United States Court of Appeals,

Eleventh Circuit.

No. 94-6265

Non-Argument Calendar.

BLACK DIAMOND COAL MINING COMPANY, Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR; Edna Marcum (Widow of Herman T. Marcum),

Respondents.

Sept. 25, 1996.

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

(Benefits Review Board No. 92-0781-BLA).

Before ANDERSON, COX and BIRCH, Circuit Judges.

PER CURIAM:

Black Diamond Coal Mining Company ("Black Diamond") appeals

the decision of the Benefits Review Board ("BRB") awarding

disability benefits under the Black Lung Benefits Act, 30 U.S.C. §§

901 to 945 (1994) ("the Act"), and its accompanying regulations.

See 20 C.F.R. pt. 718 (1996). The sole issue on appeal is whether

Herman Marcum's total pulmonary disability was due to

pneumoconiosis. Because the BRB did not apply the proper causation

standard, we vacate and remand.

I. Background

Herman Marcum, an Alabama coal miner last employed by Black

Diamond, filed a claim for black lung disability benefits on

November 25, 1980. The Office of Workers Compensation Programs

("OWCP") within the Department of Labor made an initial

determination that Marcum was entitled to benefits. Black Diamond,

the coal mine operator responsible for the payment of Marcum's
benefits under the Act, requested a hearing before an

Administrative Law Judge ("ALJ"). Herman Marcum died on May 27,

1985, one month before the hearing. He was survived by his wife

Edna, who has since prosecuted his claim for benefits, as well as

a claim for survivor's benefits.

At the hearing, evidence was proffered by Marcum, Black

Diamond, and the Director of OWCP ("the Director"), who appeared as

a party in interest on behalf of Marcum. The evidence included

reports and letters from four physicians who examined Herman Marcum

before his death: Dr. Russakoff, Dr. Shelton, Dr. Branscomb, and

Dr. Hood. Dr. Russakoff examined Marcum in January 1991, and

concluded that Marcum's pulmonary disability might be due to his

coal mine exposure. Dr. Russakoff's 1981 report was based on the

assumption that Marcum did not have a significant smoking history.

In a letter written in 1985, Dr. Russakoff admitted that he had

overlooked Marcum's history of bronchial asthma in his 1981 report.

Dr. Russakoff concluded in the 1985 letter that, assuming Marcum

smoked a pack of cigarettes a day for 28 years, the miner's lung

disease probably had little to do with his coal mine employment.

Black Diamond attempted to introduce Dr. Russakoff's 1985 letter at

the hearing, but the ALJ excluded it on the grounds that Black

Diamond failed to give Marcum timely notice of intent to introduce

the letter.

Dr. Shelton, who examined Marcum in May 1981, concluded that

Marcum's respiratory difficulty was due to asthma, but that his

chest x-rays were consistent with inhalation lung disease. Dr.

Branscomb examined Marcum in June 1982, and his medical history of
Marcum indicates that Marcum daily smoked a pack of cigarettes from

ages 20 to 56. Dr. Branscomb concluded that 30% of Marcum's

pulmonary disability was due to occupational exposure.

Dr. Hood was Marcum's treating physician from 1980 until his

death in 1985. In a letter written shortly after Marcum's death,

Dr. Hood stated that Marcum's pneumoconiosis, as well as other

complications, had rendered the miner totally disabled. Dr. Hood's

letter was excluded by the ALJ on procedural grounds.

The ALJ awarded benefits based in part on the finding that

Marcum was totally disabled due to pneumoconiosis. Black Diamond

appealed to the Benefits Review Board ("BRB"). The BRB reversed

and remanded for reconsideration of several issues, including total

disability and causation.

On remand, the ALJ followed Wilburn v. Director, OWCP, 11

Black Lung Reporter (B.L.R.) 1-135, 1-137 (Ben.Rev.Bd.1988), and

applied the causation standard that a total pulmonary disability is

due to pneumoconiosis when the pneumoconiosis, in and of itself,

causes the disability. The ALJ denied benefits based on the

conclusion that, although Marcum established a total pulmonary

disability, he did not establish causation under the Wilburn

standard. After the ALJ's decision, this court held in Lollar v.

Alabama By-Products Corp., 893 F.2d 1258, 1265 (11th Cir.1990),

that a total pulmonary disability is due to pneumoconiosis if the

pneumoconiosis substantially contributes to the pulmonary

disability. Marcum appealed the ALJ's decision, and the BRB

reversed and remanded in light of Lollar.
 1

On both remands, Marcum's case was heard by a different ALJ

than the one who conducted the hearing. 

