UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WESTMORELAND COAL COMPANY,

INCORPORATED,

Petitioner,

v.

No. 99-1411

GERNADE RUSSELL; DIRECTOR,

OFFICEOF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENTOF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(98-0236-BLA)

Submitted: June 9, 2000

Decided: June 28, 2000

Before LUTTIG, MOTZ, and KING, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Douglas A. Smoot, Kathy L. Synder, JACKSON & KELLY,

P.L.L.C., Morgantown, West Virginia, for Petitioner. William C. Garrett, Gassaway, West Virginia; Henry L. Solano, Solicitor of Labor,

Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for

Appellate Litigation, Barry H. Joyner, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Westmoreland Coal Company ("employer") petitions for review of

a decision of the Benefits Review Board ("Board") affirming an

administrative law judge's ("ALJ") decision to award black lung benefits to Gernade Russell. In September of last year, we placed this

case in abeyance pending our decision in Island Creek Coal Co. v.

Compton, 211 F.3d 203 (4th Cir. 2000). We recently issued a decision

in that case, making this case ripe for review.

Following a lengthy procedural history, the ALJ ultimately found

that while the x-ray evidence of record was insufficient to establish

pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(1) (1999), Russell nonetheless established the critical element of pneumoconiosis,

see Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th Cir. 1995)

(stating critical elements of a black lung claim), based solely on the

medical opinion evidence of record pursuant to § 718.202(a)(4). In

Compton, we held that "all relevant evidence is to be considered

together rather than merely within discrete subsections of

§ 718.202(a)." Id. at 208. Because the ALJ weighed only like-kind

evidence against each other in this case, rather than weighing all evidence relevant to the existence of pneumoconiosis together, we vacate

the Board's decision and remand for further remand to the ALJ so that

he may reweigh the evidence under § 718.202(a), consistently with

Compton.

Employer further contends that the ALJ committed numerous

errors in weighing the medical opinion evidence in this case. The ALJ

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found pneumoconiosis solely on the basis of Dr. Rasmussen's opinion, rejecting numerous reports submitted by the employer opining

that the miner suffered from neither the clinical nor the "legal" form

of pneumoconiosis. See 20 C.F.R. § 718.201 (1999). We disagree

with employer's view that Dr. Rasmussen's finding of pneumoconiosis should have been discredited on the ground that it was based

entirely on discredited x-ray evidence. The record discloses that while

Dr. Rasmussen relied on another physician's positive x-ray interpretation in his initial report to find the existence of pneumoconiosis, he

subsequently clarified in his deposition testimony that he also

believed the miner's lung disease to be related to his coal dust exposure, at least in part, and that x-ray evidence would not change his

opinion on this point. Dr. Rasmussen also explained how laboratory

tests and his physical findings supported his opinion. Hence, it is clear

that Dr. Rasmussen's finding of legal pneumoconiosis was not, as

employer contends, predicated on discredited x-ray evidence.

We also reject employer's suggestion that the opinions of its physicians must be accorded greater weight because they possess superior

credentials to Dr. Rasmussen. The ALJ carefully considered the credentials of the physicians of record, and rationally found that Dr. Rasmussen qualified as an expert in the field of pulmonary diseases

despite lacking board certification in that area, as he was board certified in internal medicine, was board eligible in pulmonary diseases,

and had devoted his practice to treating patients with pulmonary disease. While we have held that ALJs err by failing to factor the qualification of physicians into their analysis of the reliability of their

opinions, see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 536 (4th

Cir. 1998), this is not a case where such error occurred.

We agree with employer, however, and the Director, Office of

Workers' Compensation Programs ("Director"), that the ALJ committed some errors in weighing the medical opinion evidence. On

remand, the ALJ should be mindful that Dr. Crisalli last examined the

miner, rather than Dr. Rasmussen, as he found. Further, if he is to rely

on Dr. Rasmussen's citation to medical literature as a ground for crediting his opinion, he should, consistent with his obligation to consider

all relevant evidence, also consider employer's evidence tending to

undercut the positions taken in the literature on which Dr. Rasmussen

relied. See id. at 532-33. Similarly, when reconsidering the medical

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reports, the ALJ should specifically discuss his reasons for crediting

or rejecting the reports of Drs. Kress, Fino, and Renn, whose reports

the ALJ mentioned but did not weigh below.

If the ALJ again finds pneumoconiosis, it is not necessary, as

employer asserts, for him to revisit the issue of whether the miner's

total disability was "due to" pneumoconiosis. The errors discussed do

not taint the ALJ's causation finding. Rather, the ALJ's causation

finding is only tainted if the ALJ ultimately finds no pneumoconiosis,

in which case benefits will be denied in any event.

Accordingly, the decision and order of the Board is vacated and the

claim is remanded to the Board for further remand to the ALJ for further proceedings consistent with this opinion. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

VACATED AND REMANDED WITH INSTRUCTIONS

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