                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-1516



LINDA J. MORGAN, widow of Noble Morgan,

                                                           Petitioner,

           versus


DIRECTOR, OFFICE OF WORKERS’        COMPENSATION
PROGRAMS; ELKAY MINING COMPANY,

                                                          Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(04-473-BLA)


Argued:   September 27, 2007             Decided:    December 20, 2007


Before NIEMEYER and MICHAEL, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Ellis wrote the
opinion, in which Judge Niemeyer and Judge Michael joined.


ARGUED: Leonard Joseph Stayton, Inez, Kentucky, for Petitioner.
Ashley M. Harman, JACKSON & KELLY, P.L.L.C., Morgantown, West
Virginia, for Respondents. ON BRIEF: Douglas A. Smoot, JACKSON &
KELLY, P.L.L.C., Morgantown, West Virginia, for Respondent Elkay
Mining Company.


Unpublished opinions are not binding precedent in this circuit.
ELLIS, Senior District Judge:

     Petitioner Linda Morgan seeks review of a decision and order

of the United States Department of Labor Benefits Review Board

(Board) affirming the Administrative Law Judge’s (ALJ) denial of

her claim for survivor’s benefits under the Black Lung Benefits

Act, 30 U.S.C. § 901 et seq. (the Act).       Because the factual

findings of the ALJ are supported by substantial evidence and the

legal conclusions of both the ALJ and the Board are consistent with

applicable law, we affirm.



                                I.

     Noble Morgan (Morgan), a former coal miner, died on July 7,

1999, at the age of 61.   During his years of employment with the

coal mines, Morgan engaged primarily in underground work as a roof

bolter, working in dusty conditions. He also worked as a carpenter

for several years, and then later as a security guard for a coal

mine, where he was not exposed to a significant amount of coal

dust. Morgan filed two applications for black lung benefits during

his lifetime, the first in 1973 and the second in 1997.    Both of

Morgan’s claims for living black lung benefits were denied by the

District Director.

     Two years prior to his death, Morgan was diagnosed with colon

cancer.   Although he was treated for the cancer and underwent

chemotherapy, the medical evidence reflects that at some point


                                2
prior to his death, the cancer may have metastasized to his spine

and possibly other areas, as well.                 Additionally, the record

reflects that Morgan suffered from congestive heart failure and

smoked tobacco for more than forty-five years at the rate of a pack

of cigarettes or more per day.

       Morgan’s death certificate lists his immediate cause of death

as “lobar pneumonia” and indicates that an autopsy was performed of

the “lung only.”       J.A. 92.      The autopsy report was issued by Dr.

Alex Racadag on July 12, 1999, five days after Morgan’s death.

Based on his examination of Morgan’s lung tissue, Dr. Racadag

rendered     a   diagnosis      of   “acute    bronchopneumonia         and    lobar

pneumonia,” “mild simple coal worker’s pneumoconiosis with focal

emphysema” and “pleural adhesions,” noting simply, as a “comment,”

that   these     conditions     “probably     contributed   to    the    patient’s

morbidity and subsequent demise.”             J.A. 93.

       On July 29, 1999, petitioner, Morgan’s surviving spouse, filed

a timely claim for survivor’s benefits under the Act.                   On October

4, 1999, the District Director denied petitioner’s claim for

survivor’s benefits.         Petitioner then requested a formal hearing

before the Office of Administrative Law Judges and a de novo

hearing was eventually held before an ALJ on February 28, 2002.                   On

August 27, 2002, following the presentation of evidence and the

submission       of   written     closing     arguments,    the     ALJ       denied

petitioner’s claim for black lung survivor’s benefits.                   J.A. 352-


                                        3
73.     The   ALJ’s   August     27,   2002   decision    included     a    lengthy

description of Morgan’s work and medical history, as well as a

detailed summary of the medical evidence in the administrative

record,    including     chest    x-rays,     pulmonary     function       studies,

arterial blood gas studies and various physicians’ reports. In the

end, the ALJ found that petitioner had established the existence of

legal pneumoconiosis on the basis of chest x-ray and certain

medical opinion evidence, but concluded nonetheless that petitioner

had    failed   to     establish       that   the   pneumoconiosis          caused,

substantially    contributed       to,   or   hastened    Morgan’s     death,     a

required element for entitlement to survivor’s benefits under the

Act.    J.A. 368-71.

