UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARVIS TOLER,
Petitioner,

v.

EASTERN ASSOCIATED COAL
                                                                   No. 97-2148
CORPORATION; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(96-1499-BLA)

Submitted: July 28, 1998

Decided: August 19, 1998

Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S.F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. Mark E. Solomons, Laura Metcoff Klaus,
ARTER & HADDEN, Washington, D.C., for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Arvis Toler seeks review of a decision of the Benefits Review
Board (Board) affirming an administrative law judge's (ALJ) decision
to deny his application for black lung benefits. The ALJ denied bene-
fits in this case based on his finding that Toler failed to establish the
presence of pneumoconiosis. The Board affirmed the ALJ's finding
of no pneumoconiosis and denial of benefits. After reviewing the
record, we find no reversible error and affirm the order of the Board.

This Court reviews the Board's decision only for errors of law and
to ensure that the Board adhered to the correct standard of review. See
Doss v. Director, Office of Workers' Compensation Programs, 53
F.3d 654, 658 (4th Cir. 1995). Therefore, this Court affirms the
Board's decision if the Board properly decided that the ALJ's find-
ings are supported by substantial evidence. See id. at 659. To deter-
mine whether the ALJ's findings are supported by substantial
evidence, this Court undertakes an independent review of the record.
See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995).
However, review is confined to the grounds upon which the Board
based its decision. See Grigg v. Director, Office of Workers' Compen-
sation Programs, 28 F.3d 416, 418 (4th Cir. 1994).

On appeal, Toler contends that the reports credited by the ALJ
finding no pneumoconiosis were impermissibly based solely on nega-
tive X-rays and that the employer's physicians' assertions that the
nature of Toler's particular obstructive impairment was inconsistent
with pneumoconiosis are hostile to the premises of the Federal Black
Lung Act. We find both claims to be without merit. The ALJ primar-
ily relied on Drs. Zaldivar and Tuteur, who both found that Toler did
not have pneumoconiosis. Despite Toler's assertion to the contrary,
the record discloses that these opinions were based not solely on neg-
ative X-ray evidence, but also on laboratory data documenting a

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purely obstructive disease, the presence of the"premiere" cause of
emphysema, and Toler's long-term and continued cigarette smoking.

With respect to Toler's second contention, we also find that the
ALJ did not impermissibly rely on Dr. Tuteur's opinion which was
based on the erroneous assumption that obstructive disorders cannot
be caused by coal mine employment. See Warth v. Southern Ohio
Coal Co., 60 F.3d 173 (4th Cir. 1995). Our review does not disclose
that Dr. Tuteur's opinion was based on such an assumption, given his
statement that "coal dust can result in obstructive impairment when
massive fibrosis from coal dust inhalation is present." Because sub-
stantial evidence supports the Board's finding that Toler did not
establish pneumoconiosis, we do not address Toler's assertion that the
Board erred in not finding that Toler's pneumoconiosis contributed to
his total disability.

Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and oral argument
would not aid the decisional process.

AFFIRMED

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