                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-2286


SOUTHERN APPALACHIAN COAL COMPANY,

                Petitioner,

           v.

ALAN L. ADKINS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(09-0841-BLA)


Argued:   December 6, 2011                   Decided:   March 1, 2012


Before WILKINSON, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Wilkinson and Judge Floyd concurred.


ARGUED: David L. Yaussy, ROBINSON & MCELWEE, PLLC, Charleston,
West Virginia, for Petitioner.       Ryan Christopher Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondents.    ON BRIEF: Joseph E. Wolfe, WOLFE, WILLIAMS,
RUTHERFORD & REYNOLDS, Norton, Virginia, for Respondent Adkins.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

        Southern Appalachian Coal Company challenges the award of

benefits to Alan L. Adkins, a former coal mine employee, under

the Black Lung Benefits Act (“Act”).                   With this appeal, Southern

Appalachian essentially asks us to reweigh the evidence that was

before    the    Administrative      Law       Judge    (“ALJ”)    and   come    to   a

different conclusion.        But this we may not do.               Accordingly, we

affirm the award of benefits to Adkins.



                                       I.

        Adkins spent fifteen years employed in coal mining.                     During

that employment, Adkins worked underground, including as a roof

bolt operator and a miner operator, both “dusty” jobs.                     J.A. 19,

20.      Adkins also smoked cigarettes, from 1975 to 1990, which

roughly corresponds to his tenure as a miner.

        Adkins   developed   problems          with    breathing   and    exhaustion

upon physical exertion.        In June 2007, Adkins filed a claim for

black     lung   benefits    under    the        Act.       Southern     Appalachian

contested, and a hearing was held.                At the hearing, the ALJ had

before him, among other things, the following medical evidence:




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       Dr. Randolph Forehand examined Adkins in August 2007 and

concluded that Adkins had pneumoconiosis. 1                  Dr. Forehand stated,

among       other    things,      that    Adkins’s   “coal   mine    dust    exposure

resulted in a significant respiratory impairment . . . which

would prevent him from going back into the mines.                           Coal mine

dust       exposure      has   led   to   legal   coal   workers’    pneumoconiosis

which has permanently and totally disabled him.”                    J.A. 73.

       Dr. D.L. Rasmussen examined Adkins and concluded in May

2008 that, among other things, Adkins “has evidence to support a

diagnosis           of    legal      pneumoconiosis.          The     patient     has

pneumoconiosis, (i.e. COPD/emphysema caused in significant part

by coal mine dust exposure) which is a material contributing

cause of his disabling lung disease.”                J.A. 77.

       Dr. Glen Baker examined Adkins and reported in July 2008

that, among other things, “the patient does have a chronic lung

disease caused by his coal mine employment.                     This is based on

the presence of both clinical and legal pneumoconiosis.”                         J.A.

       1
       This Court has previously noted the “broad statutory
definition of pneumoconiosis as ‘a chronic dust disease of the
lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment[,]’” as well as
the regulatory definition of “legal pneumoconiosis” as “‘a
disease ‘arising out of coal mine employment’ includ[ing] any
chronic pulmonary disease resulting in respiratory or pulmonary
impairment significantly related to, or substantially aggravated
by, dust exposure in coal mine employment.’”     Gulf & Western
Indus. v. Ling, 176 F.3d 226, 231 (4th Cir. 1999) (citations
omitted).




                                             3
88.    Dr. Baker indicated that Adkins was only partially, i.e.,

not totally disabled, stating: “He would have a class 2 or a 10

to 25% impairment of the whole person. . . .                     This impairment is

related to his pneumoconiosis and possibly to some extent his

cigarette smoking history.”          Id.

       Dr. George Zaldivar examined Adkins’s records in 2008 and

2009 and reported that Adkins did not have pneumoconiosis; Dr.

Zaldivar    instead      theorized     that          Adkins    may     have    pulmonary

fibrosis caused by smoking.            Dr. Zaldivar stated, “[m]y opinion

remains    that   Mr.    Adkins    does    not        suffer    from    coal    workers’

pneumoconiosis nor coal dust induced lung disease . . . .”                             J.A.

112.

       Dr. Kirk Hippensteel examined Adkins and Adkins’s records

in February 2009 and reviewed records again in May 2009 and

concluded    that       Adkins    “does        not     have     evidence       of    legal

pneumoconiosis . . . .”            J.A. 219.           Dr. Hippensteel concluded

that   Adkins     had    bronchitis,      allergies,           and   cardiac        disease

unrelated to working in the mines.

       After reviewing this medical evidence, the ALJ determined

that Adkins had pneumoconiosis caused at least in part by 15

years’ employment in coal mining, and found that he was totally

disabled.    The ALJ therefore determined that Adkins was entitled

to benefits under the Act.