       Petitioner     sought   review    of   the   ALJ’s    August    27,     2002

decision, arguing essentially that the particular medical opinions

relied on by the ALJ to support his causation conclusion could

carry little or no weight given that these physicians did not

diagnose Morgan with pneumoconiosis, as did the ALJ.                       Thus, on

September 12, 2003, the Board remanded petitioner’s claim to the

ALJ for further consideration in light of Scott v. Mason Coal Co.,

289 F.3d 263 (4th Cir. 2002), wherein we recognized that when a

medical opinion is in “direct contradiction” to the ALJ’s finding

that a miner suffers from pneumoconiosis arising out of his coal

mine employment, the ALJ can give weight to that opinion only if he

provides specific and persuasive reasons for doing so, and even


                                         4
then, the opinion can “carry little weight, at the most.”                   Id. at

269.

       On remand, and by Order dated February 12, 2004, the ALJ again

denied petitioner’s request for survivor’s benefits, concluding, as

before, that petitioner was unable to sustain her burden of proving

that pneumoconiosis caused or contributed to Morgan’s death.                   J.A.

410.       In reaching this result, the ALJ relied primarily on the

causation opinions of four physicians, namely Dr. Everett F.

Oesterling, Dr. P. Raphael Caffrey, Dr. Stephen T. Bush and Dr.

Samuel V. Spagnolo.1             Specifically responding to the concerns

expressed by the Board in their remand order, the ALJ found, inter

alia, that these four physicians had diagnosed symptoms consistent

with, and therefore not in direct contradiction to, the ALJ’s

finding of legal pneumoconiosis and thus, that their opinions could

be relied on under Scott.            J.A. 408-10.       A brief summary of these

four physicians’ findings illustrates this point.

       First,       Dr.   Oesterling,   a       pathologist   board-certified   in

anatomic and clinical pathology as well as nuclear medicine,

reviewed Morgan’s autopsy slides and medical records. He found the

“most significant aggregate of mine dust deposition” in Morgan’s

lung       tissue   to    be   approximately      0.5   millimeters   in   greatest


       1
      The ALJ either discounted or rejected the opinions of several
other physicians, including Dr. Racadag, Dr. Francis H.Y. Green,
Dr. Richard Naeye, Dr. Erika Crouch, Dr. Gregory Fino, Dr. James R.
Castle, Dr. Mohammed Ranavaya, Dr. D.L. Rasmussen and Dr. Edward
Velasco.

                                            5
dimension,    a   size     “not      sufficient      to    warrant    a     diagnosis   of

coalworkers’      pneumoconiosis.”                J.A.    206-07.      Dr.    Oesterling

reported that he observed “limited black pigment contained within

a loose matrix of pink fibers” in the lung tissue; he also

identified    “abundant         numbers      of    elongate       birefringent    silica

crystals,” noting specifically that “the dust is indeed of coalmine

origin.”     J.A.    207.       He nonetheless opined that “[d]espite the

presence of this mine dust, the quantities are insufficient to

warrant    more     than    a     comment         that    these     lungs    demonstrate

anthracotic pigmentation.”              J.A. 207.           Noting the presence of

pneumonia and emphysema in Morgan’s lungs, Dr. Oesterling found

those conditions attributable to Morgan’s long-time cigarette use

rather than to his exposure to coal dust.                         He further concluded

that the extensive pneumonia that led to Morgan’s death was caused

by congestive heart failure, cancer, and the resultant therapies

associated with cancer.           Finally, and particularly relevant here,

he concluded that “the limited structural change [in the lungs] due

to mine dust exposure could have in no way hastened or contributed

to [Morgan’s] death.”           J.A. 209.         Put differently, Dr. Oesterling

concluded that “mine dust exposure could not have produced lifetime

disability    nor    could      it    have    in     any    way    contributed    to    or

accelerated [Morgan’s] death.”               J.A. 207.

     Dr. Caffrey, also a board-certified pathologist, observed a

“moderate amount of anthracotic pigment with a few tiny hilanized


                                             6
nodules” when examining the autopsy slides of Morgan’s lung tissue.

