BRB No. 97-1796 BLA

RUFUS KEEN

          Claimant-Petitioner

     v.

SEA "B" MINING COMPANY


          Employer-Respondent

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

          Party-in-Interest)
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DATE
ISSUED:09/21/1998   
             








DECISION and ORDER
     Appeal of the Decision and Order of Edward J. Murty, Jr., Administrative
     Law Judge, United States Department of Labor.

     Rufus Keen, Pilgrim Knob, Virginia, pro se.

     Timothy W. Gresham (Penn, Stuart & Eskridge), Abingdon, Virginia, for
     employer.

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


     PER CURIAM:

     Claimant,[1]  without the assistance of
counsel, appeals the Decision and Order (97-BLA-0964) of Administrative Law Judge
Edward J. Murty, 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 credited
claimant with thirty-three years of coal mine employment, found that he has one
dependent for purposes of benefits augmentation, and determined that employer is
the responsible operator.  The administrative law judge found that the medical
evidence of record failed to establish either the existence of pneumoconiosis or
total respiratory disability pursuant to 20 C.F.R. §§718.202(a),
718.204(c).  Accordingly, he denied benefits.
     On appeal, claimant generally challenges the denial of benefits.  Employer
responds, urging affirmance.  The Director, Office of Workers' Compensation
Programs (the Director), has declined to participate in this appeal.[2] 
     In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. McFall v. Jewell Ridge Coal Co., 12 BLR 1-176
(1989).  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).
     To be entitled to benefits under 20 C.F.R. Part 718, claimant must demonstrate
by a preponderance of the evidence that he is totally disabled due to
pneumoconiosis arising out of coal mine employment. See 20 C.F.R.
§§718.3, 718.202, 718.203, 718.204.  Failure to establish any one of
these elements precludes entitlement. Anderson v. Valley Camp of Utah, Inc.,
12 BLR 1-111 (1989); Trent v. Director, OWCP, 11 BLR 1-26 (1987).
     Pursuant to Section 718.202(a)(1), the administrative law judge considered all
twenty-six readings of the nine x-rays that were taken for the purpose of detecting
pneumoconiosis.[3]   There were twenty-two negative
readings and four positive readings.  Director's Exhibits 13-16, 26, 27, 31, 33,
35, 39, 43-46; Employer's Exhibits 1-4.  All of the negative readings were by
physicians who are Board-certified radiologists, B-readers, or both, while one of
the positive readings was by a similarly-credentialed physician.  The
administrative law judge permissibly determined to accord weight only to the
interpretations by qualified readers.  Decision and Order at 2; see Adkins v.
Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th Cir. 1992).  In this context, the
administrative law judge considered the positive reading of the July 3, 1996 x-ray
by Board-certified radiologist and B-reader Dr. Alexander, Director's Exhibit 31
at 2, but accurately noted that the same x-ray was reread as completely negative
by three other Board-certified radiologists and B-readers.  Director's Exhibits 44
at 2, 3; 45 at 2.  Substantial evidence supports the administrative law judge's
finding that the x-ray evidence viewed in light of the readers' radiological
qualifications "fail[ed] to establish that [claimant] has pneumoconiosis." 
Decision and Order at 2; see Adkins, supra; Edmiston v. F & R Coal
Co., 14 BLR 1-65 (1990).  We therefore affirm the administrative law judge's
finding pursuant to Section 718.202(a)(1).
     Pursuant to Section 718.202(a)(2) and (3), the administrative law judge
correctly found that the record contains no biopsy evidence and that the
presumptions at Sections 718.304, 718.305, and 718.306 are inapplicable in this
living miner's claim filed after January 1, 1982, in which there is no evidence of
complicated pneumoconiosis.  Decision and Order at 2; see 20 C.F.R.
§§718.304, 718.305, 718.306.  We therefore affirm these findings.
     Pursuant to Section 718.202(a)(4),  the administrative law judge discussed the
three medical opinions of record.  Decision and Order at 3-4.  Dr. Sutherland,
whose credentials are not of record, examined and tested claimant and diagnosed
pneumoconiosis based on claimant's complaints, physical examination results, and
chest x-ray, which Dr. Sutherland read as positive.[4]   Director's Exhibit 46.  Drs. Iosif and Hippensteel examined and
tested claimant, and Dr. Hippensteel, who the administrative law judge accurately
noted is Board-certified in Internal Medicine and Pulmonary Diseases, also reviewed
the medical evidence of record.  Director's Exhibit 11; Employer's Exhibit 1.  Both
physicians concluded that pneumoconiosis was absent. Id.  Because an
