UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EVERETT J. WYATT,

Petitioner,

v.

CONSOLIDATION COAL COMPANY;

No. 96-1409

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(95-1542-BLA)

Submitted: January 14, 1997

Decided: January 28, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Diana Hood Crutchfield, BERRY, KESSLER, CRUTCHFIELD &

TAYLOR, Moundsville, West Virginia, for Petitioner. William S.

Mattingly, JACKSON & KELLY, Morgantown, West Virginia, for

Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Everett Wyatt petitions for review of a decision of the Benefits

Review Board (Board) affirming the administrative law judge's (ALJ)

decision to deny his application for black lung benefits. We must

affirm the decision of the Board if the Board properly decided that the

ALJ's findings are supported by substantial evidence. Doss v. Director, Office of Workers' Compensation Programs, 53 F.3d 654, 658

(4th Cir. 1995). We confine our review to the grounds upon which the

Board based its decision. See Grigg v. Director, Office of Workers'

Compensation Programs, 28 F.3d 416, 418 (4th Cir. 1994). In this

case, the Board's decision was based on its determination that the

ALJ committed no reversible error in finding that Wyatt failed to

establish the existence of pneumoconiosis by means of medical opinion evidence under 20 C.F.R. § 718.202(a)(4) (1996).

Wyatt first contends on appeal that the ALJ's finding was erroneous because the record contains no medical reports which contradict

the finding of several physicians who, in Wyatt's view, diagnosed

pneumoconiosis. Initially, we disagree with Wyatt's characterization

of the evidence. Only one physician, Dr. Tipton, unequivocally diagnosed pneumoconiosis. Moreover, his opinion is in direct conflict

with the opinion of Dr. Renn who, contrary to Wyatt's contention on

appeal, explicitly ruled out the possibility that the miner suffers from

pneumoconiosis as that term is defined in the regulations when he

opined that the miner had no chronic respiratory or pulmonary disorder related to his occupational exposure to coal mine dust. See 20

C.F.R. § 718.201 (1996).

Wyatt correctly asserts that Dr. Altmeyer, who found no coal workers' pneumoconiosis, failed to address whether the miner suffered

from legal pneumoconiosis. His opinion, however, is still relevant to

the issue of pneumoconiosis, is consistent with Dr. Renn's opinion,

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and does not support Wyatt's burden to establish pneumoconiosis.

The ALJ therefore also properly relied on his report in finding no

pneumoconiosis. Moreover, the ALJ rationally accorded greater

weight to the opinions of Drs. Renn and Altmeyer based on their

superior qualifications in the area of pulmonary medicine. See

Starchevich v. Director, Office of Workers' Compensation Programs,

873 F.2d 197, 198-99 (8th Cir. 1989).

We agree with Wyatt that the ALJ erred by relying on Dr. Fino in

finding no pneumoconiosis. The ALJ erroneously stated that Dr. Fino

reviewed the entire record and found no pneumoconiosis. In fact, Dr.

Fino merely reviewed the results of a single pulmonary function study

and rendered no opinion concerning pneumoconiosis. We also agree

with the Board, however, that this error was harmless, as the ALJ's

finding of pneumoconiosis is firmly supported by the opinions of Drs.

Renn and Altmeyer alone.

Finally, we reject Wyatt's contention that the ALJ erroneously factored the X-ray evidence into his weighing of the medical opinion

evidence. The ALJ's reference to the fact that the totality of the X-ray

evidence was negative merely appropriately points out that the objective evidence in this case tended to best support the medical opinions

which found no pneumoconiosis.

The Board correctly found that the ALJ's finding of no pneumoconiosis is supported by substantial evidence. The Board also correctly

found that Wyatt's failure to establish this critical element precludes

Wyatt's entitlement to benefits. See Robinson v. Pickands Mather &

Co., 914 F.2d 35, 36 (4th Cir. 1990). We therefore affirm the decision

of the Board and decline to address Wyatt's remaining arguments. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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