Michael R. Robbins v. Director, Office of Workers' Compensation Programs (Board decision, March 17, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's denial of black lung benefits. 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

Michael R. Robbins sought black lung benefits after working in coal mines. A judge credited 8.77 years of mine work, below the fifteen years required for the statutory presumption, and found that he had not proved clinical or legal pneumoconiosis. The Board found an error in the method for crediting some work years but held it harmless because the calculation gave Robbins at least as much credit as the proper method would. It also upheld the judge's decision to discount the only medical opinion linking his chronic bronchitis to coal dust because that doctor assumed fourteen years of mine work and did not adequately explain the link. The Board affirmed the denial. One judge disagreed with the majority's work-year rule but agreed with the result.

Decision snapshot

• Authority: Mine work duration under 20 C.F.R. § 725.101(a)(32); legal pneumoconiosis under §§ 718.201 and 718.202.
• Outcome: Black lung benefits denial affirmed.
• Key point: The work-year calculation error did not affect eligibility, and the supporting medical opinion was insufficient to prove 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. 24-0143 BLA

MICHAEL R. ROBBINS
)
)
Claimant-Petitioner
)
NOT-PUBLISHED
)
v. )
) DATE ISSUED: 03/17/2025
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Respondent1
)
DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Carrie Bland, Associate Chief Administrative Appeals Judge, United States Department of Labor.

Michael R. Robbins, Norton, Virginia.

David Giannaula (Jonathan Snare, Deputy Solicitor of Labor; Jennifer Feldman Jones, Acting Associate Solicitor; William M. Bush, Acting Counsel for Administrative Appeals), Washington, D.C., for the Acting Director, Office of Workers’ Compensation Programs, United States Department of Labor.

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

1
By Order dated May 21, 2024, the Board granted Employer’s Motion to Recaption Case and removed Employer from the caption because the ALJ had dismissed it as the responsible operator and no party challenges that finding. Robbins v. Director, OWCP, BRB No. 24-0143 BLA (May 21, 2024) (Order) (unpub.).
GRESH, Chief Administrative Appeals Judge, and JONES, Administrative Appeal Judge:

Claimant appeals, without representation,2 the Decision and Order Denying Benefits (2015-BLA-05060) of Associate Chief Administrative Law Judge (ALJ) Carrie Bland rendered on a claim filed on October 24, 2013, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).3

Initially, the ALJ dismissed Employer, United Castle Coal Company, as the responsible operator. The ALJ then found Claimant established 8.77 years of underground coal mine employment and therefore could not invoke the rebuttable presumption of total disability due to pneumoconiosis pursuant to Section 411(c)(4) of the Act, 30 U.S.C.
§921(c)(4) (2018).4 Considering entitlement under 20 C.F.R. Part 718, she found Claimant did not establish clinical or legal pneumoconiosis. 20 C.F.R. §718.202(a). Therefore, she denied benefits.

On appeal, Claimant generally challenges the ALJ’s denial of benefits. The Acting Director, Office of Workers’ Compensation Programs (the Director), filed a response brief in support of the ALJ’s denial of benefits.5

2
On Claimant’s behalf, Robin Napier, a benefits counselor with Stone Mountain Health Services of St. Charles, Virginia, requested the Benefits Review Board review the ALJ’s decision, but she is not representing Claimant on appeal. See Shelton v. Claude V. Keene Trucking Co., 19 BLR 1-88 (1995) (Order).
3
Administrative Law Judge (ALJ) Patrick M. Rosenow issued a Decision and Order Denying Benefits on April 27, 2018, but the Board subsequently vacated that denial and remanded the case to the Office of Administrative Law Judges for reassignment to a new ALJ and for further proceedings in light of the holding in Lucia v. SEC, 585 U.S. 237 (2018). Robbins v. United Castle Coal Co., BRB No. 18-0402 BLA (Oct. 30, 2019) (unpub.).
4
Section 411(c)(4) of the Act provides a rebuttable presumption that a miner is totally disabled due to pneumoconiosis if he has at least fifteen years of underground or substantially similar surface coal mine employment and a totally disabling respiratory impairment. 30 U.S.C. §921(c)(4) (2018); see 20 C.F.R. §718.305.
5
The Director initially filed a cross-appeal in this case, which the Board numbered BRB No. 24-0160 BLA, but the Board subsequently dismissed it based upon the Director’s motion. Robbins v. United Castle Coal Co., BRB Nos. 24-0143 BLA and 24-0160 BLA 2
In an appeal a claimant files without representation, the Board considers whether the Decision and Order below is supported by substantial evidence. Hodges v. BethEnergy Mines, Inc., 18 BLR 1-84, 1-86 (1994). We must affirm the ALJ’s findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law.6 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).

