* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WYOMING FUEL COMPANY,

Petitioner,

v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
WILLIAM ARNOLDI,

Intervenor. No. 99-9526 (No. 521-24-3572) (Petition for Review)

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
Petitioner Wyoming Fuel Co., the responsible operat or, seeks review of the decision of the Benefits Review Board (“Board”) aff irming the administrative law judge’s (“ALJ”) grant of benefits to miner William Arnoldi on a duplicate claim1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45. 1 After finding that Arnoldi had established a material change in condit ions so as to warrant review of his duplicate claim, the ALJ concluded that Arno ldi had established he was totally disabled due to pneumoconiosis arising out of his coal mine employment. On administrative review, the Board concluded that the ALJ’s decision was supported by substantial evidence and was not contr ary to law.

Standard of Review We review the Board’s decision “to decide whether t he Board correctly concluded that the ALJ’s decision is supported by s ubstantial evidence and not contrary to law.” Northern Coal Co. v. Director, OWCP , 100 F.3d 871, 873 (10th Cir. 1996). “[I]n deciding whether substanti al evidence exists to support the ALJ’s decision, the court cannot reweigh the ev idence, but may only inquire into the existence of evidence to support the trier of fact.” Id. (quotation omitted). Wyoming Fuel challenges both the ALJ’s t hreshold determination that Arnoldi established a material change in his condit ion, and the ALJ’s ultimate-3-

determination that Arnoldi established he was total ly disabled due to pneumoconiosis.

Material Change in Conditions Once a miner has been finally denied benefits on a claim, any subsequent (“duplicate”) claim will be denied on the basis of res judicata unless the miner can make a threshold showing that “there has been amaterial change in conditions” since the time of the earlier denial. 20 C.F.R. § 725.309(d). Arnoldi filed a claim for benefits in May 1980 and it was f inally denied by the District Director in March 1981. Arnoldi filed the current claim in October 1985. In order for the ALJ to review the merits of this dupl icate claim, Arnoldi first had to show a material change in conditions. The regulations do not define what a claimant must prove to establish a material change in conditions, and the circuit co urts are divided over the showing that must be made. This circuit has define d the required showing as follows: [I]n order to bring a duplicate claim, a claimant m ust prove for each element that actually was decided adversely to the claimant in the prior denial that there has been a material change in that condition since the prior claim was denied. In order to meetthe claimant’s threshold burden of proving material change in a pa rticular element, the claimant need not go as far as proving that he or she now satisfies the element. Instead, . . . the claimant need show only that this element has worsened materially since the time of t he prior denial.-4-

Wyoming Fuel Co. v. Director, OWCP , 90 F.3d 1502, 1511 (10th Cir. 1996) (footnotes omitted). In denying Arnoldi’s first claim, the District Dire ctor stated that Arnoldi had to prove three elements to be entitled to benef its: (1) that he had pneumoconiosis, (2) that his pneumoconiosis was cau sed at least in part by his coal mine work, and (3) that his pneumoconiosis hadcaused total disability. See Admin. R., Dir. Ex. 30, Ltr. of 3/6/81. The Distri ct Director denied Arnoldi’s claim solely on the ground that he failed to establ ish the third element: that his pneumoconiosis had caused total disability. Theref ore, to avoid having his second claim denied on res judicata grounds, Arnold i had to establish this element had materially worsened since March 1981. The ALJ found that Arnoldi made the requisite showi ng of a material worsening in his condition. The ALJ pointed to thr ee pieces of evidence to support this finding: (1) the new pulmonary functi on tests (“PFT”) showed a decrease in the values obtained compared with the PFTs submitted in connection with the first claim; (2) two of the new arterial b lood gas studies (“ABGS”) produced qualifying values, whereas the ABGS submitted in connection with the first claim did not; and (3) the weight of new medi cal opinions showed that Arnoldi had a disabling pulmonary impairment, where as the only medical opinion-5-

submitted in connection with the first claim stated that Arnoldi had no pulmonary impairment. Wyoming Fuel argues both that the ALJ did not applythe correct legal standards in finding a material change in Arnoldi’s condition and that his decision is not supported by substantial evidence. Much of Wyoming Fuel’s dispute is actually with the weight the ALJ gave to conflictin g medical evidence. “It is within the sole province of the ALJ to weigh confli cting medical evidence,” and we cannot reweigh that evidence. Northern Coal Co. , 100 F.3d at 873. We conclude that the ALJ applied the correct legal sta ndard and that his decision on the threshold issue of material change is supportedby substantial evidence. Therefore, we turn to the merits of Arnoldi’s claim for benefits. Wyoming Fuel attacks the merits of Arnoldi’s claim on two broad grounds. First, it argues that the ALJ failed to provide val id reasons for his finding that Arnoldi had pneumoconiosis. Second, it argues thatthe ALJ failed to provide valid reasons for his finding that Arnoldi was tota lly disabled due to pneumoconiosis. A careful reading of Wyoming Fuel’ s arguments again reveals that they are founded on the operator’s dissatisfac tion with the way the ALJ weighed the medical evidence. The ALJ fully explai ned why he credited certain evidence over other evidence and how he reached the conclusion that Arnoldi suffered from pneumoconiosis that was totally disab ling. Wyoming Fuel simply-6-

disagrees with the reasons the ALJ gave for weighin g the conflicting evidence as he did. As the Board correctly concluded, however, the reasons advanced by the ALJ were legally proper and they were supported by substantial evidence. The Decision and Order of the Benefits Review Boardis AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge