Onis Varney v. Benefits Review Board of the United States Department of Labor, Director, Office of Workers' Compensation Programs , 815 F.2d 706 ( 1987 )

815 F.2d 706

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Onis VARNEY, Petitioner,
v.
BENEFITS REVIEW BOARD of the UNITED STATES DEPARTMENT OF
LABOR, Director, Office of Workers' Compensation
Programs, Respondents.

No. 85-4072.

United States Court of Appeals, Sixth Circuit.

March 10, 1987.

Before LIVELY, Chief Judge, RYAN, Circuit Judge; and JOINER, District Judge.*

PER CURIAM.

1

The petitioner, Onis Varney, seeks review of a decision of the Benefits Review Board affirming the decision of an administrative law judge denying black lung benefits. Although the parties argued at length that the ALJ applied the wrong regulations in finding that the petitioner was not disabled as a result of employment in coal mines, this court concludes that the petitioner simply failed to make a prima facie case of disability under the statute based either upon a presumption or a showing of "true pneumoconiosis."

2

The administrative law judge acted within his discretion in rejecting the report of Dr. Hessel since the conclusion stated by the physician seemed to be contradicted by negative physical findings. With this evidence excluded, the only evidence of pneumoconiosis consisted of one X-ray reading that was positive, taken after several earlier negative X-ray readings. This court stated in Back v. Director, 796 F.2d 169, 172, (6th Cir.1986), "The existence of an earlier negative X-ray provides a basis for the Secretary to hold that later positive ones do not establish the existence of pneumoconiosis as a matter of law, and permits the Secretary to require that positive X-rays be re-read serially."

3

Upon consideration of the entire record on appeal together with the briefs and oral arguments of counsel this court concludes that the decision of the Benefits Review Board is supported by substantial evidence and that the Board did not err in holding that petitioner is not entitled to benefits.

*

The Honorable Charles Joiner, Senior Judge, United States District Court for the Eastern District of Michigan, sitting by designation