Submitted, Portland, Oregon July 11, 2013.[*]
On Petition for Review of an Order of the Benefits Review Board. BRB No. 10-0463.
Mark E. Solomons and Laura Metcoff Klaus, Greenberg Traurig, LLP, Washington, D.C., for Petitioner.
Jeffrey S. Goldberg, United States Department of Labor, Washington, D.C., for Respondent.
Martin J. Linnet and Jonathan Wilderman, Wilderman and Linnet, P.C., Golden, Colorado, for Respondent.
Before: Harry Pregerson, Mary H. Murguia, and Morgan Christen, Circuit Judges. Opinion by Judge Pregerson.
PREGERSON, Circuit Judge:
In 2000, Robert Opp (" Opp" ) filed a disability benefits claim against Peabody Coal Company (" Peabody" ) under the Black Lung Benefits Act of 1972. 30 U.S.C. § 901(a). Opp, a coal miner for nearly forty years, smoked for over fifty years. In the mid-1990s, Opp began suffering from chronic obstructive pulmonary disease (" COPD" ). Opp alleged that his
COPD arose out of his employment as a coal miner. When a claimant proves total disability due to either clinical pneumoconiosis or legal pneumoconiosis, the claimant is eligible for benefits under the Black Lung Benefits Act. See 20 C.F.R. § 718.201(a). Opp alleged that his condition constituted legal pneumoconiosis and that he was entitled to benefits under the Act.
Following a number of administrative hearings and reviews by the Benefits Review Board, an administrative law judge (" ALJ" ) ordered Peabody to pay Opp's surviving spouse all the benefits to which Opp was entitled to receive between January 1, 2000, and August 31, 2002. The Benefits Review Board affirmed the ALJ's decision and Peabody Coal petitions for review of that decision. We have jurisdiction to review Peabody's petition pursuant to 33 U.S.C. § 921(c), and we deny the petition.
A. Factual History
1. The Statute and Regulations
The Black Lung Benefits Act awards benefits to coal miners suffering from pneumoconiosis, defined as " a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b). A disease arises out of coal mine employment if it is " significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. § 718.201(b).
Before 2001, the Black Lung Benefits Act regulations provided that coal miners suffering from clinical pneumoconiosis were eligible for benefits under the Act. 20 C.F.R. § 718.201(a) (2000). Clinical pneumoconiosis refers to a cluster of typically chronic restrictive pulmonary diseases recognized by the medical community as fibrotic reactions to " permanent deposition of substantial amounts of particulate matter in the lungs." 20 C.F.R. § 718.201(a)(1). In 2001, the regulations were amended to clarify that coal miners suffering from legal pneumoconiosis may also receive benefits under the Act. Legal pneumoconiosis refers to " any chronic lung disease or impairment," including " chronic restrictive or obstructive pulmonary disease arising out of coal mine employment."  20 C.F.R. § 718.201(a)(2) (emphasis added). Before Opp's death, he suffered from COPD, which he alleged was a form of legal pneumoconiosis.
2. The Regulatory Preamble
The preamble to the 2001 amendments that clarify the regulatory definition of pneumoconiosis explains that the amendments were intended to " conform [the regulatory definition] to the statute," which defines pneumoconiosis broadly. 65 Fed. Reg. at 79937. " The Department [of Labor] . . . received both favorable and unfavorable comments on its proposed revision
to the definition of pneumoconiosis." Id. During the notice and comment period, several of the unfavorable comments referred to a review of the available medical literature on obstructive lung disease and pulmonary dysfunction in coal miners, written by Dr. Gregory Fino, a Board-certified physician in pulmonary diseases, and Dr. Barbara Bahl, a doctor in nursing and biostatistics. Id. at 79938. Dr. Fino's and Dr. Bahl's " review of the literature . . . led them to conclude that virtually all of the articles they reviewed [were] flawed, and that ...