UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBINSON PHILLIPS COAL COMPANY,
Petitioner,

v.

JOHN CHARLES MCNEW; DIRECTOR,
                                                               No. 97-1974
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(95-2080-BLA, 94-1888-BLA)

Argued: May 4, 1998

Decided: September 16, 1998

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and
BLAKE, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Douglas Allan Smoot, JACKSON & KELLY, Charles-
ton, West Virginia, for Petitioner. Jennifer U. Toth, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director; S.F. Raymond Smith, RUNDLE & RUNDLE,
L.C., Pineville, West Virginia, for Respondent McNew. ON BRIEF:
Martin E. Hall, John W. Walters, JACKSON & KELLY, Lexington,
Kentucky, for Petitioner. J. Davitt McAteer, Acting Solicitor of
Labor, Donald S. Shire, Associate Solicitor for Black Lung Benefits,
Patricia M. Nece, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robinson Phillips Coal Company ("Robinson"), the employer,
appeals the decision of the Benefits Review Board ("BRB") uphold-
ing a finding of the administrative law judge ("ALJ") that John
McNew, a coal miner for at least twenty years, was entitled to bene-
fits under the Black Lung Benefits Act, 30 U.S.C.A.§§ 901-945
(West 1986 & Supp. 1998) ("the Act"). For the reasons stated below,
we affirm the BRB's decision granting benefits.

The procedural background of this case is relatively straightfor-
ward. On September 2, 1993, McNew filed a "duplicate" claim for
benefits.* The Office of Workers' Compensation Programs
("OWCP") found he was entitled to benefits and referred the case for
_________________________________________________________________
*McNew's first application for benefits was filed in 1973 and denied
in 1980. Accordingly, his "duplicate" claim filed in 1993 was subject to
automatic denial absent proof of a "material change in conditions." 20
C.F.R. § 725.309(d) (1998); see Lisa Lee Mines v. Director, OWCP, 86
F.3d 1358 (4th Cir. 1996) (en banc), cert. denied, 117 S.Ct. 763 (1997)
(interpreting the "duplicate" claim regulation). Noting the negative
X-rays at the time of McNew's first application, and finding that he has
since contracted black lung disease and been totally disabled by it, the
ALJ therefore found a material change in conditions. (J.A. at 304).

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a formal hearing before an ALJ, at Robinson's request. ALJ Edith
Barnett heard the case on February 14, 1995, and issued her decision
and order awarding benefits on August 7, 1995. Robinson appealed
to the BRB, which affirmed the ALJ's decision on May 29, 1997.
This appeal followed.

Under the relevant regulations, in order to establish that he is enti-
tled to benefits a claimant must prove by a preponderance of the evi-
dence that: "(1) he has pneumoconiosis; (2) the pneumoconiosis
arose out of his coal mine employment; (3) he has a totally disabling
respiratory or pulmonary condition; and (4) pneumoconiosis is a con-
tributing cause to his total respiratory disability." Milburn Colliery
Co. v. Hicks, 138 F.3d 524, 529 (4th Cir. 1998), citing Robinson v.
Pickands Mather & Co., 914 F.2d 35, 36, 38 (4th Cir. 1990); 20
C.F.R. § 718.201-.204 (1998). Robinson challenges the ALJ's deci-
sion on all elements except total disability.

As recently stated by the Fourth Circuit:

          We review claims for benefits under the Act to determine
          whether substantial evidence supports the ALJ's findings of
          fact. See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193
          (4th Cir. 1995). Substantial evidence is "more than a mere
          scintilla." Consolidated Edision Co. v. NLRB , 305 U.S. 197,
          229 (1938). It is "such relevant evidence as a reasonable
          mind might accept as adequate to support a conclusion." Id.
          In determining whether substantial evidence supports the
          ALJ's factual determinations, we must first address whether
          all of the relevant evidence has been analyzed and whether
          the ALJ has sufficiently explained his rationale in crediting
          certain evidence. See Sterling Smokeless Coal Co. v. Akers,
          131 F.3d 438, 439 (4th Cir. 1997). We review the ALJ's and
          the Board's conclusions of law de novo to determine
          whether they are rational and consistent with applicable law.
          See Dehue, 65 F.3d at 1193.

Milburn, 138 F.3d at 528. On review, the BRB found that the ALJ
acted permissibly within her discretion as a fact-finder, and accord-
ingly affirmed her opinion. Because we find that the ALJ sufficiently
analyzed the relevant evidence, adequately explained her reasons for

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crediting certain evidence and discrediting others, and did not err as
a matter of law, and because the decision she reached is supported by
substantial evidence, we affirm the award of benefits.

Under § 718.202(a), the existence of pneumoconiosis may be
proved by any one of four methods. 20 C.F.R. § 718.202(a) (1998).
The two relied on by the ALJ are (a)(1), chest X-rays in certain classi-
fication categories, and (a)(4), a physician's report exercising sound
medical judgment based on objective medical evidence. Id. Like the
BRB, because we affirm the ALJ's decision under (a)(4), we do not
consider her decision under (a)(1).

