                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 06-2172




WESTMORELAND COAL COMPANY, INCORPORATED,

                Petitioner,

           v.


CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(05-1000-BLA)


Argued:   May 15, 2008                       Decided:   August 18, 2008


Before WILKINSON and GREGORY, Circuit Judges, and Henry F.
FLOYD, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished opinion.   Judge Wilkinson wrote the
opinion, in which Judge Floyd joined.   Judge Gregory wrote a
dissenting opinion.


ARGUED: Douglas Allan Smoot, JACKSON & KELLY, PLLC, Charleston,
West Virginia, for Petitioner. John J. Appelbaum, WASHINGTON &
LEE UNIVERSITY, School of Law, Lexington, Virginia, for
Respondents. ON BRIEF: Kathy L. Snyder, JACKSON & KELLY, PLLC,
Morgantown, West Virginia, for Petitioner.     Mary Z. Natkin,
Renae Patrick, Thomas J. Maas, WASHINGTON & LEE UNIVERSITY,
School of Law, Lexington, Virginia, for Respondent Charles M.
Amick. Jonathan L. Snare, Acting Solicitor of Labor, Rae Ellen
Frank James, Deputy Associate Solicitor, Patricia M. Nece,
Counsel for Appellate Litigation, Richard A. Seid, Senior
Attorney, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington, D.C., for Federal Respondent.


Unpublished opinions are not binding precedent in this circuit.




                                2
WILKINSON, Circuit Judge:

       Westmoreland Coal Company (“Westmoreland”), for the second

time,    petitions     for    review       of       a    decision    and    order    of   the

Department of Labor’s Benefits Review Board (“BRB”) affirming

the    Administrative        Law    Judge’s         (“ALJ”)    award       of    black    lung

benefits to Charles Moore Amick, now deceased.                               In our prior

consideration of this case, we affirmed all findings of the ALJ

except    those    related         to    the    crediting       and       discrediting     of

various    medical     opinions,          and       we    remanded    to     the    ALJ   for

reconsideration of the medical opinion evidence.                                 On appeal,

Westmoreland again contends that the award of benefits to Mr.

Amick must be set aside because the ALJ’s decision to give more

weight to the opinions of Mr. Amick’s doctors and less weight to

those of Westmoreland’s doctors was irrational and unsupported

by substantial evidence.                Because the decision to award benefits

to Mr. Amick is supported by substantial evidence, we affirm the

order of the BRB.



                                               I.

                                               A.

       The Black Lung Benefits Act (“BLBA”) provides benefits to

coal miners who are totally disabled because of pneumoconiosis,

also     known    as   black       lung        disease,      and     to    the     surviving

                                                3
dependents of coal miners who have died from the disease.                                           30

U.S.C. § 901(a) (2000); Mullins Coal Co. v. Dir., OWCP, 484 U.S.

135, 138 (1987).            A coal miner or his surviving dependent may

seek benefits under the BLBA by filing a claim with the District

Director     in    the     Department          of     Labor’s        Office          of     Workers’

Compensation       Programs,        who       determines         whether         a        particular

claimant is eligible for benefits and which employer will be

responsible       for    those     benefits.              See   20    C.F.R.          §§ 725.301-

725.423     (2007).          After         the       District        Director              makes      a

determination       about     benefits,             either      party      may       appeal         and

request a hearing before an ALJ.                      Id. §§ 725.450-725.480.                       The

ALJ’s decision is appealable to the BRB, id. § 725.481, and then

to the court of appeals for the circuit in which the respiratory

impairment      occurred.          33     U.S.C.         § 921(c)     (2000);             20    C.F.R.

§ 725.482.

     The BLBA defines pneumoconiosis as a “chronic dust disease

of   the    lung     and     its     sequelae,            including        respiratory              and

pulmonary impairments, arising out of coal mine employment.” 30

U.S.C.     § 902(b)       (2000).          As       of    January         2001,       20        C.F.R.

