Isaac York, Petitioner, v. Director, Office of Workers' Compensation Programs, Respondent, 867 F.2d 610 (4th Cir. 1989)

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U.S. Court of Appeals for the Fourth Circuit - 867 F.2d 610 (4th Cir. 1989) Submitted: Dec. 16, 1988. Decided: Jan. 12, 1989

Isaac York, petitioner pro se.

Marta Kusic, Michael J. Denney (United States Department of Labor), for respondent.

Before ERVIN and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


Isaac York sought benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. (the Act) on the basis that he was totally disabled due to pneumoconiosis. An administrative law judge (ALJ) denied benefits, and the Benefits Review Board (Board) affirmed. York seeks review of the Board's order.

The Director has filed a motion to remand the case to the Board for review of the ALJ's discrediting of evidence that could have supported invocation under 20 C.F.R. Sec. 727.203(a) (3). See Mullins v. Director, OWCP, 56 U.S.L.W. 4044 (U.S. Dec. 14, 1987) (No. 86-327). We agree that the Board should have considered the ALJ's analysis of the potentially invoking evidence pursuant to Sec. 727.203(a) (3), and also hold that on remand the Board should consider whether the ALJ's treatment of the potentially invoking evidence pursuant to Sec. 727.203(a) (4) is supported by substantial evidence. If on remand, the Board finds that invocation was established under Sec. 727.203(a), it must consider whether the ALJ's finding of rebuttal under Sec. 727.203(b) (2), (b) (3), and (b) (4), is supported by substantial evidence, and is in accordance with law.

Accordingly, the motion to remand is granted and the case is remanded to the Board for further proceedings consistent with this opinion.

REMANDED.