BRB No. 99-0661 BLA

ESTEL H. COLLINS                   )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
                                   BETHENERGY MINES, INCORPORATED     )    DATE ISSUED:03/24/2000            
                                       
                         )
          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 Robert L. Hillyard, Administrative
     Law Judge, United States Department of Labor.

          Estel H. Collins, Ermine, Kentucky, pro se.

     Natalie D. Brown (Jackson & Kelly, PLLC), Lexington, Kentucky, for employer.

          Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.   

          PER CURIAM:

     Claimant, without the assistance of counsel[1]
, appeals the Decision and Order (98-BLA-0527) of Administrative Law Judge Robert
L. Hillyard 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 found twenty-two
years and five months of qualifying coal mine employment and, based on the date of
filing, adjudicated the claim pursuant to 20 C.F.R. Part 718.[2]   Decision and Order at 5, 17.  The administrative
law judge concluded that the evidence of record was insufficient to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) or total
disability pursuant to 20 C.F.R. §718.204(c).  Decision and Order at 18-23. 
Accordingly, benefits were denied.  On appeal, claimant generally contends that the
evidence is sufficient to establish entitlement to benefits.  Employer responds,
urging affirmance of the denial of benefits.  The Director, Office of Workers'
Compensation Programs, has filed a letter indicating that he will not participate
in this appeal.

     In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR 1-176
(1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986).  We must affirm the
administrative law judge's findings of fact and conclusions of law if they are
rational, supported by substantial evidence, and consistent with applicable law. 
33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must establish that he suffers from
pneumoconiosis; that the pneumoconiosis arose out of coal mine employment; and that
the pneumoconiosis is totally disabling. See 20 C.F.R. §§718.3,
718.202, 718.203, 718.204.  Failure to establish any of these elements precludes
entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v.
Director, OWCP, 9 BLR 1-1 (1986)(en banc).

     After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal and the evidence of record, we conclude that the
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error therein.  The administrative law judge, in the
instant case, permissibly determined that the evidence of record was insufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a). Piccin v. Director, OWCP, 6 BLR 1-616 (1983).  The
administrative law judge rationally concluded that the x-ray evidence of record was
insufficient to establish the existence of pneumoconiosis at Section 718.202(a)(1)
as the preponderance of x-ray readings by physicians with superior qualifications
was negative.  Director's Exhibits 13, 15, 17, 18, 32-34, 42, 52-55, 57, 63, 64;
Employer's Exhibits 1-4, 8, 11; Claimant's Exhibits 1, 2; Decision and Order at 18;
Staton v. Norfolk & Western Railroad Co., 65 F.3d 55, 19 BLR 2-271 (6th Cir.
1995); Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir.
1993); Worhach v. Director, OWCP, 17 BLR 1-105 (1993); Edmiston v. F &
R Coal Co., 14 BLR 1-65 (1990); Clark v. Karst-Robbins Coal Co., 12 BLR
1-149 (1988)(en banc); Trent, supra; Roberts v. Bethlehem Mines
Corp., 8 BLR 1-211 (1985).  We, therefore, affirm the administrative law judge's finding that the x-ray
evidence was insufficient to establish the existence of pneumoconiosis pursuant to Section 718.202(a)(1) as it
is supported by substantial evidence.

     Further, we affirm the administrative law judge's finding that the evidence
is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(2) since the record does not contain any biopsy results
demonstrating the presence of pneumoconiosis. Decision and Order at 18. 
Additionally, we affirm the administrative law judge's finding that the evidence
of record is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(3) since none of the presumptions set forth therein are applicable
to the instant claim.[3]   See 20 C.F.R.
§§718.304, 718.305, 718.306; Langerud v. Director, OWCP, 9 BLR 1-101
(1986); Decision and Order at 18. 

     With respect to 20 C.F.R. §718.202(a)(4), the administrative law judge
properly considered the entirety of the medical opinion evidence of  record and
rationally concluded that the preponderance of the evidence did not establish the
existence of pneumoconiosis. Perry, supra; Piccin, supra; Decision
and Order at 20.  The administrative law judge  permissibly accorded greater weight
to the opinions of Drs. Fino, Dahhan, Broudy, Wicker, Powell, Hippensteel and
Iosif, who stated that claimant did not have pneumoconiosis or any other
occupationally acquired pulmonary condition, than to the contrary opinion of Dr.
Sundaram, in light of the superior qualifications of Drs. Fino, Dahhan, Broudy,
Wicker, Powell, Hippensteel and Iosif and as their opinions are well supported and
well reasoned. Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190 (1989);
Clark, supra; Dillon v. Peabody Coal Co., 11 BLR 1-113 (1988);
Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Perry, supra;
King v. Consolidation Coal Co., 8 BLR 1-262 (1985); Wetzel v. Director,
OWCP, 8 BLR 1-139 (1985); Kuchwara v. Director, OWCP, 7 BLR 1-167
(1984); Decision and Order at 19-20; Director's Exhibits 11, 12, 33, 34, 39, 45,
51, 52; Employer's Exhibits 3, 5-7, 9, 10; Claimant's Exhibits 1, 2.  Although the
record indicates that Dr. Sundaram is claimant's treating physician, the administrative law judge has provided
valid reasons for finding his opinion entitled to less weight. See Tussey v. Island Creek Coal Co.,
982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993); Wetzel, supra; Decision and Order at 19-20.  The
administrative law judge is empowered to weigh the medical opinion evidence of
record and to draw his own inferences therefrom, see Maypray v. Island Creek
Coal Co., 7 BLR 1-683 (1985), and the Board may not reweigh the evidence or
substitute its own inferences on appeal. See Clark, supra;  Anderson v.
Valley Camp of Utah, 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988). Furthermore, since the determination of whether claimant had
pneumoconiosis is primarily a medical determination, claimant's testimony alone, under the circumstances of
this case, could not alter the administrative law judge's finding. 20 C.F.R. §718.202(a)(4);
Anderson, supra.  Consequently, we affirm the administrative law
judge's finding that the evidence of record is insufficient to establish the
existence of pneumoconiosis pursuant to Section 718.202(a) as it is supported by
substantial evidence and is in accordance with law.[4]    

     Inasmuch as claimant has failed to establish the existence of pneumoconiosis,
a requisite element of entitlement pursuant to 20 C.F.R. Part 718, entitlement
thereunder is precluded. Trent, supra; Perry, supra.

     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



                                                                   
                         MALCOLM  D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)Susie Davis, a benefits counselor with the Kentucky Black Lung
Association in Pikeville, Kentucky, requested, on behalf of claimant, that the
Board review the administrative law judge's decision.  The Board acknowledged the
instant appeal on March 30, 1999, stating that the case would be reviewed under the
general standard of review.
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 2)
     Claimant filed his claim for benefits on April 21, 1995.  Director's Exhibit
1.
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 3)The presumption at 20 C.F.R. §718.304 is inapplicable
because there is no  evidence of complicated pneumoconiosis in the record. 
Claimant is not entitled to the presumption at 20 C.F.R. §718.305 because he
filed his claim after January 1, 1982. See 20 C.F.R. §718.305(e);
Director's Exhibit 1.  Lastly, this claim is not a survivor's claim; therefore, the
presumption at 20 C.F.R. §718.306 is also inapplicable.

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 4)As the administrative law judge's finding that claimant failed
to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)
is affirmed, we need not address the administrative law judge's findings at 20
C.F.R. §718.204(c). See Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en
banc).
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