Michael Dalton v. Office of Workers’ Compensation Programs , United States Department of Labor

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1243
MICHAEL DALTON, et al.,
Petitioners‐Appellants,
v.
OFFICE OF WORKERS’ C OMPENSATION P ROGRAMS , U NITED
STATES D EPARTMENT OF LABOR , and FRONTIER‐KEMPER
C ONSTRUCTORS , INC.,
Respondents‐Appellees.
____________________
On Petition for Review of the Decision and Order of the
Benefits Review Board, United States Department of Labor.
BRB Nos. 11‐0852 BLA and 12‐0168 BLA
____________________
A RGUED SEPTEMBER 12, 2013 — D ECIDED D ECEMBER 20, 2013
____________________
Before WOOD, Chief Judge, and MANION and T INDER , Cir‐
cuit Judges.
W OOD, Chief Judge. For almost 15 years William Dalton
and, after his death eight years into the proceedings, his sur‐
vivors have been seeking benefits under the Black Lung
Benefits Act (the Act), 30 U.S.C. §§ 901‐45. They may have
thought that their quest was almost over when, in August

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2 No. 13‐1243
2011, an Administrative Law Judge (ALJ) ruled in favor of
Mr. Dalton’s children in all respects. But they would have
been wrong. On appeal to the Department of Labor’s Bene‐
fits Review Board (the Board), the children (petitioners Mi‐
chael Dalton, Sandi Collins, Kathy Moudy, and Joyce Gilli‐
han, referred to here as “the Children”) won some points but
lost on the critical issue of the onset date of their father’s dis‐
ease—and thus the date on which their benefits would
commence.
The employer, respondent Frontier‐Kemper Construc‐
tors, Inc. (Frontier), has not filed a petition for review of the
Board’s decision, but the Children have. They challenge only
the Board’s decision to modify, in a way unfavorable to
them, the date on which the benefits began. In a back‐door
way, Frontier attacks the Board’s decision to permit the Chil‐
dren to be substituted for Mr. Dalton as parties; it argues
that they lack standing because (it says) they are not real
parties in interest under the Longshore and Harbor Workers
Compensation Act, 33 U.S.C. § 921(c), as incorporated by the
Act, 30 U.S.C. § 932(a). We find no merit to Frontier’s posi‐
tion. On the central question of onset date, we conclude that
substantial evidence supported the ALJ’s finding that August
1991 marked the time of onset for Mr. Dalton’s total disabil‐
ity on account of pneumoconiosis. We therefore grant the
Children’s petition for review and remand this case to the
Board for reinstatement of the award of benefits using Au‐
gust 1991 as the date by which the claimant’s total disability
began, and thus the date for the commencement of benefits.
I
Mr. Dalton worked in coal mine construction jobs for at
least 22 years, from 1957 to August 1991. He worked on both

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No. 13‐1243 3
conventional and “raise‐bored” shafts, both of which involve
cutting through rock and coal. Through affidavits, Mr. Dal‐
ton confirmed that he was exposed to substantial amounts of
coal and rock dust throughout his employment. The last 16
years of his employment were at Frontier. His work was ar‐
duous and over time he developed trouble breathing. In Au‐
gust 1991 he quit his job because of his difficulty breathing,
and he was never employed again.
Mr. Dalton filed a claim for benefits under the Act on
June 1, 1999. Frontier opposed the claim and the District Di‐
rector of the Office of Workers’ Compensation proposed a
denial in February 2000. Upon Mr. Dalton’s request, the case
was transferred to the Office of the Administrative Law
Judges and submitted on the record without a hearing. On
October 14, 2003, an ALJ awarded benefits, finding that Mr.
Dalton was a “miner” for statutory purposes and that Fron‐
tier was the “responsible operator.” After weighing the med‐
ical evidence, the ALJ found that Mr. Dalton had established
clinical pneumoconiosis, based on the opinions of two pul‐
monary experts, Drs. Cohen and Dias. The ALJ rejected the
contradictory opinion of Frontier’s expert, Dr. Selby, as “un‐
reasoned.” The one problem, from Mr. Dalton’s standpoint,
was that the ALJ ruled that he could not determine the date
of onset of total disability on account of pneumoconiosis.
That meant, pursuant to 20 C.F.R. § 725.503(b), that Mr. Dal‐
ton’s benefits began in June 1999, the month and year in
which he filed his claim.
Frontier appealed. Although the Board accepted the ALJ’s
evaluations of the three experts, it vacated the ALJ’s finding
that Mr. Dalton had established clinical pneumoconiosis,
finding that the ALJ had not properly evaluated the x‐rays

