Dorothy Tyree (Widow of Local Tyree) v. Director, Office of Workers' Compensation Programs, United States Department of Labor , 863 F.2d 884 ( 1988 )

863 F.2d 884

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Dorothy TYREE (Widow of Local Tyree), Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.

No. 88-3513.

United States Court of Appeals, Sixth Circuit.

Dec. 2, 1988.

Before KENNEDY, RALPH B. GUY, Jr. and RYAN, Circuit Judges.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Dorothy Tyree, a coal miner's widow, appeals pro se the decision of the Benefits Review Board affirming an Administrative Law Judge's denial of her claim for benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901, et seq. The Administrative Law Judge determined that the deceased miner had at least ten years of coal mine employment. However, the medical evidence was insufficient to invoke the presumption of total disability or death due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a)(1)-(4). The use of lay evidence to invoke the presumption under Sec. 727.203(a)(5) was precluded due to the existence of some medical evidence. Coleman v. Director, OWCP, 829 F.2d 3, 5 (6th Cir.1987) (per curiam). The claim was also examined under Part 410 of the regulations; evidence establishing the existence of pneumoconiosis under Sec. 410.414 was lacking. The claim was therefore denied.

3

Upon consideration, we conclude that the decision to deny benefits was in accordance with applicable law and supported by substantial evidence. See Welch v. Benefits Review Board, 808 F.2d 443, 445 (6th Cir.1986). Accordingly, the decision of the Benefits Review Board is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.