WILLIAM FRANK MEYER, PETITIONER V. ZEIGLER COAL COMPANY AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR No. 89-7383 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The Federal Respondent In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-11a) is reported at 894 F.2d 902. The decision and order of the Benefits Review Board (App., infra, 1a-2a) and the decision and order of the administrative law judge (Pet. App. 1b-6b) are not reported. JURISDICTION The court of appeals entered its judgment on January 31, 1990. The petition for a writ of certiorari was filed on April 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals correctly upheld a denial of black lung benefits under 20 C.F.R. 727.203(b)(2) on the ground that the evidence showed that no medical impairment prevented petitioner from engaging in coal mining or gainful work comparable to coal mining. STATEMENT 1. Petitioner applied for black lung benefits in March 1978 after 39 years of coal mine employment. Pet. App. 1a. A miner is eligible for black lung benefits if "(a) he or she is totally disabled, (b) the disability was caused, at least in part, by pneumoconiosis, and (c) the disability arose out of coal mine employment." Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141 (1987). After a Department of Labor deputy commissioner determined that he was eligible for benefits, respondent Zeigler Coal Company, the responsible coal mine operator, controverted that finding and requested a hearing. An administrative law judge subsequently denied benefits. Pet. App. 1b-6b. The ALJ applied 20 C.F.R. 727.203, which provides four methods by which a living miner can invoke a presumption of eligibility for benefits. Pet. App. 2a. /1/ The ALJ concluded that neither the x-ray evidence, the results of ventilatory tests, nor the results of blood gas studies supported invocation of the presumption. Id. at 4b. However, the ALJ concluded that petitioner had invoked the presumption by presenting a medical report by a Dr. Fulk diagnosing pulmonary emphysema and anthracosis. Id. at 5b. The ALJ next concluded that a later medical report and deposition testimony by another physician, Dr. Dew, outweighed Dr. Fulk's report and rebutted the presumption of eligibility. /2/ Dr. Dew had diagnosed "'very minimal' obstructive lung disease" caused by cigarette smoking and had concluded that petitioner was "a healthy man capable of doing anything that any other 63 year old man is capable of doing." Pet. App. 5b. Dr. Dew's assessment was more credible than Dr. Fulk's, the ALJ stated, because it was based on more recent medical evidence. In addition, the ALJ noted that the finding of no impairment was supported by the blood gas studies and ventilatory tests, which did not show that petitioner suffered from pneumoconiosis. Id. at 6b. "Accordingly," the ALJ held (Pet. App. 6b), "rebuttal is found pursuant to subsection (b)(2)," which provides that the presumption is rebutted by evidence establishing that the claimant "is able to so his usual coal mine work or comparable and gainful work." The ALJ added that the evidence showed that if petitioner "suffers from any disability at all it did not arise from coal mine employment." Pet. App. 6b. "Thus," he concluded (ibid.), "rebuttal is also found under subsection (b)(3)," which provides that the presumption is rebutted by evidence establishing that the claimant's disability "did not arise in whole or in part out of coal mine employment." 2. The Benefits Review Board affirmed the denial on the ground that the ALJ's "findings of rebuttal pursuant to subsections (b)(2) and (b)(3) are supported by substantial evidence and in accord with law." App., infra, 2a. Specifically, the Board noted that it was within the ALJ's discretion "to accord greater weight to Dr. Dew's report and deposition testimony because it was more recent." Ibid. 3. The court of appeals affirmed. Pet. App. 1a-11a. It noted the coal company's argument that, under Mullins Coal, the ALJ had erred in invoking the presumption on the basis of Dr. Fulk's report without weighing it against Dr. Dew's report. Pet. App. 3a n.2. However, the court found that it was unnecessary for it to determine whether Mullins Coal applied "retroactively" to this case because it agreed that the presumption had been rebutted. /3/ In affirming, the court of appeals relied on the second rebuttal method only. /4/ That method provides for rebuttal where the evidence shows that the miner "is able to do his usual coal mine work or comparable and gainful work." The court