UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDA C. ROBERTSON, Widow of

Dareld Robertson,

Petitioner,

v.

RO-FER ASSOCIATES, INCORPORATED;

WEST VIRGINIA COAL WORKERS'

PNEUMOCONIOSIS FUND, No. 96-1249

Respondents,

and

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Party in Interest.

On Petition for Review of an Order

of the Benefits Review Board.

(95-1711-BLA)

Submitted: November 7, 1996

Decided: November 21, 1996

Before RUSSELL and WIDENER, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

S.F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West

Virginia, for Petitioner. K. Keian Weld, Assistant Attorney General,

Charleston, West Virginia, for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Linda Robertson, the widow of Dareld Robertson, a former coal

miner, petitions for review of an order of the Benefits Review Board

(Board) affirming an administrative law judge's (ALJ) denial of her

application for black lung survivor's benefits. Benefits were denied

based on the ALJ's determination that the evidence failed to establish

pneumoconiosis or that pneumoconiosis contributed to the miner's

death. See 20 C.F.R. § 718.205 (1996); Shuff v. Cedar Coal Co., 967

F.2d 977, 979 (4th Cir. 1992). On appeal, Robertson contends that the

ALJ erred by crediting Dr. Fino's finding of no pneumoconiosis

because his finding is unexplained and contrary to the autopsy evidence. We disagree.

The autopsy report noted chronic obstructive pulmonary disease

and anthracotic pigment. Because, however, Dr. Kshirsagar, who prepared the report, did not attribute the pulmonary disease to coal dust

exposure, the finding of such disease did not equate to a finding of

pneumoconiosis. See 20 C.F.R. § 718.201 (1996). Moreover, the regulations expressly state that a finding of anthracotic pigmentation is

insufficient to establish the existence of pneumoconiosis. See 20

C.F.R. § 718.202(a)(2) (1996). Dr. Fino's report is therefore consistent with the autopsy evidence.

We also find that Dr. Fino clearly explained that his finding of no

pneumoconiosis was based on the absence of evidence of pneumoco-

 2
niosis on autopsy, the fact that the only X-ray of record was interpreted negatively by a "B" reader, and the miner's pulmonary

function tests, which failed to reveal a respiratory impairment having

a pattern consistent with pneumoconiosis. We note, however, that

even if we agreed with Robertson that the ALJ erred by crediting Dr.

Fino's report she could not prevail because she does not challenge the

ALJ's reasons for rejecting the only medical reports tending to affirmatively support her burden. Thus, as the ALJ found, the result would

be the same with or without Dr. Fino's report.

Accordingly, the decision of the Board is affirmed. 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

 3