                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


WESTMORELAND COAL COMPANY,           
INCORPORATED,
                     Petitioner,
                v.
BOBBY R. COOK; DIRECTOR,                         No. 02-1917
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
                     Respondents.
                                     
               On Petition for Review of an Order
                 of the Benefits Review Board
                          (01-864-BLA)

                     Submitted: October 1, 2003

                     Decided: February 17, 2004

    Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.



Reversed by unpublished per curiam opinion.


                            COUNSEL

Douglas Allan Smoot, JACKSON & KELLY, Charleston, West Vir-
ginia; Kathy Lynn Snyder, JACKSON KELLY, PLLC, Morgantown,
West Virginia, for Petitioner. Bobby R. Cook, Fenwick, West Vir-
ginia; Patricia May Nece, Barry H. Joyner, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
2                  WESTMORELAND COAL CO. v. COOK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Westmoreland Coal Company seeks review of the decision and
order of the Benefits Review Board affirming the administrative law
judge’s award of black lung benefits pursuant to 30 U.S.C. §§ 901-
945 (2000). Because our review of the record discloses that the ALJ’s
decision is not supported by substantial evidence, we reverse the
award of benefits.

   We review decisions of the BRB to determine whether the BRB
properly found that the ALJ’s decision was supported by substantial
evidence and was in accordance with law. See Doss v. Dir., Office of
Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995). In mak-
ing this determination, we conduct an independent review of the
record in deciding whether the ALJ’s findings are supported by sub-
stantial evidence. See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193
(4th Cir. 1995). Substantial evidence is more than a scintilla, but only
such evidence that a reasonable mind could accept as adequate to sup-
port a conclusion. See Lane v. Union Carbide Corp., 105 F.3d 166,
170 (4th Cir. 1997). Subject to the substantial evidence requirement,
the ALJ has the sole authority to make credibility determinations and
resolve inconsistencies or conflicts in the evidence. See Grizzle v. Pic-
kands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993). An ALJ,
however, may rely only on a medical opinion that constitutes a rea-
soned medical judgment. See Freeman United Coal Mining Co. v.
Cooper, 965 F.2d 443, 448 (7th Cir. 1992).

   To establish that he is entitled to black lung benefits in a case under
Part 718, a miner must prove: "(1) he has pneumoconiosis; (2) the
pneumoconiosis arose out of coal mine employment; (3) he has a
totally disabling respiratory or pulmonary condition; and
(4) pneumoconiosis is a contributing cause to his total respiratory dis-
ability." Milburn Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir.
                  WESTMORELAND COAL CO. v. COOK                      3
1998). A claimant may establish the existence of pneumoconiosis by
means of (1) chest x-rays; (2) biopsy or autopsy evidence;
(3) invocation of the presumptions at 20 C.F.R. §§ 718.304 - 718.306;
or (4) medical opinion evidence. See 20 C.F.R. § 718.202(a) (2003).
In findings that are not challenged on appeal, the ALJ determined that
Cook failed to establish the existence of pneumoconiosis by x-ray evi-
dence, that there was no biopsy or autopsy evidence, and that the pre-
sumptions of 20 C.F.R. §§ 718.304 - 718.306 were not applicable to
Cook’s claim. Therefore, the only basis upon which Cook may estab-
lish that he suffers from pneumoconiosis is medical opinion evidence
pursuant to 20 C.F.R. § 718.202(a)(4) (2003).

   In finding the medical opinion evidence sufficient to establish that
Cook suffered from pneumoconiosis, the ALJ relied primarily upon
the opinion of Dr. Walker, a chest surgeon who performed surgery on
Cook in August 1986. In his post-operative report, Dr. Walker noted
that "[a]t thoracotomy, the right lung was black. There were small,
palpable nodules throughout. The right lung fissures were approxi-
mately fifty percent fused. The lung was emphysematous." On Cook’s
discharge from the hospital following surgery, Dr. Walker’s final
diagnosis was a right parasternal hernia and pneumoconiosis. In addi-
tion to Dr. Walker, doctors Rasmussen, Diaz, and Aguilar also diag-
nosed pneumoconiosis. Doctors Fino, Zaldivar, and Hippensteel
concluded that Cook did not suffer from the disease, although Dr.
Zaldivar, in a supplemental report, acknowledged that "[t]he report
given by Dr. Walker that at the time of the thoracotomy the lungs
appeared black and there were palpable nodules may indicate that
coal workers’ pneumoconiosis might be present that is not seen radio-
graphically."

