                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-1218



HOBET MINING, INCORPORATED,

                                                            Petitioner,

           versus


HAROLD TERRY; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

                                                           Respondents.


On Petition for Review of an Order of the Benefits Review Board.
(05-0420-BLA; 06-BLA-1383)


Argued:   November 30, 2006                 Decided:   February 8, 2007


Before WIDENER and WILKINSON, Circuit Judges, and David A. FABER,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Charleston,
West Virginia, for Petitioner.     Kathryn Marie Speiker, Student
Caseworker, WASHINGTON & LEE UNIVERSITY, School of Law, Legal
Clinic, Lexington, Virginia, for Respondents. ON BRIEF: Kathy L.
Snyder, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for
Petitioner.     Mary Z. Natkin, Professor, WASHINGTON & LEE
UNIVERSITY, School of Law, Legal Clinic, Lexington, Virginia, for
Respondents.


Unpublished opinions are not binding precedent in this circuit.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

     This is a case for compensation under the Black Lung Benefits

Act (hereinafter “the Act”), 30 U.S.C. § 901 et. seq.              The claim

was filed by the now deceased miner.           The claim was granted by the

Administrative Law Judge (“ALJ”), and the decision was affirmed by

the Department of Labor Benefits Review Board (hereinafter “the

Board.”). This petition for review followed. We have jurisdiction

pursuant to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a).



                                      I.

     The parties agree that the decedent, Harold L. Terry, was

employed in various above-ground mining jobs for 26 years, and was

in the employ of the respondent, Hobet Mining, Inc.          Hobet does not

dispute   that   it   is   the   responsible    operator   for   this   claim.

Furthermore, the parties agree that Terry did not suffer from

clinical pneumoconiosis.         The parties, however, disagree as to

whether the decedent had legal pneumoconiosis within the meaning of

the Act, so as to entitle him to benefits under the Act.



                                      A.

     A brief description of the procedural history is warranted.

A full description is given in the Board’s decision, and we see no

need to repeat it here.




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     Terry originally filed his claim on July 1, 1980.                 The claim

was denied because the ALJ found that Terry failed to demonstrate

total disability by a respiratory or pulmonary impairment.                     The

ALJ’s ruling was affirmed by the Board.

     On October 18, 1993, Terry filed a second claim under the Act.

This claim was denied because the ALJ found that Terry failed to

establish a “material change in conditions as required by 20 C.F.R.

§ 725.309(d).”    Within a year of the denial, Terry timely filed a

request for modification pursuant to 20 C.F.R. § 725.310. The case

was assigned to the present ALJ after the District Director of the

Office of Worker’s Compensation denied the modification request.

     The claim has been adjudicated by the ALJ and appealed to the

Board on four separate occasions.             During each of the first three

rounds,   the   ALJ    awarded    benefits      and    the   Board   vacated   the

findings,   sending      the     matter       back    for    reconsideration   or

clarification.

     Finally, on January 25, 2005, the ALJ issued the present

decision and order      on remand.    In that order he found existence of

legal pneumoconiosis, and the presence of total disability.                    The

ALJ once again awarded Terry benefits.                Hobet once again appealed

to the Board.         This time, the Board affirmed the ALJ in all

respects.   This petition for review followed.




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                                      B.

       The ALJ considered submissions a number of submissions by

various physicians some of whom testified on behalf of Terry, and

some   of    whom   testified   on   behalf    of   Hobet.   The   following

physicians testified for Mr. Terry:           Drs. Rasmussen, Doyle, Cohen,

Koenig and Figueroa.       Drs. Zaldivar, Fino, Hippensteel, Daniel,

Kress and Morgan testified for Hobet.

