is i WASHINGTONANDLEE BLACK LUNG LEGAL CLINIC UNIVERSITY vathy C. MacDonnell Divector and Associaae Clinical Professor SCHOOL OF LAW $40458-8562 40438-8135 facsimile December 4, 2014 Via UPS Delivery ‘Thomas ©. Shepherd, Jr. Clerk of the Board United States Department of Labor Benefits Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 ch v. Keystone Coal Mining Corp., Rochester & Pittsburgh Re: James A.M BRB No. 2013-0554 BLA; SSN: XXX-XX-5226, Dear Mr, Shepherd: Enclosed are the original and two copies of Claimant's Supplemental Response Brief in the above-referenced proceeding. Copies have been sent this day to all parties of record. Since iliniaag c. ae Counsel for Claimant, James A. Minich Enelosure ce: Margaret M. Scully, Esq Rebecca Fiebig, Esq, Mr. James A. MinichUNITED STATES DEPARTMENT OF LABOR BENEFITS REVIEW BOARD Washington, D.C. JAMES A. MINICH, CLAIMANT/RESPONDENT, BRB No.: 13-0544 BLA v. OALJ No.: 12-BLA-5373 KEYSTONE COAL MINING CORP., OWCP No.: xxx-xx-5226 EMPLOYER/PETITIONER, AND DIRECTOR, OFFICE OF WORKERS" COMPENSATION PROGRAMS, PARTY-IN-INTEREST. CLAIMANT'S SUPPLEMENTAL RESPONSE BRIEF On July 13, 2013, Administrative Law Judge (“ALJ”) Drew A. Swank issued a Decision and Order awarding benefits to James A. Minich under the Black Lung Benefits Act (“BLBA’ 30 U.S.C. § 901 et seq. (2012). Because the ALJ found that Mr. Minich had at least 15 years of underground coal mine employment and was totally disabled, Mr. Minich successfully invoked the Section 411(c)(4) presumption of total disability due to pneumoconiosis. The ALJ also found that Keystone Coal Mining Corporation, as the coal mine operator liable for benefits, failed to rebut the presumption as provided in the statute at 30 U.S.C. § 921(c)(4) and in the regulations at 20 CFR § 718.305(d). ALJ Swank found that Keystone could not rebut the presumption because Keystone’s medical experts did not “rule out coal dust as a cause of at least part of Claimant's disabling pulmonary/respiratory impairment.” Decision and Order Awarding Benefits, July 31,2013, at 17 “ALJ D&O"). Keystone appealed the ALJ's decision to the Benefits Review Board (“the Board”). The Board has set oral arguments for December 9, 2014, and on September 25, 2014, requested briefing from the parties on the issues set for argument. By order dated November 12, 2014, the Board granted Claimant an extension of time until December 4, 2014 to submit this responsive briefing, ISSUES FOR ARGUMENT Issue #1. __In order to rebut the presumption of disability causation at amended Section 411(0)(4) the statute requires proof that the miner’s “respiratory or pulmonary impairment did not arise out of, or in connection with, employment ina coal mine.” In contrast, the regulation implementing the statute requires proof that “no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] § 718.201." Moreover, in the preamble to the regulations, the Department of Labor explained that it has “consistently interpreted Section 411(c)(4) as requiring the rebutting party to show that the miner’s disability did not arise ‘in whole or in part? from coal mining,” and that the “in no part” standard it has adopted in the final rule “is a reasonable interpretation of the statutory language and effectuates Section 411(c)(4)’s purpose.” 78 Fed. Reg. 59,107 (Sept. 25, 2013). In light of the foregoing, what is the basis for the Department's choice of language in the regulation to the extent that it differs from the language in the statute? Does the language in the regulation create a different standard for rebuttal from that set forth in the Act, and if so, what is the justification for that? The Department's language clarifies the standard contained in the statute but does not create a new or different standard. Courts of Appeals have consistently interpreted the rebuttal standard to require ruling out any connection between disability and coal mine employment. The Department's implementing regulations are also entitled to deference so long as they are reasonable and consistent with the statute, Chevron, U.S.A., Ine. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The regulations need not be the only reasonable reading of the statute, or even the most reasonable: so long as they are not inconsistent, the regulations must stand. Jd. at 843 n.11. Because the regulations are consistent with the statute,fill ina statutory gap, and were enacted after public notice-and-comment, they are entitled to Chevron deference. A. The Courts of Appeals have consistently interpreted the rule-out standard to require employers to rule out any connection between disability and coal mine employment. ‘The rebuttable presumption of 30 U.S.C. § 921(c)(4) came into existence in 1972. See Pub. L. No, 92-303, 86 Stat. 150-57 (1972). The language of the 1972 enactment is identical to the language in the statute today. The Department of Labor promulgated regulations in 1980 that required employers to show that disability did not arise “in whole or in part” out of coal mine employment in order to rebut disability causation. 