Unpublished Dispositionfay Shackleford, Widow of Preston Shackleford, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 883 F.2d 76 (6th Cir. 1989)

ORDER

Fay Shackleford seeks review of a decision and order of the Benefits Review Board which denied her claims for black lung disability and survivor's benefits. She now moves for leave to proceed in forma pauperis and for the appointment of counsel. Respondent has conceded that the denial of benefits was in error and therefore moves to remand the case for an award of benefits. Upon review of the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1972, petitioner's spouse, Preston Shackleford, filed an application for black lung benefits pursuant to 30 U.S.C. § 901 et seq. After his death in 1978, petitioner undertook the prosecution of that claim which she supplemented by requesting an additional award of survivor's benefits. Both claims were eventually the subject of a hearing before an administrative law judge who initially determined that Fay Shackleford had submitted sufficient evidence to give rise to the operation of the interim presumption of disability and death due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a) (4). The administrative law judge, however, further concluded that the presumption had been successfully rebutted under 20 C.F.R. Sec. 727.203(b) (3) due to the presence of medical evidence that Preston Shackleford's disability and death had in fact been caused by colon cancer. Accordingly, the administrative law judge ordered that the application for benefits be denied. Upon the affirmance of that decision by the Benefits Review Board, Fay Shackleford sought further review by this court.

Upon review of the record, particularly the medical evidence, the court concludes that respondent did err in its reliance upon 20 C.F.R. Sec. 727.203(b) (3) as the basis of its denial of Fay Shackleford's application for benefits. See Tennessee Consolidated Coal Co. v. Crisp, 866 F.2d 179, 184-85 (6th Cir. 1989); Ramey v. Kentland Elkhorn Coal Co., 755 F.2d 485, 491-92 (6th Cir. 1985).

Accordingly, the motions for leave to proceed in forma pauperis and to remand are hereby granted. The decision and order of the Benefits Review Board is hereby vacated and the case remanded for an award of benefits. Rule 9(b) (6), Rules of the Sixth Circuit. The motion for appointment of counsel is hereby denied as moot.