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4 No. 13‐1243
and CT scans in the record. On remand, in an opinion issued
on April 3, 2006, the ALJ again awarded benefits beginning
in June 1999. Frontier again appealed. On April 27, 2007, the
Board affirmed the ALJ’s findings in part but vacated his
finding that Mr. Dalton had established total disability on
account of “legal pneumoconiosis.” The case was once again
remanded.
By this time, the original ALJ had retired, and so the case
was reassigned to a new ALJ, who awarded benefits on Au‐
gust 29, 2008. The new ALJ reweighed the evidence and
found that Mr. Dalton had established both clinical and legal
pneumoconiosis and that his total respiratory disability was
the result of his “legal” pneumoconiosis—in other words, his
chronic obstructive pulmonary disease (COPD) was caused
in part by his exposure to coal‐mine dust. Like the earlier
ALJ, the new ALJ credited Mr. Dalton’s experts and discred‐
ited the contrary opinions of Dr. Selby for Frontier and Dr.
Carandang for the Department of Labor. He ordered benefits
to begin on June 1, 1999.
Mr. Dalton, unfortunately, did not live to see the outcome
of his case: he died on March 27, 2007. At that point the
Children moved to substitute as claimants, but the ALJ de‐
nied their motion in the August 29, 2008, ruling. Frontier ap‐
pealed the award of benefits to the Board, and the Children
cross‐appealed the denial of the motion to substitute. While
its administrative appeal was pending, Frontier moved to
remand the case to the District Director and a bit later to
dismiss its appeal. The Board obliged, dismissing both the
appeal and the cross‐appeal on February 26, 2009.
The Children then filed a renewed motion to substitute
on March 20, 2009, and both Frontier and the Children sub‐

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No. 13‐1243 5
mitted additional evidence. The District Director did not rule
on the motion to substitute, but on August 4, 2009, he found
that the ALJ had made no mistake in awarding benefits and
denied any modification. Frontier again objected and asked
that the case be forwarded to an ALJ.
At that point, the case was assigned to its third ALJ,
Judge Craft. On March 31, 2010, the Children once again
moved to substitute. Judge Craft granted the motion in an
order dated June 23, 2010. Frontier fired off an interlocutory
appeal to the Board, but the Children promptly moved to
dismiss. The Board agreed that the appeal was premature.
The case then proceeded before Judge Craft. Since it was
Frontier that had filed for modification, it had the burden of
establishing a mistake in the earlier determinations of fact.
Judge Craft found that Frontier failed to meet this burden
with respect to the decision to award benefits. But she did
not stop there. Sua sponte, she found that the prior ALJs had
been mistaken when they found no evidence for an onset
date earlier than Mr. Dalton’s date of filing. She explained
that while the filing date is used as the onset date of total
disability on account of pneumoconiosis when the true onset
date cannot be determined, the medical evidence in Mr. Dal‐
ton’s case adequately established an earlier date of total dis‐
ability: June 1991, when pulmonary function tests demon‐
strated total respiratory disability for purposes of the rele‐
vant regulations. Noting that Mr. Dalton stopped working in
August 1991, and citing Mr. Dalton’s medical reports, Judge
Craft found that there was no time after August 1991 that
Mr. Dalton was not totally disabled. She thus modified the
date for commencement of benefits from June 1999 back to
August 1991. Judge Craft also awarded attorneys’ fees and

