### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 9, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-16069 Non-Argument Calendar

________________________ BRB No. 2000-BL

A-1074 OW CP No. 417-05-185 ANNIE COL

EMAN, Widow

of Robert Coleman, Jr., Petitioner,

versus DIRECTOR, OWCP, Respondent.

__________________________ Petition for Review of an Order of the Benefits Review Board

United States De

partment of L

abor

_________________________ (September

9, 2003)

Before DUBIN

A, BARKET

T and HULL,

Circuit Judges. PER CURIAM:2

Petition er Annie Col eman seeks rev iew of the Off ice of Worker ’s Compensation Programs (“OW CP”) Benefits Review Board’s (“BRB”) affirmation of the Administrative Law Judge's (“ ALJ”) interim decision and order finding that Mrs. Co leman was not entitled to Black Lung survivo r’s benefits. After review of the record, we de ny the petition for revi ew. I. First, Mrs. Colema

n argues that the AL

J abused his discretio

n in granting the OWCP’s A

cting Director’ s motion for sum mary jud gment based on a f

inding that the instant clai

m was a duplica

tive survivor’s cl

aim. Mrs. Coleman assert s that her 1992 and 1994 cl aims were st

ill viable because t

he District Dire

ctor did not provide her with s eparate notice, pursuant to 20 C.F. R. § 725.409 (2000), and that her claim

s would be deeme

d abandoned if she did no t communic ate her intent to pursue the claim

s. She further a

sserts that the AL

J erred in granting t

he motion because he did not det

ermine wheth

er a genuine issue of

material fa

ct existed with respect to the issu e of whether her husban d's death was due to pn eumoconiosis. Finally, she contends that the ALJ did not place Dr. Peter R. Smith’ s medical report into evidence, nor did the ALJ state what weight he attributed to the new evidence.1 The regulations applicable to the instant case were revised effective January 19, 2001; however, “[t]he version of those sections set forth in 20 C.F.R., parts 500 to end, edition revised as 3 II. We have stated th

at in a petition for r

eview under the Bla

ck Lung Benefits Act (“the Act”), “[d] ecisions of the ALJ are reviewable only as to whether they are in accordance with law and supported by substantial evidence in light of the entire record.” Bradberry v. Director, OWCP , 117 F.3d 1361, 1364-65 (11th Cir. 1997).

This deferential standard of review binds both the BRB and this Court. Because [we apply ] the same st

andard of review to ALJ de

cisions as does the BR

B, our review of BRB decisions is de novo. Id. at 1365. Thus, alt hough the case come s to us from the B RB, we begin our analysis by r

eviewing the decisi

on of the ALJ. Id . The regulations

provide that “[if] an earlier survivor’s claim

filed under this part has been finall

y denied, the ne

w claim file

d under this part shall

also be denied unless the deput

y comm issioner determ

ines that the later c

laim is a reque st for modification and the requirements of 725.310 are met.” 20 C. F.R. § 725.309(d) (199 9). Section 725.310( a) provides that “[upon ] his or her own initiative, or upon th

e request of any

party on grounds of

a change in conditions or because of a mistake in a det ermination of fact, the depu ty commissioner may, . . . at any time

before one yea

r after the denial

of a claim, r

econsider the . . . denial of benefits.” 20 C.F.R. § 725.310(a) (1999). 1of

April 1, 1999, apply to the adjudications of claims that were pending on January 19, 2 001. 20 C.F.R. § 725.2(c) (2002). Thus, the regulations in effect on April 1, 1999, govern the instant case. The BRB applied the 2000 edition of the Regulations. This error is, however, inconsequential as the 1999 and 2000 editio

ns of the applicab

le regulations a

re identical. 4 III

. A. The Act provides be

nefits to coal m

iners who are tota

lly disabled by pneumoconiosis ar

ising out of coal m

ine employm

ent and to the survivor

s of miners whose de

aths were caused by the disease. 30 U.S.C. § 901( a). Because pneumoconiosis is a latent and progressive disease, a miner’s condition may worsen over time. See Curse v. Director, OWCP, 843 F.2d 456, 457 (11th Cir. 1988). In recogniti

