UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BUFFALO MINING COMPANY,
Petitioner,

v.

HOWARD H. COPLEY; DIRECTOR,
                                                                    No. 98-1508
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-789-BLA)

Submitted: September 29, 1998

Decided: December 17, 1998

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

William S. Mattingly, Kathy L. Snyder, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. S. F. Raymond Smith, RUN-
DLE & RUNDLE, L.C., Pineville, West Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Buffalo Mining Company ("employer") petitions for review of a
decision of the Benefits Review Board ("Board") affirming the
administrative law judge's ("ALJ") decision to award black lung ben-
efits to the claimant in this action, Howard Copley. This case arises
under Part 718 of the applicable regulations. See 20 C.F.R. Part 718
(1998). Under Part 718, a claimant must prove: (1) that he has pneu-
moconiosis; (2) that the disease arose out of his coal mine employ-
ment; (3) that he is totally disabled from performing his usual coal
mining work; and (4) that his pneumoconiosis is a contributing cause
of his total disability. See Lane v. Union Carbide Corp., 105 F.3d
166, 170 (4th Cir. 1997). The controversies in this case surround the
first and fourth elements.

The ALJ found these elements satisfied based on the medical opin-
ions of Drs. Ranavaya and Rasmussen. Dr. Ranavaya examined Cop-
ley at the behest of the Director, Office of Workers' Compensation
Programs ("Director"). He found pneumoconiosis based on positive
x-ray evidence and the miner's 27 years of coal mine employment,
and opined that coal dust exposure contributed to the miner's respira-
tory impairment, which he found to be "mild" but which employer
conceded was totally disabling.

Dr. Rasmussen also found pneumoconiosis, and opined that the
miner's disabling respiratory impairment was attributable to a combi-
nation of cigarette smoking and coal dust exposure. He disagreed with
opinions offered by Drs. Zaldivar and Castle that the miner's impair-
ment was partially attributable to asthma and partly attributable to
smoking. Dr. Morgan concurred with Drs. Zaldivar and Castle that
the miner did not suffer from pneumoconiosis, but opined that the
miner's respiratory impairment was solely attributable to the miner's
smoking history of over twenty years.

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In weighing the medical opinion evidence pursuant to 20 C.F.R.
§ 718.202(a)(4) (1998), the ALJ found the reports of Drs. Ranavaya
and Rasmussen more persuasive than the conflicting reports because,
in the ALJ's view, these opinions were more consistent with the
miner's lengthy coal mine employment history and with the miner's
pulmonary function tests. Specifically, the ALJ discounted the opin-
ions of Drs. Zaldivar and Castle that the miner's ventilatory studies
suggested that part of the miner's impairment was attributable to
asthma based on the miner's improvement after the administration of
bronchodilators because, the ALJ noted, even after bronchodilators,
the miner's results on ventilatory testing reflected the presence of a
disabling impairment. In the ALJ's view, this demonstrated that the
residual impairment must be due to pneumoconiosis.

We agree with the employer that the ALJ's reasoning is insufficient
to provide substantial evidence in support of his finding of pneumoco-
niosis. See Doss v. Director, Office of Workers' Compensation
Programs, 53 F.3d 654, 658 (4th Cir. 1995) (citing standard of
review). The ALJ's analysis does not account for the possibility that
the miner's impairment after bronchodilators was solely attributable
to smoking. The reports of Drs. Zaldivar and Castle did not suggest
that impairment linked to smoking would be expected to improve
with bronchodilators. Moreover, Dr. Morgan found the miner's
impairment solely attributable to smoking.

We also find that the ALJ erred by relying on the length of the
miner's coal mine employment as a basis for crediting the reports of
Drs. Ranavaya and Rasmussen. As the Seventh Circuit has stated:
"Occupational exposure is not evidence of pneumoconiosis . . . but
merely a reason to expect that evidence might be found." Sahara Coal
Co. v. Fitts, 39 F.3d 781, 783 (7th Cir. 1994). Hence, we have recog-
nized that a lengthy coal mine history alone does not conclusively
establish that a miner's impairment or disability is due to pneumoco-
niosis or coal dust exposure. See Milburn Colliery Co. v. Hicks, 138
F.3d 524, 535 (4th Cir. 1998).

Because the ALJ's finding of pneumoconiosis is not supported by
substantial evidence, we must vacate the decision of the Board and
remand with instructions to further remand the case to the ALJ for
reweighing of the evidence. Because the ALJ's finding that the

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miner's disabling impairment was attributable to coal mine employ-
ment was based on precisely the same reasoning underlying his find-
ing of pneumoconiosis, that finding is also vacated and should be
reconsidered on remand as well. We note that the employer raises
numerous specific challenges to the credibility of the reports of Drs.
Ranavaya and Rasmussen on appeal. Many of these challenges do not
bear on the causation questions at issue in this appeal, and most of the
arguments were waived by the employer's failure to raise them before
the Board. See South Carolina v. United States Dept. of Labor, 795
F.2d 375, 378 (4th Cir. 1986). We agree with employer, however, that
on remand the ALJ should discuss the tension between his finding
that the x-ray evidence was insufficient to establish pneumoconiosis
and his decision to rely on the reports of Drs. Ranavaya and Rasmus-
sen, who partly based their findings of pneumoconiosis on positive x-
ray evidence.

Accordingly, the decision of the Board is vacated and this case is
remanded to the Board with instructions to further remand it to an
ALJ for 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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