                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1665



SEWELL COAL COMPANY,

                                                             Petitioner,

           versus


GERALD TRIPLETT; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

                                                            Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(05-0615-BLA)


Argued:   September 27, 2007                 Decided:   November 7, 2007


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Petition denied; Board order affirmed by unpublished per curiam
opinion.


ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. S. F. Raymond Smith, JULIET RUNDLE
& ASSOCIATES, Pineville, West Virginia, for Respondents. ON BRIEF:
Ashley M. Harman, William S. Mattingly, JACKSON & KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner.


Unpublished opinions are not binding precedent in this circuit.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

     Following multiple hearings and agency decisions, the Benefits

Review Board of the Department of Labor (“Board”) awarded black

lung benefits to Gerald Triplett on April 26, 2006.            On appeal,

Sewell Coal Company (“Sewell”) contends that the Board erred in

affirming the Administrative Law Judge’s (“ALJ”) determinations

regarding the experts’ testimonies and the ALJ’s conclusion that

Triplett had an 18-pack year history1 and that pneumoconiosis

substantially contributed to his disability.        For the reasons that

follow, we deny the petition and affirm the Board’s decision.



                                      I.

     For thirty-two years, Gerald Triplett worked in coal mines for

Sewell.      Before   retiring   in   1984,   Triplett   primarily   worked

underground as a belt examiner, a job that required him to walk in

coal dust.    Triplett smoked cigarettes for several years.          Around

1977, he began experiencing shortness of breath.           Over time, his

condition deteriorated and his treating physician, Dr. Durham,

diagnosed him as suffering from totally disabling respiratory or

pulmonary impairment.




     1
      “Pack year” means the number of years during which an
individual has smoked a pack of cigarettes per day. For example,
a person who smokes one pack a day for 10 years has a 10-pack year
history. A person smoking half a pack per day for 10 years has a
5-pack year history.

                                      -2-
      On April 1, 1998, Triplett sought benefits under the Black

Lung Benefits Act (“BLBA”) for his disability.             Initially, the

District Director denied the claim. However, an ALJ held a hearing

and awarded Triplett benefits.        The ALJ found Triplett totally

disabled due to respiratory disease caused, at least in part, by

coal workers’ pneumoconiosis. The ALJ comprehensively reviewed the

medical evidence presented by both parties and the testimony of

Triplett.   The medical records and doctors’ opinions were divided

into two groups.    One opining that both cigarette smoking and coal

mine dust caused Triplett’s disability and that coal mine dust was

the   significant    contributing   cause,   and   other    opining   that

cigarette smoke was the only cause.

      Triplett testified that he began smoking a pack or a little

over a pack a day in 1946 and quit in 1964.                His testimony

conflicted with several medical records, which stated that he

smoked extensively for twenty-five, twenty-eight, or even over

thirty years. On cross-examination, Triplett conceded that medical

history reports indicating he smoked about one and one-half packs

of cigarettes a day could be accurate.             After reviewing this

evidence, the ALJ credited those who believed coal mine dust

substantially contributed to Triplett’s disability and awarded

benefits.   Sewell appealed to the Board.

      The Board vacated the award and remanded to the ALJ for the

following reasons:    (1) to reconsider the evidence; (2) more fully


                                    -3-
explain his weighing of the conflicting medical opinions; (3)

determine the exact length of Triplett’s smoking history; and (4)

explain the weight given to Dr. Durham’s opinion.

     On remand, the ALJ again awarded benefits.   Specifically, the

ALJ found that Triplett established by a preponderance of the

evidence an 18-pack per year smoking habit ending in 1964; that

even though Triplett’s radiological evidence was negative for

pneumoconiosis, well-reasoned medical opinion supported Triplett’s

claim; and the medical opinions of Drs. Durham and Rasmussen were

generally more reasoned and supported by objective medical evidence

than Sewell’s doctors, Drs. Bellotte and Branscomb, who contended

that cigarette smoking--not pneumoconiosis--was the sole cause of

Triplett’s disability.

     Subsequently, the Board vacated the award and remanded to the

ALJ a second time to reconsider the medical opinion evidence and

smoking history.   Once again, the ALJ awarded benefits.   The Board

affirmed the ALJ’s finding that Triplett had an 18-pack year

smoking history but vacated the award and remanded to the ALJ to

reconsider whether pneumoconiosis caused Triplett’s respiratory

disability.

     On the third remand, the ALJ specifically stated that he

attributed more weight to Drs. Durham’s and Rasmussen’s medical

opinions because they were not solely based on the chest x-ray

evidence Drs. Bellotte and Branscomb relied upon.          The Board


                                -4-
affirmed the award of benefits. Sewell filed a timely petition for

review.

                                        II.