§ 718.201(c)       made     clear       the     long-held        understanding                 by   the

courts     of     appeals     that        pneumoconiosis             is    a      “latent           and

progressive disease which may first become detectable only after

the cessation of coal mine dust exposure.”                            See, e.g., Mullins

                                                4
Coal Co., 484 U.S. at 151; LaBelle Processing Co. v. Swarrow, 72

F.3d 308, 314 (3d Cir. 1995); Lovilla Coal Co. v. Harvey, 109

F.3d 445, 450 (8th Cir. 1997); Orange v. Island Creek Coal Co.,

786 F.2d 724, 727 (6th Cir. 1986); Consolid. Coal Co. v. Chubb,

741 F.2d 967, 973 (7th Cir. 1984).

       As of January 2001, federal regulations also made clear

what courts had long recognized, namely, that pneumoconiosis as

defined    by    the    BLBA     has    both      a     “clinical”     and    a    “legal”

manifestation.         20 C.F.R. § 718.201(a)(1)-(2); see, e.g., Nat’l

Mining Ass’n v. Dep’t. of Labor, 292 F.3d 849, 869 (D.C. Cir.

2002) (noting that the distinction between clinical and legal

pneumoconiosis is recognized by all the circuits that considered

the issue); Gulf and Western Industries v. Ling, 176 F.3d 226,

231-32 (4th Cir. 1999).            Clinical pneumoconiosis, also known as

“medical      pneumoconiosis,”           is       “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.” 20

C.F.R. § 718.201(a)(1).                Legal pneumoconiosis is defined much

more    broadly,       and     includes       “any      chronic      lung    disease     or

impairment       and     its     sequelae         arising      out     of    coal       mine

employment.”      Id.    § 718.201(a)(2).




                                              5
                                                 B.

      Charles Moore Amick, now deceased, worked as a coal miner

for thirty-three years.           From 1946 until 1962, Mr. Amick worked

in strip mining, and from 1962 until he retired in 1983, he

worked underground.          During those years, he performed numerous

jobs: truck driver, mechanic, electrician, bulldozer operator,

timberman, cutting machine operator, and scoop operator.                           During

his last eleven years as a coal mine employee, Mr. Amick ran a

supply motor, which required him to load and unload roof bolts,

timbers, and other supplies.             Mr. Amick also had smoked roughly

one pack of cigarettes each day from 1941 until around 1988.

      In December of 1980, Mr. Amick filed a claim for black lung

benefits, which the District Director denied in July of 1981.

Mr. Amick applied again in April 1983, and the District Director

denied his claim in May of 1984.                 Mr. Amick applied for benefits

a   third    time    in   March   of    2000,         and   this   time   the   District

Director awarded benefits.             On appeal to the ALJ, the award was

affirmed, on the grounds that Mr. Amick had proven the existence

of total disability due to pneumoconiosis.

      In affirming the District Director’s award of benefits, the

ALJ considered the opinions of numerous physicians, all of whom

agreed      that    Mr.   Amick   had    a       chronic      obstructive       pulmonary

disease (COPD) which rendered him “totally disabled” as defined

                                             6
by federal regulations.                  See 20 C.F.R. § 718.204(b)(1).                        The

doctors    disagreed,         however,         as   to     the    cause     of   Mr.    Amick’s

impairment.        Mr. Amick’s doctors -- Drs. Cohen and Koenig, as

well as a doctor for the Department of Labor, Dr. Rasmussen --

found that his COPD was due, at least in part, to exposure to

coal mine dust during his coal mine employment. Westmoreland’s

doctors -- Drs. Zaldivar, Stewart, Castle, Spagnolo, and Morgan,

as well as a doctor for the                    Department of Labor, Dr. Daniel --

all opined that Mr. Amick’s impairment was the result of his

long-time smoking habit.

     The    ALJ    found      the    opinions         of    Mr.    Amick’s       doctors     more

persuasive       than    those      of    Westmoreland’s           physicians,         and   thus

awarded    benefits      to    Mr.       Amick.          The     BRB   affirmed     the      ALJ’s

decision.      Amick v. Westmoreland Coal Co., BRB No. 03-0256 BLA

(Jan.   21,    2004).         On    appeal,         this    court      affirmed     the      BRB’s

holdings that one, Mr. Amick’s claim was timely filed, that two,

the ALJ did not err in applying amended portions of 20 C.F.R. §§

718 and 725 to Mr. Amick’s claims, and that three, the ALJ

applied    the     correct     test       to    determine         whether    Mr.    Amick     had

established a material change in condition.                              Westmoreland Coal

Co. v. Amick, 123 Fed. Appx. 525, 527-530 (4th Cir. 2004).

