Robert E. Steely v. Apogee Coal Company, LLC (Board decision, September 22, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's black lung benefits award and the liability of Apogee Coal and its self-insurer. 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

Robert Steely sought black lung benefits after 23 years of qualifying coal mine work. A labor judge found him totally disabled by a respiratory impairment, applied the 15-year presumption, and awarded benefits. The Board upheld the judge's assessment of a qualifying pulmonary function study and medical opinions supporting total disability. It also rejected challenges to the judge's appointment, evidentiary rulings, and the designation of Arch Resources as the liable self-insurer for Apogee Coal. The Board held that later sales and a subsequent insurer's bankruptcy had not released Arch from liability for this claim. The benefits award was affirmed.

Decision snapshot

• Authority: Total disability under 20 C.F.R. § 718.204(b)(2); 15-year presumption under 30 U.S.C. § 921(c)(4).
• Outcome: Black lung benefits award and Apogee/Arch liability affirmed.
• Key point: The qualifying study and credited medical evidence supported disability, while later corporate transfers did not shift carrier liability.

Full text (DOL BRB public release)

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

BRB No. 25-0013 BLA

ROBERT E. STEELY
)
)
Claimant-Respondent
)
)
v. )
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APOGEE COAL COMPANY, LLC
)
)
and
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)
NOT-PUBLISHED
SELF-INSURED THRU ARCH
)
RESOURCES, INCORPORATED, C/O
)
SMART CASUALTY CLAIMS
) DATE ISSUED: 09/22/2025
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
)
DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Steven D. Bell, Administrative Law Judge, United States Department of Labor.

Wes Addington (Appalachian Citizens’ Law Center, Inc.), Whitesburg, Kentucky, for Claimant.

Michael A. Pusateri (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Amanda Torres (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: ROLFE and JONES, Administrative Appeals Judges, and ULMER, Acting Administrative Appeals Judge.

PER CURIAM:

Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Steven D. Bell’s Decision and Order Awarding Benefits (2021-BLA-05672) rendered on a subsequent claim filed on May 16, 2019,1 pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).

The ALJ found Apogee Coal Company (Apogee) is the responsible operator and Arch Resources (Arch) is the liable carrier. He found Claimant established twenty-three years of qualifying coal mine employment. He further found Claimant has a totally disabling respiratory or pulmonary impairment and therefore established a change in an applicable condition of entitlement and invoked the presumption of total disability due to

1 Claimant filed two prior claims for benefits. He withdrew his first claim.
Director’s Exhibit 1. A withdrawn claim is “considered not to have been filed.” 20 C.F.R.
§725.306(b). On August 16, 2012, the district director denied his prior claim, filed on March 7, 2012, by reason of abandonment. Director’s Exhibit 2. A denial by reason of abandonment is “deemed a finding that the claimant has not established any applicable condition of entitlement.” 20 C.F.R. §725.409(c).

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 he finds that “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 Claimant’s prior claim was denied as abandoned, he had to submit new evidence establishing at least one element of entitlement to obtain review of the merits of his current claim. White, 23 BLR at 1-3; Director’s Exhibit 2.

2 pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018).2 The ALJ also found Employer failed to rebut the presumption and awarded benefits.

On appeal, Employer argues the ALJ lacked authority to hear and decide the case because he was not appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.3 It also argues the removal provisions applicable to ALJs rendered his appointment unconstitutional. It further asserts the ALJ erred in admitting Dr. Cordasco’s supplemental opinion under the Department of Labor’s (DOL) pilot program, and erred in finding Arch is the liable carrier. On the merits, Employer challenges the ALJ’s finding that Claimant is totally disabled and therefore invoked the Section 411(c)(4) presumption.4 Claimant responds in support of the award of benefits. The Acting Director, Office of Workers’ Compensation Programs (the Director), responds in support of the ALJ’s liability determination and urges the Benefits Review Board to reject Employer’s Appointments Clause challenge. Employer replied to both Claimant and the Director, reiterating its arguments on appeal.

