UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 deci-
sion of the Benefits Review Board (Board) affirming the administra-
tive 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 prop-
erly 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 qual-
ifying 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

                     2
methods provided by section 718.204(c). Because he found no affir-
mative evidence of disability, he did not consider whether all the evi-
dence, 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 evi-
dence, 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 qual-
ifying 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' Compen-
sation 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 dis-
abled. 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 indi-
cated 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 abili-
ties with the duties of his job as a dispatcher could not support a find-
ing that he was unable to perform that job.

                     3
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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

                    4
