bartee-allen-v-benefits-review-board-director-office-of-workers , 815 F.2d 75 ( 1987 )

815 F.2d 75

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Bartee ALLEN, Petitioner,
v.
BENEFITS REVIEW BOARD, Director, Office of Workers'
Compensation Programs, United States Department of
Labor, National Mines Corporation and
Old Republic Companies, Respondents.

No. 86-3029.

United States Court of Appeals, Sixth Circuit.

Feb. 20, 1987.

Before LIVELY, Chief Judge; RYAN, Circuit Judge; and PORTER, District Judge.*

PER CURIAM.

1

A former coal miner seeks review of the decision of the Benefits Review Board denying his application for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901, et seq. Following initial denial of his claim, Mr. Allen had a hearing before an administrative law judge who found that his 12 years of coal mine work together with other evidence created a presumption of disability due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a)(4). However, the ALJ found that the rebuttal evidence offered on behalf of the responsible former employer demonstrated that Mr. Allen's disabilty was caused by cardiovascular disease rather than black lung disease and that the weight of the evidence indicated that he did not have pneumoconiosis. The Benefits Review Board affirmed the decision of the ALJ.

2

This case is before the court on the briefs and administrative record, the parties having waived oral argument. On appeal the petitioner contends that he was entitled to a presumption of disability on the basis of X-ray evidence as well as the "other evidence" consisting of his treating physician's opinion. The respondent argues that since the ALJ invoked the presumption required for a prima facie case under one subsection of the regulations, it is immaterial that he did not also find a presumption under a second subsection. The important point, according to the respondent, is that the ALJ found that any presumption of disability due to coal worker's pneumoconiosis was rebutted by evidence that the total disability of the petitioner did not arise in whole or in part out of coal mine employment.

3

This case is governed by regulations found at 20 C.F.R. Sec. 727.203(a) and (b). It is not governed by the regulations at 20 C.F.R. Sec. 410.490 or the statutory presumption contained in 30 U.S.C. Sec. 921(c)(4). Considering the entire record in light of Sec. 727.203(b)(3) and (4) this court concludes that there is substantial evidence to support the finding of the ALJ, adopted by the Benefits Review Board, that the presumption of disability due to pneumoconiosis was successfully rebutted. Accordingly, the petition for review is denied and the decision of the Benefits Review Board is affirmed.

*

The Honorable David Porter, Senior Judge, United States District Court for the Southern District of Ohio, sitting by designation