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-BLA-1074

 OWCP No. 417-05-185

ANNIE COLEMAN, Widow of

Robert Coleman, Jr.,

Petitioner,

versus

DIRECTOR, OWCP,

Respondent.

__________________________

 Petition for Review of an Order of the Benefits Review Board

United States Department of Labor

_________________________

(September 9, 2003)

Before DUBINA, BARKETT and HULL, Circuit Judges.

PER CURIAM:
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Petitioner Annie Coleman seeks review of the Office of Worker’s

Compensation Programs (“OWCP”) Benefits Review Board’s (“BRB”)

affirmation of the Administrative Law Judge's (“ALJ”) interim decision and order

finding that Mrs. Coleman was not entitled to Black Lung survivor’s benefits. 

After review of the record, we deny the petition for review.

I.

First, Mrs. Coleman argues that the ALJ abused his discretion in granting

the OWCP’s Acting Director’s motion for summary judgment based on a finding

that the instant claim was a duplicative survivor’s claim. Mrs. Coleman asserts

that her 1992 and 1994 claims were still viable because the District Director did

not provide her with separate notice, pursuant to 20 C.F.R. § 725.409 (2000), and

that her claims would be deemed abandoned if she did not communicate her intent

to pursue the claims. She further asserts that the ALJ erred in granting the motion

because he did not determine whether a genuine issue of material fact existed with

respect to the issue of whether her husband's death was due to pneumoconiosis. 

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

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II.

We have stated that in a petition for review under the Black 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 standard of

review to ALJ decisions as does the BRB, our review of

BRB decisions is de novo. Id. at 1365. Thus, although

the case comes to us from the BRB, we begin our

analysis by reviewing the decision of the ALJ.

Id. The regulations provide that “[if] an earlier survivor’s claim filed under this

part has been finally denied, the new claim filed under this part shall also be

denied unless the deputy commissioner determines that the later claim is a request

for modification and the requirements of 725.310 are met.” 20 C.F.R.

§ 725.309(d) (1999). Section 725.310(a) provides that “[upon] his or her own

initiative, or upon the request of any party on grounds of a change in conditions or

because of a mistake in a determination of fact, the deputy commissioner may, . . .

at any time before one year after the denial of a claim, reconsider the . . . denial of

benefits.” 20 C.F.R. § 725.310(a) (1999).1
of April 1, 1999, apply to the adjudications of claims that were pending on January 19, 2001. 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 editions of the applicable regulations are identical.

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III.

A.

The Act provides benefits to coal miners who are totally disabled by

pneumoconiosis arising out of coal mine employment and to the survivors of

miners whose deaths 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 recognition of that fact, the Labor Department’s regulations permit a

miner whose first claim has been denied to pursue a later claim for benefits,

provided the miner can establish a change in conditions of entitlement. See 20

C.F.R. § 725.309(c), (d) (1999) and 20 C.F.R. § 725.309(d) (2002).

Section 725.309 treats subsequent claims for survivors’ benefits differently

than subsequent miners’ claims, however, because a deceased miner’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 must also deny any later claim filed

by that survivor. 20 C.F.R. § 725.309(d)(1999). A survivor may escape this result
5

only by filing the later claim within one year after the final denial of the earlier

claim. In that case, the later claim may be considered a request for modification of

the denial of the earlier claim under section 725.310. Modification requests 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) reflects the Department’s interest in administrative

finality and res judicata. It encourages a survivor, such as Mrs. Coleman, to

marshal expeditiously all of the evidence and arguments in support of her claim

that her husband's death was due to pneumoconiosis. Such evidence may include

medical evidence concerning the miner’s condition prior to, and at the time of, his

death, medical opinion evidence regarding the miner’s cause of death and any

relevant lay testimony. Assuming that the BRB has finally denied a survivor’s

initial claim, the regulation allows 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 otherwise prove that the denial of benefits constituted a mistake in a

determination of fact. If a survivor fails to act within the one-year period allowed

for a modification petition, the BRB must deny any later claim.

