Estate of Glover S. McCutcheon v. Island Creek Coal Company (Board decision, May 29, 2025)

BRB final decision. The Benefits Review Board affirmed the award of black lung benefits on the miner's subsequent claim. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Glover McCutcheon's estate pursued his later black lung claim after his death. An administrative law judge awarded benefits, finding that his underground coal work and disabling respiratory impairment invoked a statutory presumption of disability due to pneumoconiosis. Island Creek Coal challenged limits on a treating doctor's deposition and argued that it had rebutted the presumption. The Board upheld the judge's exclusion of testimony that went beyond the doctor's treatment records. It also upheld the judge's finding that the employer's medical opinions did not disprove legal pneumoconiosis. The benefits award stands.

Decision snapshot

• Authority: Presumption under 30 U.S.C. § 921(c)(4) and 20 C.F.R. § 718.305; evidence limits under 20 C.F.R. § 725.456(b)(1).
• Outcome: Black lung benefits award affirmed.
• Key point: The employer did not rebut the presumption after the judge permissibly discounted its medical opinions on legal pneumoconiosis.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 24-0058 BLA

ESTATE of GLOVER S. McCUTCHEON
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Claimant-Respondent
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v. )
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ISLAND CREEK COAL COMPANY
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and
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NOT-PUBLISHED
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CONSOL ENERGY INCORPORATED
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) DATE ISSUED: 05/29/2025
Employer/Carrier-
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Petitioners
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DIRECTOR, OFFICE OF WORKERS’
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COMPENSATION PROGRAMS, UNITED
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STATES DEPARTMENT OF LABOR
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Party-in-Interest
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DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Patricia J. Daum, Administrative Law Judge, United States Department of Labor.

Timothy C. MacDonnell (Advanced Administrative Litigation Clinic, Washington and Lee University School of Law), Lexington, Virginia, for Claimant.1

1 The Miner, Glover S. McCutcheon, died on October 5, 2021. Claimant’s Exhibit 18 at 1. Claimant – the Miner’s widow, Sharen McCutcheon – was appointed as the executrix of his estate and is pursuing his claim on behalf of his estate. Claimant’s Exhibit 19. William S. Mattingly (Jackson Kelly PLLC), Lexington, Kentucky, for Employer.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and JONES, Administrative Appeals Judges.

PER CURIAM:

Employer appeals Administrative Law Judge (ALJ) Patricia J. Daum’s Decision and Order Awarding Benefits (2021-BLA-05002) rendered on a subsequent claim filed on April 18, 2019,2 pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901- 944 (2018) (Act).

The ALJ determined Claimant established the Miner had 28.25 years of underground coal mine employment. She also found he had a totally disabling respiratory or pulmonary impairment, 20 C.F.R. §718.204(b)(2), and therefore invoked the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act. 3 30 U.S.C. §921(c)(4) (2018). The ALJ further found Employer failed to rebut the

2 The Miner filed an initial claim for benefits on November 8, 2016, which the district director denied on March 12, 2018, for failing to establish a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b); Director’s Exhibit 1 at 6-7, 108-11. When a miner files a claim for benefits more than one year after the denial of a previous claim becomes final, the ALJ must also deny the subsequent claim unless she finds “one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. §725.309(c); see White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R.
§725.309(c)(3). Because the Miner failed to establish total disability in his prior claim, he had to submit new evidence establishing this element to obtain a review of his subsequent claim on the merits. See 20 C.F.R. §725.309(c)(3); White, 23 BLR at 1-3; Director’s Exhibit 1.
3 Section 411(c)(4) provides a rebuttable presumption that a miner’s total disability

was due to pneumoconiosis if he had at least fifteen years of underground or substantially similar surface coal mine employment and a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2018); see 20 C.F.R. §718.305.

2 presumption. Consequently, she concluded Claimant established a change in an applicable condition of entitlement, 20 C.F.R. §725.309(c), and awarded benefits.