     However,       this      court       vacated          the    award     of     black     lung

benefits      to   Mr.     Amick         and    remanded         the    case     for    further

                                                7
consideration     on     the    grounds      that,      although      the    BRB’s

conclusions regarding the credibility of the doctors “might be

supported by substantial evidence,” the reasons given by the ALJ

for discrediting Westmoreland’s doctors were not supported by

substantial evidence in the record.1           Id. at 533.

     On remand, the ALJ again awarded benefits to Mr. Amick.                    In

that opinion, the ALJ noted that the opinions of Drs. Zaldivar,

Stewart, Castle, Spagnolo, Cohen, and Koenig were entitled to

the most deference because those physicians were board-certified

in pulmonary disease.      Again, though, the ALJ found the opinions

of Drs. Cohen and Koenig more persuasive than those of the other

physicians,     noting   that   those       opinions    --   unlike     those   of

Westmoreland’s doctors -- discussed the latent and progressive

nature   of   pneumoconiosis,      were       well     supported   by       medical

literature most consistent with the findings of the Department

of Labor regarding the nature of pneumoconiosis, and took into


     1
      In particular, this court noted that, contrary to the ALJ’s
findings otherwise, Drs. Zaldivar, Stewart, and Castle had
indeed found that Mr. Amick’s COPD was unrelated to his coal
mining employment, and Drs. Zaldivar, Stewart, Castle, and
Spagnolo had in fact addressed legal pneumoconiosis in their
opinions.   Amick, 123 Fed. Appx. at 532-33.    Further, we held
that Westmoreland’s physicians were not, as the ALJ had
suggested, required to consider medical literature presented by
Dr. Koenig. Finally, we noted that Dr. Morgan’s opinion did not
contradict the BLBA, and thus the ALJ erred in discrediting it
for that reason alone. Id. at 532-33.


                                        8
account the possible effects of both cigarette smoking and coal

mine dust exposure on Mr. Amick’s condition.                           The BRB affirmed,

noting    that     the     ALJ   had   followed      this   court’s       directives    on

remand and had properly exercised his discretion in determining

which medical opinions were most persuasive.

      Westmoreland timely appeals.



                                            II.

      Westmoreland          attacks     the        ALJ’s    reasons       for    awarding

benefits      to     Mr.     Amick     as     irrational         and    unsupported     by

substantial evidence.            We must affirm the decision of the BRB if

it properly determined that the ALJ’s findings were supported by

substantial evidence in the record considered as a whole.                             See,

e.g., Doss v. Dir., OWCP, 53 F.3d 654, 658 (4th Cir. 1995).                            In

so doing, we bear in mind that it is the role of the ALJ -- who

has familiarity with this field -- to make factual findings, to

evaluate the credibility of witnesses, and to weigh conflicting

evidence.      Id.       Moreover, we note that “a reviewing body may not

set   aside    an    inference       merely       because   it    finds    the   opposite

conclusion more reasonable or because it questions the factual

basis.”       Id. at 659.         Guided by these principles, we turn to

Westmoreland’s specific claims.




                                              9
                                          A.

        Westmoreland      first   contends     that    the      ALJ’s     decision     to

credit the opinions of Drs. Cohen and Koenig was irrational and

unsupported by substantial evidence.               Contrary to Westmoreland’s

argument, however, the evidence in the record supporting the

ALJ’s conclusions is sufficiently substantial “as a reasonable

mind might accept as adequate to support” the ALJ’s decision.

