[00:00:00] Speaker 03:
Okay our first case is 24-9548 Energy West mining versus slip and Mr. Mattingly to the appellant you may proceed.

[00:00:12] Speaker 04:
May it please the court my name is William Mattingly and I hope to save three minutes for rebuttal we'll see how I do.

[00:00:20] Speaker 04:
Admittedly, this is a very unusual case to be presenting to the court.

[00:00:25] Speaker 04:
We're back a second time.

[00:00:26] Speaker 04:
I think we're back a second time in part because there was some confusion over the published decision, which I thought was very clear, which the agency did not think was as clear.

[00:00:39] Speaker 04:
I thought that the published decision was very straightforward, that this court felt the medical opinion by Dr. Tomaszewski

[00:00:50] Speaker 04:
explained there was no clinical pneumoconiosis and there was no legal pneumoconiosis.

[00:00:56] Speaker 04:
He found other diseases and was quite expressly specific and precise in explaining why he believed those other diseases were not related to cold-dust exposure.

[00:01:10] Speaker 04:
This court agreed that the first administrative law judge

[00:01:14] Speaker 04:
simply failed to consider the deposition, where Dr. Tomaszewski further explained his opinion, sent it back to the benefits review board, sent it back with the board being advised it was to their discretion whether it needed to be remanded back to an administrative law judge to resolve the question.

[00:01:32] Speaker 04:
The board took more time than I think they should have, eventually sent it back.

[00:01:36] Speaker 04:
There was a retirement among the administrative law judges.

[00:01:39] Speaker 04:
It was eventually reassigned.

[00:01:41] Speaker 04:
New judge.

[00:01:43] Speaker 04:
took the case.

[00:01:45] Speaker 04:
He wrote a multi-page decision, gave three reasons after he looked at the medical information.

[00:01:52] Speaker 04:
None of those three reasons make sense.

[00:01:54] Speaker 04:
The first reason, Dr. Tomaschewski.

[00:01:57] Speaker 02:
Mr. Manley, before you get into those, and I'll ask the same question of your adversary, do the first two question, first two rationales matter since the BIA skirted those two rationales and only relied on the ALJ's third rationale?

[00:02:15] Speaker 04:
The standard review of this court allows you to look at the Benefits Review Board's decision and or the Administrative Law Judge's decision.

[00:02:23] Speaker 04:
So it is always my, maybe it's an overly protective position that I need to address the administrative law justice decision, but you're absolutely right.

[00:02:32] Speaker 04:
The board filtered it down, dropped a footnote and said, we found one reason we're not going to look at the other reasons, go away.

[00:02:41] Speaker 04:
Which always irritates me because I would like to know why I'm wrong on the other reasons if I am.

[00:02:47] Speaker 04:
Or if the board agrees with me.

[00:02:49] Speaker 04:
Because I think in this case, they would have agreed with me.

[00:02:52] Speaker 04:
And I always wonder if that's why that footnote's dropped.

[00:02:54] Speaker 04:
Because the first reason Dr. Tomaszewski didn't cite any medical treatises simply makes no sense.

[00:03:02] Speaker 04:
There is no requirement that an expert witness cite a medical treatment based on his experience and expertise for every point he makes.

[00:03:10] Speaker 04:
And when you look through his deposition, he explains what he found.

[00:03:15] Speaker 04:
the pathologic presentation, and then said, I'm not quite sure.

[00:03:22] Speaker 04:
Very honest, I'm not quite sure what caused this.

[00:03:25] Speaker 04:
Here are several options, but I am certain of this.

[00:03:28] Speaker 04:
It wasn't coal mine dust.

[00:03:30] Speaker 04:
And why am I certain of this?

[00:03:33] Speaker 04:
Because the presentation does not have black pigment, which is the key.

[00:03:37] Speaker 04:
There had to be some cause and effect between the changes and black pigmentation showing not only exposure, but a reaction of the lung tissue.

[00:03:47] Speaker 04:
So his explanation was quite, I think, convincing.

[00:03:52] Speaker 04:
And the first two reasons that ALJ Swank gave, he didn't cite any medical treatises, so therefore it was conclusory.

