UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARVIS TOLER,

Petitioner,

v.

EASTERN ASSOCIATED COAL

No. 97-2148

CORPORATION; DIRECTOR, OFFICE OF

WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF

LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(96-1499-BLA)

Submitted: July 28, 1998

Decided: August 19, 1998

Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S.F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West

Virginia, for Petitioner. Mark E. Solomons, Laura Metcoff Klaus,

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

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Arvis Toler seeks review of a decision of the Benefits Review

Board (Board) affirming an administrative law judge's (ALJ) decision

to deny his application for black lung benefits. The ALJ denied benefits in this case based on his finding that Toler failed to establish the

presence of pneumoconiosis. The Board affirmed the ALJ's finding

of no pneumoconiosis and denial of benefits. After reviewing the

record, we find no reversible error and affirm the order of the Board.

This Court reviews the Board's decision only for errors of law and

to ensure that the Board adhered to the correct standard of review. See

Doss v. Director, Office of Workers' Compensation Programs, 53

F.3d 654, 658 (4th Cir. 1995). Therefore, this Court affirms the

Board's decision if the Board properly decided that the ALJ's findings are supported by substantial evidence. See id. at 659. To determine whether the ALJ's findings are supported by substantial

evidence, this Court undertakes an independent review of the record.

See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995).

However, review is confined 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).

On appeal, Toler contends that the reports credited by the ALJ

finding no pneumoconiosis were impermissibly based solely on negative X-rays and that the employer's physicians' assertions that the

nature of Toler's particular obstructive impairment was inconsistent

with pneumoconiosis are hostile to the premises of the Federal Black

Lung Act. We find both claims to be without merit. The ALJ primarily relied on Drs. Zaldivar and Tuteur, who both found that Toler did

not have pneumoconiosis. Despite Toler's assertion to the contrary,

the record discloses that these opinions were based not solely on negative X-ray evidence, but also on laboratory data documenting a

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purely obstructive disease, the presence of the"premiere" cause of

emphysema, and Toler's long-term and continued cigarette smoking.

With respect to Toler's second contention, we also find that the

ALJ did not impermissibly rely on Dr. Tuteur's opinion which was

based on the erroneous assumption that obstructive disorders cannot

be caused by coal mine employment. See Warth v. Southern Ohio

Coal Co., 60 F.3d 173 (4th Cir. 1995). Our review does not disclose

that Dr. Tuteur's opinion was based on such an assumption, given his

statement that "coal dust can result in obstructive impairment when

massive fibrosis from coal dust inhalation is present." Because substantial evidence supports the Board's finding that Toler did not

establish pneumoconiosis, we do not address Toler's assertion that the

Board erred in not finding that Toler's pneumoconiosis contributed to

his total disability.

Accordingly, the decision of the Board is affirmed. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and oral argument

would not aid the decisional process.

AFFIRMED

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