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6 No. 13‐1243
expenses to Petitioners’ counsel. Frontier appealed both
awards to the Board.
On December 7, 2012, the Board affirmed Judge Craft’s
decision to substitute the Children as parties to the claim. It
also affirmed her denial of Frontier’s request for
modification of the award, insofar as it established eligibility
for benefits in general. The Board rejected the argument that
Judge Craft abused her discretion when she sua sponte took
up the question of modification of the date for
commencement of benefits. But it vacated Judge Craft’s
finding that the onset date was August 1991. Under the
regulations, benefits are payable as of the month of onset of
total disability on account of pneumoconiosis or, if the
evidence does not establish the month of onset, as of the
month during which the claim was filed, unless medical
evidence that was credited by the ALJ establishes that the
miner was not totally disabled from pneumoconiosis at any
later time. The Board wrote that because “neither Dr. Beck
nor Dr. Cohen opined that the miner was disabled due to
pneumoconiosis in 1991” it had to vacate the ALJ’s designation
of August 1991 as the date for the commencement of
benefits. The Board thought that there was no medical
evidence that reflected the date upon which Mr. Dalton
became totally disabled on account of pneumoconiosis, and
thus that his benefits were limited to the period beginning
with the month in which he filed his original claim. As a
result, the Board changed the commencement of benefits
back from August 1991 to June 1999, the month and year in
which Mr. Dalton filed his claim. The Board affirmed Judge
Craft’s award of attorneys’ fees.

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No. 13‐1243 7
On February 4, 2013, the Children filed a petition for re‐
view of the Board’s vacation of Judge Craft’s finding that
benefits should commence as of August 1991. Frontier did
not file a cross‐petition.
II
Before addressing the merits of the petition for review,
we must consider Frontier’s contention that this court lacks
jurisdiction because the Children are not real parties in in‐
terest. For a number of reasons, including the fact that the
concept of a real party in interest is not identical to that of
constitutional standing, see 6A C HARLES A LAN WRIGHT,
A RTHUR R. MILLER & MARY KAY KANE , F EDERAL P RACTICE
AND P ROCEDURE § 1542, (3d ed. 2010), we find no merit in
this argument.
Under the applicable regulations, children of a claimant
who make a showing that their “rights with respect to bene‐
fits may be prejudiced by a decision of an adjudication of‐
ficer, may be made a party.” 20 C.F.R. § 725.360(b). Frontier
itself requested a modification of the ALJ’s finding of bene‐
fits for Mr. Dalton, and an order issued in response to such a
request “may terminate, continue, reinstate, increase or de‐
crease benefit payments or award benefits.” 20 C.F.R.
§725.310(d). Accordingly, even if Mr. Dalton had received all
payments to which he was entitled, save for a 20% penalty to
which his estate is still entitled (not at issue here), Frontier’s
request for modification made it necessary for the Children
to defend the award Mr. Dalton already had received. As of
then, there was a risk that the resulting modification could
result in a reversal of the existing award. See Old Ben Coal Co.
v. Director, Office of Workersʹ Comp. Programs, 292 F.3d 533, 538
n.4 (7th Cir. 2002); Youghiogheny & Ohio Oil Co. v. Webb, 49

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8 No. 13‐1243
F.3d 244, 248–49 (6th Cir. 1995) (a miner’s right to benefits
does not cease upon death; the benefits must be paid to eli‐
gible surviving relatives). The Children were and are entitled
to benefits as Mr. Dalton’s surviving relatives. At the time the
ALJ modified the date of onset of total disability to August
1991, the Children’s petition to substitute had been granted
and they were entitled to almost eight years of unpaid bene‐
fits. The Children have a concrete, financial interest in the
outcome of this case, and it is fully redressable by the court.
Their constitutional standing to sue is unquestionable.
There is similarly no other problem with the Children’s
right to pursue this petition. “Any person adversely affected
or aggrieved by a final order of the Benefits Review Board
may obtain a review of that order in the U.S. court of appeals
for the circuit in which the injury occurred … .” 20 C.F.R.
§ 725.482. They are proper parties with a recognized interest
in the award. When the Board altered the date of com‐
mencement from August 1991 to June 1999, thereby erasing
the right to eight years’ worth of benefits, that decision had
an adverse impact on the Children. Enough said; we may
now address the merits.
III
While this petition for review is from a decision of the
Board, in reviewing the modification to the date of onset of
total disability, we must look back to the judgment of the
ALJ. That is because, as the Board acknowledged, the
Board’s scope of review is defined by statute, and the ALJ’s
decision must be affirmed if it is rational, supported by sub‐
stantial evidence, and in accordance with applicable law. See
33 U.S.C. § 921(b)(3); 20 C.F.R. § 802.301; Migliorini v. Director,
Office of Workersʹ Comp. Programs, 898 F.2d 1292, 1294 (7th

