               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0391n.06
                            Filed: June 12, 2007

                                          No. 06-4087

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DARRELL R. CURTIS,                              )
                                                )
       Petitioner,                              )
                                                )         ON PETITION FOR REVIEW
               v.                               )         FROM THE BENEFITS REVIEW
                                                )         BOARD, UNITED STATES
PEABODY COAL COMPANY and                        )         DEPARTMENT OF LABOR
DIRECTOR, OFFICE OF WORKERS’                    )
COMPENSATION PROGRAMS, UNITED                   )
STATES DEPARTMENT OF LABOR,                     )
                                                )
       Respondents.                             )
                                                )
____________________________________



Before: MERRITT and GRIFFIN, Circuit Judges; and LAWSON, District Judge.*

       PER CURIAM.

       Petitioner Darrell Ray Curtis appeals the Decision and Order – Denial of Benefits of

Administrative Law Judge (“ALJ”) Robert L. Hillyard and the subsequent affirmation of the benefits

denial by the Benefits Review Board of the United States Department of Labor (“Benefits Review

Board”) on his benefits claims pursuant to the Federal Coal Mine Health and Safety Act of 1969, as



       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.

                                               -1-
Case No. 06-4087
Curtis v. Peabody Coal Company


amended, 30 U.S.C. § 901 et seq. (“the Act”). Curtis contends that the ALJ’s decision to deny him

benefits was unsupported by substantial evidence, not rational, and unsupported by law.

Accordingly, Curtis urges this court to reverse.

       For the reasons set forth below, we affirm.

                                                   I.

       The crux of petitioner Darrell Curtis’ federal benefits claim is whether he is entitled to federal

black lung benefits. Pursuant to the Act, and the regulations issued thereunder, benefits are awarded

to persons who are totally disabled within the meaning of the Act due to pneumoconiosis. 30 U.S.C.

§§ 901, et seq. as amended. Pneumoconiosis is a dust disease of the lungs arising out of employment

in the coal mines, a disease more commonly known as “black lung.” 30 U.S.C. § 902(b). The

defining characteristic of pneumoconiosis for the purpose of the Act is that its symptoms arise as a

consequence of being exposed to dust while working in coal mines. 20 C.F.R. § 718.201(b)

(explaining that “a disease ‘arising out of coal mine employment’ includes any chronic pulmonary

disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated

by, dust exposure in coal mine employment”).

       Curtis filed his claim for federal black lung benefits in September 2002, after having worked

twenty-five years as a coal truck driver for Peabody Coal Company (“Peabody”). Curtis testified that

during his employment with Peabody, he was exposed to coal dust on a daily basis. Curtis retired

from mining in April 1995, when he was laid off from work, but continued to work as a jailer, a job

he held between 1990 and 1995. Curtis testified that he has smoked off and on since the late 1960's


                                                   -2-
Case No. 06-4087
Curtis v. Peabody Coal Company


at a rate of up to two packs per day. After examining the smoking histories contained in the medical

reports in conjunction with Curtis’ testimony, the ALJ found that Curtis had a smoking history of

over thirty-five years at a rate of up to two packs of cigarettes per day.

       Following the filing of Curtis’ claim, the Department of Labor (“DOL”) arranged for a

pulmonary examination for Curtis and collected his work history and medical evidence. On

October 16, 2003, the DOL District Director proposed that Curtis’ claim be awarded and ordered the

requisite benefit payments. Peabody requested a hearing before an ALJ with regard to this decision.

Id. A formal hearing was held before the ALJ on March 8, 2005, where four chest x-rays placed into

evidence received conflicting interpretations by examining physicians. On September 7, 2005, the

ALJ issued a decision acknowledging Curtis’ total disability, but finding that the proffered evidence

failed to establish the existence of pneumoconiosis as defined by 20 C.F.R. § 718.202(a)(1)-(4) and

thus could not establish an entitlement to benefits pursuant to the Act. The five physicians who

commented upon Curtis’ condition were: Dr. William O’Bryan, a Board-Certified Internist,

Pulmonologist, and B- reader; Dr. Glen Baker, a Board-Certified Internist, Pulmonologist, and B-

reader; Dr. William C. Houser, a Board-Certified Pulmonologist, Critical Care Specialist, and B-

reader; Dr. Lawrence Repsher, a Board-Certified Internist, Pulmonologist, and B- reader; and, Dr.

