UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANIE L. BRYANT, Widow of Robert
C. Bryant,
Petitioner,

v.
                                                                      No. 97-2620
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.

On Petition for Review of an Order of the
Benefits Review Board.
(97-154-BLA)

Argued: March 1, 1999

Decided: July 29, 1999

Before NIEMEYER and KING, Circuit Judges,
and LEE, United States District Judge
for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge King wrote a dis-
senting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Martin Douglas Wegbreit, CLIENT CENTERED
LEGAL SERVICES OF SOUTHWEST VIRGINIA, INC., Castle-
wood, Virginia, for Petitioner. Barry H. Joyner, Office of the Solici-
tor, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent. ON BRIEF: Marvin Krislov, Deputy Solicitor
for National Operations, Donald S. Shire, Associate Solicitor, Chris-
tian P. Barber, Counsel for Appellate Litigation, Gary K. Stearman,
Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Janie Bryant, on behalf of Robert Bryant, a former miner, petitions
for review of a decision of the Benefits Review Board ("Board")
affirming the administrative law judge's ("ALJ") denial of Mr. Bry-
ant's application for black lung benefits.1 Ms. Bryant sought benefits
pursuant to the Black Lung Benefits Act of 1969 ("Act"), which
awards benefits to persons who are totally disabled due to pneumoco-
niosis and to certain survivors of persons whose death was caused by
pneumoconiosis. 30 U.S.C. §§ 901, et seq. (1994), as amended. The
ALJ reviewed this claim under 20 C.F.R. § 718 (1998), of the applica-
ble regulations, and found that the evidence of record was sufficient
to establish pneumoconiosis arising out of coal mine employment and
a totally disabling respiratory impairment. Benefits were denied based
on the ALJ's findings that Bryant was unable to prove that pneumo-
coniosis caused or contributed to his totally disabling respiratory
impairment.
_________________________________________________________________
1 Mr. Bryant died during the prosecution of this case below.

                    2
I.

In this case, the evidentiary dispute revolves around the ALJ's
assessment of Drs. Chithambo, Abernathy, and Spagnolo's opinions
regarding whether the deceased miner had pneumoconiosis and
whether it contributed to total respiratory disability. Dr. Chithambo
submitted the only evidence tending to link the miner's pneumoconio-
sis to his disability. He attributed the miner's pulmonary impairment
to coal dust exposure and cigarette smoking. However, the doctor did
not separate the relative contributions of the two. Dr. Chithambo's
opinion conflicted with those of Drs. Abernathy and Spagnolo, who
both opined that the miner's respiratory problems were solely attribut-
able to his history of smoking two packs of cigarettes daily for forty
to forty-five years, combined with his obesity (70 inches tall and 240
lbs.) and heart problems.

In rejecting Dr. Chithambo's opinion regarding the etiology of the
miner's disability, the ALJ noted that Dr. Chithambo only reported
that Mr. Bryant smoked one or two packs of cigarettes daily until one
year prior to the date of his report. However, the report did not indi-
cate how long the miner had engaged in smoking. The ALJ noted that
Dr. Chithambo's failure to consider the miner's extensive smoking
history and "factor this crucial medical fact into his conclusion . . .
undermines the reliability of his conclusion [that pneumoconiosis
contributed to disability]."

On appeal, Ms. Bryant argues that the ALJ's comment"perhaps he
[Dr. Chithambo] did not know," indicates that the ALJ never resolved
whether Dr. Chithambo relied on an inaccurate smoking history.
Moreover, she contends, because the doctor's report reflects that he
was aware the miner smoked, it could be inferred that he was aware
of the miner's complete smoking history.

II.

The standard of review is whether the ALJ's factual findings were
based upon substantial evidence in the record. Doss v. Director,
Office of Workers' Compensation Programs, 53 F.3d 654, 658 (4th
Cir. 1995). The Court must affirm the Board's decision if it properly
decided that the ALJ's decision is supported by substantial evidence

                    3
and is in accordance with the law. Id. at 659. The Court must not set
aside a factual finding simply because it finds a different conclusion
more reasonable or more strongly supported by the evidence. Id.