The 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

2 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 or pulmonary impairment. 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §718.305.
3 Article II, Section 2, Clause 2, sets forth the appointing powers:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.
4 We affirm, as unchallenged on appeal, the ALJ’s finding that Claimant established

twenty-three years of qualifying coal mine employment. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 5.

3 with 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, 361-62 (1965).

Appointments Clause and Removal Protections

Employer urges the Board to vacate the ALJ’s Decision and Order and remand the case to be heard by a different, constitutionally-appointed ALJ pursuant to Lucia v. SEC, 585 U.S. 237 (2018).6 Employer’s Brief at 14-17; Employer’s Reply to the Director at 15-

16. It acknowledges the Secretary of Labor ratified the prior appointments of all sitting
    DOL ALJs on December 21, 2017,7 but maintains the ratification was insufficient to cure the constitutional defect in the ALJ’s appointment. Employer’s Brief at 14. For the reasons set forth in Johnson v. Apogee Coal Co., 26 BLR 1-1, 1-5-7 (2023), appeal docketed, No. 23-3612 (6th Cir. July 25, 2023), we reject Employer’s Appointments Clause arguments.

    Employer also challenges the constitutionality of the removal protections afforded
    DOL ALJs. Employer’s Brief at 15-18; Employer’s Reply to the Director at 15-16. The Board and the Sixth Circuit rejected similar arguments, in part, because the employer did

    5 This case arises within the jurisdiction of the United States Court of Appeals for

the Sixth Circuit because Claimant performed his coal mine employment in Kentucky. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Hearing Transcript at 15, 33; Director’s Exhibit 5.
6 Lucia involved a challenge to the appointment of a Securities and Exchange Commission (SEC) ALJ. The United States Supreme Court held that, similar to Special Trial Judges at the United States Tax Court, SEC ALJs are “inferior officers” subject to the Appointments Clause. Lucia v. SEC, 585 U.S. 237, 251 (2018) (citing Freytag v. Comm’r, 501 U.S. 868 (1991)). The Department of Labor (DOL) has conceded that the Supreme Court’s holding applies to its ALJs. Big Horn Coal Co. v. Sadler, 10th Cir. No. 17-9558, Brief for the Fed. Resp. at 14 n.6.
7 The Secretary of Labor (Secretary) issued a letter to the ALJ on December 21,

2017, stating:

In my capacity as head of the [DOL], and after due consideration, I hereby ratify the [DOL’s] prior appointment of you as an [ALJ]. This letter is intended to address any claim that administrative proceedings pending before, or presided over by, [ALJs] of the [DOL] violate the Appointments Clause of the U.S. Constitution. This action is effective immediately.

Secretary’s December 21, 2017 Letter to ALJ Bell.

4 not sufficiently allege “it suffered any harm due to the ALJ’s removal protections.” Howard v. Apogee Coal Co., 25 BLR 1-301, 1-307 (2022) (applying Calcutt v. FDIC, 37 F.4th 293, 319 (6th Cir. 2022)), aff’d Apogee Coal Co. v. Director, OWCP [Howard], 112 F.4th 343 (6th Cir. 2024). Thus, even if the Board had authority to remedy the violation presented by Employer’s removal protections arguments, we would decline to do so because Employer has failed to identify a harm.

Responsible Insurance Carrier

Employer does not directly challenge the ALJ’s findings that Apogee is the correct responsible operator and it was self-insured by Arch on the last day Apogee employed Claimant; thus, we affirm these findings. See Skrack v. Island Creek Coal Co., 6 BLR 1- 710, 1-711 (1983); Decision and Order at 37-38. Rather, it alleges Arch is not liable for the payment of benefits, and liability for the claim should transfer to the Black Lung Disability Trust Fund (Trust Fund). Employer’s Brief at 25-44; Employer’s Reply to the Director at 2-15.

