Safeco Insurance/liberty Mutual Surety v. DIRECTOR , OFFICE OF WORKERS ’ COMPENSATION PROGRAMS , United States Department of Labor

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1083
S AFECO I NSURANCE/LIBERTY M UTUAL S URETY ,
Petitioner,
v.
DIRECTOR , O FFICE OF W ORKERS ’ C OMPENSATION PROGRAMS ,
United States Department of Labor,
Respondent.
____________________
Petition for Review of an Order of the
Benefits Review Board.
No. 21-0274 BLA
____________________
A RGUED O CTOBER 30, 2023 — DECIDED J UNE 10, 2024
____________________
Before EASTERBROOK, R IPPLE, and S CUDDER , Circuit Judges.
S CUDDER , Circuit Judge. This appeal concerns a former coal
miner who developed a serious lung condition after working
underground for nearly two decades. Based on a thorough
canvass of the medical record, an administrative law judge
determined that the miner was disabled within the meaning
of the Black Lung Benefits Act. We now consider whether that
decision erroneously applied a regulatory preamble as

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2 No. 23-1083
though it were binding law and contained factual findings
that lacked the support of substantial evidence. Finding no
error on either front, we affirm. In doing so, we emphasize the
broad discretion ALJs enjoy when evaluating competing
medical theories, the weight ALJs may properly attribute to
the perspective of the Department of Labor on such issues,
and the significant deference owed to ALJs’ medical findings
and scientific judgments on appeal.
I
Richard McLain worked in a coal mine for 18 years. All the
while he smoked cigarettes—about half a pack a day. In 1985
McLain experienced a heart attack, prompting him to quit
smoking and retire. But his lungs continued to deteriorate.
In 2010 a pulmonologist found that McLain suffered from
an obstructive lung disease causing chest pain and shortness
of breath. Soon afterwards, McLain filed a claim under the
Black Lung Benefits Act, alleging that years of mine work had
left him totally disabled from a pulmonary perspective.
By the time he sought benefits under the Act, McLain’s
former employer, Old Ben Coal Company, had been liqui-
dated through bankruptcy. See Old Ben Coal Co. v. Off. of Work-
ers’ Comp. Programs, 476 F.3d 418, 419 (7th Cir. 2007). So
Liberty Mutual Insurance Company, the surety guaranteeing
Old Ben’s debts under the Act, contested liability on the coal
company’s behalf. Liberty and its wholly owned subsidiary
Safeco also filed the petition currently under review, naming
themselves and Old Ben as parties in interest. Because the
only proper petitioner in a case with a defunct mine operator
is the surety or insurer responsible for payment, we have
altered the case caption to omit any reference to Old Ben. For

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No. 23-1083 3
ease of readability, however, we refer to the petitioner as “Old
Ben” in keeping with our past practice. See, e.g., Zeigler Coal
Co. v. Off. of Workers’ Comp. Programs, 490 F.3d 609, 611 n.1
(7th Cir. 2007).
Old Ben argued that McLain was ineligible for benefits
because his condition was not “totally disabling” and had
primarily resulted from smoking. In support, it offered testi-
mony from Drs. David Rosenberg and Peter Tuteur, experts
in internal and pulmonary medicine. Both physicians opined
that McLain’s treatment records pointed to tobacco smoke as
the main cause of his lung damage.
An administrative law judge disagreed. After reviewing
the medical record and conducting a hearing, the ALJ found
that McLain suffered from pneumoconiosis—a totally
disabling pulmonary condition that arises from coal mining.
So the ALJ awarded benefits to McLain under the Act.
The ALJ’s decision drew significantly from a set of medi-
cal findings regarding how to distinguish between lung dis-
orders arising from coal dust and those arising from tobacco
smoke. Those findings came from the preamble to an expan-
sive set of regulations published by the Labor Department in
2001. The ALJ also relied on McLain’s medical treatment rec-
ords, a Department-sponsored examination, and testimony
from a third medical expert.
Old Ben appealed the ALJ’s decision to the Benefits
Review Board, contending that the ALJ erroneously treated
the 2001 preamble as if it were binding law and made factual
findings unsupported by the medical record. Neither argu-
ment prevailed, and the Review Board affirmed the benefits
decision in full. Old Ben now appeals.

