___________ No. 95-4122

___________ Lovilia Coal Company; Old * Republic Insurance Company, * * Petitioners, * On Petition for Review of a * Decision and Order of the v. * Benefits Review Board, * United States Department Wesley Harvey; Director, * of Labor. Office of Workers' * Compensation Programs, * United States Department * of Labor, * * Respondents. *

___________ Submitted: September 11, 1996 Filed: March 21, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

___________ HENLEY, Senior Circuit Judge.

Lovi lia Coal Company and its insurance carrier, Old Republi c Insurance Company, (collectively Lovilia), petit ion for review of an order of the Ben efits Review Board (Board) of the Department of Labor (DOL ) awarding benefits und er the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (the Act), to Wesley Harvey, a former coal miner employed by Lovilia. We affirm the award of benefits.

Background Harvey , who was born in 1914, worked in coal mines from 1930 unti l 1975 , when he retired after working more than ten years for Lovilia

. Harvey first filed a claim for black lung benefits in

### -2-

1973, which was denied. In 1977, Congress liberalized eligibilit y requir ements for benefits, and Harvey's claim was reopened and reviewe d under the more lenient standards, 30 U.S.C. § 94 5, but was denied. Harvey again filed claims for benefits in 1983, 1984 and 1987, which were al l denied. In March 1990, Harvey again applied for benefits. The deput y dire ctor denied the claim, finding that Harvey had not established a mate rial change in conditions. See 20 C.F.R. § 725.309(d) ("If [an ] earlier miner's claim has been finally denied, the later claim shall also be denied, on the gro unds of the prior denial, unless the deputy director determ ines that there has been a material change in conditions.")

. However, after Harvey submitted additional medical evidence and appeared before an administrative law judge (ALJ), the ALJ awarded benefits. The ALJ found that the additional evidence not only showed a material change in conditions, but also showed that Harvey was "totally disabled due t o pne umoconiosis." See 30 U.S.C. § 901. In addition, the ALJ rejecte d Lovilia's argument that 30 U.S.C § 932 transferred liability for payment of benefit s from the company to the Black Lung Disability Trust Fund

. Lovilia appealed to the Board. The Board rejected Lovilia's argument s relating to transfer of liability and material change, but held that the ALJ had e rred in concluding that Harvey was totally disabled due t o pneumo coniosis by relying solely on the opinion of Harvey's treatin g physician, Dr. Gordon Arnott. Accordingly, the Board remanded the case fo r a reconsideration based on all the evidence of r ecord. On remand, the ALJ again awarded benefit s. The Board affirmed, and this petition for review follows. DISCUSSION On appeal Lovilia first renews its argument that if Harvey i s entitled to benefits, section 205 of the Black L ung Benefits Amendments of 1981, Pub. L. 97-119, Title II, 95 Stat 1635 (19 81), codified at 30 U.S.C. §§ 932 (c)(2), (j)(3), transferred liability for payment of the benefit s from the company to t he Black Lung Disability Trust Fund (Fund). Lovilia next raises several

### -3-

challe nges to 20 C.F.R. § 725.309(d), the "material change" regulation

. In the eve nt this court rejects its arguments relating to transfer o f liability and material change, Lovilia goes on t o argue that Harvey is not entitled to benefits.
Initially, we note that Lovilia's presentation of "the issue s reverses the usual or der of inquiry; that is, we determine who should pay befor e establishing whether the claimant is eligible for benefits. " Rochester & Pittsburgh Coal Co. v. Krecota , 868 F.2d 600, 601 n.1 (3d Cir. 1989). "In this case , however, the government conceded that [Harvey] was eligible for benefits." Id. "Thus, if we deter mine that liability should be transferred to the government's Trust Fund we need not address the issu e of whether [Harvey] i s eligible for benefits." Id. In addition, we note that t he regulations, 20 C.F.R. § 725.497(c), contemplate that transfe r issues should be decided "as early as possible i n the process--even before final disposition of the miner's claim." Big Horn Coal Co. v. Office of Workers' Comp. Prog. , 55 F.3d 545, 551 n.7 (10th Cir. 1995)

. "Consequently, we wil l consider the transfer issue before approaching the eligibility issue." Krecota , 868 F.2d at 601 n.1. Transfer of Liability As previously indicated, in 1977 Con gress "substantially liberalized the criteria for establishing an entitlement to benefits." Tonelli v

. Director , 878 F.2d 10 83, 1984 n.2 (8th Cir. 1989). In addition, Congress provided that "[c]laims denied before March 1, 1 978 (the effective date of the 197 7 amendments) were to be reexamined under these less demandin g standards." Old Ben Coal Co. v. Luker , 826 F.2d688, 693 (7th Cir. 1987). In order to relieve coal companies of unexpectedretroactive liability, in 1981 "Congress provided that liability for claims denied before March 1, 1978 wh ich were thereafter approved under the liberalized eligibilit y crit eria should be transferred from coal operators to the Black Lun g Disability Trust Fund." Director v. Drummond Coal