[00:04:00] Speaker 04:
And that he said it was unknown, simply just don't stand up to me, Chris.

[00:04:04] Speaker 01:
The medical literature, my understanding is he didn't say, you have to cite medical literature or we will disregard everything you said.

[00:04:12] Speaker 01:
Just noted that there wasn't any cited, which that goes to the weight, doesn't it?

[00:04:20] Speaker 01:
In other words,

[00:04:22] Speaker 04:
It does accept the way he did it, Judge Phillips.

[00:04:25] Speaker 04:
He said it was conclusory.

[00:04:27] Speaker 04:
And as I read this court's decision, you concluded the opinion from Dr. Tomaszewski was not conclusory.

[00:04:36] Speaker 04:
He explained why he found as he did.

[00:04:39] Speaker 04:
And for Judge Swank to say it's conclusory because he didn't cite medical treatises, flies in the face of that.

[00:04:46] Speaker 04:
So that was one of the reasons that

[00:04:49] Speaker 04:
His opinion, Judge Swank's opinion, simply can't be affirmed.

[00:04:53] Speaker 04:
I understand the point.

[00:04:55] Speaker 04:
Wasn't it a credibility determination?

[00:04:57] Speaker 04:
I don't think it was a credibility determination because he didn't explain it.

[00:05:00] Speaker 04:
He just said it was conclusory.

[00:05:02] Speaker 04:
And quite frankly, I don't know what kind of medical treatises he would have wanted Dr. Tomaszewski to cite.

[00:05:08] Speaker 04:
Dr. Tomaszewski did refer back to the 1979 Archives of Pathology and Laboratory Medicine article to establish the existence of clinical pneumoconiosis, but then he moved on to the other diseases.

[00:05:21] Speaker 04:
And interestingly enough,

[00:05:23] Speaker 04:
The University of Utah pathology report and the reviewer report that was from the Mayo Clinic paralleled with Dr. Tomaszewski's diagnoses very well.

[00:05:33] Speaker 04:
They all agreed.

[00:05:34] Speaker 04:
They saw nothing related to cold-dust exposure.

[00:05:37] Speaker 04:
It was primarily the constrictive bronchiolitis that was present.

[00:05:42] Speaker 02:
Mr. Medigly, the rationale that there's no particles, there's no coal

[00:05:51] Speaker 02:
what is it, micronodules or colmacules that also coincides with the regulatory definition of clinical pneumoconiosis, correct?

[00:06:03] Speaker 04:
It doesn't.

[00:06:04] Speaker 04:
And here's why I have that opinion.

[00:06:06] Speaker 04:
When you look at the regulatory definition, it requires that there be a fibrotic reaction.

[00:06:12] Speaker 02:
In addition to the presence of... Correct.

[00:06:16] Speaker 02:
So it was half of the definition.

[00:06:19] Speaker 02:
Yes.

[00:06:19] Speaker 02:
Of clinical pneumoconiosis.

[00:06:21] Speaker 02:
It was a component.

[00:06:22] Speaker 02:
It didn't fulfill the definition.

[00:06:23] Speaker 02:
And so the ALJ and the board say that, well, you would agree, would you not, that there can be legal pneumoconiosis without clinical pneumoconiosis.

[00:06:38] Speaker 02:
Absolutely.

[00:06:39] Speaker 02:
And so if the rationale for rebutting the presumption that

[00:06:47] Speaker 02:
the exposure to coal mining dust, or that the, is that the lung function, the impairment of lung function, pulmonary function, arose out of coal mine employment, was predicated on part of the definition of clinical pneumoconiosis.

[00:07:07] Speaker 02:
And the ALJ says, well that can't logically be a rebuttal of legal pneumoconiosis

[00:07:16] Speaker 02:
because that is an integral part of the definition of clinical pneumoconiosis.

[00:07:21] Speaker 02:
What is the fallacy in that logic?

[00:07:23] Speaker 02:
It seems quite logical on its face, doesn't it?

[00:07:26] Speaker 04:
That's not what Dr. Tomaszewski explained.

[00:07:29] Speaker 04:
Dr. Tomaszewski explained there's no clinical pneumoconiosis because there's no macular or nodular disease.

