Daniel COTTONGIM, Petitioner,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
United States Court of Appeals, Sixth Circuit.
Dec. 5, 1995.
72 F.3d 129
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before: BOGGS and DAUGHTREY, Circuit Judges; and MATIA, District Judge.*
Petitioner, Daniel Cottongim, pro se, seeks review of a Benefits Review Board Decision affirming the denial of benefits under the Black Lung Benefits Act. 30 U.S.C. Secs. 901-945. The Director, Office of Workers' Compensation Programs, now moves this court to remand the claim for reconsideration of evidence relative to the issue of whether Cottongim is totally disabled due to his pneumoconiosis.
The Director now concedes that Cottongim suffers from pneumoconiosis and that the disease arose from his past coal mining employment. 20 C.F.R. Secs. 718.202 and 718.203(c). However, to be entitled to benefits, Cottongim must still establish that he is totally disabled due to his pneumoconiosis pursuant to Part 718 of the regulations. Adams v. Director, OWCP, 886 F.2d 818, 820 (6th Cir.1989). Because the issue of total disability was not considered by the ALJ at the administrative level, the Director now moves this court to remand the case to the ALJ for further review of the medical evidence and a determination on this issue. See Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir.1983) (when an ALJ does not make the necessary findings, the Board should remand the case to the ALJ rather than attempting to fill in omissions in the ALJ's decision).
Upon consideration of the Director's motion, this court concludes that the motion to remand has merit. Therefore, the decision of the Benefits Review Board is vacated, and the action is remanded to the ALJ for further consideration of the medical evidence in accordance with this order. Rule 8(b), Rules of the Sixth Circuit.
The Honorable Paul R. Matia, United States District Judge for the Northern District of Ohio, sitting by designation