986 F.2d 1414
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Harold G. MULLINS, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
No. 92-1877.
United States Court of Appeals,
Fourth Circuit.
Submitted: November 20, 1992
Decided: March 5, 1993
On Petition for Review of an Order of the Benefits Review Board. (91-201-BLA)
Harold G. Mullins, Petitioner Pro Se.
Patricia May Nece, Elizabeth Lopes, United States Department of Labor, Washington, D.C., for Respondent.
Ben.Rev.Bd.
AFFIRMED
Before PHILLIPS, WILKINSON, and HAMILTON, Circuit Judges.
PER CURIAM:
Harold G. Mullins 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. 1992). 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 as modified.* Mullins v. Director, Office of Workers' Compensation Programs, No. 91-201-BLA (B.R.B. June 25, 1992). 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 AS MODIFIED
Although the administrative law judge relied, in part, upon the later evidence rule, a test we recently rejected in Adkins v. Office of Workers' Compensation Programs, 958 F.2d 49, 51-52 (4th Cir. 1992), the Board's decision was nonetheless correct because Mullins failed to prove he was disabled. Moreover, even excluding the later evidence rule, the ALJ properly could have found that Mullins did not have pneumoconiosis. Therefore, we affirm the Board's decision as modified
