* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 clarif ied the standard for determining whether there had been a material change in conditi ons. 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 ha rmless. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 u nder the Act, and his fourth application overall. 1 The Benefits Review Board (Board) found substanti al evidence in the record to support the ALJ’s decisio n that petitioner had not established the existence of pneumoconiosis, and itaffirmed. We review the Board’s order to determine whether itcorrectly 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 i s such relevant evidence as a-3-

reasonable mind might accept as adequate to supporta conclusion.” Id. (quotations omitted). Guided by these standards onreview, we affirm. The circumstances under which a petitioner can esta blish 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 pneumoconi osis may also be made if a physician, exercising sound medical judgm ent, notwithstanding a negative X-ray, finds that the mi ner suffers or suffered from pneumoconiosis as defined in § 718.20 1. Any such finding shall be based on objective medical evidenc e such as blood-gas studies, electrocardiograms, pulmonary fu nction studies, physical performance tests, physical examination, a nd 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 pet itioner failed to establish that he suffered from pneumoconiosis. In reaching his deci sion, the ALJ rejected the diagnoses of pneumoconiosis by Drs. King and Lincol n. This is a case of conflicting medical opinions, and it is within the province of the ALJ to weigh conflicting medical evidence, s ee Northern Coal Co. , 100 F.3d at 873. “[W]here medical professionals are indisagreement, the trier of fact is in a unique position to determine credibility an d weigh the evidence.” Hansen-4-

v. Director, OWCP , 984 F.2d 364, 370 (10th Cir. 1993). It is appare nt from the detailed analysis set forth in the ALJ’s opinion th at 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