NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Helen DOTSON, Wife of Wayne Dotson, deceased, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United
States Department of Labor, Respondent.
No. 92-1197.
United States Court of Appeals,
Fourth Circuit.
Submitted: April 23, 1992
Decided: June 19, 1992
Helen Dotson, Petitioner Pro Se.
Michael John Denney, J. Matthew McCracken, United States Department of Labor, Washington, D.C., for Respondent.
Before HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Helen Dotson 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. # 8E8E # 901-945 (West 1986 & Supp. 1991). Our review of the record discloses that the Board's decision is based upon substantial evidence and that this appeal is without merit.* While we affirm the Board's ultimate conclusion that the ALJ properly found that Dotson failed to establish that the miner suffered from pneumoconiosis, we note that the Board's affirmance of the ALJ's reliance on the "later evidence rule" in weighing the Xray evidence of record is at odds with our recent decision in Adkins v. Office of Workers' Compensation Programs, F.2d, No. 912903 (4th Cir. Feb. 28, 1992). We find the error to be harmless, however, in light of the ALJ's proper, and alternative, reliance on the credentials of the readers. Accordingly, 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
The autopsy evidence submitted by Dotson was properly not considered by the Board because this evidence was never submitted to the ALJ. Nonetheless, as the Director has conceded on appeal, Dotson may have such evidence considered by filing a petition for modification. See 33 U.S.C. § 922
