Ed Daugherty v. Director, Office of Workers Compensation Program, United States Department of Labor

WIDENER, Circuit Judge:

Ed Daugherty seeks review of the decision of the Benefits Review Board affirming the denial of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. Daugherty contends that the ALJ and the Board erred in reviewing his claim under the interim Labor Department regulations at 20 C.F.R. § 727.203 and not under the less stringent interim HEW regulations at 20 C.F.R. § 410.490 as required by Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988). 1

The Director concedes that the AU’s actions were improper under Sebben,…