noted that Dr. Dew had conducted a physical examination of petitioner, had "studied the results of various tests including pulmonary function studies, arterial blood gas studies, a chest x-ray, and an electrocardiogram," and had considered his "work history, his medical history and his history of cigarette smoking." Pet. App. 9a. In contrast, the court noted, Dr. Fulk had not performed "the range of tests that Dr. Dew performed" (although he had performed one ventilatory study, which did not support a finding of disability), Dr. Fulk "was unaware of (petitioner's) smoking history," and he "did not diagnose pneumoconiosis or explicitly state that (petitioner) suffered from a totally disabling disease." Id. at 9a, 10a. Thus, the court of appeals held that the ALJ's conclusion that petitioner "does not suffer from any totally disabling condition in his ability to perform his usual coal mine or comparable work" was supported by substantial evidence. Id. at 10a. The court rejected petitioner's argument that the ALJ had applied an erroneous legal test by mentioning Dr. Dew's conclusion that petitioner was "a healthy man capable of doing anything that any other 63 year old man is capable of doing." Pet. App. 10a. The ALJ was not stating a legal test, the court concluded, but simply his conclusion that any inability to work was due to petitioner's age and not to a medical impairment. Id. at 10a-11a. This was proper, the court concluded, because the relevant test under the second rebuttal method is whether medical impairments, not age, prevent a miner from working. Since "there was no medical cause impairing (petitioner) from engaging in coal mining or gainful work comparable to coal mining," the court upheld the determination that petitioner is not entitled to black lung benefits. Id. at 11a. ARGUMENT The court of appeals' decision is correct and does not conflict with any decision of this Court or of another court of appeals on the question presented for review. Accordingly, further review is not warranted. 1. In construing 20 C.F.R. 727.203(b)(2), the courts of appeals have articulated three principles relevant to this case. First, they have held that a party contesting a claimant's eligibility may not rebut a presumption of entitlement under the second method by proving only that a miner is not totally disabled from a respiratory or pulmonary disease. Rather, the party must prove that a miner does not have any impairment that is totally disabling. See Martin v. Alabama By-Products Corp., 864 F.2d 1555, 1557 (11th Cir. 1989); Oravitz v. Director, OWCP, 843 F.2d 738, 740 & n.3 (3d Cir. 1988); York v. Benefits Review Board, 819 F.2d 134, 137 (6th Cir. 1987); Sykes v. Director, OWCP, 812 F.2d 890, 894 (4th Cir. 1987). Cf. Mitchelson v. Director, OWCP, 880 F.2d 265, 269 & n.4 (10th Cir. 1989) (upholding rebuttal by proof of no totally disabling respiratory or pulmonary impairment where claimant did not challenge that standard). The rationale for this principle is that whether a claimant is disabled due to a non-respiratory disease is relevant under the third method, which authorizes rebuttal by proof that the disability did not arise in whole or in part from coal mining. Martin, 864 F.2d at 1557. Second, in proving that a miner is not disabled from doing his usual coal mine work, a doctor assessing disability must consider the exertional or health requirements of the miner's work. See Kowalchick v. Director, OWCP, 893 F.2d 615, 623 (3d Cir. 1990); Gonzales v. Director, OWCP, 869 F.2d 776, 779 (3d Cir. 1989); Sykes, 812 F.2d at 893. The third principle is that a miner is not entitled to benefits if his age rather than a medical impairment prevents him from performing his usual coal mine work. Such consideration is relevant only in assessing a miner's ability to do "comparable and gainful work," an alternate method of satisfying Labor's second rebuttal method. Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728 (6th Cir. 1985). Thus, a court may discount a doctor's reservation about a miner's ability to do his usual coal mining work when "any reservation that he had was based entirely upon (claimant's) age, not upon his medical condition." Moats v. King Knob Coal Co., 10 Black Lung Rep. (MB) 2-141, 2-144 (4th Cir. 1987) (unpublished). See also Kolesar, 760 F.2d at 731. Contrary to petitioner's contentions, the court of appeals was faithful to these principles. Thus, consistent with other courts' recognition that proof of no pulmonary or respiratory disability, standing alone, would not ordinarily satisfy the second rebuttal method, the court found substantial evidence to support the ALJ's conclusion that petitioner "does not suffer from any totally disabling condition." Pet. App. 10a (emphasis added). Similarly, the court noted that Dr. Dew, whose report and testimony the ALJ credited, had "considered (petitioner's) work history" (id. at 9a), consistent with other courts' requirement of consideration of the exertional or health requirements of a miner's work. And the court properly concluded that petitioner was not entitled to benefits if he could not perform his usual coal mine work on account of his age rather than a medical impairment. Id. at 10a-11a. To be sure, the ALJ did not set forth all of these principles and explicitly address each of them in turn. But no such precision was necessary because a court will uphold an agency's decision "of less than ideal clarity if the agency's path may reasonably be discerned" (Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286 (1974)), "or if failure to explain every step in the reasoning process could have made no difference in the outcome" (Markus v. Old Ben Coal Co., 712 F.2d 322, 327 (7th Cir. 1983) (citations omitted)). Indeed, the Sixth Circuit has held that an ALJ need not expressly state that a miner is able to do his usual coal mine work or comparable and gainful work in finding rebuttal under the second method where, as here, there is no evidence of any other kind of impairment. See Neace v. Director, OWCP, 867 F.2d 264, 267-268 (6th Cir. 1989), on rehearing, 877 F.2d 495 (6th Cir. 1989). Likewise, any failure by the ALJ or the court to make an express finding that petitioner was able to work was not necessary because the ALJ's decisionmaking path may be discerned (see Pet. App. 9a-10a) and the evidence in this case supports rebuttal under the applicable legal principles. 2. Contrary to petitioner, the holding in this case does not conflict with the Fourth Circuit's holding in Sykes. Petitioner asserts (Pet. 11) that the Fourth Circuit held in that case that "medical evidence demonstrating no impairment clearly cannot be equated with" the ability to perform coal mine work. But in Sykes the miner was "concededly totally disabled." 812 F.2d at 893. Thus, the court held only that a finding of no respiratory impairment cannot be equated with a finding that a miner can perform coal mine work. Here, in contrast, the court found that "there was no medical cause impairing (petitioner) from engaging in coal mining." Pet. App. 11a. Similarly, there is no conflict between the decision below and decisions of the Sixth Circuit. In York, the claimant was disabled by "back problems, bronchitis, and other physical impairments." 819 F.2d at 137. In that context, the court of appeals held that the presumption could not be rebutted under the second method by proving that the miner "was not totally disabled by the respiratory impairment alone. Rather, (the coal company and the Director) must show the miner is not disabled." Id. at 138. See also Wright v. Island Creek Coal Co., 824 F.2d 505 (6th Cir. 1987) (proof that a claimant is disabled by heart disease rather than pneumoconiosis satisfies the third rebuttal method but not the second). The Sixth Circuit therefore did not hold in these cases that a claimant such as petitioner can avoid rebuttal when the evidence shows (Pet. App. 10a-11a) that he has no medical disability at all, but also suggests that he might not be able to do his usual coal mine work because of advanced age. In fact, the Sixth Circuit held in Kolesar that "age should not be considered" under such circumstances. 760 F.2d at 731; see also Neace, 867 F.2d at 268. Nor does there appear to be a conflict between the decision below and decisions of the Third Circuit. In Oravitz, as in Sykes and York, the court held that rebuttal may not be established under the second method by proof that a miner was not totally disabled "due to pneumoconiosis." 