BRB No. 98-1496 BLA

GEORGE BROWN, JR.                  )
                         )
          Claimant-Petitioner           )
                                   )
     v.                            )
                                   )
WEBSTER COUNTY COAL           )    DATE ISSUED:08/18/1999            
                              
CORPORATION                        )
                                   )
          Employer-Respondent      )
                                   )
DIRECTOR, OFFICE OF WORKERS'       )    
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                                   )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of J. Michael O'Neill, Administrative
     Law Judge, United States Department of Labor.

     Joseph H. Kelly (Monhollon & Kelly P.S.C.), Madisonville, Kentucky, for
     claimant.

     Laura Metcoff Klaus and Gregory S. Fedder (Arter & Hadden, LLP),
     Washington, D.C., for employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (98-BLA-0071) of Administrative Law
Judge J. Michael O'Neill denying benefits on a duplicate 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 thirty-two years of coal mine employment based on a
stipulation by the parties and adjudicated this duplicate claim pursuant to 20
C.F.R. Part 718.  The administrative law judge found that claimant, based on the
newly submitted evidence, established total respiratory disability pursuant to 20
C.F.R. §718.204(c) and, in light of the decision of the United States Court
of Appeals for the Sixth Circuit in Sharondale Corp. v. Ross, 42 F.3d 993,
19 BLR 2-10 (6th Cir. 1994), concluded that claimant established a material change
in conditions pursuant to 20 C.F.R. §725.309.  The administrative law judge
further found that the evidence of record was insufficient to establish that
claimant suffered from pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4).  Accordingly, benefits were denied.  On appeal, claimant challenges the
administrative law judge's findings pursuant to 20 C.F.R. §718.202(a)(1) and
(4). Employer responds, urging affirmance of the denial of benefits.  The Director,
Office of Workers' Compensation Programs (the Director), has declined to
participate in this appeal.[1] 

     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 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 Part 718 in a living
miner's claim, claimant must establish the existence of 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 prove any one of these elements precludes entitlement. Trent v.
Director, OWCP, 9 BLR 1-1 (1986)(en banc); Perry v. Director,
OWCP, 9 BLR 1-1 (1986).

     After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal and the evidence of record, we conclude that the
Decision and Order of the administrative law judge is supported by substantial
evidence and that there is no reversible error contained therein.  The
administrative law judge, in the instant case, permissibly determined that the
evidence of record was insufficient to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a). Piccin v. Director, OWCP, 6 BLR 1-616 (1983).  The administrative law judge considered the x-ray evidence of record
pursuant to Section 718.202(a)(1) and permissibly accorded greater weight to the
x-ray interpretations of the readers with superior qualifications and to the
preponderance of negative x-ray readings. 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); Edmiston v. F & R Coal
Co., 14 BLR 1-65 (1990); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989) (en banc); Trent, supra; Roberts v. Bethlehem Mines
Corp., 8 BLR 1-211 (1985); Decision and Order at 13-17; Director's Exhibits 11-15, 18-19, 21-23, 41-42, 45; Claimant's Exhibit 2; Employer's Exhibits 4-7.  We,
therefore, affirm the administrative law judge's finding that the x-ray evidence
was insufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(1).

     The administrative law judge also considered the entirety of the medical
opinion evidence of record and acted within his discretion in concluding that
claimant failed to establish the existence of pneumoconiosis by a preponderance of
the evidence pursuant to Section 718.202(a)(4). Piccin, supra.  In
so finding, the administrative law judge rationally relied on the opinions of Drs.
Anderson, Vuskovich, Fino and Branscomb, that claimant did not suffer from
pneumoconiosis and that his disabling respiratory impairment was due to chronic
obstructive pulmonary disease and a lobectomy for lung cancer due to smoking, since
the administrative law judge determined that their conclusions were supported by
specific objective evidence. Clark, supra; King v. Consolidation
Coal Co., BLR 1-262 (1985); Wetzel v. Director, OWCP, 8 BLR 1-139
(1985); Lucostic v. United States Steel Corp., 8 BLR 1-146 (1985); Oggero
v. Director, OWCP, 7 BLR 1-860 (1985); Decision and Order at 17-25; Director's
Exhibits 41, 43, 45; Employer's Exhibits 2-3.  Contrary to claimant's contention,
the administrative law judge considered the entirety of the medical opinion
evidence and permissibly determined that the reports of Drs. Penman, Wright, Simpao
and Bentsen, that the miner suffered from pneumoconiosis, were not supported by any
specific objective evidence other than discredited x-rays and a lengthy coal mine
employment history and were outweighed by the contrary opinions. Worhach v.
Director, OWCP, 17 BLR 1-105 (1993); Clark, supra; Perry,
supra; King, supra; Wetzel, supra;
Lucostic, supra; Piccin, supra; Decision and Order at
22; Director's Exhibits 12-13, 16; Claimant's Exhibits 1-2.  Moreover, the
administrative law judge acknowledged that Dr. Bentsen was claimant's treating
physician, but also provided valid reasons for finding his opinion entitled to less
weight. See Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111
(6th Cir. 1995); Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16
(6th Cir. 1993); Wetzel, supra; Decision and Order at 24 n.13.  The
administrative law judge is empowered to weigh the medical evidence and to draw his
own inferences therefrom, see Maypray v. Island Creek Coal Co., 7 BLR
1-683 (1985), and the Board may not reweigh the evidence or substitute its own
inferences on appeal. See Anderson v. Valley Camp of Utah, Inc., 12
BLR 1-111 (1989); Clark, supra.  Consequently, we affirm the
administrative law judge's finding that the evidence of record is insufficient to
establish the existence of pneumoconiosis pursuant to Section 718.202(a)(4) as it
is supported by substantial evidence and is in accordance with law.  Inasmuch as
claimant has failed to establish the existence of pneumoconiosis, a requisite
element of entitlement under 20 C.F.R. Part 718, entitlement thereunder is
precluded. See Trent, supra; Perry, supra.     Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.
 1) The administrative law judge's findings that the existence
of pneumoconiosis was not established pursuant to 20 C.F.R. §718.202(a)(2)-(3)
are unchallenged on appeal and are therefore affirmed. Skrack v. Island Coal
Creek Co., 6 BLR 1-710 (1983).
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