BRB No. 98-1462 BLA


EARL E. ASHER

               Claimant-Petitioner

          v.

SANDY FORK MINING COMPANY,
INCORPORATED

          and

TRAVELERS INSURANCE COMPANY

               Employer/Carrier-
               Respondents

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

               Party-in-Interest)
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ISSUED:08/11/1999         
   
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)    DECISION AND ORDER
     Appeal of the Decision and Order on Modification - Denial of Benefits
     of Robert L. Hillyard, Administrative Law Judge, United States
     Department of Labor.

     Edmond Collett, Hyden, Kentucky, for claimant.

     Tommie L. Weatherly (Weatherly Law Offices), London, Kentucky, for
     employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order on Modification - Denial of
Benefits (98-BLA-0033) of Administrative Law Judge Robert L. Hillyard with
respect to 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 relevant procedural history of this case is as follows: 
Claimant filed an application for benefits on March 13, 1992.  Director's
Exhibit 23.  In a letter dated August 19, 1992, the district director denied
benefits on the ground that claimant failed to establish any of the elements of
entitlement. Id..  Claimant filed a second claim for benefits on April
29, 1994.  Director's Exhibit 1.  In a Decision and Order issued on February 6,
1996, Administrative Law Judge Thomas M. Burke determined that the newly
submitted evidence did not support a finding of pneumoconiosis pursuant to 20
C.F.R. §718.202(a)(1)-(4) or total disability due to pneumoconiosis
pursuant to 20 C.F.R. §718.204(b) and (c).  Judge Burke denied benefits,
therefore, on the ground that claimant did not establish a material change in
conditions under 20 C.F.R. §725.309.  Director's Exhibit 31.  The Board
affirmed the denial of benefits in a Decision and Order dated January 23, 1997.
Asher v. Sandy Fork Mining Co., BRB No. 96-0753 BLA (Jan. 23,
1997)(unpub.); Director's Exhibit 42.

     Claimant filed a timely request for modification on May 20, 1997. 
Director's Exhibit 43; see 20 C.F.R. §725.310(a).  Following the
district director's issuance of a Proposed Decision and Order Denying Request
for Modification, the case was transferred to the Office of Administrative Law
Judges for a hearing at claimant's request.  Administrative Law Judge Robert L.
Hillyard (the administrative law judge) issued an Order to Show Cause why a
hearing was necessary.  Counsel for claimant and for employer responded, in
writing, that they waived their right to a hearing.  Counsel for the Director,
Office of Workers' Compensation Programs (the Director), informed the
administrative law judge that he would not be attending any hearing held with
respect to the present claim.

     In his Decision and Order, the administrative law judge determined that
inasmuch as the newly submitted evidence, if fully credited, was sufficient to
establish that claimant has pneumoconiosis and is totally disabled by it,
claimant had demonstrated a change in conditions pursuant to Section 725.310. 
The administrative law judge further found, however, that the evidence of record
as a whole did not demonstrate the existence of pneumoconiosis under Section
718.202(a)(1)-(4) or that claimant is totally disabled due to pneumoconiosis
pursuant to Section 718.204(b) and (c)(1)-(4).  Accordingly, benefits were
denied.  Claimant argues on appeal that the administrative law judge did not
properly weigh the evidence of record under Sections 718.202(a)(1), (a)(4), and
718.204(b) and (c)(4).  Employer has responded and urges affirmance of the
denial of benefits.  The Director has not filed a 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).

     In order to establish entitlement to benefits under 20 C.F.R. Part 718,
claimant must prove that he suffers from pneumoconiosis, that the pneumoconiosis
arose out of coal mine employment, and that the pneumoconiosis is totally
disabling.  20 C.F.R. §§718.3, 718.202, 718.203, 718.204.  Failure to
establish any one of these elements precludes entitlement. See Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Gee v. W.G. Moore & Sons, 9 BLR
1-4 (1986)(en banc); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).

