria,
4.2.3.2, Rulemaking Record, Exhibit 2-1 at 57)). As we have held before, “[t]he ALJ
appropriately declined to credit Dr. Rosenberg’s medical opinion because it was inconsistent
with the DOL’s position that ‘coal mine dust exposure may cause COPD, with associated
decrements in FEV1/FVC.’” Cent. Oh. Coal Co., 762 F.3d at 491 (quoting Joint Appendix at 67
(citing 65 Fed. Reg. at 79,943)).

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Incoal defines the issue at too specific a level of generality when it argues that the
preamble and regulations are silent as to the “significance of a reduced FEV1/FVC ratio ‘in
distinguishing the effects of coal dust and tobacco.’” Pet. Br. at 21 (quoting Shipley, 2022 WL
402432, at *9 (Quattlebaum, J., dissenting)). It is unsurprising that the preamble does not
discuss the use of FEV1/FVC in distinguishing between smoking- and coal-induced conditions
because the Department’s position is that “[s]mokers who mine have additive risk for developing
significant obstruction.” 65 Fed. Reg. at 79,940 (emphasis added). The preamble is thus not
concerned with distinguishing the effects of coal dust and tobacco; nor does it have to be in order
to support the ALJ’s decision. The preamble instead demonstrates the Department’s reasoned
conclusion that a reduced FEV1/FVC ratio is associated with COPD which in turn “fits neatly
within the definition of legal pneumoconiosis.” Keathley, 773 F.3d at 739 (finding expert’s
opinion, that coal-induced chronic bronchitis does not worsen after exposure ceases, to be
inconsistent with the regulatory definition of legal pneumoconiosis, despite employer’s argument
that “the regulations nowhere state that ‘chronic bronchitis’ is ‘a latent and progressive disease’”
(emphasis added)).
The ALJ thus reasonably concluded that Dr. Rosenberg’s finding—that “the magnitude in
the reduction of [Shepherd’s] FEV1 in comparison to the reduction in [his] FVC provides a basis
for distinguishing between the effects of cigarette smoking and coal dust exposure,” Emp. Ex. 2
(Rosenberg 2020 Rep. at 5), and was “entirely consistent with the effects of cigarette smoking,
not coal dust,” id. at 7—was “contrary to [the] premise underlying the regulations that coal dust
exposure may cause chronic obstructive pulmonary disease, with associated decrements in FEV1
and the FEV1/FVC ratio,” App. at 254. And in any event, Dr. Rosenberg failed to convince the
ALJ that “coal mine dust could not have aggravated or contributed to [Shepherd’s] condition,
even if it did not cause his entire FEV1 loss.” Id.
Incoal argues that “where [Dr. Rosenberg] explained why the preamble does not dispute
that ‘COPD resulting from coal dust exposure is not correlated with a reduced FEV1/FVC ratio,’
the ALJ was required to ‘engage with the substance of that scientific dispute.’” Pet. Br. at 22
(quoting Cent. Oh. Coal Co., 762 F.3d at 490). But in Central Ohio Coal, which Incoal cites to
support this argument, we held that the court would need to engage with the substance of the

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scientific dispute about the connection between COPD and coal-dust exposure only if a party
directly challenged the substance of the Department’s position as articulated in the preamble.
762 F.3d at 491–92. We held that “Central Ohio ha[d] presented no such evidence, and it
ask[ed] this court to make no such determination.” Id. at 491. Instead, “[t]he sole issue
presented here [was] whether the ALJ was entitled to discredit Dr. Rosenberg’s medical opinion
because it was inconsistent with the DOL position set forth in the preamble, and the answer to
that question is unequivocally yes.” Id. at 491–92. As we describe in more detail below, this
case is no different.
3. Reversibility
Incoal again contends that the ALJ cited the preamble for matters on which it was silent
when he discredited Dr. Rosenberg’s opinion that coal-related lung damage “would not be
expected to allow . . . [Shepherd’s improved lung function in] response to bronchodilators.”
Emp. Ex. 2 (Rosenberg 2020 Rep. at 11). But in finding that Dr. Rosenberg’s opinion was not
well-reasoned or documented, the ALJ did not rely on the preamble at all; instead, the ALJ
clearly articulated that Shepherd’s bronchodilator response could not carry Incoal’s burden to
rebut the fifteen-year presumption because “some reversibility of pulmonary function test values
after a miner is given bronchodilators does not preclude the presence of a chronic lung disease
due to coal dust exposure.” App. at 255. Ultimately it was Incoal’s burden to present evidence
that a bronchodilator response would “preclude the presence of a chronic lung disease due to
coal dust exposure.” Id.; see Ogle, 737 F.3d at 1069; Gibas, 748 F.2d at 1120.
Although the ALJ did not point to record evidence for his assertion that Dr. Rosenberg’s
bronchodilator-related conclusions could not carry Incoal’s burden to rebut the fifteen-year
presumption, there was little need for the ALJ to do so. There was no factual dispute about
whether Shepherd did or did not respond to bronchodilators. Instead, the credibility question for
the ALJ was whether the conclusion that Dr. Rosenberg drew from that response was sufficiently
well-reasoned and well-documented to rule out coal-dust exposure as a cause of Shepherd’s
condition.

