Shrewsberry v. Westmoreland Coal Co ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BERNARD SHREWSBERRY,
Petitioner,
v.
WESTMORELAND COAL COMPANY,
No. 95-3203
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.
(94-2528-BLA)
Argued: December 5, 1996
Decided: January 7, 1997
Before WILKINSON, Chief Judge, and
ERVIN and HAMILTON, Circuit Judges.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: S. F. Raymond Smith, RUNDLE & RUNDLE, L.C.,
Pineville, West Virginia, for Petitioner. Douglas Allan Smoot, JACK-
SON & KELLY, Charleston, West Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bernard Shrewsberry (Shrewsberry) seeks review of the Benefits
Review Board's (Board) decision and order affirming the administra-
tive law judge's (ALJ) denial of his application for black lung bene-
fits, see 30 U.S.C. §§ 901-45. For reasons that follow, the petition for
review is denied.
I
From November 1949 to January 1973, Shrewsberry worked as a
machinist for Westmoreland Coal Company. Since then, Shrewsberry
has been employed as a safety representative for the United Mine
Workers of America. Shrewsberry timely filed a claim for black lung
benefits on October 27, 1978.
After a hearing, the ALJ, who evaluated Shrewsberry's claim under
Part 727 of the regulations, found the evidence of record sufficient to
invoke the interim presumption of entitlement pursuant to 20 C.F.R.
§ 727.203(a)(2) and insufficient to establish rebuttal under 20 C.F.R.
§ 727.203(b). Based on these findings, the ALJ awarded benefits. The
Board affirmed the ALJ's invocation of the interim presumption, but
vacated his rebuttal findings and remanded the case for further con-
sideration.
On remand, the ALJ found the evidence of record sufficient to
establish rebuttal of the interim presumption under 20 C.F.R.
§§ 727.203(b)(3) and (b)(4). Based on these findings, benefits were
denied. On appeal, the Board found that the ALJ's (b)(4) rebuttal
finding was supported by substantial evidence. The Board did not
address whether the ALJ's (b)(3) rebuttal finding was supported by
substantial evidence. Shrewsberry filed a timely petition for review of
the Board's decision.
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II
A
In black lung cases, the ALJ is charged with making factual find-
ings, including evaluating the credibility of witnesses and weighing
contradictory evidence. See Doss v. DOWCP, 53 F.3d 654, 658 (4th
Cir. 1995). The Board reviews the ALJ's findings to determine if they
are supported by substantial evidence. Id.; see 33 U.S.C. § 921(b)(3).
We review the Board's decision only for errors of law and to ensure
that the Board adhered to the correct standard of review. Doss, 53
F.3d at 658. Therefore, we must affirm the Board's decision if the
Board properly decided that the ALJ's findings are supported by sub-
stantial evidence. Id. at 659. To determine whether the ALJ's findings
are supported by substantial evidence, we undertake an independent
review of the record. Dehue Coal Co. v. Ballard , 65 F.3d 1189, 1193
(4th Cir. 1995). In undertaking our independent review of the record,
however, we must confine our review to the grounds upon which the
Board based its decision. See Grigg v. DOWCP, 28 F.3d 416, 418
(4th Cir. 1994); see also Securities & Exchange Comm'n v. Chenery
Corp., 318 U.S. 80, 87 (1943).
B
The issue presented in this appeal is whether the Board properly
decided that the ALJ's (b)(4) rebuttal finding was supported by sub-
stantial evidence. Under 20 C.F.R. § 727.203(b)(4), the interim pre-
sumption of entitlement to benefits under 20 C.F.R.§ 727.203(a)(2)
is rebutted if the evidence establishes that the claimant/miner does not
have pneumoconiosis.
We believe the Board properly decided that the ALJ's (b)(4) rebut-
tal finding was supported by substantial evidence. In concluding that
Shrewsberry did not have pneumoconiosis, the ALJ relied on the
opinions of Drs. Zaldivar, Kress, and Fino, all of whom ruled out the
existence of clinical and statutory pneumoconiosis. These physicians
relied on a variety of factors, including the results of the spirometries,
lung volumes, diffusion capacities, physical examinations, pulmonary
function tests, and blood gas studies. The physicians also relied on the
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overwhelmingly negative x-rays.* This evidence, as a whole, consti-
tutes substantial evidence to support a finding of (b)(4) rebuttal.
III
In summary, the Board properly decided that the ALJ's (b)(4)
rebuttal finding was supported by substantial evidence. Accordingly,
the petition for review is denied.
PETITION DENIED
_________________________________________________________________
*Because Drs. Zaldivar, Kress, and Fino based their opinions on a
variety of factors, Shrewsberry's claim that these physicians based their
opinions solely on the negative x-ray evidence is without merit.
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