UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MIDDLE CREEK COAL COMPANY; OLD

REPUBLIC INSURANCE COMPANY,

Petitioners,

v.

No. 95-1668

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

WHEELER BLANKENSHIP,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(92-1799-BLA)

Argued: March 7, 1996

Decided: July 11, 1996

Before RUSSELL and WILKINS, Circuit Judges, and CHAPMAN,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, Washington, D.C., for Petitioners. Miller Kent Carter, BRANHAM & CARTER, P.S.C., Pikeville, Kentucky, for Respondents. ON BRIEF:

Laura Metcoff Klaus, ARTER & HADDEN, Washington, D.C., for
Petitioners. William Lawrence Roberts, Pikeville, Kentucky, for

Respondent Blankenship.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Middle Creek Coal Company appeals a decision by the

Benefits Review Board affirming an order by the Administrative Law

Judge awarding benefits to Wheeler Blankenship under the Black

Lung Benefits Act, 30 U.S.C. §§ 901-945. Middle Creek argues that

the Administrative Law Judge breached his duty of explanation by

failing to explain why he credited certain doctors' opinions over others. Because we find that the Administrative Law Judge explained his

decision and that there was substantial evidence to support the decision, we affirm.

I.

Wheeler Blankenship worked as a coal miner for nineteen years

and was a miner for Middle Creek from 1979 until November, 1983.

Blankenship filed a claim under the Black Lung Benefits Act in 1985.

The record contains 107 interpretations of eighteen x-rays, eighteen

pulmonary function studies, eleven blood gas studies, and a multitude

of medical opinions from twelve doctors. The ALJ found that the

x-ray evidence was preponderantly negative for pneumoconiosis. This

finding has not been challenged. The ALJ instead relied on 20 C.F.R.

§ 718.202(a)(4) to find that Blankenship suffered from legal pneumoconiosis. Section 718.202(a)(4) provides that a determination of the

existence of pneumoconiosis may be made if a physician, exercising

sound medical judgment, notwithstanding a negative x-ray, finds that

a miner suffered from pneumoconiosis.

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The ALJ provided a summation of all the medical reports in his

order. Dr. Clarke, Blankenship's treating physician, found that

Blankenship was suffering from pneumoconiosis and was totally disabled. This finding was supported by Dr. Baxter, also a treating physician, and Drs. Modi, Lee, and Nash. Drs. Penman and Wright found

that Blankenship had pneumoconiosis. Drs. Mettu, Garzon, Dahhan,

Stewart, and Fino found that Blankenship did not have pneumoconiosis.

II.

This court reviews factual findings of the ALJ to determine

whether they were based on substantial evidence in the record. Toler

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

This court reviews questions of law de novo. Id. Substantial evidence

has been described as "`more than a scintilla but less that a preponderance,'" and 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) (citations

omitted). "We must defer to the ALJ's credibility determinations and

inferences from the evidence, despite our perception of other, more

reasonable conclusions from the evidence." Id. "Subject to the substantial evidence requirement, . . . `[t]he ALJ has sole power to make

credibility determinations and resolve inconsistencies in the evidence.'" Grizzle v. Pickands Mather Co., 994 F.2d 1093, 1096 (4th

Cir. 1993).

Middle Creek maintains that the ALJ did not explain his decision

and found pneumoconiosis only because more doctors found it than

did not. This court has fully explained an ALJ's duty in rendering a

decision:

An ALJ's decision is statutorily required to include a discussion of "findings and conclusions, and the reasons or basis

therefor, on all the material issues of fact, law or discretion

presented on the record." Strict adherence to this statutorilyimposed obligation is "critical to the appellate review process. . . . The courts have respected this requirement by

remanding cases where the reasoning for the a.l.j.'s[sic]

conclusion is lacking and therefore presents inadequate

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information to accommodate a thorough review.""Since it

is apparent that the ALJ cannot reject evidence for no reason

or for the wrong reason, . . . an explanation from the ALJ

of the reason why probative evidence has been rejected is

required so that a reviewing court can determine whether the

reasons for rejection were improper." This court has long

required specific references to the evidence supporting an

ALJ's decision as part of the ALJ's "duty of explanation."

Conversely, when faced with evidence in the record contradicting his conclusion, an ALJ must affirmatively reject that

contradictory evidence and explain his rationale for so

doing.

