* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** Honorable Myron H. Bright, Senior Circuit Judge, United States Court of

Appeals for the Eighth Circuit, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 8/30/96

FOR THE TENTH CIRCUIT

BIG HORN COAL COMPANY,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT

OF LABOR,

Respondents.

MANSEL JOHNSTON,

Real Party in Interest.

No. 95-9522

(OWCP No. 712-12-6193)

(Petition for Review)

ORDER AND JUDGMENT*

Before PORFILIO, BRIGHT,** and KELLY, Circuit Judges.
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After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this petition for review. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case

is therefore ordered submitted without oral argument.

Petitioner Big Horn Coal Company petitions for review of a Benefits

Review Board (Board) order affirming the order of an administrative law judge

(ALJ) awarding benefits under the Black Lung Benefits Act to claimant Mansel

Johnston. Petitioner contends that, in awarding benefits, the ALJ improperly

credited the medical opinions of claimant’s treating physician.

We review the Board’s decision “for errors of law and for adherence to the

substantial evidence standard governing the Board’s review of the [ALJ’s] factual

determinations.” Maddaleni v. Director, OWCP, 961 F.2d 1524, 1525 (10th Cir.

1992)(further quotation omitted). “Substantial evidence is ‘such relevant

evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Hansen v. Director, OWCP, 984 F.2d 364, 368 (10th Cir.

1993)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In

conducting our review, we cannot reweigh the evidence, but may only inquire

whether evidence exists to support the ALJ’s findings of fact. Id.

To be entitled to benefits, claimant must prove that he is totally disabled

due to pneumoconiosis resulting from his coal mine employment. See Davis v.
1

20 C.F.R. § 718.202(a)(4) provides the following:

A determination of the existence of pneumoconiosis may also be

made if a physician, exercising sound medical judgment,

notwithstanding a negative X-ray, finds that the miner suffers . . . 

from pneumoconiosis . . . . Any such finding shall be based on

objective medical evidence such as blood-gas studies,

electrocardiograms, pulmonary function studies, physical

performance tests, physical examination, and medical and work

histories. Such a finding shall be supported by a reasoned medical

opinion.

Similarly, 20 C.F.R. § 718.204(c)(4) provides that

[w]here total disability cannot be established by [qualifying test

results or certain other evidence] . . . , [it] may nevertheless be found

if a physician exercising reasoned medical judgment, based on

medically acceptable clinical and laboratory diagnostic techniques,

concludes that a miner’s respiratory or pulmonary condition prevents

. . . the miner from engaging in employment as described in . . .

[other regulations].

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Director, OWCP, 936 F.2d 1111, 1112 (10th Cir. 1991). Here, the ALJ found that

both pneumoconiosis and total disability were established under regulations that

allow proof of both by way of medical opinions. See 20 C.F.R. §§ 718.202(a)(4)

and 718.204(c)(4).1 In so doing, the ALJ credited the opinion of claimant’s

treating physician, Dr. Batty, on both issues. It is petitioner’s contention on

appeal that Dr. Batty’s opinions do not constitute substantial evidence to support

the ALJ’s findings because they are not reasoned medical opinions as required by

the regulations.
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Petitioner’s entire brief is devoted to challenging Dr. Batty’s opinion as to

the existence of pneumoconiosis, yet we are not persuaded by petitioner’s

arguments. In his testimony, Dr. Batty explained the basis for his diagnosis and

opinion. See Hr’g Tr. at 32-33 (blood-gas studies showing insufficient

oxygenation), 34-35 (findings upon physical examination of claimant), 43

(pulmonary function tests that indicate mild obstructive lung disease). 

Petitioner’s contentions to the contrary notwithstanding, we do not think it can be

fairly said that Dr. Batty simply disregarded the negative x-rays and nonqualifying test results in the record. See, e.g., id. at 61-62. We believe that a

complete reading of Dr. Batty’s testimony reveals that he considered them in light

of his clinical evaluation of claimant and his clinical experience, and either found

them consistent with his opinions, id. at 32-33, 43, 48-49, 50, 63, 64, or not in

and of themselves conclusive, id. at 33-34, 41, 42, 43, 51-52. The doctor who

testified for petitioner obviously disagreed with Dr. Batty on the extent to which

the non-qualifying test results, although not determinative, supported Dr. Batty’s

conclusion, but “the task of weighing conflicting medical evidence is within the

sole province of the ALJ.” Hansen, 984 F.2d at 368.

Petitioner also argues that both the ALJ and the Board improperly relied on

the fact that Dr. Batty was claimant’s treating physician in crediting his opinion. 

This, according to petitioner, is something akin to application of the “true doubt
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rule,” which was invalidated in Director, OWCP v. Greenwich Collieries, 114

S. Ct. 2251, 2259 (1994). We disagree. This is not a case where the ALJ found

equally probative but conflicting medical evidence and used the treating physician

rule (as the “true doubt rule” was improperly used in Greenwich) to break the tie. 

Cf. id. at 2253. Nor is it a case where the ALJ mechanically accepted a treating

physician’s opinion in the absence of supporting medical evidence in the record. 

On the contrary, the ALJ specifically cited the fact that Dr. Batty had performed

the most recent, and thus most relevant, examination and evaluation of claimant,

and found that Dr. Batty’s opinions were supported by that evaluation. See

ALJ’s February 5, 1993 Decision and Order on Remand at 3-4. As discussed

above, we find substantial evidence to support the ALJ’s reliance on the treating

physician’s opinion in this case with regard to his finding of pneumoconiosis.

The decision and order of the Board is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. 

Circuit Judge