45 Fed. Reg. 13692 (Feb. 29, 1980). The use of “in no part” in the regulation currently in force is no different than “not ... in part” as expressed in the old regulations. See Antelope Coal Company/Rio Tinto Energy America v. Goodin, 743 F.3d 1331, 1336 n.5 (10th Cir. 2014) (stating that “the revised language” in the new § 718.305 “has the same effect” as the old language). The earliest judicial interpretations of the rebuttal standard adopted the position that has been applied consistently ever since: that the employer must rule out any connection between the miner's disability and the miner’s coal mine employment, Rose v. Clinchfield Coal Co., 614 F.2d 936, 939 (4th Cir. 1980) (noting that the burden is on the employer “effectively to rule out [‘any causal relationship’]” between pneumoconiosis and coal mine employment (emphasis added): see also Defore v. Alabama By-Prod. Corp., 12 BLR 1-27, 1-29 (1988) (holding that the § 718.305 rebuttal standard is identical to the rebuttal standard of a regulation then in force, 20 CARR. § 727.203(b)(3)); Carozza v. US. Steel Corp., 727 F.2d 74, 77-78 (3rd Cir, 1984) (interpreting the identical standard of § 727.203(b)(3) to require ruling out any connection); Rosebud Coal Sales Co. v. Weigand, 831 F.2d 926, 928-29 (10th Cir. 1987) (identifying sixcases—of which Carozza is one—from six different circuits “requiring that any relationship between the disability and coal employment be ruled out” (emphasis added). When the Affordable Care Act reinstated the rebuttable presumption in 2010, modern courts continued to interpret the rebuttal standard the same way. Big Branch Resources, Inc. v Ogle, 737 F.3d 1063, 1071 (6th Cir. 2013) (“Where the burden is on the employer to disprove a presumption, the employer must “rule-out” coal mine employment as a cause of the on the Fund, the Fund must show that the coal mine disability. ... Because the burden her employment played no part in causing the total disability.” (emphasis in original)); Antelope Coal Co., 743 F.3d at 1336-37 (holding that the rule-out standard requires ruling out any relationship between the disability and the coal mine employment, and citing to Big Branch Resources, Inc. v. Ogle); see also West Virginia CWP Fund v. Gump, 566 Fed. App’x 219, 223- 24 (contrasting Judge Niemeyer’s solo concurrence in Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 559-61 (4th Cir, 2013), with controlling precedent of Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir. 1984), which requires the rule-out standard), This consistent interpretation coincides with how the courts have interpreted the “arising out of” causation standard. The BLBA uses “arising out of” in its definition of legal pneumoconiosis and in the rebuttal standard. Compare 30 U.S.C. § 902(b), with 30 U.S.C. § 921(c)(4). Courts interpreting the arising-out-of standard have ruled that it requires only that coal dust exposure contribute in some part to the disease or disability. See Arch on the Green, Ine. v. Groves, 761 F.3d 594, 597-99 (6th Cir. 2014) (citing Southard v. Director, OWCP, 732 F.2d 66, 72 (6th Cir. 1984), for the rule that under § 718,203, which interprets § 902(b) of the BLBA,"{ijt is enough that the mine exposure is an exposure that contributed to the disease at least Cornett v. Benham Coal, Inc., 227 F.3d 569, 576 (6th Cir. 2000); Freeman United part”Coal Min. Co. v, OWCP, BRB, 957 F.2d 302, 303 (7th Cir. 1992) (interpreting the definition of legal pneumoconiosis to include “any chronic lung disease caused in whole or in part by exposure to coal dust” (emphasis added); Stomps v. Dir., OWCP, 816 F.2d 1533, 1535 (11th Cir, 1987) (adopting the “at least in part” standard for the Eleventh Circuit). The “arising out of” language in 20 C.F.R. § 718.201 is not a causation standard, and is better understood as a connection standard. The regulatory language contemplates awarding benefits based on coal mine dust “substantially aggravating” a pre-existing condition—i.e., one that was not caused by coal dust exposure. See 45 Fed. Reg. 13678, 13685 (Feb. 29, 1980) (explaining the purpose of amending the 718.201 standard). The identical causation standard for 30 U.S.C. §§ 902(b) and 921(c)(4) is the causation standard defined in 20 C.F.R. § 718.203, which requires only that coal dust be a factor or play some part in order for a disease to arise out of coal mine employment. Under the principle of consistent usage in statutory interpretation, a “term should be construed, if possible, to give