Section 411(c)(4) Presumption – Length of Coal Mine Employment

To invoke the Section 411(c)(4) presumption, Claimant must establish he worked at least fifteen years in underground or “substantially similar” surface coal mine employment. 20 C.F.R. §718.305(b)(1)(i). Claimant bears the burden to establish the number of years he worked in coal mine employment. See Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985); Hunt v. Director, OWCP, 7 BLR 1-709, 1-710-11 (1985). The Board will uphold an ALJ’s determination if it is based on a reasonable method of calculation and is supported by substantial evidence. See Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011).

The ALJ considered Claimant’s hearing testimony, Employment History Form CM- 911a, Social Security Administration (SSA) earnings records, and employment verification letters from Westmoreland Coal Company (Westmoreland Coal) and Pittston Coal Management Company (Pittston Coal). Decision and Order at 5-8; Director’s Exhibits 2- 4, 5-7; April 30, 2021 Hearing Transcript at 24-33. She permissibly gave greatest weight to Claimant’s SSA earnings records and the employment verification letters from two of Claimant’s employers because she found they provided “the most reliable detailing of Claimant’s employment history.” Muncy, 25 BLR at 1-27; Decision and Order at 5-6; Director’s Exhibits 5-7. She accurately found the two employment verification letters provided specific start and end dates totaling 1.67 calendar years: 1.5 years at Westmoreland Coal (March 14, 1977 to September 18, 1978, or a total of 553 calendar days) and 0.17 year at Pittston Coal (September 30, 1981 to December 4, 1981, or a total of 65 calendar days). Daniels Co. v. Mitchell, 479 F.3d 321, 334-35 (4th Cir. 2007); Decision and Order at 6; Director’s Exhibits 5, 6. We thus affirm the ALJ’s finding that

(Apr. 18, 2024) (Order) (unpub.); Robbins v. United Castle Coal Co., BRB Nos. 24-0143 BLA and 24-0160 BLA (Mar. 22, 2024) (Order) (unpub.).
6
This case arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit, as Claimant performed his coal mine employment in Virginia. Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Decision and Order at 4; Director’s Exhibit 3; April 30, 2021 Hearing Transcript at 16.

3 the two employment verification letters support a finding of 1.67 years of coal mine employment.

The ALJ then considered Claimant’s coal mine employment for which the specific start and end dates were unknown. Decision and Order at 6-8. She applied the method of computation provided at 20 C.F.R. §725.101(a)(32)(iii) 7 to ascertain the number of days Claimant worked, dividing his yearly earnings as reported in his SSA earnings records by the coal mine industry’s average daily earnings, as reported in Exhibit 610 to the Office of Workers’ Compensation Programs Coal Mine (Black Lung Benefits Act) Procedure Manual.8 Id. For years in which Claimant’s earnings reflected 125 or more working days in a given year, the ALJ credited him with one year of coal mine employment. Id. If Claimant had less than 125 working days, the ALJ credited him with a fractional year based on the ratio of the actual number of days worked to 125. Id. Based on this method, the ALJ credited Claimant with one full year of coal mine employment for the years 1980 and 1982 through 1985, and partial years in 1979, 1981, 1986, 1987, and 1988, totaling 7.10 years.9 Id.

To credit a miner with a year of coal mine employment in the Fourth Circuit, the Board has long interpreted Fourth Circuit case law to require the ALJ to first determine whether the miner was engaged in an employment relationship for a period of one calendar year, i.e., 365 days, or partial periods totaling one year. 20 C.F.R. §725.101(a)(32)(i); see Mitchell, 479 F.3d at 334-35 (one-year employment relationship must be established, during which the miner had 125 working days); Armco, Inc. v. Martin, 277 F.3d 468, 474- 75 (4th Cir. 2002) (recognizing the 2001 revisions to the regulations require a one-year