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The ALJ correctly noted that, just as Dr. Rosenberg did not explain why Shepherd’s
bronchodilator response “preclude[d] the presence of a chronic lung disease due to coal dust
exposure,” App. at 255, we and at least one of our sibling circuits have affirmed the legal rule
that an ALJ may discredit as insufficiently well-reasoned or supported expert opinions that fail to
explain “why [a miner’s] responsiveness to treatment with bronchodilators necessarily
eliminated a finding of legal pneumoconiosis,” Crockett Colleries, Inc. v. Barrett, 478 F.3d 350,
356 (6th Cir. 2007); see App. at 255 n.214 (citing Crockett Colleries, 478 F.3d at 356 and Sea
“B” Mining Co. v. Dunford, 188 F. App’x 191, 200 (4th Cir. 2006)). Incoal makes no attempt to
argue that, as a factual matter, Dr. Rosenberg’s opinion actually did rule out coal-dust exposure
as a cause of Shepherd’s condition. Instead, Incoal’s only response to the ALJ is to argue that
Dr. Rosenberg’s conclusion was not at odds with the preamble, see Pet. Br. at 23, but as we have
already noted, the ALJ did not purport to rely on the preamble for his reversibility conclusions.
In arguing that the ALJ erred by not explaining “why the bronchodilators evidence couldn’t rule
out coal-dust exposure as the underlying cause” of Shepherd’s condition, the concurrence
erroneously attempts both to “reconstruct better reasoning on [Incoal’s] behalf” and to shift
Incoal’s burden to the ALJ. See Concurring Op. at 32.
We cannot say that the ALJ’s credibility decision regarding Dr. Rosenberg’s
bronchodilator opinion was unsupported by substantial evidence or that it applied the law
incorrectly. “While the ALJ’s reasoning . . . is brief, it does clearly outline on what his decision
rests.” Ramage, 737 F.3d at 1062. The ALJ applied the correct rule of law, namely that it was
Incoal’s burden to show that Shepherd’s response to bronchodilators precluded the presence of
legal pneumoconiosis.. See Ogle, 737 F.3d at 1069; Gibas, 748 F.2d at 1120; Crockett Colleries,
478 F.3d at 356. And the ALJ clearly explained that, because Dr. Rosenberg’s reversibility
opinion left open the possibility coal-induced lung disease could respond to bronchodilators, the
ALJ found that the opinion was not sufficiently well-reasoned and credible to carry Incoal’s
burden. App. at 255. Any factual distinctions between the instant case and Crockett Colleries or
Sea “B” Mining cannot displace the ALJ’s credibility determination; such factual distinctions
would neither relieve Incoal of its evidentiary burden nor provide new evidence that would rule
out coal-dust exposure as a cause of Shepherd’s bronchodilator-responsive lung disease. Incoal

