BRB No. 89-1475 BLA
                 
                                              

ALLARD WRIGHT                 )
                              )
          Claimant-Petitioner )
                              )
     v.                       )
                              )
CLASSIC COAL CORPORATION      )
                              )
      and                     )
                              )
OLD REPUBLIC COMPANIES        )    DATE ISSUED:04/16/1992 
                              )
          Employer/Carrier-   )
          Respondents         )
                              )
DIRECTOR, OFFICE OF WORKERS'  )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR    )
                              )
          Party-in-Interest   )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of W. Ralph Musgrove,
     Administrative Law Judge, United States Department of Labor.

     Howard Keith Hall (Johnson, Vanover & Hall), Pikeville, Kentucky, for
     claimant.           
     
     James P. Anasiewicz (Arter & Hadden), Washington, D.C., for        employer.

     Before:  BROWN and DOLDER, Administrative Appeals Judges,   and BONFANTI,
Administrative Law Judge.*  

     PER CURIAM:
     Claimant appeals the Decision and Order on Remand (83-BLA-1775) of
Administrative Law Judge W. Ralph Musgrove 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 




*Sitting as a temporary Board member by designation pursuant to the Longshore and
Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C.
§921(b)(5)(Supp. V 1987).
U.S.C. §901 et seq.  (the Act).  This case is on
appeal before the Board for the second time.  On February 18, 1986, Administrative
Law Judge James P. Abell, Jr. found the evidence of record sufficient to establish
invocation of the interim presumption pursuant to 20 C.F.R. §727.203(a)(4) and
that rebuttal was not established pursuant to 20 C.F.R. §727.203(b). 
Accordingly, benefits were awarded.  Employer appealed, and, in its first Decision
and Order, the Board remanded the case to the administrative law judge for
reconsideration of the evidence pursuant to 20 C.F.R. §§727.203(b)(3) and
(b)(4).  See Wright v. Classic Coal Corporation, BRB
No. 86-733 BLA (May 20, 1988) (unpubl.).  On remand, Administrative Law Judge W.
Ralph Musgrove reconsidered the evidence and determined that employer established
rebuttal of the presumption pursuant to 20 C.F.R. §727.203(b)(3) and (b)(4). 
The administrative law judge further determined that claimant failed to establish
entitlement under either 20 C.F.R. Part 410, 20 C.F.R. Part 718, or the interim
presumption at 20 C.F.R. §410.490.  Accordingly, the Decision and Order of
Administrative Law Judge Abell was reversed and benefits were denied.  On appeal,
claimant contends that the administrative law judge's Decision and Order on Remand
went beyond the scope of the Board's remand order, and that the administrative law
judge's finding of rebuttal is not supported by substantial evidence of record. 
Employer responds in support of the administrative law judge's Decision and Order. 
The Director, Office of Workers' Compensation Programs, has chosen not to respond
in this case.

     The Board's scope of review is defined by statute.  The administrative law
judge's findings of fact and conclusions of law must be affirmed if they are
supported by substantial evidence, are rational, and are in accordance with 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).

     Upon considering the evidence pursuant to 20 C.F.R. §727.203(b)(4), the
administrative law judge determined that the record contains nine interpretations
of three x-rays, all of which were read as negative for the existence of
pneumoconiosis.  See Director's Exhibits 14, 15, 16, 17, 22, 23, 24;
Employer's Exhibit 1, 2.  Thus, the administrative law judge properly found that
the preponderance of the x-ray evidence is negative for pneumoconiosis. 
See Decision and Order on Remand at 12; Lafferty v. Cannelton
Industries, Inc., 12 BLR 1-190 (1989).  The administrative law judge then
considered the medical opinions of record[1]  and
permissibly found the opinions of Drs. Wright and Broudy to be supported by the
weight of the objective evidence of record and thus, more persuasive than the
opinions of Drs. O'Neill and Anderson on the issue of the existence of
pneumoconiosis. See Decision and Order at 12; Mabe v. Bishop
Coal Co., 9 BLR 1-67 (1986).  As both Dr. Wright and Dr. Broudy found that
claimant does not have pneumoconiosis, the administrative law judge properly found
that the preponderance of the evidence establishes that claimant does not have
pneumoconiosis.  See Decision and Order at 12-13;
Lafferty, supra.  Consequently, the administrative law
judge's finding that employer established rebuttal pursuant to 20 C.F.R.
§727.203(b)(4) is affirmed as it is supported by substantial evidence.

     In regard to claimant's contention that the administrative law judge's
Decision and Order went beyond the scope of the remand order, the administrative
law judge properly reconsidered the evidence pursuant to 20 C.F.R.
§§727.203(b)(3) and (b)(4) as was instructed by the Board. 
See Wright, supra.  Claimant's contention
of error on this issue is therefore rejected.  Moreover, as the administrative law
judge's finding of rebuttal pursuant to 20 C.F.R. §727.203(b)(4) is affirmed,
there is no need to address claimant's contention of error at 20 C.F.R.
§727.203(b)(3).[2] 



     Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.

     SO ORDERED.



                                                      
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                      
                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                      
                         RENO E. BONFANTI
                         Administrative Law Judge















 

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Footnotes.
 1)Dr. O'Neill examined claimant on October, 28, 1976 and
diagnosed 1) chronic obstructive airway disease-moderately severe with a
restrictive component.  2) chronic bronchitis 3) probable emphysema 4) coal
worker's pneumoconiosis simple, stage 1/1(p and q).  See Director's
Exhibit 10.  By letter dated June 7, 1983, Dr. O'Neill added that claimant's
"obstructive airway disease, chronic
bronchitis, pulmonary emphysema and respiratory disability were caused by chronic
cigarette abuse."  See Employer's Exhibit 3.  Dr. Anderson examined
claimant on December 14, 1976 and diagnosed category 1 pneumoconiosis and pulmonary
emphysema.  See Director's Exhibit 11.  By letter of July 15, 1983,
Dr. Anderson stated that claimant's "physiological or functional disability is on
the basis of pulmonary emphysema as a result of his cigarette smoking and not
related to his category 1 pneumoconiosis or coal mine dust."  See
Employer's Exhibit 4.  Dr. Wright, who examined claimant on February 24, 1977,
diagnosed chronic obstructive airway disease and checked "no" on the examination
form to indicate that there was no relation between claimant's impairment and his
coal mine employment.  See Director's Exhibit 12.  Dr. Broudy
examined claimant on March 21, 1983 and diagnosed pulmonary emphysema and chronic
bronchitis with very severe airways obstruction.  He stated further that he did not
believe that claimant has pneumoconiosis and that he believes that claimant's
impairment is a result of chronic bronchitis and pulmonary emphysema which has
predominantly resulted from claimant's long history of cigarette smoking. 
See Employer's Exhibit 6. 
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 2)The finding of no pneumoconiosis, which has been affirmed,
precludes entitlement under the Act.  Stanford v. Valley Camp Coal
Co., 7 BLR 1-906 (1985).
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