Gillespie v. Beatrice Pocahontas Coal Co.

812 F.2d 1401 Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Joe E. GILLESPIE, Petitioner, v. BEATRICE POCAHONTAS COAL COMPANY, Respondent, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Party-in-Interest.

No. 85-1016.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 14, 1986. Decided Feb. 9, 1987.

Before SPROUSE and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

Gerald F. Sharp (Browning, Morefield & Lamie, P.C., Gregory R. Herrell, Browning, Morefield and Schelin, P.C. on brief) for petitioner.

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

PER CURIAM:

1

Joe E. Gillespie appeals from the decision of the Benefits Review Board, which affirmed an administrative law judge's denial of Gillespie's claim for black lung benefits. The ALJ invoked the interim presumption of total disability pursuant to 20 C.F.R. Sec. 727.203(a)(1) because Gillespie had been employed in the coal mines for more than ten years and there was positive x-ray evidence. The ALJ concluded, however, that the employer's evidence rebutted the presumption. 20 C.F.R. Sec. 727.203(b)(2). This evidence consisted of three physicians' medical reports that included analyses of nonqualifying ventilatory and arterial blood gas studies. Gillespie contends that since the medical evidence was based in part on these nonqualifying test results it does not constitute substantial evidence. There is no merit to this contention and a review of the record discloses substantial evidence to support the ALJ's finding that the interim presumption was rebutted. The decision of the Benefits Review Board is, therefore, affirmed.

2

AFFIRMED.