                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUL 9 2004
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    ENERGY WEST MINING
    COMPANY,

             Petitioner,

    v.                                                 No. 03-9575
                                                (Agency Nos. 02-0441 BLA
    DIRECTOR, OFFICE OF WORKERS’                                &
    COMPENSATION PROGRAMS,                                 01-0886 BLA)
    UNITED STATES DEPARTMENT                       (Petition for Review)
    OF LABOR,

             Respondent.


    ODESSA JONES, Widow of
    Clell Jones,

             Intervenor.


                           ORDER AND JUDGMENT           *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Claimant Odessa Jones, widow of Clell M. Jones, a retired coal miner, filed

a claim against her husband’s former employer, Energy West Mining Company,

for survivor’s benefits under the Black Lung Benefits Act (the “Act”), 30 U.S.C.

§§ 901-945, alleging that pneumoconiosis    1
                                                 stemming from Mr. Jones’

employment as a coal miner was a substantially contributing cause of his death.

See 20 C.F.R. § 718.205(c). An administrative law judge (ALJ) ruled in favor of

Mrs. Jones, and the Benefits Review Board (the “Board”) affirmed the award of

benefits. Energy West now petitions for review. We exercise jurisdiction under

30 U.S.C. § 932(a) (incorporating into the Act the appeal provisions of 33 U.S.C.

921(c)), and we affirm.

      Mr. Jones worked in a coal mine for over eighteen years, working primarily

as a shuttle car operator in an environment with substantial exposure to coal dust.

He retired in 1985 at the age of sixty-three due to breathing problems. His



1
       Pneumoconiosis, commonly referred to as black lung disease, is defined 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); 20 C.F.R. § 718.201(a).

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breathing difficulties grew worse and he was placed on supplemental oxygen in

1996. Mr. Jones was hospitalized with breathing problems for a month prior to

his death in June 1998. The death certificate identified respiratory failure due to

pulmonary fibrosis as the cause of Mr. Jones’ death. Mrs. Jones then filed her

claim for survivor benefits.

       Following a hearing, the ALJ issued a forty-one page decision and order

granting benefits to Mrs. Jones. The ALJ determined that the evidence of record

was sufficient to establish that coal workers’ pneumoconiosis caused or hastened

Mr. Jones’ death. The Board affirmed the award of benefits in September 2002.

       We review the Board’s decision “to decide whether the Board correctly

concluded that the ALJ’s decision was supported by substantial evidence and not

contrary to law.”    N. Coal Co. v. Dir., OWCP , 100 F.3d 871, 873 (10th Cir. 1996).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”     Id. (quotations omitted). “[I]n deciding

whether substantial evidence exists to support the ALJ’s decision, the court

cannot reweigh the evidence, but may only inquire into the existence of evidence

to support the trier of fact.”   Id. (quotation omitted).

       “Under the regulations, a finding of pneumoconiosis may be based on any

of the following: (1) a chest X-ray; (2) a biopsy or autopsy; (3) certain regulatory

presumptions; or (4) a physician’s sound medical judgment based on objective


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medical evidence.”   Id. at 873-74 (citing 20 C.F.R. § 718.202 (a)(1)-(4)).

None of the regulatory presumptions set forth in section 708.202(a)(3) were

applicable in this case, and the ALJ determined that chest X-rays and CT scan

evidence did not establish that Mr. Jones had pneumoconiosis.

      The ALJ then considered the autopsy and medical evidence together.

He detailed the autopsy report of Dr. Randolph, the hospital pathologist who

performed the autopsy, which concluded that Mr. Jones’ lungs exhibited diffuse

alveolar damage and pulmonary fibrosis. Because Dr. Randolph did not opine as

to the cause of Mr. Jones’ death, however, the ALJ concluded it did not support

a finding that pneumoconiosis contributed to his death.