it a consistent meaning throughout the Act. Th[is] principle follows from [the court's] duty to construe statutes, not isolated provisions.” Gustafson v. Alloyd Co,, Inc., 513 US. 561, 568 (1995). If “arising out of” means contributing “in part” for § 902(b). then the principle of consistent usage requires that something that “did not arise out of” in § 921(c)(4) must mean that it contributed no part. The rebuttal standard in the regulation reflects this principle of statutory interpretation. For more than thirty years, the Courts of Appeals have approved of the Department of Labor's rebuttal standard. In that time, the regulatory language has changed in form but not infunction or substance; the operative statutory language has never changed at all.' This consistent and uniform approach leads to the inescapable conclusion that the regulatory language is, consistent with the statute B. The rebuttal regulations in § 718.305(d) are entitled to Chevron deference because they are a reasonable, consistent reading of the BLBA when viewed as part of the complete statutory and regulatory framework. Under the current statutory and regulatory framework, a claimant must prove four elements in order to be entitled to benefits: (1) that he has pneumoconiosis, either clinical or legal (the “disease” element); (2) that his pneumoconiosis arose out of coal mine employment (the “disease causation” element); (3) that he is totally disabled due to a pulmonary or respiratory impairment (the “total disability” element); and (4) that his coal mine employment-induced lung disease is a substantially contributing cause of his total pulmonary or respiratory disability (the “disability causation” element). 20 C.F.R. §§ 718.201-204; see Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013), The Section 411(c)(4) presumption applies when the miner proves total disability (element 3) and fifteen years of employment in an underground coal mine or conditions substantially similar to those in an underground coal mine. Once invoked, the presumption satisfies the remaining elements (elements 1, 2 and 4). See Mingo Logan, 724 F.3d at 555. The only elements for a party opposing entitlement to rebut are: (1) that the claimant suffers from pneumoconiosis (clinical or legal); (2) that the claimant’s pneumoconiosis was caused by coal mine employment; and (3) that the claimant's pneumoconiosis contributes to that disabilit Id; see also Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1069 (6th Cir. 2013). ' Congress has repealed and reinstated the presumption by adding and deleting a limiting sentence at the end of 30 U.S.C. § 921(¢)(4). See Pub, L. No, 97-119 § 202(b) (1981) (adding “The provisions of this paragraph shall not apply with respect to claims filed on or after the effective date of the Black Lung Benefits Amendments of 1981” to the end of § 921(c)(4)); Pub. L. No. 111-148 § 1556(a) (2010) (deleting the same sentence). 6i. Consistent with the statute, the regulations permit the employer to rebut any of three elements the claimant must prove. The regulation—consistent with the language of the statute—permits coal companies to rebut any of the same three elements that are presumed once the claimant invokes the presumption, Section 718,305(d)(1)(i) allows “the party opposing entitlement” to rebut the presumption by successfully rebutting disease (element 1) and disease causation (element 2). Section 718,305(d)(1)(iA) incorporates the causation element by referencing the definition of legal pneumoconiosis, which requires that the “lung disease or impairment .. . aris[e] out of coal mine employment.” Seetion 718.305(4)(1)(i)(B) also incorporates causation by explicitly including “arising out of coal mine employment.” Rebutting either disease (element 1) or disease causation (element 2) satisfies the prongs of § 718.305(d)(1)(i). The party opposing entitlement may also rebut disability causation (element 4) under § 718.305(d)(1)(ii). Because the statute and the regulation both allow employers to rebut elements 1, 2, and 4, the structure of the regulation is a reasonable reading that is consistent with the structure of the statute, ii, The statute is silent on disability causation standards, standards in the regulation are a reasonable interpretation that fills the statutory gap. ‘The operative language of the presumption in the statute reads that if the miner proves fifteen years of underground coal mine employment and “the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis. . ..” 30 U.S.C. § 921(¢)(4). This language is augmented by the definitions in 30 U.S.C. § 902. That section defines the standard for disease and disease causation (elements I and 2) by defining pneumoconiosis (“a chronic dust. disease . .. arising out of coal mine employment,” 30 U.S.C. § 902(b)), and defines the standard for element 3, total disability (30 U.S.C. § 902(f). 