843 F.2d 1390
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Oliver DAUGHERTY, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAM, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
No. 87-3783.
United States Court of Appeals, Sixth Circuit.
April 4, 1988.
Before LIVELY, Chief Judge, RALPH B. GUY, Jr., Circuit Judge, and AVERN COHN, District Judge.*
PER CURIAM.
Oliver Daugherty petitions for review of a decision of the Benefits Review Board adopting the decision of an administrative law judge (ALJ) denying petitioner's application for black lung benefits. The parties waived oral argument, and the case was submitted for decision on the administrative record and briefs.
The ALJ found that Daugherty has pneumoconiosis and that the pneumoconiosis arose out of Daugherty's work as a coal loader between 1948 and 1953. However, the ALJ found that Daugherty had failed to demonstrate that he was totally disabled by reason of pneumoconiosis within the meaning of the Act.
After leaving the mines in 1953, Daugherty worked for approximately twenty-one years in construction and claimed that near the end of his working days he was given lighter work because of breathing problems. One of Daugherty's treating physicians found that he had smoked two packs of cigarettes per day for approximately twenty years prior to 1975.
No examining or treating physician gave a medical opinion with respect to disability. Daugherty did not qualify for a presumption of disability under the Black Lung Act. Pulmonary function studies and a blood gas study were performed, but neither indicated disability. Likewise, Daugherty did not have the requisite cardiac condition for a finding of disability under 20 C.F.R. Sec. 718.204(c). Daugherty contends that he established total disability by lay testimony, his own and that of his wife and daughter. Relying on this testimony and other non-medical evidence, Daugherty asserts that the decision of the Benefits Review Board is not supported by substantial evidence.
Upon consideration of the entire record and the briefs of the parties, this court concludes that the decision under review is supported by substantial evidence. The ALJ resolved conflicts in the evidence in Daugherty's favor with respect to the existence of pneumoconiosis and its relationship to his coal mine work many years prior to the hearing. However, there was no medical evidence in support of a claim of total disability and the ALJ and Benefits Review Board did not violate the substantial evidence rule by failing to find disability on the basis of lay testimony and other non-medical evidence. Daugherty did not carry his burden of proof.
The petition for review is denied, and the decision of the Benefits Review Board is affirmed.
The Honorable Avern Cohn, Judge, United States District Court for the Eastern District of Michigan, sitting by designation