Richard P. Gregory v. EASTERN ASSOCIATED COAL No. 00-1161 CORPORATION

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD P. GREGORY,
Petitioner,
v.
EASTERN ASSOCIATED COAL
No. 00-1161
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.
(98-1234-BLA)
Submitted: August 31, 2000
Decided: September 18, 2000
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert F. Cohen, Jr. COHEN, ABATE & COHEN, L.C., Fairmont,
West Virginia, for Petitioner. Mark E. Solomons, Laura Metcoff
Klaus, ARTER & HADDEN, L.L.P., Washington, D.C., for Respon-
dents.
_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Richard Gregory petitions for review of the decision of the Benefits
Review Board ("Board") affirming a decision of an administrative law
judge ("ALJ") to deny his application for black lung benefits. After
several remands this claim, filed in 1977, was ultimately denied based
on the ALJ's finding that Eastern Associated Coal Corporation
("employer") rebutted the interim presumption of entitlement to bene-
fits pursuant to 20 C.F.R. § 727.203(b)(3) (2000), by demonstrating
that the miner's presumptively totally disabling respiratory or pulmo-
nary impairment did not arise--in whole or in part--out of coal mine
employment. See Lane Hollow Coal Co. v. Director, Office of Work-
ers' Compensation Programs, 137 F.3d 799, 804-05 (4th Cir. 1998).
We must affirm the Board's decision if it properly found the ALJ's
decision supported by substantial evidence and in accordance with
law. See Doss v. Director, Office of Workers' Compensation Pro-
grams, 53 F.3d 654, 658-59 (4th Cir. 1995). We will not disturb the
ALJ's findings merely because we find another conclusion more rea-
sonable. Id. at 659.
The ALJ's finding was based on Dr. Lapp's opinion that the
miner's respiratory impairment, which Dr. Lapp found to be minimal,
was solely attributable to back problems and central obesity. The
miner retired from the mines due to a disabling back condition result-
ing from several mining accidents. Gregory contends that Dr. Lapp's
finding of no link between his impairment and his coal mine employ-
ment is insufficient to establish subsection (b)(3) rebuttal as a matter
of law. In Gregory's view, Dr. Lapp's opinion is unexplained and
therefore unreasoned.
We disagree. Dr. Lapp examined the miner, considered his work
and medical histories, performed an x-ray and conducted a full battery
of laboratory tests. He specified that the basis for his finding the
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miner's impairment unrelated to coal mine employment was the
absence of any diffusion impairment on pulmonary function testing
or impairment of oxygen transfer on blood gas testing.
Gregory argues that the ALJ should have found that later contrary
blood gas evidence undercut Dr. Lapp's conclusions. But the ALJ was
aware of all the blood gas evidence, having weighed it on invocation
at § 727.203(a)(3) and determined that it was, overall, insufficient to
invoke the presumption of disability provided by subsection (a)(3).
Moreover, Dr. Lapp's opinion was documented and reasoned, and did
not lose all probative value because of the later development of evi-
dence that, in some respects, conflicted with his own testing. Ulti-
mately, the degree to which such contrary evidence warranted
discounting Dr. Lapp's opinion was a credibility question for the ALJ
to determine. See Lane v. Union Carbide Corp. , 105 F.3d 166, 172
(4th Cir. 1997).
Gregory further contends that the ALJ failed to properly weigh Dr.
Larkin's report. Gregory believes that Dr. Larkin's comments support
the inference that blood gas testing demonstrated the presence of a
respiratory impairment attributable to pneumoconiosis. Dr. Larkin,
however, never diagnosed a respiratory impairment, much less one
attributable to pneumoconiosis. Rather, she merely remarked that the
miner's blood gases were unremarkable for a person known to have
pneumoconiosis. She based her comment regarding pneumoconiosis
on an assumption that the disease was part of the miner's personal
history. Whether she would even find pneumoconiosis independently
is a matter of speculation. Moreover, she did not address what level
of impairment, if any, the miner's blood gas study demonstrated.
Accordingly, her report does not undercut Dr. Lapp's conclusions.
Gregory also avers that the ALJ's subsection (b)(3) analysis was
deficient because it "heavily relied" on Dr. Lapp's opinion that the
miner's pulmonary impairment was not, itself, totally disabling. We
find this assertion factually inaccurate. The ALJ's final decision in
this case leaves no doubt that he properly relied on Dr. Lapp's finding
that the miner's impairment was not attributable to coal mine employ-
ment, rather than on any finding regarding the existence of disability,
to find subsection (b)(3) rebuttal.
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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 argument
would not aid the decisional process.
AFFIRMED
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