UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BUFFALO MINING COMPANY,
Petitioner,

v.

EARL MILLER; DIRECTOR, OFFICE OF
                                                                      No. 97-2744
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-259-BLA)

Argued: October 28, 1998

Decided: November 19, 1998

Before WILKINSON, Chief Judge, and LUTTIG and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. Helen Hart Cox, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director; Ray Edmond Ratliff, Jr., Charleston, West Vir-
ginia, for Respondent Miller. ON BRIEF: Douglas A. Smoot, Kathy
L. Snyder, JACKSON & KELLY, Charleston, West Virginia, for
Petitioner. Marvin Krislov, Deputy Solicitor for National Operations,
Donald S. Shire, Associate Solicitor, Christian P. Barber, 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Unpublished opinions are not binding precedent in this circuit.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:

Buffalo Mining Company petitions for review of an order of the
Labor Benefits Review Board upholding the refusal of administrative
law judge (ALJ) to modify an award of benefits to Earl Miller under
the Black Lung Benefits Act. See 30 U.S.C.A.§ 901 et seq. (West
1986 & Supp. 1998). Because the ALJ's findings are supported by
substantial evidence, we affirm.

I.

Miller worked in the coal mines for over thirty years. He retired in
June 1982 and a month later applied for benefits under the Black
Lung Benefits Act. A formal hearing on the claim was held on Febru-
ary 19, 1987 before an ALJ in Charleston, West Virginia. The ALJ
issued a Decision and Order awarding benefits on December 15,
1987. Buffalo appealed this decision to the Benefits Review Board.
On August 29, 1991, the Board affirmed the ALJ's decision in part
and remanded the remaining issues for further review and more
detailed explanations of the ALJ's findings.

On April 8, 1992, the ALJ issued a revised Decision and Order in
response to the remand. In this order, the ALJ again awarded benefits
to Miller and, in response, Buffalo again appealed to the Board. On

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November 23, 1993, the Board remanded the case once more for fur-
ther explanation of the ALJ's decision.

The ALJ issued its revised Decision and Order after this second
remand on June 16, 1994. Once again, the ALJ awarded benefits to
Miller and, once again, Buffalo appealed. On February 24, 1995, the
Board affirmed the ALJ's award of benefits in its entirety. Buffalo
then filed a notice for appeal to this court, which was voluntarily dis-
missed without prejudice.

Instead, Buffalo submitted a motion for modification of the ALJ's
Decision and Order. In that motion, Buffalo argued that it was entitled
to modification based on mistake of fact and change in medical condi-
tion, both of which provide valid grounds under the regulations for
modifying an order. See 20 C.F.R. § 725.310 (1998). Upon request by
Buffalo, the District Director referred the motion back to the ALJ,
who issued a Decision and Order denying modification on October 3,
1996. Buffalo again appealed to the Board, which issued an order on
October 24, 1997 affirming the ALJ's denial of modification. Buffalo
now appeals to this court.

II.

We review decisions of the Benefits Review Board to ensure that
it properly followed the standard of review prescribed for it by statute.
DeHue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). The
Board reviews an ALJ's factual findings to determine if such findings
are supported by substantial evidence in the record considered as a
whole. 33 U.S.C.A. § 921(b)(1986). See also O'Keeffe v. Smith,
Hinchman & Grylls Assoc., Inc., 380 U.S. 359, 362 (1965). Under
this standard, "[t]he ALJ has sole power to make credibility determi-
nations and resolve inconsistencies in the evidence." Grizzle v. Pick-
ands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993) (citations
omitted). We review the record independently and must affirm the
ALJ's decision if supported by substantial evidence, Thorn v. Itmann
Coal Co., 3 F.3d 713, 718 (4th Cir. 1993), which is "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (cita-
tions omitted). We review the Board's legal conclusions de novo.
DeHue, 65 F.3d at 1193.

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III.

In order to collect benefits under the Act, a claimant must demon-
strate that: (a) he suffers from pneumoconiosis; (b) his pneumoconio-
sis arose out of employment in the coal mines; (c) he has a totally
disabling respiratory or pulmonary condition; and (d) this total dis-
ability was caused, at least in part, from the pneumoconiosis. 20
C.F.R. §§ 718.202-204 (1998); Milburn Colliery Co. v. Hicks, 138
F.3d 524, 529 (4th Cir. 1998); Robinson v. Pickands Mather & Co.,
914 F.2d 35, 36, 38 (4th Cir. 1990).

The ALJ in this case found that Miller met all of these require-
ments and that Buffalo failed to establish that modification of the ben-
efits award was warranted due to change of condition or mistake of
fact. The Board agreed, concluding that the ALJ's findings were ratio-
nal, consistent with applicable law, and supported by substantial evi-
dence. Buffalo raises two issues on appeal. First, the company
maintains that it properly challenged the ALJ's finding of the exis-
tence of pneumoconiosis. Second, it asserts that the ALJ's finding that
Miller was entitled to benefits was based on an improperly selective
analysis of the record evidence. In addressing the second and princi-
pal issue, we will assume that Buffalo did properly challenge the
pneumoconiosis finding.