                                           4
       Southern Appalachian appealed to the Benefits Review Board.

A   panel   of    three      administrative        appeals    judges       affirmed    the

ALJ’s decision and order awarding benefits.                    The Benefits Review

Board determined that the ALJ’s decision and order “is rational,

supported       by     substantial      evidence      and     in     accordance       with

applicable law.”          J.A. 241.      Southern Appalachian now appeals to

this Court.



                                            II.

       On appeal, Southern Appalachian argues that the ALJ failed

to: weigh all the evidence and consider certain medical opinions

when    concluding        that   Adkins      had     pneumoconiosis;         accurately

determine       the     length   of    Adkins’s     coal     mine    employment;       and

properly assess the cause of total disability.                       We address each

argument in turn.            In so doing, “[w]e undertake an independent

review of the record, as in the place of the Board, to determine

whether     the      ALJ’s   factual    findings     are     based    on    substantial

evidence in the record.               We review questions of law de novo.”

Toler v. E. Associated Coal Co., 43 F.3d 109, 114 (4th Cir.

1995) (citation omitted).



                                            A.

       Southern Appalachian first argues that the ALJ failed to

weigh     all     the     evidence     as    to     whether     Adkins       has   legal


                                            5
pneumoconiosis            and    consider             certain           medical     opinions           in

concluding that Adkins has legal pneumoconiosis.

        At the outset, we note that “[t]o establish entitlement to

benefits         under    the    Act,        a    miner          must     prove    that        he     has

pneumoconiosis, that the disease was caused by his coal mine

employment, and that he is totally disabled due to the disease.”

Doss v. Dir., Office of Workers’ Comp. Programs, 53 F.3d 654,

658 (4th Cir. 1995).             On appeal, we do not undertake to re-weigh

conflicting         evidence           on        these       issues,        make      credibility

determinations, or substitute our judgment for that of the ALJ.

Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).                                         Rather,

“[w]here conflicting evidence allows reasonable minds to differ

.   .   .    ,   the     responsibility           for       that    decision       falls       on     the

Secretary (or the Secretary’s designate, the ALJ).                                        The issue

before us, therefore, is not whether [the claimant has legal

pneumoconiosis],           but    whether             the     ALJ’s      finding     .     .     .     is

supported by substantial evidence and was reached based upon a

correct application of the relevant law.”                                 Craig v. Chater, 76

F.3d    585,      589    (4th    Cir.       1996)         (quotation       marks    and    citation

omitted).

        In   this       case,    the    ALJ       had       several       conflicting          medical

reports      before       him.         The       one        he    chose     to     rely    on        most

extensively, that of Dr. Rasmussen, states, among other things,

that    Adkins      “has     evidence            to       support   a     diagnosis       of        legal


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pneumoconiosis.               The    patient          has     pneumoconiosis,             (i.e.

COPD/emphysema      caused      in    significant           part   by     coal    mine     dust

exposure)       which    is     a    material         contributing         cause     of     his

disabling lung disease.”               J.A. 77.             The ALJ did not err in

relying    on    this    report,     which       he   found    credible          because    Dr.

Rasmussen explained that Adkins’s pulmonary disease was caused

by both coal dust and cigarette smoke exposure and that it was

impossible to separate the effects of the two.

       Further, the main thrust of Dr. Rasmussen’s report, i.e.,

that    Adkins     had     legal      pneumoconiosis           and        that     his     lung

impairment was caused at least in significant part due to coal

dust exposure, was supported by Dr. Baker, who concluded in his

report that “the patient does have a chronic lung disease caused

by his coal mine employment.              This is based on the presence of

both clinical and legal pneumoconiosis.”                       J.A. 88.           Similarly,

Dr. Forehand concluded, in his report, that Adkins’s “coal mine

dust exposure resulted in a significant respiratory impairment .

. . which would prevent him from going back into the mines.

Coal    mine     dust    exposure      has       led     to    legal       coal     workers’

pneumoconiosis which has permanently and totally disabled him.”

J.A. 73.

       Southern Appalachian is certainly correct that reports from

Dr.    Zaldivar    and    Dr.       Hippensteel        would       have    supported        the

conclusion that Adkins did not have legal pneumoconiosis.                                   Dr.


                                             7
Zaldivar stated in his report that “Mr. Adkins does not suffer

from coal workers’ pneumoconiosis nor coal dust induced lung

disease . . . .”           J.A. 112.    And Dr. Hippensteel concluded that

Adkins “does not have evidence of legal pneumoconiosis . . . .”

J.A. 219.

