UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS H. DICKENS,

Petitioner,

v.

PEABODY COAL COMPANY,

No. 95-3194

Respondent,

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Party in Interest-Respondent.

On Petition for Review of an Order

of the Benefits Review Board.

(93-882-BLA, 000-00-5533)

Submitted: February 11, 1997

Decided: July 29, 1997

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger D. Forman, FORMAN & CRANE, L.C., Charleston, West Virginia, for Petitioner. Mark E. Solomons, Thomas H. Odom, ARTER

& HADDEN, Washington, D.C., for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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:

The Benefits Review Board (Board) upheld a finding by an administrative law judge (ALJ) that Thomas H. Dickens was not totally disabled due to pneumoconiosis. Dickens now petitions for review of the

Board's order. Because the Board properly found that substantial evidence supports the ALJ's decision, we affirm. See Doss v. Director,

OWCP, 53 F.3d 654, 658-59 (4th Cir. 1995).

To establish entitlement to black lung benefits, a miner must show

that he has pneumoconiosis, that the disease was caused by coal mine

employment, and that he is totally disabled due to the disease. 20

C.F.R. §§ 718.202-204 (1996); Robinson v. Pickands Mather & Co.,

914 F.3d 35, 36 (4th Cir. 1994). A claimant may establish the presence of a totally disabling respiratory or pulmonary impairment by

means of (1) pulmonary function studies; (2) arterial blood gas

studies; (3) evidence of cor pulmonale with right-sided congestive

heart failure, or (4) medical reports. 20 C.F.R.§ 718.204(c).

Neither of Dickens' two pulmonary function studies produced

qualifying values. Nor did his two blood gas studies qualify. There

was no evidence of cor pulmonale. Dickens, therefore, had to establish disability by way of medical reports. Two doctors, Dr. Rasmussen and Dr. Zaldivar, interpreted Dickens' pulmonary function and

arterial blood gas tests differently. Dr. Rasmussen concluded that the

tests revealed total disability; Dr. Zaldivar found the test results to be

normal and concluded that Dickens was capable of performing heavy

manual labor.

The ALJ made a credibility determination in favor of Dr. Zaldivar

because he possessed superior qualifications. Determinations regarding the credibility of evidence lie solely within the province of the

ALJ. Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1096 (4th

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Cir. 1993). The ALJ may properly accord greater weight to the report

of a physician if the physician possesses qualifications superior to

those of another physician with a conflicting opinion. Starchevich v.

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

In the subject case, evidence was before the ALJ that Dr. Zaldivar

was board-certified in internal medicine and in the subspecialty of

pulmonary disease. Dr. Rasmussen's qualifications were not stated in

the record. Neither the ALJ nor the Board was obligated to develop

the claimant's case and gather evidence of Dr. Rasmussen's qualifications prior to rendering a decision in this case. See King v. Consolidation Coal Co., 8 BLR 1-262 (1985). The ALJ thus acted properly in

crediting the opinion of Dr. Zaldivar over that of Dr. Rasmussen, particularly since all objective medical tests were non-qualifying.*

Dickens argues that it was unreasonable for the ALJ to ignore a

1981 decision of the West Virginia Occupational Pneumoconiosis

Board finding him to be ten percent disabled. That one-page decision

was not in the record; therefore, neither the ALJ nor the Board was

obligated to consider it. Further, there are no findings showing the

basis for the award. Unsupported conclusions cannot override objective medical tests results and the opinions of physicians which are

supported by medical evidence. We note that Dickens worked as a

miner following this award. The state agency's finding is not binding

on the ALJ. 20 C.F.R. § 718.206 (1996); Moseley v. Peabody Coal

Co., 769 F.2d 357, 361 n.7 (6th Cir. 1985). Finally, the state agency

found only a ten percent disability; to qualify for federal black lung

benefits, total disability is required.

We affirm the denial of benefits. 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. The motion to strike Petitioner's brief is denied.

AFFIRMED

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*Dickens incorrectly claims that the ALJ ignored Dr. Rasmussen's

finding that Dickens' blood oxygen level decreases with exercise. The

ALJ noted that Dr. Zaldivar criticized this finding, and the ALJ credited

Dr. Zaldivar's opinion over that of Dr. Rasmussen.

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