BRB No. 99-0566 BLA

STEVE GILBERT                 )
                              )
                              )
          Claimant-Petitioner      )
                              )
     v.                       )    DATE ISSUED:09/29/2000 
                              )
LYNN CONSTRUCTION COMPANY     )
                              )
          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 Thomas F.
     Phalen, Jr., Administrative Law Judge, United States Department of
     Labor.  

     Edmond Colettt, Hyden, Kentucky, for claimant.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits  (98-BLA-0760) of
Administrative Law Judge Thomas F. Phalen, Jr., on a duplicate 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.[1]   The administrative law judge 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
respiratory disability pursuant to 20 C.F.R. §718.204(c) and thus
found that claimant failed to establish a material change in conditions
pursuant to 20 C.F.R. §725.309.  Accordingly, the administrative law
judge denied benefits.

     On appeal, claimant challenges the administrative law judge's
findings pursuant to Sections 718.202(a)(1), (a)(4), and 718.204(c)(1). 
Claimant also asserts that the administrative law judge, in determining
whether total respiratory disability was established, should have
considered the exertional requirements of claimant's usual coal mine
employment and other factors such as age, education, work experience and
the progressive nature of pneumoconiosis.  Employer has not responded to
the instant appeal.  The Director, Office of Workers' Compensation
Programs, has filed a letter indicating that he will not file a response
brief in the instant appeal.[2]  

     The Board's scope of review is defined by statute.  We must affirm the
administrative law judge's Decision and Order if the findings of fact and
conclusions of law are rational, supported by substantial evidence, and 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).

     Claimant initially maintains that in weighing the newly submitted x-ray
interpretations of record at Section 718.202(a)(1), the administrative law judge
selectively analyzed the evidence and failed to properly evaluate the
interpretations of Drs. Gomez, Gonsalez, and Antoun.  Claimant asserts that an
administrative law judge need not accept as conclusive the numerical superiority
of x-ray interpretations and argues that, in the present case, the
administrative law judge mechanically credited the negative readings of Drs.
Baker, Barrett, and Sargent based upon their qualifications.  Claimant's
arguments are without merit.  The administrative law judge accurately determined
that the interpretations of Drs. Gomez, Gonsalez, and Antoun were insufficient
to establish either the presence or absence of pneumoconiosis because they were
not in substantial compliance with the provisions of 20 C.F.R. §718.102, in
that the physicians, whose qualifications are not contained in the record, did
not diagnose pneumoconiosis as defined in 20 C.F.R. §718.201 or classify
the x-rays under the UICC or ILO-U/C systems.  Decision and Order at 11;
McMath  v. Director, OWCP, 12 BLR 1-6 (1988); Trent v. Director, OWCP,
11 BLR 1-26 (1987).  The administrative law judge permissibly accorded
determinative weight to the negative interpretations by Drs. Baker, Barrett, and
Sargent because he determined that they were properly classified in accordance
with provisions of Section 718.102 and the physicians possessed superior
qualifications as Board-certified radiologists and/or B readers.  Decision and
Order at 11; Director's Exhibits 14, 17, 18; see McMath, supra. 
The administrative law judge's finding that the newly submitted evidence fails
to establish the existence of pneumoconiosis at Section 718.202(a)(1) is
supported by substantial evidence, in accordance with applicable law and, thus,
is affirmed.

     Claimant next challenges the administrative law judge's finding that the
newly submitted evidence fails to establish the existence of pneumoconiosis at
Section 718.202(a)(4).  Specifically, claimant relies upon the opinion of Dr.
Baker, which claimant asserts is sufficient to meet the definition of legal
pneumoconiosis.  Director's Exhibits 14, 15.  We disagree.  Dr. Baker opined
that claimant had "chronic obstructive pulmonary disease causally related to
smoking and chronic obstructive airways disease" and concluded that coal dust
exposure "would be minimal and possibly insignificant contribution to the
formation of chronic obstructive airways disease."  Director's Exhibit 14.  Dr.
Baker also stated that the cause of claimant's disease was "minimally, if any,
related to coal dust."  Director's Exhibit 15.  Claimant must establish that
chronic obstructive pulmonary disease is significantly related to, or
substantially aggravated by, claimant's coal dust exposure.  20 C.F.R.
§718.201; see Wilburn v. Director, OWCP, 11 BLR 1-135 (1988);
Shoup v. Director, OWCP, 11 BLR 1-110 (1987).  Inasmuch as Dr. Baker did
not reach the requisite conclusion regarding the relationship between claimant's
pulmonary condition and coal dust exposure, we affirm the administrative law
judge's determination that Dr. Baker's opinion does not support a finding of
pneumoconiosis and, consequently, we also affirm the administrative law judge's
finding that claimant did not establish the existence of pneumoconiosis at
Section 718.202(a)(4). See Wilburn, supra.

