NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2067 _____________

CONSOLIDATION COAL COMPANY,

Petitioner

v.

DIRECTOR OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; FRANCES FUNKA, on behalf of and as survivor of JOHN FUNKA,

Respondents ______________

On Petition for Review of a Decision and Order of the Benefits Review Board (BRB No. 16-0184 BLA) _______________

Submitted Under Third Circuit LAR 34.1(a) January 12, 2018

Before: JORDAN, ROTH, Circuit Judges and MARIANI*, District Judge

(Filed: July 12, 2018) _______________ OPINION _______________

* Honorable Robert D. Mariani, United States District Court Judge for the Middle District of Pennsylvania, sitting by designation.  This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MARIANI, District Judge

Consolidation Coal Company (“Consolidation”) petitions for review of a decision

of the United States Department of Labor Benefits Review Board (“BRB”), affirming an

award of disability benefits to a deceased miner, John Funka, and an award of survivor’s

benefits to Mr. Funka’s widow, Frances Funka, under the Black Lung Benefits Act

(“BLBA”),

. For the reasons discussed below, we will deny

Consolidation’s Petition for Review.

I. Background

John Funka worked underground in coal mines for at least forty years. Mr. Funka

spent the first twenty years of his career as a maintenance supervisor and section

mechanic for Matthews Coal Company, now owned by Consolidation, before becoming a

deep mine electrical inspector for the Office of Deep Mine Safety. Prior to retiring on

December 13, 1991, Mr. Funka began experienced breathing difficulties. The problem

steadily worsened and, by 1993, Mr. Funka was receiving medical treatment to address

his breathing.

On June 5, 2003, Mr. Funka filed a claim for benefits under the BLBA. After the

district director proposed awarding benefits, Consolidation requested a formal hearing.

On September 23, 2005, after conducting a formal hearing, Administrative Law Judge

(“ALJ”) Michael Lesniak issued a Decision and Order denying benefits. Mr. Funka

appealed ALJ Lesniak’s decision to the BRB. On December 11, 2005, before the BRB

issued a decision on his appeal, Mr. Funka died. Mrs. Funka then filed a survivor’s claim

on August 7, 2006.

2 In a Decision and Order issued on November 15, 2006, the BRB affirmed in part,

vacated in part, and remanded the matter. On remand, Mr. Funka’s claim was

consolidated with Mrs. Funka’s claim and ALJ Lesniak remanded both claims to the

district director to reopen the evidentiary record and consider, among other things, the

autopsy evidence and death certificate. The district director proposed awarding benefits

on both claims and Consolidation timely requested a formal hearing. The case was

reassigned to ALJ Ralph Romano, who held a formal hearing and issued a Decision and

Order awarding benefits on March 4, 2008. Consolidation appealed the decision to the

BRB and, on March 26, 2009, the BRB vacated the award of benefits and remanded the

matter for further consideration.

In a Decision and Order issued on December 20, 2011, ALJ Romano once again

awarded benefits on both the miner’s claim and the survivor’s claim. Consolidation

appealed. During the proceedings before the BRB, Mrs. Funka raised the issue of

whether Consolidation improperly exceeded the evidentiary limitations found in

by submitting three medical opinions. On January 30, 2013, the BRB

affirmed in part, vacated in part, and remanded. As part of its order, the BRB directed

the ALJ to evaluate whether a report authored by Dr. Oesterling constituted rebuttal

autopsy evidence pursuant to

.

On remand, the matter was reassigned to ALJ Theresa Timlin. ALJ Timlin

directed the parties to submit “an evidence summary form designating evidence in the

living miner’s claim and a separate evidence summary form designating evidence in the

survivor’s claim.” (App. at 79.) Over Consolidation’s objections, ALJ Timlin issued an

3 order on November 12, 2015, identifying what evidence would be considered in

connection with the pending claims.

On December 10, 2015, ALJ Timlin issued a Decision and Order awarding

benefits on both the miner’s claim and the survivor’s claim. Noting that no regulatory

presumption of pneumoconiosis applied to Mr. Funka’s claim1 and that the BRB had

already affirmed ALJ Romano’s finding that pneumoconiosis was not established through

X-ray evidence, ALJ Timlin evaluated the autopsy evidence. After reviewing the autopsy

report of Dr. James Holimon and Dr. Everett Oesterling, ALJ Timlin credited Dr.

Oesterling’s opinion that the autopsy did not reveal pneumoconiosis. Turning to the

physician opinion evidence, ALJ Timlin outlined the findings of the three doctors who

submitted medical reports: Dr. Joseph Tomashefski, Dr. Gregory Fino, and Dr. Francis

Green.

Dr. Tomashefski, who is board-certified in anatomic and clinical pathology,

reviewed twenty of Mr. Funka’s autopsy slides and Mr. Funka’s medical records. Dr.

Tomashefski concluded that Mr. Funka died as a result of diffuse end state interstitial

1 Twenty C.F.R. § 718.305 creates a regulatory presumption that a miner has pneumoconiosis if certain criteria are met. This presumption, however, applies only to claims filed after January 1, 2005.

(a). As ALJ Timlin correctly concluded, Mr. Funka was not entitled to the § 718.305 presumption because Mr. Funka filed his claim on June 5, 2003. Further, although this presumption did apply to Mrs. Funka’s claim, which was filed on August 7, 2006, ALJ Timlin never analyzed the merits of the survivor’s claim. Instead, after awarding benefits on Mr. Funka claim, ALJ Timlin automatically awarded benefits on Mrs. Funka’s claim. See

(l) (“In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under this subchapter at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner.”). 4 fibrosis. The doctor opined that Mr. Funka did not have coal workers’ pneumoconiosis

based upon the lack of coal macules and micronodules. Dr. Tomashefski also noted

minimal black pigment in the slides of Mr. Funka’s lungs and observed that the

pigmentation was consistent with the amount one would expect to find in the lungs of

someone who had never worked in coal mines. Ultimately, Dr. Tomashefski diagnosed

Mr. Funka with idiopathic pulmonary fibrosis. Dr. Tomashefski cited to several articles

to support his conclusion, including articles authored by Dr. Green. At his deposition,

Dr. Tomashefski testified that several rationales supported his diagnosis, including that

(1) Mr. Funka’s pulmonary function decreased more rapidly between 2003 and 2005 than

would be expected in a retired coal miner, (2) the honeycombing in Mr. Funka’s lungs

was inconsistent with coal mine dust exposure, and (3) the regional variability of fibrosis

in Mr. Funka’s lungs was inconsistent with pneumoconiosis.

Dr. Fino, who is board-certified in internal medicine and pulmonary medicine,

offered his opinion based on a review of Mr. Funka’s medical records and two pathology

reports. Dr. Fino also diagnosed Mr. Funka with idiopathic pulmonary fibrosis because

Mr. Funka had diffuse interstitial pulmonary fibrosis and Dr. Fino’s review of the

medical literature found no support for a link between this type of fibrosis and coal dust

inhalation. Dr. Fino noted that in the few studies that connect pulmonary fibrosis to

pneumoconiosis, the fibrosis was heavily pigmented. Thus, because Dr. Fino found

minimal anthracotic pigment, he opined that coal mine dust did not cause Mr. Funka’s

disability or death. Dr. Fino supported his conclusion with citation to the medical

literature including a book and article authored by Dr. Green. At his deposition, Dr. Fino

5 also noted that Mr. Funka’s disease progressed rapidly, unlike what would be expected

with pulmonary fibrosis induced by coal dust exposure. Dr. Fino also noted the presence

of honeycombing in Mr. Funka’s lungs and testified that coal mine dust does not cause

honeycombing.

Dr. Green, who is board-certified in anatomic pathology, offered an opinion based

upon his review of Mr. Funka’s autopsy slides and medical records. Dr. Green described

fibrosis that had been present for many years and showed some, but minimal,

pigmentation. He opined that the lack of pigmentation was likely due to Mr. Funka’s

lungs clearing the coal mine dust. The doctor noted the presence of coal dust macules

and micronodules in parts of the lungs and rounded opacities in the upper lung consistent

with pneumoconiosis. Dr. Green diagnosed minimally severe simple coal worker

pneumoconiosis and opined that pneumoconiosis was the direct cause of Mr. Funka’s

death. Based upon the advanced state of the interstitial fibrosis in 2003, Dr. Green

estimated a “conservative” onset date of 1998. (App. at 102.) The doctor noted that

idiopathic pulmonary fibrosis is rare in the general population. Citing to the medical

literature, Dr. Green provided three reasons why idiopathic pulmonary fibrosis was an

improper diagnosis: (1) several experts have determined that idiopathic pulmonary

fibrosis is an inappropriate diagnosis for those who have a history of fibrogenic dust

exposure; (2) Mr. Funka lived significantly longer than would be typical for someone

diagnosed with idiopathic pulmonary fibrosis; and (3) recent studies have indicated that

idiopathic pulmonary fibrosis is usually due to dust and fume exposure. At his

deposition, Dr. Green explained that coal mine induced fibrosis and idiopathic pulmonary

6 fibrosis are clinically indistinguishable. That is, doctors cannot distinguish the two

conditions “radiologically or by pulmonary function testing.” (App. at 397.) According

to Dr. Green, the only notable difference is that a longer survival rate is associated with

coal mine induced fibrosis.

ALJ Timlin found that “Dr. Green’s opinion on legal and clinical pneumoconiosis

merits significant probative weight because it is well reasoned and well documented.”

(App. at 105.) The ALJ afforded less weight to the opinions of Dr. Tomashefski and Dr.

Fino, finding that both doctors’ opinions were contrary to the BLBA’s regulations and

ignored the possibility of legal pneumoconiosis. Thus, based on Dr. Green’s opinion,

ALJ Timlin concluded that Mr. Funka suffered from pneumoconiosis. Next, finding that

Mr. Funka’s years of coal mine employment entitled him to a regulatory presumption that

his pneumoconiosis arose out of his coal mine employment,2 the ALJ concluded that

Consolidation failed to rebut this presumption. Finally, the ALJ concluded that Mr.

Funka was totally disabled due to pneumoconiosis caused pulmonary fibrosis. Having

made these findings, ALJ Timlin awarded benefits both on Mr. Funka’s claim and Mrs.

Funka’s survival claim.

2 This regulatory presumption, found in

(b), should not be confused with the § 718.305 regulatory presumption discussed above. Section 718.305 concerns a rebuttable presumption that miners who meet certain criteria have established that they have pneumoconiosis. Section 718.203(b), in contrast, provides that once a miner establishes that he or she has pneumoconiosis, there is “a rebuttable presumption that the pneumoconiosis arose out of” coal mine employment if the miner “was employed for ten years or more in one or more coal mine.” 7 Consolidation appealed the ALJ’s decision to the BRB. The BRB affirmed the

award of benefits on March 15, 2017, finding that the ALJ did not abuse her discretion in

ordering the evidence re-designated and that she did not err in weighing the respective

medical opinions. Consolidation then petitioned for review by this Court.

II. Standard of Review

We have jurisdiction under

(a), which incorporates the review

procedures of the Longshore and Harbor Workers’ Compensation Act,

(c), in pneumoconiosis cases involving coal miners. See Labelle Processing Co. v.

Swarrow,

(3d Cir. 1995). “We review the [BRB]’s decision to

determine whether it committed an error of law and whether it adhered to its scope of

review. In performing the latter function, we must independently review the record and

decide whether the ALJ’s findings are supported by substantial evidence.” Wensel v.

Dir., Office of Workers’ Comp. Programs,

(3d Cir. 1989) (quotation

marks omitted). “Substantial evidence has been defined as ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Hill v. Dir., Office

of Workers’ Comp. Programs,

(3d Cir. 2009) (quoting Mancia v. Dir.,

Office of Workers’ Comp. Programs,

(3d Cir. 1997)). “The [BRB]’s

decisions on matters of law are subject to plenary review.” Marmon Coal Co. v. Dir.,

Office of Workers’ Comp. Programs,

(3d Cir. 2013).

III. Discussion

“Benefits are provided under the [BLBA] for or on behalf of miners who are

totally disabled due to pneumoconiosis, or who were totally disabled due to

8 pneumoconiosis at the time of death.”

(a). “[A] miner shall be

considered totally disabled if the miner has a pulmonary or respiratory impairment which,

standing alone,” meets certain regulatory criteria.

(b)(1). “A miner

shall be considered totally disabled due to pneumoconiosis if pneumoconiosis . . . is a

substantially contributing cause of the miner’s totally disabling respiratory or pulmonary

impairment.”

(c)(1). An eligible survivor is automatically entitled to

benefits if the miner was eligible for benefits at the time of the miner’s death.

(l). Here, there is no dispute that Mr. Funka was totally disabled from a pulmonary

impairment. Instead, the dispute centers on whether Mr. Funka had pneumoconiosis and

whether his disability was due to pneumoconiosis.

The regulations enacted pursuant to the BLBA define pneumoconiosis as “a

chronic dust disease of the lung and its sequelae, including respiratory and pulmonary

impairments, arising out of coal mine employment.”

(a). The

regulations recognize both “Clinical Pneumoconiosis,” defined as “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,” and “Legal Pneumoconiosis,” defined as “any

chronic lung disease or impairment and its sequelae arising out of coal mine

employment.”

(a)(1)-(2). “[P]neumoconiosis may be shown through

1) a chest x-ray; 2) a biopsy; 3) statutory presumptions . . . ; 4) a physician’s evaluation.”

9 Penn Allegheny Coal Co. v. Williams,

(3d Cir. 1997) (citing

). 3

Broadly speaking, Consolidation raises two issues on appeal. First, Consolidation

claims that ALJ Timlin committed various errors when she credited Dr. Green’s medical

opinion and rejected the medical opinions of Dr. Tomashefski and Dr. Fino. Second,

Consolidation argues that ALJ Timlin abused her discretion when she ordered certain

evidence withdrawn on remand. We will address each issue in turn.

A. Weighing of the Medical Opinions

Consolidation’s arguments largely concern whether ALJ Timlin committed errors

when she credited Dr. Green’s medical opinion that Mr. Funka had legal and clinical

pneumoconiosis and rejected the contrary opinions of Dr. Tomashefski and Dr. Fino. An

“ALJ has broad discretion to determine the weight accorded each doctor’s opinion.”

Balsavage v. Dir., Office of Workers’ Comp. Programs,

, 396 (3d Cir.

2002). “In reaching a decision, an ALJ should set out and discuss the pertinent medical

evidence presented.” Kertesz v. Crescent Hills Coal Co.,

(3d Cir.

1986). “The ALJ is not bound to accept the opinion or theory of any medical expert, but

may weigh the medical evidence and draw its own inferences.”

“Moreover, the ALJ

3 To be eligible for benefits, a claimant must also show “that the miner’s pneumoconiosis arose at least in part out of coal mine employment.”

(a). “If a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines, there shall be a rebuttable presumption that the pneumoconiosis arose out of such employment.”

(b). ALJ Timlin’s finding that this presumption was applicable and unrebutted by Consolidation is not specifically challenged on appeal. 10 should reject as insufficiently reasoned any medical opinion that reaches a conclusion

contrary to objective clinical evidence without explanation.”

Initially, Consolidation contends that ALJ Timlin’s decision is internally

inconsistent because it both credits Dr. Oesterling’s opinion that the autopsy evidence

does not prove that Mr. Funka had pneumoconiosis and also credits Dr. Green’s opinion

that the autopsy evidence did reveal pneumoconiosis. This argument, however,

misconstrues the ALJ’s decision.

Under

, an ALJ may find that a miner has pneumoconiosis on

the strength of one of several categories of evidence, including a chest X-ray, a biopsy or

autopsy, or a physician’s “reasoned medical opinion” if such opinion is “based on

objective medical evidence.”

(a)(1)-(4). Here, ALJ Timlin found

that Dr. Holimon’s diagnosis of clinical pneumoconiosis based upon his autopsy findings

lacked credibility for a variety of reasons. The ALJ also found that Dr. Oesterling’s

opinion that the autopsy did not show pneumoconiosis was “well reasoned and well

documented” based in part on Dr. Oesterling’s finding that the autopsy showed “minimal

anthracotic pigment” in Mr. Funka’s lungs. (App. at 95.) Thus, the ALJ concluded that

“Claimant failed to establish that Miner had pneumoconiosis by a preponderance of the

autopsy evidence.” (App. at 96.) When evaluating the medical opinions—a wholly

separate category of evidence on which a finding of pneumoconiosis may be based under

(a)—the ALJ credited Dr. Green’s diagnosis of clinical and legal

pneumoconiosis. In doing so, the ALJ found that Dr. Green provided a well-supported

and reasoned explanation of why Mr. Funka “could have had an advanced form of

11 interstitial fibrosis despite a limited amount of black pigment in his lungs.” (App. at

106.)

Contrary to Consolidation’s argument, these findings are not contradictory or

inconsistent. The ALJ found that the autopsy evidence alone was insufficient to establish

that Mr. Funka had pneumoconiosis but that Dr. Green’s medical opinion, which was

based upon the autopsy evidence and other medical evidence, did establish that Mr.

Funka had pneumoconiosis.

Similarly, Consolidation argues that the ALJ erred when she credited Dr. Green’s

diagnosis of coal dust-induced fibrosis based upon Dr. Green’s finding that Mr. Funka

had black pigment within his lungs. Consolidation argues that black pigment is not

sufficient to base a diagnosis of coal workers’ pneumoconiosis. Consolidation cites to 20

C.F.R § 718.202, which provides, in part, that “[a] finding in an autopsy or biopsy of

anthracotic pigmentation . . . must not be considered sufficient, by itself, to establish the

existence of pneumoconiosis.” 20 C.F.R § 718.202(a)(2). This provision, however,

relates to biopsy or autopsy evidence. As discussed above, ALJ Timlin concluded that

Mr. Funka had legal and clinical pneumoconiosis based on medical opinion evidence, not

on autopsy evidence. Further, as Consolidation admits, Dr. Green’s diagnosis was based

on the “presence of black pigment and birefringent particles, as well as the presence of

macules and micronodules consistent with pneumoconiosis in areas less affected by the

fibrosis.” (Petitioner’s Br. at 37) (emphasis added). Thus, Consolidation acknowledges

that Dr. Green did not base his opinion solely on the presence of black pigmentation in

12 Mr. Funka’s lungs, but instead considered the pigmentation in conjunction with other

evidence.4

Next, Consolidation argues that the ALJ erred when she found that Mr. Funka had

a pulmonary disability prior to 2003 based upon Mr. Funka’s testimony about his

shortness of breath in the 1990s. Pointing to

(d)(3), Consolidation

further contends that even if the ALJ was permitted to draw this inference from the lay

evidence, it was improper for her to use this conclusion to credit Dr. Green’s diagnosis.

Under

,

affidavits (or equivalent sworn testimony) from persons knowledgeable of the miner’s physical condition shall be sufficient to establish total disability due to pneumoconiosis if no medical or other relevant evidence exists which addresses the miner’s pulmonary or respiratory condition; however, such a determination shall not be based solely upon the affidavits or testimony of any person who would be eligible for benefits (including augmented benefits) if the claim were approved.

(d)(3). This regulation was violated, Consolidation argues, because

Mr. Funka was a person eligible for benefits if his claim was approved and his testimony

was used to establish his disability.

4 Nor did the ALJ engage in inconsistent reasoning by discrediting the opinions of Dr. Tomashefski and Dr. Fino that Mr. Funka did not have coal workers’ pneumoconiosis because those opinions were based on the absence of black pigmentation and macules or micronodules in Mr. Funka’s lungs. As the ALJ correctly noted, the regulations do not require anthracotic pigment or pneumoconiotic macules or micronodules to support a pneumoconiosis finding. Thus, even if Mr. Funka did not have anthracotic pigment or pneumoconiotic macules or micronodules in his lungs, it would not necessarily follow that Mr. Funka did not have coal workers’ pneumoconiosis. Therefore, the ALJ permissibly concluded that the opinions of Dr. Tomashefski and Dr. Fino were not well- reasoned. 13 Consolidation’s argument once again misconstrues the ALJ’s decision. ALJ

Timlin did not establish that Mr. Funka was disabled based upon his lay testimony.

Indeed, the ALJ did not even determine Mr. Funka’s disability onset date based upon lay

testimony. The ALJ specifically noted, “[t]he record does not disclose when Miner first

became totally disabled due to pneumoconiosis.” (App. at 111.) ALJ Timlin simply

credited Dr. Green’s medical opinion that Mr. Funka was disabled due to pneumoconiosis

and then found that the doctor’s opinion about the disease’s progression was consistent

with Mr. Funka’s testimony about when he started experiencing symptoms. Section

718.204(d)(3) provides that a total disability cannot be established based solely on a

claimant’s testimony; it does not prohibit an ALJ from using lay testimony to determine

when a claimant first became symptomatic. Thus, it was entirely permissible for the ALJ

to evaluate whether Dr. Green’s medical opinion was corroborated by Mr. Funka’s lay

testimony. See Soubik v. Dir., Office of Workers’ Comp. Programs,

(3d Cir. 2004).

Relying on United States Steel Mining Company, Inc. v. Director, Office of

Workers’ Compensation Programs,

(4th Cir. 1999), Consolidation next

argues that the ALJ erred in crediting Dr. Green’s “highly speculative” opinion about the

absence of black pigment in Mr. Funka’s lungs. (Opening Br. at 41-43.) In United States

Steel, the Fourth Circuit held that a doctor’s statement that “it is possible that [the

claimant’s] death could have occurred as a consequence of his pneumonia superimposed

upon . . . his occupational pneumoconiosis” was insufficient “to establish by a

preponderance of the evidence that there was a causal link between [the claimant]’s

14 pneumoconiosis and his death.” United States Steel,

(second

alteration in original). Consolidation argues that Dr. Green’s opinion regarding the lack

of significant amounts of black pigment in Mr. Funka’s lungs is similarly speculative as

he used uncertain words and phrases such as “can” and “could in part be due to.”

(Opening Br. at 41-43.)

This argument, however, relies on a selective reading of Dr. Green’s report and

deposition testimony and ignores Dr. Green’s overall conclusions. Dr. Green explained

that

[t]he most likely diagnosis, in my opinion, is that this is the variant of simple coal worker’s pneumoconiosis characterized by interstitial fibrosis (Green and Vallyathan, 1998). . . . [A]lthough some of the interstitial fibrosis was pigmented (as shown in Figures 5 and 6), a majority was not (Figure 1). The lack of pigmentation could in part be due to clearance of coal mine dust from the lungs following retirement from the mining industry in 1992, a period of 13 years. In addition, episodes of congestive cardiac failure can enhance clearance of a dust from the interstitium (Green and Vallyathan, 1998). Variability of pigmentation appears to be a feature of this form of coal worker’s pneumoconiosis (Green and Vallyathan, 1998; McConnochie et al., 1998).

Silica exposure can also produce interstitial fibrosis (Craighead et al., 1982; Honma et al., 1993) and evidence of significant silica exposure was shown by the presence of large confluent silicotic nodules in the tracheo-bronchial lymph nodes. Thus, it is my opinion that the interstitial fibrosis was causally related to coal mine dust exposure which included the silica component.

(App. at 265-266) (emphasis added.) Unlike United States Steel where the doctor could

not opine with any definiteness that the claimant’s pneumoconiosis was related to his

death, Dr. Green opined that Mr. Funka’s interstitial fibrosis was caused by his exposure

to coal dust and further diagnosed him with coal workers’ pneumoconiosis. He supported

his conclusions with citations to the medical literature, his own findings, and his

15 explanations of the evidence that appeared to contradict his diagnosis. The mere fact that

Dr. Green used some less than definite language before coming to his ultimate conclusion

does not mean that the ALJ was not entitled to credit his medical opinion and diagnosis.

Indeed, “a testifying physician need not express his conclusions in terms of reasonable

degree of medical certainty to be credited by the ALJ; the ALJ must instead accept a

documented opinion of a physician exercising reasoned medical judgment.” Mancia v.

Dir., Office of Workers’ Comp. Programs,

(3d Cir. 1997) (alteration

and quotation marks omitted).5

Relatedly, we find no merit in Consolidation’s contention that the ALJ

impermissibly credited Dr. Green’s interpretation of a particular research study, the

McConnochie study, over the interpretations of Dr. Fino and Dr. Tomashefski, simply

because Dr. Green was a co-author of the study. As the ALJ correctly pointed out,

neither party placed the McConnochie study in the record. While the ALJ certainly could

have directed either party to place the study into evidence, the ALJ permissibly credited

Dr. Green’s interpretation of the study over that of Dr. Fino and Dr. Tomashefski on the

basis that Dr. Green co-authored the study and therefore had a more in-depth

understanding of the study’s conclusions and implications.

5 Consolidation also argues that the ALJ improperly found legal pneumoconiosis in connection with Mr. Funka’s bronchitis because Dr. Green only stated that Mr. Funka’s bronchitis was “probably” related to his coal mine dust exposure. (App. at 395.) Such a finding, however, was not necessary to award benefits because the ALJ also concluded that Mr. Funka had both clinical and legal pneumoconiosis with respect to his pulmonary fibrosis. Thus, even assuming the ALJ did err in this respect, any such error was harmless. 16 Consolidation also puts forth a variety of arguments as to why the ALJ erred in

assigning little weight to the medical opinions of Dr. Tomashefski and Dr. Fino. Having

already concluded that the ALJ did not err in her analysis of Dr. Green’s medical opinion

and therefore permissibly assigned that opinion significant probative weight, we see no

error in the comparative weight that the ALJ assigned to the opinions of Dr. Tomashefski

and Dr. Fino. ALJ Timlin reviewed all the evidence in the record and explained that she

assigned little probative weight to the opinion of Dr. Tomashefski because, among other

reasons, (1) his conclusion that Mr. Funka did not have pneumoconiosis was based on the

absence of pigmentation and macules or micronodules, the presence of which are not

required to support a diagnosis of pneumoconiosis under the BLBA regulations, (2) he

provided no explanation or citation to the medical literature to support his claim that coal

mine dust induced fibrosis does not cause honeycombing, (3) his interpretation of the

McConnochie study to support his conclusion was contradicted by the study’s co-author,

and (4) he failed to address the possibility that Mr. Funka could have legal

pneumoconiosis. Further, the ALJ noted that Dr. Tomashefski’s opinion that Mr. Funka

had idiopathic pulmonary fibrosis was in conflict with Dr. Green’s explanation,

supported by citations to the medical literature, that such a diagnosis was inappropriate

for individuals with a history of coal dust exposure. Despite this conflict, the ALJ

explained that “Dr. Tomashefski did not discuss why Miner’s fibrosis was idiopathic in

light of Miner’s coal dust exposure history.” (App. at 108.)

These were all permissible considerations for ALJ Timlin to take into account

when weighing the competing medical opinions. See Kertesz,

(“[T]he

17 ALJ should reject as insufficiently reasoned any medical opinion that reaches a

conclusion contrary to objective clinical evidence without explanation.”). The ALJ

adequately explained why she assigned Dr. Tomashefski’s opinion less weight and

substantial evidence in the record supports the ALJ’s findings.

