841 F. 2d 1127 - Sizemore v. Perry County Coal Corporation
841 F2d 1127 Sizemore v. Perry County Coal Corporation
841 F.2d 1127
Jimmy SIZEMORE, Plaintiff-Appellant,
v.
PERRY COUNTY COAL CORPORATION
and
Director, Office of Worker's Compensation Programs, United
States Department of Labor, Defendants-Appellants.
No. 87-3237.
United States Court of Appeals, Sixth Circuit.
March 2, 1988.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before ENGEL, CORNELIA G. KENNEDY and KRUPANSKY, Circuit Judges.
PER CURIAM.
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Appellant Jimmy Sizemore appealed from the decision of the Benefits Review Board ("the Board") which upheld an administrative law judge's decision to deny black lung benefits to Sizemore.
Recognizing that Sizemore qualifies for the interim presumption of 20 C.F.R. Sec. 727.203(a)(3), this court nonetheless affirms the Board's determination because the presumption is rebutted under Sec. 727.203(b)(3). This provision states in pertinent part that the presumption is rebutted if:
The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment.
In the instant case, the ALJ concluded that the latest x-rays, examinations, and studies, most notably those interpreted by Dr. Allen L. Cornish and Dr. Cordell H. Williams disclosed no evidence of pulmonary impairment or pneumoconiosis. In addition, Cornish's uncontradicted December 1980 report stated that claimant's diagnosed condition was not related to dust exposure in the patient's coal mining employment. The ALJ's finding when considered with Cornish's report are sufficient to rebut the presumption of 20 C.F.R. Sec. 727.203(a)(3). See Welch v. Benefits Review Board, 808 F.2d 443 (6th Cir.1986). Accordingly, the decision of the Board is supported by substantial evidence and the decision of the Board is AFFIRMED.