7
The regulation at 20 C.F.R. §725.101(a)(32)(iii) provides that if the beginning and ending dates of a miner’s coal mine employment cannot be ascertained, or the miner’s coal mine employment lasted less than a calendar year, the ALJ may determine the length of the miner’s work history by dividing the miner’s yearly income from work as a miner by the average daily earnings of employees in the coal mining industry for that year, as reported by the Bureau of Labor Statistics. 20 C.F.R. §725.101(a)(32)(iii).
8
Exhibit 610 to the Office of Workers’ Compensation Programs Coal Mine (Black Lung Benefits Act) Procedure Manual, entitled “Average Wage Base,” contains the average daily earnings of employees in coal mining and the earnings for those who worked 125 days during a year, and is referenced in 20 C.F.R. §725.101(a)(32)(iii).
9
The ALJ’s computation actually totals 7.12 years and not the 7.10 years she stated in her chart. Decision and Order at 7.

4 employment relationship during which the miner worked 125 days to establish a year of employment); Clark v. Barnwell Coal Co., 22 BLR 1-277, 1-280 (2003).

If the threshold one-year period is met, the ALJ must then determine whether the miner worked for at least 125 working days within that one-year period.10 20 C.F.R.
§725.101(a)(32). Proof that a miner worked at least 125 days or that a miner’s earnings exceeded the industry average for 125 days of work in a given year, however, does not satisfy the requirement that such employment occurred during a 365-day period and therefore, in itself, does not establish one full year of coal mine employment as defined in the regulations. See Clark, 22 BLR at 1-281.11

The ALJ erred in crediting Claimant with one full year of coal mine employment if he worked 125 or more days in a given year in coal mine employment. See Mitchell, 479 F.3d at 334-35. However, the ALJ’s error is harmless and remand is not required because the ALJ’s method of calculation that resulted in 8.77 years12 of coal mine employment credited Claimant with at least as many, if not more, years of coal mine employment than if she had done the proper initial, threshold analysis. See Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984); Decision and Order at 5-8. Consequently, we affirm the ALJ’s finding that Claimant established fewer than fifteen years of coal mine employment and therefore is unable to invoke the Section 411(c)(4) presumption.13 See 30 U.S.C.

10
If the threshold one-year period is met, “it must be presumed, in the absence of evidence to the contrary, that the miner spent at least 125 working days in such employment[,]” in which case the miner would be entitled to credit for one full year of employment. 20 C.F.R. §725.101(a)(32)(ii).
11
The Fourth Circuit has not adopted Shepherd v. Incoal, Inc., 915 F.3d 392 (6th Cir. 2019) or otherwise held that 125 days of earnings establishes a year-long employment relationship.
12
Adding the 1.67 years to the 7.12 years, the total number of years the ALJ actually calculated is 8.79, an amount still less than the fifteen years required to invoke the Section 411(c)(4) presumption.
13
The ALJ properly found Claimant’s 1975 to 1977 employment with Lee-Norse Company, a mine supply company for which Claimant “just” delivered parts to different coal mines but did not actually perform any coal mine work, was not coal mine employment, and thus she appropriately did not include it in her length of coal mine employment determination. See Hagy v. Director, OWCP, 11 BLR 1-142, 1-143 (1988) (mere delivery of products to coal mines is not the work of a miner), aff’d, No. 88-3809 (4th Cir. Aug. 16, 1988) (unpub.); Rose v. Director, OWCP, 10 BLR 1-63, 1-65 (1987) 5
§921(c)(4) (2018); Muncy, 25 BLR at 1-27; 20 C.F.R. §718.305(b)(1)(i); Decision and Order at 5-8.

Entitlement under 20 C.F.R. Part 718

Without the Section 411(c)(3)14 or Section 411(c)(4) presumptions, Claimant must establish disease (pneumoconiosis); disease causation (it arose out of coal mine employment); disability (a totally disabling respiratory or pulmonary impairment); and disability causation (pneumoconiosis substantially contributed to the disability). 30 U.S.C.
§901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to establish any one of these elements precludes an award of benefits. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11 BLR 1-26, 1-27 (1987); Perry v. Director, OWCP, 9 BLR 1-1, 1-2 (1986) (en banc).