In the present case, the ALJ properly found that Mrs. Coleman’s first claim

was finally denied in 1992, that her second claim was finally denied in 1994, and
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that her third claim was filed in 2000. Applying section 725.309(d) to these facts,

we conclude that the ALJ properly found that by operation of the regulation, he

must deny Mrs. Coleman’s third claim. The BRB properly affirmed that finding.

Mrs. Coleman’s primary argument in her present petition is that the BRB

did not finally deny her earlier claims and, thus, that her third claim should be

considered a timely request for modification of the denials of the earlier claims. 

Specifically, she asserts that in denying the 1992 and 1994 claims, the District

Director neglected to provide her with a thirty-day notice of intent to deny the

claims by reason of abandonment contemplated by 20 C.F.R. § 725.409(b) (1999),

and, that the absence of such notice prevented the decisions from becoming final. 

Mrs. Coleman’s section 725.409(b) argument has been rejected by the three

circuit courts of appeal that have considered it. See Clark v. Director, OWCP, 838

F.2d 197, 199-200 (6th 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 consistently taken this approach since it first

addressed the issue nearly twenty years ago in Fetter v. Peabody 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 was
7

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 Director provided pursuant to section 725.410(c). Because Mrs.

Coleman failed 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 abandonment. 20 C.F.R. § 725.410(c)(1) (1999). 

Although, as Mrs. Coleman asserts, the standard for modification under section

725.310 is “very low,” any request for modification must nevertheless be filed

within the one-year limitations 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, cannot, in our view, be considered a request for modification.

B.

Second, Mrs. Coleman argues that the ALJ erred in accepting into evidence

the Acting Director’s unsolicited “Reply to the Claimant’s Response to Acting

Director’s Motion for Summary Judgment” without giving her an opportunity to

respond thus violating her due process right. Mrs. Coleman supports her argument

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

permission to file the reply, (2) Mrs. Coleman was not given an opportunity to
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respond, and (3) she suffered prejudiced because the ALJ’s denial was based

largely in part on arguments raised for the first time 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 claims. See Jordan v. Benefits Rev.

Bd. of U.S. Dept. of Labor, 876 F.2d 1455, 1459 (11th Cir. 1989). 

The threshold question in a procedural due process

analysis asks whether the challenged government action

deprived the claimant of a liberty or property interest that

is protected by the due process clause. Minimum due

process requires that before an individual may be

deprived of property he be given notice and an

opportunity for a hearing.

Id. The BRB properly determined that the ALJ’s error, if any, in admitting

the Director’s reply brief was harmless because Mrs. Coleman’s claim was clearly

barred. See 20 C.F.R. §§ 725.309(d), 310(a). Moreover, assuming that Mrs.

Coleman had a protected property interest in obtaining survivor’s benefits, the

ALJ gave her notice and an opportunity to respond to the Director’s argument that

her claim was legally barred, and she availed herself of that opportunity. 

C.

Third, Mrs. Coleman argues that the Acting Director’s August 2, 2000,

denial letter violated her due process rights. She claims that her due process rights

were violated because the letter did not provide an adequate explanation that the
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BRB was denying her claim pursuant to 20 C.F.R. § 725.309. She asserts that the

BRB’s statement that it was denying her claim pursuant to § 725.309 was printed

in a different font from the remainder of the letter and was not prefaced by a

typographic symbol, i.e., a bullet, as the other stated ground for denial had been. 

Thus, she argues that she did not have adequate notice of the issues 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 notice violates due process. 

Jordan, 876 at 1459. When the adequacy of a notice is at issue, “[t]he question is

not whether a particular individual failed to understand the notice but whether the

notice is reasonably calculated to apprise intended recipients, as a whole, of their

rights.” Id. 

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

where the OWCP letter notified Mrs. Coleman that she did not qualify for benefits

because (1) the evidence 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 was a refiled

claim, not a request for modification, and, therefore must be denied. See 20

C.F.R. § 725.309 (1999). 
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IV.

For the foregoing reasons, we deny the petition for review. 

PETITION FOR REVIEW DENIED.