                                            Filed:   February 12, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             No. 95-1169
                            (88-2163-BLA)



Virginia L. Billips, etc.,

                                                           Petitioner,

           versus

Bishop Coal Company, et al,

                                                          Respondents.




                              O R D E R


           The Court amends its opinion filed January 31, 1996, as

follows:
           On page 4, first full paragraph, line 4 -- the opening

quotation mark before the word "where" is deleted.

                                       For the Court - By Direction



                                            /s/ Bert M. Montague

                                                      Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA L. BILLIPS, widow of Harry
E. Billips, deceased,
Petitioner,

v.
                                                         No. 95-1169
BISHOP COAL COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(88-2163-BLA)

Argued: October 31, 1995

Decided: January 31, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Lee Moise, III, VINYARD & MOISE, Abing-
don, Virginia, for Petitioner. Douglas Allan Smoot, JACKSON &
KELLY, Charleston, West Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Virginia Billips, widow of Harry Billips, petitions for review of a
decision and order of the Benefits Review Board (the Board), affirm-
ing the administrative law judge's (ALJ) denial of benefits under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-945. Billips contends that
the ALJ and the Board applied the incorrect legal standard. She also
argues that the ALJ's finding that the miner's pneumoconiosis was
not a contributing factor in his total disability or death was not based
upon substantial evidence. Because we conclude that the ALJ articu-
lated and applied the correct legal test, considered the medical evi-
dence of record, and supported his conclusion with four reliable and
persuasive medical opinions, we affirm.

I

Harry Billips worked in coal mines for approximately 29 years. He
ceased working in August 1979 due to a strike, and three months
later, he died of liver failure. Virginia Billips filed a survivor's claim
for black lung benefits on January 4, 1980.

Initially, the ALJ found that under 20 C.F.R. § 727.203(a), the
interim presumption of total disability or death due to pneumo-
coniosis was established because Billips worked in coal mines for
more than ten years and the autopsy reports concluded that he had
pneumoconiosis. The ALJ stated in his decision that it was "evident"
that Bishop Coal Company could not rebut this presumption under
§ 727.203(b)(3), which requires the employer to show that pneumoco-
niosis was not a causative factor in the miner's total disability or
death. But because the ALJ failed to discuss any of the medical opin-
ions to support this conclusion, the Board remanded the case so that
the ALJ could reconsider the issue of causation.

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On remand, a second ALJ considered the medical evidence in
deciding the § 727.203(b)(3) rebuttal issue. Three pathologists, Drs.
Hansbarger, O'Connor, and Kleinerman, had reviewed Billips'
autopsy slides and medical records. Each one concluded that Billips
had "simple" coal workers' pneumoconiosis1 but that it did not inter-
fere with Billips' respiratory function or contribute to his death. The
ALJ placed great weight on the opinion of Dr. Kleinerman because
he was the chairman of the panel of pathologists that established the
criteria for the diagnosis of coal workers' pneumoconiosis. Dr.
Kleinerman concluded:

        [T]he simple coalworker's pneumoconiosis present in the
        lungs of the decedent did not interfere with respiratory func-
        tion and did not cause respiratory impairment and did not
        interfere with his ability to perform his usual work as a coal-
        miner.

Dr. Kress, an industrial pulmonary expert who reviewed the medical
evidence, also concluded that Billips had no pulmonary impairment
attributable to pneumoconiosis and that his death was not due to the
disease. Dr. Kress noted that Billips' lungs were described as being
normal by physical examination on admission to the hospital. Only
Dr. Emory Robinette concluded that Billips, in addition to having
pneumoconiosis, was suffering from a mild pulmonary impairment.
He stated that it was "apparent" that Billips' pulmonary problems,
which were "directly related to his coal worker's pneumoconiosis,"
contributed to his death. Dr. Robinette's credentials were not intro-
duced into the record, and the ALJ found that his conclusions were
unsupported and therefore gave them "little weight in view of the sub-
stantial other evidence."

After reviewing all of the medical evidence, the ALJ found that
pneumoconiosis was not a contributing cause of Billips' total disabil-
ity or death. The Board affirmed, and this appeal followed.
_________________________________________________________________

1 Simple pneumoconiosis is "generally regarded by physicians as sel-
dom productive of significant respiratory impairment." Dehue Coal Co.
v. Ballard, 65 F.3d 1189, 1191 n. 1 (4th Cir. 1995), (quoting Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976)).

