UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICKEY G. BOLEN,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                   No. 97-2544
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
EASTERN ASSOCIATED COAL
CORPORATION,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-0119-BLA)

Submitted: April 30, 1998

Decided: June 5, 1998

Before WILKINS, NIEMEYER, and HAMILTON, 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Affirmed by unpublished per curiam opinion.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, L.L.P., Washington, D.C., for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mickey Bolen petitions for review of a decision of the Benefits
Review Board ("Board") affirming the administrative law judge's
("ALJ") denial of his application for black lung benefits pursuant to
30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1998). The ALJ
reviewed this claim under 20 C.F.R. Part 718 (1997), of the applica-
ble regulations, and denied benefits based on his determination that
the evidence of record was insufficient to prove the existence of pneu-
moconiosis. To establish entitlement under Part 718, a miner must
prove: 1) that he has pneumoconiosis; 2) that the disease arose out
of his coal mine employment; 3) that he is totally disabled from per-
forming his usual coal mining work; and 4) that his pneumoconiosis
is a contributing cause of his total disability. See Lane v. Union Car-
bide Corp., 105 F.3d 166, 170 (4th Cir. 1997). Because Bolen failed
to establish the first critical element, the ALJ did not address the
remaining elements. The Board found that the ALJ properly weighed
the evidence relating to the issue of the presence of pneumoconiosis
and, accordingly, affirmed. We must affirm the Board's decision if it
properly decided that the ALJ's decision is supported by substantial
evidence and is in accordance with law. See Doss v. Director, Office
of Workers' Compensation Programs, 53 F.3d 654, 658 (4th Cir.
1995).

Under Part 718, a claimant may establish pneumoconiosis by
means of: 1) x-rays, 2) biopsy or autopsy evidence, 3) invocation of
one of the presumptions at 20 C.F.R. §§ 718.304-306, or 4) medical
reports. The record contains no autopsy or biopsy evidence, and
Bolen concedes that none of the presumptions are applicable. More-
over, he concedes that the x-ray evidence is insufficient to establish
pneumoconiosis. The record contains only a single positive x-ray
interpretation that conflicted with the uniformly negative interpreta-
tions supplied by eleven other readers possessing superior qualifica-

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tions. Thus, Bolen could establish pneumoconiosis only through
medical opinion evidence.

Of the three physicians who addressed this issue, only Dr. Rasmus-
sen found the disease present. In his initial report, Dr. Rasmussen
found pneumoconiosis based on the miner's history of coal dust expo-
sure and the one positive x-ray interpretation of record, rendered by
Dr. Patel. He also found chronic obstructive pulmonary disease due
to coal dust exposure and cigarette smoking based on the miner's
chronic cough and chronic airway obstruction. After more qualified
readers interpreted Dr. Patel's x-ray and other films negatively for
pneumoconiosis, Dr. Rasmussen submitted a supplemental report,
stating that his opinion remained unchanged because x-rays were an
imperfect tool for diagnosing pneumoconiosis and because he still
believed that there was "no basis for excluding Mr. Bolen's coal dust
exposure as a significant contributing cause to his disabling respira-
tory insufficiency including a significant contributing cause of his
emphysema." To support his opinion, he cited medical literature
which he interpreted to conclude that coal dust exposure can cause
chronic obstructive lung disease and the same type of emphysema
produced by coal dust exposure.

The ALJ effectively discredited Dr. Rasmussen's reports. He found
that Dr. Rasmussen's finding of clinical pneumoconiosis was under-
mined by his reliance on an x-ray interpretation which was over-
whelmingly refuted by the interpretations of more qualified readers.
Moreover, Dr. Rasmussen's supplemental report, which effectively
found "legal" pneumoconiosis by attributing the miner's emphysema
and obstructive lung disease to coal dust exposure, was generic, citing
only to articles discussing potential connections between coal dust
exposure and various respiratory problems, but not explaining how
Bolen's specific symptoms or test results supported the conclusion
that coal dust exposure contributed to his specific respiratory ail-
ments. Although Dr. Rasmussen's reports reflect that he recorded the
miner's symptoms, pertinent history, and conducted laboratory test-
ing, if his efforts produced any information supporting a finding of
pneumoconiosis, his report fails to explain how this is so.

