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78 F3d 585 Ridener v. Director Office of Workers' Compensation Programs United States Department of Labor

78 F.3d 585

Priscilla RIDENER, Widow of Everett Ridener, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.

No. 94-4304.

United States Court of Appeals, Sixth Circuit.

March 6, 1996.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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: ENGEL, KENNEDY and SUHRHEINRICH, Circuit Judges.

ORDER

1

Petitioner Priscilla Ridener appeals from the denial of benefits sought by her husband, who is now deceased, and her own survivor's claim under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 ("Act"). The Benefits Review Board ("Board") affirmed the denial of benefits based on the Administrative Law Judge's ("ALJ") determination that Everett Ridener did not have pneumoconiosis as broadly defined by the Act ("legal pneumoconiosis").

2

Petitioner raises two issues on appeal. First, she argues that the ALJ erred by concluding that the existence of anthracotic pigmentation did not establish the existence of legal pneumoconiosis in the form of anthracosis. Second, she contends that the ALJ erred in not considering a reporting physician's diagnosis of chronic bronchitis in finding an absence of legal pneumoconiosis. Respondent, the Office of Workers' Compensation Programs, concedes that the Administrative Law Judge erred in not considering the diagnosis of chronic bronchitis.

3

Upon review of the record and the parties' briefs, we are satisfied that the ALJ did not err in concluding that the existence of anthracosis was not established. We agree with the parties, however, that the ALJ did not properly consider the diagnosis of chronic bronchitis in determining whether Ridener had legal pneumoconiosis.

4

Accordingly, we VACATE the decision of the Benefits Review Board and REMAND the case for a determination of whether Everett Ridener had legal pneumoconiosis in the form of chronic bronchitis and further proceedings not inconsistent with this order.