[00:07:38] Speaker 04:
There's no contrary evidence that is supported by the x-rays and the CT scans.

[00:07:43] Speaker 04:
He then explained we have these two other things

[00:07:46] Speaker 04:
The bronchiolitis was not from cold-dust exposure because when cold-dust affects the airways, it causes an entirely different disease process.

[00:07:58] Speaker 04:
As he explained, you have macular disease caused in the small airways from cold-dust exposure.

[00:08:04] Speaker 04:
That's not constricted bronchiolitis.

[00:08:06] Speaker 04:
It's an entirely different presentation on the bronchioles.

[00:08:11] Speaker 04:
And then the interstitial fibrosis was an infectious process that had nothing to do with cold dust exposure.

[00:08:19] Speaker 04:
And he explained when he looked at the biopsy slides, the cold dust was not in the lung parenchyma, the spongy part of the lung, but it was primarily in the pleura.

[00:08:31] Speaker 04:
Think of the lung as an orange.

[00:08:32] Speaker 04:
The pleura would be the white underneath the skin part of the orange.

[00:08:37] Speaker 04:
And when the lung functions, it gets rid of foreign bodies and moves it to the pleura.

[00:08:42] Speaker 04:
That's what you expect.

[00:08:44] Speaker 04:
That's not a disease process.

[00:08:46] Speaker 04:
That's a marker of exposure.

[00:08:47] Speaker 04:
That was the words he used.

[00:08:49] Speaker 04:
I went back and re-read the deposition.

[00:08:53] Speaker 04:
And even with 2020 hindsight now, I don't know that I would have asked him any other questions to have him explain why he did not find legal pneumoconiosis in this case.

[00:09:06] Speaker 04:
Because even in his report, he was clear early on that it was not legal pneumoconiosis.

[00:09:13] Speaker 04:
Because after he explained that he found constrictive bronchiolitis and interstitial fibrosis, and that the cause was multifactorial, it was not within a reasonable degree of medical certainty the result of coal workers' pneumoconiosis, mineral dust-related small airways disease,

[00:09:34] Speaker 04:
or diffuse interstitial fibrosis due to cold-usk exposure.

[00:09:38] Speaker 04:
That covers the definitions of clinical pneumoconiosis and legal pneumoconiosis.

[00:09:43] Speaker 04:
I think those last two expressions that he had explain why this wasn't another chronic dust-induced lung disease.

[00:09:51] Speaker 03:
And that's what legal pneumoconiosis is.

[00:09:54] Speaker 03:
Are you saying that no reasonable adjudicator could have rejected Tomaszewski's

[00:10:04] Speaker 03:
testimony, or are you saying this adjudicator failed to adequately explain his rejection of Tomaszewski's testimony?

[00:10:17] Speaker 04:
I would like to say no reasonable adjudicator.

[00:10:21] Speaker 03:
That's what I've been hearing.

[00:10:23] Speaker 04:
But I realize that it still is the ALJ's role to be the fact finder and to say yea or nay when they weigh opinions.

[00:10:33] Speaker 04:
But there's no contrary evidence here.

[00:10:35] Speaker 04:
So he's left with a medical opinion that is explained, that has been consistent throughout the reports and in the deposition.

[00:10:45] Speaker 04:
So I do go to that far side of the camp saying no reasonable adjudicator here presented with this record could reach a different conclusion.

[00:10:55] Speaker 03:
What if the adjudicator discounted the testimony?

[00:11:01] Speaker 03:
I guess the government had the burden of having some contrary medical evidence that's not in this record.

[00:11:09] Speaker 04:
There is no contrary evidence to counter my rebuttal evidence with Dr. Tomaszewski.

[00:11:15] Speaker 03:
So you should have won on the equivalent summary judgment in this case.

[00:11:20] Speaker 04:
And the confusion in this case

[00:11:23] Speaker 04:
seems that it's over clinical and legal pneumoconiosis, but it doesn't have to be that confusing to me because legal pneumoconiosis is still defined as a chronic dust disease of the lungs.

[00:11:38] Speaker 04:
And this expert explains, in the two diseases I found, there's no chronic dust that would have incited either of those diseases to be present in the lungs.