See Richardson v. Perales, 402 U.S. 389, 401 (1971); see also 5

U.S.C. § 557(c)(3)(A) (requiring an ALJ to provide an adequate

explanation for his findings and conclusions).                       In particular,

the ALJ first noted that both Drs. Cohen and Koenig, unlike

Westmoreland’s physicians, recognized and discussed the latent

and progressive nature of pneumoconiosis.                    For example, as the

BRB    pointed     out,    both   Drs.    Koenig   and     Cohen    considered       the

relationship       between     the   progressive       nature      of     Mr.    Amick’s

disability (as shown by Mr. Amick’s worsening pulmonary function

test     results    from      1983   to    2001,   his       worsening          diffusion

impairment from 1991 to 2001, and his worsening hypoxemia at

rest)     and    the      progressive     nature      of   legal        and      clinical

pneumoconiosis.

       The ALJ also explained that the opinions of Drs. Cohen and

Koenig     included       a   thorough     discussion      of      (and       were   well

supported by) medical literature that was consistent with the

                                          10
Department of Labor’s findings that pneumoconiosis is a latent

and progressive disease, and that an obstructive impairment may

be “legal pneumoconiosis.”          In fact, Dr. Koenig’s conclusions

were supported by forty-two published, peer-reviewed articles.

Finally, the ALJ credited the opinions of Drs. Cohen and Koenig

because,   in     contrast   with       the    opinions    of    Westmoreland’s

doctors,   they    both    specifically        and    clearly    addressed      the

possible contribution of both cigarette smoke and coal dust to

Mr. Amick’s disability.       See Peerless Eagle Coal Co. v. Taylor,

107 F.3d 867, 867 (Table) (4th Cir. 1997) (approving the ALJ’s

decision to discredit a physician for failing to explain his

conclusions     “that   smoking   was    the   sole    cause    of   the     miner’s

breathing impairment . . . and that coal dust exposure played no

role at all.”)     As Dr. Koenig’s report explained, the importance

of considering both possible contributing factors is highlighted

by the findings of numerous medical studies, which indicate that

the   symptoms,     pulmonary     function       tests,    and       chest    x-ray

appearance of COPD are identical regardless of whether the COPD

is caused by coal dust, cigarette smoke, or both.

      Nonetheless, Westmoreland contends that the ALJ’s reasons

for crediting the opinions of these two doctors were invalid.

To begin, Westmoreland argues that the black lung regulations do

not demand that physicians discuss the latent and progressive

                                        11
nature of pneumoconiosis, and thus, the ALJ’s decision to credit

the opinions of Drs. Cohen and Koenig for doing so was error.

While     true       that    the     regulations         do       not      impose     such     a

requirement, considering that both the black lung regulations as

well    as   numerous,       long-standing            decisions       of    the     courts    of

appeals recognize the progressivity of pneumoconiosis, the ALJ

was    not     precluded      from    considering            as   more     persuasive        the

opinions       of    those    doctors      who    took        that      characteristic        of

pneumoconiosis into account.                 This is especially true in this

case, given that the worsening of Mr. Amick’s symptoms did not

occur until eight years after he retired from his coal mining

employment.

       Westmoreland         also   insists       that    Drs.        Cohen     and   Koenig’s

thorough discussion of medical literature cannot provide a basis

for the ALJ’s decision to credit his opinion, because the ALJ

failed to “resolv[e] the conflicts” between the literature cited

by Drs. Cohen and Koenig and that cited by Drs. Zaldivar and

Morgan.         However,      as     the   ALJ    recognized,            and   as    the     BRB

explained in detail, the Department of Labor already reviewed

the medical and scientific literature before promulgating its

revised regulations.           See generally 65 Fed. Reg. 79,937-51 (Dec.

20, 2000).          The ALJ’s decision to credit Drs. Cohen and Koenig

for    their     thorough     discussion         of    the    medical       literature       was

                                            12
therefore valid, in that it was, as the ALJ and BRB made clear,

more consistent with the Department of Labor’s findings that

pneumoconiosis is latent and progressive and that an obstructive

impairment       may    be     “legal      pneumoconiosis.”              20   C.F.R.

§ 718.201(a)(2), (c).

                                          B.

        Westmoreland    next     contends      that     the   ALJ’s    decision     to

discredit Westmoreland’s doctors was irrational and unsupported

by substantial evidence.           Again, however, the ALJ’s decision to

afford less weight to the opinions of Westmoreland’s doctors is

amply    supported     by     evidence    in     the   record.        Regarding    Dr.

