BRB No. 98-0891  BLA
                                         
JOHN L. COUSINS               )
                              )
          Claimant-Respondent )
                              )
     v.                       )
                              )
PENN ALLEGHENY COAL CO.,      )
INC.                          )
                              )
          Employer-Petitioner )
                              )
DIRECTOR, OFFICE OF WORKERS'  )    DATE ISSUED:08/20/1999      
COMPENSATION PROGRAMS,   )
UNITED STATES DEPARTMENT )
OF LABOR                      )
                              )
          Party-in-Interest        )    DECISION and ORDER

     Appeal of the Decision and Order of Richard A. Morgan, Administrative Law
     Judge, United States Department of Labor.

     Debra Henry (United Mine Workers of America), Belle Vernon, Pennsylvania ,
     for claimant.
     
          Raymond F. Keisling (Keisling, Schmitt, Coletta & Deitrick, P.C.),
Carnegie,      Pennsylvania, for employer.

     Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON, Acting
     Administrative Appeals Judge. 

     PER CURIAM:
     Employer appeals the Decision and Order Awarding Benefits (97-BLA-0913) of
Administrative Law Judge Richard A. Morgan on a claim filed pursuant to the
provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as
amended, 30 U.S.C. §901 et seq. (the Act).  

     The administrative law judge awarded benefits pursuant to 20 C.F.R. Part 718.
Specifically, the administrative law judge found that claimant established the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4), by
relying upon the medical opinions of Drs. Paul and Rajupet, in conjunction with the
positive x-ray readings of Drs. Mieckowski and Navani.  The administrative law
judge also found that claimant established that his pneumoconiosis arose from his
coal mine employment pursuant to 20 C.F.R. §718.203, concluding that he was
entitled to the causality presumption at 20 C.F.R. §718.203(b) because he
established over 10 years of coal mine employment, and that employer failed to
successfully rebut the presumption.  Then, after noting that claimant's total
disability pursuant to 20 C.F.R. §718.204(c) was conceded by the parties in
this case, the administrative law judge concluded that claimant established that
his total disability was due to pneumoconiosis pursuant to 20 C.F.R.
§718.204(b) as claimant established that his pneumoconiosis was  a
substantially contributing cause of his total disability, pursuant to the standard
articulated by the United States Court of Appeals for the Third Circuit in
Bonessa v. U.S. Steel Corp., 884 F.2d 726, 13 BLR 2-23 (3d Cir. 1989),
relying upon the medical opinions of Drs. Paul and Rajupet over the contrary
opinion of Dr. Fino.  Consequently, as the administrative law judge found
that claimant successfully established all requisite elements of entitlement
pursuant to Part 718, benefits were awarded.    Employer appeals, contending that
the administrative law judge erred in finding total disability due to
pneumoconiosis pursuant to Section 718.204(b) established under the Bonessa
standard, and in finding Dr. Fino's opinion to be incredible under Section
718.204(b) because it was hostile to the Act.  Claimant responds, requesting
affirmance of the decision below.   The Director, Office of Workers' Compensation
Programs, filed a letter indicating non-participation in this appeal.  
     The Board's scope of review is defined by statute.  The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with law.   33 U.S.C.§921(b)(3),
as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). 

     After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal, and the evidence of record, we conclude that the
administrative law judge's Decision and Order cannot be affirmed, inasmuch as
employer has raised meritorious arguments regarding the administrative law judge's
finding that claimant established that his total disability was due to
pneumoconiosis pursuant to Section 718.204(b)[1]
.  In so finding, the administrative law judge noted that, inasmuch as this case
arises within the appellate jurisdiction of the United States Court of Appeals for
the Third Circuit, claimant must establish that his pneumoconiosis was a
substantial contributing cause of his total disability, pursuant to the holding of
the Third Circuit court in Bonessa. Then, the administrative law judge found
that Dr. Fino's opinion that claimant did not suffer from an occupationally
acquired pulmonary disease, but was totally disabled due to a smoking induced lung
disease, to be entitled to little weight, because his opinion was hostile to the
Act and because the physician's conclusion that claimant did not suffer with
pneumoconiosis was contrary to the findings of the administrative law judge at
Section 718.202.   Thus, the administrative law judge credited the medical opinions
of Drs. Paul and Rajupet to find that causation was established. 