J.A. 186.      He likewise observed “some birefringent particles

present” in the lung tissue, noting that “the changes on the left

side are very minimal” and that “in the lymph node tissues there is

only a small amount present.”          J.A. 186.   Dr. Caffrey further noted

that “[t]here is only a very minimal amount of anthracotic pigment

present and most of this is subpleurally located with a very

minimal    amount    around     a    few   blood   vessels    and   respiratory

bronchioles.”       J.A. 187.       He stated definitively that he did not

see “any anthracotic pigment with associated reticulin deposits and

focal emphysema.”      J.A. 187.       Thus, he concluded that “[t]here is

no evidence of silicosis within the lung tissue, there is no

evidence of complicated pneumoconiosis, and there is no evidence of

simple coal worker’s pneumoconiosis either in my opinion.”                J.A.

187.      On this issue, he specifically stated, inter alia, the

following:

       It is my opinion...that Mr. Noble Morgan definitely did
       not have coal worker’s pneumoconiosis or any other
       occupational lung disease. I say this because there is
       only a very minimal amount of anthracotic pigment within
       the sections of lung tissue. I definitely do not agree
       with the Autopsy Pathologists’s diagnosis of mild simple
       worker’s pneumoconiosis and I definitely do not agree
       with...Frances H.Y. Green’s diagnosis of simple coal
       worker’s pneumoconiosis of mild severity.

J.A. at 189.     Dr. Caffrey concluded that “the minimal amount of

anthracotic     pigment,      coal    dust,    found   in    [Morgan’s]   lungs

definitely did not cause him pulmonary or respiratory impairment


                                           7
and did not cause him any disability nor did it play any role in,

or hasten, his death.”           J.A. 191.

      Dr.     Bush,     a    board-certified      anatomical      and    clinical

pathologist, likewise acknowledged the presence of coal mine dust

in   Morgan’s lung tissue, but concluded that “the degree of change

from coal mine dust in the lungs is too limited in degree and

extent to have any contribution to the events leading to death.”

J.A. 198.     He further concluded that “[t]he coal dust deposited in

the lungs of Mr. Morgan produced no barrier to lung function and

therefore could not have hastened death by any means including a

contribution     to   hypoxemia.”          J.A.   198.      In   reaching   these

conclusions, Dr. Bush noted, inter alia, that

      [t]he reports of the autopsy prosector [Dr. Racadag] and
      Dr. Green exaggerate the microscopic changes in the lung
      related to dust deposition. In addition, they exaggerate
      the effects of these proposed changes on lung function.
      They incorrectly force a theory of causation. Mr. Morgan
      died as a result of carcinoma and its complications, a
      straightforward and unfortunately common event.

J.A. 198.

      Finally, Dr. Spagnolo, a board-certified physician in internal

medicine and pulmonary disease, concluded that Morgan’s death was

“a   direct    result       of   his   invasive   and    metastatic     cancer   in

association with complications related to cancer chemotherapy, i.e.

bronchopneumonia, lung fibrosis and probable sepsis.”                   J.A. 128.

While Dr. Spagnolo acknowledged that Morgan experienced symptoms of

“coughing, wheezing and sputum production,” he attributed these


                                          8
symptoms to Morgan’s long-term cigarette smoking.          Id.     He also

attributed Morgan’s “exertional chest pain, two-pillow orthopnea

and ankle edema” to his underlying coronary artery disease.            Id.

Dr. Spagnolo concluded that Morgan had no “pulmonary/respiratory

impairment attributable to pneumoconiosis or related to his prior

coalmine employment” and that “[n]one of his symptoms, complaints,

or medical conditions is related to his coal dust exposure or

coalmine employment.”    J.A. 129.       He further found that there was

“not sufficient evidence in the lung tissue to justify a diagnosis

of coal workers’ pneumoconiosis.”        J.A. 134.   On the basis of his

review, Dr. Spagnolo concluded that “Morgan’s death was unrelated

to and not hastened, even briefly, by pneumoconiosis nor was

pneumoconiosis a contributing factor in his death.”              J.A. 129.

Alternatively, Dr. Spagnolo opined that even assuming Morgan had

some degree of pneumoconiosis, any such “dust-related lung disease

was far too limited to have contributed to or hastened...death.”

J.A. 134.

     Based primarily on the causation opinions of Drs. Oesterling,

Caffrey, Bush and Spagnolo, the ALJ concluded that while Morgan’s

legal pneumoconiosis had been established for purposes of the Act,

petitioner had not sustained her burden of proving this condition

caused or hastened Morgan’s death as required for petitioner to be

entitled    to   black   lung   survivor’s     benefits.     J.A.     410.




