                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           JUN 4 1998
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    JAMES WARD,

             Petitioner,

    v.                                                 No. 97-9555
                                                    (No. 529-24-1250)
    DIRECTOR, OFFICE OF WORKERS’                   (Petition for Review)
    COMPENSATION PROGRAMS,
    UNITED STATES DEPARTMENT
    OF LABOR,

             Respondent,

    ENERGY WEST MINING
    COMPANY,

             Intervenor.




                           ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Petitioner filed for benefits under the Black Lung Benefits Act, 30 U.S.C.

§§ 901-45 (1986 & Supp. 1996), on August 20, 1992, alleging total disability

because of pneumoconiosis arising out of coal mine employment. This

application is petitioner’s third duplicate claim under the Act, and his fourth

application overall. 1 The Benefits Review Board (Board) found substantial

evidence in the record to support the ALJ’s decision that petitioner had not

established the existence of pneumoconiosis, and it affirmed.

      We review the Board’s order to determine whether it correctly concluded

that the ALJ’s decision to deny benefits was supported by substantial evidence

and was not contrary to law. See Northern Coal Co. v. Director, OWCP, 100 F.3d

871, 873 (10th Cir. 1996). “Substantial evidence is such relevant evidence as a



1
       The Administrative Law Judge (ALJ) found that there had been a material
change in conditions, so as to preclude a denial of this claim based on the denials
of petitioner’s previous claims. See 20 C.F.R. § 725.309(d). After the ALJ
issued his decision in this case, this court clarified the standard for determining
whether there had been a material change in conditions. Wyoming Fuel Co. v
Director, OWCP, 90 F.3d 1502, 1511 (10th Cir. 1996). The ALJ in this case
applied the wrong law in finding a material change in conditions, but, in light of
the fact that he denied benefits, that error was harmless.

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reasonable mind might accept as adequate to support a conclusion.” Id.

(quotations omitted). Guided by these standards on review, we affirm.

      The circumstances under which a petitioner can establish the existence of

pneumoconiosis are set forth in 20 C.F.R. § 718.202(a). Subsections (1), (2), and

(3) of that section are not relevant to this case. Petitioner argues that he has

established the existence of pneumoconiosis under § 718.202(a)(4), which

provides:

      (4) A determination of the existence of pneumoconiosis may also be
      made if a physician, exercising sound medical judgment,
      notwithstanding a negative X-ray, finds that the miner suffers or
      suffered from pneumoconiosis as defined in § 718.201. Any such
      finding shall be based on objective medical evidence such as
      blood-gas studies, electrocardiograms, pulmonary function studies,
      physical performance tests, physical examination, and medical and
      work histories. Such a finding shall be supported by a reasoned
      medical opinion.

The ALJ relied on the opinions of Drs. Repsher and Farney, both of whom are

experts in the pulmonary field, in finding that petitioner failed to establish that he

suffered from pneumoconiosis. In reaching his decision, the ALJ rejected the

diagnoses of pneumoconiosis by Drs. King and Lincoln.

      This is a case of conflicting medical opinions, and it is within the province

of the ALJ to weigh conflicting medical evidence, see Northern Coal Co., 100

F.3d at 873. “[W]here medical professionals are in disagreement, the trier of fact

is in a unique position to determine credibility and weigh the evidence.” Hansen


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v. Director, OWCP, 984 F.2d 364, 370 (10th Cir. 1993). It is apparent from the

detailed analysis set forth in the ALJ’s opinion that the ALJ carefully weighed the

conflicting evidence, and his reasons for favoring the opinions of Drs. Repsher

and Farney are well-reasoned and substantiated. We have reviewed the record,

and it contains substantial evidence to support the ALJ’s decision. The petition

for review is DENIED.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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