[00:11:50] Speaker 04:
So the agency just didn't do their job in looking at this record.

[00:11:54] Speaker 04:
and, in essence, agreeing with me that the presumption of legal neumannkinesis was reported in this case.

[00:12:01] Speaker 02:
Or is it an argument that the agency is wrong in creating this link that shouldn't exist?

[00:12:09] Speaker 02:
If the agency posits that there is a presumptive nexus between any impairment of lung function

[00:12:19] Speaker 02:
and 15 years or more of employment in a coal mine, then we presume that there's this nexus.

[00:12:26] Speaker 02:
And as I understand what you're saying, Dr. Tomasiewski says is, well, I rebutted it, this presumption, because I concluded that there was no deposition of these particles in the lungs.

[00:12:41] Speaker 02:
And so that couldn't, that impairment of lung function couldn't have been related to the,

[00:12:48] Speaker 02:
to the employment in a coal mine for 15 years.

[00:12:51] Speaker 02:
But that's precisely the presumption.

[00:12:54] Speaker 02:
And so it seems to me that you have to have some alternative explanation.

[00:13:01] Speaker 02:
It was a genetic.

[00:13:02] Speaker 02:
He had no deposition of particles.

[00:13:07] Speaker 02:
And so this impairment of lung function, this chronic bronchiolitis, must have been some genetic.

[00:13:12] Speaker 02:
There was a genetic marker.

[00:13:14] Speaker 02:
Or he smoked for 30 years.

[00:13:16] Speaker 02:
and that there were these alternative causes.

[00:13:19] Speaker 02:
But to say that there was no rebuttable, that I rebutted the presumption seems to be in effect that there should have been no presumption in the first place.

[00:13:28] Speaker 04:
So remember there's two ways to rebut the presumption.

[00:13:31] Speaker 04:
I can rebut it by showing there's no disease.

[00:13:34] Speaker 04:
Right.

[00:13:34] Speaker 04:
Or you can rebut by showing disability was not due to.

[00:13:37] Speaker 04:
I'm trying to rebut by showing no disease.

[00:13:40] Speaker 04:
Right, disease causation.

[00:13:41] Speaker 04:
Correct.

[00:13:42] Speaker 04:
And in this case, there's no legal pneumoconiosis because none of the abnormalities were related to cold dust exposure from a causal standpoint.

[00:13:51] Speaker 04:
And he did explain why he thought it might be idiopathic or unknown, but there were other reasons that he explained that he attributed the bronchiolitis or the interstitial fibrosis to.

[00:14:07] Speaker 04:
I'll save a minute for rebuttal.

[00:14:09] Speaker 03:
I'll give you some rebuttal first.

[00:14:09] Speaker 04:
Thank you.

[00:14:21] Speaker 00:
Good morning, your honors.

[00:14:22] Speaker 00:
May it please the court, I'm Brad Austin.

[00:14:23] Speaker 00:
I'm here today representing the respondent who is now Sandra Schlip.

[00:14:28] Speaker 00:
And of course, Sandra Schlip is the daughter of the original coal miner in this case, Mr. James Lyle, who

[00:14:35] Speaker 00:
filed this claim in 2011 and pursued it up until he unfortunately passed away in 2018.

[00:14:41] Speaker 00:
After his passing, his widow, Joanne, pursued the claim for two years until she passed away.

[00:14:47] Speaker 00:
And so now Sandra is pursuing the claim.

[00:14:52] Speaker 00:
Your Honors, I think, especially Judge Timkovich, when you asked Mr. Mattingly, I want to cut straight to the chase, when you asked him, could a reasonable fact finder have

[00:15:03] Speaker 00:
found Dr. Tomaszewski's report did not rebut the presumption.

[00:15:07] Speaker 00:
And he said, of course, I don't think so.

[00:15:10] Speaker 00:
That runs afoul of what this court did when it remanded this case.

[00:15:14] Speaker 00:
If that were the case, that a reasonable fact finder could not have possibly found that Dr. Tomaszewski did not rebut the presumption, this court could have reversed the first time around.

