UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHERRELL L. TERRY,
Petitioner,

v.

BETHENERGY MINES, INCORPORATED;
                                                               No. 97-2738
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-407-BLA)

Submitted: May 5, 1998

Decided: June 1, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Roger D. Forman, FORMAN & CRANE, L.C., Charleston, West Vir-
ginia, for Petitioner. Mary Rich Maloy, JACKSON & KELLY,
Charleston, West Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Sherrell Terry seeks review of the Benefits Review Board's
("Board") decision and order affirming the administrative law judge's
("ALJ") denial of black lung benefits pursuant to 30 U.S.C.A. §§ 901-
945 (West 1986 & Supp. 1994). The ALJ evaluated this claim under
20 C.F.R. Part 718 (1997), of the applicable regulations, and found
the medical opinion evidence of record sufficient to establish pneu-
moconiosis, but insufficient to establish a totally disabling respiratory
impairment. The Board affirmed the finding of no total disability, ren-
dering it unnecessary to reach Bethenergy Mines' ("employer") chal-
lenges to the ALJ's finding of pneumoconiosis.

Terry's appeal focuses on the ALJ's weighing of the medical opin-
ion evidence. Dr. Rasmussen found Terry to be totally disabled while
the physicians hired by the employer, Drs. Morgan, Crisalli, and Mor-
gan, all found little or no respiratory impairment which would not
prevent Terry from performing his usual coal mine employment.
Terry contends that the ALJ erred by refusing to evaluate the bias of
the employer's physicians, based on the fact that they were compen-
sated and are regularly compensated for their opinions. He also
asserts that Dr. Morgan's opinion should have been discredited
because the ALJ rejected his opinion concerning the issue of pneumo-
coniosis on the ground that it was hostile to the Act. He also main-
tains that the ALJ should have discredited Dr. Fino's opinion
concerning disability because this Court found that Dr. Fino rendered
an opinion hostile to the Act in another, unpublished case nearly two
years ago.

In Underwood v. Elkay Min., Inc., 105 F.3d 946 (4th Cir. 1997),
we stated, albeit in dicta, that an ALJ should consider whether an
expert's opinion was based on an independent examination of the
record or was "the product of bias in favor of the party retaining the

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expert and paying the fee." Id. at 951. The Supreme Court has held,
however, that bias cannot be presumed merely because an expert is
compensated for his opinion. See Richardson v. Perales, 402 U.S.
389, 403 (1971). Because Terry identifies no other factor suggestive
of bias in this case, the ALJ properly considered the reports of the
employer's physicians.

Courts have also held that it is not necessarily inconsistent to credit
a physician's opinion regarding one element while rejecting his view
concerning another element of a black lung claim. See Adams v. Pea-
body Coal Co., 816 F.2d 1116, 1119 (6th Cir. 1987). In this case, the
ALJ rejected Dr. Morgan's finding of no pneumoconiosis because it
was based on the premise that because the miner worked as a foreman
and performed most of his work after implementation of the air safety
standards imposed by the Federal Coal Mine Health and Safety Act,
he was exposed to little coal dust. The ALJ found that premise inimi-
cal to the Act and regulations, which assume that a person with
Terry's years of qualifying coal mine employment is potentially sub-
ject to the contraction of pneumoconiosis.

Dr. Morgan's view on this issue, however, did not bear in any way
upon his assessment of the issue of disability. His finding of no dis-
ability hinged primarily on his evaluation of the objective laboratory
tests. All physicians of record interpreted the data similarly. Dr. Ras-
mussen initially agreed with the remaining physicians of record that
the miner was not disabled, but changed his mind based on a diffusion
capacity test performed by Dr. Crisalli. He stated that under the
"Crappo" standards which he uses for determining predicted normals
for diffusion capacity, Dr. Crisalli's diffusion test reflected a signifi-
cant diffusion abnormality.

The ALJ, however, thoroughly discussed the competing views of
Drs. Rasmussen and Crisalli concerning the use of"Crappo" stan-
dards, and rationally accepted Dr. Crisalli's explanation that his hos-
pital discarded the standards for all patients after repeatedly finding
that they resulted in abnormal diffusion capacity findings that were
inconsistent with all remaining data, in both miners and non-miners.
The ALJ also noted Dr. Rasmussen's concession that if Dr. Crisalli's
diffusion capacity results reflected the abnormality he suggested, then
Terry's diffusion capacity had changed within the six-month period

                     3
since his prior diffusion testing to a degree which would be very
unusual.

We must affirm the Board's decision if it properly found that the
ALJ's decision is supported by substantial evidence and in accor-
dance with law. See Doss v. Director, Office of Workers' Compensa-
tion Programs, 53 F.3d 654, 658 (4th Cir. 1995). The opinions of Drs.
Morgan, Fino, and Crisalli provide substantial evidence supporting
the ALJ's decision, and Terry identifies no legal error in the ALJ's
weighing of the evidence. The ALJ provided rational reasons for
crediting their opinions over Dr. Rasmussen's opinion regarding the
issue of disability. Contrary to Terry's assertion, Dr. Fino's state-
ments in another case do not bear on the adequacy of his testing, rea-
soning, and conclusions in this case. Even if they did, however, the
reports of Drs. Morgan and Crisalli, alone, sufficiently support the
ALJ's decision.

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

AFFIRMED

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