Zaldivar specifically, the ALJ found his opinion less persuasive

because he made contradictory statements about the relevance of

x-ray evidence in diagnosing pneumoconiosis.                     For example, Dr.

Zaldivar acknowledged that a positive chest x-ray finding was

not needed for a diagnosis of coal workers’ pneumoconiosis, yet

he   also   stated     that    “[t]he    x-ray    is   absolutely      necessary    to

determine that the exposure has been high enough for [Mr. Amick]

to inhale and to retain the dust.”                     See Midland Coal Co. v.

Dir.,    OWCP,   358    F.3d    486,    492    (7th    Cir.   2004)    (approving    a

similar ALJ finding on the grounds that requiring x-ray evidence

of pneumoconiosis is contrary to the BLBA).




                                          13
       Moreover, regarding Drs. Daniel, Castle, Spagnolo, Stewart,

and Morgan, the ALJ found their opinions less persuasive because

none of them took into account the latent and progressive nature

of     pneumoconiosis.          For example, Dr. Castle concluded that Mr.

Amick’s       impairment    could    not   have       been   caused     by   coal     dust

exposure       because    Mr.    Amick   stopped       working     in   1983   and     the

deterioration of his condition began in 1991.                           Similarly, Dr.

Stewart cited Mr. Amick’s deterioration after 1991 as a basis

for attributing his COPD solely to cigarette smoking.                               These

findings, as both the ALJ and the BRB pointed out, ignore the

fact that pneumoconiosis is a latent and progressive disease.

See, e.g., Roberts & Schaefer Co. v. Dir., OWCP, 400 F.3d 992,

999 (7th Cir. 2005) (holding that it is appropriate for an ALJ

to give less weight to a physician’s opinion when it lacked

consideration        of     the     latent      and     progressive          nature    of

pneumoconiosis); Sea “B” Mining Co. v. Dunford, 188 Fed. Appx.

191, 199 (4th Cir. 2006) (same);                Four L Coal Co. v. Dir., OWCP,

157 Fed. Appx. 551, 555 (4th Cir. 2005) (same); see also Lewis

Coal    Co.    v.   Dir.,   OWCP,    373     F.3d     570,   580   (4th      Cir.   2004)

(“Little weight can be given to medical findings that conflict

with the BLBA’s implementing regulations,” including the finding

that pneumoconiosis is a “progressive disease.”).




                                           14
       Finally,        the     ALJ        found     the     opinions          of     all      of

Westmoreland’s doctors less persuasive than those of Drs. Cohen

and    Koenig     because      they       failed     to    take    into    account          both

cigarette      smoking       and    coal    mine     dust    exposure         as    potential

causes of Mr. Amick’s COPD.                 In particular, the ALJ discredited

the opinions of Drs. Daniel, Castle, Spagnolo, and Stewart for

failing to explain why no part of Mr. Amick’s disability was due

to thirty-three years of coal dust exposure.                          See Island Creek

Coal    Co.     v.   Compton,        211    F.3d     203,    213    (4th       Cir.     2000)

(approving as valid a similar ALJ finding).                        Relatedly, the ALJ

explained that the opinions of Drs. Daniel, Morgan, and Zaldivar

relied on little more than negative x-ray findings to support

their   conclusion       that       Mr.    Amick’s    impairment       was         solely    the

result of cigarette smoking.                      See 30 U.S.C. § 923(b). (“[N]o

claim for benefits . . . shall be denied solely on the basis of

the results of a chest roentgenogram.”)

       Westmoreland, however, mounts three primary challenges to

the ALJ’s explanations for discrediting the opinions of these

doctors.      First,    Westmoreland         contends       that   the    ALJ        erred    by

“trying to manufacture conflicts in Dr. Zaldivar’s testimony”

regarding the necessity of a positive chest x-ray.                                 As the BRB

recognized,       however,         there    is     ample    support      in    the     record

showing that at times Dr. Zaldivar indicated that a chest x-ray

                                             15
was not needed to establish the existence of pneumoconiosis, and

at others he indicated that a positive chest x-ray was required.