On appeal, Employer contends the ALJ erred in limiting the scope of the deposition testimony of Dr. Durham, the Miner’s treating physician, and in finding it failed to rebut the Section 411(c)(4) presumption.4 Claimant responds, urging affirmance of the award of benefits. The Acting Director, Office of Workers’ Compensation Programs, did not file a substantive response.

The Benefits Review Board’s scope of review is defined by statute. We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.5 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Evidentiary Issue

Claimant and Employer submitted treatment records from Dr. Durham,6 and Employer submitted Dr. Durham’s January 26, 2022 deposition testimony as “[c]ross- examination.” Claimant’s February 11, 2022 Evidence Summary Form; Employer’s February 10, 2022 Evidence Summary Form; Claimant’s Exhibits 8, 12, 14; Employer’s Exhibits 11, 12; see also Director’s Exhibit 12. Prior to the March 3, 2022 hearing,

4 Employer does not challenge the ALJ’s findings that Claimant established the Miner had 28.25 years of underground coal mine employment and a totally disabling respiratory or pulmonary impairment, thereby establishing a change in an applicable condition of entitlement and invoking the Section 411(c)(4) presumption. Decision and Order at 4, 33, 43. We therefore affirm them. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983).
5 The Board will apply the law of the United States Court of Appeals for the Fourth

Circuit because the Miner performed his last coal mine employment in West Virginia. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989); Employer’s Brief at 5; Claimant’s Response Brief at 9 n.4.
6 Claimant designated Dr. Durham’s treatment records from June 5, 2019 to May

18, 2020 at Greenbrier Pulmonology, from August 18, 2020 to November 11, 2020, and from January 12, 2021 to August 5, 2021 at Pocahontas Memorial Pulmonary Clinic. Claimant’s Exhibits 8, 12, 14. Employer designated Dr. Durham’s treatment records from August 18, 2020 to August 5, 2021. Employer’s Exhibit 12. Neither party submitted a medical report from Dr. Durham.

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Claimant moved to exclude Dr. Durham’s deposition testimony, Employer’s Exhibit 11, in its entirety.

At the hearing, the parties discussed the objections to Dr. Durham’s deposition testimony, and the ALJ instructed them to exchange proposed redactions of Dr. Durham’s deposition. See Hearing Transcript at 12-21. In an April 21, 2022 Order Denying Claimant’s Proposed Redactions of Dr. Durham’s Deposition in Part and Granting Them in Part, the ALJ denied Claimant’s requested redactions to Dr. Durham’s testimony that were “focused on his views regarding his patient, explanations of medical terms and conditions affecting the [the Miner] and his treatment modalities based upon those views.” April 21, 2022 Order at 2. However, the ALJ granted Claimant’s proposed redactions to the portion of Dr. Durham’s testimony in which he did not discuss the medical records but rather offered his own opinions concerning whether the Miner had the pulmonary capacity to perform coal mine employment and the contribution of coal mine dust exposure to the Miner’s respiratory disease. Id. at 2-3; see Employer’s Exhibit 11 at 39:23-43:3, 43:20- 44:5.

Employer argues the ALJ erred in redacting the portion of Dr. Durham’s cross- examination deposition testimony concerning total disability causation, contending the ALJ did not explain “why the penultimate question of causation was off limits” and asserting there is no regulatory basis to prohibit it. Employer’s Brief at 6. We disagree.

ALJs exercise broad discretion in resolving procedural and evidentiary matters.
Dempsey v. Sewell Coal Corp., 23 BLR 1-47, 1-63 (2004) (en banc); Clark v. Karst- Robbins Coal Co., 12 BLR 1-149, 1-153 (1989) (en banc). A party seeking to overturn the disposition of an evidentiary issue must establish the ALJ’s action was an abuse of discretion. V.B. [Blake] v. Elm Grove Coal Co., 24 BLR 1-109, 1-113 (2009).

