69 F3d 533 Jones v. Island Creek Coal Company

69 F.3d 533

Darrell JONES, Petitioner,
v.
ISLAND CREEK COAL COMPANY; Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.

No. 94-2646.

United States Court of Appeals, Fourth Circuit.

Submitted May 23, 1995.
Decided Nov. 9, 1995.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

On Petition for Review of an Order of the Benefits Review Board. (92-1546-BLA)

Darrell Jones, Petitioner Pro Se. Ann Brannon Rembrandt, JACKSON & KELLY, Charleston, West Virginia; William Steele Mattingly, JACKSON & KELLY, Morgantown, West Virginia; Patricia May Nece, Eileen Mary McCarthy, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

Ben.Rev.Bd.

AFFIRMED.

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

PER CURIAM:

1

Darrell Jones seeks review of the Benefits Review Board's decision and order affirming the administrative law judge's denial of black lung benefits pursuant to 30 U.S.C.A. Secs. 901-945 (West 1986 & Supp.1994). Our review of the record discloses that the Board's decision is based upon substantial evidence and that this appeal is without merit.* Accordingly, we affirm the Board's decision. Jones v. Island Creek Coal Co., No. 92-1546-BLA (B.R.B. Dec. 9, 1994). 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

*

Although the ALJ may have erred in giving more weight to one blood gas study based on recency, see Adkins v. Director, Office of Workers' Compensation Programs, 958 F.2d 49, 51-52 (4th Cir.1992), the error was harmless in this case because other evidence supported the ALJ's finding that there was no total disability