Calvary C. Totten, Petitioner, v. the Carbon Fuel Company; and Director, Office of Workers'compensation Programs, United States Department Oflabor, Respondents, 804 F.2d 678 (4th Cir. 1986)

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US Court of Appeals for the Fourth Circuit - 804 F.2d 678 (4th Cir. 1986) Submitted Sept. 29, 1986. Decided Oct. 28, 1986

Roger D. Forman, Nancy Matthews, West Virginia University College of Law, on brief, for petitioner.

J. Randolph Query, Jackson, Kelly, Holt & O'Farrell, on brief, for appellee.



Before RUSSELL, SPROUSE and CHAPMAN, Circuit Judges.


Calvary C. Totten, a 75 year old coal miner, petitions for review of an order of the Benefits Review Board [BRB, or "the Board"] affirming an administrative law judge's [ALJ] decision and order denying his claim for black lung disability benefits. Totten sought benefits under the federal Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. We affirm.

The ALJ found that Totten had established the interim presumption of total disability under 20 C.F.R. Sec. 727.203(a) (1),1  but held that the presumption was rebutted under 20 C.F.R. Sec. 727.203(b) (2).2  Accordingly, the ALJ concluded that Totten was not entitled to benefits.

The sole issue before this Court is Totten's argument that the ALJ's reliance on nonqualifying test reports and studies in arriving at his findings and conclusions was contrary to the law of this Circuit, under Hampton v. United States Department of Labor, Benefits Review Board, 678 F.2d 506 (4th Cir. 1982), and Whicker v. United States Department of Labor, Benefits Review Board, 733 F.2d 346 (4th Cir. 1984), and that the BRB erred in affirming the ALJ's use of such data. These studies, which are "nonqualifying" in the sense that their results produced clinical values which are above the values specified in the tables appearing at 20 C.F.R. Secs. 727.203(a) (2) and (a) (3), were interpreted by four examining physicians as showing that Totten suffered no significant respiratory or pulmonary impairment.

The ALJ considered all the evidence pertaining to Totten's claim of disability due to pneumoconiosis, including a finding of 15% work capacity impairment made by the West Virginia Occupational Board, and concluded that Totten had not been shown to be totally disabled and that he was not, therefore, eligible for black lung benefits.

This same issue was recently addressed by this Court's en banc decision in Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986).3  In Stapleton we expressly overruled Whicker and Hampton, holding that all medical evidence, including nonqualifying test results, must be considered in determining whether the interim presumption has been rebutted. 785 F.2d at 427.

Despite being given the opportunity so to do, Totten has made no attempt to argue that his appeal has any validity after Stapleton. Upon consideration of the record and briefs, we believe that such an effort would be futile in any event. We also conclude that the facts and legal arguments are adequately presented in the briefs and the record and that the decisional process would not be significantly aided by oral argument; additionally, the dispositive issue has been recently decided authoritatively. Accordingly, we dispense with oral argument pursuant to Rule 34(a), FRAP, and Local Rule 34(a), and we affirm the order of the BRB.



Section 727.203 Interim presumption

(a) Establishing interim presumption. A miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis ... arising out of that employment, if one of the following medical requirements is met:

(1) A chest reoentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see Sec. 410.428 of this title . . . .


Section 727.203(b) provides in pertinent part:

(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (1) of this section shall be rebutted if:

(2) In light of all relevant evidence, it is established that the individual is able to do his usual coal mine work or comparable and gainful work . . . .


Totten's appeal was held in abeyance pending the decision in Stapleton