Ewing v. DOWCP

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DONALD EWING,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
No. 95-2154
STATES DEPARTMENT OF LABOR;
ROYAL COAL COMPANY; WEST
VIRGINIA COAL WORKERS'
PNEUMOCONIOSIS FUND,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(94-3928-BLA)
Submitted: February 20, 1996
Decided: March 25, 1996
Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. Konstantine K. Weld, Assistant Attorney
General, Charleston, West Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Donald Ewing seeks review of a decision of the Benefits Review
Board (Board) affirming the administrative law judge's (ALJ) deci-
sion to deny his application for black lung benefits pursuant to 30
U.S.C.A. §§ 901-45 (West 1986 & Supp. 1995). Benefits were denied
in this case based on the ALJ's determination, affirmed by the Board,
that Ewing failed to establish that he contracted pneumoconiosis. On
appeal, Ewing contends that this determination was impermissibly
made on the basis of negative X-ray evidence, in violation of 20
C.F.R. § 718.202(b)(1995).
It is undisputed that Ewing's evidence was insufficient to establish
pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(1)-(3) (1995).
Thus, Ewing could only establish pneumoconiosis in this case by
means of medical reports under section 718.202(a)(4). Ewing submit-
ted reports from Drs. Twaklna and Rasmussen which, if credited,
could have established pneumoconiosis. He also submitted evidence
of a state workers' compensation award for a partial impairment due
to pneumoconiosis.
The ALJ, however, provided proper reasons for rejecting all of this
evidence, and Ewing on appeal does not challenge any of the reasons
provided by the ALJ. Rather, he relies solely on§ 718.202(a), and on
his contentions that the ALJ should have found fault with the reports
which found no pneumoconiosis. It is clear, however, from the record
that the ALJ considered all relevant evidence in reaching his finding
of no pneumoconiosis, and not only the X-ray evidence. The same is
true of the physician's reports upon which the ALJ relied. While
Ewing implies in his brief that those reports were biased, we note that
they were not presumptively biased, see Cochran v. Consolidation
Coal Co., 16 BLR 1-101 (1992) (citing Richardson v. Perales, 402
U.S. 389 (1971)), and that Ewing's claims are unsubstantiated. More-
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over, determinations regarding the credibility of the evidence lie
solely within the province of the ALJ. See Grizzle v. Pickands Mather
& Co., 994 F.2d 1093, 1096 (4th Cir. 1993).
Accordingly, because Ewing identifies no reversible error commit-
ted by the Board or the ALJ in finding no pneumoconiosis, and
because his failure to establish this critical element precludes his enti-
tlement to benefits, see Robinson v. Pickands Mather & Co., 914 F.2d
35, 36 (4th Cir. 1990), we affirm the decision of the Board. We grant
the Appellee's motion to file a supplemental appendix and 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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