Bolen contends on appeal that the ALJ's decision impermissibly
relied on the "sheer volume of negative x-rays" that employer was

                    3
able to produce, in violation of alleged statutory and regulatory prohi-
bitions against the denial of claims based upon negative x-rays. Ini-
tially, we note that the relevant statutory and regulatory provisions
prohibit denial of a claim based solely on a negative x-ray. See 30
U.S.C. § 923(b) (1994); 20 C.F.R. § 718.202(b) (1997); Mullins Coal
Co. v. Director, Office of Workers' Compensation Programs, 484
U.S. 135, 151 (1987). In this case, multiple x-rays were overwhelm-
ingly interpreted negatively.

Moreover, any prohibitions against the use of negative x-rays can-
not prevent denial of a claim where the claimant produces no proba-
tive evidence affirmatively establishing the critical elements of a
claim, because the claimant must prove his case by a preponderance
of the evidence. See Director, Office of Workers' Compensation Pro-
grams v. Greenwich Collieries, 512 U.S. 267 (1994) (finding that
claimant must prove case under preponderance standard). We have
stated that the ALJ properly discredited Dr. Rasmussen's finding of
clinical pneumoconiosis because it was primarily based on a discred-
ited x-ray. Moreover, the ALJ properly discredited Dr. Rasmussen's
finding of legal pneumoconiosis because he provided no basis for
such a conclusion in Bolen's specific case. Hence, Bolen cannot carry
his burden regardless of the weight the ALJ gave to the negative
x-rays or to the other evidence supporting a finding of no pneumoco-
niosis.

We find, however, that the ALJ provided proper reasons for credit-
ing the reports of employer's physicians in this case, and that, con-
trary to Bolen's assertions, neither the ALJ nor the employer's
physicians placed undue emphasis on the negative x-ray evidence.
The physicians finding no pneumoconiosis, Drs. Zaldivar and Tuteur,
only briefly noted that there was no radiographic evidence of pneu-
moconiosis in this case. Most of their discussions related to the
miner's symptoms, physical exams, and objective studies. They con-
cluded that while the miner exhibited many indices suggestive of an
obstructive disorder of the type commonly caused by cigarette smok-
ing, he exhibited no indices that are specific to a coal-dust-induced
respiratory disease. For example, on physical examination the miner
exhibited no decreased lung expansion or persistent crackling sounds
on inspiration, as one expects to find where pneumoconiosis is pres-
ent. Moreover, his symptoms of cough, expectoration, wheezing, and

                    4
chest pain were, according to Dr. Tuteur, "not regular features of coal
workers' pneumoconiosis."

His objective studies showed no evidence of restriction, but of a
purely obstructive impairment. The miner's lung volumes were not
reduced, consistent with pneumoconiosis, but were instead 135% of
the volume predicted, indicating air trapping. His blood gas tests were
normal at rest, but indicated mild hypoxemia upon exercise. Accord-
ing to Drs. Zaldivar and Tuteur, all of these indices were consistent
with an obstructive impairment attributable to smoking and heart dis-
ease. Conversely, Bolen exhibited no indices of a pulmonary problem
specifically related to coal dust exposure. Coupling these indices with
the negative x-ray evidence, the miner's past history of heart prob-
lems (including myocardial infarction), and his lengthy smoking his-
tory (40 years and continuing, smoking at least one pack every day),
Drs. Zaldivar and Tuteur opined that coal dust exposure did not con-
tribute to the miner's obstructive lung disease.

The ALJ found that these reports were better reasoned and better
supported than the opinion of Dr. Rasmussen. He also noted that,
being board-certified in the field of pulmonary diseases, these physi-
cians possessed credentials superior to those of Dr. Rasmussen. Each
of these reasons is a proper basis for crediting a medical opinion over
a conflicting opinion. See Underwood v. Elkay Min., Inc., 105 F.3d
946, 951 (4th Cir. 1997).

We also note that crediting these reports does not, contrary to
Bolen's assertion, violate our holding in Warth v. Southern Ohio Coal
Co., 60 F.3d 173, 174-75 (4th Cir. 1995), that a physician's opinion
that coal dust exposure can never cause obstructive impairment is
inimical to the Black Lung Benefits Act. While Dr. Tuteur's report
disputes Dr. Rasmussen's view that the studies cited by Dr. Rasmus-
sen prove that coal dust exposure causes obstruction, Dr. Tuteur does
not state that this is his personal opinion. Nor is there any indication
that his opinion was based on such an assumption.

Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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