The regulations set numerical limits on the specific types of medical evidence the parties can submit into the record. See 20 C.F.R. §§725.414, 725.456(b)(1). In support of their affirmative case, each party may submit no more than two medical reports. 20 C.F.R.
§725.414(a)(2)(i), (a)(3)(i). A physician who prepared a medical report submitted by the parties that is admitted into the record may also testify with respect to the claim as a supplement to the physician’s initial opinion. 20 C.F.R. §725.414(c). If a party has not submitted a physician’s written medical report, a party may nonetheless submit that physician’s testimony as a medical report subject to the evidentiary limitations. Id. Medical reports exceeding the evidentiary limitations “shall not be admitted into the hearing record in the absence of good cause.” 20 C.F.R. §725.456(b)(1). Hospitalization and treatment records relating to a respiratory or pulmonary related disease may, however, be admitted notwithstanding the numerical evidentiary limitations.
20 C.F.R.
§725.414(a)(4).

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 Employer designated its full complement of medical reports, designating the medical reports of Drs. Zaldivar and Fino, while Claimant designated only Dr. Sood’s medical report. Claimant’s February 11, 2022 Evidence Summary Form at 5; Employer’s February 10, 2022 Evidence Summary Form at 5-6; Claimant’s Exhibit 3; Employer’s Exhibits 5, 7. Neither party designated a medical report from Dr. Durham. However, as previously indicated, both parties designated records from Dr. Durham relating to his treatment of the Miner’s respiratory and pulmonary conditions, and Employer designated Dr. Durham’s deposition testimony. Claimant’s February 11, 2022 Evidence Summary Form at 9-11; Employer’s February 10, 2022 Evidence Summary Form at 8; Claimant’s Exhibits 8, 12, 14; Employer’s Exhibits 11, 12. On its Evidence Summary Form, which asks the parties to identify whether a testifying physician had also prepared an “Earlier Report,”,7 Employer identified Director’s Exhibit 12, Claimant’s Exhibit 8, and Employer’s Exhibit 12, which contain some of Dr. Durham’s treatment records. Employer’s February 10, 2022 Evidence Summary Form at 8.

Contrary to Employer’s contention, the ALJ explained that she was redacting those portions of Dr. Durham’s deposition testimony that did not discuss diagnoses or opinions he made in the treatment records. April 21, 2022 Order at 2-3; see 20 C.F.R. §725.414(a), (c). We note that Employer does not challenge the ALJ’s redaction of Dr. Durham’s testimony concerning the Miner’s ability to perform the exertional requirements of his usual coal mine work based on his pulmonary capacity and whether simple coal workers’ pneumoconiosis can be totally disabling. April 21, 2022 Order at 2-3; see Employer’s Exhibit 11 at 39:23-41:24, 42:5-43:3. Consequently, we affirm these findings by the ALJ. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983). Nor does Employer allege “good cause” exists for the admission of Dr. Durham’s deposition testimony concerning total disability causation. 20 C.F.R. §725.456(b)(1). We thus affirm the ALJ’s

7 Employer’s Evidence Summary Form contains the following instructions:

IX. Testimony. 20 C.F.R. § 725.414(c).

A physician who prepared a medical report, admitted under § 725.414, above, may testify with respect to the claim. If a party submitted fewer than two medical reports, a physician who did not prepare a prior medical report may testify in lieu of such a medical report, but the testimony is considered a medical report of the party.

Employer’s February 10, 2022 Evidence Summary Form at 8. The form then asks the parties to identify, among other things, the “Exhibit No. of Earlier Report” prepared by the testifying physician. Id.

5 permissible decision to exclude those portions of Dr. Durham’s deposition testimony. See Dempsey, 23 BLR at 1-63; Clark, 12 BLR at 1-153; Blake, 24 BLR at 1-113; see also Keener v. Peerless Eagle Coal Co., 23 BLR 1-229, 1-242 n.15 (2007) (en banc) (if a medical report is based, in whole or in part, on inadmissible evidence, the ALJ has several available options within his discretion, including redaction of the objectionable content). Moreover, the ALJ stated that even if she considered Dr. Durham’s testimony concerning total disability causation, his response “is so equivocal to have little probative value . . . (i.e. ‘I can’t say [that] one way or [an]other’).” April 21, 2022 Order at 3 (citing Employer’s Exhibit 11 at 43:20-44:4). Consequently, even if the ALJ had admitted this portion of Dr. Durham’s testimony, Employer has not identified how it would have made any difference. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (Appellant must explain how the “error to which [it] points could have made any difference.”).