                                     9
Petitioner’s claim was therefore denied by the ALJ on remand, by

Order dated February 12, 2004.        J.A. 411.

     Following the ALJ’s second denial of petitioner’s claim for

black lung survivor’s benefits, petitioner again appealed the ALJ’s

decision to the Board.          This time, the Board affirmed the ALJ’s

denial of benefits, finding specifically that the ALJ’s decision

“is supported by substantial evidence and is in accordance with

law.”     J.A. 449.   Petitioner then filed a timely appeal of the

Board’s March 30, 2005 Decision and Order to this court.



                                     II.

        We review the Board’s decision upholding the ALJ’s denial of

survivor’s benefits to petitioner to determine whether the Board

correctly found that the ALJ’s factual findings were supported by

substantial evidence in the record.          See Bill Branch Coal Corp. v.

Sparks, 213 F.3d 186, 190 (4th Cir. 2000).              To do so, we review the

record    independently,    assessing      the    ALJ’s   findings    under     the

substantial evidence standard.         Scott, 289 F.3d at 267.           In this

regard, “[s]ubstantial evidence consists of sufficient relevant

evidence    to   convince   a   reasonable       mind   that   the   evidence    is

adequate to support a conclusion.” Id. (citations omitted). Thus,

applying this standard, “we must affirm the Board if it properly

determined that the ALJ’s findings are supported by substantial

evidence.” Doss v. Director, Office of Workers’ Comp. Programs, 53


                                      10
F.3d 654, 659 (4th Cir. 1995).   We review the ALJ’s and the Board’s

conclusions of law de novo.     See Scott v. Mason Coal Co., 60 F.3d

1138, 1140 (4th Cir. 1995).



                                 III.

       The regulatory standards applicable to petitioner’s claim are

clear.     Specifically, to be entitled to survivor’s benefits under

the Act, a petitioner must establish that the coal miner’s death

was “due to pneumoconiosis” in accordance with 20 C.F.R. § 718.205.

In this regard, for purposes of adjudicating survivors’ claims

filed, as here, on or after January 1, 1982, death is considered to

be “due to pneumoconiosis” if any of the following criteria are

met:

       (1) Where competent medical evidence establishes that
       pneumoconiosis was the cause of the miner’s death, or

       (2) Where pneumoconiosis was a substantially contributing
       cause or factor leading to the miner’s death or where the
       death was caused by complications of pneumoconiosis, or

       (3) Where the presumption set forth at § 718.304 is
       applicable.2

20 C.F.R. § 718.205(c).     Thus, the regulations expressly provide

that “survivors are not eligible for benefits where the miner’s


       2
      It is undisputed that this presumption does not apply here.
Section 718.304 provides, in pertinent part, that “[t]here is an
irrebuttable presumption that...a miner’s death was due to
pneumoconiosis...if such miner...suffered from a chronic dust
disease of the lung which,” when diagnosed by chest x-ray, biopsy,
autopsy or other means, yields certain medical findings not present
in the instant case. 20 C.F.R. § 718.304.

                                  11
death was caused by a traumatic injury or the principal cause of

death was a medical condition not related to pneumoconiosis, unless

the evidence establishes that pneumoconiosis was a substantially

contributing cause of death,” that is, if the pneumoconiosis

“hasten[ed] the miner’s death.”    20 C.F.R. § 718.205(c).

     For purposes of the Act, “pneumoconiosis” means “a chronic

dust disease of the lung and its sequelae, including respiratory

and pulmonary impairments, arising out of coal mine employment.”

20 C.F.R. § 718.201(a). This definition includes both the medical,

or “clinical” definition of pneumoconiosis, as well as the broader

statutory definition of “legal” pneumoconiosis.         Id.; see also

Island Creek Coal Co. v. Compton, 211 F.3d 203, 210 (4th Cir.

2000). In this regard, the term “legal pneumoconiosis” includes,

but is not limited to, “any chronic restrictive or obstructive

pulmonary disease arising out of coal mine employment.”        20 C.F.R.