[00:15:24] Speaker 00:
But the true issue here is that a fact finder the first time around, with Judge Romero's opinion, did not consider all of the evidence

[00:15:33] Speaker 00:
And this court got it right in its published opinion.

[00:15:35] Speaker 00:
Judge Baccarat and Judge Temkovich, you were on that opinion, and you explained quite clearly that there was a mandate on remand.

[00:15:43] Speaker 00:
You have to consider all of the evidence, and you can't simply say the doctor didn't explain himself, because the doctor did explain himself.

[00:15:51] Speaker 00:
But there's a big difference between a physician who explains himself and a judge discrediting on that sole reason.

[00:16:00] Speaker 00:
and a physician who explains himself and the judge not crediting it.

[00:16:05] Speaker 00:
On remand, the case was reassigned to Judge Schwenk.

[00:16:08] Speaker 00:
Judge Schwenk engaged in a two-page, single-spaced analysis where he summarized Dr. Tomaszewski's opinions.

[00:16:16] Speaker 00:
He went in and explained himself and provided various reasons for why he didn't find Dr. Tomaszewski's opinion persuasive.

[00:16:25] Speaker 00:
That's what fact-finders do.

[00:16:26] Speaker 00:
That's a battle of the experts.

[00:16:28] Speaker 00:
That's a weighing of the medical evidence.

[00:16:30] Speaker 00:
Now, in this case, there wasn't necessarily a battle of the experts because we didn't have an opinion that is contrary to Dr. Tomaszewski's.

[00:16:39] Speaker 00:
But my client was entitled to the 15-year presumption.

[00:16:42] Speaker 00:
It's a presumed fact until proven otherwise that he suffered from both clinical, legal, and disability causation.

[00:16:49] Speaker 00:
Now, the employer did rebut clinical co-workers' pneumoconiosis.

[00:16:53] Speaker 00:
But what it failed to do was rebut legal co-workers' pneumoconiosis.

[00:16:56] Speaker 00:
And Judge Swink outlined various reasons that are supported by substantial evidence for doing so.

[00:17:03] Speaker 00:
At the end of the day, and that's what this case is, it is a substantial evidence case.

[00:17:08] Speaker 00:
Judge Swink explained himself.

[00:17:11] Speaker 00:
There is evidence to support that, and it's really that clear.

[00:17:14] Speaker 00:
Now, when this case was before this court the last time around, there were all kinds of issues.

[00:17:19] Speaker 00:
The case has been significantly narrowed since that time.

[00:17:22] Speaker 00:
This is the only issue we have.

[00:17:24] Speaker 00:
So when you look at these reasons that the fact finder gave, unlike the first ALJ, Judge Swank fully considered the deposition transcript of Dr. Tomaszewski.

[00:17:36] Speaker 00:
And I agree with Mr. Mattingly.

[00:17:38] Speaker 00:
Dr. Tomaszewski does explain himself most completely in that deposition.

[00:17:45] Speaker 00:
But you need to understand, Mr. Mattingly was not the only attorney who got a chance to ask questions of Dr. Tomaszewski in that deposition.

[00:17:54] Speaker 00:
I asked some questions as well on cross-examination, and I'd like for the court to go in and review the entirety of the deposition transcript.

[00:18:02] Speaker 02:
Well, we have.

[00:18:02] Speaker 02:
Are there any particular parts of the deposition that show this differentiation between the clinical and legal?

[00:18:09] Speaker 00:
Well, Your Honor, I think he did acknowledge on cross-examination that there was minimal dust deposition within the lung tissue.

[00:18:16] Speaker 00:
He acknowledged that there was emphysemitis changes.

[00:18:19] Speaker 00:
although he didn't believe that they were the type of emphyseminous changes that were caused by coalmine dust exposure.

[00:18:26] Speaker 00:
He did acknowledge in the deposition that he had a significant and substantial coalmine dust history that in a susceptible host might cause disabling co-workers pneumoconiosis.

[00:18:40] Speaker 00:
And at the end of the day, Your Honor, there are other reasons besides just the clinical.

[00:18:46] Speaker 00:
The judge did factor in the failure to cite medical literature, and I wanted to talk about that for a moment.

