BRB No. 00-1155 BLA

MADELINE RATLIFF                   )
(Widow of SILAS RATLIFF)           )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
JOHNSON BROTHERS COAL COMPANY,     )    DATE ISSUED:08/30/2001            
                                           
INCORPORATED                       )
                         )
     and                           )
                         )
KENTUCKY COAL PRODUCERS SELF       )
INSURANCE FUND                )
                         )
          Primary Employer/Carrier-          )
          Respondent                    )
                         )
CHAPPERAL COAL CORPORATION         )
                         )
     and                           )
                         )
OLD REPUBLIC INSURANCE COMPANY     )
                         )
          Secondary Employer/Carrier    )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order - Dismissing Chapperal Coal Corporation
     and Its Carrier Old Republic Insurance Company and Denying Benefits of
     Joseph E. Kane, United States Department of Labor.

     Billy J. Moseley (Webster Law Offices), Pikeville, Kentucky, for
     claimant.

     David H. Neeley (Neeley & Reynolds, P.S.C.), Prestonsburg, Kentucky, for
     primary employer.
          
     Before:  SMITH and DOLDER, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant, without the assistance of counsel, appeals the Decision and Order -
Dismissing Chapperal Coal Corporation and its Carrier Old Republic Insurance
Company and Denying Benefits (00-BLA-0314) of Administrative Law Judge Joseph E.
Kane on a survivor's claim filed pursuant to the provisions of Title IV of the
Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901
et seq. (the Act).[1]   The administrative
law judge found that the evidence of record supported a finding of eighteen years
of coal mine employment.  Decision and Order at 3-4.  The administrative law judge
further found that claimant failed to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a)(1)-(4)(2000).  Decision and Order at 5-16. 
Accordingly, the administrative law judge denied survivor's benefits.

     On appeal, claimant contends that the administrative law judge erred in
failing to find the existence of pneumoconiosis established pursuant to Section
718.202(a)(1), (4)(2000).[2]   Claimant further
asserts that the evidence of record establishes that pneumoconiosis was a
substantial, contributing cause of the miner's death.  Employer responds and urges
affirmance of the administrative law judge's denial of benefits.  The Director,
Office of Workers' Compensation Programs (the Director), has declined to
participate in this appeal.

     The Board's scope of review is defined by statute.  If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon this Board and may not be disturbed.  33 U.S.C. §921(b)(3), as
incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).

     To establish entitlement to survivor's benefits, claimant must demonstrate by
a preponderance of the evidence that the miner has pneumoconiosis arising out of
coal mine employment and that his death was due to pneumoconiosis. See 20
C.F.R. §§718.3, 718.202, 718.203, 718.205(a); Trumbo v. Reading
Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39 (1988).  For survivor's
claims filed on or after January 1, 1982, death will be considered due to
pneumoconiosis if pneumoconiosis was the cause of the miner's death, pneumoconiosis
was substantially contributing cause or factor leading to the miner's death, death
was caused by complications of pneumoconiosis, or the presumption, relating to
complicated pneumoconiosis, set forth at Section 718.304, is applicable.  20 C.F.R
§718.205(c)(1)-(3).  Pneumoconiosis is a substantially contributing cause of
death if it hasten's the miner's death.  20 C.F.R. §718.205(c)(5); see
Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 17 BLR 2-135 (6th Cir.
1993).

     On appeal, claimant contends that the positive x-ray interpretations of Drs.
Penman and Anderson, Director's Exhibit 47, support a finding of the existence of
pneumoconiosis.  In finding that claimant failed to establish the existence of
pneumoconiosis based on the x-ray evidence, the administrative law judge considered
the entirety of x-ray evidence of record and found that, while the readings of both
Drs. Penman and Anderson were positive for the existence of the disease, the weight
of the x-ray evidence as a whole failed to support a finding of the existence of
pneumoconiosis.  Decision and Order at 14-15.  In reaching this determination, the
administrative law judge specifically concluded that the weight of the readings by
the physicians with the superior qualifications of B-reader and/or board-certified
radiologist,[3]  were negative for the existence
of pneumoconiosis.  Accordingly, inasmuch as the administrative law judge has
considered the entirety of the relevant x-ray evidence of record and has relied on
a qualitative rather than quantitative analysis of such evidence, we affirm his
determination that claimant has failed to establish that the existence of
pneumoconiosis by x-ray evidence.  20 C.F.R. §718.202(a)(1); see
Director, OWCP v. Greenwich Collieries [Ondecko], 512 U.S. 267, 18
BLR 2A-1 (1994), aff'g sub nom. Greenwich Collieries v.  Director,
OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993); Staton v. Norfolk & Western
Ry. Co., 65 F.3d 55, 19 BLR 2-271 (6th Cir. 1995); Woodward v. Director,
OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir.  1993); Tussey v. Island Creek
Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993).