### In addition, the 1981 amendments, which were enacted i n 1 

### response to a large deficit in the Trust Fund, raised taxes on coal operators and tightened eligibility requirements. See Hawkins v. Director , 907 F.2d 697, 702 n.8 (7th Cir. 1990); see also L opatto, The Fe deral Black Lung Program: A 1983 Primer , 85 W. Va. L. Rev

. 677 (1983).
-4- Co. , 831 F.2d 240, 242 (11th Cir. 198 7) (citing 30 U.S.C. §§ 932(c),(j)). 1 As relevant here, 30 U.S.C § 932(c) provides:
no benefit shall be payable by any operator on acco unt of death or total disability due to pneumoconiosis . . . which was the subject of a claim denied before March 1, 1978, andwhich is or has been approved in acc ordance with the provisions of section 945 of this title.

Section 93 2(j) provides that the Trust Fund is liable for "payment o f benefits in cases . . . in which there was a claim denied before March 1, 1978, and such claim is or has been approved in accordance with th e provisions of section 945 of this title." At th e time of the enactment of the 1981 amendments and at all relevant times, DOL regulations defined a claim as "an assertion in writing of an individual's entitlement t o benefits." 20 C.F.R. § 725.101(a)(22) (1977) (recodified at 20 C.F.R. § 725.101(a)(16) (1994)).

In this c ase, the Board upheld the ALJ's rejection of Lovilia' s transfer of liability argument. The Board reasoned that the only clai m pending before the ALJ was Harvey's claim of Mar ch 1990 and that the claim could not support a t ransfer of liability since it was not, and could not have been, denied before March 1, 1978. The Board noted that althoug h Har vey's 1973 claim had been denied before March 1, 1978, it had bee n denied, not approved, after review under section 945.

Lovilia argues that the Board has misinterpreted the term “claim, ”
as used in section 932. Lovilia asserts that under the plain meaning of the statute "claim" does not mean an application

### -5-

for benefits, but mea ns liability. Lovilia reasons "to insurers 'claims' do not mean 'claim forms' or applications. It means liability." Lovilia' s Br. at 27. The Director responds that "claim" plainly means an applicatio n for benefits. We agree with the Director. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co. , 117 S. Ct. 843, 84 6 (1997). As relevant here, the dictionary define s "claim" as "a demand for compensation or benef its (as one in accordance with the provisions of the Social Security Act or workmen's compensation law”), Webster's Third New Int'l Dictionary

414 (1965), and the Black Lung Act provides that a claim for benefits must be filed timely and in a prescribed manner. See, e.g. , 30 U.S.C. §§ 923, 924 , 932. Moreover, as the Director points out, at the time of the 1981 amendments, "Congress was aware of the regulation['s ] definition, but did not enact any provisions to alter the definition. " Pagel, Inc. v. CIR , 905 F.2d 1190, 1192 (8th Cir. 1990).
In addition, we agree with the Director that even if the term " claim"
was ambiguous, the legislative history makes clear that it means a n application for benefits. Because Congress was concerned that a "transfer of liability could prove too burdensome for the debt-laden Trust Fund , legislators specifically requested information on how many claims woul d transfer, which claims they were and what the co st would be" and relied on estimates that the amendment would transfer abou t 10,200 claims, valued at approxim ately$1.4 to $1.5 billion. Old Ben Coal Co. , 826 F.2d at 69 4 (citing Hearings before the Subcomm. on Labor of the Senate Comm. on Labor and Human Resources, 97th Cong., 1st Sess. 31, 77 (1981)); see also Earl Patton Coal Co. v. Patton , 848 F.2d 668, 672 (6t h Cir. 1988) ("Legislative history shows that the transfer of liability provisions of the 198 1 Amendments reflect a congressional

### Lovilia does not, and could not, argue that Harvey's 199 0 2 

### claim merged with his 1973 claim. See Tonelli v. Director , 87 8 F.2d 1083, 1087 (8th Cir. 1988) (under 20 C.F.R. § 725.309© "merger is available only when a previously denied claim, reopened fo r review under [30 U.S.C. § 945], and a second claim are pending at the same time"). Because the claim is not subject to merger , it is gove rned by the criteria of 20 C.F.R Part 718. If the claim ha d been merged, "then the more liberal criteria of 20 C.F.R. 72 7 would have governed." Tonelli , 878 F.2d at 1084 n.3.
-6- intent to accommodate only a limited number of claims within estimated cos t limitations."). In any event, if any ambiguity existed, we would defer to DOL's reasonable interpretation of the statute it is charged wit h admini stering. See Chevron, U.S.A., Inc. v. Natural Resources Defens e Council, Inc. , 467 U.S. 837 (1984). DOL's transfer of liability regulatio n makes c lear that unless a claim is subject to merger, 20 C.F.R