       We review the Board’s order by “undertak[ing] an independent

review of the record” to determine whether the ALJ’s findings of

fact are supported by substantial evidence.              Island Creek Coal Co.

v. Compton, 211 F.3d 203, 207 (4th Cir. 2000).                          Substantial

evidence consists of more than a scintilla of evidence; “it is

‘such relevant evidence as a reasonable mind might accept as

adequate    to    support     a   conclusion.’”        Id.   at    208        (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).                         So

long   as   the    ALJ’s    conclusions       are   supported     by    substantial

evidence, the ALJ’s decision must be sustained, even if we disagree

with it.    Smith v.       Chater, 99 F.3d 635, 637-38 (4th Cir. 1996).

De novo review applies to the Board’s and ALJ’s legal conclusions.

Compton, 211 F.3d at 208.

                                        III.

       Sewell raises four objections to the Board’s affirmation of

the    ALJ’s      decision.        We    address      each   in        turn     below.

                                        A.

       Sewell contends that the ALJ’s finding that Dr. Bellotte’s

medical opinion was contrary to the BLBA is not supported by

substantial evidence.         After examining and testing Triplett, Dr.

Bellotte concluded that even though Triplett had significant coal


                                        -5-
mine dust exposure that could cause pneumoconiosis, the medical

evidence indicated he suffered from chronic obstructive pulmonary

disease     (“COPD”)      with   chronic    bronchitis,   emphysema,     old

granulomatous lung disease, chest wall trauma, and asthma.               Dr.

Bellote supported his conclusions by citing to Triplette’s x-rays,

blood    gas   samples,    and   objectively   measured   symptoms,    which

indicated he had a severe type of disabling chronic obstructive

pulmonary disease brought on by naturally occurring asthma and

cigarette induced lung disease.

     The ALJ disagreed with Dr. Bellotte’s opinion that coal

worker’s pneumoconiosis cannot manifest a disabling obstructive

impairment, an opinion which is contrary to the law.                  Sewell

maintains that the ALJ mischaracterized and improperly discredited

Dr. Bellott’s testimony as hostile to the BLBA.

     A physician’s opinion may be discredited when it is based “on

a premise fundamentally at odds with the statutory or regulatory

scheme.”    Lane v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir.

1997).     And, it is well-settled that chronic obstructive lung

disease is encompassed in the legal definition of pneumoconiosis.

Thus, the ALJ correctly concluded that an obstructive impairment,

such as COPD, may be considered regulatory pneumoconiosis.

        However, Dr. Bellotte only stated that he would not expect a

pneumoconiosis patient to have an obstructive pulmonary impairment

as severe as Triplett’s.         He did not state that COPD arising from


                                      -6-
coal mine dust can never be disabling or that as a general rule

coal dust exposure cannot cause disabling obstructive impairment.

“[O]nly   the    latter   assumption         would   qualify   as   an   opinion

‘antithetical’ to the [BLBA].”           Lane, 105 F.3d at 173.          To the

contrary, Dr. Bellotte made qualified statements and based his

opinion on Triplett’s specific case--not general assumptions.                See

Stilner v. Island Creek Coal, Co., 86 F.3d 337 (4th Cir.1996).               The

ALJ improperly discredited Dr. Bellotte’s opinion on this basis.

     Notwithstanding this, we do not vacate the ALJ’s award because

the ALJ did not discredit Dr. Bellott’s opinion on this basis

alone.    After thoroughly reviewing and considering Dr. Bellotte’s

testimony, the ALJ discredited Dr. Bellotte’s opinion because the

ALJ found that Dr. Bellott’s opinion relied too heavily on x-ray

evidence and pulmonary function studies.               The ALJ reasoned that

weighing all the evidence together Dr. Bellotte’s report was

unpersuasive.     Given this, the ALJ could rightfully discount Dr.

Bellotte’s opinion.

                                        B.

     Sewell also contends that the ALJ’s decision to discredit the

opinion   of    Dr.   Branscomb   was    irrational      and   unsupported    by

substantial evidence.        The ALJ accorded little weight to Dr.

Branscomb’s opinion because it was unreasoned, equivocal, based on

Dr. Bellotte’s report and an inaccurate smoking history, and did

not adequately explain why Triplett’s asthma was unrelated to his


                                    -7-
coal dust exposure or why Triplett’s entire respiratory impairment

is attributable to tobacco use.

     When an ALJ explains his or her reasoning and does not rely on

an impermissible basis, we must defer to her or his discretion and

judgment in assessing the conflicts in the evidence.              Stilner, 86

F.3d at 342.      And “as the trier of fact, the ALJ is not bound to

accept the opinion or theory of any medical expert.”             Compton, 211

F.3d at 211.   The ALJ need only provide a factual basis to support

his one reason for discrediting an opinion.             Id. at 213 n. 13.

Here, Dr. Branscomb failed to provide a reasoned explanation for

why pneumoconiosis is not a contributing factor to Triplett’s

disability;    therefore,    the   ALJ    could   rightfully     discount   Dr.

Branscomb’s medical opinion.        Similarly, it was within the ALJ’s

province to afford greater weight to Drs. Rasmussen’s and Durham’s

opinions.

                                     C.

