UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BLAINE COPLEY,
Petitioner,

v.

ARCH OF WEST VIRGINIA,
                                                                      No. 96-2234
INCORPORATED; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(96-574-BLA)

Argued: December 5, 1997

Decided: February 17, 1998

Before WILKINSON, Chief Judge, ELLIS,
United States District Judge for the Eastern District of Virginia,
sitting by designation, and MERHIGE, Senior United States District
Judge for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Roger Daniel Forman, FORMAN & CRANE, L.C.,
Charleston, West Virginia, for Petitioner. Douglas Allan Smoot,
JACKSON & KELLY, Charleston, West Virginia, for Respondents.
ON BRIEF: David L. Yaussy, ROBINSON & MCELWEE, Charles-
ton, West Virginia, for Respondent Arch of West Virginia.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Blaine Copley petitions for review of a decision by the Benefits
Review Board ("Board") affirming the denial of his claim for benefits
under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (1986).
Because we find that the Administrative Law Judge ("ALJ") and the
Board properly evaluated the x-ray and medical opinion evidence, we
affirm the order of the Board.

I.

Copley worked in the coal industry for twenty-nine years. His last
period of employment was with the respondent, Arch of West Vir-
ginia. Copley retired in 1989 and claimed total disability from pneu-
moconiosis resulting from his work in the coal mines. He applied for
black lung benefits on January 30, 1990, and the Department of Labor
ultimately denied benefits. After a hearing, the ALJ denied Copley's
claim for benefits, finding that Copley failed to establish either total
disability or pneumoconiosis. On appeal, the Board affirmed, finding
that Copley failed to establish that he had pneumoconiosis.1

This Court found that the ALJ had improperly evaluated the x-ray
evidence, vacated the ALJ's order, and remanded to the Department
_________________________________________________________________
1 Because the Board concluded that Copley failed to establish the pres-
ence of pneumoconiosis, they chose not to address the ALJ's conclusion
as to total disability.

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of Labor for reconsideration. Specifically, the Court held that the
ALJ's "head counting" method of resolving conflicting interpretations
of x-rays based on which interpretation had the support of the major-
ity of physicians was improper. See Copley v. Arch of West Virginia,
Inc., 28 F.3d 1208 (4th Cir. 1994) (unpublished opinion); see also
Sterling Smokeless Coal Co. v. Akers, 1997 WL 772847 at *1-2 (4th
Cir. 1997). On remand, the ALJ again found that Copley had failed
to establish that he had pneumoconiosis. After the ALJ denied Cop-
ley's motion for reconsideration, the Board affirmed the ALJ's order.
This appeal followed.

II.

On appeal from a decision of the Benefits Review Board, the Court
reviews only for errors of law and to verify that the Board has used
the proper standard for review of factual determinations made by the
administrative law judge. See Doss v. Director, OWCP, 53 F.3d 654
(4th Cir. 1995). The Board reviews the ALJ's factual findings to
determine if they are supported by substantial evidence. See id. at
658.

Other than stating that an ALJ should not render a decision on the
x-ray evidence by simply comparing the number of positive and nega-
tive readings, the Court's opinion remanding the case to the Depart-
ment of Labor did not specify how the x-rays should be weighed. In
Adkins v. Director, OWCP, 958 F.2d 49 (4th Cir. 1992), the Court
stated that in evaluating conflicting interpretations of x-rays, an ALJ
is required to consider the relative qualifications of competing physi-
cians in conducting its review. See also Sterling Smokeless Coal Co.
v. Akers, 1997 WL 772847 at *1-2 (4th Cir. 1997). In addition, the
Department of Labor's regulations state that "where two or more X-
ray reports are in conflict, in evaluating such X-ray reports consider-
ation shall be given to the radiological qualifications of the physicians
interpreting such X-rays." 20 C.F.R. § 718.202(a)(1).

On remand from this Court, the ALJ evaluated the conflicting read-
ings of the x-rays by giving the greatest weight to the opinions of Dr.
Wiot, who is one of the developers of the system for reading x-rays
for pneumoconiosis, and Dr. Spitz. Both are B readers, Board Certi-

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fied Radiologists,2 and Professors of Radiology at the University of
Cincinnati. Their readings of the x-rays constitute substantial evi-
dence supporting the ALJ's decision that Copley did not prove that
the x-ray evidence of record establishes the existence of pneumoconi-
osis pursuant to 20 C.F.R. § 718.202(a)(1).

III.

A claimant can also prove the existence of pneumoconiosis through
reasoned medical opinions. 20 C.F.R. § 718.202(a)(4). An ALJ is not
bound to accept the medical opinion of any given physician and may
weigh the conflicting evidence and draw his own inferences. The ALJ
in Copley's case credited the reasoned medical opinion of Dr. Zaldi-
var that Copley does not have pneumoconiosis over that of Dr.
Ranavaya, who thought otherwise, because of Dr. Zaldivar's superior
qualifications, which were of record. Dr. Ranavaya's credentials were
not in the record. The ALJ's determination that Copley had not
proven the existence of pneumoconiosis by reasoned medical opinion
evidence pursuant to 20 C.F.R. § 718.202(a)(4) is supported by sub-
stantial evidence.

IV.

Copley urges the Court to find that he is totally disabled from his
usual coal mine employment and entitled to benefits. On remand, the
Court ordered the ALJ to revisit his determination regarding total dis-
ability if he concluded that Copley has pneumoconiosis. The ALJ did
not conclude Copley has the disease, and therefore did not reconsider
his finding regarding total disability. Accordingly, that finding is not
before the Court, and we decline Copley's request to review the
ALJ's determination on the issue of total disability.
_________________________________________________________________

2 A "B" reader has demonstrated proficiency in interpreting x-rays for
the presence of pneumoconiosis by passing an examination the Appala-
chian Laboratory for Occupational Safety and Health administers. See 20
C.F.R. § 718.202(a)(ii)(E). A Board Certified Radiologist has been certi-
fied in radiology by the American Board of Radiology, Inc. or the Amer-
ican Osteopathic Association. See 20 C.F.R.§ 718.202(a)(ii)(C).

                    4
V.

Copley also charges that the ALJ's decision is biased and arbitrary.
The Court sees no indication in the record of bias by the ALJ.

VI.

Based on the foregoing, the decision of the Board is affirmed.

AFFIRMED

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