Dickens v. Peabody Coal Company

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS H. DICKENS,
Petitioner,

v.

PEABODY COAL COMPANY,
No. 95-3194
Respondent,

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Party in Interest-Respondent.

On Petition for Review of an Order
of the Benefits Review Board.
(93-882-BLA, XXX-XX-XXXX)

Submitted: February 11, 1997

Decided: July 29, 1997

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger D. Forman, FORMAN & CRANE, L.C., Charleston, West Vir-
ginia, for Petitioner. Mark E. Solomons, Thomas H. Odom, ARTER
& HADDEN, Washington, D.C., for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The Benefits Review Board (Board) upheld a finding by an admin-
istrative law judge (ALJ) that Thomas H. Dickens was not totally dis-
abled due to pneumoconiosis. Dickens now petitions for review of the
Board's order. Because the Board properly found that substantial evi-
dence supports the ALJ's decision, we affirm. See Doss v. Director,
OWCP, 53 F.3d 654, 658-59 (4th Cir. 1995).

To establish entitlement to black lung benefits, a miner must show
that he has pneumoconiosis, that the disease was caused by coal mine
employment, and that he is totally disabled due to the disease. 20
C.F.R. §§ 718.202-204 (1996); Robinson v. Pickands Mather & Co.,
914 F.3d 35, 36 (4th Cir. 1994). A claimant may establish the pres-
ence of a totally disabling respiratory or pulmonary impairment by
means of (1) pulmonary function studies; (2) arterial blood gas
studies; (3) evidence of cor pulmonale with right-sided congestive
heart failure, or (4) medical reports. 20 C.F.R.§ 718.204(c).

Neither of Dickens' two pulmonary function studies produced
qualifying values. Nor did his two blood gas studies qualify. There
was no evidence of cor pulmonale. Dickens, therefore, had to estab-
lish disability by way of medical reports. Two doctors, Dr. Rasmus-
sen and Dr. Zaldivar, interpreted Dickens' pulmonary function and
arterial blood gas tests differently. Dr. Rasmussen concluded that the
tests revealed total disability; Dr. Zaldivar found the test results to be
normal and concluded that Dickens was capable of performing heavy
manual labor.

The ALJ made a credibility determination in favor of Dr. Zaldivar
because he possessed superior qualifications. Determinations regard-
ing the credibility of evidence lie solely within the province of the
ALJ. Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1096 (4th

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Cir. 1993). The ALJ may properly accord greater weight to the report
of a physician if the physician possesses qualifications superior to
those of another physician with a conflicting opinion. Starchevich v.
Director, OWCP, 873 F.2d 197, 198-99 (8th Cir. 1989).

In the subject case, evidence was before the ALJ that Dr. Zaldivar
was board-certified in internal medicine and in the subspecialty of
pulmonary disease. Dr. Rasmussen's qualifications were not stated in
the record. Neither the ALJ nor the Board was obligated to develop
the claimant's case and gather evidence of Dr. Rasmussen's qualifica-
tions prior to rendering a decision in this case. See King v. Consolida-
tion Coal Co., 8 BLR 1-262 (1985). The ALJ thus acted properly in
crediting the opinion of Dr. Zaldivar over that of Dr. Rasmussen, par-
ticularly since all objective medical tests were non-qualifying.*

Dickens argues that it was unreasonable for the ALJ to ignore a
1981 decision of the West Virginia Occupational Pneumoconiosis
Board finding him to be ten percent disabled. That one-page decision
was not in the record; therefore, neither the ALJ nor the Board was
obligated to consider it. Further, there are no findings showing the
basis for the award. Unsupported conclusions cannot override objec-
tive medical tests results and the opinions of physicians which are
supported by medical evidence. We note that Dickens worked as a
miner following this award. The state agency's finding is not binding
on the ALJ. 20 C.F.R. § 718.206 (1996); Moseley v. Peabody Coal
Co., 769 F.2d 357, 361 n.7 (6th Cir. 1985). Finally, the state agency
found only a ten percent disability; to qualify for federal black lung
benefits, total disability is required.

We affirm the denial of benefits. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process. The motion to strike Petitioner's brief is denied.

AFFIRMED
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*Dickens incorrectly claims that the ALJ ignored Dr. Rasmussen's
finding that Dickens' blood oxygen level decreases with exercise. The
ALJ noted that Dr. Zaldivar criticized this finding, and the ALJ credited
Dr. Zaldivar's opinion over that of Dr. Rasmussen.

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