       We cannot agree with Southern Appalachian, however, that

“the ALJ failed to consider the contrary opinions offered by

Drs. Hippensteel and Zaldivar . . . .”                   Appellant’s Br. at 15.

The ALJ summarized the reports of Drs. Hippensteel and Zaldivar,

just as he summarized the other doctors’ reports.                      The ALJ then

went on to discuss his determination as to the probative value

of    the   various    reports,       ultimately    concluding,        among    other

things, that Dr. Rasmussen’s opinion was “more clearly explained

than those of Drs. Hippensteel and Zaldivar[]” and was “the most

rational in this record.”             J.A. 232.    The ALJ explained at some

length the basis for these findings.                 Further, nothing in the

ALJ’s opinion suggests, as Southern Appalachian claims, that the

ALJ    impermissibly        found   that   certain       regulations     created      a

presumption that obstructive lung impairments are always due to

coal   dust   exposure.         And    finally,    the    ALJ    did   not     err   in

crediting Dr. Rasmussen with “extensive experience in pulmonary

medicine      and     in     the      specific     area     of    coal       workers’

pneumoconiosis.”       Martin v. Ligon Preparation Co., 400 F.3d 302,

307 (6th Cir. 2005).


                                           8
      To    be    sure,       the    record    shows     evidence      that    would          have

supported a contrary conclusion by the ALJ, i.e., that Adkins

did   not    suffer       from       pneumoconiosis          and    therefore       was       not

entitled     to    benefits.            Nevertheless,          there    is     substantial

support     in    this    record      for     the    conclusion      that     the       ALJ    did

reach.      Under these circumstances, we are not free to second-

guess the ALJ.            Craig, 76 F.3d at 589.                   We therefore reject

Southern Appalachian’s arguments regarding the ALJ’s weighing of

the   evidence       and       failure        to     (sufficiently)         consider           the

conflicting medical reports.



                                               B.

      Southern      Appalachian         next        argues   that     the    ALJ        did    not

properly     establish         how    long     Adkins    had       worked    as     a    miner,

despite the ALJ’s stating in his decision and order that he

“accept[s] the Claimant’s testimony that he has worked fifteen

years in coal mine employment.”                      J.A. 226.       However, the Joint

Appendix     pages       to    which     Southern       Appalachian         cites       do     not

support its contention.                 Indeed, one of the two cited pages

establishes via Adkins’s sworn testimony that Adkins worked in

the coal mines from 1972 to 1987—i.e., fifteen years.

      Despite      Southern          Appalachian’s       contention         that    the        ALJ

improperly relied on doctors’ reports to determine the length of

Adkins’s mine employment, the ALJ made clear that he relied not


                                               9
on them, but rather on Adkins’s sworn testimony.                         That testimony

was     an     appropriate        evidentiary       source        under     20        CFR     §

725.101(a)(32)(ii), which states, in pertinent part, that “[t]he

dates    and    length     of     employment       may    be     established          by    any

credible       evidence        including    (but     not       limited    to)         company

records,       pension         records,     earnings           statements,        coworker

affidavits,       and     sworn       testimony.”          Id.       (emphasis        added).

Southern Appalachian has provided this Court with no basis to do

anything other than affirm this aspect of the ALJ’s decision and

order.



                                           C.

      With its last argument, Southern Appalachian contends that

the     ALJ    “erred     in    his    assessment        of    the     cause     of        total

disability.”        J.A.        20.      Here,     again,      Southern        Appalachian

essentially asks us to reweigh the evidence before the ALJ.                                 And

as we have already made clear, we may not do so.                         Hays, 907 F.2d

at 1456.       It is clear from the ALJ’s decision and order that he

thoroughly considered all of the medical reports before him and

found in favor of Adkins based on substantial evidence.

      Further,     to     the    extent    that    Southern       Appalachian          argues

that the ALJ mistakenly “referred to the cause of disability as

the claimant’s ‘significant restrictive pulmonary impairment’”

(Appellant’s Br. at 20), we fail to see the salience of this


                                           10
mistake, assuming simply for the sake of argument that it is

one.     After      all,   the   ALJ    unequivocally   determined,     based   on

substantial      evidence,       that    Adkins   had   legal    pneumoconiosis,

caused at least in part by his prolonged mining employment, and

that Adkins was totally disabled as a consequence.                   See Doss, 53

F.3d at 658.



                                         III.

       In sum, the ALJ’s determination of legal pneumoconiosis and

length    of    mining     employment      were   supported     by    substantial

evidence, and the ALJ weighed all the evidence and explained his

reasoning      in    reaching    his     determinations.        Accordingly,    we

affirm the decision of the Benefits Review Board to uphold the

ALJ’s determination.

                                                                         AFFIRMED




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