Valentino Simpao, an examiner for the U.S. Department of Labor. After analyzing the findings of

each physician, the ALJ concluded that, for a variety of reasons, the three favorable opinions were

inadequately supported and / or not well-reasoned. Instead, the ALJ relied upon the negative

opinion of Dr. O’Bryan, stating that “Dr. O’Bryan, a Pulmonary Specialist and B reader, provides


                                                  -3-
Case No. 06-4087
Curtis v. Peabody Coal Company


a well-reasoned opinion, based upon objective medical evidence, that the Claimant does not suffer

from pneumoconiosis.” Accordingly, the ALJ denied Curtis benefits.

       Curtis appealed the ALJ’s decision to the Benefits Review Board, contending that the ALJ

should have found the existence of pneumoconiosis based on the x-ray and majority of medical

opinion evidence. Further, Curtis argued that the ALJ should have found that the pneumoconiosis

arose out of his coal mining employment. Citing its limited scope of review, the Benefits Review

Board issued a per curiam opinion on June 20, 2006, stating that it found “no merit in claimant’s

contentions.” In a written opinion, it determined that the ALJ “rationally credited the greater number

of negative readings from those physicians with superior qualifications in the field of radiology to

find that the x-ray evidence failed to establish the existence of pneumoconiosis.” Further, “the [ALJ]

acted within his discretion in crediting the opinion of Dr. O’Bryan, a board-certified pulmonologist,

that claimant did not have either clinical or legal pneumoconiosis.” Thus, the Benefits Review

Board affirmed the decision of the ALJ.

       Curtis timely appealed.

                                                 II.

       On appeal to this court, Curtis proffers the same arguments he raised before the Benefits

Review Board; namely, that the ALJ’s decision was unsupported by substantial evidence, irrational,

and unsupported by law. Specifically, Curtis contends that the “quantity and quality of the chest x-

ray evidence of record establishes pneumoconiosis by a preponderance of the x-ray evidence,” and




                                                 -4-
Case No. 06-4087
Curtis v. Peabody Coal Company


that “the claimant has established the existence of pneumoconiosis on the basis of the medical

opinions of record.”

       As the respondent states, this appeal rests exclusively on Curtis’ request that this court

reweigh the evidence proffered at the hearing before the ALJ. This court’s “‘role in reviewing an

ALJ’s decision is limited to determining whether substantial evidence supports the ALJ’s

conclusions.’” Jericol Mining, Inc. v. Napier, 301 F.3d 703, 708 (6th Cir. 2002) (quoting Gray v.

SLC Coal Co., 176 F.3d 382, 387 (6th Cir. 1999)). “We will not reverse the conclusions of an ALJ

that are supported by substantial evidence, even if the facts permit an alternative conclusion.”

Peabody Coal Co. v. Groves, 277 F.3d 829, 833 (6th Cir. 2002) “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support [the ALJ’s] conclusion.”

Id. (internal quotation marks omitted). Where the decision of the ALJ has been reviewed by the

Benefits Review Board, the question presented to this court remains the same. Campbell v.

Consolidation Coal Co., 811 F.2d 302, 303 (6th Cir. 1987). The standard of review “does not ask

whether the Board’s decision is supported by substantial evidence, but whether the Board was correct

in concluding that the ALJ’s factual findings were or were not supported by substantial evidence.”

Hunt v. Kentland Elkhorn Coal Corp. 159 F. App’x 659, 660 (6th Cir. 2005) (citation and internal

quotation marks omitted).

       In order to establish entitlement to benefits, pursuant to the Act, “a claimant must prove that:

(1) he suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment;

and, (3) the pneumoconiosis is totally disabling.” Peabody Coal Co. v. Hill, 123 F.3d 412, 415-16


                                                 -5-
Case No. 06-4087
Curtis v. Peabody Coal Company


(6th Cir. 1997). The claimant has the burden of proving each of these requirements “by a

preponderance of the evidence, except insofar as he is aided by a presumption.” Id. at 416. In

support of these elements, Curtis proffered two general types of evidence: four x-rays interpreted

nine times, and narrative medical opinions.

