Ira B. Monk, Petitioner, v. Consolidated Coal Company; Director, Office of Workers'compensation Programs, United States Department Oflabor, Respondents, 30 F.3d 130 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 30 F.3d 130 (4th Cir. 1994)

Submitted May 31, 1994. Decided Aug. 3, 1994


On Petition for Review of an Order of the Benefits Review Board. (89-1715-BLA)

S. F. Raymond Smith, Rundle & Rundle, L.C., Pineville, WV, for petitioner.

Douglas A. Smoot, Jackson & Kelly, Charleston, WV, for respondents.

Ben. Rev. Bd.

AFFIRMED

Before WILKINS and HAMILTON, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

PER CURIAM:


Ira Monk, a former coal miner, seeks review of a decision of the Benefits Review Board (Board) affirming the administrative law judge's (ALJ) decision to deny his application for black lung benefits. Monk contends on appeal that the ALJ erred by failing to invoke the "true doubt" rule when analyzing the issue of total disability. We, however, agree with the Board that the true doubt rule is simply not applicable to this case, since the ALJ did not find the evidence relevant to total disability to be in equipoise. See Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1096-97 (4th Cir. 1993).

Monk also contends that the ALJ committed errors in weighing the blood gas evidence and medical reports of record. We have held, however, that parties to an agency proceeding must raise all issues sought to be preserved on appeal at the time which is appropriate under the agency's practice. See South Carolina v. United States Dep't of Labor, 795 F.2d 375, 378 (4th Cir. 1986). Under 20 C.F.R. Sec. 802.211(b) (1993), Monk was required to specifically identify all errors allegedly committed by the ALJ in his petition for review before the Board. A review of Monk's petition for review and brief before the Board discloses that, of the arguments raised on appeal to this Court, only the true doubt issue was previously raised before the Board.

By failing to raise arguments before the Board, a party fails to preserve those arguments for consideration by the federal court of appeals. See Big Horn Coal Co. v. Director, Office of Workers' Compensation Programs, 897 F.2d 1052, 1054 (10th Cir. 1990); Cox v. Benefits Review Bd., 791 F.2d 445, 446-47 (6th Cir. 1986). We therefore decline to address Monk's additional arguments, and affirm the decision of the Board. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.