                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-1147



WESTMORELAND COAL COMPANY,

                                                             Petitioner,

           versus


CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION    PROGRAMS,     UNITED    STATES
DEPARTMENT OF LABOR,

                                                            Respondents.


On Petition for Review of an Order of the Benefits Review Board.
(03-256-BLA)


Argued:   September 28, 2004                 Decided:   December 6, 2004


Before WILKINSON and WILLIAMS, Circuit Judges, and Roger W. TITUS,
United States District Judge for the District of Maryland, sitting
by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Douglas Allan Smoot, JACKSON KELLY, P.L.L.C., Charleston,
West Virginia, for Petitioner. Seth A. Steed, WASHINGTON & LEE
UNIVERSITY, School of Law, Lexington, Virginia; Richard Anthony
Seid, UNITED STATES DEPARTMENT OF LABOR, Black Lung Longshore Legal
Services Division, Washington, D.C., for Respondents. ON BRIEF:
Kathy L. Snyder, JACKSON KELLY, P.L.L.C., Morgantown, West
Virginia, for Petitioner.    Mary Z. Natkin, James M. Phemister,
WASHINGTON & LEE UNIVERSITY, School of Law, Lexington, Virginia,
for Respondent Amick.    Howard M. Radzely, Solicitor of Labor,
Donald S. Shire, Associate Solicitor, Christian P. Barber, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Office
of the Solicitor, Washington, D.C., for Federal Respondent.


Unpublished opinions are not binding precedent in this circuit.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




                                2
PER CURIAM:

     On March 29, 2000, Charles Moore Amick filed his third claim

for benefits under the Black Lung Benefits Act (the BLBA or the

Act), 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 2004).               An

Administrative Law Judge (ALJ) reviewed Amick’s claim, found that

Amick had established a material change in condition since his

prior black lung benefits claim, and awarded benefits. Because the

ALJ found that the evidence did not establish the month of onset of

total disability, the ALJ applied the default entitlement date

provided for in 20 C.F.R. § 725.503 (2002) and made benefits

payable beginning with the month that the claim was filed. The

Benefits Review Board (Board) affirmed, with one judge dissenting.

Westmoreland Coal Company now petitions for review of the Board’s

order.    Because    the   ALJ’s   factual   findings    regarding   the

credibility of the various doctors are not supported by substantial

evidence, we vacate the Board’s order and remand to the ALJ to

reconsider the medical evidence.



                                   I.

     Amick worked in the coal mine industry for approximately

thirty-five years.   He    had various jobs, including working as a

truck driver, mechanic, electrician, dozer operator, timberman,

cutting machine operator, and scoop operator.           The last eleven

years of his coal mine employment were with Westmoreland where he


                                   3
ran a supply motor, which involved loading and unloading roof

bolts, timbers, and other supplies.           Amick retired in 1983.     Amick

filed his first claim for benefits in 1980. That claim was denied

in 1981 because the evidence did not establish total disability due

to pneumoconiosis. Amick filed his second claim on April 15, 1983.

This second claim was denied because Amick failed to appear at a

hearing or respond to a show cause order.            Amick filed this claim,

his third, on March 29, 2000.

      The record contains reports from nine doctors, all of whom

agree that Amick is “totally disabled” as defined by federal

regulations.      See   20   C.F.R.    §    718.204(b)(1)    (defining   total

disability as “pulmonary or respiratory impairment” preventing a

miner   from   performing    coal    mine   work).     The   medical   reports

conflict, however, as to the cause of Amick’s disability.              Amick’s

doctors -- Drs. Koenig, Cohen, and Rasmussen -- opine that his

disability is due, at least in part, to his coal mine employment.

The employer’s doctors -- Drs. Zaldivar, Stewart, Castle, Daniel,

Spagnolo, and Morgan -- uniformly opine that Amick’s disability is

due   to   Amick’s   habit   of     smoking   approximately     one    pack   of

cigarettes per day for nearly forty years.