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4 No. 23-1083
II
The Black Lung Benefits Act provides compensation to
coal miners who are “totally disabl[ed] … due to pneumoco-
niosis.” 30 U.S.C. § 922(a)(1). “Pneumoconiosis” is “a chronic
dust disease of the lung and its sequelae, including respira-
tory and pulmonary impairments, arising out of coal mine
employment.” Id. § 902(b). The Act establishes a rebuttable
presumption that claimants have pneumoconiosis if they
worked in an underground coal mine for at least 15 years and
experience a totally disabling respiratory or pulmonary im-
pairment. See id. § 921(c)(4).
When adjudicating claims under the Black Lung Act, an
ALJ’s findings must be “rational, supported by substantial ev-
idence and consistent with governing law.” Old Ben Coal Co.
v. Dir., Off. of Workers' Comp. Programs, 292 F.3d 533, 538 (7th
Cir. 2002). “Substantial evidence” refers to “such relevant ev-
idence as a reasonable mind might accept as adequate to sup-
port a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019) (internal quotation marks omitted); see also Livermore
v. Amax Coal Co., 297 F.3d 668, 670 (7th Cir. 2002).
A
Old Ben argues that the ALJ erred by applying the 2001
regulatory preamble as though it were binding law akin to a
statute. It contends that the ALJ treated the preamble’s medi-
cal findings as irrefutable gospel, refusing to engage with con-
trary positions or consider opposing evidence. We disagree.
On one level, Old Ben is correct. Regulatory preambles
lack the force of law and have no binding effect on adminis-
trative adjudication. See Nat’l Wildlife Fed’n v. EPA, 286 F.3d
554, 569–70 (D.C. Cir. 2002). In resolving a black-lung claim,

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No. 23-1083 5
ALJs may ignore, sideline, or reject any findings from a regu-
latory preamble that they find unpersuasive. But the inverse
is also true. Any ALJ who views a preamble as convincing
may adopt its findings even in the face of counterevidence.
See Midland Coal Co. v. Dir., Off. of Workers’ Comp. Programs
[Shores], 358 F.3d 486, 490 (7th Cir. 2004) (recognizing that it is
appropriate to defer to Labor Department positions on black-
lung-related issues, even in the absence of formal rulemak-
ing); Harman Mining Co. v. Dir., Off. of Workers' Comp. Pro-
grams, 678 F.3d 305, 314 (4th Cir. 2012). Indeed, we have ob-
served that it can be “sensible” for an ALJ to do so, given the
considerable research and deliberation that often goes into the
notice-and-comment process that accompanies the promulga-
tion of federal regulations pursuant to the Administrative
Procedure Act. See Consolidation Coal Co. v. Dir., Off. of Work-
ers’ Comp. Programs [Beeler], 521 F.3d 723, 726 (7th Cir. 2008).
Our review of the decision below leaves us convinced that
the ALJ consulted the 2001 preamble as a matter of discretion,
not from some misguided impression that its findings were
legally mandated. The ALJ emphasized that Old Ben was free
to “challeng[e] or disput[e] the science credited by the DOL in
the preamble” and invited the company to “offer its own ex-
pert opinions and medical evidence regarding the topics from
the preamble it [sought] to dispute.” After Old Ben accepted
the invitation, the ALJ appropriately weighed the company’s
expert testimony against the preamble’s scientific conclu-
sions. The fact that the ALJ ultimately sided with the latter
does not itself constitute legal error.
Of course, an ALJ’s discretionary choice to rely on por-
tions of a regulatory preamble must find support in