Following the second remand,1 the ALJ concluded that Marcum

failed to show that his pneumoconiosis substantially contributed to

his total pulmonary disability. In making this determination, the

ALJ relied on Dr. Russakoff's 1985 report and Dr. Hood's report,

which had been marked for identification purposes, but were not

formally in the record. Marcum appealed the ALJ's decision to the

BRB. The BRB read Lollar to hold that only a showing that

pneumoconiosis played an infinitesimal or de minimis part in the

miner's total pulmonary disability would preclude a finding of

causation. The BRB found that the medical evidence in the record

satisfied the Lollar standard, and awarded benefits. Black Diamond

filed this appeal.

II. Jurisdiction

 During the pendency of this appeal, the Director filed an

Application for an Order to Show Cause why Black Diamond's Petition

for Review Should not be Dismissed for Lack of Jurisdiction, which

we construe as a motion to dismiss for lack of jurisdiction. The

Director states that Black Diamond, formerly an Alabama

corporation, has been dissolved, and Black Diamond's benefits trust

has been depleted. The Director contends that this appeal is moot

because the court is powerless to grant Marcum meaningful relief.

If the Director is correct, then we lack jurisdiction to decide

this case. See Pacific Ins. Co. v. General Dev. Corp., 28 F.3d

1093, 1096 (11th Cir.1994). But the Director acknowledges that

before Black Diamond was dissolved, its coal mining assets were
 2

The motion to dismiss is denied. 

sold to Costain Coal, Inc. ("Costain"), and that Costain may be

liable as a successor operator under the Act. See 30 U.S.C. §

932(i)(1) (providing for successor operator liability). If Marcum

establishes a claim for benefits against Black Diamond, she may

then demonstrate that Costain is liable and obtain meaningful

relief in spite of Black Diamond's dissolution. Because meaningful

relief may still be available to Marcum in the form of a claim

against Costain, this appeal is not moot, and we have

jurisdiction.2

III. Standard of Review

 Whether a miner's total pulmonary disability is "due to"

pneumoconiosis within the meaning of 20 C.F.R. § 718.204 is a mixed

question of law and fact. The ALJ's factual findings are entitled

to great deference, and they are to be upheld if they are supported

by substantial evidence. Lollar, 893 F.2d at 1261 & n. 4.

Substantial evidence is "more than a scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion." Id. at 1262 (quoting Richardson v. Perales,

402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). To

the extent that the BRB's factual conclusions differ from the

ALJ's, we owe them no deference. Id. at 1261 n. 4.

 Courts generally owe deference to an agency policymaker's

interpretation of the agency's own regulation, but neither the ALJ

nor the BRB functions as a policymaker in this case. See id. at

1262. The ALJ's and the BRB's interpretations of the regulations

implementing the Act are legal conclusions that we review de novo.
 3

Section 718.204 refers to a "total disability" rather than

a total pulmonary disability, but it is clear from the criteria

for establishing a total disability that only pulmonary

disabilities are relevant. See 20 C.F.R. § 718.204(c) (miner can

establish a total disability, in the absence of contrary

evidence, by reference to a pulmonary function test or an

arterial blood gas test). See also Lollar, 893 F.2d at 1267 n.

16 (stating that, "once a total pulmonary disability is

established, ... unrelated disabilities obviously are irrelevant

to the causation of the pulmonary disability") (emphasis

deleted). 

IV. Discussion

 To establish eligibility for black lung benefits, a claimant

generally must show (1) that the miner has pneumoconiosis, (2) that

the pneumoconiosis arose from the miner's coal mine employment, (3)

that the miner has a total pulmonary disability, and (4) that the

total pulmonary disability is due to pneumoconiosis. Lollar, 893

F.2d at 1262-63. Marcum has established the first three

requirements, and whether she has shown the fourth requirement is

the sole issue on this appeal.

The third and fourth requirements for eligibility arise from

20 C.F.R. § 718.204, which states: "Benefits are provided under

the Act for or on behalf of miners who are totally disabled due to

pneumoconiosis...." Section 718.204 establishes standards for a

claimant to show the existence of a total pulmonary disability, 3

but the regulation is less clear about when a total disability is

"due to" pneumoconiosis. See id. As a result of the regulation's

ambiguity, problems arose in cases, like Lollar, where the miner's

medical history suggested several potential causes for the

pulmonary disability. For example, in addition to pneumoconiosis,

Lollar suffered from interstitial lung disease and chronic

bronchitis. Lollar, 893 F.2d at 1260.
This court addressed the "due to" causation standard of §

718.204 for the first time in Lollar. The Lollar court was

persuaded by decisions in three other circuits that the Wilburn

rule that pneumoconiosis must "in and of itself" cause the

pulmonary disability was "unduly stringent." Id. at 1265; see

Mangus v. Director, OWCP, 882 F.2d 1527 (10th Cir.1989), Bonessa v.