Rebuttal of the Section 411(c)(4) Presumption

Because Claimant invoked the Section 411(c)(4) presumption, the burden shifted to Employer to establish the Miner neither has legal nor clinical pneumoconiosis,8 or “no part of [his] respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] § 718.201.” 20 C.F.R. §718.305(d)(1)(i), (ii); Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-155 n.8 (2015). The ALJ found Employer failed to establish rebuttal by either method.9 Decision and Order at 33-43.

Legal Pneumoconiosis

To disprove legal pneumoconiosis, Employer must establish the Miner does not have a chronic lung disease or impairment “significantly related to, or substantially

8 “Legal 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 definition includes “any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §718.201(b). “Clinical pneumoconiosis” consists of “those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment.” 20 C.F.R. §718.201(a)(1).
9 The ALJ found Employer disproved clinical pneumoconiosis. Decision and Order at 34-36.

6 aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §§718.201(a)(2), (b), 718.305(d)(1)(i)(A).

Employer relies on Drs. Zaldivar’s and Fino’s opinions that the Miner does not have legal pneumoconiosis.10 Employer’s Brief at 11-13. Dr. Zaldivar diagnosed restrictive forced vital capacity on pulmonary function testing due to paralysis of the diaphragm that was unrelated to the Miner’s work in the coal mines. Employer’s Exhibits 5 at 10; 9 at 24- 25, 30-31. He also indicated that the Miner’s chronic bronchitis is due to bronchiectasis and his hypoxemia is due to his paralyzed left lung. Employer’s Exhibit 9 at 17, 26-27. Dr. Fino similarly diagnosed a restrictive impairment, which he attributed to the left diaphragm elevation unrelated to coal mine dust. Employer’s Exhibits 7 at 8-9, 10 at 21-

22. The ALJ found their opinions not well-reasoned and, therefore, insufficient to satisfy
    Employer’s burden of proof. Decision and Order at 40-41.

    Employer argues the ALJ applied the wrong legal standard and erred in finding Drs.
    Zaldivar’s and Fino’s opinions are insufficient to rebut the existence of legal pneumoconiosis. Employer’s Brief at 4-5, 11-13. We disagree.

    Contrary to Employer’s contention, the ALJ did not reject the opinions of Drs.
    Zaldivar and Fino because they failed “to prove the absence of pneumoconiosis.” Employer’s Brief at 4-5. To support its assertion, Employer quotes a portion of the ALJ’s discussion regarding Employer’s burden of proof concerning the existence of legal pneumoconiosis.11 Employer’s Brief at 4. However, the ALJ correctly stated at the outset

    10 The ALJ also considered the opinions of Drs. Gaziano and Sood. She found Dr.
    Gaziano did not render an opinion on legal pneumoconiosis. Decision and Order at 37; Director’s Exhibit 10. Dr. Sood opined that the Miner had legal pneumoconiosis, which does not aid Employer in rebutting the Section 411(c)(4) presumption. Claimant’s Exhibit 3; Employer’s Exhibit 8. Thus, we need not address Employer’s arguments concerning the ALJ’s weighing of Dr. Sood’s opinion. See Decision and Order at 38-39; Employer’s Brief at 8-10.
    11 Employer states:

    ALJ Daum included the standard she applied to review the medical opinion
    evidence as to legal pneumoconiosis in the following paragraphs:

    The Act broadly defines pneumoconiosis as a chronic dust disease of the lung
    and its sequelae, including respiratory and pulmonary impairments, arising
    out of coal mine employment. 20 C.F.R. § 718.201(a). This definition
    includes medical pneumoconiosis (often referred to as clinical
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    that because Claimant invoked the presumption at 20 C.F.R. §718.305, the burden shifted to Employer to demonstrate the Miner “does not have a lung disease ‘significantly related to, or substantially aggravated by, dust exposure in coal mine employment’ by a preponderance of the evidence.” Decision and Order at 33 (quoting 20 C.F.R.
    §718.201(b)). Further, when evaluating Drs. Zaldivar’s and Fino’s opinions and in reaching her conclusion concerning rebuttal of legal pneumoconiosis, the ALJ correctly applied the preponderance of the evidence standard.12 See Decision and Order at 39-41.