      The ALJ discredited reports from several of the employer’s

doctors “[b]ased on the failure of these physicians to discuss

whether or not Claimant’s chronic obstructive pulmonary disease was

related to his coal mine employment.”          (J.A. at 623.)    The ALJ also


                                       4
noted that the employer’s doctors “were discussing the presence of

simple coal workers’ pneumoconiosis as demonstrated on chest X-ray”

and not “legal pneumoconiosis.”           (J.A. at 623.)      Finally, the ALJ

discredited Dr. Morgan’s opinion because it was “contradictory to

the Act.”       (J.A. at 624.)      The ALJ credited Dr. Koenig’s report

because    it   gave    a   “very   thorough    and   complete   discussion    of

Claimant’s pulmonary condition.”               (J.A. at 623.)     The ALJ also

found Dr. Koenig’s report to be the “best reasoned.”                  (J.A. at

624.)     Based on this weighing of the medical reports, the ALJ

determined that Amick had proven a material change in condition

since his last claim for benefits, and on a review of all of the

evidence, the ALJ awarded benefits.             The Board affirmed, with one

judge dissenting.

     Westmoreland now petitions for review, arguing that                  the ALJ

erred by (1) failing to make a factual finding that Amick’s claim

was timely; (2) applying certain amended regulations to Amick’s

claim,    which   was   pending     on   the   date   the   regulations    became

effective; (3) applying the wrong test to determine whether Amick

established a material change in condition; (4) weighing the

medical opinion evidence; and (5) applying the default entitlement

date found in 20 C.F.R. § 725.503.




                                         5
                                        II.

                                        A.

      We consider first Westmoreland’s argument that the ALJ erred

by failing to make a factual                 finding that Amick’s claim was

timely.    Section 725.308 provides that “[a] claim for benefits . .

. shall be filed within three years after a medical determination

of    total   disability     due   to    pneumoconiosis       which   has   been

communicated to the miner . . . .”                  20 C.F.R. § 725.308(a).

Although Westmoreland argued that Amick’s claim was untimely, the

ALJ made no explicit findings regarding the timeliness of Amick’s

claim.    On appeal before the Board, Westmoreland once again argued

that Amick’s claim was untimely.             The Board reviewed the evidence

and held that Amick’s claim was timely because the time limitations

do not apply to duplicate claims and because even assuming that the

time limits apply, “this claim would not be time-barred because a

review of the record before us fails to demonstrate that claimant

received a written diagnosis of totally disabling pneumoconiosis.”

(J.A. at 632 (emphasis added).)               The Board did not mention the

ALJ’s failure to address the timeliness issue, but apparently

considered the ALJ’s decision on the merits to be a rejection of

Westmoreland’s timeliness arguments.             Westmoreland now argues that

the   ALJ’s   failure   to    make      explicit    findings    regarding   the

timeliness    of   Amick’s   claim      requires    remand.     Alternatively,




                                         6
Westmoreland    argues    that   the     Board   erred     in   requiring    the

communication with the miner to be written.

       Section 921(c) of Title 33, as incorporated by 30 U.S.C.A. §

932 (West 2000), provides us with jurisdiction to entertain this

petition.    That section provides, in relevant part:

       Any person adversely affected or aggrieved by a final
       order of the Board may obtain a review of that order in
       the United States court of appeals for the circuit in
       which the injury occurred . . . . [T]he court shall have
       jurisdiction of the proceeding and shall have the power
       to give a decree affirming, modifying, or setting aside,
       in whole or in part, the order of the Board and enforcing
       same to the extent that such order is affirmed or
       modified.

33 U.S.C.A. § 921(c)(2001). Although this statute does not set out

the standard of review in this court, we are guided by the fact

that the Board must affirm the ALJ’s findings of fact if they are

“supported by substantial evidence in the record considered as a

whole.” 33 U.S.C.A. § 921(b)(3); 20 C.F.R. § 802.301 (2001). Thus,

when     reviewing   a   claim   for    benefits   under    the   BLBA,     “[w]e

undertake an independent review of the record, as in the place of

the Board, to determine whether the ALJ’s factual findings were

based on substantial evidence in the record. We review questions of

law de novo.”    Toler v. Eastern Associated Coal Co., 43 F.3d 109,

114 (4th Cir. 1995) (citation omitted).

