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Jacqueline J. Keene v. Consolidationcoalcompanyand

May 19, 2011

JACQUELINE J. KEENE, PETITIONER,
v.
CONSOLIDATIONCOALCOMPANYAND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATESDEPARTMENT OF LABOR, RESPONDENTS.



Petition for Review of Orders of the Benefits Review Board. Nos. 09-BLA-0352 & 09-BLA-0403

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED APRIL 6, 2011

Before FLAUM, EVANS, and TINDER,Circuit Judges.

Several cases have been filed around the country concerning the constitutionality of the recently enacted Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148 (2010). Most of the litigation centers around the "individual mandate" found in § 1501, which requires individuals to purchase federally-approved health insurance or pay a monetary penalty. This case involves the constitutionality of a *fn1 less well-known (and arguably less controversial) section of the Act (§ 1556).

Jacqueline Keene, the wife of a deceased coal miner, argues that her claim for black lung benefits should be remanded to the administrative law judge (ALJ) because § 1556 entitles her to a presumption under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901 et seq., that was not available when the ALJ issued his decision denying benefits. The government agrees. Mr. Keene's former employer, Consolidation Coal Company (Consol), however, contends that, by virtue of its retroactive nature, § 1556 violates the due process and takings clauses of the U.S. Constitution.*fn2

Mrs. Keene's appeal actually encompasses two benefits claims: hers (the "survivor's claim") and her late husband's (the "miner's claim"). Before the ALJ, the dispositive issue on the miner's claim was whether Mr. Keene's total disability was due to pneumoconiosis (that is, black lung disease). In addressing that claim, *fn3 the ALJ considered the opinions of Drs. Perper, Pineda, Tuteur, Wiot, Oesterling, and Fino. Only the first two doctors offered testimony supportive of the claim. The ALJ discounted the opinion of Dr. Perper because he (1) diagnosed a "new" kind of pneumoconiosis, and (2) found that Mr. Keene did not suffer from congestive heart failure. Both of these findings were contradicted by other medical testimony. The ALJ discounted the opinion of Dr. Pineda, despite recognizing that he was Mr. Keene's treating physician, because Dr. Pineda's testimony was conflicting: he stated both that Mr. Keene's disability was due to pneumoconiosis andthat Mr. Keene's level of disability would probably have been the same even if he had not worked in coal mines.

The dispositive issue on the survivor's claim was whether Mr. Keene's death was due to pneumoconiosis.

Here, the ALJ considered the autopsy report, the death certificate, and the reports of Drs. Perper, Pineda, Oesterling, and Tuteur. Again, only the first two doctors' testimony supported the claim. Dr. Pineda opined that pneumoconiosis contributed to, but did not hasten, Mr. Keene's death. But the ALJ discounted this testimony because Dr. Pineda did not explain his reasoning. And Dr. Perper's opinion was again afforded little weight because he found that Mr. Keene did not suffer from cardiac disease. This finding even conflicted with that of Dr. Pineda, who concluded that, although pneumoconiosis contributed to Mr. Keene's death, his cardiac condition was a major factor as well. The ALJ therefore determined that Mrs. Keene had not met her burden of proof regarding either claim and denied benefits. The Benefits Review Board affirmed.

After the Board issued its decision, Congress passed the PPACA. Section 1556 of the PPACA amended the BLBA by resurrecting a rebuttable presumption (the "15-year presumption") and making it applicable to claims filed *fn4 after January 1, 2005, that were still pending on or after March 23, 2010. The 15-year presumption provides: if a miner was employed for fifteen years or more in one or more underground coal mines . . . and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. . . . The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

30 U.S.C. § 921(c)(4) (2010) (emphasis added). In remarks made two days after the passage of the PPACA, the late Senator Robert Byrd stated that § 1556 would *fn5 "benefit all of the claimants who have recently filed a claim, and are awaiting or appealing a decision or order, or who are in the midst of trying to determine whether to seek a modification of a recent order" and would help "ensure that claimants get a fair shake as they try to gain access to these benefits that have been so hard won." 156 Cong. Rec. S2083-84 (daily ed. Mar. 25, 2010) (statement of Sen. Robert Byrd).

There is no dispute that the miner's claim does not qualify for the 15-year presumption, as it was filed in 2001. The survivor's claim, however, was brought on January 3, 2005.

We begin our analysis with a brief review of the ALJ's decision, which we will not overturn if it was rational, supported by substantial evidence, and consistent with governing law. See Old Ben Coal Co. v. Director, OWCP, 292 F.3d 533, 538 (7th Cir. 2002). To be entitled to benefits under the BLBA, a miner must demonstrate that (1) he had pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) he was totally disabled, and (4) the total disability was due to pneumoconiosis. See 20 C.F.R. §§ 718.202-718.204. Mrs. Keene argues that the ALJ ignored evidence regarding the last element.

Here, the ALJ considered the doctors' reports and correctly noted that only the opinions of Drs. Perper and Pineda supported the claim. The ALJ then explained why he discounted those opinions: (1) Dr. Perper's findings-that Mr. Keene suffered from a "new" kind of pneumoconiosis and did not have congestive heart failure-were contrary to other medical evidence; and (2) Dr. Pineda's findings-that Mr. Keene's disability resulted from pneumoconiosis and that Mr. Keene's level of disability would probably have been the same even if he had not worked in coal mines-were inconsistent. There is no indication that the ALJ ignored evidence on this issue. Indeed, Mrs. Keene's argument is more appropriately characterized as a request to reweigh the evidence, which we cannot do. See Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 478 (7th Cir. 2001).

The elements of the survivor's claim differ slightly from those of the miner's claim. To be entitled to benefits, a survivor must demonstrate that (1) the miner had pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, and (3) the miner's death was due to pneumoconiosis. 20 C.F.R. ยง ...


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