UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHREWSBURY COAL COMPANY,
Petitioner,

v.

ALVA C. KEFFER; DIRECTOR,
                                                                      No. 99-1017
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(98-274-BLA)

Argued: December 3, 1999

Decided: March 21, 2000

Before WIDENER and MURNAGHAN, Circuit Judges,
and Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY,
P.L.L.C., Morgantown, West Virginia, for Petitioner. Otis Ray Mann,
Jr., CLIFFORD, MANN & SWISHER, P.L.L.C., Charleston, West
Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Shrewsbury Coal Co. ("Shrewsbury") appeals the U.S. Dept. of
Labor Benefits Review Board ("LBRB") order affirming the grant of
benefits by the Administrative Law Judge ("ALJ") to Alva Keffer
("Keffer"). Keffer had applied for benefits claiming total disability
from lung disease as a result of his coal mining employment. We have
jurisdiction over final orders of the LBRB pursuant to 33 U.S.C.
§ 921(c), and we affirm.

The facts are known to the parties and we need not recite them
here. In short, Shrewsbury argues that both the ALJ and the LBRB
incorrectly gave weight to expert medical testimony that diagnosed
Keffer with pneumoconiosis while ignoring, or according less weight,
to medical testimony that failed to reach such a diagnosis. Thus, con-
cludes Shrewsbury, Keffer should not be entitled to benefits under the
Black Lung statute. See 30 U.S.C. § 901(a).

The ALJ's decision must be affirmed if it is rational, supported by
substantial evidence and in accordance with the applicable law. See
Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995); see
also 33 U.S.C. § 921(b)(3). To establish entitlement to black lung
benefits, a claimant must prove by a preponderance of the evidence
that he has pneumoconiosis, that such pneumoconiosis arose out of
working in coal mines and that such pneumoconiosis is totally dis-
abling. See 30 U.S.C. § 901(a); 20 C.F.R. §§ 718.3, 718.202, 718.203,
718.204.

In those cases where the claimant is submitting a second claim
after being denied a first time, the claimant, in addition to meeting the
above stated criteria, must establish that there has been a material
change in conditions since the denial of his last claim. See 20 C.F.R.
§ 725.309(d). To find such a change in condition, the ALJ must look

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at all the evidence before him and see whether the claimant is able to
prove a single element that was previously adjudicated against him.
See Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1362 (4th Cir.
1996).

Keffer's first claim was denied because he failed to establish pneu-
moconiosis. Therefore, if Keffer manages to show that he suffers
from that respiratory ailment, he will have shown a change of condi-
tion sufficient to parry the effect of the denial of his first claim.
According to regulations, Keffer has two available methods of so
doing: (1) chest x-rays; and (2) the reasoned medical opinion of a
physician. See 20 C.F.R. §§ 718.202(a)(1) & (4). Either of these
methods, if met, suffices to show the existence of pneumoconiosis.
See Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 821 (4th Cir. 1995).

The ALJ based his opinion that Keffer suffered from pneumoconi-
osis on the reports and diagnoses submitted by various physicians
because the chest x-rays produced inconclusive results. The ALJ
noted that four doctors (Zaldivar, Crisalli, Jarboe, and Castle) had
concluded that Keffer was not suffering from pneumoconiosis while
two (Gaziano and Rasmussen) had reached the opposite conclusion.
In methodic detail, the ALJ then went on to explain why he found the
opinions of the latter two doctors more credible than those of the for-
mer four and offered cogent reasons for his decision.

Shrewsbury raises three arguments in its appeal challenging the
ALJ's order: (1) the ALJ erred in crediting medical testimony that
found pneumoconiosis based on Keffer's x-ray results; (2) the ALJ
erred in mechanically according less weight to the opinion of the con-
sulting physicians (Jarboe and Castle); and (3) the ALJ's analysis of
the medical evidence was arbitrarily selective.

All of Shrewsbury's arguments fail. Its contention that the ALJ
could not rely on Drs. Gaziano and Rasmussen's diagnoses because
these were premised on the inconclusive x-ray results is not borne out
by the ALJ's opinion. The ALJ specifically noted that his reason for
crediting these two physicians' diagnoses was their"well-reasoned"
character, which is an independent method of asserting a finding of
pneumoconiosis. See 20 C.F.R. § 718.202(a)(4). In so doing, the ALJ
did not reach his conclusion in isolation without consulting the x-rays,

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as argued by Shrewsbury, but merely reconciled the fact that the x-
rays were not particularly instructive in this matter.

Equally unconvincing is Shrewsbury's assertion that the ALJ "me-
chanically" accorded less weight to the opinions of Drs. Jarboe and
Castle because they did not personally examine Keffer. There was
nothing "mechanical" about the ALJ's discussion of the reports sub-
mitted by Drs. Jarboe and Castle. In rejecting both of them, the ALJ
noted that they had not personally examined Keffer, but went on to
offer independent reasons for why their reports were not well-
reasoned.

Shrewsbury's last argument, that the ALJ's analysis was arbitrarily
selective, was already raised before the LBRB and rejected as having
no merit. The LBRB noted that the ALJ had done a very thorough job
in combing through all the reports. All of the ALJ's decisions were
well within his discretion and demonstrated no taint of arbitrariness.

In sum, the ALJ's factual determinations are supported by substan-
tial evidence. Drs. Gaziano and Rasmussen's reports are well-
reasoned, logical and support a diagnosis of disabling pneumoconio-
sis. They establish the causal link between the disease and Keffer's
employment. The LBRB order affirming the grant of benefits by the
ALJ is

AFFIRMED.

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