BRB No. 01-0424 BLA

HELEN H YONCE                      )
(Widow of REX CLAYTON YONCE)       )    
                         )
          Claimant-Petitioner           )
                         )
     v.                            )    DATE ISSUED:01/29/2002  
                                   )
CSX TRANSPORTATION, 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 Donald W. Mosser,
     Administrative Law Judge, United States Department of Labor.

     Allen C. Trimble, Williamsburg, Kentucky, for claimant.

     Rodney L. Baker II (Huddleston, Bolen, Beatty, Porter & Copen, LLP),
     Huntington, West Virginia, for employer.

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

     PER CURIAM:

     Claimant[1]  appeals the Decision and Order 
(2000-BLA-18) of Administrative Law Judge Donald W. Mosser denying benefits 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).[2]   The administrative law judge
credited the miner with six years of coal mine employment and adjudicated this
claim pursuant to 20 C.F.R. Part 718 (2000).  The administrative law judge found
that the evidence of record was sufficient to establish that the miner suffered
from pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R.
§§718.202(a), 718.203(c) (2000), but failed to establish that the miner's
death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c) (2000). 
Accordingly, benefits were denied.  On appeal, claimant contends that the
administrative law judge erred in his evaluation of the medical opinion evidence
in finding that the evidence failed to establish that the miner's death was due to
pneumoconiosis pursuant to 20 C.F.R. §718.205(c)(2) (2000).  Employer
responds, urging affirmance of the denial of benefits.  The Director, Office of
Workers' Compensation Programs, has not filed a brief on the merits in this appeal.

     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 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 survivor's benefits under 20 C.F.R. Part
718 in a claim filed after January 1, 1982, claimant must establish that the miner
had pneumoconiosis arising out of coal mine employment and that the miner's death
was due to pneumoconiosis; that pneumoconiosis was a substantially contributing
cause or factor leading to the miner's death; that the miner's death was caused by
complications of pneumoconiosis; or that the miner suffered from complicated
pneumoconiosis.  20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c), 718.304
(2000); see 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).  Pneumoconiosis is a "substantially contributing cause" of the miner's
death if it hastens the miner's death.[3]   20
C.F.R. §718.205(c)(5) (2001); see Griffith v. Director, OWCP, 49 F.3d
184, 19 BLR 2-111 (6th Cir. 1995); Brown v. Rock Creek Mining Co., Inc., 996
F.2d 812, 17 BLR 2-135 (6th Cir. 1993).

     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
administrative law judge's Decision and Order denying benefits under 20 C.F.R. Part
718 is supported by substantial evidence and contains no reversible error.  The
administrative law judge acted within his discretion in according diminished weight
to the opinion of Dr. Watts,[4]  in spite of his
status as claimant's treating physician, since the physician did not explain the
rationale for his conclusion or identify the particular medical studies he relied
on in reaching his conclusion. See Tussey v. Island Creek Coal Co., 982 F.2d
1036, 17 BLR 2-16 (6th Cir. 1993); McMath v. Director, OWCP, 12 BLR 1-6
(1988); Decision and Order at 7, 10; Director's Exhibits 5, 10. In addition, the
administrative law judge, within a proper exercise of his discretion, discredited
the opinion of Dr. O'Connor, a pathologist, because he did not provide a rationale
for his conclusion that pneumoconiosis caused the miner's death.  Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v.
Island Creek Coal Co., 10 BLR 1-19 (1987); Fuller v. Gibraltar Coal
Corp., 6 BLR 1-1291 (1984); Decision and Order at 4-5, 10; Claimant's Exhibit
1.

     Furthermore, the administrative law judge also acted within his discretion in
crediting the opinions of Drs. Hansbarger, Naeye, Castle and McSharry, that the
miner's pneumoconiosis was too mild to have hastened or contributed in any way to
his death, as the administrative law judge found that these physicians were highly
qualified in their specialties and that their opinions were well-reasoned.[5]   Decision and Order at 10; Director's Exhibits
13-14; Employer's Exhibits 1-2; Hearing Transcript at 21-51; see Wetzel v.
Director, OWCP, 8 BLR 1-139 (1985); Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985).  While claimant argues that the administrative law
judge erred in crediting the medical opinions of physicians who did not diagnose
pneumoconiosis, the administrative law judge, in finding the existence of
pneumoconiosis established, did so "because most of the physicians who did not
diagnose pneumoconiosis did acknowledge the existence of anthracosis," but
dismissed its significance or attributed it to other causes.  Decision and Order
at 9.

     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); Fagg v. Amax Coal Co., 12 BLR 1-77 (1988),
aff'd, 865 F.2d 916 (7th Cir. 1989); Worley v. Blue Diamond Coal Co.,
12 BLR 1-20 (1988); Short v. Westmoreland Coal Co., 10 BLR 1-127 (1987). 
Thus, the administrative law judge permissibly found that the evidence was
insufficient to establish death due to pneumoconiosis based on the more credible
medical opinions by the physicians with superior qualifications who found that
pneumoconiosis did not cause or contribute to the miner's death. Clark,
supra; Fields, supra.  Consequently, we affirm the
administrative law judge's finding that the medical opinions of record failed to
establish death due to pneumoconiosis pursuant to Section 718.205(c) (2000). 
Because the administrative law judge rationally found no credible evidence that
would support claimant's burden of establishing that the miner's death was due to
pneumoconiosis, that pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death, or that the miner's death was caused by
complications of pneumoconiosis, we must affirm the denial of benefits.  20 C.F.R.
§718.205(c) (2000).  See Griffith, supra; Brown,
supra.

     Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.

     SO ORDERED.


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

To Top of Document

Footnotes.
 1) Claimant is the surviving spouse of the miner, Rex Clayton
Yonce, who died on October 19, 1998.  Director's Exhibit 2.  The miner's widow
filed a claim for survivor's benefits on November 4, 1998.  Director's Exhibit
1.
 Back to Text

 2) 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 20 C.F.R.
Parts 718, 722, 725 and 726 (2001).
 Back to Text

 3) This case arises within the jurisdiction of the United States
Court of Appeals for the Sixth Circuit, as the miner's coal mine employment
occurred in the Commonwealth of Kentucky.  Director's Exhibit 37; see Shupe v.
Director, OWCP, 12 BLR 1-200 (1989)(en banc).
 Back to Text

 4) The death certificate, signed by Dr. Watts, lists the
immediate cause of the miner's death as non-small cell lung carcinoma, right lung
abscess with squamous cell carcinoma, generalized pleural anthracosis
(pneumoconiosis), pulmonary edema, black lung and asbestosis.  Director's Exhibit
2.
 Back to Text

 5) Dr. Hansbarger is Board-certified in Anatomic and Clinical
Pathology and Forensic Medicine.  Decision and Order at 5-6; Director's Exhibit 13. 
Dr. Naeye is Board-certified in Anatomic and Clinical Pathology and is Chairman of
the Department of Pathology for the College of Medicine of Pennsylvania State
University.  Decision and Order at 5; Director's Exhibit 13.  Dr. Castle is Board-certified in Internal Medicine with a subspecialty in pulmonary disease and is a
clinical professor of medicine at the University of Virginia.  Decision and Order
at 8; Employer's Exhibit 2.  Dr. McSharry is Board-certified in Internal Medicine,
Pulmonary Medicine and Critical Care Medicine and he practices as a pulmonologist. 
Decision and Order at 8; Hearing Transcript at 23, 26.
 Back to Text

To Top of Document