   The ALJ concluded that Dr. Walker’s opinion, supported by the
opinions of doctors Rasmussen, Diaz, and Aguilar, and Dr. Zaldivar’s
comment, was sufficient to outweigh both the preponderance of x-ray
readings that were negative, and the contrary opinions of doctors
Fino, Zaldivar, and Hippensteel. The ALJ accorded great weight to
Dr. Walker’s opinion because Dr. Walker had served as the Chairman
of the West Virginia Occupational Pneumoconiosis Board and there-
fore possessed extensive experience in evaluating pneumoconiosis,
and more importantly, Dr. Walker had the exclusive opportunity to
physically observe and examine one of Cook’s lungs during surgery.
4                  WESTMORELAND COAL CO. v. COOK
Our review of the record leads us to conclude that, although it is a
close question, the ALJ properly weighed the evidence and concluded
that it established that Cook suffered from pneumoconiosis.

    A miner is totally disabled due to pneumoconiosis if the disease

      is a substantially contributing cause of the miner’s totally
      disabling respiratory or pulmonary impairment. Pneumoco-
      niosis is a "substantially contributing cause" of the miner’s
      disability if it:

         (i) Has a material adverse effect on the miner’s respira-
      tory or pulmonary condition; or

        (ii) Materially worsens a totally disabling respiratory or
      pulmonary impairment which is caused by a disease or
      exposure unrelated to coal mine employment.

20 C.F.R. § 718.204(c)(1) (2003). If the presumption at § 718.304
does not apply, a claimant may establish the existence of a totally dis-
abling respiratory or pulmonary impairment by means of
(1) pulmonary function studies; (2) arterial blood gas studies;
(3) evidence of cor pulmonale; or (4) medical reports. See 20 C.F.R.
§ 718.204(b) (2003). Such evidence, however, only establishes dis-
ability "[i]n the absence of contrary probative evidence." Id. Thus, if
evidence of one type tends to establish disability, it must then be
weighed together with all other evidence relevant to the issue of total
disability for a determination as to whether the evidence, as a whole,
establishes a totally disabling respiratory or pulmonary impairment.
See Lane v. Union Carbide Corp., 105 F.3d 166, 171 (4th Cir. 1997);
Walker v. Director, Office of Workers’ Compensation Programs, 927
F.2d 181, 184-85 (4th Cir. 1991). The ALJ determined, and the BRB
affirmed, that the pulmonary function tests and arterial blood gas
studies did not establish the existence of a respiratory disability, and
the record in this case does not contain any evidence of cor pulmon-
ale. Therefore, Cook must demonstrate that he is totally disabled by
pneumoconiosis through medical opinion evidence.

  Initially, we note, as the ALJ recognized, the objective testing did
not yield results that indicated the presence of a disabling respiratory
                  WESTMORELAND COAL CO. v. COOK                        5
condition. In fact, the pulmonary function and arterial blood gas tests
in the record yielded measures of Cook’s respiratory capability signif-
icantly above the levels established by the regulations as indicating
total disability. Nevertheless, the ALJ concluded that the opinions of
Doctors Rasmussen, Diaz, and Aguilar that Cook was totally disabled
by puemoconiosis outweighed the contrary opinions of Doctors Zaldi-
var, Fino, and Hippensteel.

    In addressing total disability, the ALJ stated:

    The laboratory studies were non-qualifying, which lends
    support to the physicians who conclude no total disability is
    present. In contrast, however, the reports which conclude
    Claimant is totally disabled are based on other tests, includ-
    ing exercise stress tests as well as Dr. Diaz’s status as
    Claimant’s treating physician. In this capacity, he had the
    unique opportunity to examine Claimant on multiple occa-
    sions. In addition, the physicians who concluded Claimant
    is totally disabled also agreed pneumoconiosis was present.
    That finding was firmly supported by Dr. Walker’s surgical
    examination of the actual lungs, and, thus, their correct con-
    clusion regarding the presence of pneumoconiosis lends
    support to their conclusions regarding the miner’s pulmo-
    nary capacity.

   We find this analysis flawed in three significant respects. First, the
record contains no evidence of the "other" tests mentioned by the ALJ
as supporting the opinions of Doctors Rasmussen, Diaz, and Aguilar.
Rather, the ALJ interpreted Dr. Rasmussen’s discussion of the exer-
cise portion of the arterial blood gas tests as indicating that another
type of test was performed. This is factually incorrect, as the blood
gas tests uniformly yielded results that did not establish the existence
of respiratory or pulmonary disability. Second, the ALJ’s deference
to the opinion of Dr. Diaz based upon his status as Cook’s treating
physician is unwarranted. Our review of Dr. Diaz’s reports reveal that
they are not supported by objective reasoning or analysis, but merely
offer conclusory statements of his opinions and therefore do not con-
stitute reasoned medical opinions. We have previously cautioned
against such unwarranted deference to a treating physician’s opinion.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir.
6                 WESTMORELAND COAL CO. v. COOK
1997). Third, the ALJ’s conclusion that because the doctors were cor-
rect in diagnosing pneumoconiosis, they must also be correct in opin-
ing that Cook is totally disabled, reflects a misunderstanding of the
distinct inquiries into the existence of the disease and whether the dis-
ease results in total respiratory disability that are required in adjudi-
cating black lung cases.