Amick, BRB No. 05-1000 BLA at 4-5 (citing various portions of

the record).

       Westmoreland       also       contends       that        the     ALJ      erred       in

discrediting       the   opinions      of    Drs.    Daniel,          Castle,       Spagnolo,

Stewart,     and     Morgan          for    not    discussing          the     latent       and

progressive     nature     of    pneumoconiosis.                However,        we    already

discussed above that the ALJ may consider medical opinions less

persuasive      if    they      do    not    discuss       the        progressivity          of

pneumoconiosis.          Further,      we   reject       Westmoreland’s         additional

argument that the ALJ’s decision to discredit these physicians

for not discussing pneumoconiosis’s progressivity constituted an

impermissible retroactive application of 20 C.F.R. § 718.201(c).

Westmoreland       has   already       challenged        the     application          of   the

revised 20 C.F.R. §§ 718 and 725 to Mr. Amick’s claim, and in

our 2004 decision, we held that the ALJ did not err in applying

the amended regulations to that claim.                    Amick, 123 Fed. Appx. at

530.     That   decision        is   the    “law    of    the    case,”       and    we    thus

decline to revisit Westmoreland’s challenge to the application

of 20 C.F.R. § 718.201 here.                  See Arizona v. California, 460

U.S. 605, 618 (1983).




                                            16
       Finally,       Westmoreland        argues          that    the   ALJ     impermissibly

shifted       the     burden      of    proof        to    Westmoreland’s        doctors     by

requiring them to “rule out” coal dust exposure as a cause of

Mr. Amick’s COPD.               Westmoreland is of course correct that the

claimant has the burden of proving every element of entitlement

to benefits under the BLBA.                 See 5 U.S.C. § 556(d); Dir., OWCP

v. Greenwich Colleries, 512 U.S. 267, 280-81 (1994).                                    However,

nothing       about      the    ALJ’s   decision          to   discredit      Westmoreland’s

doctors for not discussing coal dust as a potential contributing

cause of Mr. Amick’s COPD relieved Drs. Cohen and Koenig of

their burden to prove every element of Mr. Amick’s claim for

benefits.           And    as    discussed       above,          Drs.   Cohen     and    Koenig

supported their conclusions that Mr. Amick’s totally disabling

impairment was due, at least in part, to thirty-three years of

coal       mine   dust    exposure.       Nevertheless,             even   if    such    burden

shifting occurred, the ALJ’s error was harmless here because, as

discussed, the ALJ provided numerous other valid reasons for

giving less weight to the opinions of Westmoreland’s doctors.2


       2
      Westmoreland also argues that the ALJ erred in discrediting
Drs. Zaldivar and Daniel on the grounds that they supported
their conclusions regarding the cause of Mr. Amick’s COPD with
little other than x-ray evidence.      Specifically, Westmoreland
contends that this finding is factually inaccurate, because Drs.
Zaldivar and Daniel also cited Mr. Amick’s response to
bronchodilator treatment to bolster their conclusions.    The BRB
rejected this argument on the grounds that bronchodilator

                                                17
     Westmoreland sets forth additional challenges to the ALJ’s

determinations regarding the credibility of the physicians, all

of which we have reviewed with care and find lack merit.                In

essence, this case required the ALJ to weigh the credibility of

various opinions from a number of highly qualified doctors.             In

so doing, the ALJ chose which opinions he found most credible,

and he provided an adequate and reasonable explanation for his

choice.     See 5 U.S.C. § 557(c)(3)(A).       It is not our job to

serve as a “super ALJ” and re-weigh all of the evidence, as

Westmoreland essentially urges, in order to reach a contrary

result.

     For    the   foregoing   reasons,   the   order   of   the   BRB   is

affirmed.

                                                                  AFFIRMED




treatment response is unrelated to the potential causes of Mr.
Amick’s COPD. Amick, BRB No. 05-1000 BLA at 10. Nevertheless,
even if, as Westmoreland contends, the BRB’s rejection of this
argument constituted a medical conclusion that lacks support in
the record, the ALJ articulated numerous other valid reasons for
discrediting the opinions of Drs. Zaldivar and Daniel.