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thus asks us to “reweigh the evidence or substitute our judgment for that of the ALJ,” which we
cannot do. See Kirk, 264 F.3d at 606.
4. Emphysema
Dr. Rosenberg opined that Shepherd’s diffuse (rather than focal) emphysema was not
characteristic of coal dust exposure because “the particles in cigarette smoke are smaller and
more numerous than coal particles and distribute deeper throughout the lungs” and thus
“emphysema related to cigarette smoke is more diffuse than emphysema due to coal dust.” Emp.
Ex. 2 (Rosenberg 2020 Rep. at 9). Importantly, Dr. Rosenberg also relied on data purporting to
show that, when compared, miners and non-miners had similar rates of even centrilobular (focal)
emphysema. App. at 254–55. But, the ALJ noted, “contrary to Dr. Rosenberg’s findings, in the
data he quotes, a higher proportion of non-smoking miners had centrilobular emphysema than
non-smoking non-miners.” Id. at 255 (citing Dir. Ex. 24 (Rosenberg 2014 Rep. at 11)).
Incoal argues that the ALJ misinterpreted that data as supportive of the idea that coal dust
may contribute to diffuse, in addition to centrilobular (focal), emphysema. Pet. Br. at 24. But
Incoal misunderstands the ALJ’s reason for pointing out the contrary data; the ALJ was not
arguing that the data showed a correlation between coal mining and diffuse emphysema, but that
Dr. Rosenberg’s opinion was internally inconsistent and unreasoned in its use of data and
thereby worthy of less probative weight. See Brandywine Explosives & Supply v. Dir., OWCP,
790 F.3d 657, 666–67 (6th Cir. 2015) (declining to reverse grant of benefits when the ALJ
discredited employer’s expert witness because his “opinions [were] internally inconsistent”);
Quarto Mining Co., 657 F. App’x at 436 (no error where the ALJ considered internal
inconsistencies in a report by Dr. Rosenberg and found the report “incoherent”). The ALJ’s
point had little to do with the quality of the data and more to do with mistrust in Dr. Rosenberg’s
inconsistent use of that data. This was a valid reason for the ALJ to discredit Dr. Rosenberg’s
opinion and does not constitute error. And even if the ALJ incorrectly interpreted and applied

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data as Incoal argues, the ALJ’s decision to discredit Dr. Rosenberg was, as discussed above,
already legally sound and supported by substantial evidence.10
Incoal also asserts that it was error for the ALJ to leave unaddressed a specific study of
South African miners presented by Dr. Tuteur’s expert opinion,11 Pet. Br. at 26, but “we do not
require the ALJ to remark on every piece of evidence and every omission by a physician,” Ogle,
737 F.3d at 1072. Incoal seems to argue that the ALJ should have commented on this study
because it was “groundbreaking,” recent, and particularly thorough, Pet. Br. at 26, but this
argument turns on the weight of the evidence, which is a determination for the trier of fact and
one we do not invade, see Kirk, 264 F.3d at 606.
Finally, Incoal asserts that “[i]f this groundbreaking study (authored by a claimant’s
advocate, no less) did not ‘archaize’ the preamble’s reliance upon [contrary evidence], the ALJ
was obliged to explain why.” Pet. Br. at 26. Here Incoal refers indirectly to the idea that an
expert might “testif[y] as to scientific innovations that archaized or invalidated the science
underlying the Preamble.” See Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 324 (4th Cir.
2013). In Westmoreland, however, the court found that the experts in question had not provided
such testimony. Id. We have held that a party wishing to make such an argument must directly
“challenge the substance of the DOL’s position as articulated in the regulation’s preamble” and
“submit[] ‘the type and quality of medical evidence that would invalidate’ the DOL’s position in
that scientific dispute.’” Cent. Oh. Coal Co., 762 F.3d at 491 (quoting Midland Coal Co. v. Dir.,
OWCP, 358 F.3d 486, 490 (7th Cir. 2004)).
Though Incoal’s brief implicitly criticizes the preamble’s science, it has not directly
presented to us (or the adjudicators below) the question of whether that science remains valid.
10Again, Incoal wishes to make the argument that the ALJ’s decision on this point relied on the preamble
and regulations for propositions on which they were silent, Pet. Br. at 25 (“the ALJ rejected Dr. Rosenberg’s
documented analysis in knee-jerk fashion, not because another expert disputed it, but because he thought the
preamble did. Of course, he was wrong” (internal citation omitted)), but this argument falls flat given that the ALJ
did not purport to rely on either the preamble or particular regulations for his emphysema analysis, see App. at 255.
11The ALJ engaged in an in-depth analysis of Dr. Tuteur’s expert opinion, see, e.g., App. at 244–46, 255–
57, but Incoal attacks the ALJ’s decision only on the premise that it omits discussion of this particular data and on
one other point, discussed further below.