In 2005, after Claimant ceased his employment with Apogee, Arch sold Apogee to Magnum Coal (Magnum), and, in 2008, Magnum was sold to Patriot. Director’s Brief at

2. In 2011, Patriot was authorized to insure itself and its subsidiaries, retroactive to July 1,

3. See Director’s Exhibit 59 at 465. In 2015, Patriot went bankrupt. See Director’s Brief at 2. Neither Patriot’s self-insurance authorization, nor any other arrangement, however, relieved Arch of liability for paying benefits to miners last employed by Apogee when Arch owned that company and provided self-insurance to it. Director’s Brief at 2-3.

    Employer raises several arguments to support its contention that Arch was
   

   improperly designated the self-insured carrier in this claim and thus the Trust Fund, not Arch, is responsible for the payment of benefits following Patriot’s bankruptcy. Employer’s Brief at 19-44; Employer’s Reply to the Director at 2-15. It maintains the ALJ erred in finding Arch liable for benefits because: (1) there is no evidence that shows Arch is liable for this claim; (2) DOL’s alleged new rule changing the liability trigger for self- insurance agreements was adopted without rulemaking in violation of the Administrative Procedure Act (APA) and is impermissibly retroactive; and (3) no regulation imposes liability on a prior self-insurer like Arch. Employer’s Brief at 25-44; Employer’s Reply to the Director at 2-15.

   The Board has previously considered and rejected these arguments under the same
   material facts in Bailey v. E. Assoc. Coal Co., 25 BLR 1-323, 1-332-39 (2022) (en banc); Howard, 25 BLR at 1-308-18; and Graham v. E. Assoc. Coal Co., 25 BLR 1-289, 1-295- 99 (2022). For the reasons set forth in Bailey, Howard, and Graham, we reject Employer’s arguments.

                                          5
   Employer further argues that the ALJ’s decision violated the APA, as the ALJ failed
   

   to consider Employer’s liability evidence that was admitted in this case, but not in Howard. Employer’s Brief at 19-25. In contrasting this case with Howard, Employer contends “the overwhelming majority of Arch’s evidence proving [DOL retroactively changed the trigger for self-insurance without notice and comment] was admitted, and the ALJ must address the issue that Howard left open, i.e., whether the evidence shows an illegal policy change that is arbitrary and capricious.” Employer’s Brief at 23. Employer correctly identifies that, unlike in Howard, where Employer failed to timely submit liability evidence, it timely submitted liability evidence here (the 2021 depositions of Michael Chance, David Benedict, and Kim Kasmeier, and the 2018 deposition of Arch witness Robert Briscoe), and the ALJ admitted that evidence. Employer’s Brief at 3. These depositions, however, do not make a material difference from the Board’s determination in Howard.

   Employer conceded its self-insurance covered Apogee on Claimant’s last day of
   

   employment in 2002. Employer’s Brief at 6 (conceding Claimant worked for Hobet while it was self-insured through Arch’s self-insurance program). As Employer’s evidence does not show Arch was released from liability for Apogee claims based on employment before the sale to Magnum, and subsequent self-insurance authorizations excluding Apogee are irrelevant, we reject this argument. See Howard, 112 F.4th at 354 (Arch’s argument that “its sale of Apogee’s liabilities completely severed the two businesses and insulated it from future Apogee-originated claims” “ignores the plain language of the regulations.”).

    Moreover, Employer’s evidence does not substantiate a different holding from
   

   Howard as to an alleged change in policy by the DOL. Employer cites to testimony from its witness, Robert Briscoe, that “prior to Patriot’s bankruptcy, DOL never once imposed liability on a prior self-insurer.” Employer’s Brief at 37 (quoting Director’s Exhibit 38 at 49-50). However, as the Director correctly asserts, the DOL did not change its policy towards self-insurers. In the Horizon bankruptcy, the DOL assigned liability based on the miners’ last dates of employment with the self-insurers’ subsidiaries, and responsibility fell to the surety companies that issued bonds securing the self-insurers’ black lung liabilities at the time. See, e.g., Old Ben Coal Co. v. OWCP, 476 F.3d 418, 420 (7th Cir. 2007); Lynch v. Old Ben Coal Co., BRB No. 2010 WL 8111398, at *11 (BRB Dec. 8, 2010) (unpub.).

