BRB No. 95-2068 BLA
                                         

JESSIE SUMPTER
     (Widow of EUGENE SUMPTER)

          Claimant-Petitioner

     v.

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

          Respondent)
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DATE
ISSUED:09/13/1996   
 




DECISION and ORDER
     Appeal of the Decision and Order on Remand of Daniel J. Roketenetz,
     Administrative Law Judge, United States Department of Labor.

     Edgar Jerome Dew (Goodman, Eden, Millender & Bedrosian), Detroit,
     Michigan, for claimant.

     Dorothy L. Page (J. Davitt McAteer, Acting 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, the United States
     Department of Labor.

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


     PER CURIAM:

     Claimant[1]  appeals the Decision and Order
on Remand (93-BLA-1008) of Administrative Law Judge Daniel J. Roketenetz 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).  This case is before the Board for the second time.  Initially,
the administrative law judge accepted the parties' stipulation to sixteen years of
coal mine employment, found that the evidence failed to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a), and concluded that therefore, death due to pneumoconiosis could not be established pursuant to
Section 718.205(c).[2]   Accordingly, he denied
benefits.

     On appeal, the Board vacated the administrative law judge's finding pursuant
to Section 718.202(a)(4) and remanded the case for him to reconsider the reports
of the miner's treating physician, determine whether an additional physician
diagnosed pneumoconiosis, and make a specific finding regarding the length of the
miner's smoking history, inasmuch as the administrative law judge weighed the
medical opinions with reference to the miner's smoking habit.[3]   Sumpter v. Director, OWCP, BRB No. 94-2353 BLA (Feb. 13, 1995)(unpub.).

     On remand, the administrative law judge considered the evidence as instructed
and found that the miner had smoked "at the very least" one-half of a package of
cigarettes a day for forty years.  Decision and Order on Remand at 3.  The
administrative law judge found that "in light of . . . the miner's substantial
smoking history," the opinions of Dr. Batmanghelichi, the miner's treating
physician, and that of Dr. Villamin, were not "well-reasoned or documented" because
they failed to explain how they considered the miner's smoking history in reaching
their diagnoses of pneumoconiosis.  Decision and Order on Remand at 4.

     The administrative law judge also found that because Dr. Long "continually
stated throughout her report that the miner did not suffer from pneumoconiosis,"
her unexplained inconsistency of checking "YES" in response to the question of
whether the miner's pneumoconiosis arose out of coal mine employment did not
establish the existence of pneumoconiosis.  Decision and Order on Remand at 4. 
Accordingly, the administrative law judge found that pneumoconiosis was not
established pursuant to Section 718.202(a)(4) and that therefore, entitlement
pursuant to Section 718.205(c) was not established.

     On appeal, claimant challenges the administrative law judge's weighing of the
evidence pursuant to Section 718.202(a)(4).  The Director, Office of Workers'
Compensation Programs (the Director), responds, urging affirmance.

     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).

     Claimant contends that the administrative law judge "arbitrarily" determined
the length of the miner's smoking history.  Claimant's Brief at 4-5.  We reject
claimant's contention.  The administrative law judge considered all the relevant
evidence and found that, although the reports of the miner's smoking history varied
in length, the best-documented reports established that the miner smoked at least
one-half of a package of cigarettes a day for forty years.  Substantial evidence
supports the administrative law judge's finding, which we therefore affirm. 
Director's Exhibit 10 at 47, 57.

     Claimant asserts that the administrative law judge erred by discrediting the
opinions of Drs. Batmanghelichi and Villamin based on their consideration of an
inaccurate smoking history.  Claimant's Brief at 8.  Contrary to claimant's
contention, the administrative law judge permissibly accorded diminished weight to
their reports because Dr. Villamin mistakenly believed that the miner had quit
smoking fifteen years before his 1974 examination and failed to offer objective
evidence in support of his diagnosis, see Trujillo v. Kaiser Steel Corp.,
8 BLR 1-472 (1986), while Dr. Batmanghelichi did not explain how she considered the
miner's forty-year smoking history in reaching her diagnosis.  Director's Exhibits
8, 15, 21, 22 at 15-16; see Clark v. Karst-Robbins Coal Co., 12 BLR 1-149
(1989)(en banc).  Therefore, we reject claimant's contention.

