BRB No. 99-0644 BLA

GARY LEE SAYLOR                      )  
                                     )
          Claimant-Petitioner             )
                                     )
     v.                              )
                                                  )
                         McGRAW EDISON COMPANY           )
                                     ) DATE ISSUED:03/20/2000             
   
          Employer-Respondent        )       
                                     )
DIRECTOR, OFFICE OF WORKERS'        )
COMPENSATION PROGRAMS, UNITED  )
STATES DEPARTMENT OF LABOR           )
                                     )
          Party-in-Interest               )    DECISION and ORDER

          Appeal of the Decision and Order of Joseph E. Kane, Administrative Law
     Judge, United States Department of Labor.

          Edmond Collett, Hyden, Kentucky, for claimant.

          Carl J. Smith (Richman & Smith), Washington, Pennsylvania, for employer. 
     
  
          Rita Roppolo (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
     Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
     Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
     Litigation and Legal Advice), Washington, D.C., for the Director, Office
     of Workers' Compensation Programs, United States Department of Labor.

          Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN, 
     Administrative Appeals Judges. 

     PER CURIAM:

     Claimant appeals the Decision and Order (98-BLA-0535) of Administrative Law
Judge Joseph E. Kane denying benefits on a claim filed pursuant to the provisions
of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30
U.S.C. §901 et seq. (the Act).  The administrative law judge
initially found that claimant was not a coal miner and that employer was not an
operator as those terms are defined under the Act.  The administrative law judge,
nevertheless, considered the merits of the claim.  The administrative law judge
found that the evidence was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4).  The administrative
law judge also found the evidence insufficient to establish total disability
pursuant to 20 C.F.R. §718.204(c)(1)-(4).  Accordingly, the administrative law
judge denied benefits.  On appeal, claimant contends that the administrative law
judge erred in finding that he was not a miner within the meaning of the Act. 
Claimant also challenges the administrative law judge's findings pursuant to 20
C.F.R. §§718.202(a)(4) and 718.204(c)(1) and (c)(4).  Claimant also
contends that the Department of Labor failed to provide him with a complete
pulmonary evaluation.  Employer and the Director, Office of Workers' Compensation
Programs, respond in support of the administrative law judge's denial of
benefits.[1]   

     The Board must affirm the findings of the administrative law judge if they are
supported by substantial evidence, are rational, and are in accordance with
applicable law.  33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).

     Claimant contends that the administrative law judge erred in finding the
medical opinion evidence insufficient to establish the existence of pneumoconiosis
pursuant to 20 C.F.R. §718.202(a)(4).  We disagree.  The administrative law
judge acted within his discretion in finding that Dr. Baker's opinion was too
equivocal to support a finding of pneumoconiosis.[2]   See Justice v. Island Creek Coal Co., 11 BLR 1-91
(1988); Campbell v. Director, OWCP, 11 BLR 1-16 (1987); Decision and Order
at 10; Director's Exhibit 13.  The administrative law judge also properly noted
that Dr. Fino, the only other physician to address the issue, found that claimant
did not suffer from pneumoconiosis. Decision and Order at 10; Director's Exhibit
29; Employer's Exhibit A.  Inasmuch as it is supported by substantial evidence, the
administrative law judge's finding that the medical opinion evidence is
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(4) is affirmed.

     In light of our affirmance of the administrative law judge's finding that claimant failed to establish the existence
of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4), an essential element of entitlement, we affirm the
administrative law judge's denial of benefits under 20 C.F.R. Part 718.[3] 
 See Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee v. W. G. Moore and Sons, 9 BLR
1-4 (1986) (en banc); Perry v. Director, OWCP, 9 BLR 1-1 (1986) (en banc).

     We finally hold that the Department of Labor provided claimant with a
complete, credible pulmonary evaluation, sufficient to constitute an opportunity
to substantiate the claim, as required by the Act.  30 U.S.C. §923(b); 20
C.F.R. §§718.101, 718.401, 725.405(b); see Newman v. Director,
OWCP, 745 F.2d 1162, 7 BLR 2-25 (8th Cir. 1984); Pettry v. Director,
OWCP, 14 BLR 1-98 (1990) (en banc).  The Department of Labor
provided claimant with two opportunities to undergo pulmonary function testing. 
Although claimant provided suboptimal effort during the administration of these
studies, see Director's Exhibits 11, 12, the Department of Labor satisfied
its obligation of providing claimant with an opportunity to substantiate his claim.

     Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.

     SO ORDERED.


                                                                           
                                BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                           
                                ROY P. SMITH                       
               Administrative Appeals Judge




                                                                           
                                JAMES F. BROWN                     
          Administrative Appeals Judge


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Footnotes.
 1)Inasmuch as no party challenges the administrative law judge's
findings pursuant to 20 C.F.R. §§718.202(a)(1), (a)(2) and (a)(3), these
findings are affirmed. See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983). 
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 2)In a report dated April 28, 1997, Dr. Baker diagnosed possible
chronic obstructive pulmonary disease and chronic bronchitis.  Director's Exhibit
13.  Dr. Baker indicated that these conditions were questionably related to
claimant's coal dust exposure. Id.  However, on a questionnaire of the same
date (April 28, 1997), Dr. Baker indicated that claimant did not suffer from an
occupational lung disease caused by his coal mine employment. Id. 
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 3)In light of our affirmance of the administrative law judge's
findings pursuant to 20 C.F.R. §718.202(a)(1)-(4), we need not address the
administrative law judge's findings regarding claimant's status as a miner or his
findings that the evidence was insufficient to establish total disability pursuant
to 20 C.F.R. §718.204(c)(1)-(4). See Larioni v. Director, OWCP,
6 BLR 1-1276 (1984).
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