       Turning to the Board’s holdings, the Board first held that the

time limitations in 30 U.S.C.A. § 932(f) and 20 C.F.R. § 725.308 do

not apply to duplicate claims.         (J.A. at 632.)    Neither the statute


                                        7
nor the regulation, however, makes any distinction between initial

and duplicate claims.     The statute refers to “[a]ny” claim for

benefits and the regulation refers to “[a] claim” for benefits.

Based on this language, the Director, to whom we accord substantial

deference in the interpretation of the regulations, Pauley v.

BethEnergy   Mines,   Inc.,   501   U.S.       680,    697   (1991),   advocates

application of the time limitation to duplicate claims as well as

initial claims, and we agree.       In the context of duplicate claims,

we agree with the Tenth Circuit that

     a final finding by an Office of Workers’ Compensation
     Program adjudicator [or other final adjudicator] that the
     claimant is not totally disabled due to pneumoconiosis
     repudiates any earlier medical determination to the
     contrary and renders prior medical advice to the contrary
     ineffective to trigger the running of the statute of
     limitations.

Wyoming Fuel Co. v. Director, Office of Workers’ Comp. Program, 90

F.3d 1502, 1507 (10th Cir. 1996).

     Perhaps   anticipating    that       we   would     hold   that   the   time

limitations apply to duplicate claims, the Board held in the

alternative that Amick’s claim was timely because there was no

evidence of a written diagnosis communicated to Amick more than

three years before he filed his claim.                Westmoreland argues that

this holding is erroneous because there is no requirement that the

miner receive a written communication of his diagnosis.                 We need

not resolve this issue, however, because, as discussed below,




                                      8
Westmoreland does not cite to any evidence, written or otherwise to

trigger the statute of limitations.1

     Amick filed his claim in March 2000.             Accordingly, his claim

is untimely if Westmoreland can show that a diagnosis of total

disability due to pneumoconiosis was communicated to him before

March 1997.      The evidence related to the timeliness issue is not in

dispute, although the parties draw different inferences from that

evidence. The Progress Notes from the Rainelle Medical Center show

a diagnosis of “Black Lung 20%” in 1995 and “+CWP - 35 yrs in

mines” in 1996, (J.A. at 30, 31), but the Progress Notes do not

mention whether Amick was totally disabled or whether the diagnosis

was communicated to Amick.      At the hearing before the ALJ, on June

12, 2002, Westmoreland elicited testimony from Amick regarding

diagnoses from Drs. Klamath and Salvador.              According to Amick’s

testimony, Dr. Klamath told him he was totally disabled by Black

Lung “probably two or three years ago,” (J.A. at 594), and Dr.

Salvador told him there was “something wrong with [his] lungs . .

. probably been four years ago.”            (J.A. at 595.)        When asked

whether    Dr.    Salvador   told   him   that   he    was   disabled,   Amick

testified, “I just don’t remember whether he told me at that time

or not.”   (J.A. at 596.)     Based on Amick’s testimony in June 2002,

the communication from Dr. Salvador would have taken place around


     1
      Pursuant to 20 C.F.R. § 725.308(c), claims for benefits are
presumed to be timely, and the employer bears the burden of
production that a claim is untimely.

                                      9
June 1998, and the communication from Dr. Klamath would have taken

place around 1999 or 2000.         Because none of these dates is more

than three years before Amick filed this claim for benefits,

Westmoreland has not carried its burden to show that Amick’s claim

was untimely.

       Ideally, the ALJ would have made explicit the factual finding

that    the   communication   from   Dr.    Klamath    and/or   Dr.    Salvador

occurred in 1998 at the earliest.          Because we find, however, that

this is the only permissible inference to be drawn from the

undisputed evidence, we find that the ALJ’s failure to make these

factual findings is harmless error.         See Ngarurih v. Ashcroft, 371

F.3d 182, 190 n.8 (4th Cir. 2004) (holding that appeals courts need

not reverse agency action because of a harmless error).