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6 No. 23-1083
substantial evidence—as must every aspect of an ALJ’s deci-
sion. But the decision below easily clears this low bar.
A coal company seeking to establish that no “reasonable
mind might accept” the 2001 preamble “as adequate to sup-
port” an ALJ’s findings faces a steep uphill climb. See Liver-
more, 297 F.3d at 670 (internal quotation marks omitted). The
document spans 126 pages of dense medical analysis, cites
dozens of peer-reviewed studies, and reflects considered per-
spectives from over 250 comments submitted during two sep-
arate rulemaking periods. Unless a coal company establishes
a persuasive reason to reject the preamble’s findings as objec-
tively flawed, a citation to the document alone provides sub-
stantial evidence to support an ALJ’s conclusion. See Shores,
358 F.3d at 490 (emphasizing that courts will defer to the La-
bor Department’s position on scientific matters in black-lung
adjudications unless “mine operators produce[] the type and
quality of medical evidence that would invalidate a regula-
tion”). Old Ben provides no such reason.
Although shouldering no obligation to cite any authorities
beyond the text of the 2001 preamble to survive substantial-
evidence review, the ALJ here went above and beyond. The
ALJ gave specific reasons for favoring the preamble over the
opinions of Old Ben’s experts, explaining that “[b]ecause Dr.
Rosenberg’s opinion is unsupported by any reference to the
medical literature, I do not find it sufficiently persuasive to
invalidate or outweigh the medical principles and scientific
studies accepted by the DOL in the Preamble.” Elsewhere the
ALJ faulted Old Ben’s experts for relying on statistical gener-
alities, unadmitted x-ray evidence, and assumptions without
documentary evidence. Far from viewing the preamble as ir-
rebuttable, the ALJ concluded based on the medical evidence

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No. 23-1083 7
that Old Ben failed to rebut it. Any shortcomings, then, lay
not in the ALJ’s legal analysis but in the case that Old Ben
presented below.
B
Old Ben does not limit its challenge to the ALJ’s decision
to adopt the 2001 preamble. It also disputes the broader find-
ing that McLain suffered from a totally disabling condition
arising from coal-dust exposure. Old Ben contends that the
ALJ reached this conclusion without the support of substan-
tial evidence, committing a host of scientific and methodolog-
ical errors along the way.
The bar for what constitutes “substantial evidence” is not
high. It refers merely to “such relevant evidence as a reasona-
ble mind might accept as adequate to support a conclusion.”
See Livermore, 297 F.3d at 670 (internal quotation marks omit-
ted); see also Biestek, 139 S. Ct. at 1154. To prevail in its chal-
lenge, then, Old Ben must demonstrate that no evidence in the
record could permit a reasonable person to find that McLain
suffered from a totally disabling lung condition that arose
from coal dust. It cannot do so.
i
We start with the ALJ’s conclusion that McLain was totally
disabled. Old Ben argues that the ALJ erred by ignoring Dr.
Rosenberg’s conclusion to the contrary in an expert report
submitted in 2020. The company also contends that the ALJ
neglected to properly account for McLain’s age when evalu-
ating his performance on pulmonary function tests.
Although the ALJ did not explicitly mention Dr. Rosen-
berg’s 2020 report, we do not view this shortcoming as mate-
rial. True, an ALJ may not “disregard the opinion[] of [a]

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8 No. 23-1083
qualified expert[]” “absent evidence to the contrary.” Zeigler
Coal Co. v. Dir., Off. of Workers' Comp. Programs, 326 F.3d 894,
897 (7th Cir. 2003). But the record before us contains consid-
erable evidence undermining Dr. Rosenberg’s finding of non-
disability.
Three of the four medical experts who testified before the
ALJ concluded that McLain was totally disabled—including,
ironically enough, Dr. Rosenberg himself. Old Ben shines a
narrow spotlight on Dr. Rosenberg’s 2020 report, where he
concluded that McLain was “not disabled from a pulmonary
perspective.” But Dr. Rosenberg submitted two previous re-
ports in 2015 and 2016, both times opining without qualifica-
tion that McLain was disabled by a respiratory condition.
Given this contradiction—and the lack of any intervening
treatment history that might explain it—the ALJ acted well
within his discretion in refusing to credit Dr. Rosenberg’s
change in position.
McLain’s pulmonary tests also indicated total disability.
Labor Department regulations dictate that patients scoring
below specific values on such tests qualify as totally disabled
from a pulmonary perspective. See 20 C.F.R.
§ 718.204(b)(2)(i). McLain’s tests from 2004, 2010, and 2011
yielded qualifying results, meaning that he was totally disa-
bled within the meaning of the Act.
Old Ben objects that the ALJ failed to adjust McLain’s
qualifying values to account for his age. It emphasizes that the
ALJ applied values listed for patients aged 71—the oldest in-
cluded in the regulations—even though McLain was 84 at the
time of his most recent test. Relying on Dr. Rosenberg, Old
Ben insists that the ALJ should have applied a mathematical

