BRB No. 98-1331 BLA


CHARLES K. ROBISON

               Claimant-Petitioner

          v.

PEABODY COAL COMPANY

          and

OLD REPUBLIC INSURANCE COMPANY

               Employer/Carrier-
               Respondents

DIRECTOR, OFFICE OF WORKERS' 
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

               Party-in-Interest)
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ISSUED:08/31/1999         
        
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)    DECISION AND ORDER
     Appeal of the Decision and Order - Denying Benefits of J. Michael
     O'Neill, Administrative Law Judge, United States Department of Labor.

     Brent Yonts, Greenville, Kentucky, for claimant.

     Gregory S. Feder (Arter & Hadden, LLP), Washington, D.C., for
     employer/carrier.

     Before:  HALL, Chief Administrative Appeals Judge, SMITH and
     McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order - Denying Benefits (98-BLA-0080) of
Administrative Law Judge J. Michael O'Neill on a 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).  The administrative
law judge credited claimant with at least sixteen years of coal mine employment,
based on a stipulation of the parties, and adjudicated the claim pursuant to 20
C.F.R. Part 718, in light of claimant's July 1996 filing date.  Addressing the
merits of entitlement, the administrative law judge found the medical evidence
of record sufficient to establish the existence of pneumoconiosis arising out of
coal mine employment pursuant to 20 C.F.R. §§718.202(a)(1), (a)(4),
and 718.203(b).  However, the administrative law judge further found that the
medical evidence was insufficient to establish total respiratory disability
pursuant to 20 C.F.R. §718.204(c)(1)-(c)(4).  Accordingly, the
administrative law judge denied benefits.

     In challenging the administrative law judge's denial of benefits, claimant
contends that the administrative law judge erred in finding the medical evidence
insufficient to establish total respiratory disability.  In particular, claimant
argues that the opinion of Dr. Baker is sufficient to establish entitlement to
benefits.  Claimant further argues that his lay testimony also establishes that
he is totally disabled.  In response, employer urges affirmance of the
administrative law judge's denial of benefits.  Additionally, employer argues
that the administrative law judge erred in finding that the medical evidence was
sufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a).  The Director, Office of Workers' Compensation Programs, has filed a
letter stating that he will not file a response brief in this appeal.[1] 

     The Board's scope of review is defined by statute.  The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable law.  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).

     After consideration of the administrative law judge's Decision and Order,
the issues raised on appeal and the relevant evidence of record, we conclude
that substantial evidence supports the administrative law judge's finding that
the medical evidence was insufficient to establish a totally disabling
respiratory or pulmonary impairment pursuant to Section 718.204(c).  In finding
that the medical opinion evidence was insufficient to establish a totally
disabling respiratory or pulmonary impairment, the administrative law judge
found that the physical limitations set forth in the opinions of Drs. Baker and
Houser, in comparison with the physical requirements of claimant's usual coal
mine employment,[2]  do not support a finding of
total respiratory disability.  Decision and Order at 20; Director's Exhibits 25,
27; Employer's Exhibits 2, 5.  The administrative law judge further found that
this determination was supported by the opinions of Drs. Gallo and Selby, who
opined that claimant was not totally disabled, as well as the objective evidence
of record.  Decision and Order at 20; Director's Exhibit 25; Employer's Exhibits
4, 10.

     Contrary to claimant's contention, the administrative law judge reasonably
exercised his discretion in finding that the opinion of Dr. Baker,[3]  when compared with the physical requirements
of claimant's usual coal mine employment, was insufficient to establish a
totally disabling respiratory or pulmonary impairment.  Decision and Order at 3,
20; Director's Exhibits 5, 26; Employer's Exhibit 5; Hearing Transcript at 11-13, 24-27; Mazgaj v. Valley Camp Coal Co., 9 BLR 1-201 (1986); Budash
v. Bethlehem Mines Corp., 9 BLR 1-48 (1986)(en banc), aff'd, 9
BLR 1-104 (1986)(en banc); see also Wright v. Director,
OWCP, 8 BLR 1-245 (1985).  Moreover, the additional recommendation in Dr.
Baker's 1997 report and deposition testimony, that claimant should have no
further exposure to coal dust or rock dust, is not sufficient to establish that
claimant is totally disabled. Zimmerman v. Director, OWCP, 871 F.2d 564,
12 BLR 2-254 (6th Cir. 1989); Neace v. Director, OWCP, 867 F.2d 264, 12
BLR 2-160 (6th Cir. 1989), reh'g denied 877 F.2d 495, 12 BLR 2-303 (6th
Cir.); Taylor v. Evans and Gambrel Co., Inc., 12 BLR 1-83 (1988). 
Inasmuch as claimant does not otherwise challenge the administrative law judge's
weighing of the medical opinion evidence pursuant to Section 718.204(c)(4), we
affirm his finding that the evidence is insufficient to establish a totally
disabling respiratory or pulmonary impairment pursuant to Section 718.204(c)(4). 
Decision and Order at 20; see Skrack v. Island Creek Coal Co., 6
BLR 1-710 (1983); see also Cox v. Benefits Review Board, 791 F.2d
445, 9 BLR 2-46 (6th Cir. 1986); Fish v. Director, OWCP, 6 BLR 1-107
(1983).