       The ALJ evaluated each doctor’s testimony separately and made

findings of credibility with respect to each.                Based on the

testimony, the ALJ ruled that the Terry carried his burden to

establish legal pneumoconiosis.        In his analysis, the ALJ credited

the opinions of physicians testifying on behalf of Terry over those

testifying on behalf of Hobet.              For the same reasons the ALJ

credited the opinions of the physicians testifying on Terry’s

behalf and gave greater weight to them over opinions of those

testifying on Hobet’s behalf.        He concluded that Terry was totally

disabled.

       Hobet challenges the findings made by the ALJ as irrational,

not supported by substantial evidence, and contrary to law.



                                      II.

       We review the factual findings of the ALJ for substantial

evidence.      Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir.

1993).      “[W]e undertake an independent review of the record, as in

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the place of the BRB, to determine whether the ALJ's factual

findings were based upon substantial evidence in the record.”

Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995).

“Substantial evidence is more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.”    Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938).   We review legal conclusions de novo.       Ballard, supra

at 1193.


                                   III.

                                    A.

     Prior to proceeding further, it is useful to define legal

pneumoconiosis    and   describe    how   it   differs   from   clinical

pneumoconiosis.    Both terms are well defined by the regulations

adopted pursuant to the Act and appearing at 20 C.F.R. § 718.201.



     (a) For the purpose 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. This definition includes
     both   medical,   or  “clinical”,   pneumoconiosis   and
     statutory, or “legal”, pneumoconiosis.

     (1) Clinical Pneumoconiosis. “Clinical pneumoconiosis”
     consists of those diseases recognized by the medical
     community as pneumoconiosis, 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,


                                    5
     anthrosilicosis, massive pulmonary fibrosis, silicosis or
     silicotuberculosis, arising out of coal mine employment.

     (2) Legal Pneumoconiosis.       “Legal pneumoconiosis”
     includes any chronic lung disease or impairment and its
     sequelae arising out of coal mine employment.       This
     definition includes, but is not limited to, any chronic
     restrictive or obstructive pulmonary disease arising out
     of coal mine employment.

     (b) For purposes of this section, 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. (emphasis added)

20 C.F.R. §§ 718.201(a)-(b).

     Thus, under the regulation, any respiratory disease arises out

of   coal   mine   employment   provided     the    disease      is    either

“significantly related to, or substantially aggravated by, dust

exposure in coal mine employment.”



                                   B.

     Hobet’s   entire   argument   reduces   to    an   attack    on   ALJ’s

credibility findings and overall weighing of the evidence.

     We do not second-guess an ALJ’s findings of credibility and

his weighing of the evidence.       See 33 U.S.C. § 921(b)(3) (“The

findings of fact in the decision under review by the Board shall be

conclusive if supported by substantial evidence in the record

considered as a whole.”) (emphasis added).         Our role is simply to

ensure that the ALJ considered all relevant evidence and reached a

decision that was rational and sufficiently explained.           See Gordon


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v. Schweiker, 725 F.2d 231, 235-36 (4th Cir. 1984) (“Unless the

Secretary has analyzed all evidence and has sufficiently explained

the weight he has given to obviously probative exhibits, to say

that his decision is supported by substantial evidence approaches

an abdication of the court’s ‘duty to scrutinize the record as a

whole   to    determine      whether       the   conclusions    reached      are

rational.’”).

     Hobet’s principal argument is that ALJ’s findings with respect

to Drs. Rasmussen and Koenig are not supported by substantial

evidence,    because     according   to    Hobet   the   testimony   of     these

physicians is equivocal.       To begin with, we have held that the use

of less than certain language does not automatically disqualify the

physician’s opinion as equivocal.           Perry v. Mynu Coals, Inc., ___

F.3d ___ (4th Cir. 2006) (Slip at 10).             The entire statement must

be read in context to determine whether the opinion is equivocal.

This is again an area where we defer to the ALJ’s factual findings.

However, even if we were free to write on a clean slate, a fair

reading of Dr. Rasmussen’s opinion indicates that his use of the

word possible was used to set up the overall predicate for his

opinion which was in fact unequivocal.              The same applies to Dr.