§ 718.201(a)(2).3   Moreover, the phrase “arising out of coal mine


     3
      Clinical pneumoconiosis,    in   contrast,   is   more   narrowly
defined as consisting

     of those diseases recognized by the medical community as
     pneumoconioses, i.e., the conditions characterized by
     permanent   deposition   of   substantial    amounts   of
     particulate matter in the lungs and the fibrotic reaction
     of the lung tissue to that deposition caused by dust
     exposure in coal mine employment.        This definition
     includes, but is not limited to, coal workers’
     pneumoconiosis,     anthracosilicosis,      anthracosis,
     anthrosilicosis, massive pulmonary fibrosis, silicosis or
     silicotuberculosis, arising out of coal mine employment.

20 C.F.R. § 718.201(a)(1).

                                  12
employment” includes “any chronic pulmonary disease or respiratory

or pulmonary impairment significantly related to, or substantially

aggravated by, dust exposure in coal mine employment.”                          20 C.F.R.

§ 718.201(b).        Given this, it is clear, for example, that “a

medical diagnosis finding no coal workers’ pneumoconiosis is not

equivalent to a legal finding of no pneumoconiosis,” as the legal

definition     of    pneumoconiosis          set    forth      in     §       718.201   is

significantly broader than the medical definition of coal workers’

pneumoconiosis.       Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 821

(4th Cir. 1995).       Indeed, legal pneumoconiosis, unlike medical or

clinical 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, OWCP, 373 F.3d 570,

577    (4th Cir. 2004) (quoting Clinchfield Coal Co. v. Fuller, 180

F.3d    622,   625    (4th   Cir.     1999)).            In   other       words,     legal

pneumoconiosis has “a broad definition, one that effectively allows

for    the   compensation    of     miners    suffering       from        a   variety   of

respiratory     problems     that    may     bear    a    relationship          to   their

employment in the coal mines.”             Rose v. Clinchfield Coal Co., 614

F.2d    936, 938 (4th Cir. 1980).            Legal pneumoconiosis “includes,

for    example,     emphysema,      asthma,    and       chronic      bronchitis,       if

triggered by coal mine employment.”                 Dante Coal Co. v. Director,




                                        13
OWCP, 164 Fed. Appx. 338, 341 n.2 (4th Cir. 2006) (citations

omitted).

       These principles, applied to the administrative record at

issue   here,   compel      the   conclusion    that   the    ALJ’s      denial   of

petitioner’s claim for survivor’s benefits under the Act was

supported by substantial evidence and must be affirmed.                       And,

significantly,    although        petitioner   contends      the   ALJ    erred   in

relying on the opinions of Drs. Oesterling, Caffrey, Bush and

Spagnolo, given that these physicians did not explicitly diagnose

Morgan with pneumoconiosis — legal or otherwise — it is clear the

ALJ’s reliance on these opinions was entirely proper and consistent

with    Scott   and   its    progeny.        Indeed,   unlike      the   situation

contemplated in Scott, this is not a case where the doctors relied

on by the ALJ “opined that [Morgan] did not have legal or medical

pneumoconiosis, did not diagnose any condition aggravated by coal

dust, and found no symptoms related to coal dust exposure.” Scott,

289 F.3d at 269 (emphasis added).               Instead, all four of these

physicians “found symptoms consistent with legal pneumoconiosis,”

including, for example, emphysema, coughing, wheezing, and the

undisputed presence of coal dust in Morgan’s lung tissue.                   Scott,

289 F.3d at 269; see supra Part I.           Thus, because Drs. Oesterling,

Caffrey, Bush and Spagnolo did not premise their causation opinions

on an “erroneous finding” contrary to the ALJ’s finding of legal

pneumoconiosis, and because their respective medical findings did


                                        14
not   necessarily     contradict     the     ALJ’s     finding    of   legal

pneumoconiosis, the ALJ did not err in relying on those physicians’

opinions with respect to the issue of causation.             See Hobbs, 45

F.3d at 821; Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th

Cir. 1995).

      In the end, the medical opinions relied on by the ALJ provide

more than substantial evidence to support the ALJ’s conclusion that

Morgan’s legal pneumoconiosis did not contribute to or hasten his

death in accordance with 20 C.F.R. § 718.205(c).            Scott, 289 F.3d

at 267. Put differently, the opinions of Drs. Oesterling, Caffrey,

Bush and Spagnolo constitute “sufficient relevant evidence to

convince   a   reasonable   mind   that    the   evidence   is   adequate   to

support” the ALJ’s denial of petitioner’s claim for black lung

survivor’s benefits under the Act.        Id.    For this reason, the ALJ’s

February 12, 2004 decision must be affirmed.



                                                                    AFFIRMED




                                    15
