UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN K. PARKER,
Petitioner,

v.

WESTMORELAND COAL COMPANY,
                                                                 No. 96-1588
INCORPORATED; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(95-1747-BLA)

Submitted: September 5, 1996

Decided: September 18, 1996

Before WIDENER and WILKINS, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S.F. Raymond Smith, RUNDLE AND RUNDLE, L. C., Pineville,
West Virginia, for Petitioner. Ann B. Rembrandt, JACKSON &
KELLY, Charleston, West Virginia; Christian P. Barber, Gary K.
Stearman, UNITED STATES DEPARTMENT OF LABOR, Wash-
ington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John Parker, a former coal miner, appeals from a decision of the
Benefits Review Board (Board) affirming an administrative law
judge's (ALJ) denial of his application for black lung benefits. In his
ultimate decision in this case, the ALJ found the evidence of record
insufficient to establish invocation of the interim presumption of enti-
tlement pursuant to 20 C.F.R. § 727.203(a) (1996). On appeal, Par-
ker's only challenge to the ALJ's finding of no invocation is his
contention that the ALJ erred by failing to invoke the presumption
based on the pulmonary function studies, pursuant to subsection (a)(2)
of section 727.

Five of six valid studies of record produced non-qualifying values
under the regulations, but the most recent study was qualifying. Par-
ker contends that the ALJ should have credited the most recent study
over the remaining studies, because pneumoconiosis is a progressive
disease and the most recent study most accurately reflects the status
of the miner's condition at the time of the hearing. It is clear, how-
ever, that the ALJ was not required to automatically accord greater
weight to more recent evidence, see Adkins v. Director, Office of
Workers' Compensation Programs, 958 F.2d 49, 52 (4th Cir. 1992),
and that the ALJ could rationally find that because five of six valid
studies were non-qualifying, Parker failed to establish invocation by
a preponderance of such evidence. See Gray v. Director, Office of
Workers' Compensation Programs, 943 F.2d 913, 920-21 (4th Cir.
1991).

As substantial evidence supports the ALJ's finding of no invoca-
tion, Parker's arguments on appeal concerning rebuttal are moot. See
§ 727.203. Accordingly, the decision of the Board is affirmed. We
dispense with oral argument because the facts and legal contentions

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are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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