. § 7 25.309(c), "the procedural history of each . . . claim must b e considered separately to determine whether the claim is subject to th e transfer of liability provisions." Id. § 725.496(c). 2

Res Judicata Lovilia also argues that consideration of Harvey's 1990 claim i s barred by the doctrin e of res judicata. The doctrine "consist[s] of two preclusion concepts: 'issue preclusion' and 'cla im preclusion.'" Migra v. Warre n City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 77 n.1 (1984). Unde r claim preclusion, "'a final judgment on the merits bars further claims by the parties or their privies based on the same cause of action.'" United States v. Gurley , 43 F.3d 1188, 1195 (8th Cir. 1994) (quoting Montana v. Uni ted States , 440 U.S. 147, 153 (1979)), cert. denied , 116 S. Ct. 7 3 (1995). Under issue preclusion, or, as it is sometimes called collateral estoppel, “once a court has decided an issue of fact or law necessary to its ju dgment, 'the determination is conclusive in a subsequent actio n between the parties, whether on the same or a different claim.’” Tyus v. Schoemehl , 93 F.3d 44 9, 453 (8th Cir. 1996) (quoting Restatement (Second) of Judgments § 27 (1982)), pet.

### Lovilia ref ers to the preclusive effect of an administrative 3 

### determination in a subsequent administrative proceeding, rathe r than the preclusive effect of an administrative determination in a court proceeding. See Astoria Fed. Sav. & Loan Ass'n v. Solimino , 501 U.S. 104, 106 (1991).
-7- for cert. filed , 65 U.S.L.W. 3539 (U.S. Jan. 27, 1997) (No. 96-1207).
Relying on claim preclusion, Lovilia argues that Harvey's 1990 claim

was merel y a "recycled" version of his 1973 claim and by "obtain[ing] a better lawyer and a f riendlier ALJ, he finally was able to get benefits." Lovil ia's Br. at 18, 31. Lovilia notes that in Pittston Coal Group v

. 3 Sebben , 488 U.S. 105, 123 (1988), the Supreme Court made clear that a blac k lung clai mant may not "seek[] to avoid the bar of res judicata on th e ground that the decision was wrong."

Contrary to Lovilia's assertion, Harvey was not attempting t o reliti gate the previous denials of earlier claims; rather, he wa s atte mpting to establish entitlement to benefits based on a change i n conditions since the denials. In such circumstances, res judicata does no t bar his claim. As the Fourth Circuit has stated, "res judicata does not apply if the issue is claimant's physical condition or degree of disabilit y at two entirely different times." Lisa Lee Mines v. Director , 86 F.3 d 1358, 136 2 (4th Cir. 1996) (en banc) (quoting 3 A. Larson, The Law o f Workmen's Compensation , § 79.72(f) (1989)), cert. denied , 117 S. Ct. 763 (1997). This is so because "[t]he health of a human being is no t susceptible to once-in-a-lifetime adjudication." Id. The Third Circuit also has explained th at although a black lung claimant is "precluded from collaterallyattacking the prior denial of benefits, [he] may file a new claim, asserting that he is now eligible for benefits because he has becom e totally disabled due to coal miner's pneumoconiosis and that his disabilit y occurred subsequent to the prior adjudication." Labelle Processing Co. v. Swarrow , 72 F.3d 308, 314

### "For purposes of this definition, a disease 'arising out of 4 

### coa l mine employment' includes any chronic pulmonary diseas e resulting in respiratory or pulmonary impairment significantl y rela ted to . . . dust exposure in the coal mine employment." 2 0 C.F.R. § 718.201.
-8- (3d Cir. 1995) (footn ote omitted). Simply stated, "[r]es judicata is not implicated when a miner brings a duplicate claim so long as the claimant demonstra tes that his or her physical condition . . . has changed. " Wyoming Fuel Co. v. Director , 90 F.3d 1502, 1510 (10th Cir. 1996).
Lovilia argues that these cases are wrongly decided because they are premised upon the err oneous assumption that pneumoconiosis -- which under the Act, 30 U.S.C. § 902(b), "means a chronic dust disease of the lun g

. . . arising out of coal mine employment" -- is a progressive disease

. 4 For the same reason, Lovilia argues that 20 C.F. R. § 725.309(d), which, as indicated, allows for review of a subsequent claim after a denial of a previous claim if a m iner demonstrates a "material change in conditions," violates res judicata. Specifically, Lovilia contends that if a coal mine r does not have pneumoconiosis or is not disabled by it at the time of a n initial denial and thereafter does not return to work in the mines, h e cannot develop the di sease or become disabled by it, and thus could never establish a change in conditions. We disagree. Quoting Mullins v. Coal Co. v. Director , 484 U.S. 135, 151-52 (1987), this court has recognize d that "'pneumoconiosis is a progressive and irreversible disease.' " Robinson v . Missouri Mining Co. , 955 F.2d 1181, 1185 (8th Cir. 1992)

. Moreover, we have noted that "pneumoconiosis is a progressive disease whic h (accor ding to medical testimony accepted by Congress) is difficult fo r miners and doctors to identify." Newman v. Director , 745 F.2d 1162, 1164 (8th Cir. 1984). Although Lovilia contends that the statements in ou r opinions, as well as in the opinions of the Supr eme Court and other courts of appeals, see, e.g. , Labelle Processing , 72 F.3d at 314 (listing cases "acknowleg[ing] that

### -9-

pneumoconiosis is a progressive and irreversible disease") are mere dicta, we disagree and will not revisit the issue.

