Cobb v. Ranger Fuel Corp ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EULES W. COBB,
Petitioner,
v.
RANGER FUEL CORPORATION;
No. 95-1952
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(94-2561-BLA)
Submitted: November 30, 1995
Decided: April 22, 1996
Before WILKINSON, Chief Judge, and WIDENER and
HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
S.F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. Douglas A. 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Unpublished opinions are not binding precedent in this circuit.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:
Eules Cobb seeks review of the Benefits Review Board's (Board)
decision and order affirming the administrative law judge's (ALJ)
denial of his application for black lung benefits pursuant to 30
U.S.C.A. §§ 901-45 (West 1986 & Supp. 1995). The ALJ found the
evidence of record sufficient to establish a totally disabling respira-
tory impairment, but insufficient to establish pneumoconiosis or that
the miner's total disability was due to pneumoconiosis. The Board
affirmed the ALJ's denial of benefits based on its agreement with the
ALJ's finding of no pneumoconiosis.
Cobb alleges that the ALJ improperly denied benefits in this case
solely on the basis of negative X-ray evidence, in violation of 20
C.F.R. § 718.202(b) (1995). He does not identify any error committed
by the ALJ in weighing the X-ray evidence under 20 C.F.R.
§ 718.202(a)(1) (1995), but asserts that the medical reports relied on
by the ALJ to find no pneumoconiosis under § 718.202(a)(4) rely on
nothing more than negative X-rays to support their diagnoses. Cobb
concedes that these reports discuss the data relevant to diagnosing the
presence of pneumoconiosis or other respiratory diseases, such as the
miner's personal and employment history, and the results of ventila-
tory and blood gas testing, but asserts that the physicians who pre-
pared these reports inserted these discussions merely to "camouflage"
their actual reliance on only the negative X-ray evidence in forming
their conclusions. He avers that these physicians did this to justify
rendering an opinion which could support the denial of a black lung
claim.
Cobb thus effectively argues that the medical reports relied on by
the ALJ are biased and not credible. These reports, however, consti-
tute probative evidence and are not presumptively biased. See
Cochran v. Consolidation Coal Co., 16 BLR 1-101 (1992) (citing
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Richardson v. Perales, 402 U.S. 389 (1971)). Moreover, the ALJ has
sole discretion to determine the credibility of the evidence, see
Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir.
1993), and is in the best position to assess its weight and sufficiency.
See Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1189 (4th Cir. 1985).
Cobb essentially urges us to usurp the function of the ALJ and
reweigh the evidence, which exceeds the scope of our review.
Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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