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Nor has Incoal developed a record on which we could consider such a question—whether,
notwithstanding the propriety of an ALJ’s reliance on the preamble, new developments in
science rendered the Department’s scientific conclusions clearly wrong. Ultimately, Incoal has
“presented no such evidence” of “‘the type and quality of medical evidence that would
invalidate’ the DOL’s position in that scientific dispute” and, as explained below, “it asks this
court to make no such determination.” Cent. Oh. Coal Co., 762 F.3d at 491 (quoting Midland
Coal Co., 358 F.3d at 490).
Instead, Incoal asks us to pass judgment on what it describes as “the ALJ’s preference for
the preamble over [Incoal’s] universal proof” and “the ALJ’s refusal to allow a meaningful
factual inquiry into the substance of this case’s scientific dispute [which] den[ied] Incoal the
right to a fair adversarial testing of the record proof.” Pet. Br. at 2.12 Both of these questions are
squarely grounded in the ALJ’s decisions in this particular case, and do not present a frontal
assault on the preamble. Nor did Incoal raise such a challenge in front of the ALJ. Incoal thus
argues that the ALJ was “obligated to explain” the answer to a question he was never asked.
The inquiry required to determine whether the preamble’s science has been “archaized” is
distinct; it would require the ALJ directly to compare the Department’s scientific conclusions (as
reduced to writing in the preamble after years of study) with the data and conclusions on which
Incoal’s experts relied. And it would require the ALJ to test the relative merit of each. Given
Incoal’s admonitions about the “hazard[]” that exists when “laypersons . . . ‘think they
understand the material but in reality do not,’” it would be surprising for Incoal to request such
an exercise from judges and courts. Pet. Br. at 17 (quoting Edward K. Cheng, The Consensus
Rule: A New Approach to Scientific Evidence, 74 Vand. L. Rev. 407, 429 (2022)).13
12To say that Incoal had no opportunity to test the record proof strains credulity when, in Incoal’s telling, it
presented a “one-sided mountain of evidence,” but the ALJ “discarded all [of it]” in favor of the preamble. Pet. Br.
at 8, 30. This assertion appears to reference Incoal’s unsuccessful attempt before the ALJ to obtain discovery
related to the drafting of the preamble. See App. at 88–103, 140–41. Incoal does not argue before us that the BRB
erred when it found that the ALJ’s decision to deny discovery did not deprive Incoal of due process, see id. at 357–
58, and we therefore do not address any discovery-related assertions.
13Contrary to the concurrence’s suggestion, we do not purport to make any distinction between an ALJ or
court’s ability to consider a frontal attack on the science underlying the preamble and their ability to consider
whether the preamble has been archaized. See Concurring Op. at 30. We simply summarize existing precedent

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5. The Fifteen-Year Presumption
Incoal’s next argument is that the fifteen-year presumption, though rebuttable on paper, is
irrebuttable in practice. Pet. Br. at 28. This, Incoal argues, makes the fifteen-year presumption
an unconstitutional due-process violation and inconsistent with the APA. Id. at 28–29, 32 (citing
Vlandis v. Kline, 412 U.S. 441, 451 (1973)).
The crux of Incoal’s argument here is that if Incoal’s “evidence was insufficient to rebut
the fifteen-year presumption, it is hard to imagine what would suffice,” and that it is the
preamble (written in 2000) which converts the presumption (reenacted in 2010) from rebuttable
to irrebuttable. Pet. Br. at 30–31. In particular, Incoal argues, as its attorney previously did in
Wilgar Land, that, when combined with the preamble, “‘[t]raining materials’ for administrative
law judges that supposedly direct them to discredit various expert opinions,” Wilgar Land,
85 F.4th at 841,14 provide “the only explanation” for how the fifteen-year presumption has
become irrebuttable, Pet. Br. at 31. But Incoal failed to make this argument before the ALJ and
instead raised it for the first time before the BRB. App. at 318–20, 350. And Incoal has
“identifie[d] nothing but speculation that the [ALJ] even knew about [the training materials].”
Wilgar Land, 85 F.4th at 841. We decline to consider such materials, and Incoal has offered
little else to support its argument, save for assertions about the strength of the evidence in its own
case. See Pet. Br. at 30.
Even so, the Supreme Court has considered the BLBA’s presumptions and has found they
pass constitutional muster. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28–29 (1976).15 In
about what a party would have to do to launch a scientific attack on the preamble—whether by arguing that the
preamble has been archaized or by arguing that the preamble was wrong from the beginning, it makes no difference
which—and we determine that, assuming the court could consider such an attack, Incoal has not mounted one before
us. Lastly, we point out that, when convenient, Incoal criticizes the ALJ’s “insistence that he underst[ood]” the
scientific evidence better than the experts, see Pet. Br. at 23, but asks us to undertake a similar scientific inquiry
when doing so would be favorable to Incoal.
14In Wilgar Land we refused to consider the same training materials on which Incoal bases its arguments
here.
15Turner Elkhorn considered the fifteen-year presumption as implemented under the 1972 amendments to
the BLBA. Congress eliminated the fifteen-year presumption in the Black Lung Benefits Revenue Act of 1981,
Pub. L. No. 97-119, § 202(b)(1), 95 Stat. 1635, 1643, but reinstated it in 2010 through the “Byrd Amendments” to
the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260. Neither