administrative law judge may question the basis of a medical opinion where an x-ray
relied upon by the physician is subsequently read negative by more highly-qualified
readers, Hutchens v. Director, OWCP, 8 BLR 1-16 (1985), the administrative
law judge permissibly accorded less weight to Dr. Sutherland's diagnosis because
it was based, in part, on the physician's positive reading of the October 1, 1991
x-ray which was subsequently read negative by two Board-certified radiologists and
B-readers and by a third physician qualified as a B-reader.  Director's Exhibits
35 at 2, 3; 46 at 11, 13.  Therefore, we affirm the administrative law judge's
finding pursuant to Section 718.202(a)(4).
     Pursuant to Section 718.204(c)(1)-(3), the administrative law judge correctly
noted that all of the pulmonary function studies and blood gas studies were non-qualifying[5]  and  that the record contains no
evidence of cor pulmonale with right-sided congestive heart failure.  Director's
Exhibits 10, 12, 42, 46; Employer's Exhibit 1.  We therefore affirm these findings.
     Pursuant to Section 718.204(c)(4), the administrative law judge compared Dr.
Sutherland's opinion that claimant is "disabled to work" due to pneumoconiosis,
Director's Exhibit 46, with the opinions of Drs. Iosif and Hippensteel that
claimant retains the respiratory capacity to perform his usual coal mine employment
as a beltman.[6]   Director's Exhibit 11;
Employer's Exhibit 1.  In light of the non-qualifying objective studies, the
administrative law judge, within his discretion as fact-finder, found the opinions
of Drs. Iosif and Hippensteel to be "amply supported by the other medical evidence"
of record.  Decision and Order at 4; see Clark v. Karst-Robbins Coal Co.,
12 BLR 1-149 (1989)(en banc); Wetzel v. Director, OWCP, 8 BLR 1-139
(1985).  Therefore, we affirm the administrative law judge's finding pursuant to
Section 718.204(c)(4).
     Because claimant has failed to establish the existence of pneumoconiosis or
total respiratory disability pursuant to 20 C.F.R. §§718.202(a),
718.204(c), necessary elements of entitlement under Part 718, we affirm the denial
of benefits. See Trent, supra; 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.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1) Claimant is Rufus Keen, the miner.  Tim White, a benefits counselor with Stone Mountain
Health Services of Vansant, Virginia, requested, on behalf of claimant, that the Board review the administrative law
judge's decision, but Mr. White is not representing claimant on appeal. See Shelton v. Claude V. Keen Trucking
Co., 19 BLR 1-88 (1995)(Order).
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 2) We affirm the administrative law judge's findings regarding length of coal mine
employment, dependency, and responsible operator status as they are unchallenged on appeal and are not adverse to
claimant. 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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 3) Because claimant filed this claim for benefits more than one year after the final denial of
his previous claim, Director's Exhibits 1, 46, the administrative law judge should have first determined whether the
evidence developed since the previous denial established a material change in conditions, a threshold showing that
claimant must make to avoid a denial of his duplicate claim.  20 C.F.R. §725.309(d); Lisa Lee Mines v.
Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996), rev'g en banc, 57 F.3d 402,
19 BLR 2-223 (4th Cir. 1995).  However, because the administrative law judge considered all of the evidence on the
merits and denied benefits, his failure to make a preliminary material change in conditions finding is at best a harmless
error. See Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
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 4) In the November 19, 1991 cover letter submitted with his examination report, Dr.
Sutherland appears to suggest that he is claimant's treating physician.  Director's Exhibit 46.  However, at the hearing
claimant testified that Drs. Baker and Modi are his treating physicians.  Hearing Transcript at 11-12.
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 5) A "qualifying" objective study yields values which are equal to or less than the values
specified in the tables at 20 C.F.R. Part 718, Appendices B and C.  A "non-qualifying" study exceeds those values.
See 20 C.F.R. §718.204(c)(1), (c)(2).
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 6) Dr. Hippensteel found no "more than [a] minimal pulmonary impairment," while Dr. Iosif
assesed a "mild" ventilatory impairment.  Employer's Exhibit 1; Director's Exhibit 11.  Both concluded that claimant
is disabled by his orthopedic problems.
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