Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.marion O. Swartz, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 956 F.2d 272 (7th Cir. 1992)

ORDER

Marion O. Swartz appeals the decision of the Labor Benefits Review Board (Board) affirming the decision of an administrative law judge (ALJ) denying benefits under the Black Lung Benefits Act, 30 U.S.C. § 901, et seq. In an earlier appeal, Swartz v. Director, OWCP, No. 88-1542 (7th Cir. July 26, 1989), we vacated the Board's order and remanded with instructions to consider Swartz's claim in light of the United States Supreme Court's decision in Pittson Coal Group v. Sebben, 109 S. Ct. 414 (1988). In the present appeal, Swartz claims that the Board failed to comply with our earlier order. In the alternative, Swartz asks us to review the merits of his claim for benefits.

Swartz applied for Black Lung Benefits in December, 1973.¹  A hearing was held before an ALJ in March, 1984. In November, 1984 the ALJ denied Swartz's request for benefits. The ALJ found that Swartz worked only for nine years and five months and, therefore, was not entitled to a presumption of total disability under the DOL interim regulations, 20 C.F.R. § 727.203. The ALJ further stated that Swartz failed to submit x-ray, biopsy or autopsy evidence establishing the existence of pneumoconiosis. The ALJ then reached the merits of Swartz's claim. The ALJ found that Swartz suffered from a totally disabling respiratory disease, but that the disease did not arise out of coal mine employment. Swartz appealed the ALJ's decision to the Benefits Review Board which affirmed the ALJ's determination.

In the earlier appeal, docketed as No. 88-1542, we vacated the Board's decision in accordance with the United States Supreme Court's decision in Sebben. In Sebben, the Court held that the refusal to allow miners with less than ten years of coal mine employment the benefit of the old HEW presumption of disability, 20 C.F.R. § 410.490, violated § 902(f) (2) of the Black Lung Benefits Act.²  Under the HEW regulations, a miner with less than ten years of employment in the mines could still be entitled to a rebuttable presumption of total disability, whereas under the DOL interim regulations no such presumption was available to miner's with less than the requisite ten years of coal mine employment. Because the ALJ in this case applied only the DOL interim regulations under § 727.203, we vacated the Board's affirmance of the ALJ's decision and remanded for a determination of whether Mr. Swartz could prove entitlement to the § 410.490 presumption.³ 

On remand, the Board again upheld the ALJ's denial of benefits, stating:

Pursuant to the Court's Order, we have considered this case pursuant to 20 C.F.R. § 410.490 in light of Sebben, supra. We hold that claimant's entitlement to benefits pursuant to Section 410.490 is precluded based on the Court's holding that the administrative law judge's factual determination that claimant had less than ten years' [sic] coal mining employment is supported by substantial evidence, and not irrational or contrary to law and as there is no x-ray, biopsy, or autopsy evidence of record which establishes the existence of pneumoconiosis. See 20 C.F.R. § 410.490(b) (1) (i), (ii); ... We, therefore, reaffirm the administrative law judge's Decision and Order denying benefits.

Swartz argues on appeal that our earlier order required a remand to the ALJ. He contends that the Board impermissibly made findings of fact, a function which is beyond the Board's statutorily created scope of powers. Our order did not require a remand to the ALJ, nor did the Board make findings of fact. Because the ALJ found that Swartz could not establish entitlement to the § 727.203 presumption, he made additional factual findings and denied the claim on its merits. The ALJ's order stated that Swartz failed to produce any x-rays, biopsy or autopsy reports which establish the existence of pneumoconiosis. In addition, the ALJ found that Swartz suffered from a disabling disease, but the claimant failed to prove that his respiratory ailments "arose out of coal mine employment."

In order to establish entitlement to the § 410.190 presumption, Swartz was required to provide the specified medical evidence and to prove causation (coal mine employment). The ALJ already found these facts adversely to Swartz. The Board, in reaffirming the ALJ's order did no more than find that the ALJ's earlier decision, as a matter of law, precluded entitlement to a presumption under § 410.490. The Board did not exceed the scope of its authority.

Swartz also asks us to review the merits of the denial of benefits, arguing that he has established that he has a respiratory impairment arising from coal mine employment which entitles him to Black Lung Benefits.⁵  "A miner must establish three elements to make out a successful claim for black lung benefits: (a) total disability, (b) that was caused at least in part by pneumoconiosis and (c) that arose out of coal mine employment. 30 U.S.C. § 901(a)." Patrich v. Old Ben Coal Co., 926 F.2d 1482, 1485 (7th Cir. 1991) (citing Mullins Coal Co. v. Director, OWCP, 484 U.S. 141 (1987)). We will uphold an ALJ's denial of benefits if the decision "is rational, is supported by substantial evidence, and is consistent with the law." Shelton v. Old Ben Coal Co., 933 F.2d 504, 506 (7th Cir. 1991).

In its order denying benefits, the ALJ found that Swartz suffered from a totally disabling chronic respiratory impairment. However, the ALJ held that Swartz failed to establish that his respiratory problems arose out of coal mine employment. See 20 C.F.R. §§ 410.416(b), 718.203(a) and (c). The ALJ noted that on one occasion, Swartz's personal physician, Dr. Syed Ali, opined that Swartz's impairment was related to his coal dust exposure.⁶  However, the ALJ credited the report of the Department's medical expert, Dr. Sarah Long, who reviewed the claimant's most recent and "most thorough diagnostic workup" from an eleven day hospital stay in 1984. Dr. Long concluded that Swartz's impairments "were not due to coal worker's pneumoconiosis."

" [W]eighing conflicting medical evidence is precisely the function of the ALJ as fact-finder." Poole v. Freeman United Coal Min. Co., 897 F.2d 888, 895 (7th Cir. 1990). The ALJ noted that only one of the many physicians who examined Swartz concluded that his respiratory ailments were caused by his coal mine employment.⁷  Although the ALJ did not analyze all of the evidence which contradicted Dr. Ali's report, he did specifically rely on Dr. Long's report which concluded that Swartz's impairment did not arise from coal mine employment.⁸  The ALJ was entitled to give greater weight to Dr. Long's report. Thus, substantial evidence supports the ALJ's conclusion that Swartz failed to demonstrate the presence of pneumoconiosis arising from coal mine employment. The decision of the ALJ is

AFFIRMED.