Unpublished Dispositionbeatrice Pelphrey, Widow of Harry Pelphrey, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 894 F.2d 407 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 894 F.2d 407 (6th Cir. 1990) Jan. 26, 1990

Before WELLFORD and RALPH B. GUY, Jr., Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

Petitioner, Beatrice Pelphrey, appeals an order of the Benefits Review Board which denied her application for black lung survivor's benefits. She now moves for leave to proceed in forma pauperis and for the appointment of counsel. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1975, petitioner filed a claim for black lung benefits based upon the belief that her husband, Henry Pelphrey, had contracted pneumoconiosis as a result of his employment as a coal miner prior to his death in 1960. After initial administrative review resulted in the rejection of her claim, petitioner sought a formal hearing before an administrative law judge. Based upon his evaluation of the testimony adduced at that proceeding as well as various items of documentary evidence, however, the administrative law judge determined petitioner was ineligible for benefits. In particular, he found both that petitioner had not proved that her husband had worked in the coal industry for at least 10 years so as to invoke the interim presumption established in 20 C.F.R. Sec. 727.203(a) (1989) or that he had been disabled or died due to pneumoconiosis contracted in consequence of his employment as a miner. The Benefits Review Board subsequently agreed with those findings and affirmed the denial of the application for benefits. Petitioner then filed this appeal.

After a careful review of the record in light of the arguments advanced in the parties' briefs, this court concludes that the Benefits Review Board did not err in denying petitioner's application for black lung survivor's benefits. Engle v. Director, Office of Workers' Compensation Programs, 792 F.2d 63, 64 n. 1 (6th Cir. 1986); Moseley v. Peabody Coal Co., 769 F.2d 357, 360 (6th Cir. 1985). Accordingly, the motion for leave to proceed in forma pauperis is granted and the motion for appointment of counsel is denied. Furthermore, the decision and order of the Benefits Review Board is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.