     Employer argues on appeal that, although the administrative law judge properly
acknowledged that claimant was required to establish that pneumoconiosis was a
substantial contributing cause under Bonessa, he did not properly apply the
standard, inasmuch as he relied upon the medical opinions of Drs. Paul and Rajupet,
which, employer argues, are legally insufficient to establish total disability
under the Bonessa standard.   Upon consideration of the evidence we hold
that the administrative law judge erred in crediting the opinions of Drs. Paul and
Rajupet without considering the legal sufficiency of the opinions under
Bonessa. Dr. Rajupet opined that claimant suffered with severe chronic
obstructive lung disease, severe bullous emphysema, and interstitial lung disease
as evidenced by chest x-ray findings, and diagnosed claimant with a disabling
respiratory impairment, but found that "the etiologies for the above problems are
multiple, possibly smoking, his long exposure to coal dust and his predisposition
to develop emphysema.  How much each one of them contributed to his present status
would be difficult to say." Claimant's Exhibit 1.   Dr. Paul found that claimant
suffers with chronic bronchitis, severe chronic airways obstruction, restrictive
lung disease, coal worker's pneumoconiosis  1/1, and exercise desaturation, and
that the airways obstruction and restrictive lung disease caused severe disability,
but characterized claimant's coal worker's pneumoconiosis as "mild", and did not
attribute the airways obstruction or restrictive lung disease to coal mine
employment or coal dust inhalation.  Director's Exhibit 22.   The administrative
law judge found the opinions of Dr. Paul and Rajupet to be supportive of claimant's
burden of proof because the physicians "state that both coal mine dust exposure and
smoking contributed to the miner's totally disabling condition", Decision and Order
at 13, but the administrative law judge did not state, in analyzing the opinions,
that the physicians' conclusions were sufficient to demonstrate that pneumoconiosis
was a substantially contributing cause to claimant's disability; and did not
explain how the opinions were sufficient to meet claimant's burden of proof under
Bonessa. See Administrative Procedure Act, 5 U.S.C.
§557(c)(3)(A), as incorporated into the Act by 5 U.S.C. §554(c)(2), 33
U.S.C. §919(d) and U.S.C. §932(a); Ridings v. C& C Coal Co., 6
BLR 1-227 (1984).  As the administrative law judge did not consider the legal
sufficiency of these two opinions under the Bonessa standard, we vacate his
finding pursuant to Section 718.204(b) and remand for the administrative law judge
to do so.

   Furthermore, employer is correct that the administrative law judge erred in
finding that Dr. Fino's opinion was not credible pursuant to Section 718.204(b)
because it was hostile to the Act.[2]  
Specifically, the administrative law judge found that Dr. Fino's opinion that
claimant did not suffer with pneumoconiosis because he demonstrated improvement on
pulmonary function studies after bronchodilator, thus indicating that claimant
suffered with an obstructive rather than restrictive impairment, see
Employer's Exhibit 1 at 11,  to be hostile to the Act.  The administrative law
judge concluded that Dr. Fino's opinions regarding improvement on bronchodilator
were inconsistent with the premise of the Act that pneumoconiosis was a progressive
disease, citing the holding of the United States Court of Appeals for the
Fourth Circuit in Badger Coal Co. v. Director, OWCP, [Kittle],
83 F.3d 414, 20 BLR 2-265 (4th Cir. 1996).  In Kittle, the Court, citing
Warth v. Southern Ohio Coal Co., 60 F.3d 173, 19 BLR 2-265 (4th Cir.
1995),  held that an obstructive impairment may be sufficient to fall within 
the definition of legal pneumoconiosis at 20 C.F.R. §718.201.