[00:18:56] Speaker 00:
It's a bold declaration to just simply declare that another disease process besides coalmine dust exposure and legal coworkers pneumoconiosis caused... Why do we care about that or the second rationale?

[00:19:09] Speaker 02:
Now, Mr. Manningly said we can have our choice of who to review.

[00:19:16] Speaker 02:
But it could be and or.

[00:19:18] Speaker 02:
But who do you think we review?

[00:19:20] Speaker 02:
The BIA, which, you know, ordinarily in immigration cases, I think that's what we do.

[00:19:25] Speaker 02:
But now in bankruptcy cases, we, you know, review the bankruptcy judge's decision.

[00:19:29] Speaker 02:
What do we do in a pneumoconiosis case?

[00:19:31] Speaker 02:
Do we review the board's decision or the ALJ's?

[00:19:36] Speaker 00:
I think you review both.

[00:19:39] Speaker 00:
I think you review the board's decision.

[00:19:42] Speaker 00:
In this particular case, I don't think that necessarily matters, because I think the sole reason that the board did state would be affirmed.

[00:19:50] Speaker 00:
But for the sake of answering your question, because I don't want to sidestep it, I think you still are entitled to review the full opinion of the administrative law judge based on substantial evidence.

[00:20:02] Speaker 00:
That's mine.

[00:20:05] Speaker 00:
OK.

[00:20:05] Speaker 00:
Yes, your honor.

[00:20:08] Speaker 00:
Yes, correct.

[00:20:09] Speaker 00:
So as I was stating there, there's various reasons there.

[00:20:13] Speaker 00:
Number one, Judge Schlank did review the deposition transcript.

[00:20:17] Speaker 00:
That's what the previous ALJ did not do.

[00:20:20] Speaker 00:
Number two, Judge Schlank fully understood Dr. Tomaszewski's opinion, and that's evidenced by him outlining the opinion in his decision.

[00:20:31] Speaker 00:
two-page summarization.

[00:20:33] Speaker 00:
Mr. Mattingly is not arguing that he improperly outlined the opinion, so of course the judge fully understood it.

[00:20:41] Speaker 00:
That's something the previous ALJ did not.

[00:20:44] Speaker 00:
He was unconvinced by the etiology of constricted bronchiolitis and interstitial fibrosis because of the failure to cite medical literature.

[00:20:52] Speaker 02:
Not only that, but on page 14, because that's not something that's caught, this is a quote,

[00:21:00] Speaker 02:
Is it something that is caused by exposure to coal mine dust?

[00:21:03] Speaker 02:
Answer, no, it is not.

[00:21:05] Speaker 02:
So it's not only the failure to cite medical literature, it's his independent conclusion as a doctor that chronic bronchiolitis is not attributable to exposure to coal mine dust in his medical opinion.

[00:21:18] Speaker 02:
Now, why would that be an independent basis to rebut the regulatory presumption?

[00:21:29] Speaker 02:
of a nexus to cause disease causation.

[00:21:32] Speaker 00:
So let me make sure I understand.

[00:21:33] Speaker 00:
Your question is why would that statement from this medical expert in this case not be an independent... Why wouldn't that contradict what the ALJ said?

[00:21:45] Speaker 02:
That it's not a complation of clinical and legal.

[00:21:48] Speaker 02:
He's actually giving a medical opinion about why chronic bronchiolitis does not arise at a coal mine employment.

[00:21:55] Speaker 00:
Proving that chronic bronchiolitis does not arise out of coal mine employment does not necessarily eliminate, even if accepted, the possibility of legal co-workers' pneumoconiosis as an additive contribution to that process.

[00:22:10] Speaker 00:
And I think that's what the AOJ felt when he reviewed the report was that he had not completely excluded the legal pneumoconiosis that was presumed in this case as a factor in the ultimate decision.

[00:22:26] Speaker 00:
Does that?

[00:22:26] Speaker 02:
I mean, the question is, is this, is it something that's caused by exposure to coalmine dust?

[00:22:34] Speaker 02:
The question was, is that the sole cause of, is exposure to coalmine dust the sole cause?

[00:22:42] Speaker 02:
Is it something that's caused?

[00:22:44] Speaker 02:
Is it your interpretation of that exchange that, when he said, when the question is, is it something that's caused, that that's one of the partial causes?

