Stiltner v. DOWCP

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LESTER D. STILTNER,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
No. 96-1717
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
VIRGINIA POCAHONTAS COAL
COMPANY,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(95-0934-BLA)

Submitted: December 10, 1996

Decided: January 27, 1997

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lester D. Stiltner, Petitioner Pro Se. Patricia May Nece, Sarah Marie
Hurley, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C.; Sannie Louise Overly, JACKSON & KELLY, Lexington,
Kentucky, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lester Stiltner seeks review of the Benefits Review Board's
("BRB") decision and order affirming the administrative law judge's
("ALJ") denial of his application for black lung benefits. The ALJ
found the evidence of record sufficient to establish a totally disabling
respiratory impairment, but insufficient to establish pneumoconiosis
or that the miner's total disability was due to pneumoconiosis. The
BRB affirmed the ALJ's denial of benefits based on its agreement
with the ALJ's finding of no pneumoconiosis.

Stiltner alleges that the ALJ erred in finding no pneumoconiosis
due to the ALJ's acceptance of Dr. Byers' conclusions over those of
Dr. Sutherland, Stiltner's treating physician. Stiltner further contends
that the ALJ erred by failing to apply this court's holding in Warth
v. Southern Ohio Coal Co., 60 F.3d 173 (4th Cir. 1995).1 The ALJ's
weighing of the evidence must be affirmed if his conclusions are sup-
ported by substantial evidence and are not contrary to law. See
Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1189 (4th Cir. 1985).

In this case, we find that the ALJ lawfully accorded greater weight
to Dr. Byers' opinion on the ground that he possessed superior cre-
dentials to Dr. Sutherland.2 See Starchevich v. Director, Office of
Workers' Compensation Programs, 873 F.2d 197, 198-99 (8th Cir.
1989). Furthermore, although Stiltner alleges that Dr. Byers was not
his treating physician, he is mistaken. Byers, a pulmonary specialist,
treated Stiltner from 1985 until at least 1990. Because both Suther-
_________________________________________________________________
1 This Court decided Warth on July 31, 1995, after the ALJ issued his
opinion on January 4, 1995.
2 In fact, the ALJ weighed and considered the medical opinions of
eleven different physicians, of which only three opined that Stiltner suf-
fered from pneumoconiosis.

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land and Byers were treating physicians, Stiltner's claim that his treat-
ing physician's opinion was not treated with proper deference is
meritless.

Regarding Warth, Stiltner contends that the ALJ erred by accepting
physicians' reports finding no pneumoconiosis. In Warth, we found
that a physician's opinion that pneumoconiosis or coal dust exposure
cannot cause an obstructive impairment is hostile to the Black Lung
Benefits Act, which recognizes the potential for such a causal connec-
tion. 60 F.3d at 175. However, unlike the medical opinions discussed
in Warth, none of the challenged physicians here assumed that coal
mine employment can never cause obstructive pulmonary disease.
Instead, the doctors based their conclusions that Stiltner did not have
pneumoconiosis on the review of Stiltner's entire medical history,
including blood gas tests and x-ray readings. See Stiltner v. Island
Creek Coal Co., 86 F.3d 337, 341 (4th Cir. 1996).

Accordingly, the decision of the BRB 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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