                                      B.

       We turn next to Westmoreland’s argument that the ALJ erred in

applying      certain   amended   regulations   to    Amick’s   claim.       The

Secretary revised Parts 718 and 725 of the black lung regulations

in 2001.      See 20 C.F.R. Parts 718 and 725 (2004).               The amended

regulations     became   effective   on    January    19,   2001.     With   the

exception of certain sections identified in 20 C.F.R. § 725.2(c),

the amended regulations apply to claims pending as of January 19,

2001.      It is undisputed that the Secretary did not have the

authority to promulgate retroactive rules.            Accordingly, the only


                                      10
question is whether the challenged regulations are, in fact,

retroactive. Westmoreland argues that all of the amendments are

impermissibly retroactive as applied to claims pending as of

January 19, 2001.

     As an initial matter, we note that the D.C. Circuit considered

in   some   detail   challenges    to    specific   amended   black   lung

regulations and found several of the amended regulations to be

impermissibly retroactive.        See Nat. Mining Ass’n v. Dept. of

Labor, 292 F.3d 849 (D.C. Cir. 2002).           The ALJ in this case,

however, did not apply any of the regulations that the D.C. Circuit

found to be impermissibly retroactive.       (J.A. at 620 “I will apply

the sections of the newly revised version of Part 718 (i.e.

subparts A, C, and D) and 725 that took effect on January 19, 2001

that the court did not find impermissibly retroactive to the facts

of the instant matter.”.)

     We stated the general framework for a retroactivity analysis

in Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002).

     A new statute does not produce a retroactive effect
     “merely because it is applied in a case arising from
     conduct antedating the statute's enactment.” Landgraf,
     511 U.S. at 269. The question instead is “whether the new
     provision attaches new legal consequences to events
     completed before its enactment.” Id. at 270. A statute
     would attach new legal consequences to prior events if
     its application “would impair rights a party possessed
     when he acted, increase a party's liability for past
     conduct, or impose new duties with respect to
     transactions already completed.” Id. at 280.




                                    11
Chambers, 307 F.3d at 289.              The only properly raised argument

Westmoreland makes is that under amended 20 C.F.R. § 718.101(b),

different quality standards applied to Dr. Rasmussen’s examination

of Amick on June 23, 2000, and Dr. Zaldivar’s examination of Amick

on January 24, 2001.2           (Appellant’s Br. at 16.)            Westmoreland,

however, fails to elaborate on how             this regulation impaired its

rights,     increased     its     liability,     or     imposed     new    duties.

Westmoreland does not mention any other specific regulation.                   We

decline to review all of the amended regulations searching for some

retroactive effect in the absence of any argument from Westmoreland

regarding what new legal consequences the regulations impose.                  See

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)

(discussing abandonment of issues under Fed. R. App. P. 28(a)(9)

when Appellant    fails properly to raise and discuss issues in his

opening brief).       Moreover, we note that the ALJ did not fault

Westmoreland    for     failing    to   comply   with    any   of    the   amended

regulations.     Accordingly, the ALJ did not err in applying the

amended regulations to Amick’s claim that was pending on January

19, 2001.




     2
      Westmoreland’s only other explanation of how this regulation
impaired its rights was raised for the first time in oral argument.
Westmoreland argued that the application of revised 20 C.F.R.
§ 718.101(b) allowed the ALJ to discredit Dr. Spagnolo’s opinion
because Dr. Spagnolo believed pneumoconiosis to be a progressive
disease only.

                                         12
                                        C.

      Westmoreland next argues that the ALJ applied the wrong test

to   determine   whether     Amick    established      a   material    change      in

condition.   Westmoreland argues that, when considering a duplicate

claim, the ALJ must consider the old and new evidence together to

determine    whether   a    material     change       in   condition   occurred.