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No. 13‐1243 9
Cir. 1990). We must ensure that the Board stayed within
those boundaries. Although we review the entire record, we
too are not entitled to re‐determine the facts or substitute our
judgment for that of the ALJ. See Amax Coal Co. v. Beasley,
957 F.2d 324, 327 (7th Cir. 1992). Judicial review of the
Board’s decision is limited to whether the Board adhered to
its scope of review and whether it committed an error of law.
See Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 590 (7th Cir.
1985).
The Children present only one issue for our considera‐
tion: whether the Board erred when it vacated the ALJ’s find‐
ing that Mr. Dalton was totally disabled by pneumoconiosis
as of August 1991, and then substituted June 1999 as the date
for the commencement of benefits?
The Board’s explanation for why it overturned the ALJ’s
determination is summarized in a single sentence: “As nei‐
ther Dr. Beck nor Dr. Cohen opined that the miner was disa‐
bled due to pneumoconiosis in 1991, we must vacate the ad‐
ministrative law judge’s designation of August 1991, as the
date for the commencement of benefits.” Dalton et al. v. Fron‐
tier‐Kemper Constructors, Inc., BRB Nos. 11‐0852 BLA and 12‐
0168 BLA, at 12 (Dec. 7, 2012). A closer look at the record be‐
fore the ALJ, however, demonstrates why that statement
does not support the Board’s decision.
The record contains ample evidence that Mr. Dalton was
totally disabled as of the time he quit his job in August 1991.
He stopped working because of breathing problems, and his
1991 pulmonary function tests were qualifying under the
regulations. The standard for total disability found in 20
C.F.R. § 718.204(b) was met and, indeed, Frontier did not
challenge that finding. The only remaining issue is whether

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10 No. 13‐1243
the record contained substantial evidence to support Judge
Craft’s factual finding that his total disability in August 1991
was attributable to pneumoconiosis, as defined under the
Act. Under the regulations, pneumoconiosis is defined as “a
chronic dust disease of the lung and its sequelae, including
respiratory and pulmonary impairments, arising out of coal
mine employment.” 20 C.F.R. § 718.201(a). And, under the
regulations, the phrase “‘arising out of coal mine employ‐
ment’ includes any chronic pulmonary disease or respiratory
or pulmonary impairment significantly related to, or sub‐
stantially aggravated by, dust exposure in coal mine em‐
ployment.” 20 C.F.R. § 718.201(b). Reviewing the evidence in
light of this definition, we find solid support for the ALJ’s
conclusion.
First, the ALJ expressly found that Frontier’s experts’ con‐
tention that Mr. Dalton’s lung disease was caused exclusively
by smoking (rather than by a combination of smoking and
mine dust) was unreasoned. The Board affirmed the ALJ’s
general acceptance of Mr. Dalton’s experts and rejection of
Frontier’s. Looking to Mr. Dalton’s credited medical‐expert
evidence, one finds considerable support for the inference
that Mr. Dalton’s total disability as of August 1991 was at
least substantially aggravated, if not entirely caused, by
pneumoconiosis.
Mr. Dalton’s 1991 pulmonary function tests were low
enough that they qualified him for total disability, and Mr.
Dalton’s own signed affidavit contended that he had to quit
his job in August 1991 because of his worsening breathing
problems. Physician’s treating notes report that Mr. Dalton
was on oxygen supplements in 1993.