Material Change in Conditions We ne xt address Lovilia's argument that the ALJ applied the wron g standard in determining that Harvey had demonstrated a "material change" in conditions. As previously indicated, 20 C.F.R. § 725.309(d), i n relevant part, provides that "[i]f [an] earlier miner's claim has bee n finally denied, the later claim shall also be denied, on the grounds of th e prior denial, unless the deputy director determines that there has been a material change in conditions." Neither the statute nor the regulations define "ma terial change." In this case, the ALJ applied the Benefit s Review Board's standard set forth in Spese v. Peabody Coal Co. , 11 Black Lung Rep. 1-174, 1-176 (Ben. Rev. Bd. 1988) (per curiam), which holds that

a claimant can establish a material change by submitting "evidence which is relevant and probative so that there is a reasonable probability that [it] would change the prior administrative result."
We do not address the validity of th e Spese standard at length. The Director acknowledges that "[e]very circuit that has addressed the validit y of the Spese standard has rejected it[,]" Wyomin g Fuel Co. v. Director , 90 F.3d at 1508 (listing cases), and concedes it is wrong. In Wyoming Fuel , the court explained t hat appellate courts had rejected the Spese standard because it "violates principles of res judicata by permitting a claimant -

- when attem pting to show a material change -- to present evidence tha t merely shows the initial decision was in error, rather than limiting the evi dence to that which shows that the claimant's condition has worsene d since the previous denial." Id. at 1508-09. Instead, the Director asks this court to adopt his "one-element " standard, as did the Third Circuit, Labelle Processing Co.

### In Sahara Coal , the Seventh Circuit held that "[a] material 5 

### change in conditions means either that the miner did not hav e black lung disease at the time of first application but has sinc e contracted it and become totally disabled by it, or that hi s disease has progressed to the point of becoming totally disabling although it was not at the time of the first application." 94 6 F.2d at 556. However, the cou rt believed that "[i]t is not enough that the new application be supported by new evidence of dis ease or disabi lity, because such evidence might show merely that th e original denial was wrong." Id.

-10- v. Swarrow , 72 F.3d at 318; Fourth Circuit, Lisa Lee Mines v. Director , 86 F.3d at 1363; and Sixth Circuit, Sharondale Corp. v. Ross , 42 F.3d 993, 99 8 (6th Cir. 1994). Under the Director's standard, an ALJ "making a material change determination must consider whether the weight of the new evidence of record (that is, the evidence developed since the denial of the earlier claim), su bmitted by all the parties, establishes at least one of th e elements of entitlement previously adjudicated against the miner. " Director's Br. at 32. In order to establish entitlement to black lun g benefi ts, a claimant has to establish three elements: "[1] tota l disabilit y; [2] that disability was caused 'at least in part b y pneumoconiosis;' [3] that 'disability arose out of coal mine employment.'" Barnes v. ICO Corp. , 31 F.3d 678, 680 (8th Cir. 1994) (quoting Mullins v. Director , 484 U.S. at 141). Moreover, "[t]he element in question must be
one capable of change," for example, the existence of pneumoconiosis o r tota l disability. Director's Br. at 33. If a claimant presents suc h evidence, "[a]bsent contrary evidence clearly demonstrating that the denia l of the in itial claim was a mistake," an inference of material change i s "compelled" and an ALJ "must then consider wheth er all the evidence in the
rec ord, including the evidence predating the denial of the prior claim , supports an entitlement to benefits." Id.

The Direc tor acknowledges that the Seventh Circuit, Sahara Coal Co. v. Office of Workers' Comp. Prog. , 94 6 F.2d 554, 556 (7th Cir. 1991), and 5 Tenth Circuit, Wyoming Fuel Co. v. Director , 90

### In Wyoming Fuel , the Tenth Circuit held t hat "a claimant must 6 

### prove for each element that actually was decided adversely to the claimant in the prior denial t hat there has been a material change in tha t condition since the prior claim was denied." 90 F.3d a t 1511.
-11- F.3d at 1511, do not follow his "one-element" approach. However, th e 6 Director reminds this court that "[w]hen, like in this case, the issue is whether the agency has erred in interpreting its own regulations, th e Supreme Court has sta ted that: provided the agency's interpretation 'does not viola te the Constitution or a federal statute, it must be give n controlling weight unless it is plainly erroneou s or inconsistent with the regulation.'" Shalala v. St. Paul-Ramsey Med. C tr. , 50 F.3d 522, 527 (8th Cir. 1995) (quoting Stinson v. United States , 50 8 U.S. 36, 45 (1993)). As the Dire ctor points out, this means we may not "'reject reasonabl e administrative interpretation even if another interpretation may also be reasonable.'" Id. (quoting Creighton Omaha Reg'l Health Care Corp. v

. Bowen , 822 F.2d 785, 789 (8th Cir. 1987)).