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No. 23-1083 9
function called the Knudson equation to extrapolate the ap-
propriate values for McLain’s specific age.
Dr. Rosenberg may or may not be correct that an age
adjustment would have reflected best practice. We take no po-
sition on the point. Our role when conducting substantial-
evidence review is far more modest. We have never
required—nor do we possess the subject-matter expertise to
require—that an ALJ align herself with the scientific method-
ology we independently deem most persuasive. Our role is
that of a court of review, and in that more limited role, we
require only that an ALJ’s choice of methodology be reasona-
ble and informed by evidence. See Peabody Coal Co. v. Dir., Off.
of Workers' Comp. Programs, 972 F.2d 178, 182 (7th Cir. 1992).
The ALJ articulated a logical and educated basis for reject-
ing Dr. Rosenberg’s approach. The ALJ observed, both cor-
rectly and charitably, that Dr. Rosenberg provided only a thin
explanation for where the Knudson equation came from, how
it worked, or whether it was consistent with Labor Depart-
ment regulations concerning pulmonary function tests. Given
that uncertainty, the ALJ reasonably opted to apply well-
established guidance from the Review Board, which allows
ALJs to apply 71-year-old values for older patients, rather
than embrace a novel methodology of unknown provenance.
Substantial evidence supports the ALJ’s determination
that McLain experienced a totally disabling lung condition.
ii
Old Ben further contends that, even if McLain experienced
total disability, the ALJ nonetheless erred by linking his disa-
bility to coal dust. Old Ben insists that McLain’s treatment his-
tory compels a contrary conclusion: that McLain’s years of

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10 No. 23-1083
smoking were the only significant cause of his lung damage.
It does not.
To receive benefits under the Black Lung Act, a claimant’s
pulmonary disorder need not result solely—or even
primarily—from coal dust. The Act requires only that the
condition be “significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.” 20
C.F.R. § 718.201(a)(2), (b). The statute further presumes that a
totally disabled miner who, like McLain, worked
underground for at least 15 years suffers from a dust-related
condition. See 30 U.S.C. § 921(c)(4); 20 C.F.R. §§ 718.202(a)(3),
718.305(b)(1)(i)–(iii). To rebut this presumption, a coal
company bears the burden of establishing that coal dust did
not play any substantially aggravating role. 30 U.S.C.
§ 921(c)(4).
Old Ben fails to identify any evidence that could rule out
coal dust as a significant factor. Drs. Rosenberg and Tuteur
pointed to several aspects of McLain’s medical record that, in
their opinion, indicate that tobacco smoke was the primary
cause of McLain’s condition. Even if that were true, it would
not preclude the ALJ from finding that coal dust also played
an important contributing role—much less require us to hold
that no “reasonable mind” could think otherwise. See Biestek,
139 S. Ct. at 1154.
Old Ben’s argument also misses the mark by losing sight
of its audience: a generalist court conducting appellate review
under a deferential standard. When reviewing a record for
substantial evidence, we “do not reweigh the evidence, re-
solve inconsistencies in the record, make credibility determi-
nations, or substitute our inferences for those drawn below.”
Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 478

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No. 23-1083 11
(7th Cir. 2001). Our role is not to second-guess an ALJ’s scien-
tific conclusions or impose our judgment on issues of medical
fact. We merely seek to ensure that an ALJ considered both
sides of disputed medical issues, weighed the evidence, and
reached a reasonable conclusion.
Old Ben asks us to step far beyond our role by choosing
sides in a number of complex scientific disputes. It insists, for
instance, that pneumoconiosis usually does not improve
through lung medications, that specific types of lung
emphysema stem only from smoking, and that McLain’s
pulmonary-exam results indicate that his smoking had an
outsized impact. We decline to take a position on these highly
technical issues, as we are confident (given our review of the
record) that the ALJ’s findings were reasonable and
adequately supported. See Beeler, 521 F.3d at 727 (“We do not
place the evidence back on the scale after the ALJ has already
done so. We simply examine whether the scale was correctly
calibrated.”).
The medical record contains substantial evidence for the
conclusion that coal dust significantly related to, or substan-
tially aggravated, McLain’s lung condition. The Act requires
no more.
We therefore DENY the petition for review and AFFIRM
the judgment of the Benefits Review Board.

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