BRB No. 99-0665 BLA

                                   NATHAN A. McDANIEL                 )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
                                        DIRECTOR, OFFICE OF WORKERS'            )    DATE ISSUED:03/28/2000  
                                                             
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
                                                  Respondent                    )    DECISION and ORDER

          Appeal of the Decision and Order of Thomas F. Phalen, Jr.,
     Administrative Law Judge, United States Department of Labor.

          Edmond Collett, Hyden, Kentucky, for claimant.

          Dorothy L. Page (Henry L. Solano, Solicitor of Labor;  Donald S. Shire, Associate
     Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; Richard
     A. Seid and Michael J. Rutledge, Counsel for Administrative Litigation
     and Legal Advice), Washington, D.C., for the Director, Office of
     Workers' Compensation Programs, United States Department of Labor.

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

          PER CURIAM:

     Claimant appeals the Decision and Order (98-BLA-829) of Administrative Law
Judge Thomas F. Phalen, Jr. 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 found at least twenty-six years of coal mine employment and, based on the
date of filing, adjudicated the claim pursuant to 20 C.F.R. Part 718.  Decision and
Order at 4-5.  After determining that the instant claim was a duplicate claim,[1]  the administrative law judge noted the proper
standard and found that the newly submitted evidence was insufficient to establish
the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4) or
total disability pursuant to 20 C.F.R. §718.204(c)(1)-(4).  Consequently, the
administrative law judge concluded that claimant failed to establish a material
change in conditions pursuant to 20 C.F.R. §725.309.  Accordingly, benefits
were denied.  On appeal, claimant  contends that the evidence is sufficient to
establish the existence of pneumoconiosis and total disability pursuant to 20
C.F.R. §§718.202(a)(1), (4) and 718.204(c)(4). The Director, Office of
Workers' Compensation Programs, responds urging affirmance of the administrative
law judge's Decision and Order.[2] 

     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 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 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 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 raised on appeal and the evidence of record, we conclude that the
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error therein. Considering the newly submitted evidence,
the administrative law judge rationally found that claimant failed to establish a
material change in conditions at 20 C.F.R. §725.309. See Piccin v.
Director, OWCP, 6 BLR 1-616 (1983).  The administrative law judge correctly
noted that the previous claim was denied as claimant did not establish the
existence of pneumoconiosis or that he was totally disabled due to pneumoconiosis. 
Decision and Order at 3, 6; Director's Exhibit 25.  The United States Court of
Appeals for the Sixth Circuit has held that in assessing whether the evidence is
sufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309, an administrative law judge must consider all of the new evidence,
favorable and unfavorable to claimant, and determine whether claimant has proven
at least one of the elements of entitlement previously adjudicated against him.[3]   See Sharondale Corp. v. Ross, 42 F.3d
993,  19 BLR 2-10 (6th Cir. 1994).

     Considering the newly submitted evidence to determine if a material change in
conditions was established, the administrative law judge permissibly found that the
evidence was insufficient to establish the existence of pneumoconiosis pursuant to
Section 718.202(a). Piccin, supra. The administrative law judge, in the
instant case, permissibly found the newly submitted evidence insufficient to
establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1). The
administrative law judge noted that of the four newly submitted x-ray
interpretations of record, all of the interpretations were by physicians who were
either B-readers or B-readers and Board-certified radiologists. Decision and Order
at 6-7. Of these interpretations, three readings are negative for pneumoconiosis,
Director's Exhibits 7, 8, 22,  and one reading is positive. Director's Exhibit 9. 
The administrative law judge then concluded that, based upon the number of negative
interpretations and the credentials of the physicians rendering these
interpretations, the x-ray evidence was insufficient to establish the existence of
pneumoconiosis.  Decision and Order at 7.  Since the administrative law judge
rationally relied on the preponderance of the x-ray readings by physicians who are
B-readers and Board-certified radiologists, substantial evidence supports the
administrative law judge's finding that the newly submitted evidence is
insufficient to establish the existence of pneumoconiosis at Section 718.202(a)(1).
See Director's Exhibits 7, 8, 9, 22; Decision and Order at 7; Staton v.
Norfolk & Western Railroad 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 (1988)(en banc); Sheckler v. Clinchfield Coal
Co. 7 BLR 1-128 (1984). 

