                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        May 23, 2007
                              FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                        Clerk of Court



    EN ERGY WE ST M IN IN G
    C OM PA N Y ,

                Petitioner,

    v.                                                    No. 06-9573
                                                       (No. 05-0477-BLA)
    D O N C. JO H N SO N ;                            (Petition for Review)
    B EN EFITS R EV IEW B O A RD ,

                Respondents.



                              OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.




         Petitioner Energy W est M ining Co. (“Energy W est”) seeks review of a final

order of the Benefits Review Board (“Board”) directing it to make black-lung

compensation payments to respondent Don C. Johnson. The Board’s order was

predicated on the findings and conclusions of an administrative law judge



*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(“ALJ”) who held that M r. Johnson was entitled to benefits under the Black Lung

Benefits Act, 30 U.S.C. §§ 901-945, because he was completely disabled by

pneumoconiosis 1 contracted, at least in part, as a result of his coal mine

employment. See 20 C.F.R. § 718.204. Energy W est asserts that reversal is

warranted because the Board improperly resolved conflicting evidence about the

causes of M r. Johnson’s breathing difficulties – and that the true cause of M r.

Johnson’s troubles w as his longstanding smoking habit. Because we owe

deference to the Board when its decision is supported by substantial, even if not

uniform, evidence, we affirm.

                                     t    t    t

      At the time of the hearing before the ALJ, M r. Johnson was 79 years old

and a retiree who suffered from chronic obstructive pulmonary disease (“COPD”).

Prior to retirement, M r. Johnson worked as an underground coal miner for some

44 years. Although the record contains conflicting reports given by M r. Johnson

to various doctors at various times regarding his smoking history, the ALJ

credited M r. Johnson’s hearing testimony, supported by two physicians’ reports,

that he began smoking at age 19 and had “a substantial, prolonged history of




1
  Pneumoconiosis, otherwise known as black lung, is “a chronic dust disease of
the lung and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment.” 20 C.F.R. § 718.201.

                                         -2-
smoking of ½ to 1 pack per day for about 48 years ending in 1991, or a 24 to 48

pack year smoking history.” R. ALJ’s decision at 16.

      Upon review of the entirety of the medical evidence presented – reports by

five physicians, two of whom were deposed, as well as treatment notes from

various other medical sources – the ALJ determined that M r. Johnson had

established his COPD was the result of pneumoconiosis. See 20 C.F.R.

§ 718.202(a)(4). Applying the rebuttable presumption afforded M r. Johnson by

regulation, the ALJ further concluded that M r. Johnson’s pneumoconiosis arose at

least in part from his coal-mine employment and not solely because of his

smoking habit. See 20 C.F.R. § 718.203(a), (b). Finally, the ALJ held that

M r. Johnson’s pneumoconiosis was itself a “substantially contributing cause” of

his disability and thus that M r. Johnson qualified under regulation for a finding of

“total disability.” See 20 C.F.R. § 718.204(c)(1).

      In working his way through these various steps, the ALJ accorded great

weight to Dr. Jean-M aurice Poitras’ opinion that M r. Johnson suffered from

pneumoconiosis and that the disease was caused by both coal dust and smoking.

At the same time, the A LJ discounted the competing opinions of D rs. Robert J.

Farney, David M . Rosenberg, and Jeff Elmer that M r. Johnson’s condition was

caused solely by smoking. The A LJ took this course because, in his view, these

latter physicians failed to explain adequately why they ruled out coal-mine

employment as a potential cause of M r. Johnson’s breathing troubles.

                                         -3-
      Along these same lines, the ALJ found that although M r. Johnson’s treating

physician, Dr. David Nichols, was in a unique position to render an opinion, his

opinion was equivocal and thus w arranted less w eight. As it happens, Dr. Nichols

initially stated that he had no opinion as to the cause of M r. Johnson’s CO PD

because he w as concerned only with treatment. Later, he opined that M r.

Johnson’s condition resulted from a combination of smoking and coal-dust

exposure. W hen informed of a normal spirometry study done at the time of

M r. Johnson’s retirement and an inflated smoking history, Dr. Nichols finally

stated that coal dust probably was not the cause, though he added that he could

not rule out the possibility that M r. Johnson’s extensive coal-dust exposure

played some role in his COPD.

      Having found that M r. Johnson satisfied all requirements for entitlement,

the ALJ awarded benefits and the Board affirmed.

                                     t    t    t

      On appeal to this court, Energy W est argues: (i) the Board’s decision to

affirm the ALJ was in error because the ALJ improperly resolved the conflicting

evidence of M r. Johnson’s smoking history; (ii) in making its determination that

pneumoconiosis was a “substantially contributing cause” of M r. Johnson’s

disability, the Board and ALJ likewise erred by failing to fully credit the opinions

of Drs. Elmer, Farney, and Rosenberg, and improperly credited the opinion of




                                         -4-
Dr. Poitras; and (iii) the Board and ALJ failed to consider all of the relevant

medical evidence.