   In addition to Dr. Diaz, the ALJ also relied on Dr. Aguilar, who
examined Cook in May 1986. Dr. Aguilar diagnosed pneumoconiosis,
pulmonary fibrosis and emphysema, atelectasis of the lower right
lung, and osteoarthritis of the spine and left shoulder. He opined that
Cook would be restricted to "sedentary or at least no more than very
light physical work." Dr. Aguilar conducted pulmonary function tests,
which did not yield values indicating respiratory disability. He also
noted that

    I reviewed the pulmonary function tests performed by Dr.
    Rasmussen in 1974 which showed minimal obstructive ven-
    tilatory insufficiency with an estimated loss of functional
    capacity between 50 and 60%. I expect that that loss may
    have increased by this time, although the spirometry
    obtained on May 14, 1986 does not bear this out.

   We conclude that the ALJ erred in finding that this opinion demon-
strated that Cook was totally disabled by pneumoconiosis. Although
Dr. Aguilar acknowledged that he had reviewed past reports and that
he expected Cook’s pulmonary capacity to be diminished, Dr. Aguilar
failed to explain how, given the objective testing results that indicated
only mild obstruction, he concluded that Cook was restricted to light
sedentary work. Moreover, Dr. Aguilar’s report does not adequately
distinguish the relative contributions of the diagnosed respiratory con-
ditions and Cook’s osteoarthritis to his overall condition.

  The last doctor on which the ALJ relied in reaching the total dis-
ability determination, Dr. Rasmussen, examined Cook in 1974, 1979,
and again in 1986. On April 12, 1974, Dr. Rasmussen conducted pul-
monary function and arterial blood gas tests on Cook, and reported:

    This patient exhibited minimal ventilatory insufficiency,
    moderate impairment in oxygen transfer, and an abnormal
    ventilatory response with exercise.
                  WESTMORELAND COAL CO. v. COOK                       7
    This patient would appear to be incapable of performing
    steady work beyond strictly light work levels. A numerical
    estimate of the overall loss of functional capacity in this
    case would be placed in the neighborhood of 50-60%.

   On May 4, 1979, Dr. Rasmussen again conducted pulmonary func-
tion and arterial blood gas tests on Cook. Dr. Rasmussen reported

    This patient exhibited minimal ventilatory insufficiency,
    moderate impairment in oxygen transfer, an abnormal venti-
    latory response with exercise, and an abnormal cardiovascu-
    lar response with exercise.

    This patient would appear to be incapable of performing
    steady work beyond strictly light work levels. A numerical
    estimate of the overall loss of functional capacity in this
    case would be placed in the neighborhood of 65%.

   Finally, on May 27, 1986, Dr. Rasmussen examined Cook, and
again conducted pulmonary function and arterial blood gas tests. In
the block labeled "Medical Assessment" on the examination report
form, Dr. Rasmussen stated "[t]his patient has moderate impairment
in respiratory functional capacity." He concluded that "[t]hese studies
indicate moderate impairment in respiratory functional capacity as
reflected by the obstructive ventilatory insufficiency and the impair-
ment in gas exchange at rest and during exercise." Notably, Dr. Ras-
mussen did not estimate the amount of reduction in Cook’s functional
capacity in this last report.

   We conclude that the ALJ erred in giving Dr. Rasmussen’s opin-
ions probative weight on the question of that disability. First, none of
Dr. Rasmussen’s reports affirmatively state that Cook is totally dis-
abled from a respiratory standpoint. Further, contrary to Dr. Rasmus-
sen’s opinions in 1974 and 1979 that Cook had lost the majority of
his functional capacity and was restricted to only light work, Cook in
fact continued to perform very demanding physical labor in the mines
until he retired in 1986. Finally, Dr. Rasmussen also failed to explain
his conclusion that Cook was limited to light work given the objective
testing that demonstrated the absence of any respiratory disability.
8                 WESTMORELAND COAL CO. v. COOK
   With respect to the total disability inquiry, the ALJ’s reasoning was
based upon factual inaccuracies that resulted from an improper evalu-
ation of the medical opinions such that "no ‘reasonable mind’ could
have interpreted and credited the [medical opinions] as the ALJ did."
See Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 764 (4th Cir.
1999). Because there remains no evidence upon which to base a find-
ing of entitlement to benefits, we reverse the award of benefits. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                           REVERSED