We first reject Lovilia's argument that the Director's one-elemen t approach is not entitled to Chevron deference because it is inconsistent wit h his past positions. "Of course the mere fact that an agenc y interpretation contradicts a prior agency position is not fatal." Se e Smiley v. Citibank , 116 S. Ct. 1730, 1734 (1996). Unless a change i s arbit rary or capricious or an abuse of discretion, "change is no t invalidating, since t he whole point of Chevron is to leave the discretion pro vided by the ambiguities of a statute with the implementing agency. " Id. We a lso reject Lovilia's related argument that no deference is du e becau se the Director's position is a mere litigating position. In th e circumstances of this case, the Director's "position is in no sense a 'pos t hoc rationalizatio[n]’ advanced by an agency see king to defend past agency action against attack." Auer v. Robbins , 1997 WL 65558, *6 (Feb. 17, 1997 ) (quoting Bowen v. Georgetown Univ.

### -12-

Hosp. , 488 U.S. 204, 212 (1988)). "There is simply no reason to suspect that the [Director's] interpretation does not reflect the agency's fair an d considered judgment on the matter in question." Id.

Lovilia also contends that the Director's one-element standard is not entitle d to deference because it violates section 7(c) Administrativ e Procedures Act (APA), 5 U.S.C. 556(d), which requires that "the proponent of a rule or order has the burden of proof." Lovilia relies on Director

v. Greenwich Collieries , 512 U.S. 267 (1994). In Greenwich Collieries , th e Supreme Court invalidated the DOL's "true doubt" rule, which provided that if the evidence was evenly balanced, a black lun g claimant was entitled to benefits. The Court held that the rule violated section 7(c) because it "shi fted the burden of persuasion to the party opposing the benefit s claim." Id. at 269.

Here, Lovilia argues that the Director's one-element approac h impermissibly shifts the burden of persuasion from the claimant to the coa l company . We disagree. There is no dispute that the Director' s interpretation create s a presumption--that is, it calls for an "inference of an ultimate fact from a predicate one." Mull ins , 484 U.S. at 157 n.30. However, the presumpt ion does not violate Greenwich Collieries . In fact, in that ca se, the Court noted that "due to Congress' recognition tha t [bla ck lung] claims . . . would be difficult to prove, claimants . .

. benefit from certain statutory presumptions easing their burden." 512 U.S

. at 280 (citing e.g. 30 U.S.C. § 921(c)). In addition, the Court recognize d that D OL's "solicitude for benefits claimants is reflected in th e regulat ions adopting additional presumptions." Id. (citing 20 C.F.R

. §§ 718.301-718-306). The Court indicated that the statutory and regulator y presumptions which ease a claimant's burden of p roduction ( i.e. , a party's obligation to come forward with evidence supporting its claim") do no t violate the APA. 512 U.S. at 272. The Court di stinguished the true doubt rule

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from those presumptions because the rule "attempt[ed] to go one ste p further" and "[i]n so doing," id. at 280, imperm issibly shifted the burden of persuasion ( i.e. , "the notion that if the evidence is evenly balanced, the par ty that bears the burden of persuasion must lose"). Id. at 272

. In this case, the Director's interpretation is akin to the statutory and regula tory presumptions which ease a black lung claimant's burden o f production, but do not shift the burden of persuasion, as that term is use d in Greenwich Collieri es . See Lovell v. Poway Unified Sch. Dist. , 90 F.3d 367, 373 (9th Cir. 1996) ("'Burdens of persuasio n affect the outcomes only of cases in which the trier of fact thinks that plaintiff's and defendant' s positi ons equiprobable.'") (quoting Bristow v. Drake St., Inc. , 41 F.3 d 345, 353 (7th Cir. 1994)).
Lovilia also argues that the Director's one-element standard vi olates due process. "Like all rules of evidence that permit an inference of an ultimate fact from a predicate one, black lung benefits presumptions rest on a judgment that the relationship between the ultimate and the predicate facts has a basis in the logic of common understanding." Mullins , 484 U.S

. at 157 n. 30. To satisfy due process concerns, however, "it is onl y
ess ential that there shall be some rational connection between the fac t proved and the ultima te fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purel y arbitrary mandate." Usery v. Turner Elkhorn Mining Co. , 428 U.S. 1, 2 8 (1976) (internal quotation omitted). Moreover, the Supreme Court ha s recognized that "[t]h e process of making the determination of rationality is, by its nature, highly empirical, and in matt ers not within specialized judicial competence or completely commonplace, significant weight should be accor ded the capacity of Congress to amass the stuff of actua l experience and cull conclusions from it." Id. (quotation omitted). W e also kee p in mind that "black lung presumptions, no less than an y presump tion established or recognized in law, are the product of bot h factual understandings and policy concerns." Mullins , 484 U.S. at 157.