      W e review the Board’s order only to determine whether it “correctly

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

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

1996); our review under this standard is “quite narrow,” Hall v. Dep’t of Labor,

476 F.3d 847, 850 (10th Cir. 2007) (quotation omitted). Substantial evidence

need not be commanding or even the most convincing proof; indeed, we will not

upset an administrative decision for lack of substantial evidence so long as the

record contains “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938). The reasons for this deferential standard of review stem from the

expertise of the agency charged with administering Congress’s directives in the

field and its unrivaled opportunity to assess the credibility of the witnesses;

respecting these realities, we will “not sit as a super trial examiner,” reweighing

the evidence and comparative credibility of witnesses. Ready Mixed Concrete Co.

v. NLRB, 81 F.3d 1546, 1551 (10th Cir. 1996) (quotation omitted).

      Energy W est first contends that the Board’s reliance on the A LJ’s

assessment of M r. Johnson’s smoking history was in error because the record

contains conflicting reports about how much M r. Johnson smoked, and many such

reports indicate a more serious history than that found by the ALJ. W hile the

                                          -5-
ALJ determined that M r. Johnson had smoked one-half to one pack of cigarettes

per day for 48 years, Energy W est points to statements M r. Johnson made to

Dr. Elmer and to other physicians that he smoked one and one-half packs per day

or one to two packs per day, as well as statements equating to 100 pack years and

50 pack years. Energy W est further charges the Board and the ALJ w ith failing to

reconcile M r. Johnson’s erroneous statement to Dr. Elmer that he quit smoking in

1987 with other evidence that he quit in 1991.

      But overlooked in all this is that the ALJ candidly acknowledged the

discrepancies in the smoking-history records and credited M r. Johnson’s hearing

testimony, as well as the medical histories given by Drs. Poitras and Farney, only

after finding the competing evidence supplied by Energy W est to be less

convincing. It was within the ALJ’s province to resolve the conflicting evidence

regarding M r. Johnson’s smoking history, and we may not disturb the A LJ’s

credibility determinations, adopted by the Board, absent clear error; merely

pointing to competing testimony inconsistent with the ALJ’s finding neither

satisfies this high standard nor negates the existence of the evidence on which the

ALJ and Board relied. See Double Eagle Hotel & Casino v. NLRB, 414 F.3d

1249, 1256 (10th Cir. 2005) (“Although there was also testimony . . . contrary [to

the Board’s finding], the substantial evidence standard of review does not permit

us to question the Board’s balancing of this conflicting evidence.”); Hall, 476

F.3d at 854 (“the possibility of drawing two inconsistent conclusions from the

                                         -6-
evidence does not prevent the Board’s findings from being supported by

substantial evidence”).

      In a similar argument, Energy W est maintains that the A LJ’s

characterization of Dr. Nichols’ opinion as equivocal caused it to discount

erroneously the seriousness of M r. Johnson’s smoking history. Energy W est

asserts that, notwithstanding his initial view that the disease was the result of a

combination of smoking and coal-dust exposure, Dr. Nichols’ ultimate opinion

was that smoking caused M r. Johnson’s COPD. As discussed above, however,

Dr. Nichols’ opinion changed depending on the factors he was asked to consider

and we thus are unable to say that the ALJ’s conclusion that Dr. Nichols’ opinion

was equivocal was clearly erroneous, or that its presence in the record diminished

the substantial evidence supporting the A LJ’s findings.

      Energy W est also faults the Board and A LJ for crediting Dr. Poitras’

opinion and discrediting what it believes to be the more reliable opinions of

Drs. Elmer, Farney, and Rosenberg. But, again, as we have explained the

comparative weight appropriately given conflicting evidence is not, at least absent

extraordinary circumstances, an availing basis for appeal. See supra p. 5; see

also Hansen v. Director, OWCP, 984 F.2d 364, 370 (10th Cir. 1993). In any

event, Energy W est’s primary attack on Dr. Poitras – that he did not have the

benefit of medical tests performed in September 2002 – appears to fail on its own

terms. Energy W est contends that Dr. Poitras’ report was dated July 25, 2002;

                                          -7-
yet, the record reflects that Dr. Poitras actually signed his report on September

25, 2002 – and that he did consider the September medical test results.

R. Director’s Ex. 15, at 3-4. 2 Affirmed.


                                                  ENTERED FOR THE COURT



                                                  Neil M . Gorsuch
                                                  Circuit Judge




2
  Energy W est’s concern that the A LJ assumed erroneously that Dr. Elmer’s
diagnosis of chronic bronchitis was “legal pneumoconiosis” under 20 C.F.R.
§ 718.201(a)(2), is similarly misplaced because the ALJ did not appear to rely on
Dr. Elmer’s opinion.

In a final and brief aside, Energy W est claims that the ALJ failed to consider the
medical evidence of the CT scan, the treatment records from LDS H ospital, and
the office notes from Dr. Dean. But Energy W est has not explained to us why
those records are relevant and in so doing has left us w ith no choice but to
dismiss this argument for lack of sufficient development to allow for meaningful
judicial review. See Simpson v. T.D. Williamson Inc., 414 F.3d 1203, 1206 n.4
(10th Cir. 2005); see also Zam ora v. Elite Logistics, Inc., 478 F.3d 1160, 1184
(10th Cir. 2007) (Gorsuch, J., concurring) (adjudicating an issue that is not
properly briefed “runs the risk of an improvident or ill-advised result given our
dependence as an Article III court on the traditions of the adversarial process for
sharpening, developing, and testing the issues for our decision”).

                                            -8-