An ALJ may properly reject an opinion finding an impairment to
coal dust exposure where that opinion is based on an inaccurate
smoking history. Risher v. Office of Workers' Compensation
Programs, 940 F.2d 327, 330-31 (8th Cir. 1991) (upholding ALJ's
rejection of an opinion where physician believed miner smoked for
only fifteen years but evidence showed smoking history of fifty
years). An ALJ may also properly reject an opinion which fails to
adequately explain the reasons for the physician's conclusions. Id. at
331.

In the judgment of the ALJ, Dr. Chithambo's opinion failed to take
into account the claimant's long smoking history. Dr. Chithambo only
indicated that Mr. Bryant smoked one to two packs of cigarettes a day
up to one year prior to the filing of his report. However, he did not
address the length of time Mr. Bryant smoked. According to the
reports of Dr. Buddington and Dr. Abernathy, Mr. Bryant's smoking
history spanned forty to forty-five years. Due to the substantial length
of the miner's smoking history, the ALJ properly viewed such history
to be a "crucial medical fact." The ALJ reasonably determined that
Dr. Chithambo's report provided no basis for inferring that he was
aware of the extent of the miner's smoking history. 2 Because Dr.
Chithambo's opinion may have been based on misinformation or
incomplete information, we conclude that the ALJ did not err in
rejecting Dr. Chithambo's diagnosis.

Contrary to Ms. Bryant's suggestion, reliance on an inaccurate
smoking history provides a sufficient basis for entirely discrediting
Dr. Chithambo's opinion concerning causation. Because Dr. Chitham-
bo's opinion may have been based on misinformation, the reliability
of his opinion was undermined, much the same way that an opinion
_________________________________________________________________
2 The Court will not assume that Dr. Chithambo knew of Mr. Bryant's
smoking history simply because Mr. Bryant told two other doctors about
a forty to forty-five year smoking history, particularly when he met with
those doctors several years before meeting with Dr. Chithambo.
Petitioner's Opening Brief, at 18.

                    4
is undermined where it is based on invalid objective data. See e.g.,
Lane v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir. 1997)
(holding that ALJ properly rejected opinions based on invalid objec-
tive studies). Even if Dr. Chithambo's report did reflect the miner's
smoking history, the ALJ indicated that the report would still have lit-
tle value because it provides no discussion of the impact of that his-
tory on the miner's impairment. Essentially, therefore, the ALJ found
Dr. Chithambo's finding of causation to be unexplained. Our review
of Dr. Chithambo's report discloses that this conclusion is supported
by substantial evidence.

To establish entitlement to benefits under the Act, a miner must
prove that he has pneumoconiosis, that the disease was caused by his
coal mine employment, and that he is totally disabled due to the dis-
ease. Doss, 53 jacob69@example.com. Bryant was required to prove each element
of his case by a preponderance of the evidence. Director, Office of
Workers' Compensation Program v. Greenwich Collieries, 512 U.S.
267, 270-81 (1994). Dr. Chithambo's report was the only physician's
opinion that found pneumoconiosis and concluded that it was caused
by coal mine employment and contributed to total respiratory disabil-
ity. Without that opinion, Bryant cannot meet his burden. Because the
ALJ properly found Dr. Chithambo's opinion regarding causation to
be unreliable and unexplained, Bryant's entitlement is precluded.3
Thus, it is not necessary for the Court to address Ms. Bryant's allega-
tions that the ALJ erred by crediting the reports of those physicians
who found no link between pneumoconiosis and the miner's disability,4
_________________________________________________________________
3 The dissent primarily focuses on the question of causation in regards
to whether the pneumoconiosis caused the total disability. See Robinson
v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990) (holding that
the requirement that the claimant be totally disabled "due to" pneumoco-
niosis could be satisfied by establishing that pneumoconiosis was a con-
tributing cause of his total disability). However, the majority does not
reach this issue because Dr. Chithambo's opinion was discredited by the
ALJ. The ALJ concluded that Dr. Chithambo's opinion concerning the
connection of Bryant's total disability with his pneumoconiosis was
unreliable because he did not properly take into account Bryant's exten-
sive smoking history. Thus, Bryant never establishes that his total dis-
ability was due to the disease as required under Doss. 53 jacob69@example.com.
Without this evidence, it is not necessary to reach the causation question.
4 We disagree with the dissent's argument that the ALJ did not identify
specific and persuasive reasons why the opinions of Drs. Spagnolo and