[00:22:55] Speaker 02:
Is that how you read that question?

[00:22:57] Speaker 00:
What he's saying in that portion of the deposition is that in his experience and based on what he understands in the medical literature, I guess, that it's his opinion that that particular condition is not caused by occupational exposure to coal mine dust.

[00:23:15] Speaker 00:
It's not that he didn't say that.

[00:23:17] Speaker 00:
It's that the judge didn't accept that as fully explained within the context of this record.

[00:23:24] Speaker 00:
So that's kind of what you had the first time around was that the judge kind of just summarily said, I don't think the doctor explained himself.

[00:23:33] Speaker 00:
It's clear the doctor did explain himself, but the judge was not convinced by that.

[00:23:38] Speaker 00:
And that's what fact-finders do.

[00:23:40] Speaker 00:
He looked at the regulatory definition of legal co-workers pneumoconiosis, you know, looked at the Federal Registrar that talked about how coal mine dust can arise out of various, you know, many different ways, many different types of disease processes and their sequeles can be legal co-workers pneumoconiosis.

[00:24:00] Speaker 00:
And that ball declaration alone was not sufficient to convince the ALJ that he had rebutted legal.

[00:24:08] Speaker 02:
I want to ask you, and I don't want this to sound like I'm arguing with you, because I'm not.

[00:24:13] Speaker 02:
I'm just really trying to probe this, because I'm not a doctor.

[00:24:16] Speaker 02:
I never pretended to be a doctor.

[00:24:18] Speaker 02:
But it seems to me that the ALJ did not reject, ALJ Schwein, did not reject Dr. Tomaszewski's opinion based on a lack of credibility.

[00:24:32] Speaker 02:
I mean, there was references to, he didn't cite medical literature.

[00:24:36] Speaker 02:
But the third rationale seems to be not a rejection of his credibility or persuasiveness, but that he committed a legal error by conflating clinical and legal pneumoconiosis.

[00:24:49] Speaker 02:
And this passage suggests to me that, well, maybe he wasn't conflating the two.

[00:24:54] Speaker 02:
He was giving an independent reason that even though he doesn't have coal miners, pneumoconiosis clinical,

[00:25:01] Speaker 02:
it doesn't arise, that chronic bronchiolitis doesn't arise out of coli employment because that's just otherwise, you know, you would see these particles in the lung tissue.

[00:25:16] Speaker 00:
Your Honor, I mean... Am I wrong about that?

[00:25:18] Speaker 00:
I could be.

[00:25:19] Speaker 00:
I mean, I disagree, but I understand your point.

[00:25:22] Speaker 00:
I just, I think Judge Swain clearly explained in his medical opinion that he finds that diagnosis

[00:25:30] Speaker 00:
that you have to have macula or nodularity in order to diagnose legal coworkers' pneumoconiosis.

[00:25:38] Speaker 00:
I mean, he has to apply his own rules within the agency.

[00:25:41] Speaker 00:
In 65, you know, Fedreg 79941 and 20 CFR 718201A2 clearly state that you don't need that in order to make a diagnosis of legal coworkers' pneumoconiosis.

[00:25:56] Speaker 00:
And I think, you know, given the fact that claimant

[00:25:59] Speaker 00:
enjoyed this presumption, it was on the employer to fully convince the ALJ that that was not the case.

[00:26:06] Speaker 00:
And so when you have an opinion that he interpreted to be at odds with what the regulations say, I think it's a reasonable position for the fact finder to not be convinced by that argument.

[00:26:19] Speaker 00:
Now perhaps another ALJ may have looked at that exact same evidence and weighed that differently, but I think that's a factual determination for the trial of facts.

[00:26:29] Speaker 00:
Um, and I think the judge fully explained himself.

[00:26:31] Speaker 00:
He certainly tried his best to kind of his way to explain exactly what he was finding.

[00:26:37] Speaker 00:
I think he did show respect to this court by outlining everything that this court found outlining everything that came from the board.

[00:26:44] Speaker 00:
And he went in and tried to provide many separate reasons for what he did.

