PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELMER UNDERWOOD,
Petitioner,

v.

ELKAY MINING, INCORPORATED;
HOBET MINING COMPANY; WEST
VIRGINIA C.W.P. FUND; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
                                                                   No. 95-2717
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents,

and

W & G CONSTRUCTION COMPANY;
WHITESVILLE A & S COAL COMPANY,
Parties in Interest - Employers.

On Petition for Review of an Order
of the Benefits Review Board.
(95-0414-BLA)

Argued: October 28, 1996

Decided: February 4, 1997

Before NIEMEYER and MOTZ, Circuit Judges, and
DOUMAR, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Motz and Senior Judge Doumar joined.

_________________________________________________________________
COUNSEL

ARGUED: Roger Daniel Forman, FORMAN & CRANE, L.C.,
Charleston, West Virginia, for Petitioner. Konstantine Keian Weld,
Assistant Attorney General, Charleston, West Virginia; Douglas A.
Smoot, JACKSON & KELLY, Charleston, West Virginia, for
Respondents. ON BRIEF: Darrell V. McGraw, Jr., Attorney General,
Charleston, West Virginia, for Respondent Fund.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

This case presents the question of whether an administrative law
judge ("ALJ"), conducting a hearing on a claim for benefits under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-45, committed reversible
error by admitting cumulative evidence offered by the coal mine oper-
ator. Because we conclude that the ALJ's decision to allow the opera-
tor's evidence did not contravene standards established by the
Administrative Procedure Act, 5 U.S.C. § 556(d), for the admission
of evidence and did not constitute an abuse of discretion, we affirm.

I

Elmer Underwood labored as a coal miner for 40 years and retired
from Elkay Mining, Incorporated, as a supervisor of 38 men. On his
claim for black lung benefits Underwood established clearly that he
suffers from a pulmonary problem, but doctors presented differing
opinions as to whether it was pneumoconiosis, whether it originated
from Underwood's 25-year pack-a-day smoking habit or from coal
mining, and the extent of his disability. In support of his claim,
Underwood submitted evidence from the West Virginia Occupational
Pneumoconiosis Board (which had awarded him partial disability), a
report with various tests from one doctor and nine x-ray readings by
three different doctors. The respondents, in contrast, submitted a radi-
ologist's deposition, reports with various tests from five other doctors,
and multiple x-ray readings by several different doctors. Although
some of the x-rays examined showed disease, the vast majority of the

                     2
x-rays, most of which the coal mine operator had introduced, were
negative. Some of the pulmonary function studies had qualifying val-
ues, but all of the arterial blood gas studies failed to satisfy the regula-
tory minimum standards for disability.

In his opinion denying benefits, the ALJ summarized each of the
medical opinions and evaluated each based not only on its contribu-
tion to the quantity of the evidence presented, but primarily on the
opinion's quality. The ALJ found various problems with the opinions
of Underwood's doctor and credited the doctors whose opinions were
"more consistent with the overwhelmingly negative x-ray evidence,
the reversible nature of at least some of the pulmonary function
studies, and the nonqualifying arterial blood gas study results." The
ALJ concluded that the reports of Underwood's doctors are "out-
weighed in probative effect" by the opinions of Elkay Mining's doc-
tors.

The Benefits Review Board affirmed the ALJ's denial of benefits,
and this appeal followed.

II

Underwood's principal argument on appeal is that the ALJ violated
the Administrative Procedure Act, 5 U.S.C. § 556(d), by admitting
cumulative or repetitive evidence submitted by Elkay Mining. Under-
wood asserts that Elkay Mining's submission of 18 additional eviden-
tiary items relating to various medical issues after the 89th exhibit on
its side constituted an "obscene overdevelopment" of the case.
Because of his limited financial resources, Underwood maintains that
the failure to exclude such evidence "allows the employer to buy
more evidence and win." He contends that with the admission of this
cumulative evidence, the ALJ simply "counted heads" in violation of
Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir. 1992) (noting
that merely "counting heads" is a "hollow" process). He concludes
that if the ALJ had properly applied the Administrative Procedure
Act's prohibition against unduly repetitious evidence, he would have
succeeded in demonstrating entitlement to benefits.