A.

The first step toward an award of benefits under the Act is proof
of the existence of pneumoconiosis. This can be accomplished
through the use of traditional x-rays, biopsy or autopsy, the statute's
presumptions (none of which applies in this case), and "sound medi-
cal judgment" of a physician. 20 C.F.R. § 718.202(a) (1998). The ALJ
in this case relied on x-ray and medical opinion evidence to support
his conclusion that Miller suffers from pneumoconiosis.

There was some conflict in the x-ray evidence submitted in this
case. The ALJ reviewed all such evidence and concluded that the vast
majority of the x-ray readings supported a conclusion that Miller
indeed suffers from pneumoconiosis. Dr. Wheeler was the only physi-
cian to conclude, based on the x-ray evidence, that Miller does not
have pneumoconiosis. The regulations provide that, in the face of

                    4
conflicting x-ray evidence, the ALJ is to consider the qualifications
of the physicians offering opinions. Id.§ 718.202(a)(1). The ALJ did
just that, noting that Drs. Sargent and Bassali were as qualified as Dr.
Wheeler and that both had concluded that Miller's x-rays revealed
pneumoconiosis. This diagnosis was confirmed by Drs. Renn, Gazi-
ano, Zaldivar, Subramaniam and Bofill. In light of the overwhelming
x-ray evidence in favor of a pneumoconiosis diagnosis, we find that
substantial evidence supported the ALJ's evaluation of the x-ray evi-
dence.

This evaluation alone, however, is not sufficient to prove the exis-
tence of pneumoconiosis. By statute, all relevant evidence must be
considered before a final decision can be rendered. See 30 U.S.C.A.
§ 923(b) (Supp. 1998); Walker v. Director, OWCP, 927 F.2d 181,
184-85 (4th Cir. 1991). In this context, Buffalo argues that the ALJ
failed to address the CT scan evidence in its order. The Board held
that the ALJ did in fact weigh this evidence. We agree.

The ALJ initially noted that CT scan evidence does not fall within
the category of traditional x-ray evidence and can not alone form the
basis of proof that a claimant suffers from pneumoconiosis under
§ 718.202(a) of the regulations. The ALJ, however, did not dismiss
the evidence. Rather, he reasoned that the list of"objective medical
evidence" found in the regulations was not exhaustive and concluded
that CT scan evidence could properly be considered in that category.
See 20 C.F.R. §§ 718.107, 718.202(a)(4) (1998). Based on this analy-
sis, the ALJ considered Miller's CT scan evidence in conjunction
with other medical opinion evidence under § 718.202(a)(4) of the reg-
ulations. We find this to be a fair reading of the statute and its regula-
tions and do not fault the ALJ's approach to reviewing the CT scan
evidence. See Melnick v. Consolidation Coal Co. , 16 B.L.R. 1-31
(1991).

We now turn to the sufficiency of the ALJ's review of the CT scan
and medical opinion evidence. Several of the doctors involved in this
case considered and evaluated the results of a March 30, 1994 CT
Scan performed on Miller. The ALJ gave little probative weight to the
reports of Drs. Fishman and Wheeler because of the limited scope of
their evaluation. He explained that these doctors"referred to nothing
in the history or medical record other than x-ray and CT scan evi-

                     5
dence" and that they developed their opinions without consideration
of the "abundant medical evidence in the record." The ALJ also found
the credentials of these doctors to be less relevant than those of other
doctors testifying in the case. Because Dr. Wiot's credentials were
similar to those of Drs. Fishman and Wheeler and his evaluation was
based on the same CT scan report, the ALJ also discounted Dr. Wiot's
evaluation.

The ALJ next rejected the reports of Dr. Castle and Dr. Crisalli
because they relied on the CT scan reports of other physicians without
ever considering the CT scan independently. The ALJ further rea-
soned that Dr. Fino's report should be discounted because, although
Dr. Fino weighed the CT scan evidence independently, he never per-
sonally examined Miller. Thus the ALJ relied on Dr. Zaldivar's
report, because it constituted an independent evaluation of the CT
scan, the x-ray readings, and Miller's medical record. The ALJ is
given wide discretion in determining whether or not a claimant suffers
from Black Lung disease. See Clark v. Karst-Robbins Coal Co., 12
B.L.R. 1-149 (1989); Fields v. Island Creek Coal Co., 10 B.L.R. 1-19
(1988). We conclude that the ALJ here was well within that discretion
in crediting Dr. Zaldivar's opinion over the opinions of other physi-
cians in the record.