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Turner Elkhorn, the Court reinforced the rule that “presumptions arising in civil statutes . . .
involving matters of economic regulation” do “not constitute a denial of due process of law” if
there is “some rational connection between the fact proved and the ultimate fact presumed, and
. . . the inference of one fact from proof of another shall not be so unreasonable as to be a purely
arbitrary mandate.” Id. at 28 (quoting Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43
(1910)).16 The Court was careful to note that, for purposes of this analysis, “[t]he process of
making the determination of rationality is, by its nature, highly empirical, and in matters not
within specialized judicial competence or completely commonplace, significant weight should be
accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions
from it.” Id. (quoting United States v. Gainey, 380 U.S. 63, 67 (1965)). Turning to the merits,
the Court noted that “it [was] agreed here that pneumoconiosis is caused by breathing coal dust,
and that the likelihood of a miner’s developing the disease rests upon both the concentration of
dust to which he was exposed and the duration of his exposure,” and went on to hold that,
“[a]gainst this scientific background, it was not beyond Congress’ authority to refer to exposure
factors in establishing a presumption that throws the burden of going forward on the operators.”
Id. at 28–29.17
amendment changed the precise language of the presumption but instead made the presumption first ineffective and
later effective again for claims filed in certain timeframes.
16We have reaffirmed the validity of this principle in recent years. See, e.g., Am. Exp. Travel Related
Servs. Co. v. Kentucky, 641 F.3d 685, 689 (6th Cir. 2011) (“‘[L]egislation that does not proscribe fundamental
liberties . . . violates the Due Process Clause’ where it imposes burdens without any ‘rational basis’ for doing so” but
this test “is highly deferential [and] courts hold statutes unconstitutional under this standard of review only in rare or
exceptional circumstances”) (quoting Sheffield v. City of Fort Thomas, 620 F.3d 596, 613 (6th Cir. 2010), Doe v.
Mich. Dep’t State Police, 490 F.3d 491, 501 (6th Cir. 2007)) (alteration in Am. Exp. Travel Related Servs. Co.).
17Tellingly, the Court also found that the BLBA’s irrebuttable presumption, that miners with certain kinds
of serious and complex pneumoconiosis were totally disabled and thereby entitled to benefits, was constitutional:
“As an operational matter, the effect of [the] ‘irrebuttable presumption’ of total disability is simply to establish
entitlement in the case of a miner” with a relevant condition. Turner Elkhorn, 428 U.S. at 22. “Were the Act
phrased simply and directly to provide that operators were bound to provide benefits for all miners clinically
demonstrating their affliction with complicated pneumoconiosis arising out of employment in the mines, [the Court
thought] it clear that there could be no due process objection to it . . . [because the Court could not] say that it would
be irrational for Congress to conclude that impairment of health alone warrants compensation.” Id. at 23. The Court
commented that it would be “err[or] [to] equat[e] this case with those in the mold of . . . Vlandis,” id. at 22, which is
exactly what Incoal’s brief attempts to do, see Pet. Br. at 28–30.