                                   18
GREGORY, Circuit Judge, dissenting:

       The regulation defining pneumoconiosis does not require a

physician         to   discuss      the     Alatent       and     progressive@         nature    of

pneumoconiosis.             See        20     C.F.R.        '    718.201.           Since       the

Administrative           Law        Judge         (AALJ@)       incorrectly        discredited

Westmoreland=s         physicians           for    their        failure    to     do    so,     and

committed several factual errors1, I am compelled to dissent.

       The        parties      agree        that        Amick     suffers        from    chronic

obstructive pulmonary disease (ACOPD@) that is totally disabling.

Their dispute is limited to whether Amick=s COPD is caused by

coal       mine    dust,    smoking,         or     a    combination        of    both.         The

employer=s        doctors      -    Drs. Zaldivar,          Stewart,        Castle,      Daniel,

Spagnolo, and Morgan - uniformly opine that Amick=s habit of

smoking approximately one pack of cigarettes per day for nearly

forty years was the cause of his COPD.                             Each of Westmoreland=s

doctors provided significant testimony detailing the rationale

for their decisions, yet the ALJ discounted all of the doctors=

conclusions, in part, because they did not address the latency

or   progressiveness           of    pneumoconiosis.2             For     example,      the     ALJ


       1
      Judge Smith=s opinion concurring and dissenting from the
the Benefits Review Board=s (ABRB@) decision sets out some of
these factual errors. (See J.A. 694-697.)
       2
      While many of the doctors did not explicitly address this
issue, Dr. Zaldivar did so.    Indeed, the Benefits Review Board
(ABRB@) quoted the very portion of Dr. Zaldivar=s trial testimony

                                                  19
dismissed Dr. Spagnolo=s opinion because he Adid not discuss the

progressive and latent nature of coal mine dust exposure.@              (J.A.

674.)     The majority affirmed the ALJ=s reliance on this Aomission@

to devalue the testimony of Westmoreland=s doctors, but it does

not cite to any direct precedent in support. The cases cited by

the   majority   stand   for   the   unassailable      proposition    that    a

doctor cannot base his opinion on the Aflawed premise that a

miner with no apparent pulmonary impairment upon leaving the

coal mines could never thereafter develop a coal dust related

impairment.@ Four L Coal Co. v. Dir., OWCP, 157 Fed. Appx. 551,

555 (4th Cir. 2005).       However, in the instant case, only Dr.

Castle, in my view committed this error.                 The testimony and

findings of Westmoreland=s remaining physicians did not indicate

that any of them disagreed with the fact that pneumoconiosis is

a latent and progressive disease.

        Indeed, as the majority correctly points out, § 718.201(c)

Amade clear the long-held understanding by the courts of appeals

that pneumoconiosis is a >latent and progressive disease.=@            (Maj.

Op. 4.) Beyond the court of appeals, both the Secretary of Labor

and the National Institute of Occupational Health and Safety

concurred     that   § 781.201(c)     codified     the    widely     accepted



in which he specifically addressed               the   progressiveness       of
pneumoconiosis. (J.A. 686, n.3.)


                                     20
scientific      view    regarding    the    latency    and    progressiveness    of

pneumoconiosis.         The very structure of the Black Lung Benefits

Act     (ABLBA@)        implicitly      recognizes           the   latency      and

progressiveness of pneumoconiosis by allowing miners to refile

their previously unsuccessful claims if their medical condition

has changed.

       The sole question that doctors must address in evaluating a

coal miner=s eligibility for black lung benefits under the BLBA

is whether the claimant, at the time of the exam, has clinical

or    legal   pneumoconiosis.          Neither   the    literal    terms   of   the

relevant regulations nor any case law provide that an employer=s

doctors       must     discuss   the       latency    or     progressiveness     of

pneumoconiosis         presumably      because        § 718.201(c)    explicitly

provides that this is the case.

       While there may be substantial evidence to support awarding

Amick benefits, I would remand this case to the ALJ for further

consideration in light of this legal error and for the reasons

set forth in Judge Smith’s opinion.                   As such, I respectfully

dissent.




                                           21