        First, Curtis argues that the ALJ erred in his analysis of the proffered x-ray evidence. The

ALJ characterized the x-ray evidence in the record as containing “three negative x-rays [including

the two most recent films] and one inconclusive x-ray film.” On appeal, petitioner “disputes the

findings in regard to two of these x-rays.” Specifically, petitioner contends the majority of

physicians who rendered a reading of Curtis’ chest x-rays did not give negative readings of the x-

rays. Id. Nevertheless, petitioner does not dispute that the number of negative readings was derived

from “physicians with superior qualifications in the field of radiology.” The ALJ found the opinions

of the physicians certified as “B readers” and “Board-certified radiologists” more persuasive

“because of their expertise and proficiency in classifying x-rays.” Of the “dually certified physicians

[those who were both B readers and Board-certified radiologists],” the ALJ’s review of the readings

showed “four negative readings and two positive readings.” Thus, the Benefits Review Board

correctly stated, “the [ALJ] rationally credited the greater number of negative readings from those

physicians with superior qualifications in the field of radiology to find that the x-ray evidence failed

to establish the existence of pneumoconiosis.” See Staton v. Norfolk & Western Ry. Co., 65 F.3d 55,

59 (6th Cir. 1999) (“administrative factfinders must not rely solely on the quantity of readings on one

side or the other, ‘without reference to a difference in the qualifications of the readers or without an


                                                  -6-
Case No. 06-4087
Curtis v. Peabody Coal Company


examination of the party affiliations of the experts’”) (quoting Woodward, 991 F.2d at 321 (6th Cir.

1993)). Accordingly, there is substantial evidence to support the conclusion of the ALJ, and this

court will affirm.

       Second, Curtis proffered narrative medical evidence to the ALJ in the form of five

physicians’ opinions. Of the five, Drs. Baker, Houser, and Simpao all diagnosed the presence of

pneumoconiosis. Drs. Repsher and O’Bryan opined that pneumoconiosis was not present, and that

any impairment was due to a combination of cigarette smoking and obesity. On appeal, Curtis

argues that the ALJ erred in relying upon the opinion of Dr. O’Bryan, the sole examining physician

to find that Curtis did not have pneumoconiosis, when the other examining physicians found that he

did. In addition, Curtis argues that the ALJ erred in not affording Dr. Houser’s opinion substantial

weight as Curtis’ treating physician. Again, Curtis is asking this court to reweigh the evidence.

       The ALJ examined each doctor’s opinion in turn. Dr. Baker’s opinion, he concluded, was

equivocal, stating that any coal dust related complications “may” have contributed, along with

cigarette smoking, to Curtis’ condition. See Griffith v. Director, Office of Workers’ Compensation

Programs, 49 F.3d 184, 186 (6th Cir. 1995) (affirming an ALJ’s decision to discredit a medical

opinion as equivocal when the doctor named both smoking and coal dust exposure as possible

causes). With respect to Dr. Houser’s opinion, the ALJ concluded that the opinion was inadequately

reasoned. Specifically, the ALJ found that the “failure to explain how the duration of a miner’s coal

mine employment supports his diagnosis” rendered Dr. Houser’s opinion less persuasive. The ALJ

faulted the opinion of Dr. Houser for failing to provide reasons or explanations for his diagnosis and


                                                 -7-
Case No. 06-4087
Curtis v. Peabody Coal Company


failing “to explain the basis of his coal dust etiology[,]” and thus accorded Dr. Houser’s diagnosis

little weight. With respect to Dr. Simpao’s opinion, the ALJ concluded that the opinion was

inadequately reasoned because “he did not discuss what impact the 70+ pack [per] year smoking

history had on his diagnosis.” Further, the opinion failed to explain how his physical findings

support a “coal dust-related disease process[,]” and, accordingly, gave the opinion less weight. The

ALJ concluded that Dr. Repsher’s opinion–the other negative diagnosis–was not supported by

“sound analysis,” because he apparently believed that chronic obstructive pulmonary disease arising

out of coal-mining employment is undetectable, a conclusion prohibited by the legal definition of

pneumoconiosis. Unlike the aforementioned opinions, the ALJ concluded that Dr. O’Bryan’s

opinion was persuasive due to a combination of his superior credentials, and the fact that his opinion

was “based on objective evidence and he documented which readings supported his diagnosis.”

       Just as the Benefits Review Board concluded, we do not believe that the summarized

aforementioned analysis of the medical evidence can be deemed a failure of substantial evidence.

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Groves, 277 F.3d at 833 (internal quotation marks omitted). “We do not

reweigh the evidence or substitute our judgment for that of the ALJ.” Tenn. Consol. Coal Co. v. Kirk,

264 F.3d 602, 606 (6th Cir. 2001). Thus, we will not reverse the conclusions of an ALJ that are

supported by substantial evidence, “even if the facts permit an alternative conclusion.” Id. (quoting

Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir. 1995)).

                                                 III.


                                                 -8-
Case No. 06-4087
Curtis v. Peabody Coal Company


      For the reasons stated above, the judgment of the Benefits Review Board is AFFIRMED.




                                           -9-
