UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBINSON PHILLIPS COAL COMPANY,

Petitioner,

v.

JOHN CHARLES MCNEW; DIRECTOR,

No. 97-1974

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(95-2080-BLA, 94-1888-BLA)

Argued: May 4, 1998

Decided: September 16, 1998

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and

BLAKE, United States District Judge for the

District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Douglas Allan Smoot, JACKSON & KELLY, Charleston, West Virginia, for Petitioner. Jennifer U. Toth, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for

Respondent Director; S.F. Raymond Smith, RUNDLE & RUNDLE,
L.C., Pineville, West Virginia, for Respondent McNew. ON BRIEF:

Martin E. Hall, John W. Walters, JACKSON & KELLY, Lexington,

Kentucky, for Petitioner. J. Davitt McAteer, Acting Solicitor of

Labor, Donald S. Shire, Associate Solicitor for Black Lung Benefits,

Patricia M. Nece, Counsel for Appellate Litigation, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for

Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robinson Phillips Coal Company ("Robinson"), the employer,

appeals the decision of the Benefits Review Board ("BRB") upholding a finding of the administrative law judge ("ALJ") that John

McNew, a coal miner for at least twenty years, was entitled to benefits under the Black Lung Benefits Act, 30 U.S.C.A.§§ 901-945

(West 1986 & Supp. 1998) ("the Act"). For the reasons stated below,

we affirm the BRB's decision granting benefits.

The procedural background of this case is relatively straightforward. On September 2, 1993, McNew filed a "duplicate" claim for

benefits.* The Office of Workers' Compensation Programs

("OWCP") found he was entitled to benefits and referred the case for

_________________________________________________________________

*McNew's first application for benefits was filed in 1973 and denied

in 1980. Accordingly, his "duplicate" claim filed in 1993 was subject to

automatic denial absent proof of a "material change in conditions." 20

C.F.R. § 725.309(d) (1998); see Lisa Lee Mines v. Director, OWCP, 86

F.3d 1358 (4th Cir. 1996) (en banc), cert. denied, 117 S.Ct. 763 (1997)

(interpreting the "duplicate" claim regulation). Noting the negative

X-rays at the time of McNew's first application, and finding that he has

since contracted black lung disease and been totally disabled by it, the

ALJ therefore found a material change in conditions. (J.A. at 304).

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a formal hearing before an ALJ, at Robinson's request. ALJ Edith

Barnett heard the case on February 14, 1995, and issued her decision

and order awarding benefits on August 7, 1995. Robinson appealed

to the BRB, which affirmed the ALJ's decision on May 29, 1997.

This appeal followed.

Under the relevant regulations, in order to establish that he is entitled to benefits a claimant must prove by a preponderance of the evidence that: "(1) he has pneumoconiosis; (2) the pneumoconiosis

arose out of his coal mine employment; (3) he has a totally disabling

respiratory or pulmonary condition; and (4) pneumoconiosis is a contributing cause to his total respiratory disability." Milburn Colliery

Co. v. Hicks, 138 F.3d 524, 529 (4th Cir. 1998), citing Robinson v.

Pickands Mather & Co., 914 F.2d 35, 36, 38 (4th Cir. 1990); 20

C.F.R. § 718.201-.204 (1998). Robinson challenges the ALJ's decision on all elements except total disability.

As recently stated by the Fourth Circuit:

We review claims for benefits under the Act to determine

whether substantial evidence supports the ALJ's findings of

fact. See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193

(4th Cir. 1995). Substantial evidence is "more than a mere

scintilla." Consolidated Edision Co. v. NLRB , 305 U.S. 197,

229 (1938). It is "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Id.

In determining whether substantial evidence supports the

ALJ's factual determinations, we must first address whether

all of the relevant evidence has been analyzed and whether

the ALJ has sufficiently explained his rationale in crediting

certain evidence. See Sterling Smokeless Coal Co. v. Akers,

131 F.3d 438, 439 (4th Cir. 1997). We review the ALJ's and

the Board's conclusions of law de novo to determine

whether they are rational and consistent with applicable law.

See Dehue, 65 F.3d at 1193.

Milburn, 138 F.3d at 528. On review, the BRB found that the ALJ

acted permissibly within her discretion as a fact-finder, and accordingly affirmed her opinion. Because we find that the ALJ sufficiently

analyzed the relevant evidence, adequately explained her reasons for

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crediting certain evidence and discrediting others, and did not err as

a matter of law, and because the decision she reached is supported by

substantial evidence, we affirm the award of benefits.

Under § 718.202(a), the existence of pneumoconiosis may be

proved by any one of four methods. 20 C.F.R. § 718.202(a) (1998).

