BRB No. 98-1574 BLA

JAMES FOY, SR.                     )
                                   )
          Claimant-Petitioner           )
                                   )
     v.                            )
                         )
DRUMMOND COMPANY,             )    DATE ISSUED:08/20/1999            
                              
INCORPORATED                       )
                         )
          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 Denying Benefits of Gerald M. Tierney,
     Administrative Law Judge, United States Department of Labor.

     Robert D. Whitfield, Chicago, Illinois, for claimant.

     Michael E. Turner (Maynard, Cooper & Gale, P.C.), Birmingham, Alabama,
     for employer.

     Before:  HALL, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order (96-BLA-59) of Administrative Law
Judge Gerald M. Tierney denying benefits 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 thirty years and four months of coal mine employment
and adjudicated this duplicate claim pursuant to 20 C.F.R. Part 718.  The
administrative law judge found that the evidence of record was insufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4) or total respiratory disability pursuant to 20 C.F.R.
§718.204(c)(1)-(4).  Accordingly, benefits were denied.  On appeal, claimant
asserts that the evidence establishes a material change in conditions pursuant to
20 C.F.R. §725.309(d) and generally contends that he is entitled to benefits. 
Employer responds, urging affirmance of the denial of benefits.  The Director,
Office of Workers' Compensation Programs, has not participated 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 the 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).

     In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that
the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3,
718.202, 718.203, 718.204.  Failure of claimant to establish any of these elements
precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry
v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).

     After consideration of the administrative law judge's Decision and Order, the
arguments of the parties 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.  In considering whether total
disability was established under Section 718.204(c)(1)-(2), the administrative law
judge properly found that inasmuch as the pulmonary function study and blood gas
study evidence of record was non-qualifying, total disability was not established
pursuant to Section 718.204(c)(1)-(2).[1]  
See Decision and Order at 5, 8; Director's Exhibits 5, 7-8, 23.  In
addition, the administrative law judge correctly found that there is no evidence
of cor pulmonale with right sided congestive heart failure, see 20 C.F.R.
§718.204(c)(3), and thus establishing total disability by this method is
precluded.  Decision and Order at 8.  In considering whether total disability was
established by the medical opinions of record, see 20 C.F.R.
§718.204(c)(4), the administrative law judge initially considered the medical
report submitted with the most recent claim and correctly concluded that Dr. Hasson
did not state that claimant had a totally disabling respiratory or pulmonary
impairment.  Decision and Order at 6, 8; Director's Exhibit 6.  Contrary to
claimant's assertion, Dr. Hasson did not diagnose a severe respiratory impairment,
but instead stated that claimant had a severe impairment due to hypertensive
cardiovascular disease, but no impairment due to pneumoconiosis or asthmatic
bronchitis.  Director's Exhibit 6.  In addition, the administrative law judge
permissibly found that the opinion of Dr. Goodman was unreasoned and failed to
establish total disability by a preponderance of the evidence in light of the non-qualifying objective studies and the contrary medical opinions of Dr. Hasson that
claimant was not totally disabled from a respiratory standpoint. See Fagg v.
Amax Coal Co., 12 BLR 1-77 (1988); Minnich v. Pagnotti Enterprises,
Inc., 9 BLR 1-89 (1986); King v. Consolidation Coal Co., 8 BLR 1-262
(1985); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985); Decision and Order at
8.  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. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989);
Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989).  Consequently,
we affirm the administrative law judge's finding that the medical opinions of
record failed to establish total disability pursuant to Section 718.204(c)(4).
Clark, supra; Gee v. W.G. Moore and Sons, 9 BLR 1-4
(1986)(en banc); Lucostic v. United States Steel Corp., 8 BLR 1-46
(1985).  Thus, with respect to the administrative law judge's findings pursuant to
Section 718.204(c), the administrative law judge weighed all of the relevant
probative evidence, both like and unlike, as required by Shedlock v. Bethlehem
Steel Corp., 9 BLR 1-195 (1986), aff'd on recon. en banc, 9 BLR 1-236
(1987), and rationally concluded that the newly submitted evidence as well as the
other evidence of record failed to establish total respiratory disability pursuant
to Section 718.204(c). Piccin v. Director, OWCP, 6 BLR 1-616 (1983).  Thus,
we affirm the administrative law judge's finding that the evidence of record was
insufficient to establish total disability in accordance with the provisions of
Section 718.204(c).[2]   Claimant's failure to
establish total respiratory disability pursuant to Section 718.204(c), an essential
element of entitlement, precludes an award of benefits under 20 C.F.R. Part 718.
Anderson, supra, Trent, supra.  Consequently, we affirm
the administrative law judge's denial of benefits as it is supported by substantial
evidence.[3] 
     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



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1) A "qualifying" pulmonary function study or blood gas study yields values that are equal to
or less than the appropriate values set out in the tables at 20 C.F.R. Part 718, Appendices B and C, respectively.  A "non-qualifying" study exceeds those values. See 20 C.F.R. §718.204(c)(1), (2).
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 2) As the administrative law judge properly found that the medical evidence was insufficient
to establish total disability pursuant to 20 C.F.R. §718.204(c)(1)-(4), lay testimony alone cannot alter the
administrative law judge's finding. See 20 C.F.R. §718.204(d)(2); Tucker v. Director, OWCP, 10
BLR 1-35 (1987); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Wright v. Director, OWCP, 8
BLR 1-245 (1985).
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 3) As we affirm the administrative law judge's denial of benefits on the basis of the
administrative law judge's findings on the merits, we need not address the duplicate claim issue.
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