Mountaineer Coal Development v. Larry Dingess, No. 12-2570 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2570 MOUNTAINEER COAL DEVELOPMENT VIRGINIA CWP FUND, COMPANY, INCORPORATED; WEST Petitioners, v. LARRY A. DINGESS; DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. On Petition for Review of an Order of the Benefits Review Board. (12-0034-BLA) Submitted: July 31, 2013 Decided: August 30, 2013 Before NIEMEYER, KEENAN, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Mark J. Grigoraci, ROBINSON & MCELWEE PLLC, Charleston, West Virginia, for Petitioners. Otis R. Mann, Jr., LAW OFFICE OF OTIS R. MANN, JR., Charleston, West Virginia; M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Deputy Solicitor, Gary K. Stearman, Helen H. Cox, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mountaineer Coal Development Company ( Employer ) petitions for review of the Benefits Review Board s ( Board ) decision and order affirming the Administrative Law Judge s ( ALJ ) award of benefits to Larry A. Dingess under the Black Lung Benefits Act ( Act ), 30 U.S.C.A. §§ 901-945 (West 2007 & Supp. 2013). We deny the petition for review. We review the Board s and the ALJ s legal conclusions de novo and independent[ly] review . . . the record to determine whether the ALJ s findings of fact were supported by substantial evidence. Island Creek Coal Co. v. Compton, 211 F.3d Cir. 203, 207-08 omitted). (4th Substantial 2000) (internal evidence is more quotation than a marks mere scintilla ; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In conducting this review, we confine ourselves to the grounds on which the Board based its decision. Daniels Co. v. Mitchell, 479 F.3d 321, 329 (4th Cir. 2007). Subject to the substantial evidence requirement, we defer to the ALJ s credibility determinations and evaluation of the proper weight to accord conflicting medical opinions. Harman Mining Co. v. Dir., Office of Workers Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012) 2 (internal quotation marks omitted). The ALJ is not bound to accept any medical expert opinion but must evaluate the evidence, weigh it, and draw his own conclusions, giving consideration to the qualifications of the experts, the opinions reasoning, their reliance on objectively determinable symptoms and established science, their detail of analysis, and their distractions and prejudices. freedom from irrelevant Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949, 951 (4th Cir. 1997), superseded on other grounds as stated in Elm Grove Coal Co. v. Dir., Office of Workers Comp. Programs, 480 F.3d 278, 287 (4th Cir. 2007). Because Dingess was employed in underground coal mines for fifteen interpreted demonstrated or as more years, negative that he for has had at least complicated a totally one chest pneumoconiosis, disabling x-ray and pulmonary impairment, he is entitled to a rebuttable presumption that he is totally disabled due to pneumoconiosis. * See 30 U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a) (2013). The burden then shifted such to Employer to affirmatively rebut presumption only by establishing that (A) such miner does not . . . have pneumoconiosis, or impairment not did that arise (B) his out * of, respiratory or in or pulmonary connection with, This presumption was restored by the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010). 3 employment in a coal mine. 30 U.S.C.A. § 921(c)(4); see 20 C.F.R. § 718.305(a); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479-80 (6th Cir. 2011). Upon review of the evidence submitted in this case, we conclude that substantial evidence supports the ALJ s finding that Employer failed to affirmatively rebut the presumption. See 20 C.F.R. § 718.201(a)(2); Harman Mining Co., 678 F.3d at 311. Thus, the ALJ did not err in awarding benefits under the Act. Accordingly, we deny Employer s petition for review. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. PETITION DENIED 4

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