   In the James River Coal Company bankruptcy, the DOL similarly held liable the
   

   self-insurer that provided coverage to its subsidiary when the miner last worked there, before the subsidiary was sold. See, e.g., Abbot v. McCoy Elkhorn Coal Corp., No. 2019- BLA-05029 (OALJ Feb. 19, 2019) (remanding the case after James River subsidiary McCoy Elkhorn, which was owned and self-insured through Transco Energy when the miner last worked for it, agreed to “accept liability and pay benefits”). This undermines Employer’s reliance on witness testimony to show the DOL never previously held self-
   6
   insurers like Arch liable after they sold their subsidiaries and subsequent owners declared bankruptcy. Moreover, the ALJ found Employer’s liability evidence did not support its argument DOL never imposed liability on a prior self-insurer for sold subsidiaries before Patriot’s bankruptcy. Decision and Order at 40 & n.334 (citing and discussing DOL employees’ deposition testimony at Employer’s Exhibits 1, 3). Thus, we agree with the Director’s position that the record cannot sustain Employer’s argument that the DOL changed its policy on self-insurer liability, and any failure by the ALJ to more fully discuss this evidence is harmless error. 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”); Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984).

   For the reasons discussed above, we affirm the ALJ’s determination that Apogee
   and Arch are the responsible operator and carrier, respectively, and are liable for this claim. Howard, 112 F.4th at 350-56.

                         Exclusion of Liability Evidence
   

   At the hearing, the ALJ sustained objections with respect to liability evidence
   contained in Director’s Exhibits 39, 43, and 59. Hearing Transcript at 10. Employer proffered additional documentary evidence pertaining to its liability as part of its Employer’s Exhibits, to which the Director objected. Id. at 11-14. The ALJ sustained Director’s objections to Employer’s Exhibits 4-14. Id. at 14.

   Employer argues the ALJ’s failure to explain his rationale for excluding those
   exhibits violated the APA.8 Employer’s Brief at 18. It also argues it established extraordinary circumstances for the admission of documentary evidence excluded by the ALJ, as the district director did not timely respond to its discovery requests. Id. The Director responds that the ALJ’s decision to sustain the Director’s objection that Employer’s evidence was untimely submitted followed extensive discussions at the hearing providing an explanation for the exclusion of the evidence. Director’s Brief at 27. The Director also argues Employer failed to demonstrate extraordinary circumstances for its untimely submission of the relevant evidence. Id. at 28.

   We reject Employer’s arguments that the ALJ failed to satisfy the APA. Employer’s
   

   Brief at 18. The ALJ provided an extensive discussion at the hearing as to why he excluded the relevant liability evidence. See Hearing Transcript at 4-14. Moreover, the ALJ restated

   8 The Administrative Procedure Act provides that every adjudicatory decision must

include “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented . . . .” 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a).

7 in his Decision and Order that he did not consider Employer’s liability evidence that was not timely submitted. Decision and Order at 34 & nn.282, 283. Because the ALJ explained the permissible grounds upon which he excluded the untimely evidence, we reject Employer’s argument the ALJ’s finding did not satisfy the explanatory requirements of the APA. See Wojtowicz v. Duquesne Light Co., 12 BLR 1-162, 1-165 (1989).

We also reject Employer’s argument that the ALJ erred in failing to find extraordinary circumstances to admit its untimely liability evidence. Employer’s Brief at 18-19.

