PEABODY COAL CO., Petitioner, v. Carolyn BELT, et al., Respondents, 486 F. App'x 593

PER CURIAM. An Administrative Law Judge awarded disability benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., to Billy Belt, who had worked as a miner for Peabody Coal Co. The Department of Labor’s Benefits Review Board affirmed the ALJ’s decision. In this court, Peabody Coal argues that the ALJ violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706, by relying on the

preamble to the 2000 amendments of certain benefits-eligibility regulations under the Act. Those eligibility regulations, 20 C.F.R. § 718.201 et seq., clarify that a miner can have “legal pneumoconiosis” for the purposes of the Act, even in the absence of a positive X-ray finding or other manifestations of “clinical pneumoconio-sis.” See id., §§ 718.201, .202(a)(4), .202(b). The ALJ cited the regulations and the

preamble in rejecting the expert opinions of two doctors “that because there was no objective evidence of pneumoconiosis, claimant’s chronic obstructive disease was due entirely to his tobacco smoke exposure.” The ALJ stated that “the Department of Labor and the Board have made clear that absent clinical pneumoconiosis, a miner can still be found to have legal pneumoconiosis.” App. 33-34, ALJ Decision & Order (citing

Preamble to the Revised Regulations, 65 Fed.Reg. 79,937, 79,-939 (Dec. 20, 2000)). The ALJ credited another physician’s opinion that Belt had pneumoconiosis despite the absence of clinical pneumoconiosis as consistent with the regulations and

preamble. Peabody argues that the ALJ’s invocation of the

preamble violated the APA’s rulemaking requirements because the

preamble was not subjected to notice-and-comment rulemaking. See 5 U.S.C. § 553. Peabody also argues that the ALJ violated the APA because the

preamble was not in the administrative record. Peabody argues that as a result, it had no notice that the ALJ would rely on the

preamble. See id, §§ 554, 556. During the pendency of this appeal, another panel of this court addressed and rejected virtually identical arguments. In A & E Coal Co. v. Adams, 694 F.3d 798 (6th Cir.2012), the court noted that the

preamble “explained the medical and scientific premises for the changes” to the regulations made in 2000. Id. at 801. The court held that the ALJ’s reference to the

preamble in analyzing the conflicting medical opinions was appropriate. By looking to the

preamble in addition to the applicable regulations, and crediting the medical opinion that was “consistent with the medical and scientific premises underlying the amended regulations, as expressed in the

preamble,” the ALJ did not treat the

preamble as “binding in his decision.” Id. at 802. And there was no need to include a copy of the

preamble in the administrative record because the APA does not require such public documents to be made part of the record. Id, 694 F.3d at 802-03. Noting that the petitioner “disavow[ed] any challenge to the sufficiency of the evidence,” the Adams court stated that it would “vacate the Board’s decision only if its conelusion-that the ALJ permissibly consulted the regulations’

preamble — was erroneous.” Id, 694 F.3d at 801. Finding no such error, it affirmed. Adams makes clear that the ALJ’s reference to the

preamble to the amended black-lung regulations does not violate the APA’s rulemaking or notice provisions. “Published panel opinions are binding on later panels.” 6th Cir. R. 32.1. The ALJ did not violate the APA by considering the

preamble in deciding Belt’s claim. The Board was correct to affirm the ALJ’s decision. We deny the petition for review. . In the argument portion of its appellate brief, Peabody bases its notice argument on §§ 554 and 556. In its statement of issues presented on appeal, Peabody cites §§ 557(c)(3)(

A) and 559 as the basis of its notice argument. These provisions require an ALJ to articulate his findings and conclusions on the record and establish that the APA does not limit or repeal other requirements imposed by Congress. See §§ 557(c)(3)(A), 559. Peabody does not cite §§ 557(c)(3)(

A) or 559 elsewhere in its brief and does not argue that the ALJ violated either provision.