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Incoal argues that “ALJs assume that all individuals who worked fifteen years in a mine
can trace their breathing problems to their employment,” Pet. Br. at 28, and in a sense Incoal is
correct, but only because Congress decided it would be so. Incoal has not shown the
presumption is incapable of being rebutted, nor has it presented evidence or arguments to
persuade us that there is no rational connection between a miner’s length of employment and
their chances of developing a coal-related lung condition. We doubt that science allows for such
proof. And in any case, the Supreme Court has already settled the legal issue of whether
Congress’s conclusion—that the length of a miner’s career is positively correlated to the miner’s
risk of developing pneumoconiosis—was sufficiently supported by “the stuff of actual
experience” to make the fifteen-year presumption constitutional. Turner Elkhorn, 428 U.S. at
28, 30–31 (quoting Gainey, 380 U.S. at 67) (noting that “in light of the Surgeon General’s
[Senate testimony] . . . to the effect that the 15-year point marks the beginning of [the] linear
increase in the prevalence of the disease with years spent underground, we think it clear that the
durational basis of this presumption is equally unassailable”). Neither Incoal nor the
concurrence make any scientific argument that a miner’s risk of developing pneumoconiosis is
totally unrelated to the length of that miner’s career. Given that no one has attacked the scientific
basis for the Supreme Court’s conclusion in Turner Elkhorn, we see no issue in concluding that
the Supreme Court has settled the legal issue at hand.
6. Scientific Certainty
Incoal finally asserts that the ALJ erred by “insisting that the experts express their views
with complete certainty,” Pet. Br. at 33, when the ALJ held that Dr. Tuteur’s finding—that “it
[was] possible but highly unlikely, that coal mine dust influenced the COPD found in Mr.
Shepherd,” Emp. Ex. 6 (Tuteur Rep. at 9)—“failed to adequately explain why coal mine dust
could not have contributed to [Shepherd’s] condition,” App. at 256 (emphasis added).
First, this was not the ALJ’s sole reason for discrediting Dr. Tuteur’s opinion. The ALJ
also held that Dr. Tuteur’s finding—that “there was not a significantly increased risk of COPD
among miners”—was contrary to the premises underlying the regulations. Id. As explained
above in Section II(B)(2), the ALJ was within his discretion to find that the Department’s
conclusions (as expressed in the preamble) that “coal mine dust can cause obstruction, that

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COPD includes three disease processes characterized by airway dysfunction: chronic bronchitis,
emphysema, and asthma, and COPD may be caused by coal dust exposure” were more
persuasive than Dr. Tuteur’s opinion. Id. (citing 65 Fed. Reg. at 79,937, 79,939).
Second, Dr. Tuteur also found that “the clinical characteristics of COPD in an individual
[could not] be used to robustly differentiate the cause of COPD in” Shepherd, but that, because
never-mining smokers are more likely to develop COPD than non-smoking miners, Claimant’s
COPD was “due to the chronic inhalation of tobacco smoke, and not coal mine dust.” Emp. Ex.
6 (Tuteur Rep. at 7). In the ALJ’s view, Dr. Tuteur “failed to adequately explain why coal mine
dust could not have contributed to Claimant’s specific condition.” App. at 2556 (emphasis
added). We and “several of our sister circuits have previously warned mine operators, and
Dr. Tuteur specifically,18 that an appellate court will not disturb an ALJ’s reasonable rejection of
Dr. Tuteur’s statistical methods for failing to apply them to the individual claimant.” Island
Creek Coal Co. v. Young, 947 F.3d 399, 408–09 (6th Cir. 2020) (citing Energy W. Mining Co. v.
Est. of Blackburn, 857 F.3d 817, 829–30 (10th Cir. 2017), Consol. Coal Co. v. Dir., OWCP, 521
F.3d 723, 726 (7th Cir. 2008)).
Against this backdrop, and given the fact that Incoal had the burden of proof to rule out
coal dust as a cause of Shepherd’s condition, see Ogle, 737 F.3d at 1069; Gibas, 748 F.2d at
1120, that the Department has made clear its position that the effects of smoking and coal dust
are “additive,” 65 Fed. Reg. at 79,940, and that Dr. Tuteur explicitly found it was possible that
coal dust contributed to Shepherd’s condition, Emp. Ex. 6 (Tuteur Rep. at 9), we hold that the
ALJ’s decision to discredit Dr. Tuteur’s opinion was legally sound and supported by substantial
evidence.
III. CONCLUSION
The ALJ’s decision is supported by substantial evidence and properly applies the law.
For all the reasons stated, we DENY the petition for review.
18Young’s discussion of generalized statistical analyses concerned an opinion by the same Dr. Tuteur, also
a frequent expert witness on behalf of coal operators.