on of that fact, the

Labor Departm

ent’s regulations permit a miner whose f

irst claim has been denied to pursue a later claim f

or benefits, provided the miner can es tablish a change in conditions of ent itlement. See 20 C.F.R. § 725.309(c), (d) (1999) and 20 C.F.R. § 725.309(d) (2002). Section 725.309 trea

ts subsequent claim

s for survivors’ be

nefits differentl

y than subsequent mi

ners’ claim

s, however, bec ause a deceased m iner’s condition is not subject to change . In particular, section 725.309(d) ( 1999) provides that if the BRB fully denies a survivor’s claim, the BRB m ust also deny any later claim filed by that survivor.20 C.F.R. § 725. 309(d)(1999). A su rvivor may

escape this result5

only by filing the later claim within one year af ter the final denial of the earlier claim. In tha

t case, the later

claim ma y be considered a

request for modification of the denial of the ea

rlier claim u

nder section 725.310.Modification reque sts must be filed within one year after the denial of a claim. 20 C.F. R. § 725.310(a) (1999); see generally USX Corp. v. Director, OWCP , 978 F.2d 656, 658 (11th Cir. 1992). Section 725.309(d) r

eflects the Depa

rtment’s int

erest in admini strative finality and re s judicata. It e ncourages a survivor

, such as Mrs. Col

eman, to marshal expedi

tiously all of the

evidence and argum

ents in support of her c

laim that her husband's death was due to pneum oconiosis. Such evide

nce may inc

lude medical eviden

ce concerning the m

iner’s condition pr

ior to, and at the tim

e of, his death, medica

l opinion evidence re

garding the mine

r’s cause of dea

th and any relevant l ay testimony. Ass uming that t he BRB has fi nally denie d a surviv or’s initial claim,

the regulation allow

s the surviving spouse,

within one year

after the final denial of benefits, to uncover or to generate new evidence in support of her claim, or to ot

herwise prove that

the denial of benef

its constituted a m

istake in a determination of fact. If a survivor fails to act within the one-year period allowed for a mo dific ation petit ion, t he BRB must d eny any later claim. In the present case , the ALJ proper ly found that Mrs.

Coleman’s f

irst claim was finally de

nied in 1992, that her

second claim w

as finally denie

d in 1994, and6

that her third claim

was filed in 2000. A

pplying section 725. 309(d) to these fact s, we conclude that the

ALJ properly

found that by oper

ation of the regulati

on, he must deny Mr

s. Coleman’ s third claim. The BRB properly affirmed tha

t finding. Mrs. Coleman’s primary

argument in her present petition is that the BRB did not finally den

y her earlier

claims and, th

us, that her third c

laim should be considered a timely request fo r modification of the den ials of the earlier clai ms. Specifically, she asserts that in denying the 1992 and 1994 claims, the District Director neglec

ted to provide her wi

th a thirty-day

notice of intent to de

ny the claims by reason of abandonment contemplated by 20 C.F.R. § 725.409(b) (1999), and, that the absence of such notice preve nted the decision s from becoming final. Mrs. Coleman’s section 725.409(b) argument has been rejected by the three circuit courts of app eal that have consid ered it. See Clark v. Director, OWCP, 838 F.2d 197, 199-200 (6t

h Cir. 1988); Adkins v. Director, OWCP , 878 F.2d 151, 152- 53 (4th Cir. 1989); Tonelli v. Director, OWCP , 878 F.2d 1083, 1085-86 (8th Cir. 1989). Additionally