Westmoreland’s    argument       is   entirely    without    merit.      In    this

circuit, all that a miner must do to show a material change in

condition is “prove, under all of the probative medical evidence of

his condition after the prior denial, at least one of the elements

previously adjudicated against him.”             Lisa Lee Mines v. Director,

Office of Workers’ Comp. Programs, 86 F.3d 1358, 1362 (4th Cir.

1996) (en banc), cert. denied, 519 U.S. 1090 (1997)                (emphasis in

original).    We specifically rejected the Sixth Circuit’s further

requirement in Sharondale Corp. v. Ross, 42 F.3d 993, 999 (6th Cir.

1994) of “consideration of the evidence behind the earlier denial

to determine whether it ‘differ[s] qualitatively from the new

evidence.”   Id. at 1363 n.11.



                                        D.

      Westmoreland argues that the ALJ erred in determining that

Amick   established        the    existence      of    pneumoconiosis         by   a

preponderance of the evidence because the ALJ erred in determining

which physicians’ opinions to credit.            We agree.


                                        13
     The ALJ is charged with making factual findings, including
     evaluating the credibility of witnesses and weighing
     contradicting evidence. . . . Accordingly, we must affirm the
     Board if it properly determined that the ALJ’s findings are
     supported by substantial evidence, keeping in mind that “a
     reviewing body may not set aside an inference merely because
     it finds the opposite conclusion more reasonable or because it
     questions the factual basis.”

Doss v. Director, Office of Workers’ Comp. Programs, 53 F.3d 654,
658-59 (4th Cir. 1995) (quoting Smith v. Director, OWCP, 843 F.2d
1053, 1057 (7th Cir. 1988).

     To establish eligibility for benefits under 20 C.F.R. Part

718, a claimant must prove that (1) he has pneumoconiosis; (2) the

pneumoconiosis arose out of his coal mine employment; (3) he has a

totally disabling respiratory or pulmonary condition; and (4)

pneumoconiosis is a contributing cause to his total respiratory

disability.   Section 718.202(a) provides that

     [a] finding of the existence of pneumoconiosis may be
     made as follows:
     (1) A chest X-ray conducted and classified in accordance
     with § 718.102 may form the basis for a finding of the
     existence of pneumoconiosis . . . .
     . . . .
     (2) A biopsy or autopsy conducted and reported in
     compliance with § 718.106 may be the basis for a finding
     of the existence of pneumoconiosis . . . .
     (3) If the presumptions described in §§ 718.304, 718.305
     or § 718.306 are applicable, it shall be presumed that
     the miner is or was suffering from pneumoconiosis.
     (4) A determination of the existence of pneumoconiosis
     may also be made if a physician, exercising sound medical
     judgment, notwithstanding a negative X-ray, finds that
     the miner suffers or suffered from pneumoconiosis as
     defined in § 718.201. Any such finding shall be based on
     objective medical evidence such as blood-gas studies,
     electrocardiograms, pulmonary function studies, physical
     performance tests, physical examination, and medical and
     work histories. Such a finding shall be supported by a
     reasoned medical opinion.


                                14
20 C.F.R. § 718.202(a) (2004).                     There were no autopsy or biopsy

findings      in     this    case,     and    none    of     the    presumptions         apply.

Accordingly, the ALJ was left with the X-ray evidence and the

medical      opinion       evidence.         The    ALJ    concluded       that    the   X-ray

evidence       was       evenly     balanced,      and     thus,     did    not    establish

pneumoconiosis.             (J.A. at 622.)           The ALJ then considered the

medical opinion evidence, including the medical reports of Drs.