7The statute is silent, however, on the proper standard for disability causation (element 4) Section 902 defines what degree of impairment counts as total disability, but does not set out a standard for how closely that disability must be tied to coal mine employment. Statutory silence puts the issue squarely within the province of the Department of Labor and entitles the Department's interpretation to Chevron deference. ‘The Department filled the statutory gap and defined disability causation in 20 C.F.R. § 718.204(c). Under § 718.204(c)(2), the rebuttable presumption of § 718.305 is explicitly set ‘out as an exception to the general methods of proving disability causation, See 20 C.F.R. § 718.204(c)(2) (establishing two methods of proving total disability due to pncumoconiosis, but beginning with the phrase “[e)xcept as provided in § 718.305”). Ina case without the fifteen-year presumption, the claimant must prove disability causation in conformity with § 718.204. See Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063, 1071 (“Where the employee must affirmatively prove causation, he must do so by showing that his occupational coal dust exposure was a contributing cause of his disability.”). But in a case where the claimant invokes the fifteen-year presumption, the § 718.305 methods for proving and rebutting the presumption govern how the claimant proves disability causation. The § 718.204 standards do not govern how the claimant proves disability causation, and the requirement that a claimant “show that pneumoconiosis is a substantial contributor to the disability” under § 718.204, Bonessa v, U.S. Steel Corp., 884 F.2d 726, 734 (3d Cir. 1989), does not apply. Instead, the disability causation element is presumed and the employer must rebut that presumption under § 718.305, which requires the employer to rule out any connection—not just a substantial one—between disability and coal mining employment‘The BLBA authorizes the Department of Labor to enact substantive regulations such as § 718.305, The Department of Labor is not limited to interpreting the BLBA. Instead, it is entrusted with developing substantive regulations to administer the BLBA’s complex benefits system. Section 426 of the BLBA states, “The Secretary of Labor and the Secretary of Health and Human Services are authorized to issue such regulations as each deems appropriate to carry out the provisions of this subchapter.” 30 U.S.C. § 936 (2012). Because of the 1978 amendments to the BLBA, regulations were necessary to define the rebuttal methods available to coal companies. The first regulations implementing the fifteen-year presumption after the 1978 BLBA amendments—which included the equivalent of the current “in no part” standard—were enacted after a notice-and-comment period that included public hearings. 43 Fed. Reg. 17722 (Apr. 25, 1978). The current regulations were adopted after a similar notice-and-comment period. 78 Fed. Reg. 59102 (Sept. 25, 2013); 77 Fed. Reg. 19456 (Mar. 30, 2012). Coal ‘companies submitted comments objecting to the “in no part” standard; the objections were considered but not followed. 78 Fed. Reg. 59106-07. This “detailed and reasoned” consideration of “conflicting policies” is squarely within Chevron’s mandate of judicial deference to agency decision-making, and requires that the regulations be allowed to stand as written, See Chevron, 467 USS. at 865. Issue #2. To rebut the causation element of the Section 411(e)(4) presumption, the Act requires proof that a miner’s “respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.” 30 U. § 921(c)(4). Would a doctor’s opinion stating that the miner has a disabling respiratory impairment due to smoking, but does not have clinical or legal pneumoconiosis, and that coal dust played a clinically insignificant part in reducing the miner’s pulmonary function, be facially sufficient to establish rebuttal under the terms of the Act? Would the same opinion be facially sufficient to establish rebuttal under the terms of the regulation, requiring 9proof that “no part of the miner’s respiratory or pulmonary total disabi was caused by pneumoconiosis as defined in [20 C.F.R.] § 718.2012” 20 CFR. § 718.305(d)(1)(i). If the answers are different, what is the justification for that? ‘There would be no difference between the answer under the Act and under the regulations: in both cases, the doctor's opinion would be facially insufficient to establish rebuttal because it is internally inconsistent. If coal dust contributed to the miner’s disease at least in part—including a “clinically insignificant part”—then the miner has legal pneumoconiosis. See, e.g, Arch on the Green, 761 F.3d at 597-99; supra, at 