The issue raised presents a legal question about the proper standard
for the admission of evidence in hearings before the ALJ under the

                     3
Black Lung Benefits Act, which we review de novo , see Dehue Coal
Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995); Walker v. Direc-
tor, OWCP, 927 F.2d 181, 183 (4th Cir. 1991), and a question about
the proper application of that standard in allowing allegedly cumula-
tive evidence into the record, which we review for abuse of discre-
tion, see Hinkle v. City of Clarksburg, 81 F.3d 416, 424 (4th Cir.
1996); Hottle v. Beech Aircraft Corp., 47 F.3d 106, 111 (4th Cir.
1995).

In the larger context, we review the decisions of the Benefits
Review Board for errors of law and to assure that the Board adhered
to its statutory authority in reviewing the ALJ's factual determina-
tions. 33 U.S.C. § 921(c); see also Dehue Coal Co., 65 F.3d at 1193.
The Board must affirm the ALJ's decision if it is"supported by sub-
stantial evidence on the record considered as a whole." Banks v. Chi-
cago Grain Trimmers Ass'n, 390 U.S. 459, 467 (1968); 33 U.S.C.
§ 921(b)(3). An ALJ hearing a claim under the Black Lung Benefits
Act is empowered to make credibility determinations and to weigh the
evidence presented. See Zbosnik v. Badger Coal Co., 759 F.2d 1187,
1190 (4th Cir. 1985); Peabody Coal Co. v. Benefits Review Board,
560 F.2d 797, 802 (7th Cir. 1977). Moreover, as trier of fact, the ALJ
is not bound to accept the opinion or theory of any medical expert.
See White v. Newport News Shipbuilding & Dry Dock Co., 633 F.2d
1070, 1075 (4th Cir. 1980). He must evaluate the evidence, weigh it,
and draw his own conclusions.

Hearings conducted under the Black Lung Benefits Act are gov-
erned by the Administrative Procedure Act. See 30 U.S.C. § 932(a)
(incorporating 33 U.S.C. § 919(d), in turn incorporating 5 U.S.C.
§ 554 (the Administrative Procedure Act)); see also 20 C.F.R.
§ 725.452(a); Bethlehem Mines Corp. v. Henderson, 939 F.2d 143,
148 (4th Cir. 1991). And the applicable provision of the Administra-
tive Procedure Act governing the admission of evidence provides:

         Any oral or documentary evidence may be received, but the
         agency as a matter of policy shall provide for the exclusion
         of irrelevant, immaterial, or unduly repetitious evidence.

5 U.S.C. § 556(d).

                     4
Elkay Mining contends that ALJ's are required to admit all evi-
dence, subject to objection, giving it weight where appropriate. Elkay
Mining relies on the Benefits Review Board's statement holding that
"the administrative law judge is required, subject to the objection by
any party, to admit into the record all evidence that has been timely
developed and exchanged in accordance with 20 C.F.R.§ 725.456."
Cochran v. Consolidation Coal Co., 12 BLR 1-136, 1-138 (Ben. Rev.
Bd. 1989). Elkay Mining also points to the language of the Black
Lung Benefits Act which provides that "[i]n determining the validity
of claims under this part, all relevant evidence shall be considered
. . . ." 30 U.S.C. § 923(b) (emphasis added). Underwood, on the other
hand, argues that the Administrative Procedure Act nevertheless
requires the exclusion of "irrelevant, immaterial, or unduly repeti-
tious" evidence. 5 U.S.C. § 556(d). While these contentions of the
parties appear, at first blush, to be in conflict, a closer look demon-
strates that they are not entirely inconsistent.

We begin with the statutory command that the validity of claims
for black lung benefits shall be based on consideration of "all relevant
evidence," 30 U.S.C. § 923(b), and with the recognition that black
lung benefits proceedings are nonjury trials conducted before ALJ's
who are charged with both conducting the hearing and making find-
ings of fact. In ruling on evidence, an ALJ sees both excludable and
nonexcludable evidence, but in making a decision, he considers only
admitted evidence. Because the ALJ is presumably competent to dis-
regard that evidence which should be excluded or to discount that evi-
dence which has lesser probative value, it makes little sense, as a
practical matter, for a judge in that position to apply strict exclusion-
ary evidentiary rules. As we noted in Multi-Medical Convalescent &
Nursing Center of Towson v. NLRB, 550 F.2d 974, 977 (4th Cir.
1977) (footnote omitted):

          It has long been settled that an appellate court will not
          reverse a judgment in a nonjury case because of the admis-
          sion of incompetent evidence, unless all of the competent
          evidence is insufficient to support the judgment or unless it
          affirmatively appears that the incompetent evidence induced
          the court to make an essential finding which would not oth-
          erwise have been made.