Employer argues extraordinary circumstances exist because the district director did not timely respond to Employer’s discovery requests. Employer’s Brief at 18-19. Nevertheless, as the Director points out, the cases Employer relies on do not support its argument but, rather, clarify the showing Employer must make to satisfy the high bar of showing extraordinary circumstances. Director’s Response Brief at 28-29. The Director correctly notes that, unlike in the cases Employer relies on, Employer has not shown in this case that it attempted to gather the evidence in question and was not dilatory in obtaining it. Id. Thus, the ALJ rationally found there were no extraordinary circumstances to justify admitting Employer’s liability evidence which was not timely submitted to the district director. Decision and Order at 34.

Evidentiary Issue: DOL’s Pilot Program

Employer argues the ALJ erred in admitting and considering Dr. Cordasco’s supplemental medical report, obtained as part of the DOL pilot program. 9 Employer’s Brief at 48-52. Employer asserts the DOL has no legal authority to request supplemental opinions under the pilot program, that the pilot program deprives it of due process, that the implementation of the pilot program, without notice and comment, violates the APA, and that the pilot program transforms the DOL into an advocate for claimants. Id. For the reasons set forth in Smith v. Kelly’s Creek Res., 26 BLR 1-15, 1-20-24 (2023), we reject Employer’s arguments.

9 In 2014, the DOL established a pilot program allowing the district director, in certain claims, to request a supplemental opinion from the physician who performed the DOL-sponsored complete pulmonary evaluation. See BLBA Bulletin No. 14-05 (Feb. 24, 2014). The program became standard procedure in 2019. See BLBA Bulletin No. 20-01 (Oct. 24, 2019).

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Invocation of the Section 411(c)(4) Presumption: Total Disability

To invoke the Section 411(c)(4) presumption, Claimant must establish that he has a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.305(b)(1)(iii). A miner is totally disabled if his pulmonary or respiratory impairment, standing alone, prevents him from performing his usual coal mine work and comparable gainful work. 20 C.F.R. §718.204(b)(1). A claimant may establish total disability based on pulmonary function studies, arterial blood gas studies, evidence of pneumoconiosis and cor pulmonale with right-sided congestive heart failure, or medical opinions. 20 C.F.R. §718.204(b)(2)(i)- (iv). The ALJ must weigh all relevant supporting evidence against all relevant contrary evidence. See Defore v. Ala. By-Products Corp., 12 BLR 1-27, 1-28-29 (1988); Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231, 1-232 (1987); Shedlock v. Bethlehem Mines Corp., 9 BLR 1-195, 1-198 (1986), aff’d on recon., 9 BLR 1-236 (1987) (en banc).

The ALJ found Claimant established total disability based on the pulmonary function testing and medical opinion evidence, and the evidence as a whole. 10 20 C.F.R.
§718.204(b)(2)(i), (iv); Decision and Order at 8-18.

Employer argues the ALJ erred in finding Claimant established total disability.
Specifically, Employer argues the ALJ erred in his consideration of the physician opinions as to the validity of the pulmonary function studies and in his weighing of the medical opinion evidence.

Pulmonary Function Studies

The ALJ considered the results of two pulmonary function studies dated September 11, 2019, and March 9, 2022. Decision and Order at 8-12; Director’s Exhibit 13; Employer’s Exhibit 16. The September 11, 2019 pulmonary function study produced qualifying values both before and after the administration of a bronchodilator. 11 Director’s Exhibit 13 at 12. The March 9, 2022 study produced qualifying values without the administration of a bronchodilator, and no bronchodilator was administered. Employer’s Exhibit 16 at 3. The ALJ found the September 11, 2019 pulmonary function study to be

10 The ALJ found the arterial blood gas studies do not support a finding of total

disability and there is no evidence of cor pulmonale with right-sided congestive heart failure. 20 C.F.R. §718.204(b)(2)(ii),(iii); Decision and Order at 8, 12.
11 A “qualifying” pulmonary function study yields results equal to or less than the

applicable table values contained in Appendix B of 20 C.F.R. Part 718. A “non-qualifying” study yields results exceeding those values. See 20 C.F.R. §718.204(b)(2)(i).