     Claimant further contends that the medical opinions of Dr. Younes, who
concluded that the miner suffered from COPD attributable, in part, to coal dust
exposure, Director's Exhibit 46, and Dr. Mettu, who concluded that the miner
suffered from pneumoconiosis, Director's Exhibits 7, 23, 25, 30, support a finding
of the existence of pneumoconiosis.  The administrative law judge considered the
reports and permissibly accorded little weight to Dr. Younes' opinion as the
physician failed to provide any support for his conclusions. See Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Oggero v.
Director, OWCP, 7 BLR 1-860 (1985); York v. Jewell Ridge Coal Corp., 7
BLR 1-766 (1985); Cooper v. United States Steel Corp., 7 BLR 1-842 (1985). 
In addition, the administrative law judge permissibly accorded little weight to Dr.
Mettu's conclusions inasmuch as the physician failed to provide any support for his
conclusions, see Clark, supra; York, supra;
Oggero, supra; Cooper, supra, and failed to take into
account claimant's lengthy smoking history, see generally Bobick v.
Saginaw Mining Co., 13 BLR 1-52 (1988); Maypray v. Island Creek Coal
Co., 7 BLR 1-683 (1985); Rickey v. Director, OWCP, 7 BLR 1-106 (1984). 
The administrative law judge thus permissibly found that claimant failed to
establish the existence of pneumoconiosis by medical opinion evidence. See
Clark, supra; Peskie v. United States Steel Corp., 8 BLR 1-126
(1985); Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985). 
Accordingly, the administrative law judge has provided valid bases for the weight
accorded the medical opinion evidence, see Clark, supra;
Peskie, supra; Lucostic, supra and substantial evidence
supports his determination that it fails to establish the existence of
pneumoconiosis.

     Because claimant has failed to establish the existence of pneumoconiosis, a
necessary element of entitlement in a survivor's claim, we must affirm the denial
of benefits, and need not consider claimant's contention that death due to
pneumoconiosis has been established. Brown, supra; Trumbo,
supra.

     Accordingly, the administrative law judge's Decision and Order - Dismissing
Chapperal Coal Corporation and its Carrier Old Republic Insurance Company and
Denying Benefits is affirmed.

     SO ORDERED.





                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1) The Department of Labor has amended the regulations implementing the Federal Coal Mine
Health and Safety Act of 1969, as amended.  These regulations became effective on January 19, 2001, and are found at 65
Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts 718, 722, 725, and 726).  All citations to the regulations,
unless otherwise noted, refer to the amended regulations.

      Pursuant to a lawsuit challenging revisions to 47 of the regulations implementing the Act, the United States District
Court for the District of Columbia granted limited injunctive relief for the duration of the lawsuit, and stayed, inter
alia, all claims pending on appeal before the Board under the Act, except for those in which the Board, after briefing
by the parties to the claim, determined that the regulations at issue in the lawsuit would not affect the outcome of the case.
National Mining Ass'n v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order granting preliminary injunction). 
On August 9, 2001, the District Court issued its decision upholding the validity of the challenged regulations and dissolving
the February 9, 2001 order granting the preliminary injunction. National Mining Ass'n v. Chao, Civ. No. 00-3086
(D.D.C. Aug. 9, 2001).  As a result of the court's decision, we will not address any briefs submitted to the Board by the
parties on this issue.
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 2) We affirm, as unchallenged on appeal, the administrative law judge's length of coal mine
employment determination as well as the determination that the existence of pneumoconiosis was not established pursuant
to Section 718.202(a)(2), (3)(2000). See 20 C.F.R. §718.202(a)(2), (3); Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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 3) A "B-reader" is a physician who has demonstrated proficiency in classifying x-rays
according to the ILO-U/C standards by successful completion of an examination established by the National Institute
for Occupational Safety and Health. See 20 C.F.R. §718.202(a)(1)(ii)(E); 42 C.F.R. §37.51;
Mullins Coal Company, Inc. of Virginia v.  Director, OWCP, 484 U.S. 135, 145 n.16, 11 BLR 2-1, 2-6
n.16 (1987), reh'g denied, 484 U.S. 1047 (1988); Roberts v.  Bethlehem Mines
Corp., 8 BLR 1-211 (1985).  A "board-certified radiologist" is a physician who is certified in radiology or
diagnostic roentgenology by the American Board of Radiology.
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