Zaldivar,      Spagnolo,          Stewart,    Castle,       Daniel,        Morgan,   Koenig,

Rasmussen, and Cohen.3

       Westmoreland first argues that the ALJ erred by discrediting

Drs. Zaldivar, Stewart, Castle, and Daniel based on the erroneous

finding that they failed to address whether coal mine dust exposure

contributed         to    Amick’s     chronic       obstructive       pulmonary      disease

(COPD).        The ALJ held that “[b]ased on the failure of these

physicians to discuss whether or not Claimant’s chronic obstructive

pulmonary disease was related to his coal mine employment, I accord

less       weight    to     their    conclusions          regarding    the     presence     of

pneumoconiosis           since    chronic     obstructive          pulmonary      disease   is

encompassed within the definition of pneumoconiosis for purposes of

entitlement to Black Lung benefits.”                      (J.A. at 623.)       This finding

is not supported by substantial evidence.                      A review of the record


       3
      We note that after determining that the medical opinion
evidence supported a finding of pneumoconiosis, the ALJ properly
considered the medical opinion evidence together with the equivocal
X-ray evidence to determine whether pneumoconiosis was present.
See Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000).

                                              15
reveals that Drs. Zaldivar, Stewart, and Castle each found that

Amick’s COPD was not related to his coal mine employment.                   (See

J.A. at 248 (Zaldivar - “There is no evidence of coal workers’

pneumoconiosis, nor any dust disease of the lungs in this case.”)

(emphasis added); J.A. at 282 (Castle - “These findings are not in

keeping with coal mine dust induced lung disease.”) (emphasis

added); J.A. at 352 (Stewart - “[T]his disability impairment is

secondary to chronic obstructive pulmonary disease from smoking as

well as the asthmatic component.               It is not related in whole or in

part    secondary      to   coal     dust        exposure   or     coal   workers

pneumoconiosis.” (emphasis added).)

       The Board appears to have recognized that the ALJ’s finding

was factually incorrect because it noted that “[f]urther review of

the administrative law judge’s Decision and Order . . . shows that

he was aware that these doctors discussed the cause of claimant’s

chronic obstructive pulmonary disease and that he fully set forth

his    reasons   for   finding     that    their     conclusions   that   chronic

obstructive pulmonary disease was due to smoking, not coal mine

employment, were unreasoned.”             (J.A. at 635.)         It is true that

“further review” of the ALJ’s decision reveals passages in the

“Medical Evidence” section where the ALJ noted that the doctors

opined that Amick’s COPD was not due to coal dust exposure, but the

ALJ was merely describing the reports in this section and not

weighing the evidence.       When giving his reasons for discrediting


                                          16
the doctors’ opinions, the ALJ specifically relied on the failure

of the doctors to discuss the etiology of Amick’s COPD.

      The ALJ also discredited Dr. Spagnolo and several other

physicians4 for failing to consider the medical literature cited by

Dr. Koenig and for discussing only the presence of simple coal

workers’ pneumoconiosis as demonstrated on chest X-ray.        According

to the ALJ, “[t]hey did not . . . discuss legal pneumoconiosis, nor

did they counter Dr. Koening’s [sic] findings that the chronic

obstructive pulmonary disease present was due, at least in part, to

coal mine employment and coal dust exposure.”5          (J.A. at 623.)

First, as the dissenting Board judge noted, if a physician provides

a reasoned opinion based on his evaluation of the evidence, he need

not also address the conclusions of other physicians.         Second, as

discussed above, the factual finding that Drs. Zaldivar, Stewart,

and   Castle   did   not   address   legal   pneumoconiosis   is   simply


      4
      The ALJ does not make clear which other physicians he
includes with Dr. Spagnolo. We have assumed that the ALJ intended
to include Drs. Zaldivar, Stewart, Castle, and Daniel.
      5
      “Legal” pneumoconiosis is a statutory term referring to
“any ‘chronic pulmonary disease resulting in respiratory or
pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.’ ” Gulf & W.
Indus. v. Ling, 176 F.3d 226, 231 (4th Cir. 1999) (quoting and
adding emphasis to 20 C.F.R. § 718.201 (2003)). “The term is thus
broader than ‘medical’ or ‘clinical’ pneumoconiosis, as ‘legal’
pneumoconiosis also encompasses ‘diseases whose etiology is not the
inhalation of coal dust, but whose respiratory and pulmonary
symptomatology have nonetheless been made worse by coal dust
exposure.’ ” Lewis Coal Co. v. Director, Office of Workers’ Comp.
Programs, 373 F.3d 570, 577 (4th Cir. 2004) (quoting Clinchfield
Coal Co. v. Fuller, 180 F.3d 622, 625 (4th Cir.1999)).