                     5
Applying that same rule to administrative agencies, we concluded
bluntly, "Thus, we strongly advise administrative law judges: if in
doubt, let it in." Id. at 978.

The Benefits Review Board has applied our decision in Multi-
Media and reached what might appear to be an almost absolute rule
that the ALJ is required to admit all evidence that is timely developed
and exchanged. See Cochran, 12 BLR at 1-138. But the Board in
Cochran recognized the statutory limitations of relevancy, instructing
at most that where relevance is "questionable," the trier of fact would
be better advised to admit the evidence. See id.

We believe that the Administrative Procedure Act's command that
ALJ's should exclude "irrelevant, immaterial, or unduly repetitious
evidence," 5 U.S.C. § 556(d), need not conflict with the Black Lung
Benefits Act and Cochran. The exclusion of"irrelevant" or "immate-
rial" evidence is not here challenged and is clearly consistent with the
broad statutory mandate of 30 U.S.C. § 923(b). We conclude similarly
that "unduly repetitious evidence" need not be received by an ALJ
hearing cases under the Black Lung Benefits Act. Evidence that is
"unduly repetitious" has little or no probative value and does not fall
within the statutory mandate to consider all "relevant" evidence.
"While the parties certainly have the right to present evidence to
defend or support their respective claims, the ALJ must be vested
with the discretion to limit the impact of voluminous, duplicative evi-
dence." Woodward v. Director, OWCP, 991 F.2d 314, 321 (6th Cir.
1993); see also Pagel, Inc. v. SEC, 803 F.2d 942, 947 (8th Cir. 1986)
(upholding an ALJ's discretion to exclude expert testimony so long
as the ALJ does not act arbitrarily); Yaffe Iron & Metal Co. v. EPA,
774 F.2d 1008, 1016 (10th Cir. 1985) (recognizing an ALJ's discre-
tion to limit evidence); Atlas Copco, Inc. v. EPA, 642 F.2d 458, 467
(D.C. Cir. 1979) ("Courts have generally recognized the discretion
reposed in agencies when it comes to deciding whether to permit the
introduction of particular evidence at a hearing."); Alabama Ass'n of
Ins. Agents v. Board of Governors, 533 F.2d 224, 254 (5th Cir. 1976)
("So long as an administrative agency is not arbitrary, it has some dis-
cretion in determining whether to admit expert evidence"), vacated in
part, 558 F.2d 729 (5th Cir. 1977). Accordingly, we recognize that
the APA grants ALJ's broad discretion to exclude excessive evidence
which lacks significant probative value and, by implication, to limit

                    6
examinations, evaluations, and consultations by experts when such
events will, in the ALJ's judgment, merely give rise to evidence so
unduly repetitious as to be lacking in probative value.

In recognizing that an ALJ is authorized to exclude"unduly repeti-
tious" evidence, however, we do not mean to authorize the ALJ to
exclude merely repetitious or cumulative evidence so long as such
evidence retains nontrivial probative value. He must conclude that the
evidence serves little useful value other than to expand the record,
impose additional cost, or repeat that which is already well estab-
lished in the record. Two independent and qualified expert opinions
that agree on a disputed point may be substantively more probative
than one. And while four similar opinions also may be more probative
than two, it does not follow that four are twice as probative as two.
There is a point of diminishing returns and a point at which additional
evidence provides almost no value. Such determinations are matters
for consideration by the ALJ based on the extent and nature of the
dispute on the issue, the closeness of the question, and the nature of
the opinions and qualifications of the experts giving them.

