Unpublished Dispositionbonnie B. Kingsland, Widow of Carl P. Kingsland, Petitioner, v. Benefits Review Board, Director of Office of Workers'compensation Programs, Department of Labor, Respondents, 755 F.2d 932 (6th Cir. 1985)

Petitioner seeks review of a decision of the Benefits Review Board denying her claim for survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. She has moved to proceed in forma pauperis on appeal. The case has been referred to the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and petitioner's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner is the widow of Carl P. Kingsland, who applied for black lung benefits on April 27, 1979. Subsequently, Mr. Kingsland died and petitioner filed a survivor's claim which in effect superseded her husband's claim. Upon consideration of petitioner's testimony and the documentary evidence of record, an administrative law judge (ALJ) concluded that petitioner was not entitled to benefits. The ALJ found that Mr. Kingsland had engaged in coal mine employment for less than ten years and was not entitled to the interim presumption set forth in 20 C.F.R. Sec. 727.203(a). The ALJ then evaluated the claim pursuant to 20 C.F.R. Part 410 and determined that petitioner had established that Mr. Kingsland had suffered from pneumoconiosis and a totally disabling cardiopulmonary condition. The ALJ concluded, however, that petitioner had failed to establish that pneumoconiosis was the primary reason for Mr. Kingsland's total disability and that pneumoconiosis arose out of coal mine employment.

Upon consideration of the entire record, including the medical evidence and other evidence presented, the Court concludes that the decision of the ALJ and the Benefits Review Board are supported by substantial evidence. See Moore v. Califano, 633 F.2d 727 (6th ir. 1980). See also Gastineau v. Mathews, 577 F.2d 356, 358-59 (6th Cir. 1978) and cases cited therein (chronic respiratory impairment must appear to be primary cause of claimant's disability).

Therefore, it is ORDERED that petitioner's motion to proceed in forma pauperis is granted. It is further ORDERED that the decision of the Benefits Review Board be and it hereby is affirmed.