UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLARD M. TOLER,

Petitioner,

v.

EASTERN ASSOCIATED COAL

No. 96-1227

CORPORATION; DIRECTOR, OFFICE OF

WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF

LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(95-1347-BLA)

Submitted: December 17, 1996

Decided: January 10, 1997

Before WILKINS and MICHAEL, 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Affirmed by unpublished per curiam opinion.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. Mark E. Solomons, Laura Metcoff Klaus,

ARTER & HADDEN, Washington, D.C.; J. Davitt McAteer, Acting

Solicitor of Labor, Donald S. Shire, Associate Solicitor, Christian P.
Barber, Counsel for Appellate Litigation, Edward Waldman, Office of

the Solicitor, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

For the second time, Willard Toler petitions for 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. The facts of this case are set forth in our opinion in Toler

v. Eastern Associated Coal Co., 43 F.3d 109 (4th Cir. 1995), and need

not be restated here. The issue in this appeal is whether the ALJ properly found that "contrary probative evidence" sufficiently undercut

two pulmonary function studies which produced "qualifying" values

under 20 C.F.R. § 718.204(c)(1) (1996), so as to conclude that Toler

failed to establish a totally disabling respiratory impairment under

section 718.204(c). Toler argues that the ALJ's finding was erroneous

because the record contains no evidence which is contrary to the qualifying studies, while the Director, Office of Workers' Compensation

Programs (Director), submits that while the blood gas evidence of

record was non-qualifying, the ALJ could not rely on this evidence

to offset the pulmonary function evidence because the two types of

studies measure different forms of impairment. See Tussy v. Island

Creek Coal Co., 982 F.2d 1036, 1040-41 (6th Cir. 1993). We must

affirm the decision of the Board if it properly decided that the ALJ's

findings are supported by substantial evidence. See Doss v. Director,

Office of Workers' Compensation Programs, 53 F.3d 654, 658 (4th

Cir. 1995).

In his first decision, the ALJ considered only whether Toler was

able to establish total disability under any of the four alternative

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methods provided by section 718.204(c). Because he found no affirmative evidence of disability, he did not consider whether all the evidence, weighed together, established disability. On remand, the ALJ

reconsidered the pulmonary function evidence in accordance with our

instructions and found it sufficient to establish total disability. He

then assessed the weight of this evidence in light of the blood gas evidence, medical opinion evidence, and the miner's own testimony, and

found that Toler failed to establish total disability by a preponderance

of the evidence.

Contrary to the assertions of Toler and the Director, not only the

blood gas evidence, but also the medical opinion evidence and the

miner's testimony, supported the ALJ's finding of no total disability

on remand. After finding the pulmonary function evidence to be qualifying under section 718.204(c)(1), the ALJ's opinion on remand

focused on comparing the miner's physical abilities and the exertional

requirements of his job. See Scott v. Mason Coal Co., 60 F.3d 1138,

1141 (4th Cir. 1995); Walker v. Director, Office of Workers' Compensation Programs, 927 F.2d 181, 185 (4th Cir. 1991). This comparison

was achieved through reference to the medical opinion evidence and

the miner's own testimony, which established that the miner's job

was completely sedentary and that the miner had the physical capacity

to lift fifty pounds, walk 100 feet up an incline, three blocks on level

ground, or climb ten steps before becoming short of breath.

Two physicians, Drs. Chillag and Zaldivar, found that the miner

had an impairment but did not address whether the miner was disabled. The ALJ discussed their reports and found that given the

miner's physical abilities, and the exertional requirements of his job,

these reports could not support the inference that the miner was

totally disabled. Although Dr. Tuteur found the miner disabled to do

"the tasks of a coal worker," the ALJ declined to find that Dr. Tuteur

was speaking of the miner's specific duties at his last usual coal mine

job as a dispatcher when he used these words. The ALJ further indicated that, to the extent that Dr. Tuteur's opinion could be interpreted

to find the miner disabled to perform his job as a dispatcher, it was

not well reasoned, because a comparison of the miner's physical abilities with the duties of his job as a dispatcher could not support a finding that he was unable to perform that job.

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Given the undisputed evidence in the record regarding the miner's

physical abilities and the exertional requirements of his job, we find

no error in the ALJ's determination that the miner failed to establish,

by a preponderance of all relevant evidence, that he was unable to

perform his usual coal mine work. See 20 C.F.R. § 718.204(b) (1996).

Toler's inability to establish total disability precludes his entitlement

to benefits. See Robinson v. Pickands Mather & Co., 914 F.2d 35, 36

(4th Cir. 1990). Accordingly, it is unnecessary to address Toler's

arguments on appeal relating to the cause of his total disability.

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

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