### -14- In this case, Lovilia argues that the Director's standard violate s due process because there is no rational connection between the fac t pre sumed -- material change -- and the fact proved -- new evidence o f disease or disability. However, Lovilia's argument is based on the premis e that pneumoconiosis is not a progressive disease, a premise we hav e previo usly rejected. Lovilia also argues that the presumption i s irrational because new evidence of disease or disability "might show merel y that the original denial was wrong, and would thereby constitute a n impermissible collateral attack on that denial." Sahara Coal , 946 F.2d at 556.

The Director counters that Lovilia m isunderstands his standard. The Director a sserts that his standard is faithful to the language of th e regulation and to both claim and issue preclusion principles. The Directo r maintains that his standard ensures that a miner has experienced a materia l change in conditions and prevents an impermissible collateral attack on a prev ious denial by presuming that the initial denial was correct an d requiring the claimant to establish an element of entitlement capable of change wi th new evidence. For example, the Director explains that if a miner was found not to have pneumoconiosis at the time of an earlie r denial, an d he thereafter establishes that he has the disease, in th e absence of evidence showing the denial was a mistake, an inference o f "material change" is not only permitted but "compelled." We agree. Cf. Mullin s , 484 U.S at 158-59 ("Secretary's reading of the interi m presumption's invocation burden satisfies both t he purposes of the statute and the need for a logical connection between the proven fact and th e presumed conclusion.") (footnote omitted).

The Director also asserts that his one-element standard promote s administrative and judicial efficiency, while at the same

### -15-

time r espects issue preclusion principles, which requires that a determination of an issue "must have been essential to the final judgment. " Tyu s , 93 F.3d at 453. In the context of a black lung claim, the Fourt h Circuit explained, "[a] black lung claimant must prove every element of hi s claim. If he loses on one, or two, or three elements, the end result is the same: a denial." Lisa Lee Mine , 86 F.3d at 1363. Under issu e pr eclusion principles, "holdings in the alternative, either of whic h independe ntlywould be sufficient to support the result . . . [are] no t
con clusive with respect to either issue standing alone." Id. (interna l quotation omitted); s ee also Ritter v. Mount St. Mary's College , 814 F.2d 986, 993 (4th Cir.) ("where the court in the pri or suit has determined two issues , either of which could independently support the result, the n neit her determination is considered essential to the judgment"), cert
. denied , 484 U.S. 913 (1987). "For this reason, if [a black lung claimant] loses on more than one element, but only one is in fact a correct basis fo r denial, t he law does not impose a duty upon him to file a meaningles s appeal to 'correct' t he erroneous alternative holdings." Lisa Lee Mines , 86 F.3d at 1363. Als o, for this reason, the Director asserts that once a claimant establishes entitlement to one element with new evidence, he can establish entitlement to the remaining elements with old evidence.

As the Fourth Circuit noted, "[a] rational system woul d simultaneously accoun t for the progressiveness of the disease, discourage
use less appeals of alternate holdings, and require, at the threshold, a palpable basis to believe that conditions have changed over time." Lisa Lee Mines , 86 F.3d at 1364. We agree with the Fourth Circuit that "[t]he Director's 'one-eleme nt' approach accomplishes this difficult task." Id. at 1364-65. We thus reject Lovilia's due process argument.

Appare ntlyrealizing the weakness of its due process argument , Lovilia concedes that the presumption "might not be so bad if the

### -16-

inference of changed conditions" was rebuttable. Lovilia's Reply Br. at 15. However, Lovilia asserts because the presum ption is irrebuttable, it is "illegal," but does not explain why. An irrebuttable, or "conclusive pres umption does, of course, foreclose the person against whom it i s invoked from demonstr ating, in a particularized proceeding, that applying the presumption to him will in fact not further the lawful governmenta l policy the presumption is designed to effectuate." Michael H. v. Gerald D. , 491 U.S. 110, 120 (1989). Although the Dire ctor does not dispute that his standard creates a mandatory presumption, that is it "compels" rather than permits an inference, see First Dakota Nat. Bank v. St. Paul Fire & Marine Ins. Co. , 2 F.3d 801, 813 (8th Cir. 1993), the Director argues it does not create an ir rebuttable presumption because it allows an employer to dispute the presumed fact.
The Director is correct that as a technical matter his interpre tation does not create an irrebuttable presumption. If, however, it did, or as a practical matter it does, it is not illegal. In Michael H. , the Supreme Court recognized some confusion about its so-called "irrebuttabl e presum ption cases" and explained that the "cases must ultimately b e analyzed as calling into question not the adequacy of procedures but -

- like our cases involving classifications framed in other terms, . . . -- the adequacy of the 'fit' between the classification and the policy that the classification se rves." 491 U.S. at 121 (internal citation omitted). As just discussed, we find that there is an "adequate fit" between th e Director's one-element standard and the finality and efficiency policies it is designed to serve. Moreover, as the Director notes, hi s interpretation serves the remedial purpose of the Act. See Labell e Processing , 72 F.3d. at 318.

