UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MILDRED ENGLAND,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'

No. 95-2173

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

RANGER FUEL CORPORATION,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(94-7325-BLA)

Argued: March 6, 1997

Decided: July 28, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge,

and BLACK, Senior United States District Judge for the

District of Maryland, sitting by designation.

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Affirmed by unpublished opinion. Senior Judge Black wrote the opinion, in which Chief Judge Wilkinson and Judge Luttig joined.

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COUNSEL

ARGUED: Frederick Klein Muth, HENSLEY, MUTH, GARTON &

HAYES, Bluefield, West Virginia, for England. Sarah Marie Hurley,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Director. Douglas Allan Smoot, JACKSON & KELLY, Charleston, West Virginia, for Ranger Fuel. ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor,

Patricia M. Nece, Counsel for Appellate Litigation, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for Director.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

BLACK, Senior District Judge:

Mildred England appeals from the Benefits Review Board's

(Board) decision and order affirming the administrative law judge's

(ALJ) decision to grant her husband black lung benefits as of January

1, 1989.1 See 30 U.S.C.§§ 901-45. She argues for an earlier date of

September, 1986. However, the ALJ's determination was supported

by substantial evidence and in accordance with law. Accordingly, we

affirm.

I

Riley England, Jr. (England) worked as a coal miner for over

twenty-five years, ending in July 1980. He worked for Ranger Fuel

Corporation (Ranger) for the last two years of his coal mining career.

England filed a claim for black lung benefits on February 20, 1981.

The Department of Labor initially found him entitled to benefits;

however, Ranger contested that determination and requested a formal

hearing. A hearing was held before ALJ Pierce on March 6, 1986. On

August 14, 1986, ALJ Pierce issued a decision and order denying

benefits, having concluded that although there was sufficient evidence

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1 Riley England, Jr. died while this appeal was pending. His widow,

Mildred England, has been substituted as the petitioner.

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to establish the existence of pneumoconiosis, there was not sufficient

evidence that England's pneumoconiosis was totally disabling.

England requested that the Board review ALJ Pierce's denial, and,

while his claim was pending, he filed evidence indicating that his condition had worsened. The Board remanded the case to the District

Director on February 3, 1992. The District Director concluded that

England's newly submitted evidence, including a report of a January

11, 1989 x-ray, demonstrated the existence of complicated pneumoconiosis, thereby triggering an irrebuttable presumption of total disability under 20 C.F.R. § 718.304. The District Director then determined

that England was entitled to benefits from September 1986, the month

after ALJ Pierce's denial of benefits, and ordered Ranger to pay benefits from that date.

Ranger agreed to pay benefits, but sought reconsideration of the

September 1986 onset date. After the District Director refused to

reconsider his decision, Ranger requested a hearing solely on the

onset date issue. A hearing was held before ALJ Holmes on October

6, 1993. On July 26, 1994, ALJ Holmes issued a decision and order

granting benefits as of January 1989, the month of the medical evidence constituting "the first evidence of complicated pneumoconiosis." ALJ Holmes declined to select an earlier onset date, remarking

that "[t]o determine a date prior to that time would be merely speculation on my part and would inappropriately substitute my judgment for

that of the physicians." The Board subsequently affirmed ALJ

Holmes's decision, and England petitioned this Court for review of

the Board's decision.

II

A

In black lung cases, the ALJ makes factual findings by evaluating

the credibility of witnesses and weighing contradictory evidence. See

Doss v. Director, Office of Workers' Compensation Programs, 53

F.3d 654, 658 (4th Cir. 1995). The Board reviews the ALJ's findings

to determine if they are supported by substantial evidence. Id.; see 33

U.S.C. § 921(b)(3). We review the Board's decision for errors of law

and to ensure that the Board adhered to the correct standard of review.

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Doss, 53 F.3d at 658. Therefore, we must affirm the Board's decision

if it properly decided that substantial evidence in the record supports

the ALJ's findings. Id. at 659. To determine whether the ALJ's findings are supported by substantial evidence, we undertake an independent review of the record. Dehue Coal Co. v. Ballard, 65 F.3d 1189,

1193 (4th Cir. 1995).

B

Miners suffering from pneumoconiosis are eligible for benefits

from the month their condition becomes totally disabling. See 20

C.F.R. § 725.503(b). The parties agree that by January 1989,

England's condition had become complicated pneumoconiosis, and

therefore totally disabling. There is substantial evidence in the record

to support this conclusion. Drs. Shipley, Spitz, Wiot and Cappiello all

reported that the January 11, 1989 x-ray showed complicated pneumoconiosis. However, the medical evidence in the record does not

make it possible to determine the actual date on which England's

pneumoconiosis became complicated.

