                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2566


KANAWHA COAL COMPANY,

                Petitioner,

          v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; MARTHA M. KUHN,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(12-0081-BLA)


Submitted:   August 30, 2013             Decided:   September 11, 2013


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Mark J. Grigoraci, ROBINSON & MCELWEE PLLC, Charleston, West
Virginia, for Petitioner.   Timothy C. MacDonnell, WASHINGTON &
LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia; M. Patricia
Smith, Solicitor of Labor, Rae Ellen Frank James, Associate
Solicitor, Sean G. Bajkowski, Counsel for Appellate Litigation,
Jeffrey S. Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Kanawha Coal Company (“Employer”) petitions for review

of   the   Benefits   Review   Board’s   (“Board”)    decision   and     order

affirming the administrative law judge’s (“ALJ”) grant of living

miner benefits to former employee Richard P. Kuhn 1 under the

Black Lung Benefits Act (“Act”), 30 U.S.C.A. §§ 901-945 (West

2007 & Supp. 2013).     We deny the petition for review.

            We review the BRB’s and the ALJ’s legal conclusions de

novo and “independent[ly] review . . . the record to determine

whether the ALJ’s findings of fact were supported by substantial

evidence.”    Island Creek Coal Co. v. Compton, 211 F.3d 203, 207-

08 (4th Cir. 2000) (internal quotation marks omitted).              Subject

to the substantial evidence requirement, we defer to the ALJ’s

credibility determinations and “evaluation of the proper weight

to accord conflicting medical opinions.”             Harman Mining Co. v.

Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th

Cir. 2012) (internal quotation marks omitted).               The ALJ is not

bound to accept any medical expert opinion but “must evaluate

the evidence, weigh it, and draw [her] own conclusions,” giving

consideration    to    “the    qualifications   of     the    experts,    the

opinions’ reasoning, their reliance on objectively determinable

      1
       Kuhn died on February 7, 2013.      We granted counsel’s
motion to substitute Kuhn’s widow, Martha M. Kuhn, as a party to
this living miner claim.



                                     2
symptoms and established science, their detail of analysis, and

their       freedom     from   irrelevant         distractions         and   prejudices.”

Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949, 951 (4th

Cir. 1997), superseded on other grounds as stated in Elm Grove

Coal Co. v. Dir., Office of Workers’ Comp. Programs, 480 F.3d

278, 287 (4th Cir. 2007).

                 Employer first contends that the ALJ erroneously found

that       Kuhn     was     entitled     to       the     rebuttable         presumption,

resurrected by the Patient Protection and Affordable Care Act

(PPACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010),

that        he     is     totally    disabled           due      to     pneumoconiosis. 2

Specifically, Employer argues that the ALJ failed to establish

that       the    conditions   of    Kuhn’s       above       ground    employment   were

substantially similar to the work conditions in an underground

mine.        In    response,   the     Director      of   the     Office     of   Workers’

Compensation Programs (“Director”) states that the Department of

       2
       Section 1556 of the PPACA, 124 Stat. at 260, amends the
Act by restoring the “fifteen-year presumption” contained in
Section 411(c)(4) of the Act, 30 U.S.C.A. § 921(c)(4).      The
presumption provides that if a miner has been employed in an
underground coal mine for fifteen years or more, and if other
evidence   demonstrates  that  he  has   “a  totally  disabling
respiratory or pulmonary impairment,” he is entitled to a
rebuttable presumption that he is totally disabled due to
pneumoconiosis. 30 U.S.C.A. § 921(c)(4). The renewed fifteen-
year presumption applies to claims filed under parts B and C of
the Act after January 1, 2005, that are pending after the
effective date of the PPACA, March 23, 2010. 124 Stat. at 260,
§ 1556(c).



                                              3
Labor (“DOL”) interprets the regulations to include Kuhn’s above

ground      duties    as    work       in    an       “underground     coal       mine”    and,

therefore,        Kuhn     was   not        required      to   prove    that       his     work

conditions were substantially similar to the work conditions in

an underground mine.

                If a miner was employed in underground coal mines for

fifteen or more years, has had a chest x-ray interpreted as

negative for complicated pneumoconiosis, and demonstrates that

he has a totally disabling respiratory or pulmonary impairment,

he is entitled to a rebuttable presumption that he is totally

disabled due to pneumoconiosis (“fifteen-year presumption”).                                30

U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a) (2013).                                The term

“underground coal mine” is not defined in the Act.                                    See 30

U.S.C.      §     802(h)(2)      (2006)        (defining       “coal        mine”).        The

regulations governing the Act define an underground coal mine as

“a coal mine in which the earth and other materials which lie

above and around the natural deposit of coal (i.e., overburden)

are   not       removed    in    mining;      including        all    land,       structures,

facilities,         machinery,         tools,          equipment,      shafts,        slopes,

tunnels,        excavations      and    other         property,      real    or    personal,

appurtenant thereto.”            20 C.F.R. § 725.101(a)(30) (2013).