843 F.2d at 739-740. The court's rejection of certain medical evidence as not probative of the miner's ability to "perform the heavy labor of a coal miner" (843 F.2d at 740) seems to be a restatement of the rule that a doctor must consider the exertional requirements of a miner's job before concluding that a miner is not impaired from doing it. See ibid. (citing Sykes); Gonzales, 869 F.2d at 780. In this case, Dr. Dew both considered the claimant's work history and determined that he had no disability, pulmonary or otherwise. Pet. App. 9a. We do not believe that the Third Circuit would order an award of benefits under the facts of this case. In any event, the issue presented is of limited prospective importance because the presumption regulation applies only to claims filed before April 1, 1980. See Mullins Coal, 484 U.S. at 139. Thus, any disagreement between the decision below and the decision in Oravitz or any other case would not warrant review by this Court in the absence of evidence that it would affect a large number of pending cases, and there is no such evidence. Finally, review is not warranted to resolve any intracircuit conflict between the decision below and the decision in Taylor v. Peabody Coal Co., 892 F.2d 503 (7th Cir. 1989), petition for cert. filed, No. 89-1696 (May 2, 1990). /5/ The court concluded in Taylor v. Peabody Coal that the rebuttal methods in Section 727.203(b) violate Section 402(f)(2) of the Black Lung Benefits Act, 30 U.S.C. 902(f)(2), insofar as they are more restrictive than the rebuttal methods in a regulation (20 C.F.R. 410.490) applicable to an earlier phase of the black lung program. 892 F.2d at 506-507. Petitioner has not relied on Section 402(f)(2) as a basis for reversing the ALJ's denial of benefits. /6/ Moreover, an intracircuit conflict does not warrant review by this Court because it is "primarily the task of a Court of Appeals to reconcile its internal difficulties." Wisniewski v. United States, 353 U.S. 901, 902 (1957). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT P. DAVIS Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor EDWARD D. SIEGER Attorney Department of Labor JULY 1990 /1/ Under the regulation, eligibility for benefits is presumed to exist if a miner had at least ten years of coal mine employment and presents either: (1) x-ray, autopsy, or biopsy proof of pneumoconiosis; (2) ventilatory studies establishing a respiratory or pulmonary disease of a specified severity; (3) blood gas studies establishing an impairment in the transfer of oxygen from the lungs to the blood; or (4) "(o)ther medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establish(ing) the presence of a totally disabling respiratory or pulmonary impairment." 20 C.F.R. 727.203(a)(1)-(4); see also Mullins Coal, 484 U.S. at 141. /2/ The regulation provides that the presumption may be rebutted by either (1) proof that the miner is doing his usual coal mine work or comparable and gainful work; (2) proof that the miner is able to do such work; (3) proof that the miner's disability did not arise in whole or in part from coal mine employment; or (4) proof that the miner does not or did not have pneumoconiosis. 20 C.F.R. 727.203(b)(1)-(4); see also Mullins Coal, 484 U.S. at 143-144. /3/ The court rejected the claimant's argument that the ALJ had erred by not invoking the presumption based on the ventilatory test scores. Pet. App. 4a-7a. Petitioner no longer disputes the court's decision on this issue. /4/ The court did not rely on the third rebuttal provision -- the method providing that the presumption is rebutted by evidence that the miner's disability did not arise out of coal mine employment -- because the court had "held in Taylor v. Peabody Coal Co., (892 F.2d 503 (7th Cir. 1989), petition for cert. filed, No. 89-1696 (May 2, 1990)), that Section 727.203(b)(3) was invalid because it violated 30 U.S.C. Section 902(f)(2).". Pet. App. 4a n.3. /5/ Petitioner erroneously asserts that there is a conflict between the decision below and the decision in Wetherill v. Director, OWCP, 812 F.2d 376, 379-380 (7th Cir. 1987). In Wetherill, the Seventh Circuit suggested in dicta, consistent with the decision in this case, that proof of no respiratory or pulmonary impairment, by itself, is insufficient under the second rebuttal method. /6/ The court below relied on Taylor v. Peabody Coal in refusing to affirm the denial of benefits under the third rebuttal method. Pet. App. 4a n.3. While there is a conflict in the circuits on the validity of that method -- see Bethenergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295 (3d Cir. 1989), petition for cert. filed, No. 89-1714 (May 7, 1990) -- the conflict is not relevant to this case because Labor's third method was not a basis for the court's decision. In addition, the conflict is based on the meaning of Section 402(f)(2) of the Black Lung Benefits Act, an issue that is not presented in this case. See also Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th Cir. 1990); Dayton v. Consolidation Coal Co., 895 F.2d 173 (4th Cir. 1990); Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195 (6th Cir. 1989). APPENDIX