The two relied on by the ALJ are (a)(1), chest X-rays in certain classification categories, and (a)(4), a physician's report exercising sound

medical judgment based on objective medical evidence. Id. Like the

BRB, because we affirm the ALJ's decision under (a)(4), we do not

consider her decision under (a)(1).

The ALJ's opinion demonstrates that she carefully considered and

weighed the numerous x-ray reports, other objective medical evidence, and the reports of the various physicians who examined

McNew. She explained her findings, in part, as follows:

I find that Dr. Rasmussen's opinion that claimant has

pneumoconiosis is the most well-reasoned and persuasive of

these opinions, because it includes the most comprehensive

analysis of all the elements of claimant's occupational and

medical history. It is also supported by the findings of the

West Virginia OPB. On the other hand, Dr. Vasudevan's

opinion is conclusory, and fails to discuss the evidence of

Dr. Ranavaya's positive x-ray reading and claimant's occupational history. Dr. Zaldivar's opinion that his own positive

chest x-ray reading, and diagnosis of pulmonary fibrosis,

does not show pneumoconiosis, is unsupported by medical

authority, in contrast to Dr. Rasmussen's opinion. Dr. Zaldivar also fails satisfactorily to explain why claimant's occupational history has nothing to do with his lung condition.

(J.A. at 306). For these and other reasons, she concluded that McNew

had met his burden of showing that he had pneumoconiosis.

Robinson and the federal respondent, OWCP, challenge that part of

the ALJ's reasoning where she notes that Dr. Vasudevan's diagnosis

of chronic obstructive pulmonary disease ("COPD") and Dr. Zaldivar's diagnosis of pulmonary fibrosis "support a finding of legal

pneumoconiosis." Id. As the ALJ acknowledges in the same para-

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graph, "legal pneumoconiosis" requires a finding of both (1) a

chronic pulmonary disease or pulmonary impairment and (2) that the

disease or impairment is significantly related to, or substantially

aggravated by, dust exposure in coal mine employment. Id. To note

that the diagnoses of COPD and pulmonary fibrosis"support" a finding of legal pneumoconiosis is thus correct as to the first element; the

ALJ did not suggest that these diagnoses were sufficient in themselves, but rather relied on Dr. Rasmussen's opinion that the cause of

McNew's pulmonary condition was coal mine dust exposure, as well

as cigarette smoking, rather than Dr. Vasudevan's opinion that

McNew's COPD was due entirely to cigarettes or Dr. Zaldivar's opinion that McNew had pulmonary fibrosis of "unidentified etiology." Id.

The ALJ adequately explained her reasons for doing so, and any overbreadth of language in that portion of her opinion is not sufficient to

undermine her conclusions.

On the second element, whether the pneumoconiosis arose from

coal mine employment, the ALJ applied the rebuttable presumption

arising under § 718.203(b) where a claimant has ten or more years of

coal mine employment. 20 C.F.R. § 718.203(b) (1998). McNew

claimed 37 years of coal mine employment, and the parties stipulated

that he had at least twenty years. Based on her evaluation of the various medical reports, as discussed above, the ALJ found the opinions

of the employer's physicians insufficient to rebut the presumption.

As to the third and fourth elements, a totally disabling respiratory

or pulmonary impairment at least partially caused by the pneumoconiosis, the ALJ again relied on the report of Dr. Rasmussen and the

West Virginia Occupational Pneumoconiosis Board's ("OPB") finding of a 15% functional impairment due to pneumoconiosis in rejecting Dr. Vasudevan's "conclusory" statement that McNew had no

impairment and Dr. Zaldivar's opinion that McNew's respiratory disability was unrelated to his coal mine employment. She concluded

that McNew had proven total disability by a preponderance of the evidence under § 718.204(c)(4). 20 C.F.R. § 718.204(c)(4) (1998).

On this issue, Robinson argues that Dr. Rasmussen's opinion that

the disability was caused, in part, by coal mine dust exposure should

be discredited because he is a non-examining physician and no examining physician reached the same conclusion. As the OWCP notes in

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its brief, however, this court emphasized in Grizzle v. Pickands

Mather & Co., that the opinion of a non-examining physician "`can

be relied upon when it is consistent with the record.'" 994 F.2d 1093,

1098 (4th Cir. 1993) (quoting Gordon v. Schweiker, 725 F.2d 231,

235 (4th Cir. 1984)). See also Milburn, 138 F.3d at 533; Sterling

Smokeless Coal Co. v. Akers, 131 F.3d 438, 441-42 (4th Cir. 1997).

Dr. Rasmussen's opinion finds support from the other medical and

objective evidence in the record, which he considered in reaching his

conclusions, and the fact that he disagrees with the examining physicians is not sufficient to discredit his opinion.

Accordingly, the decision of the Board is

AFFIRMED.

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