Koenig's using the word could.             And Dr. Rasmussen's opinion was

supported by a breath diffusing capacity test.

     Furthermore, even if we were to agree with Hobet that the

testimony    of   Drs.   Rasmussen   and     Koenig   should   not   have   been


                                       7
persuasive, there is the testimony of Dr. Doyle.     The ALJ found

that Dr. Doyle was persuasive and that in reaching his conclusions

Dr. Doyle relied on studies published by the National Institute of

Occupational Safety & Health.   This finding alone, if accepted, as

it was, would be enough to conclude that the ALJ’s opinion is

supported, and ought to be affirmed.    The Board agreed that Dr.

Doyle's opinion was "supportive of 'legal' pneumoconiosis."     J.A.

844.

       Hobet’s remaining attacks on credibility determinations and

evidence weighing are equally unpersuasive.



                                 C.

       Hobet also argues that the ALJ "afforded the Claimant an

invalid presumption that he has pulmonary impairment which is

aggravated by coal dust exposure thereby relieving the Claimant of

his 'obligation to affirmatively prove the presence of legal

pneumoconiosis by a reasonable medical opinion.'"   Br. p.50.

       We have examined the opinion of the ALJ and do not find any

such presumption.     Because Hobet had raised exactly the same

objection in its appeal to the Board which rejected the claim and

held that the ALJ had "correctly placed the burden of proving the

existence of legal pneumoconiosis on Claimant." J.A. 841.   Because

we review the decision of the Board, even making the objection in

the form stated in the brief, is, at the very best, hardly good


                                 8
form.    The argument is entirely without arguable merit.                    We affirm

the decision of the Board.



                                          D.

     Hobet’s next argument that the findings of total disability is

erroneous as contrary to objective studies is "irrational, not

supported by substantial evidence, and contrary to applicable law."

Br. p.51.      It relies on bloodgas studies which did not meet the

regulatory      definition    of     disability.          The   Code    of    Federal

Regulation defines total disability as follows:


     (c)(1) Total disability due to pneumoconiosis defined.
     A miner shall be considered totally disabled due to
     pneumoconiosis if pneumoconiosis, as defined in §
     718.201, is a substantially contributing cause of the
     miner’s totally disabling respiratory or pulmonary
     impairment.     Pneumoconiosis is a ‘‘substantially
     contributing cause’’ of the miner’s disability if it:
     (I) Has a material adverse effect on the miner’s
     respiratory or pulmonary condition; or
     (ii) Materially worsens a totally disabling respiratory
     or pulmonary impairment which is caused by a disease or
     exposure unrelated to coal mine employment.

20 C.F.R. § 718.204(c) (emphasis added).

        The   regulations    do     not   require   any    particular        objective

values.       All that is required is that pneumoconiosis have a

material adverse effect on the miner’s condition.                      Any argument

that Terry should not be found to be totally disabled because his

respiratory      studies     were    outside    the   values      set    for    total




                                           9
regulatory disability from the studies is contrary to law and

confuses two independent sections of the regulations.



                               IV.

     From the opinion of the ALJ and the Board, it is clear that

they did a comprehensive job addressing all of the evidence of

record.   The ALJ considered opinions of several experts, and

voluminous medical records.    The ALJ gave the reasons for his

decision in a 28 page opinion in which he thoroughly explained why

he credited certain physicians more than others.   Understandably,

Hobet disagrees with the ALJ’s findings and believes that the

evidence submitted by its experts should have convinced the ALJ.

However, given the ALJ’s thorough fact-finding, and the Board's

reviews, it cannot be said that the decisions are irrational or

that they failed to consider all evidence of record.

     The Board's decision is summarized as “[a]ccordingly, we

affirm the administrative law judge's finding that claimant's

totally disabling respiratory impairment was due to pneumoconiosis,

pursuant to 20 C.F.R. § 718.204(c) [footnote omitted].”   We agree

with the Board.

     The petition for review is accordingly

                                                           DENIED.




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