(truck driver delivering products to coal mines but not allowed inside the mines was not performing the work of a miner), published on recon., 10 BLR 1-71 (1987); Decision and Order at 6 n.8; April 30, 2021 Hearing Transcript at 24. The ALJ properly did not include Claimant’s 1978 and 1979 employment with Shelby Smoot and William Hawkins as coal mine employment because Claimant testified that he could not remember whether it was coal mine employment. See Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985) (claimant bears the burden to establish his length of coal mine employment); April 30, 2021 Hearing Transcript at 25-26.
14
Section 411(c)(3) of the Act provides an irrebuttable presumption a miner is totally disabled due to pneumoconiosis if he suffers from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more large opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, is a condition which would yield results equivalent to (a) or (b). 30 U.S.C.
§921(c)(3); 20 C.F.R. §718.304. Any error in the ALJ’s failure to render a specific finding on whether Claimant invoked the Section 411(c)(3) presumption is harmless given the record contains no evidence of complicated pneumoconiosis. See Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984).

6
Clinical Pneumoconiosis

X-Rays

The ALJ considered eight readings of four x-rays taken on October 10, 2013, November 25, 2013, June 19, 2014, and February 25, 2016.15 Decision and Order at 10. All of the physicians who interpreted the x-rays are dually-qualified as Board-certified radiologists and B readers. Director’s Exhibits 12, 13; Claimant’s Exhibits 1, 2; Employer’s Exhibits 1, 2, 6, 11.

Dr. Alexander interpreted the October 10, 2013 x-ray as positive for simple pneumoconiosis, while Dr. Tarver interpreted it as negative. Director’s Exhibit 13; Employer’s Exhibit 6. The ALJ found the readings of this x-ray in equipoise. Decision and Order at 10.

Drs. DePonte and Miller interpreted the November 25, 2013 x-ray as positive for simple pneumoconiosis, while Dr. Tarver interpreted it as negative. Director’s Exhibit 12; Claimant’s Exhibit 2; Employer’s Exhibit 2. The ALJ found this x-ray positive for simple pneumoconiosis. Decision and Order at 10.

Dr. DePonte also interpreted the June 19, 2014 x-ray as positive for simple pneumoconiosis, while Dr. Meyer interpreted it as negative. Claimant’s Exhibit 1; Employer’s Exhibit 11. The ALJ found the readings of this x-ray in equipoise. Decision and Order at 10.

Finally, Dr. Tarver interpreted the February 25, 2016 x-ray as negative for simple pneumoconiosis. Employer’s Exhibit 1. As this was the only interpretation of this x-ray, the ALJ found it negative for simple pneumoconiosis. Decision and Order at 10.

The ALJ observed that with one positive x-ray, one negative x-ray, and the readings of two in equipoise, the x-ray evidence as a whole was “[a]t best,” in equipoise. Id. Because the ALJ permissibly concluded the x-ray evidence did not establish Claimant has simple clinical pneumoconiosis, we affirm her finding that Claimant did not establish he has simple clinical pneumoconiosis based upon the x-ray evidence at 20 C.F.R.
§718.202(a)(1). See Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267, 280-81 (1994); Sea “B” Mining Co. v. Addison, 831 F.3d 244, 256-57 (4th Cir. 2016);

15
Dr. Gaziano, a B reader, reviewed the November 25, 2013 x-ray for film quality only. Director’s Exhibit 12.

7
Adkins v. Director, OWCP, 958 F.2d 49, 52-53 (4th Cir. 1992); Decision and Order at 10; Director’s Exhibits 12, 13; Claimant’s Exhibits 1, 2; Employer’s Exhibits 1, 2, 6, 11.

(Computed Tomography) CT Scans

The ALJ then considered three interpretations of two CT scans taken on June 28, 2013, and August 18, 2014. Decision and Order at 11-12.

Dr. Tarver interpreted the June 28, 2013 CT scan and found no small nodules consistent with coal workers’ pneumoconiosis. Employer’s Exhibit 8. Because it was the only reading of this CT scan, the ALJ found the June 28, 2013 CT scan negative for pneumoconiosis. Decision and Order at 11.

Dr. Tarver also interpreted the August 18, 2014 CT scan and found it negative for pneumoconiosis, while Dr. Saadeh16 interpreted the CT scan as reflecting “[p]ossible early coal worker[s’] pneumoconiosis.” Claimant’s Exhibit 4; Employer’s Exhibit 8. The ALJ permissibly gave Dr. Tarver’s interpretation more weight as Dr. Saadeh’s opinion was “somewhat equivocal” and Dr. Saadeh’s qualifications were not in the record. See U.S. Steel Mining Co. v. Director, OWCP [Jarrell], 187 F.3d 384, 389 (4th Cir. 1999) (ALJ may discredit a speculative opinion); Decision and Order at 12; Claimant’s Exhibit 4; Employer’s Exhibit 8.