                    5
nor that the ALJ and the Board applied the wrong causation standard.
Our disposition also renders it unnecessary to resolve the respon-
dent's contentions that the ALJ erred by finding pneumoconiosis in
this case.

Accordingly, the Board's decision upholding the ALJ's denial of
benefits is affirmed.

AFFIRMED

KING, Circuit Judge, dissenting:

The ALJ applied the wrong causation standard, thus made irrele-
vant findings. The BRB likewise applied an erroneously high standard
of causation to Mr. Bryant's evidence. As a result, I would remand
this case for consideration of the evidence under the proper standard.

A miner seeking to show that his total disability is due to pneumo-
coniosis must prove only that "his pneumoconiosis was at least a con-
tributing cause of his total disability." Robinson v. Pickands Mather
& Co., 914 F.2d 35, 38 (4th Cir. 1990). Instead of analyzing Dr.
Chithambo's opinion under the proper "contributing cause" standard,
the ALJ discredited that opinion because Dr. Chithambo failed to
explain why Mr. Bryant's pneumoconiosis could be totally disabling,
in and of itself: "Dr. Chithambo does not explain whether that level
_________________________________________________________________
Abernathy should be credited despite their judgment that Bryant did not
suffer from black lung disease. Indeed, the ALJ's decision is replete with
references to the quality and kind of medical tests and findings support-
ing the two doctors' opinions, as well as their qualifications. Specifically,
as to Dr. Spagnolo, the ALJ noted his experience in the field of pulmo-
nary disease and the fact that Dr. Spagnolo had considered Bryant's
extensive smoking history. (J.A. at 19-20). Thus, the ALJ concluded that
Dr. Spagnolo's opinion was "entitled to greater weight on the question
of etiology." (J.A. at 20). The ALJ stated that the "question of etiology
of a disability depends primarily on the expert's information and medi-
cal/scientific judgment rather than a personal one-on-one examination
. . . ." (J.A. at 20). As they reflected knowledge of the miner's complete
smoking information, Drs. Spagnolo and Abernathy's opinions were
properly considered by the ALJ.

                    6
[i.e., minimal] of pneumoconiosis can result in respiratory impairment
at a totally disabling level." J.A. 20 (emphasis added).

On appeal, the BRB recognized that the ALJ had misstated the cau-
sation standard. But instead of correcting the ALJ's mistake, the BRB
compounded this error by rephrasing the standard in a different--but
equally wrong--fashion: "We agree with the Director that the admin-
istrative law judge was not stating that minimal pneumoconiosis
could never be totally disabling, but instead merely noted that Dr.
Chithambo did not explain how . . . [Mr. Bryant's] pneumoconiosis
was totally disabling in this case." J.A. 4 (emphasis added). The BRB
thus applied the wrong causation standard as well, requiring Mr. Bry-
ant's pneumoconiosis itself to be totally disabling, rather than a con-
tributing cause of his disability.

Because both the ALJ and the BRB asked the wrong causation
questions, their answers to those questions--whether well-supported
or not--are irrelevant.1 Additionally, the alleged flaw in Dr. Chitham-
bo's opinion--his failure to write down exactly how long Mr. Bryant
had smoked--becomes less important if viewed under the proper
"contributing cause" standard. That is, a rational ALJ could credit Dr.
Chithambo's conclusion that pneumoconiosis contributed to Mr. Bry-
_________________________________________________________________
1 The majority claims not to reach the question "whether the pneumo-
coniosis caused [Mr. Bryant's] total disability." Ante at 5 n.3. As I read
its opinion, however, the majority does address and resolve the causation
issue: "Thus, Bryant never establishes that his total disability was due to
the disease . . . ." Ante at 5 n.3. The majority's treatment of this issue
demonstrates that, under the circumstances, it is impossible not to
address the causation question. I simply conclude that, in deciding this
unavoidable issue, the ALJ and the BRB failed to weigh Mr. Bryant's
proof against the appropriate "contributing cause" standard, thus made
legally irrelevant findings.