Finally, we note that the ALJ properly dismissed Dr. Srichai's ref-
erence to biopsy evidence, another potential method of proving pneu-
moconiosis. See 20 C.F.R. § 718.202(a)(2)(1998). In order to consider
such evidence, copies of the actual pathology report and surgical note
are required when surgery has been performed on a lung, as was the
case here. See id. § 718.106(a). Because Dr. Srichai failed to supply
such documentation, the ALJ properly discounted his opinion, which
was based on reference to such reports.

B.

The next step in establishing eligibility for benefits is proof that the
pneumoconiosis that exists arose, at least partially, from employment
in the coal mine industry. Id. § 718.203. Because Miller was
employed in the coal mines for more than ten years, he is entitled to
a rebuttable presumption that his pneumoconiosis arose out of that
employment. Id. Buffalo failed to rebut this presumption. Hence, Mil-

                    6
ler's pneumoconiosis was properly characterized as having arisen out
of his employment in the mines.

C.

The third step required by the Act is a determination that the miner
suffers a total disability due to pulmonary or respiratory impairment.
Id. § 718.204. See also Jewell Smokeless Coal Corp. v. Street, 42 F.3d
241, 243 (4th Cir. 1994). The ALJ here concluded that Miller suffers
such a total impairment. The ALJ made this determination based on
medical opinion evidence and, as the regulations dictate, considered
all contrary probative evidence in so doing. 20 C.F.R. § 718.204(c).

Looking at the record as a whole, we find substantial evidence to
support the ALJ's decision to credit Dr. Rasmussen's report concern-
ing total impairment. The ALJ carefully considered Dr. Rasmussen's
opinion and supporting evidence. He also reviewed the competing
reports and provided a sufficient basis for rejecting them. For exam-
ple, the ALJ explained that Dr. Crisalli questioned the validity of Dr.
Rasmussen's test but failed to provide an adequate reason for his
refusal to rely on that data. Similarly, the ALJ dismissed the opinions
of Drs. Fino, Zaldivar, and Castle for lack of explanation of their find-
ings, concluding that none of these four reports was as well reasoned
as that of Dr. Rasmussen. See Hobbs v. Clinchfield Coal Co., 45 F.3d
819, 822 (4th Cir. 1995) (upholding ALJ's decision because "the ALJ
properly stated reasons why he discounted the opinions of [certain]
doctors").

D.

Finally, the ALJ found that Miller's total disability was caused, at
least in part, by pneumoconiosis. See Robinson , 914 F.2d at 38. In
reaching this conclusion, the ALJ gave "little weight" to Dr. Zaldi-
var's opinion. As noted above, the ALJ previously credited Dr. Zaldi-
var's opinion with respect to the existence of pneumoconiosis,
considering it the most reliable of the medical opinions on that issue.
Buffalo contends that this partial reliance on Dr. Zaldivar's opinion
amounts to a selective use of the evidence in violation of the mandate
to review the record as a whole and to consider all relevant evidence
before making a final determination. See 33 U.S.C.A. § 921(b)

                    7
(1986); 30 U.S.C.A. § 923(b) (Supp. 1998). This argument is without
merit. As long as the ALJ properly supports each decision and makes
conclusions that are neither inconsistent nor illogical, he is permitted,
in his discretion, to rely on certain findings by a physician without
adopting that doctor's entire report. This practice does not amount to
a prohibitively selective review of the record, nor does it violate the
mandate to consider the record as a whole.

In this case, the ALJ did not ignore any portion of the record. Nor
did he act inconsistently in relying on Dr. Zaldivar's opinion with
respect to the existence of pneumoconiosis while dismissing that part
of the opinion dealing with causation of total impairment. Rather, the
ALJ explained his decision to discount the latter portion of Dr. Zaldi-
var's opinion based on that physician's failure to diagnose total
impairment. As noted above, the ALJ properly concluded that Miller
does suffer a total impairment. Dr. Zaldivar disagreed. Therefore Dr.
Zaldivar's opinion with respect to causation vel non of any impair-
ment is of little probative value. Cf. Grigg v. Director, OWCP, 28
F.3d 416, 419 (4th Cir. 1994)(an opinion concerning the patient's
impairment based on a mistaken finding of no pneumoconiosis is "not
worthy of much, if any, weight").

Similarly, the ALJ appropriately discounted the opinions of Drs.
Fino, Crisalli and Castle because their opinions were premised on an
erroneous finding that Miller does not suffer from pneumoconiosis.
See id. Finally, there is substantial evidence-- the opinions of Drs.
Rasmussen and Srichai -- to support the ALJ's finding that Miller's
total disability was caused, at least in part, by pneumoconiosis.

IV.

For these reasons, we affirm the Board's order upholding the ALJ's
refusal to order modification.

AFFIRMED

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