UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VALLEY CAMP COAL COMPANY,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                               No. 95-2261
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
SAMUEL J. MCKAY,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(92-0636-BLA)

Argued: December 5, 1996

Decided: January 7, 1997

Before WILKINSON, Chief Judge, and
ERVIN and HAMILTON, Circuit Judges.

_________________________________________________________________

Petition denied by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Ronald Bruce Johnson, MCDERMOTT, BONENBER-
GER, MCDERMOTT & GALLAWAY, Wheeling, West Virginia, for
Petitioner. John George Paleudis, HANLON, DUFF, PALEUDIS &
ESTADT CO., L.P.A., St. Clairsville, Ohio, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Valley Camp Coal Company (Valley Camp) seeks review of a
decision of the Benefits Review Board (the Board) upholding the
administrative law judge's (the ALJ) decision to grant black lung ben-
efits to Samuel McKay under the Black Lung Benefits Act of 1977
(the Act), 30 U.S.C. §§ 901-945. Because the ALJ's finding that
McKay qualified for the irrebuttable presumption of total disability
due to pneumoconiosis, see 20 C.F.R. § 718.304, is supported by sub-
stantial evidence, we deny Valley Camp's petition for review.

I.

McKay was born on September 2, 1914, and worked approxi-
mately forty-four years in coal mines. He worked for Valley Camp
until 1978, when he retired.

In June 1990, McKay had a lung operation, the purpose of which
was to remove a mass from his right lung, which his doctors feared
was a cancerous growth. Dr. Alden G. McBee performed a gross and
microscopic examination of the mass and diagnosed"Fibrosis,
Anthracosis, And Focal Emphysema Consistent With Anthracosilico-
tic Macule Of Pneumoconiosis." (J.A. 10).

Dr. Richard L. Naeye subsequently examined the surgical patho-
logical report, as well as four slides with tissue that had been removed
at surgery, and reported that the tissue indicated moderately severe
simple coal worker's pneumoconiosis, but not complicated coal work-
er's pneumoconiosis. Dr. Naeye also stated, however, that he did not
have enough tissue to determine the overall status of coal worker's
pneumoconiosis in McKay's lungs.

Dr. Robert B. Altmeyer examined McKay on two occasions, once
in 1985 and once on July 12, 1991. Following his examination of

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McKay on July 12, 1991, Dr. Altmeyer stated in his report that Dr.
McBee's pathology report indicates a "complicated lesion of pneumo-
coniosis." (J.A. 48). However, after subsequently reviewing the
pathology reports of both Dr. McBee and Dr. Naeye, Dr. Altmeyer
testified in his deposition that Dr. McBee's pathology report does not
describe complicated pneumoconiosis.

Finally, at least three qualified "B" x-ray readers* opined that pre-
operative x-rays from June 1990 showed a Category A opacity larger
than one centimeter in diameter. Narrative reports of the x-rays
referred to the x-ray findings as evidence of, or consistent with, "com-
plicated pneumoconiosis."

On July 25, 1990, McKay filed a claim for benefits under the Act.
McKay's claim was initially denied on September 18, 1990, on the
ground that McKay had failed to present evidence of a material
change in condition since a previous denial of benefits entered on
October 1, 1985. McKay then filed a request for reconsideration,
which was denied on November 13, 1990.

McKay subsequently requested a hearing before the Office of
Administrative Law Judges, and on January 29, 1993, a hearing was
held before an ALJ. After weighing all of the evidence, the ALJ found
that McKay qualified for an irrebuttable presumption of total disabil-
ity as a result of complicated pneumoconiosis under 20 C.F.R.
§ 718.304(a) and (b). The ALJ found that the description given by Dr.
McBee, the pathologist who performed the initial examination of the
mass removed from McKay's lung, indicated a "massive lesion."
The ALJ found, therefore, that McKay qualified for the irrebuttable
presumption of complicated pneumoconiosis under 20 C.F.R.
§ 718.304(b). See 20 C.F.R. § 718.304(b) (providing for irrebuttable
presumption of total disability due to pneumoconiosis where biopsy
or autopsy yields massive lesions in lung).
_________________________________________________________________

*A "B" reader is a radiologist who has demonstrated his or her profi-
ciency in assessing x-ray evidence of pneumoconiosis by successfully
completing an examination conducted by or on behalf of the Department
of Health and Human Services. Mullins Coal Co., Inc. of Virginia v.
DOWCP, 484 U.S. 135, 146 n.16 (1987).