Generally, where the month of onset is not established by the evidence, the regulations provide that a method of determining when to

pay benefits is to use the month in which the claim was filed. See 20

C.F.R. § 725.503(b).2 However, in Williams v. Director, Office of

Workers' Compensation Programs, United States Department of

Labor, 13 BLR 1-28 (1989), the Benefits Review Board stated that

"[i]f the evidence does not reflect when claimant's simple pneumoconiosis became complicated pneumoconiosis, the onset date for payment of benefits is the month during which the claim was filed . . .

unless the evidence affirmatively establishes that claimant had only

simple pneumoconiosis for any period subsequent to the date of filing

. . ., in which case benefits must commence following the period of

simple pneumoconiosis."3 In this case, ALJ Holmes properly deter-

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2 "Where the evidence does not establish the month of onset, benefits

shall be payable to such miner beginning with the month during which

the claim was filed, or the month during which the claimant elected

review under part 727 of this subchapter." 20 C.F.R. § 725.503(b). The

latter alternative does not apply in this case.

3 Following oral argument, the Director submitted a recent Seventh Circuit decision, Zeigler Coal Co. v. Kelley, 112 F.3d 839 (7th Cir. 1997),

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mined not to use the filing date because of ALJ Pierce's August 1986

determination that England was not totally disabled. 4

Under such circumstances, since the filing date is not appropriate

the regulation, as written, cannot apply in this case.5 Accordingly, this

Court will evaluate the ALJ's determination of the appropriate date

to commence payment of benefits without relying on the regulation.

ALJ Holmes ordered Ranger to pay benefits from January 1989,

based on the January 11, 1989 x-ray which constituted "[t]he first evidence of complicated pneumoconiosis." Ranger argues that the ALJ's

January 1989 date should be upheld.

In contrast, England and the Director, Office of Workers' Compensation Programs (Director) assert that it is inappropriate to use the

January 1989 diagnosis date because "medical evidence showing total

disability does not establish the onset of disability but is merely indicative that the claimant became disabled at some time prior to that

date." See Green v. Director, Office of Workers' Compensation Programs, United States Department of Labor, 790 F.2d 1118, 1120 n.4

(4th Cir. 1986). England and the Director argue that England is entitled to benefits for any time after the last affirmative evidence of simple pneumoconiosis, i.e. beginning in September 1986,6 the month

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as supplemental authority. In Zeigler, the Seventh Circuit, while noting

that § 725.503(b) "seem[s] to trump common sense," nonetheless

defaulted to the filing date when the evidence before the ALJ did not

establish the month of onset. Id. at 844. However, in Zeigler, unlike the

instant case, there had not been an earlier finding by an ALJ that the

claimant had only simple pneumoconiosis for any period subsequent to

the filing date. Thus, this case is sufficiently unlike Zeigler to merit a different result.

4 At various times England has argued that the filing date should constitute the onset date, however, for purposes of this appeal, England appears

to concede that the earliest date that could be considered the onset date

is September 1986.

5 Additionally, Ranger argued that§ 725.503(b) violates § 7(c) of the

Administrative Procedure Act, 5 U.S.C. § 556(d)(1996). However, in

light of this Court's conclusion that the regulation does not govern the

outcome of this case, there is no need for this Court to reach that issue.

6 England refers to reports of x-rays after 1981 which may have corroborated an earlier date for the presence of complicated pneumoconiosis;

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after ALJ Pierce's determination of simple pneumoconiosis. England

and the Director contend that ALJ Holmes's use of the diagnosis date

as the onset date is not supported by substantial evidence because

none of the doctors identified January 11, 1989 as the onset date, and

the only doctor who pinpointed an onset date, Dr. Fino, said it was

January 23, 1990, an opinion which should be set aside since the other

doctors agreed that evidence of complicated pneumoconiosis existed

a year earlier. Such arguments do not change the outcome of this case.

The stated purpose of the black lung benefits program is to provide

benefits to coal miners who are totally disabled due to pneumoconiosis. 30 U.S.C. § 901(a). The contention by England and the Director

that benefits should be awarded beginning in September 1986 may

well result in compensating England for a period of time in which he

was not eligible. Thus, it was not arbitrary or unreasonable for the

ALJ to consider the diagnosis date as the onset date under the circumstances of this case.

III

In summary, the Board properly decided that the ALJ's onset date

determination was supported by substantial evidence and in accordance with law. Accordingly, the Board's decision is affirmed.

AFFIRMED

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however, ALJ Holmes excluded those readings because the original xray films were not available to be re-read by the employer. The decision

to exclude those reports is not at issue in this appeal.

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