                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1191


WESTMORELAND COAL COMPANY, INCORPORATED,

                Petitioner,

          v.

JOHNNY FORTNER; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(12-0163-BLA)


Submitted:   July 29, 2013                   Decided:   August 14, 2013


Before MOTZ, KEENAN, and DIAZ, Circuit Judges.


Petition granted; vacated and remanded by unpublished per curiam
opinion.


Paul   E.  Frampton,   Thomas  M.   Hancock,  BOWLES  RICE  LLP,
Charleston, West Virginia, for Petitioner.      Joseph E. Wolfe,
Ryan C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS,
Norton, Virginia, for Respondent Johnny Fortner.


Unpublished opinions are not binding precedent in this circuit.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

                  Westmoreland Coal Company (“Employer”) petitions for

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

order affirming the Administrative Law Judge’s (“ALJ”) award of

benefits to Johnny Fortner under the Black Lung Benefits Act, 30

U.S.C.      §§     901-945    (West    2007     &   Supp.       2013).     We    grant    the

petition for review, vacate the Board’s decision, and remand for

further proceedings. 1

                  We review the Board’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).               “‘Substantial        evidence     is      more    than     a     mere

scintilla’; it is ‘such relevant evidence as a reasonable mind

might       accept      as   adequate    to     support      a    conclusion.’”          Id.

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

In conducting this review, we confine ourselves to the grounds




       1
       Upon review of the record, we conclude that we have
jurisdiction over Employer’s petition for review. See 33 U.S.C.
§ 921(c) (2006); 30 U.S.C. § 932(a); Consolidation Coal Co. v.
Chubb, 741 F.2d 968, 971 (7th Cir. 1984); see Hon v. Dir.,
Office of Workers’ Comp. Programs, 699 F.2d 441, 444 (8th Cir.
1983).


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on which the Board based its decision.                        Daniels Co. v. Mitchell,

479 F.3d 321, 329 (4th Cir. 2007).

               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).                           The ALJ is not bound to

accept    any       medical      expert           opinion    but        “must    evaluate    the

evidence,       weigh      it,       and    draw       his   own    conclusions,”       giving

consideration         to     “the      qualifications              of    the     experts,    the

opinions’ reasoning, their reliance on objectively determinable

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).

               Because       this      is     a     subsequent          claim,    Fortner    was

required to first demonstrate a change in “one of the applicable

conditions of entitlement” since the last denial of benefits.

20    C.F.R.    §    725.309(d)            (2013);     see   Milburn       Colliery    Co.    v.

Hicks, 138 F.3d 524, 529 (4th Cir. 1998) (enumerating conditions

of entitlement); 20 C.F.R. §§ 718.201 to 204 (2013) (same).                                  The

ALJ had most recently denied Fortner benefits after finding that

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he   failed     to    demonstrate       that     he   suffered   from     a    totally

disabling respiratory or pulmonary condition.

              A miner may prove that he is totally disabled due to a

respiratory or pulmonary condition in one of four ways, only two

of   which    are     relevant     here:       qualifying     arterial    blood      gas

studies      and      well-documented          and    well-reasoned      physician’s

opinions. 2     20 C.F.R. § 718.204(b)(2)(ii), (iv).               “The miner can

establish total disability upon a mere showing of evidence that

satisfies     any     one   of    the   four    alternative    methods,       but   only

‘[i]n the absence of contrary probative evidence.’”                            Lane v.

Union Carbide Corp., 105 F.3d 166, 171 (4th Cir. 1997) (quoting

language now codified in 20 C.F.R. § 718.204(b)(2)).                          Thus, if

the ALJ finds that the miner has met his burden with evidence

under one of the § 718.204(b)(2) prongs, the ALJ must examine

the record for contrary probative evidence and, if there is such

contrary evidence, assign it “appropriate weight and determine

whether it outweighs the evidence that supports a finding of

total disability.”          Id.

              After    considering       the    newly-submitted    evidence,        the

ALJ concluded that Fortner demonstrated that he suffered from a


      2
       Fortner did not present evidence of qualifying pulmonary
function tests or demonstrate that he suffers from cor
pulmonale,   the  other  two  methods   of  establishing  total
disability. See 20 C.F.R. § 718.204(b)(2)(i), (iii).



                                           4
totally disabling respiratory condition based on the results of

the arterial blood gas studies and the medical opinions, and

that there was no probative contrary evidence in the record.

Thus, the ALJ allowed the subsequent claim to proceed.

                  In the petition for review, Employer does not dispute

the ALJ’s conclusion that the newly-submitted arterial blood gas

studies       qualified          Fortner       as     totally       disabled       due     to    a

respiratory impairment.                 However, Employer contends that the ALJ

erred        by        rejecting       Dr.   Kirk         Hippensteel’s          opinion    when

evaluating         the     medical      opinions      related       to    total    disability,

because the ALJ failed to explain his reasons for discrediting

the physician and engaged in “head counting.”

                  We    agree    with    Employer’s         contention.           As    Employer

noted,       we    have    rejected      the    practice       of    “counting         heads”    as

“hollow.”          Adkins v. Dir., Office of Workers’ Comp. Programs,

958 F.2d 49, 52 (4th Cir. 1992); accord Sterling Smokeless Coal

Co. v. Akers, 131 F.3d 438, 440-41 (4th Cir. 1997) (finding that

ALJ erred “[b]y resolving the conflict of medical opinion solely

on     the    basis        of    the    number       of    physicians        supporting         the

respective parties”); Sahara Coal Co. v. Fitts, 39 F.3d 781,

782-83 (7th Cir. 1994) (vacating and remanding decision of ALJ

that    appeared          to    be   based   upon     numerical          count    of   experts).

This is precisely what the ALJ did in this case.                                 While finding

that    each       of     the    physicians’         opinions       was    probative,      well-

                                                 5
reasoned, and well-documented, and that each physician was a

well-qualified pulmonologist, the ALJ simply decided that the

“consensus”        of    Fortner’s      two      physicians        outweighed           Dr.

Hippensteel’s opinion, without further explanation.                          See Milburn

Colliery Co., 138 F.3d at 534 (finding that ALJ erred by failing

to   explain      rejection    of     evidence    of    miner’s        other       medical

conditions as cause of total disability).                      Thus, the Board’s

order   affirming       the   ALJ’s    decision    that      Fortner         was   totally

disabled     due    to    a   respiratory        condition        as    supported        by

substantial evidence cannot stand.

            Because      we   have    concluded     that     the       ALJ    improperly

discredited Dr. Hippensteel’s opinion on the grounds that he was

outnumbered, we also conclude that substantial evidence does not

support his conclusion that Fortner established that he suffered

from a totally disabling respiratory condition.                         See 20 C.F.R.

§ 718.204(b)(2); Lane, 105 F.3d at 171.                 Thus, the ALJ erred in

finding     that    Fortner     demonstrated       a    change         in     applicable

condition    of    entitlement,       as   required     by    §    725.309(d),          and

allowing the subsequent claim to proceed.

            Accordingly, we grant Employer’s petition for review,

vacate the Board’s order affirming the ALJ’s award of benefits,

and remand to the Board for further proceedings consistent with

this opinion.       On remand, the ALJ certainly may reach the same

conclusion     after     properly     weighing    the   evidence;            however,    he

                                           6
must   fully   explain   that   decision    in   accordance   with   the

substantial evidence standard.         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 GRANTED;
                                                  VACATED AND REMANDED




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