594 F2d 985 Neese v. A Califano

594 F.2d 985

Robert NEESE, Appellant,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education &
Welfare, Appellee.

No. 78-1186.

United States Court of Appeals,
Fourth Circuit.

Argued March 7, 1979.
Decided March 26, 1979.

Deborah Garton Gibson, Bluefield, W. Va. (Hensley, Muth & Gibson, Bluefield, W. Va., on brief), for appellant.

James S. Arnold, Asst. U. S. Atty., Charleston, W. Va. (Robert B. King, U. S. Atty., Charleston, W. Va., and Mark E. Kauffelt, Summer Law Clerk, on brief), for appellee.

Before BUTZNER and WIDENER, Circuit Judges, and ROBERT R. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

PER CURIAM:

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1

Robert Neese appeals a judgment sustaining the Secretary of Health, Education, and Welfare's denial of his claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969 as amended in 1972, 30 U.S.C. §§ 921(a), 922(a)(1). Neese contends that he was a coal miner within the meaning of 20 C.F.R. § 410.110(j) during the eleven years that he worked as a contract coal hauler for Pace Pocahontas Coal Company, thus entitling him to the presumption that his respiratory impairment arose from employment in the mines. See 30 U.S.C. § 921(c); 20 C.F.R. § 410.416.

2

We conclude, however, that substantial evidence supports the Secretary's finding that Neese was a self-employed trucker rather than an employee of Pace Pocahontas. Unlike the miner whose claim we upheld in Ball v. Matthews, 563 F.2d 1148 (4th Cir. 1977), Neese owned his own equipment and paid his own operating expenses. See Weaver v. Weinberger, 392 F.Supp. 721 (S.D.W.Va.1975). Substantial evidence also supports the finding that Neese's respiratory impairment did not arise from his work during an earlier period ending in 1926 when he was a mining employee.

3

Accordingly, the judgment of the district court is affirmed.