UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUNE HESS DEEL, widow of Estil

Charles Hess,

Petitioner,

v.

BAKER COAL COMPANY; DIRECTOR,

No. 96-2076

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR; OLD

REPUBLIC INSURANCE COMPANY,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(95-1254-BLA)

Argued: July 10, 1997

Decided: August 13, 1997

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Martin Douglas Wegbreit, CLIENT CENTERED

LEGAL SERVICES OF SOUTHWEST VIRGINIA, INC., Castlewood, Virginia, for Petitioner. Mark Elliott Solomons, ARTER &

HADDEN, Washington, D.C.; Edward Waldman, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

ON BRIEF: Thomas H. Odom, ARTER & HADDEN, Washington,

D.C., for Respondents Baker Coal and Old Republic Insurance. J.

Davitt McAteer, Acting Solicitor of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber, Counsel for Appellate Litigation,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Respondent Director.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

June Hess Deel petitions for review of a decision by the Benefits

Review Board (the Board) affirming a decision and order of an

administrative law judge (ALJ). The ALJ denied a motion for modification under the Black Lung Benefits Act (the Act) by Estil Charles

Hess, Deel's late husband, and denied her claim for survivor's benefits. Finding the decision of the ALJ to be supported by substantial

evidence, we affirm.

I.

Hess applied for benefits under the Act in 1980, after working as

a coal miner for at least 20 years. The ALJ denied benefits, finding

that Hess' employer, Baker Coal Company, had successfully rebutted

the presumption that Hess' disability arose from his coal mine

employment. See 20 C.F.R. § 718.305 (1997). Hess unsuccessfully

appealed to the Board, and we affirmed the Board's decision, see

Hess v. Baker Coal Co., 896 F.2d 546 (4th Cir. 1990) (per curiam)

(unpublished table decision).

Before his death, Hess requested a modification of his benefits

determination. And, following Hess' death, Deel filed a survivor's

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claim which was consolidated with the pending modification proceeding. The ALJ denied Hess' request for modification, reasoning that

the newly submitted evidence did not establish a change in condition

or a mistake in a determination of fact. See 20 C.F.R. § 725.310(a)

(1997). He denied the survivor's claim on the basis that the evidence

did not establish that Hess' death was due to pneumoconiosis. See 20

C.F.R. § 725.212(a) (1997). On appeal, the Board concluded that the

ALJ had erred in failing to consider Hess' newly submitted evidence

in conjunction with that previously submitted and remanded the

request for modification for further proceedings. Additionally, the

Board determined that if, on remand, the ALJ awarded benefits to

Hess, an award of survivor's benefits to Deel would also be appropriate.

On remand, the ALJ considered all of the conflicting medical evidence in the record and concluded that it did not support a finding of

a change in condition or a mistake in a determination of fact.

Although three doctors, including Hess' treating physicians, concluded that Hess was totally disabled due to pneumoconiosis, the ALJ

discredited their conclusions as inadequately supported. Instead, the

ALJ relied on the opinions of seven physicians who attributed Hess'

disability to causes other than pneumoconiosis, most notably his long

history of cigarette smoking. The ALJ ruled that these doctors' opinions were entitled to greater evidentiary weight because each of them

was a board-certified specialist. Accordingly, the ALJ denied the

request for modification and found Deel ineligible for survivor's benefits. The Board affirmed the ALJ's decision.

II.

We exercise an independent review of the Board, effectively standing in its place to consider directly the decision of the ALJ. See Toler

v. Eastern Associated Coal Co., 43 F.3d 109, 114 (4th Cir. 1995).

And, although we review questions of law de novo, we may set aside

the factual findings of the ALJ only if we determine that they are not

supported by substantial evidence in the record. See id. "Substantial

evidence, described as more than a scintilla but less than a preponderance, is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." See v. Washington Metro. Area

Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994) (internal quotation

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marks omitted). Additionally, "[w]e must defer to the ALJ's credibility determinations and inferences from the evidence, despite our perception of other, more reasonable conclusions." Id. The ALJ is solely

responsible for making credibility determinations and resolving

inconsistencies in the evidence, so long as his findings are supported

by substantial evidence. See Grizzle v. Pickands Mather &

Co./Chisolm Mines, 994 F.2d 1093, 1096 (4th Cir. 1993).

Deel contends that the decision of the ALJ is not supported by substantial evidence. She argues that the ALJ should have rejected the

opinions of the seven physicians who concluded that Hess' disability

was not caused by his coal mine employment because their conclusions were based on the theory that pneumoconiosis is a restrictive

rather than an obstructive impairment. We disagree.

Deel correctly observes that obstructive impairment is encompassed by the definition of pneumoconiosis for purposes of the Act

and, therefore, an ALJ may not consider the opinion of a physician

who refuses to find a causal connection between a claimant's coal

mine employment and respiratory disability solely because the disability is obstructive in nature. See Warth v. Southern Ohio Coal Co.,

60 F.3d 173, 175 (4th Cir. 1995). However, an ALJ need not discredit

the opinion of a physician who notes the absence of a restrictive

impairment if it does not rest on the assumption that coal mine

employment never causes obstructive impairment. See Stiltner v.

Island Creek Coal Co., 86 F.3d 337, 341 (4th Cir. 1996).1 Here, the

physicians' opinions are wholly consistent with Stiltner in that "they

merely opined that [Hess] likely would have exhibited a restrictive

impairment . . . if coal dust exposure were a factor." Id.2 Moreover,

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1 The Director of the Office of Workers' Compensation Programs

maintains that while we reached the correct result in Warth and Stiltner,

those decisions should have been based on current medical evidence

rather than the broad definition of pneumoconiosis supplied by the Act.

Additionally, Deel criticizes Stiltner as"an intellectually mendacious

perversion of the Warth case which no other 3 judge panel ought [to] follow." Brief for the Pet'r at 13 n.6. We decline the Director's invitation

to reexamine the reasoning of Warth and Stiltner. Furthermore, we reject

Deel's attack on the well-reasoned opinion in Stiltner as being utterly

without foundation.

2 This statement is true as to all of the doctors except Dr. Garzon, who

relied explicitly on the theory that pneumoconiosis does not cause an

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as in Stiltner, in addition to noting the obstructive nature of Hess'

impairment, the physicians also reviewed Hess' medical history,

including blood gas tests, autopsy slides, and x-ray interpretations.

See id. Accordingly, the ALJ did not err in relying on these opinions

and his conclusion that Hess failed to establish a change in condition

or a mistake in a determination of fact is supported by substantial evidence. We therefore affirm the denial of the request for modification.3

Because Deel's claim for survivor's benefits is dependent on the success of the request for modification, we affirm the denial of it as well.4

AFFIRMED

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obstructive impairment. Although Warth dictates that Dr. Garzon's opinion is unreliable, we need not remand for further proceedings because

substantial evidence supports the decision of the ALJ even in the absence

of that opinion.

3 We have considered Deel's other arguments and conclude that they

are without merit.

4 We thus find it unnecessary to address Baker Coal Company's contention that Deel failed to timely appeal the denial of her claim, thereby

depriving us of jurisdiction.

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