                                 UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                 No. 14-2342


WEST   VIRGINIA     CWP   FUND,     as   carrier   for   Pen   Coal
Corporation,

                  Petitioner,

          v.

STEVEN MULLINS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                  Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(14-0035-BLA)


Submitted:   June 30, 2015                 Decided:   September 10, 2015


Before THACKER and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition granted and reversed by unpublished per curiam opinion.


Jeffrey R. Soukup, William S. Mattingly, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner.   Leonard J. Stayton, Inez,
Kentucky; Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C.; Helen Hart Cox, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, Washington, D.C., for Respondents.


Unpublished opinions are not binding precedent in this circuit.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

       West Virginia CWP Fund (“Employer”), insurance carrier for

Pen Coal Corporation, seeks review of the decision and order of

the    Benefits    Review     Board     (“BRB”    or       “Board”)      affirming        the

administrative law judge’s (“ALJ”) award of black lung benefits,

pursuant to 30 U.S.C. §§ 901-945 (2012), and the BRB’s order

denying    Employer’s       motion    for     reconsideration           en    banc.       Our

review of the record discloses that the ALJ’s decision is not

supported     by    substantial            evidence.            We   therefore           grant

Employer’s       petition     for     review     and       reverse      the     award      of

benefits.

       “Our review of a decision awarding black lung benefits is

limited.”     Hobet Mining, LLC v. Epling, 783 F.3d 498, 504 (4th

Cir. 2015) (internal quotation marks omitted).                               “We ask only

whether substantial evidence supports the factual findings of

the ALJ and whether the legal conclusions of the [Board] and ALJ

are rational and consistent with applicable law.”                            Id. (internal

quotation marks omitted).              We review the legal conclusions of

the BRB and ALJ de novo but defer to the ALJ’s factual findings

if    supported    by    substantial       evidence.        Harman      Mining      Co.    v.

Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th

Cir.    2012).          “‘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.’”               Island

                                             2
Creek Coal Co. v. Compton, 211 F.3d 203, 207-08 (4th Cir. 2000)

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

      To establish entitlement to benefits, a miner must prove: 1

“(1) that he has pneumoconiosis, in either its ‘clinical’ or

‘legal’ form; (2) that the pneumoconiosis arose out of coal mine

employment; (3) that he is totally disabled by a pulmonary or

respiratory impairment; and (4) that his pneumoconiosis is a

substantially contributing cause of his total disability.”                                    W.

Va.   CWP   Fund    v.   Bender,      782   F.3d          129,    133   (4th      Cir.    2015)

(internal         quotation         marks       omitted);            see       20        C.F.R.

§ 725.202(d)(2) (2014).

      Employer’s      primary       argument         is    that     the     ALJ     erred    by

relying on Dr. Gaziano’s opinion to support his findings that

Mullins      suffers         from      legal          pneumoconiosis              and       that

pneumoconiosis is a substantially contributing cause of Mullins’

totally disabling respiratory impairment.                          Although we may not

reweigh     the    medical    opinions,         we    may        determine     whether      the

weight assigned by the ALJ is supported by substantial evidence,

being ever “careful not to substitute our judgment for that of

the ALJ.”     Harman Mining Co., 678 F.3d at 310.                          After reviewing



      1Because Mullins conceded that he has not worked in the
coal mines for 15 or more years, he is not entitled to the
rebuttable presumption that he is totally disabled due to
pneumoconiosis. See 30 U.S.C. § 921(c)(4).



                                            3
the entire record, we conclude that substantial evidence does

not support the ALJ’s decision to accord full probative weight

to Dr. Gaziano’s opinion.

       Dr. Gaziano’s diagnosis of legal pneumoconiosis was based

entirely on Mullins’ history of coal dust exposure.                               Dr. Gaziano

offered no objective medical evidence to support the conclusion

that   Mullins’          chronic      obstructive       pulmonary          disease      (“COPD”)

arose out of his coal mine employment or was aggravated by coal

dust   exposure,         and    Dr.      Gaziano      confirmed      at       deposition      that

Mullins’ symptoms were not specific to any respiratory disease.

Dr. Gaziano also admitted that it was possible that Mullins’

COPD   could       have    been       caused    entirely        by       cigarette      smoking,

without    any      aggravation          by    coal     dust.         Thus,       Dr.    Gaziano

essentially presented only the possibility that Mullins’ COPD

was    caused       by     coal    dust       exposure,       which        we    have       deemed

insufficient to support an award of benefits.                              See Westmoreland

Coal    Co.    v.    Cochran,         718      F.3d    319,     322       (4th    Cir.       2013)

(reiterating         that         “mere       possibility           of        causation       [is]

insufficient to support finding a nexus between a claimant’s

pneumoconiosis and his [respiratory impairment]”).

       Also problematic in this case is Dr. Gaziano’s reliance on

an overestimate of the length of Mullins’ coal mining career by

five   years.            This     discrepancy         does    not     bolster         the    ALJ’s

decision      to    accord        full    probative       weight         to     Dr.    Gaziano’s

                                                4
opinion,       especially      when      the    sole        basis     for    Dr.    Gaziano’s

diagnosis of legal pneumoconiosis was Mullins’ exposure to coal

dust.        Moreover,      the    ALJ    did       not    explain    how     the    five-year

discrepancy did not make a difference in Mullins’ case.

        In sum, Dr. Gaziano’s opinion, which relied exclusively on

an   inflated       coal    mining       history,         is   simply       insufficient   to

satisfy      Mullins’       burden    of   demonstrating             his     entitlement   to

benefits. 2        Because there remains no evidence upon which to base

a finding 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      this    court    and   argument          would     not    aid    the    decisional

process.

                                                      PETITION GRANTED AND REVERSED




        2
       Because we conclude that substantial evidence does not
support the ALJ’s findings that Mullins suffers from legal
pneumoconiosis and that pneumoconiosis was a substantially
contributing cause of Mullins’ totally disabling respiratory
impairment, we need not consider Employer’s challenges to the
ALJ’s finding that Mullins suffers from clinical pneumoconiosis
or the ALJ’s decision to assign little weight to the opinions of
Drs. Repsher and Dahhan.



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