     In addressing the existence of pneumoconiosis pursuant to Section 718.202(a)(4), the
administrative law judge considered the entirety of the newly submitted medical
opinions of  Drs. Baker and Broudy. Whereas Dr. Baker opined that
claimant suffers from pneumoconiosis, Director's Exhibit 5, Dr. Broudy opined that
claimant does not suffer from pneumoconiosis. Director's Exhibit 22.  The
administrative law judge, after noting that both physicians were board-certified
in internal medicine and pulmonary disease,  properly accorded determinative weight
to the opinion of Dr. Broudy over the contrary opinion of Dr. Baker because his
opinion is better supported by the objective evidence. See Clark, supra;
Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); King v.
Consolidation Coal Co., 8 BLR 1-262 (1985); Wetzel v. Director, OWCP,
8 BLR 1-139 (1985); Lucostic v. United States Steel Corp., 8 BLR 1-46
(1985); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291 (1984); Decision
and Order at 8-9. Contrary to claimant's contention, the administrative law judge properly noted that Dr.
Baker was claimant's treating physician and further provided a rational reason for finding his opinion entitled
to less weight. See Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993);
Wetzel, supra; Decision and Order at 8-9.  Thus, we affirm the administrative law
judge's finding that the preponderance of the newly submitted evidence is
insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(4). Perry, supra.

     With respect to 20 C.F.R. §718.204(c)(4), the administrative law judge,
also rationally determined that  the  evidence of record was insufficient to
establish total disability. Piccin, supra.  The administrative law
judge permissibly concluded that the newly submitted evidence was insufficient to
establish total disability as no physician of record opined that claimant was
suffering from a totally disabling respiratory or pulmonary impairment.[4]   Director's Exhibits 5, 22; Decision and Order
at 11; Tackett v. Cargo Mining Co., 12 BLR 1-11 (1988); Fields,
supra; Budash v. Bethlehem Mines Corp., 9 BLR 1-48 (1986)(en
banc), aff'd on recon. 9 BLR 1-104 (1986)(en banc); Gee v.
W. G. Moore and Sons, 9 BLR 1-4 (1986)(en banc); Perry, supra. 
Contrary to claimant's contention, opinions finding no significant or compensable
impairment need not be discussed by the administrative law judge in terms of
claimant's former job duties. Wetzel, supra.  Moreover, we reject claimant's
arguments that the administrative law judge failed to consider that he is
totally disabled for comparable and gainful work because of his age, work
experience and education, since the newly submitted medical opinions do not
establish the existence of a totally disabling respiratory impairment under
Section 718.204(c).[5]   Carson v. Westmoreland
Coal Co., 19 BLR 1-18 (1994); see also Ramey v. Kentland v. Elkhorn Coal
Corp., 775 F.2d 485, 7 BLR 2-124 (6th Cir. 1985).  

     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, supra;
Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988). Consequently, as the administrative law judge in this case adequately
examined and discussed all of the relevant newly submitted evidence as it relates to the existence of
pneumoconiosis and total disability and permissibly concluded that this evidence fails to carry claimant's burden
of establishing a material change in conditions pursuant to 20 C.F.R. §725.309, we affirm the
administrative law judge's denial of benefits as it is supported by substantial evidence and is in accordance with
law.

     Accordingly, the administrative law judge's Decision and Order denying
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)Claimant filed his initial claim for benefits with the Social
Security Administration on December 20, 1972. Director's Exhibit 25. Claimant also
filed a claim with the Department of Labor on August 30, 1977. Director's Exhibit
25. Both claims were finally denied by the Department of Labor on December 5, 1983. 
Director's Exhibit 25. Claimant did not appeal the denial but subsequently filed
a second claim on May 30, 1991, which was finally denied on May 26, 1995, because
claimant failed to establish the existence of pneumoconiosis and total disability
due to pneumoconiosis. Director's Exhibit 25. Claimant filed his most recent claim
on April 29, 1997.  Director's Exhibit 1.
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 2)
     The administrative law judge's length of coal mine employment determination
and his findings pursuant to 20 C.F.R. §§718.202(a)(2)-(3) and
718.204(c)(1)-(3) are affirmed as unchallenged on appeal. Skrack v. Island Creek
Coal Co., 6 BLR 1-616 (1983).
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 3)This case arises within the jurisdiction of the United States
Court of Appeals for the Sixth Circuit as the miner was employed in the coal mine
industry in the State of Tennessee. See Director's Exhibit 2; Shupe v.
Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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 4)Dr. Baker opined that claimant has a mild impairment and has the
respiratory capacity to perform his last coal mine employment. Director's Exhibit
5. Dr. Broudy opined that claimant has the respiratory capacity to return to coal
mine employment or to do similarly arduous manual labor. Director's Exhibit 22.
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 5)
      Claimant's reliance on Bentley v. Director, OWCP, 7 BLR 1-612 (1982)
is misplaced.  In Bentley, the Board held that age, work experience and
education are only relevant to claimant's ability to perform comparable and gainful
work, an issue which did not need to be reached in that case in light of the
administrative law judge's finding at Section 410.426(a) that claimant did not
establish that he had any impairment which disabled him from his usual coal mine
employment. See also 20 C.F.R. §718.204(b)(1), (b)(2).
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