                    3
II

The interim presumption of eligibility for benefits can be rebutted
if the evidence "establishes that the total disability or death of the
miner did not arise in whole or in part out of coal mine employment."
20 C.F.R. § 727.203(b)(3). To rebut this presumption where the
combined effects of several diseases disable the miner, the employer
must establish that pneumoconiosis was not a causative factor in the
miner's total disability or death. Bethlehem Mines Corp. v. Massey,
736 F.2d 120, 122-24 (4th Cir. 1984) (holding that physician's opin-
ion that cigarette smoking, not miner's pneumoconiosis, caused
miner's pulmonary disability was insufficient because physician
relied exclusively on others' inconclusive medical opinions); see also
Grigg v. Director, OWCP, 28 F.3d 416, 419-20 (4th Cir. 1994)
(emphasizing that Massey test is the law of this circuit). Substantial
evidence that reveals a coal miner's respiratory or pulmonary impair-
ment, but nevertheless demonstrates that an ailment other than pneu-
moconiosis was the sole cause of the miner's total disability or death,
can rebut the presumption.2 See Massey, 736 F.2d at 124; cf. Dehue
Coal Co. v. Ballard, 65 F.3d 1189, 1193-94 (4th Cir. 1995) (holding
that evidence supported ALJ's determination that coal miner, affected
by simple pneumoconiosis but disabled by lung cancer, was not "to-
tally disabled due to pneumoconiosis" under 20 C.F.R. § 718.204).

III

Virginia Billips contends that the ALJ and the Board erred as a
matter of law. Specifically, she argues that the ALJ failed to apply the
Massey test in reviewing the § 727.203(b)(3) rebuttal issue, and the
Board incorrectly applied the law in reviewing the ALJ's findings.
She also contends that the ALJ's findings are not supported by sub-
stantial evidence.
_________________________________________________________________

2 A finding that a miner has no pulmonary impairment could be suffi-
cient to establish (b)(3) rebuttal, but the relevant medical opinion must
"unequivocally state" that the miner suffers no respiratory or pulmonary
impairment of any kind. See Grigg v. Director, OWCP, 28 F.3d 416,
419-20 (4th Cir. 1994); Curry v. Beatrice Pocahontas Coal Co., 67 F.3d
517 (4th Cir. 1995).

                    4
Although the ALJ did not cite Massey, he repeatedly articulated
and applied the test that it prescribes, stating:

        [T]he coal company may show that total disability and
        death were not related to pneumoconiosis . . . .

                                         ***

        The evidence establishes that the total disability and death
        of the miner did not arise out of coal mine employment.
        . . . All [of the foregoing medical opinions] are united in
        the opinion that pneumoconiosis played no part in Mr. Bil-
        lips' disability or death.

                                         ***

        I find that the disability and death of Harry Billips were not
        related to his pneumoconiosis.

(Emphasis added). Thus, while the ALJ may have failed to cite
Massey, that fact is immaterial if he properly applied the Massey test.

In reviewing the ALJ's decision, the Board concluded that there
was substantial evidence to support the finding that "pneumoconiosis
did not contribute in any way to the miner's death, thereby satisfying
the Massey standard." Billips argues that the Board failed to review
evidence regarding the causes of the miner's "total disability," and
only reviewed the evidence regarding his death. This, however, over-
states the record. The ALJ, applying the correct test, evaluated the
cause for both disability and death, and the Board affirmed, conclud-
ing that the ALJ's finding was supported by substantial evidence. The
failure of the Board to discuss "total disability" in this context is
harmless since its affirmance was based on the conclusion that the
ALJ's findings were supported by substantial evidence.

Finally, Virginia Billips contends that the ALJ's finding of rebuttal
is not supported by substantial evidence. To address this question, we
engage in an independent review of the record to determine whether
the Board was correct in finding that there is substantial evidence to

                    5
support the ALJ's factual findings. See Wilson v. Benefits Review Bd.,
748 F.2d 198, 199-200 (4th Cir. 1984).

While Dr. Robinette's opinion concluded that pneumoconiosis was
a contributing cause of Billips' total disability or death, the four other
medical opinions concluded uniformly that Billips' total disability or
death was caused by severe cirrhosis of the liver, associated with the
miner's heavy alcohol abuse. The ALJ found Dr. Robinette's medical
opinion unpersuasive because it included pneumoconiosis in a "laun-
dry list" of non-coal dust related maladies "and implie[d] that they
played a significant role in his morbidity." The ALJ found that Dr.
Robinette's assertion "is disingenuous for his statement would apply
even if pneumoconiosis played no part."

Because the ALJ's finding--that Bishop Coal Company rebutted
the interim presumption of eligibility for benefits--is supported by
substantial evidence, we affirm the Board's order.

AFFIRMED

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