9 valid but the March 9, 2022 pulmonary function study is invalid. Decision and Order at 9- 12.

Employer argues the ALJ erred in rejecting Dr. Rosenberg’s opinion and crediting Drs. Gaziano’s and Cordasco’s opinions in finding the September 11, 2019 pulmonary function study valid. We disagree.

When considering pulmonary function study evidence, the ALJ must determine whether the studies are in substantial compliance with the quality standards. 12 20 C.F.R.
§§718.101(b), 718.103(c); 20 C.F.R. Part 718, App. B; see Keener v. Peerless Eagle Coal Co., 23 BLR 1-229, 1-237 (2007) (en banc). A study need not precisely conform to the quality standards; if it is in substantial compliance, it “constitute[s] evidence of the fact for which it is proffered.” 20 C.F.R. §718.101(b). The ALJ, as the factfinder, must determine the probative weight to assign the study. See Orek v. Director, OWCP, 10 BLR 1-51, 1- 54-55 (1987). “In the absence of evidence to the contrary, compliance with the [regulatory quality standards] shall be presumed.” 20 C.F.R. §718.103(c). Thus, the party challenging the validity of a study has the burden to establish the results are suspect or unreliable. Vivian v. Director, OWCP, 7 BLR 1-360, 1-361 (1984).

Dr. Rosenberg opined the September 11, 2019 pulmonary function study was invalid because the ventilatory curves “outlined incomplete and inconsistent efforts” and the two best postbronchodilator FVC values varied by more than six percent. Director’s Exhibit 15 at 5-6; Employer’s Exhibit 17 at 2. He further opined the test “does not meet absolute criteria for validity,” but it appeared Claimant put forth “a decent effort.” Employer’s Exhibit 19 at 64. He emphasized that while some curves overlapped, others were irregular, and thus the test did not meet the requisite criteria for validity. Id.

The ALJ discredited Dr. Rosenberg’s validity opinion, stating that, while the regulations require the variation between the best and the next best FEV 1 values be within 5%, there is no such requirement for FVC values. Decision and Order at 10. The ALJ further determined that even if he invalidated Claimant’s post-bronchodilator results, his pre-bronchodilator results were still qualifying and would be entitled to probative weight. Id. Additionally, he found Dr. Rosenberg’s opinion equivocal, as Dr. Rosenberg stated in

12 An ALJ must consider a reviewing physician’s opinion regarding a miner’s effort

in performing a pulmonary function study and whether the study is valid and reliable. See Revnack v. Director, OWCP, 7 BLR 1-771, 1-773 (1985). A physician’s opinion regarding the reliability of a pulmonary function study may constitute substantial evidence for an ALJ’s decision to credit or reject the results of the study. Siegel v. Director, OWCP, 8 BLR 1-156, 1-157 (1985).

10 his original report that Claimant gave incomplete and inconsistent effort but later testified that Claimant put forth a decent effort. Id. He thus found Dr. Rosenberg’s opinion on the validity of the September 11, 2019 pulmonary function study entitled to little weight. Id. at 10-11.

Employer argues the ALJ erred in rejecting Dr. Rosenberg’s opinion in finding the September 11, 2019 pulmonary function study valid. We disagree. Contrary to Employer’s contentions, the ALJ did not reject Dr. Rosenberg’s opinion solely as conclusory; rather, he provided multiple reasons for finding Dr. Rosenberg’s opinion less probative. See Decision and Order at 9-11. The ALJ permissibly gave more weight to the study’s pre-bronchodilator results, which Dr. Rosenberg did not set forth any specific reason to find invalid. See 45 Fed. Reg. 13,682 (Feb. 29, 1980) (use of a bronchodilator does not provide an adequate assessment of the miner’s disability, although it may aid in determining the presence or absence of pneumoconiosis); see Jericol Mining, Inc. v. Napier, 301 F.3d 703, 713-14 (6th Cir. 2002); Tenn. Consol. Coal Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989); Decision and Order at 10. The ALJ further permissibly found his opinion not well-reasoned because it was internally inconsistent and inadequately explained. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 530 (4th Cir. 1998); Lane v. Union Carbide Corp., 105 F.3d 166, 172 (4th Cir. 1997); Decision and Order at 10. It is the ALJ’s function to weigh the evidence, draw appropriate inferences, and determine credibility. See Napier, 301 F.3d at 712-14; Cumberland River Coal Co. v. Banks, 690 F.3d 477, 482-83 (6th Cir. 2012); Crisp, 866 F.2d at 185. Employer’s argument is a request to reweigh the evidence, which we are not empowered to do. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989).

