* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 4 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES WARD,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT

OF LABOR,

Respondent,

ENERGY WEST MINING

COMPANY,

Intervenor. 

No. 97-9555

(No. 529-24-1250)

(Petition for Review)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
1 The Administrative Law Judge (ALJ) found that there had been a material

change in conditions, so as to preclude a denial of this claim based on the denials

of petitioner’s previous claims. See 20 C.F.R. § 725.309(d). After the ALJ

issued his decision in this case, this court clarified the standard for determining

whether there had been a material change in conditions. Wyoming Fuel Co. v

Director, OWCP, 90 F.3d 1502, 1511 (10th Cir. 1996). The ALJ in this case

applied the wrong law in finding a material change in conditions, but, in light of

the fact that he denied benefits, that error was harmless.

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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 appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner filed for benefits under the Black Lung Benefits Act, 30 U.S.C.

§§ 901-45 (1986 & Supp. 1996), on August 20, 1992, alleging total disability

because of pneumoconiosis arising out of coal mine employment. This

application is petitioner’s third duplicate claim under the Act, and his fourth

application overall.1 The Benefits Review Board (Board) found substantial

evidence in the record to support the ALJ’s decision that petitioner had not

established the existence of pneumoconiosis, and it affirmed.

We review the Board’s order to determine whether it correctly concluded

that the ALJ’s decision to deny benefits was supported by substantial evidence

and was not contrary to law. See Northern Coal Co. v. Director, OWCP, 100 F.3d

871, 873 (10th Cir. 1996). “Substantial evidence is such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Id.

(quotations omitted). Guided by these standards on review, we affirm.

The circumstances under which a petitioner can establish the existence of

pneumoconiosis are set forth in 20 C.F.R. § 718.202(a). Subsections (1), (2), and

(3) of that section are not relevant to this case. Petitioner argues that he has

established the existence of pneumoconiosis under § 718.202(a)(4), which

provides:

(4) 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 or

suffered from pneumoconiosis as defined in § 718.201. 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.

The ALJ relied on the opinions of Drs. Repsher and Farney, both of whom are

experts in the pulmonary field, in finding that petitioner failed to establish that he

suffered from pneumoconiosis. In reaching his decision, the ALJ rejected the

diagnoses of pneumoconiosis by Drs. King and Lincoln.

This is a case of conflicting medical opinions, and it is within the province

of the ALJ to weigh conflicting medical evidence, see Northern Coal Co., 100

F.3d at 873. “[W]here medical professionals are in disagreement, the trier of fact

is in a unique position to determine credibility and weigh the evidence.” Hansen
-4-

v. Director, OWCP, 984 F.2d 364, 370 (10th Cir. 1993). It is apparent from the

detailed analysis set forth in the ALJ’s opinion that the ALJ carefully weighed the

conflicting evidence, and his reasons for favoring the opinions of Drs. Repsher

and Farney are well-reasoned and substantiated. We have reviewed the record,

and it contains substantial evidence to support the ALJ’s decision. The petition

for review is DENIED.

Entered for the Court

Bobby R. Baldock

Circuit Judge