BRB No. 99-0838 BLA

ELISHA PENNINGTON                            )
                                   )
          Claimant-Petitioner           )
                                   )
     v.                            )    DATE ISSUED:05/10/2000            
                                     )
DIRECTOR, OFFICE OF WORKERS'       )    
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.

     Phillip Lewis, Hyden, Kentucky, for claimant.

     Sarah M. Hurley (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: BROWN and McGRANERY, Administrative Appeals Judges, and NELSON, Acting
     Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order (98-BLA-1322) of Administrative Law Judge Thomas F. Phalen, Jr.
denying benefits in 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).  Based on the parties'
stipulation, the administrative law judge credited claimant with at least seventeen
years of coal mine employment and adjudicated this claim pursuant to the
regulations contained in 20 C.F.R. Part 718.  The parties also stipulated that
claimant suffers from pneumoconiosis arising out of coal mine employment.  Hearing
Transcript at 6.  The administrative law judge found the evidence insufficient to
establish total disability at 20 C.F.R. §718.204(c)(1)-(4).  Accordingly, the
administrative law judge denied benefits.  On appeal, claimant challenges the
administrative law judge's finding that the evidence is insufficient to establish
total disability at 20 C.F.R. §718.204(c)(4).  The Director, Office of
Workers' Compensation Programs (the Director), responds, urging affirmance of the
administrative law judge's Decision and Order.[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 into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).

     In finding the evidence insufficient to establish total disability at 20
C.F.R. §718.204(c)(4), the administrative law judge considered the opinions
of Drs. Anderson, Chaney, Myers and Wicker.  The administrative law judge stated
that "Drs. Anderson and Myers agreed that [claimant] retains the pulmonary capacity
to perform his last coal mining job."  Decision and Order at 7; Director's Exhibits
11, 12.  Further, the administrative law judge stated that "Dr. Wicker felt [that
claimant's] respiratory capacity appeared adequate to perform his previous coal
mine employment."  Decision and Order at 7; Director's Exhibit 13.  Lastly, the
administrative law judge stated that "Dr. Chaney provided no opinion on the issue
of disability."  Decision and Order at 7; Director's Exhibit 24.

     Claimant asserts that the administrative law judge erred in failing to
consider the "complaints of shortness of breath worsened with exertion" contained
in Dr. Chaney's medical report.  Specifically, claimant asserts that Dr. Chaney's
medical report indicates a disabling pulmonary or respiratory impairment.  Contrary
to claimant's assertion, a physician's recitation of a miner's symptom of shortness
of breath is not a diagnosis of a pulmonary or respiratory impairment. See Clay
v. Director, OWCP, 7 BLR 1-82 (1984); Heaton v. Director, OWCP, 6 BLR
1-222 (1984); Parsons v. Director, OWCP, 6 BLR 1-272 (1983).  In a report
dated March 27, 1998, Dr. Chaney noted that claimant "has chronic shortness of
breath."  Director's Exhibit 24.  Dr. Chaney also noted that "[i]t is worse with
exertion and [claimant] can walk approximately 1 flight of stairs before the
shortness of breath over takes him." Id.  Thus, inasmuch as neither Dr.
Chaney nor any other physician of record opined that claimant suffers from a
disabling respiratory or pulmonary impairment, we affirm the administrative law
judge's finding that the evidence is insufficient to establish total disability at
20 C.F.R. §718.204(c)(4). See Beatty v. Danri Corp. and Triangle
Enterprises, 16 BLR 1-11 (1991).

     Since claimant failed to establish total disability at 20 C.F.R.
§718.204(c), an essential element of entitlement, we hold that the
administrative law judge properly denied benefits under 20 C.F.R. Part 718.
See Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v.
Director, OWCP, 9 BLR 1-1 (1986)(en banc).

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

     SO ORDERED.


 

                                                                         

                         JAMES F. BROWN           
                         Administrative Appeals Judge




                                                                         

                         REGINA C. McGRANERY           
                         Administrative Appeals Judge




                                                                         

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge



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Footnotes.
 1)Inasmuch as the administrative law judge's length of coal mine employment finding and
his findings pursuant to 20 C.F.R. §718.204(c)(1)-(3) are not challenged on appeal, we affirm these findings.
See Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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