Maynor v. Itmann Coal Company

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILBERT MAYNOR,
Petitioner,

v.

ITMANN COAL COMPANY; DIRECTOR,
No. 95-3084
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-2356-BLA)

Submitted: October 29, 1996

Decided: January 29, 1997

Before WIDENER, HALL, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. Douglas A. Smoot, JACKSON & KELLY,
Charleston, West Virginia; J. Davitt McAteer, Acting Solicitor of
Labor, Douglas S. Shire, Associate Solicitor, Christian P. Barber,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Wilbert Maynor, a former coal miner, appeals the decision of the
Benefits Review Board ("Board") affirming the administrative law
judge's ("ALJ") Decision and Order on Remand denying black lung
benefits. Maynor filed his claim for black lung benefits in 1980. An
ALJ initially awarded benefits, determining that Maynor established
invocation of the interim presumption of entitlement and that rebuttal
was not established. On appeal, the Board remanded the claim to the
ALJ to reconsider invocation and rebuttal evidence. On remand, the
ALJ found that invocation was not established under 20 C.F.R.
§§ 727.203(a)(1), (a)(3), or (a)(4) (1994), but that Maynor established
invocation under § 727.203(a)(2). The ALJ further found that the
Employer established rebuttal under §§ 727.203(b)(3) and (b)(4) by
demonstrating that the claimant's impairment did not arise in whole
or in part out of his coal mine employment, and that he does not have
pneumoconiosis as defined by § 727.202. Accordingly, benefits were
denied.

Maynor appealed and the Board upheld the ALJ's decision. The
Board held that the ALJ's findings of fact and law were supported by
substantial evidence, rational, and consistent with applicable law. The
Board specifically found that the ALJ properly credited the Employ-
er's physicians' opinions because they were based upon x-ray evi-
dence as well as other medical data and that one of the doctor's
opinions was not contrary to the spirit of the Act because he did not
rule out that pneumoconiosis can be totally disabling. The Board also
held that it was not error for the ALJ to rely upon doctors' opinions
which were based upon the assumption that the claimant had no pul-
monary impairment even though the ALJ also found that the pulmo-
nary function studies on record were sufficient to establish invocation
of the interim presumption. Finally, the Board declined to address
whether rebuttal was established under § 727.203(b)(3) because a

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finding of rebuttal under (b)(4) precludes an award of benefits under
§ 727.

Maynor appeals the ALJ's decision to deny benefits, claiming that
it was error for the ALJ to determine that the Employer rebutted the
presumption under § 727.203(b)(4) by basing the conclusion that he
did not have pneumoconiosis primarily on negative x-rays. Maynor
also alleges that it was error to find that the Employer established
rebuttal under § 727.203(b)(3). Finally, Maynor alleges that it was
error to find the Employer's physicians' opinions well reasoned
because the opinion of one of the doctors is contrary to the Act and
regulations. We affirm the Board's decision to deny black lung bene-
fits.

This court reviews the ALJ's application of the law de novo and
must affirm the factual findings of the Board unless they are not sup-
ported by substantial evidence or are contrary to law. Thorn v. Itmann
Coal Co., 3 F.3d 713, 718 (4th Cir. 1993) (citing Wilson v. Benefits
Review Bd., 748 F.2d 198, 199 (4th Cir. 1984)). Substantial evidence
is that which a "`reasonable mind might accept as adequate to support
a conclusion.'" Cox v. Shannon-Pocahontas Mining Co., 6 F.3d 190,
192 (4th Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)).

The only issue in this appeal is whether substantial evidence sup-
ports the ALJ's finding of rebuttal pursuant to§ 727.203(b)(4). To
establish rebuttal under subsection (b)(4), the Employer had to prove
that the miner did not have pneumoconiosis, in either the clinical or
legal sense. See 20 C.F.R. § 727.202 (1994); Barber v. Director,
Office of Workers' Compensation Programs, 43 F.3d 899, 900 (4th
Cir. 1995); Chastain v. Freeman United Coal Mining Co., 919 F.2d
485, 488 (7th Cir. 1990).

In this case, the medical evidence relevant to the history of pneu-
moconiosis consisted of multiple x-ray readings, pulmonary function
and blood gas studies, and opinions provided by examining and
reviewing physicians. The ALJ made a thorough evaluation of the
evidence, and we conclude that the Board's decision is supported by
substantial evidence and is in accordance with the law.

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Accordingly, we affirm the Board's decision denying benefits. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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