     Lastly, claimant's argument that his lay testimony established that he is
totally disabled is without merit.  In a living miner's claim adjudicated
pursuant to Part 718, lay testimony alone is not sufficient to establish total
disability.  Rather, it must be supported by a "quantum of medical evidence." 
20 C.F.R. §718.204(d)(2); Trent v. Director, OWCP, 11 BLR 1-26
(1987); Matteo v. Director, OWCP, 8 BLR 1-200 (1985).  

     Since claimant has failed to establish a totally disabling respiratory or
pulmonary impairment, a necessary element of entitlement under Part 718, an
award of benefits is precluded.[4]   Trent,
supra; Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
     Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is affirmed. 

     SO ORDERED.
     





                                 
                        
BETTY JEAN HALL, Chief
Administrative Appeals Judge




                                 
                        
ROY P. SMITH
Administrative Appeals Judge




                                 
                        
REGINA C. McGRANERY
Administrative Appeals Judge


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Footnotes.
 1) The parties do not challenge the administrative law judge's
decision to credit claimant with sixteen years of coal mine employment or his
findings pursuant to 20 C.F.R. §§718.203(b) and 718.204(c)(1)-(3). 
We, therefore, affirm these findings. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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 2) The administrative law judge found that claimant's usual
coal mine employment was as a welder, which required claimant to repair the mine
equipment.  Decision and Order at 3; Director's Exhibit 5; Hearing Transcript at
11-13, 20, 24-27.  In the regular course of his job, claimant testified that he
carried his tools, weighing from fifteen (15) to twenty (20) pounds, and also
lifted and carried other machine parts or materials, when necessary, weighing up
to one hundred (100) pounds.  Id.  Claimant was also required to push and
pull items and was constantly on his feet. Id.
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 3) In his medical report dated May 8, 1997, Dr. Baker opined
that claimant was able to do his usual coal mine employment, stating that
claimant has a non-disabling degree of respiratory insufficiency with mild
obstructive airway disease, chronic bronchitis, and an advanced pneumoconiosis. 
Therefore, Dr. Baker stated that while claimant would be physiologically able to
do his usual coal mine employment, the advanced degree of pneumoconiosis would
preclude him from further dust exposure.  Thus, Dr. Baker stated that claimant
could do some type of occupation with a mild degree of exertion in a non-dusty
environment.  Director's Exhibit 26.  Dr. Baker reiterated this opinion in his
November 1997 deposition.  Employer's Exhibit 5.  In addition, Dr. Baker stated
that non-disabling meant that there were some things that claimant could do, but
that he can't do everything.  However, the physician further opined that
claimant was not totally disabled.  Dr. Baker summarized his opinion by stating
that claimant could do a sedentary occupation in a non-dusty environment without
other environmental irritants or he could do something of a non-repetitive
nature that required a mild degree of exertion if he was in a non-dusty
environment.  Employer's Exhibit 5 at 11, 12, 19.
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 4) In light of our affirmance of the administrative law
judge's finding that the medical evidence was insufficient to establish a
totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R.
§718.204(c), a necessary element of entitlement, see discussion,
supra, error, if any, in the administrative law judge's findings pursuant
to 20 C.F.R. §718.202(a) is harmless. See Larioni v. Director,
OWCP, 6 BLR 1-1276 (1984); see also Perry v. Director, OWCP, 9
BLR 1-1 (1986)(en banc).
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