Because we find that the Director's interpretation of 20 C.F.R

. § 725.309(d) is reasonable, we join the Third, Fourth and

### Like the Fourth Circuit in Lisa Lee Mines , "[w]e do no t 7 

### endorse . . . the closing paragraph of Sharondale Corp. , 42 F.3d at 999, wher e . . . the Sixth Circuit seems to have require d consid eration of evidence behind the earlier denial to determin e whe ther it 'differ[s] qualitatively' from the new evidence." 8 6 F.3d at 1363 n.11.

We n ote, however, our agreement with the Tenth Circuit' s 8 

### critic ismof the Seventh Circuit's Sahara Coal standard, Wyomin g Fuel , 90 F.3d at 1509-10, but for reasons stated above, we tend to disagree with the Tenth Circui t that the Director's interpretation of 20 C.F.R. § 725.309(d) is not entitled to deference.
-17- Sixth Circuits in adopting the Director's one-element standard , and do not 7 address the Seventh and Tenth Circuit approaches. Even if we found that they were also reasonable, we would be obligated to defer to the Director' s standard. 8

Harvey's Claim Finally, we turn to Harvey's claim. Lovilia asserts that if thi s court adopts the Director's one-element standard, then we must remand so that the ALJ can apply the standard. The Direct or and Harvey contend that
a re mand is unnecessary because the evidence submitted in support o f Harvey's 1990 claim, as a matter of law, not only demonstrates a material change in conditions, but, as the ALJ found, that, as of March 1, 1990 , Harvey was totally disabled by pneumoconiosis and is thus entitled t o benefits.

In support of his present claim for benefits, Harvey submitted a November 1992 letter by Dr. Gordon Arnott, in which the doctor stated:
This man has worked in the coal mines for 32 years. During the last f our years, he had considerable trouble with breathing

. He has X-Ray findings of Black Lung Disease.
Mr. Harvey requires breathing treatment, medication to dilate his lungs, inhaler treatments, and cortisone

### -18- injections to help him with his breathing. He has been in the hospital with this condition on numerous occasions. He will continue to be disabled by this problem.
In addition, Harvey s ubmitted medical records showing that Dr. Arnott had treated Harvey for breathing problems since 1988, includin g hospitalizations solely because of breathing problems or where hi s pulmonary condition was a significant diagnosis. For example, in August 1991, Harvey was admitted to the hospital after he came to the emergency
room "severely short of breath and unable to function at all" and breathin g treatments "were not real effective." He was again admitted in September 1991 for "marked shortness of breath, dyspnea, and wheezing."
In the circumstances of this case, we agree with the Director that a remand is unnecessary. As to material change, in this case, there is no qu estion "whether the ALJ merely disagreed with the previou s characterization of the strength of the evidence or whether [Harvey] indee d had shown the existence of a material change in his conditions since the earlier denial." Sharondale Corp. , 42 F.3d at 9 99. In this case, the ALJ expressly found that the "hospital records dramatically demonstrate that [Harvey's] respiratory status has worsened substantially" since th e previous denial, and that the evidence showed both the existence o f pneumoconiosis and disability. ALJ order of July, 28, 1993 at 7. Thus,
a remand for a material change finding "would serve no useful purpose. " Olson v. Shalala , 48 F.3d 321, 323 (8th Cir. 1995); see also Lisa Le e Mines , 86 F.3d at 1362 (although ALJ applied Spese standard, reman d unnecessarywhere claimant "ha[d] shown a stark change in condition").

As to entitlement, Lovilia challenge s the ALJ's findings that Harvey had pneumoconiosis, that it arose out of coal mine employment, and tha t Har vey was totally disabled by the disease. We, like the Board, mus t uphold "an ALJ's findings if they are

### -19-

ra tional, supported by substantial evidence, and consistent with th e applicable law." Associated Elec. Coop., Inc. v . Hudson , 73 F.3d 845, 848 (8th Cir. 1996).