, the BRB has consi stently taken this approach since it f

irst addressed the issue n

early twenty

years ago in Fetter v. Peabo dy Coal Co. , 6 B. L. R. 1-1173 ( 1984). Adopting the reasoning of our sister circuits, we conclude from the record that it is clear that in denying the 1992 and 1994 claims the District Director was7

not required to provide Mrs. Coleman with the thirty-day abandonment notice addressed in section 725.409(b) in addition to the sixty-day abandonment notice that the District D

irector provided pur

suant to section 725.41 0(c). Because M rs. Coleman faile

d to take timely

action following the

denials of the 1992 and 1994 claims, we conclude the District Director, the ALJ, and the BRB properly denied both claims by reason of aban donment. 20 C.F.R. § 725.410 (c)(1) (1999). Although, as Mrs. Coleman asser ts, the standard for

modification und

er section 725.310 is “very low,” any request for m odification must nevertheless be filed within the one-year limitatio ns period. See USX Corp. v. Director, OWCP , 978 F.2d at 658-59. Thus, Mrs. Coleman’s third claim, filed six years after the denial of her second, can

not, in our view, be

considered a reque st for modifica tion. B. Second, Mrs. Coleman argues that the ALJ erred in accepting into evidence the Acting Direc

tor’s unsolicited “

Reply to the Cla

imant’s Res

ponse to Acting Director’s Mot

ion for Summ

ary Judgmen

t” without giving her a

n opportunity to respond thus violating he r due process right.Mrs. Colema n supports her argum

ent by contending that (1) the Director had neither sought, nor was he given permission to fi

le the reply, (2) Mrs. Colem an was not given an oppo rtunity to8

respond, and (3) she suffered prejudiced because the ALJ’s denial was based largely in part on arguments raised for the first ti me in the Director’s reply. We review de novo the BRB’s decisions. Bradberry , 117 F.3d at 1365. We also review de novo a claimant’s due process clai ms. See Jordan v. Benefits Rev. Bd. of U.S. De

pt. of Labor , 876 F.2d 1455, 145 9 (11th Cir. 1989). The threshold questi

on in a procedural due

process analysis asks w

hether the challeng

ed government a

ction deprived the claimant of a liberty or property interest that is protected by t

he due process claus e. Minimum due process requires th

at before an individu

al may be deprived of property he be given notice and an opportunity for a

hearing. Id. The BRB properly

determined tha

t the ALJ’s er

ror, if any,

in admitting the Director’ s reply brief w as harmless be

cause Mrs. Colem

an’s claim w

as clearly barred. See 20 C.F.R. §§ 725. 309(d), 310(a). M oreover, assum

ing that Mrs. Coleman had a pr

otected property

interest in obtaining s

urvivor’s benefi

ts, the ALJ gave her notice and an opportunity to respond to the Director’s argument that her claim was legally barred, and sh e availed herself of th at opportunity. C. Third, Mrs. Col

eman argues tha

t the Acting Direc

tor’s August 2, 20 00, denial letter viola

ted her due process r

ights. She claim

s that her due proces s rights were violated because the letter did n ot provide an adequate

explanation that the9

BRB was denyi

ng her claim pur

suant to 20 C.F.R.§ 725.309. She asse rts that the BRB’s statement that it was denying her claim pursuant to § 725.309 was printed in a dif ferent f ont fro m the remai nder of the let ter and was not preface d by a typographic sy

mbol, i.e. , a bullet, as the other s tated ground for den ial had been. Thus, she argues th

at she did not have ade

quate notice of the i ssues to be adjudicated. Again, we review de novo the BRB’s decisions. Bradberry , 117 F.3d at 1365. We also review de novo a claim that a denial notic e violates due proce ss. Jordan , 876 at 1459. Whe n the adequacy of

a notice is at issue,

“[t]he ques

tion is not whether a part

icular individual fa

iled to understand the notice but whether t he notice is reasonably

calculated to appri se intended recipie nts, as a whole, o f their rights.” Id

. We conclude that Mrs. Coleman’s due process rights were not violated where the OWC

P letter notified M

rs. Coleman t

hat she did not qualify

for benefits because (1) the evi

dence did not show her

husband's death was

due to pneumoconiosis, and (2) she had filed a prior claim which the BRB denied over a year ago and the case closed. As the BRB found, the current claim w as a refiled claim, not a r

equest for modif

ication, and, ther

efore must be d

enied. See 20 C.F.R. § 725.309 (1999 ).10 IV. For the foregoing reas ons, we deny the petition for review. PETITION FOR REVIEW DENIED.