Consequently, we affirm the ALJ’s finding that the CT scan evidence does not support a finding of simple clinical pneumoconiosis. See Ondecko, 512 U.S. at 280-81; Decision and Order at 11-12; Claimant’s Exhibit 4; Employer’s Exhibit 8. We therefore affirm the ALJ’s conclusion that Claimant did not establish simple clinical pneumoconiosis at 20 C.F.R. §718.202(a).17 Decision and Order at 9-12.

16
Although the ALJ stated Dr. Saadeh read the August 18, 2014 CT scan, the physician dictated and released the results of his undated CT scan on July 31, 2013. See Decision and Order at 11; Claimant’s Exhibit 4. Any error in the ALJ’s belief that Dr. Saadeh’s reading was of the August 18, 2014 CT scan is harmless because the ALJ permissibly discredited Dr. Saadeh’s reading. See supra; Larioni, 6 BLR at 1-1278.
17
The ALJ did not expressly address whether Claimant established clinical pneumoconiosis at 20 C.F.R. §718.202(a)(4). However, as the ALJ observed, Dr. Habre diagnosed clinical pneumoconiosis based solely on Dr. DePonte’s positive reading of the November 25, 2013 x-ray. Decision and Order at 10; Director’s Exhibit 12. Because Dr. Habre’s opinion on clinical pneumoconiosis is merely a restatement of the x-ray evidence, we consider the ALJ’s error, if any, in not further discussing it to be harmless. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989) (mere restatement of an x-ray 8
Legal Pneumoconiosis

To establish legal pneumoconiosis, Claimant must prove he has a chronic lung disease or impairment “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §718.201(a)(2), (b).

The ALJ considered the medical opinions of Drs. Habre, Fino, and Rosenberg.
Decision and Order at 12-15. Dr. Habre diagnosed legal pneumoconiosis in the form of “[c]hronic bronchitis with the presence of cough, wheezing, shortness of breath as well as the presence of respiratory failure” due in part to coal mine dust exposure. Director’s Exhibit 12 at 8. In contrast, Drs. Fino and Rosenberg did not diagnose legal pneumoconiosis and instead pointed to Claimant’s extensive smoking history as the source of his disabling obstruction. Employer’s Exhibits 7 at 8-12; 10 at 5-10.

Dr. Habre performed the Department of Labor-sponsored complete pulmonary evaluation of Claimant. Director’s Exhibit 12. He diagnosed respiratory failure and chronic bronchitis, observing the “diagnosis is correlated with his work history of [fourteen] years as well as significantly related to his smoking habit.” Id. at 8. The ALJ permissibly rejected Dr. Habre’s opinion because he relied on an inflated fourteen-year history of coal mine employment when she found only 8.77 years of coal mine employment. See Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 311 n.2 (4th Cir. 2012) (effect of an inaccurate coal mine dust exposure history on the credibility of a medical opinion is a determination for the ALJ to make); Decision and Order at 14-15; Director’s Exhibit 12.

Moreover, the ALJ permissibly found Dr. Habre’s opinion “poorly reasoned” because he did not adequately explain why coal mine dust exposure contributed to Claimant’s chronic bronchitis. Decision and Order at 15; see American Energy, LLC v. Director, OWCP [Goode], 106 F.4th 319, 334 (4th Cir. 2024) (claimant bears the burden of proof on an essential element of entitlement); Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 558 (4th Cir. 2013) (ALJ may reject a medical opinion because it is inadequately explained); Director’s Exhibit 12. Specifically, the ALJ noted that Dr. Habre stated he “correlated” Claimant’s chronic bronchitis to his work history but opined it was “significantly related” to smoking. Decision and Order at 15. Then he concluded that Claimant’s respiratory impairment is “mainly related” to his smoking as well as coal

reading is not a reasoned medical opinion); see Larioni, 6 BLR at 1-1278. We also note there is no physician’s opinion in Claimant’s treatment records diagnosing clinical pneumoconiosis. Claimant’s Exhibits 4, 5; Employer’s Exhibits 3-5, 9.

