Unpublished Dispositionalfred Allen, Petitioner, v. Director of Office Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 859 F.2d 921 (6th Cir. 1988)

ORDER

This pro se petitioner appeals a decision and order of the Benefits Review Board which denied his claim for an award of black lung benefits under 30 U.S.C. § 901 et seq. He now moves for leave to proceed in forma pauperis. Upon examination of the record and the brief submitted by petitioner, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner Alfred Allen filed an application for black lung disability benefits pursuant to 30 U.S.C. § 901 et seq. After the initial denial of his claim, he sought and obtained an evidentiary hearing before an administrative law judge. Based upon the testimony adduced at that proceeding, at which petitioner was represented by counsel, and documentary evidence submitted by the parties, the administrative law judge also determined that the claims should be denied. In so doing, the administrative law judge specifically found that petitioner's employment in the coal mining industry has not been of sufficient duration to give rise to the rebuttable presumption of disability due to pneumoconiosis contained in 20 C.F.R. Sec. 727.203(a) or that he had otherwise qualified for benefits under 20 C.F.R. Sec. 410.401 et seq. in consequence of his having contracted that disease during the course of his employment. Petitioner thereafter sought further administrative review of his claim by the Benefits Review Board which determined that the administrative law judge's findings of fact were supported by substantial evidence. Accordingly, the Benefits Review Board affirmed the denial of black lung benefits and petitioner subsequently filed this appeal.

Generally, the scope of this court's review of a decision of the Benefits Review Board to grant or deny a claim for benefits is extremely limited. The court may disturb the findings of the Board or the ALJ only if they are not supported by substantial evidence. Creech v. Benefits Review Board, 841 F.2d 706, 708 (6th Cir. 1988); Adams v. Peabody Coal Co., 816 F.2d 1116, 1120 (6th Cir. 1987). In this case, the ALJ's finding that petitioner was not entitled to the rebuttable presumption of disability found in 20 C.F.R. Sec. 727.203(a) because he lacked ten years employment in the coal mines was supported by substantial evidence. Similarly, the finding that petitioner did not contract pneumoconiosis as a consequence of his coal mine employment, and was therefore not entitled to benefits, 20 C.F.R. Sec. 410.416(b), was supported by substantial evidence.

Accordingly, the motion for leave to proceed in forma pauperis is hereby granted and the Benefits Review Board's decision and order entered April 21, 1988, is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.