    pneumoconiosis), as well as the broader statutory definition of legal
    pneumoconiosis. See, e.g., Island Creek Coal Co. v. Compton, 211 F.3d 203,
    210 (4th Cir. 2000). While clinical pneumoconiosis is narrowly defined as
    the lung disease caused by the fibrotic reaction of the lung tissue to inhaled
    dust, legal pneumoconiosis refers to all lung diseases that are significantly
    related to, or substantially aggravated by, dust exposure in coal mine
    employment. Doris Coal Co. v. Director, OWCP, 938 F.2d 492, 495 (4th
    Cir. 1991).

    Thus, in order to rebut the § 921(c)(4)(A) presumption that [the Miner] had
    pneumoconiosis, the Employer must establish the absence of any respiratory
    or pulmonary impairment arising out of coal mine employment, including
    chronic pulmonary disease resulting from respiratory or pulmonary
    impairment significantly related to or significantly aggravated by dust
    exposure in coal mine employment. See e.g., Shonborn v. Director, OWCP,
    8 B.L.R. 1-434 (1986); Biggs v. Consolidation Coal Co., 8 B.L.R. 1-317
    (1985). Rebuttal is accomplished only by strongly persuasive evidence
    demonstrating the falsity of a presumed fact. In order to meet this burden,
    the Employer must affirmatively prove the absence of pneumoconiosis.
    Brandywine Explosives & Supply v. Director, OWCP [Kennard], 790 F.3d
    657 (6th Cir. 2015); Cent. Ohio Coal Co. v. Director, OWCP [Sterling], 762
    F.3d 483 (6th Cir. 2014); Minich v. Keystone Coal Mining Corp., 25 BLR 1-
    149 (2015).

Employer’s Brief at 4 (quoting Decision and Order at 36).

12 Employer states the ALJ “relies on precedent from different circuits that are not

binding on this matter arising from work in West Virginia and subject to the Fourth Circuit’s decisions.” Employer’s Brief at 5 n.2. To the extent this argument is adequately briefed, we reject it, as Employer has not explained how the ALJ’s citation to other circuit case law conflicts with Fourth Circuit precedent or would have altered her findings regarding legal pneumoconiosis. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009).

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Moreover, as explained below, the ALJ discredited Drs. Zaldivar’s and Fino’s opinions because she found they are not well-reasoned, not because they failed to meet an allegedly heightened legal standard. Decision and Order at 39-41; see Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984).

In weighing Dr. Zaldivar’s opinion that the Miner does not have legal pneumoconiosis based, in part, on the absence of evidence of pneumoconiosis on his x- rays, the ALJ permissibly found his opinion unpersuasive because the regulations provide that legal pneumoconiosis may be present even in the absence of a positive x-ray for clinical pneumoconiosis. See Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 313 (4th Cir. 2012) (the regulations “separate clinical and legal pneumoconiosis into two different diagnoses” and “provide that no claim for benefits shall be denied solely on the basis of a negative chest x-ray”) (internal quotations omitted); Cumberland River Coal Co. v. Banks, 690 F.3d 477, 489 (6th Cir. 2012) (ALJ properly concluded the regulations provide legal pneumoconiosis may exist in the absence of clinical pneumoconiosis); 20 C.F.R. §§718.201, 718.202(a)(4), 718.202(b); Decision and Order at 39-40; Employer’s Exhibits 5 at 7; 9 at 35, 54-63. The ALJ also permissibly determined that Dr. Zaldivar did not adequately explain why coal mine dust could not have also contributed to the Miner’s chronic bronchitis. Looney, 678 F.3d at 316-17; Island Creek Coal Co. v. Compton, 211 F.3d 203, 211 (4th Cir. 2000); Decision and Order at 40; Employer’s Exhibit 9 at 17-18.