United States Steel Corp., 884 F.2d 726 (3d Cir.1989), Adams v.

Director, OWCP, 886 F.2d 818 (6th Cir.1989); but see Wilburn, 11

B.L.R. at 1-137.

In defining the "due to" causation test of § 718.204, the

Mangus, Bonessa, and Adams courts phrased the applicable test

differently. See Mangus, 882 F.2d at 1531 (pneumoconiosis must

contribute to the total disability); Bonessa, 884 F.2d at 733

(pneumoconiosis must be a substantial contributor to the total

disability); Adams, 886 F.2d at 825 (total disability must be due,

"at least in part" to pneumoconiosis). While the Lollar court

found all three decisions helpful to its analysis, it adopted the

causation standard used by the Third Circuit in Bonessa that

requires pneumoconiosis to be a substantial contributing cause of

the miner's total pulmonary disability. Lollar, 893 F.2d at 1265.

The Lollar court then noted:

[T]he Sixth Circuit in Adams, while not using the terms

"substantial" or "significant" in its standard, was careful to

observe that "nothing in this record suggests that Adams'

pneumoconiosis played only an infinitesimal or de minim[i]s

part in his totally disabling respiratory impairment, so we

need not consider here whether such a finding ... would

support a denial of benefits under the Act." We believe

Bonessa's phrasing of the test answers this concern.

Id. (quoting Adams, 886 F.2d at 826 n. 11) (alteration in

original).
Both the ALJ and the BRB purported to apply Lollar's

substantial contributing cause test to Marcum's claim. Although

the parties agree that the Lollar causation standard applies, we

note that the holding in Lollar does not, on its face, apply to

Marcum's claim. The Lollar court held that the substantial

contributing factor standard applies to black lung benefits claims

filed after January 1, 1982, Lollar, 893 F.2d at 1265, but Marcum's

claim was filed in 1980. The Lollar court apparently limited the

application of the causation standard because black lung claimants

who filed their claims before January 1, 1982 are entitled to a

presumption that a total pulmonary disability is due to

pneumoconiosis if they can show fifteen years of underground coal

mine employment. 20 C.F.R. § 718.305(a), (e); see Lollar, 893

F.2d at 1262 n. 6.

 Marcum did not have fifteen years of underground coal mine

employment, and thus did not qualify for the § 718.305 presumption.

We hold that black lung claimants who file before January 1, 1982

and are not entitled to the § 718.305 presumption must satisfy the

Lollar causation standard in order to qualify for benefits under §

718.204.

Black Diamond argues that the BRB misapplied the Lollar

standard, and we agree. Although the BRB quoted Lollar as

requiring pneumoconiosis to be a "substantially contributing

cause," the BRB also read Lollar to hold that:

only a physician's medical opinion concluding that the miner's

pneumoconiosis " "played only an infinitesimal or de minim[i]s

part in his totally disabling respiratory impairment,' " would

be insufficient to establish causation pursuant to Section

718.204(b).
 4

Although it is unimportant to the resolution of this

appeal, we note that the BRB also considered Dr. Hood's report in

concluding that Marcum was entitled to benefits. 

Marcum v. Black Diamond Coal Co., BRB No. 92-0781 (Jan. 31, 1994)

(quoting Lollar, 893 F.2d at 1265) (alteration in original). The

BRB took Lollar's quote from Adams out of context, and the standard

it applies is lower than the Lollar standard. The operative words

to describe the Lollar standard are "substantial contributing

cause," not "infinitesimal or de minimis part." A conclusion that

a contributing cause played more than an infinitesimal or de

minimis part does not mean that the contributing cause was

substantial.

Black Diamond argues that the ALJ properly applied the Lollar

standard, and that the ALJ's finding that Marcum did not establish

causation is supported by substantial evidence in the record. We

agree that the ALJ properly applied the Lollar standard, but

disagree that the ALJ's factual findings are entitled to deference

in this case. In determining that Marcum's pneumoconiosis was not

a substantial contributing cause of his total pulmonary disability,

the ALJ relied on Dr. Hood's report, and Dr. Russakoff's 1985

report, which are not part of the record in this case.4

Because we cannot defer to the ALJ's findings, we vacate the

BRB's award of benefits and remand to the BRB for a determination,

consistent with this opinion, of whether Marcum's total pulmonary

disability was due to pneumoconiosis. In answering this question,

the substantial contributing cause standard of Lollar applies, and

only evidence that is properly in the record should be considered.

VACATED and REMANDED.