      The ALJ was obliged to evaluate and choose between the conflicting

medical opinions presented by two groups of physicians who examined the

autopsy slides and reports and Mr. Jones’ medical records. One group supported

Mrs. Jones’ claims: Drs. Green and James, who submitted reports on Mrs. Jones’

request, and Dr. Perper, who submitted a report at the request of the District

Director of Office of Workers’ Compensation Programs (OWCP). This group

opined that the miner died as a result of a progressive interstitial lung disease

caused by exposure to dust and silica within the coal mines. The other group

refuted Mrs. Jones’ claims: Drs. Kleinerman, Tuteur, who submitted reports at the

request of Energy West, and Dr. Naeye, who submitted a report on behalf of the


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District Director. This latter group opined that the cause of death was a rapidly

progressive interstitial fibrosis which destroyed Mr. Jones’ lungs over a two-year

period, and that this fibrosis would have caused his death even if he had never

been exposed to coal dust. When such disputes arise, “it is within the sole

province of the ALJ to weigh conflicting medical evidence.”    N. Coal Co. ,

100 F.3d at 873; see also Hansen v. Dir., OWCP , 984 F.2d 364, 370 (10th Cir.

1993) (“[W]here medical professionals are in disagreement, the trier of fact is in a

unique position to determine credibility and weigh the evidence.”). The ALJ’s

decision set forth an exhaustive review of the conflicting medical reports and

described in detail his reasons for crediting and discrediting the opinions of the

many physicians. Ultimately, the ALJ gave greater weight to the opinions of

Drs. Green, James and Perper.

      On appeal, Energy West contends that the ALJ: (1) failed to weigh the

radiological evidence with the medical opinion evidence; (2) failed to consider

the opinions of physicians who treated Mr. Jones during his lifetime; (3) failed to

address contradictions in assessment of autopsy findings; and (4) erred in

determining pneumoconiosis hastened Mr. Jones’ death. We are satisfied from

our review that the ALJ satisfied his obligation under 30 U.S.C. § 923(b) to

consider all relevant evidence and under § 718.202, which expressly permits a

finding that pneumoconiosis hastened a miner’s death by medical opinion


                                          -5-
testimony notwithstanding the presence of negative X-ray evidence.    See

§ 718.202(a)(4). We agree with the Board that the ALJ’s failure to explicitly

weigh the medical reports of physicians who examined the miner during his

lifetime was harmless because the other medical evidence relied upon by the ALJ

was largely based upon the miner’s autopsy records and slides, which are more

reliable because they allow for more complete examination of the lungs.

See Terlip v. Dir., OWCP , 8 BLR 1-363, at 1-364 (DOL Ben. Rev. Bd. 1985)

(holding that administrative law judge’s deference to autopsy evidence over X-ray

evidence was reasonable because “autopsy evidence is the most reliable evidence

of the existence of pneumoconiosis”).

      Further, we disagree with Energy West’s contention that the ALJ ignored

“contrary” evidence from Dr. Randolph, the autopsy prosecutor. Dr. Randolph

did not, as Energy West suggests, make a finding that there was no evidence of

pneumoconiosis; instead, as the ALJ found, he made no assessment with respect

to the existence of the disease. Energy West presents numerous arguments

asserting the general proposition that the ALJ erred in crediting certain medical

opinions over others. We have carefully reviewed the ALJ’s decision and all of

the medical evidence in the record. The ALJ fully explained why he credited

certain evidence over other evidence and how he reached the conclusion that the

miner’s death was hastened by pneumoconiosis. We find that the ALJ’s reasons


                                          -6-
for crediting some physician reports and opinions over others were, in all

instances, well-supported by the record, rational and reasonable. Energy West

simply disagrees with the reasons the ALJ gave for weighing the conflicting

evidence as he did. As the Board correctly concluded, however, the reasons

advanced by the ALJ were legally proper and they were supported by substantial

evidence. Finally, we disagree with Energy West’s contention that, in finding the

pneumoconiosis hastened the miner’s death, the ALJ erred in failing to find

pneumoconiosis reduced his life by a specific, estimable time.     See N. Coal Co. ,

100 F.3d at 874 (“we . . . adopt the Director’s interpretation of a ‘substantially

contributing cause or factor leading to the miner’s death’ as meaning hastening

death to any degree”) (emphasis added).

      We conclude that the ALJ applied the correct legal standard and that his

decision is supported by substantial evidence. The Decision and Order of the

Benefits Review Board is AFFIRMED.


                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




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