We therefore affirm the ALJ’s finding that the September 11, 2019 pulmonary function study is valid and his weighing of the pulmonary function study evidence as a whole.13 20 C.F.R. §718.204(b)(2)(i).

13 As Employer does not challenge the ALJ’s discrediting of Dr. Tuteur’s opinion

regarding the September 11, 2019 pulmonary function study’s validity, we affirm it. See Skrack, 6 BLR at 1-711; Decision and Order at 11. Therefore, and because the ALJ permissibly discredited Dr. Rosenberg’s opinion on the validity issue, we need not address Employer’s arguments regarding the opinions of Drs. Gaziano and Cordasco that the September 11, 2019 pulmonary function study is valid. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009); Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984); 20 C.F.R.
§718.103(c); Decision and Order at 10-11; Employer’s Brief at 46-48.

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Medical Opinion Evidence

The ALJ next considered the opinions of Drs. Cordasco, Rosenberg, and Tuteur.
Decision and Order at 13-18; Director’s Exhibits 13, 15, 18; Employer’s Exhibits 17-19. Drs. Cordasco and Rosenberg concluded Claimant is totally disabled, while Dr. Tuteur opined he is not disabled from a respiratory standpoint. Director’s Exhibits 13, 15, 18; Employer’s Exhibits 17-19. The ALJ found Drs. Cordasco’s and Rosenberg’s opinions reasoned and documented and accorded them substantial weight but accorded Dr. Tuteur’s contrary opinion little to no weight because he failed to address Claimant’s qualifying September 11, 2019 pulmonary function study and did not adequately consider Claimant’s exertional requirements. Decision and Order at 13-18. Consequently, he found the medical opinion evidence supports a finding of total disability. Id. at 18.

Employer asserts the ALJ mischaracterized the strength of Dr. Rosenberg’s opinion on total disability and erred in giving it probative weight, when it was equivocal. Employer’s Brief at 47-48. Assuming for the sake of argument that Dr. Rosenberg’s opinion was equivocal, any error with respect to Dr. Rosenberg’s opinion is harmless, as Employer does not challenge the credibility findings of any of the other physicians of record. See Larioni, 6 BLR at 1-1278.

We therefore affirm the ALJ’s finding that the medical opinion evidence establishes total disability.14 20 C.F.R. §718.204(b)(2)(iv); Decision and Order at 16. Further, we affirm the ALJ’s finding Claimant established total disability in consideration of the evidence as a whole, 20 C.F.R. §718.204(b)(2); Rafferty, 9 BLR at 1-232, and invoked the Section 411(c)(4) presumption. 20 C.F.R. §718.305(b)(1). As Employer makes no separate allegations of error relating to the rebuttal of the Section 411(c)(4) presumption, we affirm the ALJ’s finding that Employer failed to rebut the presumption. 20 C.F.R.
§718.305(d); see Skrack, 6 BLR at 1-711; Decision and Order at 19-33.

14 As Employer does not challenge the crediting of Dr. Cordasco’s opinion and the

discrediting of Dr. Tuteur’s opinion, we affirm the ALJ’s findings. See Skrack, 6 BLR at 1-711; Decision and Order at 14-18.

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

SO ORDERED.

JONATHAN ROLFE
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

GLENN E. ULMER
Acting Administrative Appeals Judge

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