UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished opinion.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

_________________________________________________________________

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, Charles-
ton, West Virginia, for Ranger Fuel. ON BRIEF: Thomas S. Wil-
liamson, 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 Direc-
tor.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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
_________________________________________________________________
1 Riley England, Jr. died while this appeal was pending. His widow,
Mildred England, has been substituted as the petitioner.

                    2
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 con-
dition 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 pneumoco-
niosis, thereby triggering an irrebuttable presumption of total disabil-
ity 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 bene-
fits 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 evi-
dence constituting "the first evidence of complicated pneumoconio-
sis." ALJ Holmes declined to select an earlier onset date, remarking
that "[t]o determine a date prior to that time would be merely specula-
tion 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.

                    3
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 find-
ings are supported by substantial evidence, we undertake an indepen-
dent 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 pneu-
moconiosis. 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 evi-
dence, 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 pneumoco-
niosis became complicated pneumoconiosis, the onset date for pay-
ment 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-
_________________________________________________________________
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 Cir-
cuit decision, Zeigler Coal Co. v. Kelley, 112 F.3d 839 (7th Cir. 1997),

                    4
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 evi-
dence of complicated pneumoconiosis." Ranger argues that the ALJ's
January 1989 date should be upheld.

In contrast, England and the Director, Office of Workers' Compen-
sation 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 indic-
ative that the claimant became disabled at some time prior to that
date." See Green v. Director, Office of Workers' Compensation Pro-
grams, United States Department of Labor, 790 F.2d 1118, 1120 n.4
(4th Cir. 1986). England and the Director argue that England is enti-
tled to benefits for any time after the last affirmative evidence of sim-
ple pneumoconiosis, i.e. beginning in September 1986,6 the month
_________________________________________________________________
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 dif-
ferent result.
4 At various times England has argued that the filing date should consti-
tute 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 corrob-
orated an earlier date for the presence of complicated pneumoconiosis;

                    5
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 pneumoconio-
sis. 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 circum-
stances of this case.

III

In summary, the Board properly decided that the ALJ's onset date
determination was supported by substantial evidence and in accor-
dance with law. Accordingly, the Board's decision is affirmed.

AFFIRMED
_________________________________________________________________
however, ALJ Holmes excluded those readings because the original x-
ray films were not available to be re-read by the employer. The decision
to exclude those reports is not at issue in this appeal.

                    6