     With respect to the administrative law judge's consideration of the x-ray
evidence under Section 718.202(a)(1), claimant asserts that the administrative
law judge placed an inappropriate degree of reliance upon the respective
qualifications of the x-ray readers and upon the numerical superiority of the
negative x-ray interpretations.  Claimant also maintains, without further
elaboration, that the administrative law judge "may have selectively analyzed
the x-ray evidence."  Claimant's Brief at 5.  These contentions are without
merit.  In resolving the conflict in the x-ray evidence of record, the
administrative law judge acted within his discretion in according greatest weight to the
interpretations submitted by physicians who are both Board-certified radiologists and B readers.  Decision and Order
at 15-16.  The administrative law judge also rationally determined that inasmuch as the preponderance of these
readings is negative for pneumoconiosis, the existence of the disease was not established under Section
718.202(a)(1).  Id.; see Director, OWCP v. Greenwich Collieries [Ondecko], 114 S.Ct.
2251, 18 BLR 2A-1 (1994); Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993); Dixon v. North Camp Coal Co., 8 BLR 1-344 (1985).

     Concerning Section 718.202(a)(4), claimant argues that the administrative
law judge erred in discrediting the opinions in which Drs. Baker and Wright
diagnosed pneumoconiosis.  We reject claimant's contention.  The administrative
law judge permissibly determined that Dr. Baker's and Dr. Wright's diagnoses of
coal workers' pneumoconiosis were based solely upon their respective positive x-ray readings, inasmuch as each physicians' reference to coal workers'
pneumoconiosis was accompanied by the ILO classification of the x-ray taken in
conjunction with the physicians' examination of claimant.  Director's Exhibits
22, 23.  The administrative law judge rationally found, therefore, that these
reports do not constitute reasoned medical opinions under Section 718.202(a)(4). 
Decision and Order at 17-18; see Worhach v. Director, OWCP, 17 BLR 1-105
(1993); Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).

     The administrative law judge also acted within his discretion in declining
to credit Dr. Wright's apparent diagnosis of pneumoconiosis, as defined in 20
C.F.R. §718.201, on the ground that Dr. Wright did not adequately identify
the basis for his determination that claimant suffers from chronic bronchitis
caused by smoking and the inhalation of respirable dust.  Decision and Order at
17; Director's Exhibit 22; see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Tackett v. Cargo Mining Co., 12 BLR 1-11
(1988)(en banc), aff'd sub nom. Director, OWCP v. Cargo Mining Co., Nos.
88-3531, 88-3578 (6th Cir. May 11, 1989)(unpub.).  Similarly, the administrative
law judge permissibly found that Dr. Baker's attribution of claimant's
hypoxemia, chronic obstructive pulmonary disease, and chronic bronchitis to coal
dust exposure, in part, was not credible, as Dr. Baker did not explain how he
reached this conclusion.  Decision and Order at 18; Director's Exhibit 23;
see Clark, supra; Tackett, supra.  Thus, the
administrative law judge rationally found, pursuant to Section 718.202(a)(4),
that the opinions of Drs. Wright and Baker are insufficient to establish the
existence of either clinical pneumoconiosis or pneumoconiosis as defined in
Section 718.201.

     Inasmuch as we have affirmed the administrative law judge's finding that
the evidence of record, considered in its entirety, does not support a finding
of pneumoconiosis under Section 718.202(a)(1)-(4), an essential element of
entitlement, we must also affirm the denial of benefits under Part 718.[2]   See Trent, supra; Gee,
supra; Perry, supra.

     Accordingly, the administrative law judge's Decision and Order on
Modification - Denial of Benefits is affirmed.

     SO ORDERED.
     


                         
                                 
                     
BETTY JEAN HALL, Chief
Administrative Appeals Judge




                                 
                     
ROY P. SMITH     
Administrative Appeals Judge




                                 
                     
JAMES F. BROWN
Administrative Appeals Judge


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Footnotes.
 1)We affirm the administrative law judge's findings with
respect to modification under 20 C.F.R. §725.310 and his findings on the
merits under 20 C.F.R. §§718.202(a)(2), (a)(3), and 718.204(c)(1)-(3),
as they are unchallenged on appeal.  See Skrack v. Island Creek Coal Co.,
6 BLR 1-710 (1983).
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 2)We need not address claimant's allegations of error
regarding the administrative law judge's findings under Section 718.204(c)(4),
as error, if any, therein is harmless. See Johnson v. Jeddo-Highland Coal
Co., 12 BLR 1-53 (1988); Larioni v. Director, OWCP, 6 BLR 1-1276
(1984).
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