4-5. As such, the doctor's opinion would be facially insufficient to rebut disease or disease causation (elements 1 and 2) under § 718.305(4)(1)(i) of the regulation and part (A) of rebuttal under the statutory methods. Turning to disability causation (element 4), a “clinically insignificant part” still a part “in connection with” coal mine employment, and thus the doctor's opinion cannot establish rebuttal under part (B) of the statutory methods. Similarly, establishing a “clinically insignificant part” does not “establish{] that no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d)(1 (ii) (emphasis added). As noted above, courts have consistently required ruling out any part under regulatory language identical in function to § 718.305(d)(1), and thus the doctor’s opinion cannot establish rebuttal under the regulation. ‘The medical evidence submitted for rebuttal in the instant case is neither as far-reaching nor as definitive as even the hypothetical opinion introduced by the Board, and thus cannot successfully establish rebuttal either. As a preliminary matter, ALJ Swank properly found that Mr. Minich suffers from simple coal workers’ pneumoconiosis. ALJ D&O at 10. Because Mr. Minich proved disease and disease causation independent of the fifteen-year presumption, ALJ Swank properly denied rebuttal on the elements of disease and disease causation (elements 1 and2), dd. at 15. ALJ Swank properly ruled that “the single issue to be determined” was element 4: disability causation. Jd. In attempting to establish rebuttal on element 4, Employer submitted medical opinions and depositions by Drs. Fino and Basheda. Jd. Dr. Fino conceded that there may be a causal link between Mr. Minich’s emphysema and his coal mine employment. EX-1/p. 12. After this, concession, Dr. Fino plainly misstated the legal standard for rebuttal: Now, (Mr. Minich] may have some degree of emphysema due to coal mine dust, but the issue is whether it is significant or not. The issue is not the presence of emphysema due to coal mine dust but whether it is clinically significantly contributing to his pulmonary impairment and disability, EX-I/p, 12. As explained at length above, the issue is, in fact, the presence of emphysema due to ‘coal mine dust. Under both the statute and the regulations, it matters not one whit whether the contribution to disability is significant or not. Dr. Basheda also opined that smoking was a more likely cause of Mr. Minich’s disability but “could not ‘absolutely say that [Claimant] did not lose any lung function from coal dust exposure .. ..”” fd, at 16-17. Like Dr. Fino, Dr. Basheda was of the opinion that Mr. Minich’s disability due to coal dust exposure was “insignificant compared to his loss of lung function from his continued smoking.” id. at 17 (emphasis added), Both of these opinions fail to establish rebuttal for the same reason: neither established that no part of Mr. Minich’s pulmonary disability was caused by coal dust exposure. Instead, Dr. Fino openly concedes that coal dust exposure may have contributed to Mr. Minich’s disability, and Dr. Basheda couches the significance of the disability causation in terms of comparison to another cause (smoking). Neither the Act nor the regulation contemplate rebuttal based on coal dust exposure being a less significant or even insignificant cause of disability than some other reason. The opinions of Drs. Fino and Basheda could only—in the best case scenario for the iEmployer—be properly applied to disease causation (element 2), and not disability causation (element 4). Issue #3. _In this case, where employer has failed to disprove the existence of pneumoconiosis, does the Director’s interpretation of the regulation at 20 C.F. § 718.305(d)(1)(ii), requiring proof that no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis as defined in 20 C.F.R. § 718.201, render rebuttal at Section 718.305(d)(1)(i) superfluous? The rebuttal standards are not superfluous because they address separate and distinct elements for the party opposing entitlement to rebut. Because the two operative subsections are separated by the word “or,” the two sections of the regulation operate as independent avenues by which an employer can rebut the elements proved by invoking the presumption. The evidence in this case foreclosed the option of rebutting disease or disease causation under § 718,305(4)(1)(), and left available only the option of rebutting disability causation under § 718,305(d)(1)(i), because Mr. Minich proved disease and disease causation independently of the 41 1(c)(4) presumpt n. See ALJ D&O at 10 (finding that Mr. Minich “suffers from coal workers? pneumoconiosis,” without consideration of the 411(c)(4) presumption): id. at 11 (invoking the ten-year presumption of § 718.203(b) to