                                     17
incorrect.           Dr.     Spagnolo          also     considered        whether      legal

pneumoconiosis was present.                   (See J.A. at 319 (Spagnolo - “Mr.

Amick does not have a chronic restrictive or obstructive pulmonary

impairment arising out of coalmine [sic] employment and further he

does not have any chronic disease of the lung arising from his coal

mine employment.”).

       The   Board       attempted       to    bolster       the    ALJ’s     findings    by

concluding that the ALJ “implicitly” found that Spagnolo, Zaldivar,

and Castle erred by not considering the progressive nature of

pneumoconiosis.       (J.A. at 635-36.)               The ALJ, however, did not give

this as a reason for discrediting the doctors’ opinions, and we

must “judge the propriety of the [ALJ’s] action solely by the

grounds invoked by the [ALJ].”                 SEC v. Chenery, 332 U.S. 194, 196

(1947)(sustaining          SEC     order      upon     review      of   the    Commission’s

grounds).

       Westmoreland also argues that the ALJ erred in discrediting

Dr. Morgan. The ALJ’s conclusion with regard to Dr. Morgan suffers

from   the   same     flaw       as   its      conclusions         regarding     the   other

physicians.          The     ALJ      discredited        Dr.       Morgan’s     report    as

contradictory       to     the     Act     because      “[h]e      stated     the   medical

authorities and studies which he credits are against a finding that

emphysema     and    airway        obstruction         are    related     to    coal     mine

employment.” (J.A. at 624.) As the Board recognized, Dr. Morgan’s

report was not contradictory to the Act because “Dr. Morgan did not


                                               18
state that an obstructive impairment could not arise out of coal

mine       employment,”    he   merely   stated   that   Amick’s    obstructive

component did not arise out of coal mine employment.               (J.A. at 636;

See J.A. at 387 (Morgan’s report - “[C]oal miners develop airways

obstruction       and     bronchitis.     They    also   develop    focal   dust

emphysema.       The latter, however, is not the same condition as is

centriacinar emphysema which results from cigarette smoking.”).)

The Board tries to fix the ALJ’s error by holding that the ALJ also

discredited Dr. Morgan because he based his opinion on the lack of

radiographic evidence of dust disease and the progressive nature of

Amick’s disease.        The ALJ’s opinion shows that the ALJ was aware of

the contents of Dr. Morgan’s opinion, but the only reason given by

the ALJ for discrediting him is that his opinion was contradictory

to the Act.

       Although the Board’s conclusions about the credibility of the

doctors might be supported by substantial evidence,6 it is the

ALJ’s factual findings that we must review.              The reasons that the

ALJ gave for discrediting the doctors’ opinions are not supported

by substantial evidence. Accordingly, we vacate the ALJ’s decision

and remand for reconsideration of the medical opinion evidence. We




       6
      We note that a conclusion that a miner does not suffer from
legal pneumoconiosis based on a negative x-ray might be construed
as hostile or contradictory to the BLBA because 20 C.F.R. § 718.201
allows a miner to prove pneumoconiosis based on medical opinion
evidence even in the absence of qualifying X-rays.

                                         19
note that on remand, the ALJ should be more explicit about the

relative credentials of the doctors as well.

     Because we vacate the award of benefits, we need not address

Westmoreland’s argument that the ALJ erred by awarding benefits

payable beginning with the month in which Amick filed his claim,

pursuant to the default entitlement date provided for in 20 C.F.R.

§ 725.503.



                               III.

     For the foregoing reasons, we vacate the award of benefits and

remand to the ALJ for reconsideration of the medical opinion

evidence.

                                               VACATED AND REMANDED




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