See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 384 (4th

Cir. 1994). "[W]e must ask whether the ALJ examined the evidence

and provided a satisfactory explanation of the decision including a

`rational connection between the facts found and the choice made.'"

Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir. 1986).

At one section of his order, the ALJ merely listed which doctors

diagnosed pneumoconiosis and which did not and then stated that

"[s]ince a preponderance of the medical opinion evidence supports a

determination that claimant is suffering from coal worker's pneumoconiosis, I find that claimant has established the existence of pneumoconiosis pursuant to Section 718.202(a)(4)." If this had been the only

explanation offered by the ALJ, Middle Creek would be correct to

argue that the ALJ did not fulfill his duty of explanation. However,

during his discussion of Blankenship's disability, the ALJ did explain

why he gave more credence to some doctors' findings of both pneumoconiosis and total disability over other doctors' findings:

I give great weight to the opinions of the treating physicians

as they have the opportunity to see and treat the Claimant

on an ongoing basis as opposed to isolated disability evaluations. The opinions of Drs. Baxter and Clarke are supported

by the medical opinions of Drs. Modi and Nash who also

found Claimant to be totally disabled. . . . Dr. Nash noted

moderate dyspnea to be present even at rest, at the time he

examined Claimant in July of 1990. He also found no other

cause for Claimant's pulmonary problems other than his

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dust exposure during his coal mine employment. As all of

the physicians noted, Claimant has never smoked cigarettes.

Drs. Garzon, Dahhan, Stewart and Fino concluded that

Claimant was not totally disabled due to any pulmonary or

respiratory impairment. In addition, all failed to diagnose

even the existence of pneumoconiosis. As main support for

their opinion regarding lack of disability, they cite the normal pulmonary function and blood gas tests. I have considered their arguments and the impressive qualifications of

Drs. Dahhan, Stewart and Fino. However, I do not feel they

adequately explain Claimant's consistent complaints of dyspnea and cough which were recorded at the time of each

physical examination, as well as his testimony at hearing

which I found to be credible. Further, no alternative cause

for Claimant's complaints has been adequately addressed,

especially in light of the fact that he has never smoked cigarettes.

As indicated earlier I give great weight to the opinions of

Claimant's treating physicians, Drs. Baxter and Clarke, who

had the opportunity to treat and examine the Claimant on a

variety of occasions. I find their opinions to be the most persuasive opinions in the record on the issue of Claimant's

total disability. Their opinions are supported by the medical

opinions of Drs. Nash and Modi and are consistent with the

opinions of Drs. Lee and Penman. The conclusions of Drs.

Clarke and Baxter are also supported by their findings on

physical examination as well as Claimant's testimony

regarding his symptoms.

The ALJ obviously found reasons, other than counting noses, to

believe the opinions of Blankenship's doctors. The ALJ relied on the

fact that Dr. Clarke was the treating physician."The opinion of a

treating physician is entitled to great weight, though it is not dispositive," Thorn v. Itmann Coal Co., 3 F.3d 713, 717 n.3 (4th Cir. 1993),

even if the treating physician is not as highly qualified as other physicians in the record. Grigg v. Director, OWCP, 28 F.3d 416, 420 (4th

Cir. 1994). The ALJ, while recognizing the excellent credentials of

Middle Creek's doctors, discounted the opinions of these doctors

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because their findings did not adequately explain Blankenship's shortness of breath and cough.

This court does not have to agree with the findings of the ALJ in

order to affirm. There is such relevant evidence on the record that a

reasonable mind might accept as adequate to support a finding of

pneumoconiosis and total disability. Also, the ALJ discussed why he

relied on certain doctors opinions over others and this was sufficient

to satisfy the ALJ's duty of explanation.

Middle Creek raises the issue that some of Blankenship's doctors

have been in trouble with the law. The ALJ recognized this as to Dr.

Modi and stated that he credited Dr. Modi's opinion only insofar as

it was supportive of other medical opinions in the record. While we

believe that an ALJ should give a doctor convicted of filing false

claims or giving false information in connection with black lung cases

little or no credibility at all, there were other doctors here who were

not accused of anything on which the ALJ could and did rely.

Because the ALJ explained his decision and because that decision

was supported by substantial evidence, the ruling of the Board affirming the ALJ is

AFFIRMED.

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