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With regard to Dr. Naeye's report, the ALJ noted that Dr. Naeye
did not have an opportunity to examine the entire section of removed
lung tissue, but rather was limited to examining four microscopic
slides. In addition, the ALJ noted that even Dr. Naeye qualified his
opinion by stating that he did not have enough tissue "to determine
the overall status of coal worker's pneumoconiosis in [McKay's]
lungs." (J.A. 53).

Addressing Dr. Altmeyer's conclusions, the ALJ noted that Dr.
Altmeyer placed great emphasis upon epidemiological studies indicat-
ing that complicated pneumoconiosis almost always occurs in the
presence of a high profusion of simple pneumoconiosis. The ALJ
concluded, however, that epidemiological studies of broad popula-
tions are of limited relevance to the particular circumstances of
McKay's case. Therefore, the ALJ did not credit Dr. Altmeyer's con-
clusions.

The ALJ next considered the x-ray evidence and noted that several
qualified x-ray readers had reviewed the preoperative x-rays and
agreed that the lesion in McKay's right lung qualified as a Category
A large opacity. Therefore, the ALJ concluded that these findings
resulted in an irrebuttable presumption that McKay was totally dis-
abled due to pneumoconiosis under 20 C.F.R. § 718.304(a). See id.
§ 718.304(a) (providing for irrebuttable presumption of total disabil-
ity due to pneumoconiosis where chest x-ray diagnosis yields one or
more opacities greater than one centimeter in diameter that would be
classified in Category A, B, or C in specified classifications).

The Board affirmed the ALJ's decision on April 25, 1995. The
Board found that the ALJ's finding that McKay qualified for the irre-
buttable presumption of total disability due to complicated pneumoco-
niosis was supported by substantial evidence. Valley Camp petitions
for review.

II.

A.

When a claimant appeals a denial of benefits under the Act, the
ALJ is responsible for "making factual findings, including evaluating

                    4
the credibility of witnesses and weighing contradicting evidence."
Doss v. DOWCP, 53 F.3d 654, 658 (4th Cir. 1985). The Board then
reviews the ALJ's findings "to determine if they are `supported by
substantial evidence in the record considered as a whole.'" Id. (quot-
ing Wilson v. Benefits Review Board, 748 F.2d 198, 199-200 (4th Cir.
1984)). We review the Board's decision for errors of law and to
ensure that the Board adhered to its statutory standard of review of
factual determinations. Id. Thus, "we must affirm the Board if it prop-
erly determined that the ALJ's findings are supported by substantial
evidence, keeping in mind 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. (quoting
Smith v. DOWCP, 843 F.2d 1053, 1057 (7th Cir. 1988)).

B.

Valley Camp first asserts that the ALJ's factual findings were not
supported by substantial evidence. Specifically, Valley Camp argues
that the ALJ erroneously interpreted the medical evidence and relied
on this interpretation in concluding that McKay qualified for the irre-
buttable presumption of total disability due to complicated pneumoco-
niosis.

Valley Camp is correct that "an ALJ cannot substitute his or her
opinion for that of a physician." Walker v. DOWCP, 927 F.2d 181,
184 n.4 (4th Cir. 1991). However, having considered the evidence on
which the ALJ relied, we believe that his conclusion that McKay
qualified for the irrebuttable presumption was supported by substan-
tial evidence. The ALJ relied not only on Dr. McBee's pathology
report, but also on x-ray evidence that indicated a Category A opacity
of greater than one centimeter in diameter, sufficient to qualify
McKay for the irrebuttable presumption under 20 C.F.R.
§ 718.304(a). While Dr. Naeye's and Dr. Altmeyer's reports do not
support the ALJ's conclusions, Dr. McBee's report, in conjunction
with McKay's x-ray evidence, provides substantial evidence to sup-
port his conclusion that McKay qualified for the irrebuttable pre-
sumption of total disability under 20 C.F.R. § 718.304.

C.

Valley Camp also argues that the ALJ improperly rejected the
opinions of Dr. Naeye and Dr. Altmeyer. According to Valley Camp,

                    5
the ALJ improperly disregarded Dr. Naeye's opinion as inferior to Dr.
McBee's and improperly ignored Dr. Altmeyer's report.

As noted above, the ALJ discussed both Dr. Naeye and Dr. Alt-
meyer's opinions and gave specific reasons for crediting Dr. McBee's
opinion over the contrary opinions of Dr. Naeye and Dr. Altmeyer.
Therefore, the ALJ did not improperly reject the opinions of Dr.
Naeye and Dr. Altmeyer.

III.

We agree with the Board's decision to uphold the ALJ's award of
black lung benefits to McKay as based on substantial evidence.
Accordingly, the petition for review is denied.

PETITION DENIED

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