The ALJ's opinion demonstrates that she carefully considered and
weighed the numerous x-ray reports, other objective medical evi-
dence, and the reports of the various physicians who examined
McNew. She explained her findings, in part, as follows:

          I find that Dr. Rasmussen's opinion that claimant has
          pneumoconiosis is the most well-reasoned and persuasive of
          these opinions, because it includes the most comprehensive
          analysis of all the elements of claimant's occupational and
          medical history. It is also supported by the findings of the
          West Virginia OPB. On the other hand, Dr. Vasudevan's
          opinion is conclusory, and fails to discuss the evidence of
          Dr. Ranavaya's positive x-ray reading and claimant's occu-
          pational history. Dr. Zaldivar's opinion that his own positive
          chest x-ray reading, and diagnosis of pulmonary fibrosis,
          does not show pneumoconiosis, is unsupported by medical
          authority, in contrast to Dr. Rasmussen's opinion. Dr. Zaldi-
          var also fails satisfactorily to explain why claimant's occu-
          pational history has nothing to do with his lung condition.

(J.A. at 306). For these and other reasons, she concluded that McNew
had met his burden of showing that he had pneumoconiosis.

Robinson and the federal respondent, OWCP, challenge that part of
the ALJ's reasoning where she notes that Dr. Vasudevan's diagnosis
of chronic obstructive pulmonary disease ("COPD") and Dr. Zaldi-
var's diagnosis of pulmonary fibrosis "support a finding of legal
pneumoconiosis." Id. As the ALJ acknowledges in the same para-

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graph, "legal pneumoconiosis" requires a finding of both (1) a
chronic pulmonary disease or pulmonary impairment and (2) that the
disease or impairment is significantly related to, or substantially
aggravated by, dust exposure in coal mine employment. Id. To note
that the diagnoses of COPD and pulmonary fibrosis"support" a find-
ing of legal pneumoconiosis is thus correct as to the first element; the
ALJ did not suggest that these diagnoses were sufficient in them-
selves, but rather relied on Dr. Rasmussen's opinion that the cause of
McNew's pulmonary condition was coal mine dust exposure, as well
as cigarette smoking, rather than Dr. Vasudevan's opinion that
McNew's COPD was due entirely to cigarettes or Dr. Zaldivar's opin-
ion that McNew had pulmonary fibrosis of "unidentified etiology." Id.
The ALJ adequately explained her reasons for doing so, and any over-
breadth of language in that portion of her opinion is not sufficient to
undermine her conclusions.

On the second element, whether the pneumoconiosis arose from
coal mine employment, the ALJ applied the rebuttable presumption
arising under § 718.203(b) where a claimant has ten or more years of
coal mine employment. 20 C.F.R. § 718.203(b) (1998). McNew
claimed 37 years of coal mine employment, and the parties stipulated
that he had at least twenty years. Based on her evaluation of the vari-
ous medical reports, as discussed above, the ALJ found the opinions
of the employer's physicians insufficient to rebut the presumption.

As to the third and fourth elements, a totally disabling respiratory
or pulmonary impairment at least partially caused by the pneumoconi-
osis, the ALJ again relied on the report of Dr. Rasmussen and the
West Virginia Occupational Pneumoconiosis Board's ("OPB") find-
ing of a 15% functional impairment due to pneumoconiosis in reject-
ing Dr. Vasudevan's "conclusory" statement that McNew had no
impairment and Dr. Zaldivar's opinion that McNew's respiratory dis-
ability was unrelated to his coal mine employment. She concluded
that McNew had proven total disability by a preponderance of the evi-
dence under § 718.204(c)(4). 20 C.F.R. § 718.204(c)(4) (1998).

On this issue, Robinson argues that Dr. Rasmussen's opinion that
the disability was caused, in part, by coal mine dust exposure should
be discredited because he is a non-examining physician and no exam-
ining physician reached the same conclusion. As the OWCP notes in

                    5
its brief, however, this court emphasized in Grizzle v. Pickands
Mather & Co., that the opinion of a non-examining physician "`can
be relied upon when it is consistent with the record.'" 994 F.2d 1093,
1098 (4th Cir. 1993) (quoting Gordon v. Schweiker, 725 F.2d 231,
235 (4th Cir. 1984)). See also Milburn, 138 F.3d at 533; Sterling
Smokeless Coal Co. v. Akers, 131 F.3d 438, 441-42 (4th Cir. 1997).
Dr. Rasmussen's opinion finds support from the other medical and
objective evidence in the record, which he considered in reaching his
conclusions, and the fact that he disagrees with the examining physi-
cians is not sufficient to discredit his opinion.

Accordingly, the decision of the Board is

AFFIRMED.

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