     We also reject claimant's related argument that the administrative law judge
should have found the smoking histories taken by Drs. Thompson-Cardwell and Bouier
unreliable because they treated the miner only briefly and the miner was in the
"throes of death" when Dr. Bouier took his smoking history.  Claimant's Brief at
6.  Contrary to claimant's contention, the administrative law judge permissibly
found the hospitalization records prepared by Drs. Thompson-Cardwell and Bouier to
be "well-documented," see Clark; supra, as well as the most recent
and "credible evidence on the issue of the miner's smoking history."  Decision and
Order on Remand at 3; see Thorn v. Itmann Coal Co., 3 F.3d 713, 18 BLR 2-16
(4th Cir. 1993).  Moreover, the record supports the administrative law judge's
consideration of the smoking history taken by Dr. Bouier,[4]  who indicated that on admission to the hospital, the miner was "alert,
cooperative, and oriented."  Director's Exhibit 7.

     Claimant next asserts that the administrative law judge failed to apply the
definition of pneumoconiosis at Section 718.201, which claimant contends
necessarily encompasses the miner's diagnosed chronic obstructive pulmonary
disease.  Claimant's Brief at 8.  Contrary to claimant's contention, the
administrative law judge applied Section 718.201 to the medical opinions.  Except
for the diagnoses by Drs. Batmanghelichi and Villamin, to which the administrative
law judge permissibly accorded diminished weight, see discussion,
supra, the administrative law judge correctly found that none of the
diagnoses of chronic obstructive pulmonary disease, asthma, or emphysema in the
record was linked to the miner's coal dust exposure.  Director's Exhibits 7, 10,
14, 18, 22; [1994] Decision and Order at 4; Decision and Order on Remand at 4; 20
C.F.R. §718.201.  Therefore, we reject claimant's contention.

     Claimant contends that the administrative law judge should not have credited
the opinions of Drs. Thompson-Cardwell and Bouier because neither physician
addressed the existence of pneumoconiosis.  Claimant's Brief at 5.  These
physicians, who were aware of the miner's coal mine employment history, diagnosed
and treated a variety of lung ailments yet did not link any of these impairments
to his coal dust exposure.  Director's Exhibits 5, 7, 10.  Claimant bears the
burden of proof, see Director, OWCP v. Greenwich Collieries [Ondecko],  
U.S.   , 114 S.Ct. 2251, 18 BLR 2A-1 (1994), aff'g sub nom. Greenwich Collieries
v. Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993), and thus the risk
of non-persuasion if a medical opinion is found insufficient to establish an
element of entitlement.  See Oggero v. Director, OWCP, 7 BLR 1-860, 1-865
(1985).  Therefore, we reject claimant's contention and affirm the administrative
law judge's finding that the evidence failed to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(4).

     Because claimant has failed to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a), a necessary element of entitlement under
Part 718, we affirm the denial of benefits.  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 on Remand
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 is Jessie Sumpter, widow of Eugene Sumpter, the
miner, who died on January 25, 1989.  Director's Exhibit 5.  Mrs. Sumpter filed her
survivor's claim on April 17, 1991.  Director's Exhibit 1.
 Back to Text

 2) Where the existence of pneumoconiosis is at issue, before a
finding of death due to pneumoconiosis can be made, the existence of pneumoconiosis
must be established under any of the methods available at Section 718.202(a)(1)-(4).  Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993).
 Back to Text

 3) The Board affirmed as unchallenged on appeal the
administrative law judge's findings regarding length of coal mine employment and
pursuant to 20 C.F.R. §718.202(a)(1)-(3).  Sumpter, slip op. at 2
n.2.
 Back to Text

 4) Dr. Bouier recorded a cigarette smoking history of one pack
per day for sixty-two years.  Director's Exhibit 7.  The administrative law judge
ultimately credited Dr. Thompson-Cardwell's report of a forty-year smoking history. 
See discussion, supra.
 Back to Text

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