Mullins v. Arch of WV Inc

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLEN MULLINS,
Petitioner,

v.

ARCH OF WEST VIRGINIA,
No. 95-2844
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.
(94-167-BLA)

Argued: October 31, 1996

Decided: February 10, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: S.F. Raymond Smith, RUNDLE & RUNDLE, L.C.,
Pineville, West Virginia, for Petitioner. Henry Chaplin Bowen, ROB-
INSON & MCELWEE, Charleston, West Virginia, for Respondents.
ON BRIEF: C. Scott Masel, 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Unpublished opinions are not binding precedent in this circuit.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:

Glen Mullins seeks review of the Benefit 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 et seq.
(West 1986 & West Supp. 1996). Our review of the record discloses
that the Board's decision is based upon substantial evidence and is
without reversible error. Accordingly, we affirm.

In order to establish a statutory entitlement to black lung benefits,
a claimant must show that he or she suffers from pneumoconiosis that
arose from coal mining employment and resulted in total disability.
20 C.F.R. §§ 718.202-.204 (1996). In this case, the ALJ determined
that Mullins is not entitled to benefits because he failed to demon-
strate that his pneumoconiosis has resulted in total disability, and the
Board affirmed.

Mullins' primary argument on appeal involves the ALJ's authoriza-
tion of posthearing medical tests. In Mullins' view, the admission into
evidence of these tests abrogated his right to a fair hearing.

An ALJ presiding over a claim for black lung benefits has broad
discretion in procedural matters, 20 C.F.R. 725.455(c) (1996);
Shedlock v. Bethlehem Mines Corp., 9 B.L.R. 1-195, 1-200 (1986),
including the authority to reopen the record after the hearing for the
purpose of further developing issues. 20 C.F.R.§ 725.456(e) (1996).
Of course, exercising this discretion in a way that deprives either
party of its due process right to a fair hearing constitutes an abuse of
that discretion. See North American Coal Co. v. Miller, 870 F.2d 948,
950 (3d Cir. 1989).

Under the circumstances of this case, the ALJ did not abuse his dis-
cretion by authorizing the posthearing medical tests. At the hearing,

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Mullins offered the results of a blood gas test, and the employer
offered the results of a second, nearly contemporaneous blood gas
test. While Mullins' test produced qualifying results, the employer's
test did not. Neither party's medical experts offered a convincing
explanation for the inconsistency in these objective tests. Sometime
after the hearing, the employer requested an opportunity to conduct
a third, independent blood gas test. The ALJ granted this request
because, as noted in his decision and order, he believed the additional
test results would help to resolve the claim. Given the inconclusive
state of the record, this ruling did not exceed the scope of the ALJ's
discretionary authority to develop the record. See 20 C.F.R.
§ 725.456(e).

Although Mullins acknowledges an ALJ has the authority to
reopen a record, he claims the ALJ's decision to permit additional
testing in this case denied him a fair hearing. However, the only pro-
cedural right he claims to have been denied is a purported right to
have the evidentiary record closed at the end of the hearing. The diffi-
culty with this contention is that no such right exists where, as in this
case, the ALJ determines that the record is inconclusive on a material
issue and that additional evidence would aid the decision-making pro-
cess.

In addition to the due process argument, Mullins also challenges
the sufficiency of the evidence. Specifically, he asserts that the ALJ's
finding that he has not been totally disabled by pneumoconiosis is
erroneous.

Our review of this finding is limited to whether it is supported by
substantial evidence. Toler v. Eastern Associated Coal Co., 43 F.3d
109, 114 (4th Cir. 1995). Although the record includes medical tests
and opinions supporting Mullins' claim of disability, it also includes
a substantial amount of evidence indicating he does not meet the
legally prescribed standard for total disability. As the fact-finder, the
ALJ is responsible for evaluating witness credibility and weighing
contradicting evidence. Doss v. Director, Office of Workers' Compen-
sation Programs, 53 F.3d 654, 658 (4th Cir. 1995). Performing that
function here, the ALJ found that the preponderance of evidence
weighs in favor of the employer. After careful review of the record,
we find, as the Board did, that the ALJ's finding is supported by sub-

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stantial evidence. In light of our disposition of this claim, we do not
reach the causation issue Mullins raises.

AFFIRMED

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