     Sewell asserts that the ALJ should not credit Dr. Rasmussen’s

opinion because he failed to consider Triplett’s smoking or asthma

as the cause of the disability, based his opinion on medical

journals without explaining their relevance to Triplett’s claim,

and failed to present a theory that meets the minimum scientific

standards   for    expert   testimony     under   Daubert   v.   Merrell    Dow

Pharmaceuticals, 509 U.S. 579 (1993).




                                    -8-
      Although Dr. Ramussen did not examine Triplett, he reviewed

Triplett’s x-rays, pulmonary function studies, arterial blood gas

studies, medical records, and Drs. Durham’s and Bellotte’s reports.

Based on this evidence, Dr. Rasmussen concluded that Triplett’s

pulmonary impairment is severe, disabling, and attributable to coal

mine dust exposure.     Dr. Rasmussen also noted that coal mine dust

exposure can produce chronic obstructive lung disease including

bronchitis    and   emphysema.      Thus,       he   explained    that   it   was

completely impossible to exclude coal mine dust exposure as a major

contributing factor to Triplett’s disability. In support, he cited

several medical journals.      The ALJ found Dr. Rasmussen’s reasoning

persuasive.

      Sewell contends that the ALJ’s finding is unsupported by the

evidence.     However, it is clear that Dr. Rasmussen considered

Triplett’s tobacco use and possible asthma as alternative causes of

his disability.      The fact that he rejected cigarette smoking and

asthma as the cause of impairment does not discredit his opinion

despite   Sewell’s    arguments     to    the   contrary.        Dr.   Rasmussen

reasoned, in part, that Triplett remained exposed to coal mine dust

for nearly twenty years after he quit smoking.             We hold that there

is   substantial    evidence   in   the    record     to   support     the   ALJ’s

determination that Dr. Rasmussen’s opinion is well reasoned.




                                     -9-
                                       D.

     Sewell maintains that the ALJ should have given Dr. Durham’s

opinion less weight because he lacks extensive experience in

treating black lung cases and offered an equivocal opinion.

     Contrary to Sewell’s contentions, Dr. Durham’s opinion was not

equivocal.    Dr. Durham stated that he was “pretty certain” of his

diagnosis in response to hypothetical questions posed during his

deposition.     (J.A. at 66).      The ALJ noted that Dr. Durham made

conditional    statements    concerning       the    etiology    of    Triplett’s

pulmonary     disability    in   response      to    different    hypothetical

situations,    assorted    cigarette    smoking      histories,       and   various

notations from records other than his own.               Dr. Durham’s use of

qualified language in this context does not render his opinion

equivocal or unreliable.         Although Durham may not have as many

years experience as Dr. Bellotte, this Court has not held that a

physician’s opinion is entitled to less weight or discredited based

on experience alone.

                                       E.

     Finally, Sewell asserts that there is insufficient evidence to

support the ALJ’s finding of an 18-pack year smoking history.

     According    to   Sewell,   the    ALJ    did    not   properly        consider

Triplett’s testimony that he could have smoked more than one pack

a day and the significance the distinction would have in diagnosing

the cause of his disability.


                                    -10-
       It is the duty of the ALJ to make factual findings, evaluate

the credibility of witnesses, and weigh contradicting evidence.

Doss v. Dir., Office of Worker’s Comp. Programs, 53 F.3d 654, 658

(4th Cir. 1995).           When substantial evidence supports the ALJ’s

findings, this Court will not re-weigh the evidence.                  Id.

       Triplett testified to smoking at least one pack and possibly

one and one-half packs a day for eighteen years.                 Several medical

records, however, indicated that he smoked cigarettes for twenty or

more years.           The ALJ found that even though Triplett provided

varying amounts for his daily tobacco use, the amounts were not so

grossly disparate as to cause the ALJ to question the credibility

of Triplett's direct testimony.              We hold that Triplett's direct

testimony about the length and amount of his daily tobacco use

provided substantial evidence to support the ALJ's finding that

Triplett had an 18-pack year smoking history and we will not

re-weigh the conflicting evidence.2

       As       Triplett   notes,   the   mere    fact   that   he   suffers   from

conditions other than pneumoconiosis which can affect his breathing

does not defeat his entitlement to benefits.                Pneumoconiosis must

only       be   a   substantially   contributing--not      the   sole--cause    of

Triplett’s respiratory disability.               20 C.F.R. 718.204(c)(1)(2006).


       2
      Even if we were to re-weigh the evidence, Triplett’s
testimony at most indicates a 27-pack year smoking history (one and
one-half a day for 18 years). This remains short of a 30-pack year
history, which Dr. Durham stated is the level at which he would
find it hard to attribute Triplett’s condition to pneumoconiosis.

                                          -11-
And, there is sufficient evidence to establish that pneumoconiosis

is substantially contributing to Triplett’s disability despite his

smoking history.



                               IV.

     We conclude that the ALJ’s determinations were well reasoned

and adequately supported by the evidence in the record and that

there was substantial evidence supporting the ALJ’s conclusion that

pneumoconiosis substantially contributed to Triplett’s disability.



                                                  PETITION DENIED;
                                              BOARD ORDER AFFIRMED




                               -12-