Likewise, ALJ Timlin assigned little probative weight to Dr. Fino’s opinion that

Mr. Funka did not have pneumoconiosis because (1) Dr. Fino based his conclusion on

findings of minimal to no anthracotic pigment and his assertion that coal mine induced

fibrosis is usually associated with heavy anthracotic pigment within the fibrosis, a finding

which is not required to support a diagnosis of pneumoconiosis under the BLBA

regulations, (2) Dr. Fino’s assertion that Mr. Funka’s pulmonary fibrosis began in 2003

was contradicted by both Mr. Funka’s testimony and medical reports from 2003 showing

that Mr. Funka already had advanced pulmonary fibrosis at that time, and (3) Dr. Fino did

not explain why his diagnosis of idiopathic pulmonary fibrosis was appropriate in light of

Mr. Funka’s history of significant coal dust exposure. Once again, the ALJ adequately

explained why she rejected Dr. Fino’s opinion as insufficiently reasoned and not well

supported. In light of the facts discussed above, we find that substantial evidence in the

record supports the ALJ’s findings with respect to Dr. Fino’s opinion.6

6 Additionally, Consolidation argues that ALJ Timlin failed to address matters the BRB directed her to consider on remand. As Consolidation readily admits, however, it did not raise this argument before the BRB. Because Consolidation did not raise this argument before the BRB, we deem it waived. See Penn Allegheny Coal Co. v. Mercatell,

(3d Cir. 1989). 18 In sum, we find that ALJ Timlin did not err in her evaluation of the medical

opinions and that her findings were supported by substantial evidence.

B. Withdrawing Evidence

Finally, Consolidation argues that ALJ Timlin abused her discretion and violated

Consolidation’s due process rights to a full and fair hearing when it ordered certain

evidence withdrawn from the record. Pursuant to

, parties are limited

in the amount of medical evidence they may submit in support of their cases.7 When this

matter reached the BRB for the third time, Mrs. Funka argued that Consolidation

exceeded the limitations found in § 725.414. The BRB instructed that, on remand, the

ALJ should determine whether Dr. Oesterling’s report constituted rebuttal evidence, thus

falling outside of the evidentiary limitations. In response, ALJ Timlin ordered the parties

to submit a summary which designated their evidence with respect to the § 725.414

limitations. According to Consolidation, this had the effect of forcing Consolidation to

withdraw evidence that it had relied on over the duration of the litigation. Consolidation

objected, but ALJ Timlin found that the “evidentiary limitations are mandatory and not

7 For example, under the regulation,

The claimant is entitled to submit, in support of his affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports.

(a)(2)(i). 19 waivable” and that Consolidation failed to “show[ ] good cause for including evidence in

excess of the evidentiary limitations.” (App. at 81.) The BRB affirmed.

Consolidation argues that it was prejudiced by being forced to comply with the

limitations contained in § 725.414. To be clear, Consolidation does not argue that §

725.414 is itself problematic. Instead, Consolidation contends that it litigated this matter

over the course of many years and relied on the evidence that it submitted when

fashioning its arguments. Thus, Consolidation argues that when the § 725.414 limitations

were enforced at such a late stage, Consolidation’s right to a full and fair hearing was

violated.

We discern no error in the ALJ’s enforcement of the § 725.414 evidentiary

limitations under these facts. Although Consolidation argues that the ALJ sua sponte

ordered evidence withdrawn, the record shows that Consolidation was afforded a full

opportunity to decide what evidence it wished to submit in support of its case within the

confines of the § 725.414 limitations. Further, although Consolidation makes generalized

and conclusory allegations of prejudice, Consolidation fails to identify any specific

argument that was foreclosed to it or any other specific prejudice it suffered as a result of

ALJ Timlin’s Order.

IV. Conclusion

For the reasons discussed above, we will deny Consolidation Coal Company’s

Petition for Review.

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