9 mining, while noting coal mine dust “does potentiate the effects of smoking.”18 Director’s Exhibit 12. Thus, we see no error in the ALJ’s conclusion that Dr. Habre’s opinion is equivocal and not sufficiently explained. Owens, 724 F.3d at 558; Jarrell, 187 F.3d at 389; Milburn Colliery Co. v. Hicks, 138 F.3d 524, 533 (4th Cir. 1998); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997); Decision and Order at 15; Director’s Exhibit 12.

As the ALJ permissibly discredited Dr. Habre’s opinion, the only opinion supportive of a finding that Claimant has legal pneumoconiosis, we affirm the ALJ’s finding that Claimant failed to establish he has legal pneumoconiosis.19 20 C.F.R. §718.202(a); see Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997). Because Claimant did not establish that he has pneumoconiosis, an essential element of entitlement, we affirm the ALJ’s denial of benefits. Anderson, 12 BLR at 1-112; Trent, 11 BLR at 1-27; Decision and Order at 15.

18
The ALJ also found Dr. Habre’s opinion undermined because he did not review Claimant’s medical records. We need not address this rationale as the ALJ provided sufficient explanation for rejecting Dr. Habre’s opinion on legal pneumoconiosis. Kozele v. Rochester & Pittsburgh Coal Co., 6 BLR 1-378, 1-382 n.4 (1983); Decision and Order at 15; Director’s Exhibit 12.
19
As the ALJ noted, Drs. Fino and Rosenberg did not diagnose either clinical or legal pneumoconiosis. Decision and Order at 13-14; Director’s Exhibit 14; Employer’s Exhibits 7, 10. Thus, their opinions cannot assist Claimant in establishing the existence of pneumoconiosis. 20 C.F.R. §718.202(a). Although some hospitalization records and treatment notes diagnose Claimant with chronic obstructive pulmonary disease (COPD), none of them relate it to his coal mine dust exposure and thus they are insufficient to establish legal pneumoconiosis. 20 C.F.R. §718.201; Claimant’s Exhibits 4, 5; Employer’s Exhibits 3-5, 9.

10
Accordingly, we affirm the ALJ’s Decision and Order Denying Benefits.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

BUZZARD, Administrative Appeals Judge, concurring and dissenting:

I concur in the majority decision except its conclusion that an ALJ cannot credit a coal miner with a full year of employment unless he establishes employment relationships with each of his employers lasting at least 365 days.

As I explained in Baldwin v. Island Creek Kentucky Mining, a miner is entitled to credit for a full year of coal mine employment “for all purposes under the Act” if he establishes 125 working days in a given year. Baldwin, BRB No. 21-0547 BLA, slip op. at 8-13, 2023 WL 5348588, at *5-8 (July 14, 2023) (unpub.) (Buzzard, J., concurring and dissenting). That conclusion is consistent with the Sixth Circuit’s holding that the “plain” and “unambiguous” language of the regulatory definition of “year” “permits a one-year employment finding” based on 125 working days “without a 365-day [employment relationship] requirement.” See Shepherd v. Incoal, Inc., 915 F.3d 392, 402 (6th Cir. 2019); see also Landes v. OWCP, 997 F.2d 1192, 1195 (7th Cir. 1993) (125 working days equals “one year of work” under the prior definition of “year”).

Notably, the majority interprets Fourth Circuit case law as requiring a 365-day employment relationship. However, as discussed in Baldwin, neither the circuit nor the Board has issued any binding precedent on the matter. Baldwin, BRB No. 21-0547 BLA, slip op. at 12, 2023 WL 5348588, at *8 (Buzzard, J., concurring and dissenting) (explaining why the Board’s decision in Clark and the Fourth Circuit’s decisions in Mitchell and Armco, all of which predate the effective date of the current regulation, do not foreclose the Sixth Circuit’s Shepherd rationale).20 Regardless, given the majority’s holding that the

20
The majority’s interpretation of Fourth Circuit precedent also differs from the Director’s understanding of the law. Although the Director has expressed his disagreement with the Sixth Circuit’s holding in Shepherd, he nevertheless conceded in Baldwin that 11
ALJ’s alleged error in this case is harmless, my colleague’s misassessment of the law is, itself, harmless.

I thus concur in the remainder of the decision.

GREG J. BUZZARD
Administrative Appeals Judge

there is no binding in-circuit precedent that would preclude the Board from adopting Shepherd’s rationale in cases arising in the Fourth Circuit.

12