[00:26:48] Speaker 00:
Um, you know, we don't impose a duty of long windedness on an ALJ.

[00:26:53] Speaker 00:
We don't impose.

[00:26:54] Speaker 00:
Perfection on an ALJ, I think the standard is, can you figure out what the judge did and why he did it, and could a reasonable mind have reached the same conclusion?

[00:27:05] Speaker 00:
In this case, I do think a reasonable mind could have reached the same conclusion, and this court should affirm the decision from the ALJ on remand, as well as the decision from the Benefits Review Board.

[00:27:18] Speaker 00:
Does the court have any additional questions?

[00:27:22] Speaker 03:
Hearing none, thank you.

[00:27:23] Speaker 03:
Thank you.

[00:27:24] Speaker 03:
And Mr. Mattingly, could you give him two minutes, please?

[00:27:29] Speaker 04:
Two points I'd like to make on rebuttal.

[00:27:33] Speaker 04:
Judge, there's a presumption of disability due to pneumoconiosis.

[00:27:38] Speaker 04:
It's not a presumption that any lung disease a coal miner has was caused by coal mine dust.

[00:27:45] Speaker 04:
So to rebut that presumption, you can show that there's not clinical or legal pneumoconiosis.

[00:27:52] Speaker 04:
Everyone agrees here there's no clinical.

[00:27:54] Speaker 04:
Then the question becomes, are these other changes those of legal pneumoconiosis?

[00:28:02] Speaker 04:
Dr. Tomaszewski in his report and in that passage of the deposition, which is the page before the passage that was cited in this court's decision, I think explains very precisely

[00:28:15] Speaker 04:
These are other diseases.

[00:28:17] Speaker 04:
These are not related to coal dust exposure.

[00:28:20] Speaker 04:
And contrary to what Mr. Austin said, Judge Swank never addressed that page of the deposition and never acknowledged that Dr. Tomaszewski in his reports and in the deposition explained that simply those diseases were unrelated to coal dust exposure.

[00:28:41] Speaker 04:
They're not known to be caused by coal dust exposure and

[00:28:44] Speaker 04:
there wasn't any significant coal mine dust associated with them to allow him to conclude that there was some type of nexus from a medical causation standpoint.

[00:28:54] Speaker 04:
So, I guess back to Judge Tempkiewicz, a reasonable fact finder can't reach another decision in this case.

[00:29:01] Speaker 04:
Dr. Tomaszewski's opinion is fully reasoned, it deserves full credibility, it rebutts the presumption of legal pneumoconiosis.

[00:29:11] Speaker 02:
Can I ask a question about

[00:29:15] Speaker 02:
how that applies, that standard applies in this case.

[00:29:19] Speaker 02:
Typically, you know, when we consider substantial evidence, there's a finding, the defendant robbed the bank, whatever, that there was enough evidence to support it.

[00:29:31] Speaker 02:
Here, the third rationale of Judge Schweinck is that there was a conflation of clinical and legal.

[00:29:41] Speaker 02:
substantial evidence, is the question as applied in this context whether a reasonable judge could interpret Dr. Tomaszewski's deposition testimony as a conflation of clinical and legal pneumoconiosis?

[00:30:02] Speaker 02:
Is that how that substantial evidence applies in this particular context?

[00:30:07] Speaker 02:
I think that's the first question you have to ask.

[00:30:10] Speaker 04:
Could his opinion conflate the two?

[00:30:14] Speaker 04:
And I don't see how.

[00:30:16] Speaker 04:
And the second question is, is there substantial evidence in the record that supports rebuttal?

[00:30:24] Speaker 04:
And is there anything contrary to that?

[00:30:25] Speaker 04:
And in this case, the only evidence is Dr. Tomaszewski.

[00:30:28] Speaker 04:
It rebuts the presumption of legal pneumoconiosis.

[00:30:31] Speaker 04:
So it's a two-pronged question.

[00:30:35] Speaker 03:
Thank you.

[00:30:35] Speaker 03:
Time's expired.

[00:30:36] Speaker 03:
We appreciate the arguments.

[00:30:37] Speaker 03:
Counsel's excused, and the case shall be submitted.

[00:30:40] Speaker 03:
Can I just come in?