   Dr. Fino's opinion that claimant's pulmonary impairment was obstructive,
and thus not clinical pneumoconiosis, did not render his opinion hostile to
the Act.   Legal pneumoconiosis is a finding of fact to be made by the
administrative law judge, while clinical pneumoconiosis, which Dr. Fino
found to be precluded in this case, is a medical determination to be made
by the physician. Nance v. Benefits Review Board, 861 F.2d 68, 12 BLR
2-31 (4th Cir. 1988).  Thus, since Dr. Fino's premise that claimant
demonstrated an obstructive impairment based upon his performance on
pulmonary function studies after a bronchodilator is administered is not at
odds with the statutory and regulatory scheme, and since the physician did
not opine that simple pneumoconiosis is never disabling or otherwise rely
on medical assumptions which are contrary to the Act, we hold that the
administrative law judge's finding is not in accord with law, and thus it
is vacated[3] . See Searls v. Southern
Ohio Coal Co., 11 BLR 1-161 (1988).  On remand, the administrative law judge
should reconsider Dr. Fino's opinion along with the other medical opinions of
record in reaching his determination as to whether claimant has established that
his pneumoconiosis was a substantial contributing cause of his total disability
pursuant to Bonessa. 

   Accordingly, the administrative law judge's Decision and Order is affirmed in
part, vacated in part, and this case is remanded for further consideration
consistent with this opinion.

   SO ORDERED.

                                                                   
                       ROY P. SMITH
                       Administrative Appeals Judge



                                                                   
                       JAMES F. BROWN
                       Administrative Appeals Judge



                                                                   
                       MALCOLM D. NELSON, Acting
                       Administrative Appeals Judge






















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Footnotes.
 1)We affirm the administrative law judge's findings that
claimant has established the existence of pneumoconiosis arising from coal
mine employment pursuant to Sections 718.202 and 718.203, and total
disability pursuant to Section 718.204(c) as unchallenged in this appeal.
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983). 
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 2)Dr. Fino, in a medical opinion authored on November 12,
1996, based on his examination of claimant on October 17, 1996, found that
claimant suffers with severe bullous emphysema due to smoking, and 
reversible airways disease due to smoking.  He based this opinion on
claimant's occupational history, symptoms, past medical history, physical
examination, chest x-ray, spirometry, blood gas studies and
electrocardiogram.  The physician opined that claimant's x-ray demonstrated
significant bullous emphysema but not pneumoconiosis, and that the
spirometric evaluation showed an obstructive ventilatory abnormality based
upon the reduction in the FEV1/FVC ratio, that the obstruction showed
involvement in the small airways, and that the small airway flow is more
reduced than the large airway flow.  Dr. Fino stated that this type of
finding on spirometry is indicative of smoking induced emphysema rather than
a coal dust related condition. He also concluded that, on blood gas studies,
the TLC was not reduced, thus ruling out the presence of restrictive lung
disease and significant pulmonary fibrosis.  Director's Exhibit 33. 
Dr. Fino reiterated his findings and explanations therefor on deposition
taken June 2, 1997, also noting at that time that simple pneumoconiosis can
be totally disabling.  Employer's Exhibit 1 at 11, 20. 
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 3)Furthermore, we note that the administrative law judge 
found that Dr. Fino's opinion was entitled to little weight because his
underlying premise that claimant did not have pneumoconiosis was contrary
to the fact finder's determination at Section 718.202.   In so finding, the
administrative law judge chose to apply the holdings of the United States
Court of Appeals for the Fourth Circuit in Toler v. Eastern Associated
Coal Corp., 43  F.3d 109, 19 BLR 2-70 (4th Cir. 1995), in this case
arising within the appellate jurisdiction of the United States Court of
Appeals for the Third Circuit.   We note that, to date, the Third Circuit
has not commented upon the holdings of the Fourth Circuit in Toler,
but the Fourth Circuit has further commented upon its holding in
Toler in its recent decisions in Dehue Coal Co. v Ballard, 65
F.3d 1189, 19 BLR 2-304 (4th Cir. 1995) and Hobbs v. Clinchfield Coal
Co., 45 F.3d 819, 19 BLR 2-86 (4th Cir. 1995).  The
administrative law judge should consider the entire body of precedent in the
Fourth Circuit if he chooses on remand to apply Fourth Circuit case law to
this case arising within the appellate jurisdiction of the Third Circuit
court. 
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