Nor can the majority cure the errors below by independently reviewing
the record under the correct standard and making its own causation find-
ings. As an appellate court, we are powerless to affirm on the basis of
findings that, while plausible, were never made by the ALJ: "Because the
ALJ has not yet made such a finding, we cannot affirm on the basis that
he could have done so." Toler v. Eastern Associated Coal Co., 43 F.3d
109, 115 (4th Cir. 1995) (emphasis added).

                    7
ant's disability, even though Dr. Chithambo's opinion may be ambig-
uous as to the extent he believed smoking to be an additional
contributing cause.

The ALJ's errors in evaluating and discrediting Dr. Chithambo's
opinion are critical because of the fatal flaws in the medical opinions
that the ALJ did credit. Unlike the ALJ and Dr. Chithambo, neither
Dr. Spagnolo nor Dr. Abernathy concluded that Mr. Bryant suffered
from pneumoconiosis. As a result, the ALJ was barred from crediting
the opinions of either Dr. Spagnolo or Dr. Abernathy"unless the ALJ
can and does identify specific and persuasive reasons for concluding
that the doctor's judgment on the question of disability causation does
not rest upon her disagreement with the ALJ's finding as to either or
both of [disability or causation]." Toler v. Eastern Associated Coal
Co., 43 F.3d 109, 116 (4th Cir. 1995). The ALJ identified no "specific
and persuasive reasons" why the opinions of Drs. Spagnolo and
Abernathy should be credited despite their disagreement with the ALJ
as to the presence of pneumoconiosis.2 The ALJ's decision to credit
those opinions therefore violated Toler.
_________________________________________________________________
2 The majority concludes that Dr. Spagnolo's credentials and knowl-
edge of Mr. Bryant's full smoking history constituted "specific and per-
suasive" reasons under Toler, permitting the ALJ to credit him despite
his failure to diagnose pneumoconiosis or find Mr. Bryant totally dis-
abled. Ante at 5-6 n.4. I disagree. First, every doctor in this field should
know a claimant's smoking history. If such knowledge is sufficient to
avoid the usual credibility rule in Toler, then the exception could be
invoked in almost every case to allow an ALJ to credit doctors who have
erroneously failed to diagnose pneumoconiosis or total disability.

Second, I disagree with the majority's conclusion that a doctor's cre-
dentials can constitute "specific and persuasive" reasons to credit her
under Toler. In essence, the majority reasons that, when deciding
whether pneumoconiosis caused a miner's total disability, an ALJ may
properly credit an experienced doctor who erroneously failed to diagnose
both pneumoconiosis and total disability, simply because this erring doc-
tor is more experienced than the doctor who got both of these diagnoses
right in this case. The majority's position is troubling. Because no two
doctors have identical credentials, every case will include one doctor
whose credentials are arguably superior to those of her opposite number.
Consequently, a "better credentials" exception to Toler--like a "smoking

                    8
Consequently, the record before the ALJ was devoid of any legally
credible medical opinion contradicting Dr. Chithambo's conclusion
that pneumoconiosis contributed to Mr. Bryant's total disability. I
would remand to have this lone credible opinion evaluated under the
proper "contributing cause" standard.

I respectfully dissent.
_________________________________________________________________
history knowledge" exception--could be invoked in almost every case,
permitting this exception to swallow the rule.

Finally, we cannot overlook the reality that experts with more impres-
sive credentials usually charge higher fees, thus are more likely to be
hired by wealthier parties. As a result, the majority's position would, in
some cases, permit rich litigants--rarely black lung claimants--to buy
their way around the Toler rule.

                     9