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___________________
CONCURRENCE
___________________
THAPAR, Circuit Judge, concurring in the judgment. I write separately to make two
points—one broad, one narrow. First, I take issue with the majority’s scientific predictions.
Second, I part ways with the majority regarding the adequacy of the ALJ’s analysis of the
bronchodilators evidence. But neither disagreement changes the fact that I agree with the
majority on the critical question: Substantial evidence supports the ALJ’s conclusion that Incoal
hasn’t rebutted the presumption that Shepherd’s ailments result from coal mining. So,
I respectfully concur in the court’s judgment.
I.
This case sits at the intersection of law and science. The two are very different
enterprises. The law is comprised of settled rules. Our laws, from the Constitution on down,
have fixed meanings. And our precedents interpreting those laws stay intact unless there’s good
reason to upset them. By contrast, settled rules are anathema to science. Answers are always
changing: We used to think the sun revolves around the earth; it turns out the opposite is true.
Just this month, scientists started poking holes in Albert Einstein’s theory of general relativity.
See Ian Randall, Einstein’s Theory of General Relativity Faces Challenge, Newsweek (Nov. 12,
2024, 2:13 PM), https://www.newsweek.com/einstein-general-relativity-gravity-space-time-
dark-energy-1984667. And now thoughtful doctors and scientists are raising questions about the
food pyramid with which we all grew up. See Mark Hyman, How Our Government Made Us
Fat and Sick!, Mark Hyman MD, https://drhyman.com/blogs/content/how-our-government-
made-us-fat-and-sick (Feb. 26, 2016); Jaimy Lee & Robert Lustig, Why the USDA Food Pyramid
Diet Recommendations Changed, Levels, https://www.levels.com/blog/how-and-why-the-food-
pyramid-diet-recommendations-changed (Aug. 8, 2023). In science, no rule or conclusion is
“settled”—the only constant is the method by which scientists ask questions and formulate
tentative answers to them.

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Because science is unsettled by definition, I take issue with the majority’s “doubt[ing]”
that a party could successfully attack the validity of the statutory presumption. Maj. Op. at 27.
No science is settled. It may seem doubtful today that such proof will emerge, but science
teaches us to never say “never.”
I also take issue with the majority’s skepticism about an ALJ’s ability to decipher
whether the preamble’s science has been “archaized.” Id. at 24. Echoing our precedent, the
majority rightly notes that litigants are free to attack the scientific conclusions underlying the
preamble. See, e.g., id. (citing Cent. Ohio Coal Co. v. Dir., Off. of Workers’ Comp. Programs,
762 F.3d 483, 491 (6th Cir. 2014)). If a litigant were to launch such an attack, we “would need
to engage the substance of that scientific dispute.” Cent. Ohio Coal Co., 762 F.3d at 491. To do
so, we would “test the relative merit” of different scientific arguments. Maj. Op. at 24. The
inquiry into whether the preamble’s science is outdated, which the majority critiques as outside
the judicial bailiwick, strikes me as no different in principle. So, I don’t see the basis of the
majority’s distinction.
But my concerns don’t upset the majority’s judgment that substantial evidence supported
the ALJ’s conclusion.
II.
I also have concerns about the majority’s assessment of the ALJ’s analysis of the
bronchodilators evidence. But again, they don’t warrant upsetting the majority’s judgment.
Substantial evidence must support an ALJ’s credibility determinations. Big Branch Res.,
Inc. v. Ogle, 737 F.3d 1063, 1072 (6th Cir. 2013). Substantial evidence review is permissive, but
it’s not toothless. The ALJ’s findings of fact must rest on more than “a mere scintilla” of
evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). Here,
the ALJ didn’t offer even a scintilla of evidence in support of its decision to discredit Dr.
Rosenberg’s opinion about the meaning of Shepherd’s positive response to bronchodilators
treatment. Simply put, Incoal provided some expert testimony, and the ALJ discredited it
without citing any evidence to the contrary. That’s a problem.