prove disease causation, a rebuttable presumption that ‘went unchallenged by the Employer/Petitioner) On the following points, Claimant is in agreement with the Employer's arguments: that “there are three elements of entitlement that are presumed by the fifteen-year presumption;” that [i] the Employer shows the absence of pneumoconiosis there is no need to show that disability causation is not present;” and that, “even if pneumoconiosis, either clinical or legal is determined to be established Employer is still able to rebut the presumption by showing that the disability ordeath did not arise out of pneumoconiosis or in accordance with the new regulation that ‘no part of the miner's disability” is caused by pneumoconiosis.” Employer's Supplemental Brief at 8-9. Claimant disagrees with the Department's argument urging remand, As noted above, the ALJ made an affirmative finding of clinical pneumoconiosis separate and independent from any presumption under 30 U.S.C. § 921(c)(4) or 20 C.F.R. § 718.305. Because the disease and disease causation elements were established independently, there was no need for the ALJ to consider Employer's evidence rebutting those elements under § 718.305(d)(1}(i), To do so would have been giving the Employer two bites at the apple: ALJ Swank considered and rejected the evidence when the Employer used it to counter the Claimant's affirmative evidence proving disease and disease causation: would have been improper to consider it again when the Employer was seeking to establish rebuttal. Given that the only element presumed under § 718.305 was the element of disability causation, the ALJ properly considered only rebuttal evidence relevant to that element. ALJ Swank applied the correct rebuttal standard for disability causation, and his award of benefits to Mr. Minich must be allowed to stand. Employer argues that the “rule-out’/*in no part” standard makes it difficult for employers to avoid liability. Put another way, the new standard makes it easier for disabled coal miners to receive benefits. Making it easier for disabled coal miners to succeed in their black lung claims was precisely Congress's intent in enacting the fifteen-year presumption. At the time the fifteen- ‘year presumption was added to the statute, Congress found that more than half of all black lung benefits claims were being denied. S. Rep. No. 92-473 (1972), reprinted in 1972 U.S.C.C.AN, 2305, 2307 (*S. Rep.”). As the law stood before the fifteen-year presumption, “the provisions authorizing benefits for total disability due to pneumoconiosis do not in fact benefit countless miners and their survivors who were the intended beneficiaries of the Black Lung program." Id. 1BIn order to “bring to the disabled coal miner and his family a greater measure of justice than they have known heretofore,” Congress enacted the fifteen-year presumption that would “[rJelax the often insurmountable burden of proving eligibility.” fd. at 2305-06, The point of the 1972 amendments was, in the words of Senator Robert C. Byrd, to “stop quibbling with dying men as to whether their lungs are riddled with black lung.” But the Employer's proposed standard quibbles indeed—not about the existence of the disease or whether it was a factor in the miner's disability or death, but rather about whether it was enough of a factor, The Employer's standard is contrary to the statute’s intent, The interpretation given to the BLBA rebuttal standard by the Department of Labor is consistent with the statutory purpose and reflects policy decisions made by the executive branch. The law requires that those policy decisions remain undisturbed.CONCLUSION The rebuttal standards at 20 C.F.R. § 718.305(d) are reasonable interpretations that are consistent with both the text and purpose of the statute. As such, the regulations are entitled to Chevron deference and must be allowed to operate as written. The ALJ properly applied those standards in this case. and his De mn and Order Awarding Benefits, dated July 31, 2013, must be upheld. Respectfully submitted, ve Timothy C. MacDonnell Counsel for Claimant, James A. Minich GH M. all Student Caseworker Black Lung Legal Clinie, Room 106 Washington and Lee University School of Law, Lewis Hall Lexington, VA 24450 540/458-8562CERTIFICATE OF SERVICE. Thereby certify that on this day, December 4, 2014, the foregoing Claimant's Supplemental Response Brief was served on the following parties of record: Margaret M. Scully, Esq. Rebecca Fiebig, Esq, Thompson, Calkins é Sutter, LLC U.S. Department of Labor 850 Ridge Avenue, Suite 300 Office of the Solicitor Pittsburgh, PA 15212 200 Constitution Ave. NW, Room N-2119 Washington, DC 20210 James A. Minich, Claimant 1904 Garretts Run Road Ford City, PA 16226 RO imothy C. MacDonnell Counsel for Claimant