On appeal , Lovilia concedes that the "Act does not require positive X-rays[,]" id. at 848 (citing 20 C.F.R. § 718.202(b) ("[n]o claim fo r benefits shall be denied solely on the basis of a negative chest X-ray")). Indeed, the regulations provide that a determina tion of pneumoconiosis may be made "if a physician, exercising sound medical judgment, notwithstandin g
a negative X-ray, finds that the miner suffers from pneumoconiosis." 20 C.F.R. § 718.202(a)(4). However the doctor's finding must be "based o n objective medical evi dence such as blood gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physica l examination, and medical and work histories" and be "supported by a reasoned medical opinion." Id. In addition, a determination of "tota l disabil itymay be [] found if a physician exercising reasoned medica l judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner's respiratory or pulmonary conditio n prevents him" from performing his usual coal mine duties or comparabl e work. Id. § 718.204(c)(4).

Lovilia also recognizes that in evaluating medical opinions an AL J may assign great weight to the opinion of a treating physician. Hudson , 73 F.3d at 848. However, Lovilia incorrectly asserts that there is n o record evidence showing that Dr. Arnott was in fact Harvey's treatin g physician

. As the ALJ noted, the medical records clearly show that Dr

. Arnott had treated Harvey for breathing problems since 1988. "Because [Dr

. Arnott] regularly treated [Harvey] for his breathing problems . . ., the ALJ had discretion to assign more weight to his opinion." Id. at 849.
Lovilia also incorrectly argues that the ALJ erred in concludin g that Dr. Arnott's opinion was a reasoned medical

### -20-

opinion. Although it is "up to the finder of fact to decide as a matter of credibility whether a physician's report is s ufficiently documented and reasoned[,]" id. at 848, as Lovilia points out, an ALJ must view the repor t "in light of the studies conducted and the objective indications upon whic h the medical opinion or conclusion is based." Logsdon v. Director , 853 F.2 d 613, 615 (8th Cir. 1988) (internal quotation omi tted). However, this does not mean that an ALJ may "use the studies to form his or her own medical opinion and to substitute that opinion for the o pinion of an expert." Id. (internal quotation omitted).

In this c ase, the ALJ did not err in concluding that Dr. Arnott' s opinion was well-documented and reasoned. The ALJ evaluated the doctor's opinion ag ainst the medical records. In fact, the ALJ discounted Dr

. Arnott's statement that Harvey had X-ray evidence of pneumoconiosis becaus e
no X-rays of record supported that statement. The ALJ also noted th e objective medical tes ts did not conclusively demonstrate the existence of pneumoconiosis, but f ound that Dr. Arnott's opinion was nonetheless welldocumented because it was supported by records of numerous hospitalization s and treatments for breathing problems, physical examinations, consideratio n of objective tests, and work history. In Campbell v. Director , 846 F.2d 502, 508 (8th Cir. 1988), we found that a doctor's report was a "documente d opinion of a physician exercising reasoned medical judgment" even though it differed from equivocal test results. We exp lained that "Congress has recognized that tests and X-rays designed to detect pulmonary impairments caused by the inhalation of coal dust are far from infallible." I d (internal quotation omitted). See also Ware v. Director , 814 F.2d 514, 51 7 (8th Cir. 1987) (equivocal test results did not impeach doctor's diagnosis of pneumoconiosis based on claimant's "medical history, employment history , and symptoms").

Also, contrary to Lovilia's arguments, the ALJ did not ignore th e other medical evidence of record. The ALJ noted the earlier

### "Because [Harvey] worked as a miner for more than 10 years, 9 

### there is a rebuttable presumption that the pneumoconiosis ar ose out of coal mine employment." Hudson , 73 F.3d at 848 (citing 20 C.F.R. § 718.203(b). As the ALJ foun d, no contrary evidence rebuts this presumption.
-21- medica l opinions indicated that Harvey did not have pneumoconiosis, bu t found they were not relevant since they did not address Harvey's condition at t he time of the administrative hearing. See Robinson v. Missour i Mining , 955 F.2d at 1 184 ("[a]s pneumoconiosis is a progressive disease," the ALJ should consid er "temporal proximity . . . in determining which of two diffe rent medical opinions to credit"). The ALJ also noted that i n 1987 Dr. Des Camps had reported that Harvey had obstructive lung disease due to coal dust exposure and cigarette smoking and that in April 1990 Dr. B. C. Hillyer diagnosed Harvey as having moderate chronic obstructiv e pulmon arydisease due to cigarette smoking. Contrary to Lovilia' s suggestion, these reports are not inconsistent w ith the ALJ's finding that as of March 1990 Harv ey had pneumoconiosis and that it "arose at least in part out of coal mine employment." 20 C.F.R. § 718.203(a)(emphasi s adde d). Cf. Hudson , 73 F.3d at 849 (doctor's opinion that symptom s

9 consis tent with heart disease and smoking did "not contradict ALJ' s separate findings that [claimant] suffered from pneumoconiosis and that it
was a contributing cause of his disability"); Consolidation Coal Co. v

. Hag e , 908 F.2d 393, 394 (8th Cir. 1990) (employer's "cigarette defense " insufficient to rebut statutory presumption of existence o f pneumoconiosis).
Accordingly, we affirm the Board's award of black lung benefits.

### -22- A true copy.

Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.