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Incoal bore the burden to rebut the presumption that Shepherd’s ailments stemmed from
his years of coal mining. 30 U.S.C. § 921(c)(4). Incoal had to establish either that Shepherd
didn’t have pneumoconiosis or that his respiratory issues weren’t connected to his coal-mine
employment. Id. To make that rebuttal, Incoal offered testimony from Dr. Rosenberg.
Rosenberg pointed out that Shepherd had responded positively to bronchodilators treatment. He
then opined that if coal mining—as opposed to smoking—were responsible for Shepherd’s lung
damage, then the bronchodilators treatment wouldn’t have helped him. So, Rosenberg reasoned,
Shepherd’s exposure to coal-mine dust didn’t cause his ailment.
The ALJ discredited Rosenberg’s opinion because “some reversibility of pulmonary
function test values after a miner is given bronchodilators does not preclude the presence of a
chronic lung disease due to coal dust exposure.” App. at 255. The ALJ didn’t cite any record
evidence in support of this proposition, nor did it cite the regulations’ preamble. That’s an issue.
We shouldn’t credit an ALJ’s conclusion that isn’t supported by even a scintilla of evidence.
To be sure, in discrediting this piece of Rosenberg’s testimony, the ALJ cited a Fourth
Circuit precedent and a Sixth Circuit precedent. See id. at 255 n.214 (citing Sea “B” Mining Co.
v. Dunford, 188 F. App’x 191, 200 (4th Cir. 2006) (per curiam); Crockett Colleries, Inc. v.
Barrett, 478 F.3d 350, 356 (6th Cir. 2007)).
But in Sea “B” Mining Co., regulations at the time provided that if a miner obtained a
particular pulmonary function test score (a FEV1 score), he was presumably entitled to black
lung benefits. 188 F. App’x at 196. Although the miner’s post-bronchodilator treatment test
results in Sea “B” Mining Co. indicated some reversibility of his impairment, it was critical that
the miner “still received” the required FEV1 scores to qualify for the presumption “both before
and after the administration of the bronchodilators.” Id. at 200. So, substantial evidence
supported the ALJ’s conclusion that the mining company hadn’t rebutted the presumption. Id.
And Crockett simply stated that the ALJ there found that an employer’s expert had “not
adequately explained why [the miner’s] responsiveness to treatment with bronchodilators
necessarily eliminated a finding of legal pneumoconiosis.” 478 F.3d at 356. Crockett says
nothing about the adequacy of Rosenberg’s explanations for Shepherd’s responses to treatment

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in this proceeding. Nor did Crockett upset the standard rule that the ALJ’s credibility
determination must rest on substantial evidence. Here, the ALJ cited no evidence to discredit
Rosenberg’s argument that Shepherd’s illness didn’t come from coal-mine dust in light of his
positive response to bronchodilators treatment. And we can’t reconstruct better reasoning on the
ALJ’s behalf. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
The majority says that the lack of record evidence in support of the ALJ’s conclusion
shouldn’t concern us: Ultimately, this was a credibility question for the ALJ to decide. But the
ALJ still needs to “adequately explain[]” its credibility determination. Ogle, 737 F.3d at 1069.
Here, the ALJ didn’t seem to explain why the bronchodilators evidence couldn’t rule out coal-
dust exposure as the underlying cause.
Despite the ALJ’s bronchodilators hiccup, the majority is correct to deny Incoal’s petition
for review. Where “remand would be an idle and useless formality,” courts aren’t required to
“convert judicial review of agency action into a ping-pong game.” NLRB v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6 (1969) (plurality opinion). Here, as surveyed by the majority, other pieces
of record evidence provide substantial support for the ALJ’s bottom-line conclusion: Incoal
hasn’t rebutted the presumption that Shepherd’s ailments result from coal mining. The ALJ was
free to discredit Incoal’s experts when their testimony ran afoul of the premises underlying the
regulations and their preamble. And as the majority notes, Incoal hasn’t frontally attacked the
preamble’s science. In sum, a remand here is unnecessary. See Japarkulova v. Holder, 615 F.3d
696, 701 (6th Cir. 2010). So, I respectfully concur in the court’s judgment.

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