Lucille Hibbard, Widow of Earl Hibbard, Petitioner v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 891 F.2d 290 (6th Cir. 1989)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Lucille Hibbard, a pro se Kentucky resident, appeals the decision of the Benefits Review Board affirming the denial of her widow's claim and her late husband's claim for black lung benefits filed pursuant to 30 U.S.C. § 901, et seq.

Mrs. Hibbard's husband, Earl Hibbard, filed a claim for benefits with the Social Security Administration in 1970, which after a series of denials was transferred to the Department of Labor. Following Mr. Hibbard's death in February 1980, Mrs. Hibbard filed widow's claims in 1980 and 1983. After consolidation of the miner's and widow's claims, a formal hearing was held before an administrative law judge (ALJ) who denied the claims on May 21, 1987. Following a timely appeal to the Benefits Review Board, the Board affirmed the denial of benefits on May 31, 1989.

Mrs. Hibbard filed a timely appeal with this court, alleging that additional medical evidence exists and also seeking the appointment of counsel to help her locate such records. She further asserts as error the ALJ's actions: (1) in giving greater weight to the x-ray interpretations of Dr. Charles D. Smith than to the interpretations of Dr. Truman Simmons, and (2) failing to credit her husband with 4 1/2 years of qualifying coal mine employment for time spent in the military. In addition, Mrs. Hibbard seeks, in a separate motion filed after her notice of appeal, to proceed in forma pauperis.

Further, the director has filed a brief requesting remand of the case alleging: (1) that the ALJ erred in weighing the x-ray evidence of record, particularly in the application of the rereading prohibition of Section 413(b) of the Black Lung Benefits Act, 30 U.S.C. § 923(b); and (2) that the ALJ erred in determining that the medical evidence of record precluded invocation of the interim presumption pursuant to 20 C.F.R. § 727.203(a) (5).

Upon review, we grant the motion for in forma pauperis status and remand the case to the Benefits Review Board, with orders to remand the case to the Administrative Law Judge for further consideration of the issues raised by the Director in his brief on appeal. Rule 9(b) (6), Rules of the Sixth Circuit.