819 F2d 1138 Osborne v. Ranger Fuel Company

819 F.2d 1138
Unpublished Disposition

Cleatus OSBORNE, Petitioner,
Director, Office of Workers' Compensation Programs, United
States Department of Labor, Party-in-interest.

No. 86-3545.

United States Court of Appeals, Fourth Circuit.

Submitted March 31, 1987.
Decided May 21, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before WIDENER, ERVIN and CHAPMAN, Circuit Judges.

Richard G. Rundle, Rundle & Rundle, on brief, for petitioner.

Allen R. Prunty, Jackson, Kelly, Holt & O'Farrell, on brief, for respondent.


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Cleatus Osborne, a former coal miner, petitions for review of the decision of the Benefits Review Board (Board) affirming the Administrative Law Judge's (ALJ's) denial of his claim for black lung disability payments under the Federal Coal Mine Health and Safety Act of 1969 (Black Lung Act), as amended, 30 U.S.C. Secs. 901, et seq. We affirm.


A hearing was conducted before an ALJ in Beckley, West Virginia. The ALJ concluded that Osborne had invoked the interim presumption that he was totally disabled, pursuant to 20 C.F.R. Sec. 727.203(a)(1), (a)(2), and (a)(4), but that the presumption was rebutted by the employer pursuant to 20 C.F.R. Sec. 727.203(b)(2). The Board affirmed.


On appeal Osborne contends that the ALJ erred in relying on the report of Dr. Krishnan in finding rebuttal since that report was based in part on a qualifying pulmonary function study. This contention lacks merit. In concluding that the presumption was rebutted the ALJ was required to, and did, consider all of the relevant medical evidence before him. Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir.1986) (en banc), cert. granted, 55 U.S.L.W. 3472 (Jan. 12, 1987).


The claimant also contends that the weight of the evidence does not support the ALJ's finding of rebuttal. After considering all the evidence, the ALJ found rebuttal based on the reports of three physicians. These reports support the ALJ's determination that Osborne has no pulmonary disability to prevent him from performing his usual coal mine employment or comparable gainful work.


We find that the decision of the Board affirming the ALJ is supported by substantial evidence and is in accordance with the law. 33 U.S.C. Sec. 921(b)(3). See Zbosnick v. Badger Coal Co., 759 F.2d 1187, 1189-90 (4th Cir.1985). Because the dispositive issues have recently been decided authoritatively, we dispense with oral argument. The decision of the Benefits Review Board is affirmed.