In Adkins v. Director, OWCP, 958 F.2d 49 (4th Cir. 1992), we
pointed out that in considering expert opinions, merely "counting
heads" with the underlying presumption that two expert opinions ipso
facto are more probative than one is a hollow endeavor and contrib-
utes little when weighing evidence. Id. at 52. While we recognized
that merely counting heads is not the appropriate manner for an ALJ
to weigh numerous and diverse opinions, we did not suggest that two
or three independent, qualified opinions were necessarily of less pro-
bative value than one. In weighing opinions, the ALJ is called upon
to consider their quality. Thus, the ALJ should consider the qualifica-
tions of the experts, the opinions' reasoning, their reliance on objec-
tively determinable symptoms and established science, their detail of
analysis, and their freedom from irrelevant distractions and preju-
dices. In addition, the ALJ should consider whether an opinion was,
to any degree, the product of bias in favor of the party retaining the
expert and paying the fee. To the extent that ALJ's determine that a
particular expert's opinion is not, in fact, independently based on the
facts of a particular claim, but is instead influenced more by the iden-
tity of his or her employer, ALJ's have clear discretion to disregard
such an expert's opinion as being of exceedingly low probative value.

                    7
For example, this circuit, as well as most other circuits, has already
concluded that an ALJ must not rely upon the opinion of an expert
who expresses an opinion based on a premise "antithetical to the
Black Lung Benefits Act" because such an opinion"is not probative."
Thorn v. Itmann Coal Co., 3 F.3d 713, 719 (4th Cir. 1993); see also
Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995);
Robinson v. Missouri Mining Co., 955 F.2d 1181, 1183 (8th Cir.
1992); Robbins v. Jim Walter Resources, Inc., 898 F.2d 1478, 1482
(11th Cir. 1990); Penn Allegheny Coal Co. v. Mercatell, 878 F.2d
106, 109 (3d Cir. 1989); Adams v. Peabody Coal Co., 816 F.2d 1116,
1119 (6th Cir. 1987); Wetherill v. Director, OWCP, 812 F.2d 376,
382 (7th Cir. 1987); Kaiser Steel Corp. v. Director, OWCP, 757 F.2d
1078, 1083 (10th Cir. 1985).

In short, we hold that in considering multiple opinions of medical
experts in black lung benefits cases, ALJ's should recognize that they
must consider all relevant evidence, erring on the side of inclusion,
but that they should exclude evidence that becomes unduly repetitious
in the sense that the evidence provides little or no additional probative
value.

Applying that principle to this case, we cannot conclude that the
ALJ applied the wrong standard or abused his discretion. The chal-
lenged evidence consisted of a group of medical opinions addressing
an array of disputed issues such as whether Underwood suffered from
pneumoconiosis, whether his impairment arose out of coal mine
employment, whether he was totally disabled, and whether he had
experienced a material change since denial of his previous claim.
Those issues were multiplied by evidence of six different x-rays span-
ning a period of ten years and revealing five different levels of opac-
ity perfusion. Against this grid of issues, the medical reports gave
various but undoubtedly overlapping opinions. The ALJ, however,
found them of assistance in his evaluation of Underwood's claim,
concluding that "reports of Drs. Eakle, Walker, Shank, and Rasmus-
sen are outweighed in probative effect by the opinions of Drs. Crisalli,
Fino, Jarboe, Morgan . . . and Tuteur." (Emphasis added). The fact
that the evidence was cumulative does not render it, ipso facto, "un-
duly repetitious" as the term is used in the Administrative Procedure
Act, 5 U.S.C. § 556(d).

                    8
Moreover, we should not conclude that the admission of cumula-
tive evidence, when it increases confidence in the outcome of the pro-
ceedings, constitutes prejudicial error. As the Administrative
Procedure Act's legislative history notes, "[a]n administrative hearing
is to be compared with an equity proceeding in the courts. The mere
admission of evidence is not to be taken as prejudicial error (there
being no lay jury to be protected from improper influence). . . ." S.
Doc. No. 79-248, at 208 (1946).

III

Underwood also claims that the ALJ's decision is not supported by
substantial evidence under the standards of Dehue Coal Co., 65 F.3d
at 1193. In this case, the evidence presented was clearly substantial,
and the ALJ carefully evaluated each opinion in a manner consistent
with the statute, regulations, and our established standards. See, e.g.,
Warth, 60 F.3d at 175. Accordingly, we affirm the decision of the
Benefits Review Board which in turn affirmed the ALJ's decision.

AFFIRMED

                     9