                Because     Congress         has       expressly     delegated        to    the

Secretary of Labor the authority to promulgate regulations to

carry out the provisions of the Act, see 30 U.S.C. § 936(a)

                                                  4
(2006), we must defer to the DOL’s “interpretation of ambiguous

provisions   of     the      statutes     it       is    authorized     to     implement.”

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991); see

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 844 (1984) (“We have long recognized that considerable

weight    should        be     accorded       to        an   executive       department’s

construction of a statutory scheme it is entrusted to administer

. . . .” (footnote omitted)).              When, as here, “Congress has not

directly addressed the precise question at issue,”                           Chevron, 467

U.S. at 843, we will give the DOL’s regulations “controlling

weight   unless     they     are      arbitrary,         capricious,      or      manifestly

contrary to the statute.”             Id. at 844.

           We     conclude      that    the    DOL’s         definition      of    the    term

“underground coal mine” in the regulations to the Act is not

arbitrary,      capricious,        or    manifestly          contrary     to      the     Act.

Employer does not dispute the ALJ’s determination of the length

of Kuhn’s coal mine employment or her conclusion that Kuhn’s

above    ground    work        with     Employer         was    carried        out   at    an

underground mine site.             Thus, we conclude that, because Kuhn’s

work with Employer was at an underground mine, the ALJ properly

found that Kuhn’s above ground work was qualifying employment

for   purposes     of    the    fifteen-year            presumption.         Accordingly,




                                           5
because all of the requirements of § 718.305(a) were met, 3 the

ALJ correctly determined that Kuhn is entitled to the rebuttable

presumption that he was totally disabled due to pneumoconiosis.

See 30 U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a).

              Once the miner has established his entitlement to the

fifteen-year       presumption,          an       employer        “may     rebut     such

presumption only by establishing that (A) [the] miner does not,

or did not, have pneumoconiosis, or that (B) his respiratory or

pulmonary      impairment    did   not    arise      out    of,    or     in   connection

with, employment in a coal mine.”                  30 U.S.C.A. § 921(c)(4); see

20 C.F.R. § 718.305(a) (2013); Morrison v. Tenn. Consol. Coal

Co., 644 F.3d 473, 479-80 (6th Cir. 2011).

              Employer contends that the ALJ erred in her decision

to discredit its expert physicians’ opinions, whose testimony

and    medical    opinions   were    offered        to     rebut    the    fifteen-year

presumption afforded to Kuhn.             It is the ALJ’s responsibility to

make credibility determinations.                   Harman Mining, 678 F.3d at

310.       In this case, the ALJ discredited Employers’ physicians as

to whether Kuhn suffered from legal pneumoconiosis because Dr.

George Zaldivar did not adequately explain why Kuhn’s coal dust

exposure did not contribute to his totally disabling respiratory

       3
       All of the x-ray evidence was negative for complicated
pneumoconiosis and Employer concedes that Kuhn suffered from a
totally disabling pulmonary impairment.



                                              6
impairment and Dr. John Bellotte did not adequately account for

Kuhn’s level of dust exposure while working above ground.                                   We

conclude that the ALJ’s decision to discredit Employer’s experts

on   the      issue    of      legal     pneumoconiosis            was       supported      by

substantial evidence.

              Moreover,       because    the       ALJ    did    not     find    Employer’s

physicians credible on the issue of legal pneumoconiosis, she

could   not    credit       their     opinions      on     the    causation       of    total

disability      absent        “specific           and     persuasive         reasons       for

concluding      that    the    doctor[s’]          judgment      on    the      question    of

disability     causation       does     not    rest      upon    [their]      disagreement

with the ALJ’s finding.”               Toler v. E. Assoc. Coal Co., 43 F.3d

109, 116 (4th Cir. 1995).               Thus, we conclude that the ALJ did

not err in finding that Employer failed to rebut the fifteen-

year presumption afforded to Kuhn.                      See 30 U.S.C.A. § 921(c)(4);

20 C.F.R. § 718.305(a).

              Accordingly, we deny Employer’s petition for review.

We   dispense    with     oral      argument       because       the   facts      and   legal

contentions     are    adequately        presented         in    the   materials        before

this court and argument would not aid the decisional process.



                                                                         PETITION DENIED




                                              7