In evaluating Dr. Fino’s opinion that all of the studies dealing with latency have been radiographic studies, the ALJ permissibly discredited his opinion as inconsistent with the regulation recognizing pneumoconiosis, whether clinical or legal, 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); 65 Fed. Reg. 79,920, 79,937 (Dec. 20, 2000); see Hobet Mining, LLC v. Epling, 783 F.3d 498, 506 (4th Cir. 2015) (medical opinion not in accord with the accepted view that pneumoconiosis can be both latent and progressive may be discredited); see also Sunny Ridge Mining Co. v. Keathley, 773 F.3d 734, 739 (6th Cir. 2014) (Act recognizes that pneumoconiosis, whether clinical or legal, can first become detectable after a miner ceases coal mine employment); Decision and Order at 40; Employer’s Exhibit 10 at 21. In addition, the ALJ permissibly found that Dr. Fino did not sufficiently explain why coal mine dust could not have also contributed to the Miner’s hypoxemia even if it was not the sole cause. Looney, 678 F.3d at 316-17; Compton, 211 F.3d at 211; Decision and Order at 41; Employer’s Exhibits 7 at 8-9; 10 at 16, 33.

Employer’s arguments amount to a request to reweigh the evidence, which we are not empowered to do. See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989). Thus, we affirm the ALJ’s finding that the medical opinions on legal pneumoconiosis do not meet Employer’s burden on rebuttal. Decision and Order at 41.

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 Further, we reject Employer’s argument that the ALJ erred in failing to specifically discuss the Miner’s treatment records in considering whether it rebutted the existence of legal pneumoconiosis.13 Employer’s Brief at 5-6. But Employer concedes that the ALJ discussed the treatment records and related opinions when summarizing the evidence of record. Id. at 5; see Decision and Order at 23-27. In addition, we have affirmed the ALJ’s permissible discrediting of Drs. Zaldivar’s and Fino’s opinions – both of whom considered and discussed the treatment records in forming their opinions. See Employer’s Exhibits 5, 7, 9, 10. Thus, Employer fails to identify how separately discussing the treatment records would have made any difference to the ALJ’s determination, especially given Employer’s affirmative burden to rebut legal pneumoconiosis. See W. Va. CWP Fund v. Director, OWCP [Smith], 880 F.3d 691, 699 (4th Cir. 2018) (“Once the presumption is invoked, there is no need for the claimant to prove the existence of pneumoconiosis; instead, pneumoconiosis arising from coal mine employment is presumed, subject only to rebuttal by the employer . . . .”); Shinseki, 556 U.S. at 413; Employer’s Brief at 5-6. We therefore affirm the ALJ’s finding that Employer did not disprove legal pneumoconiosis. 20 C.F.R.
§718.305(d)(1)(i)(A); Decision and Order at 41. Employer’s failure to disprove legal pneumoconiosis precludes a rebuttal finding that the Miner does not have pneumoconiosis. 20 C.F.R. §718.305(d)(1)(i).

Disability Causation

The ALJ found Employer did not rebut the presumption by establishing “no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] § 718.201.” 20 C.F.R. §718.305(d)(1)(ii); Decision and Order at 41-43. Because Employer raises no specific arguments on disability causation, we affirm the ALJ’s determination that Employer failed to prove that no part of the Miner’s total disability was caused by pneumoconiosis. 20 C.F.R. §718.305(d)(1)(ii); Skrack, 6 BLR at 1-711; Decision and Order at 43.

13 Employer states none of the treating physicians diagnosed legal pneumoconiosis

and the ALJ failed to discuss “[h]ow this evidence was considered or impacted the other evidence . . . .” Employer’s Brief at 5. It then generally argues these records support Drs. Zaldivar’s and Fino’s opinions and “undermine” Dr. Sood’s opinion. Id. at 5-8.

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Accordingly, we affirm the ALJ’s Decision and Order Awarding Benefits.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

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