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No. 13‐1243 11
For example, in 1995 Dr. Beck, one of Mr. Dalton’s physi‐
cians, wrote a note reporting that Mr. Dalton was “complete‐
ly disabled as far as the breathing is concerned.” Dr. Beck’s
notes from December 1995 said that Mr. Dalton had signifi‐
cant COPD. In January 1996, Dr. Beck opined that Mr. Dalton
had black lung disease because he worked in the mines all
his life.
In 2002, Mr. Dalton had chest x‐rays that were positive
for pneumoconiosis. Dr. Carandang diagnosed him with
pneumoconiosis resulting from coal dust and COPD tied to
cigarettes. He found Mr. Dalton totally disabled.
Dr. Diaz reviewed Mr. Dalton’s medical records and pro‐
vided a report on January 23, 2002. After examining Mr. Dal‐
ton’s medical history, he opined that occupational dust expo‐
sure made a significant contribution to Mr. Dalton’s lung
disease.
Dr. Cohen also provided a report dated January 23, 2003.
After examining Mr. Dalton’s medical history, he concluded
that Mr. Dalton had coal workers’ pneumoconiosis and that
his chronic respiratory condition was substantially related to
his history of coal‐mine employment and smoking.
Under 20 C.F.R. § 718.203(b), a miner who is suffering
from pneumoconiosis and was employed for a minimum of
ten years in one or more coal mines is entitled to a rebuttable
presumption that his pneumoconiosis arose out of his min‐
ing employment. Mr. Dalton was a miner for at least 22 years
and thus qualifies for the presumption. In discussing the
causal relation between Mr. Dalton’s pneumoconiosis and
his time as a miner, the ALJ found that Frontier failed to re‐
but this presumption. The causal relation between his

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12 No. 13‐1243
pneumoconiosis and his mining work was buttressed by the
opinions of his experts. As for the date of commencement of
benefits, the ALJ found that at least two items of evidence
supported the August 1991 date: the 1995 opinion of Dr.
Beck, who said that as of June 1991 Mr. Dalton was com‐
pletely disabled as a result of his breathing problems, as his
pulmonary functioning tests revealed; and Dr. Cohen’s 2003
report.
Even if her conclusion was not inevitable, the ALJ’s opin‐
ion was rational and supported by substantial evidence.
Frontier submitted no evidence indicating that the totally
disabling lung disease Mr. Dalton had by 1991 was caused
by something different from the disabling lung disease from
which he still suffered in 1995 and 1999. The regulations
specifically recognize pneumoconiosis “as a latent and pro‐
gressive disease which may first become detectable only af‐
ter the cessation of coal mine dust exposure.” 20 C.F.R. §
718.201(c). More to the point for this case, the Department of
Labor has concluded that the risk of significant airway ob‐
struction from coal‐mine dust is additive with cigarette
smoking. This provides further support for the ALJ’s finding
that the totally disabling breathing difficulties Mr. Dalton
faced in 1991 were caused by both smoking and coal‐mine
dust, given his long exposure to both. That is all the regula‐
tions require.
The ALJ’s finding of an August 1991 onset date was, to
use the statutory language, “supported by substantial evi‐
dence in the record considered as a whole.” 33 U.S.C.
§ 921(b)(3). Such a finding of fact “shall be conclusive.” Id.
There is nothing wrong with circumstantial evidence, and so
it is of no moment that Mr. Dalton did not have more direct

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No. 13‐1243 13
evidence to support his case, such as a doctor in August 1991
who spelled out that Mr. Dalton suffered from totally disa‐
bling pneumoconiosis and that his condition was totally dis‐
abling. Collins v. Director, Office of Workers’ Comp. Programs,
U.S. Dept. of Labor, 932 F.2d 1191, 1192 (7th Cir. 1991), re‐
minds us that this kind of magic bullet is not required. In‐
deed, such a requirement would be in some tension with
both the rebuttable presumption discussed above and the
rule that in cases where the onset date is not clearly estab‐
lished, the benefit of the doubt, and back‐dated benefits, go
to the miner. Zeigler Coal Co. v. Kelley, 112 F.3d 839, 844 (7th
Cir. 1997).
**********
Substantial evidence supports the ALJ’s finding that Mr.
Dalton became totally disabled as a result of pneumoconio‐
sis in August 1991. We therefore G RANT the petition for re‐
view and return this case to the Board for entry of an order
establishing Mr. Dalton’s onset date as August 1991.

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