     Claimant also challenges the administrative law judge's consideration of
the newly submitted evidence at Section 718.204(c)(1).  Claimant asserts that
the administrative law judge erred by failing to adequately explain why he found
that Dr. Vaezy's two non-qualifying pulmonary function studies outweighed Dr.
Baker's qualifying test.  Claimant's contention has no merit.  The
administrative law judge acted within his discretion in determining that total
disability was not established pursuant to Section 718.204(c)(1), as the test
obtained by Dr. Baker produced values disparately lower than the more recent
studies obtained by Dr. Vaezy.  Decision and Order at 14; Director's Exhibits
11, 12, 68; Wilt v. Wolverine Mining Co., 14 BLR 1-70 (1990); Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); McMath,
supra; Casella v. Kaiser Steel Corp., 9 BLR 1-131 (1986); Baker
v. North American Coal Corp., 7 BLR 1-79 (1984).  We affirm, therefore, the
administrative law judge's findings at Section 718.204(c)(1).

     With respect to the administrative law judge's determination under Section
718.204(c)(4), contrary to claimant's contention, the administrative law judge
did not err in failing to render specific findings regarding the nature of
claimant's usual coal mine employment.  The administrative law judge determined
correctly that none of the physicians of record termed claimant totally disabled
or provided a description of physical limitations that the administrative law
judge could compare to the exertional requirements of claimant's usual coal mine
employment.  Decision and Order at 14; see generally Mazgaj v. Valley
Camp Coal Co., 9 BLR 1-201 (1986); Budash v. Bethlehem Mines Corp., 9
BLR 1-48 (1986)(en banc), aff'd, 9 BLR 1-104 (1986)(en
banc); see also Onderko v. Director, OWCP, 14 BLR 1-2 (1989). 
Finally, we reject claimant's contention that the administrative law judge erred
in failing to consider other factors, such as claimant's age, education, work
experience and the progressive nature of pneumoconiosis, in determining
claimant's ability to perform his usual coal mine employment inasmuch as these
factors are not relevant to establishing total disability pursuant to Section
718.204(c)(4).  20 C.F.R. §718.204(c)(4); Fields v. Island Creek Coal
Co., 10 BLR 1-19 (1987).  We affirm, therefore, the administrative law
judge's finding at Section 718.204(c)(4), as it is supported by substantial
evidence and is in accordance with applicable law. Consequently, we affirm the
administrative law judge's finding that the newly submitted evidence is
insufficient to establish a material change in conditions at Section 725.309(d),
inasmuch as claimant has not proven at least one of the elements of entitlement
previously adjudicated against him.   See Sharondale Coal Corp. v. Ross,
42  F.3d 993, 19 BLR 2-10 (6th Cir. 1994). Thus, we must also affirm the
denial of benefits.  20 C.F.R. §725.309(d); see Ross,
supra.

     Accordingly,  the Decision and Order Denying Benefits of the administrative
law judge is affirmed.

     SO ORDERED.

                                                                      
          
                         BETTY JEAN HALL, Chief                            Administrative Appeals Judge



                                                                      
                                     ROY P. SMITH
                         Administrative Appeals Judge



                                                                      
          
                                            MALCOLM D. NELSON, Acting       
                                                                   
Administrative Appeals Judge


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Footnotes.
 1)Claimant is Steve Gilbert, the miner, who filed his
original claim with the Department of Labor on December 18, 1993, which
was denied on September 2, 1994.  Director's Exhibit 66.  Claimant took
no further action and the denial became final.  Claimant then filed the
instant duplicate claim on June 7, 1996.  Director's Exhibit 1.
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 2)We affirm as unchallenged on appeal the administrative law
judge's finding that the evidence establishes 17.55 years of coal mine
employment, that employer is the putative responsible operator, and his findings
under 20 C.F.R. §§718.202(a)(2), (a)(3), and 718.204(c)(2)-(c)(4).
See Coen v. Director, OWCP, 7 BLR 1-30 (1984); Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983).
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