___________

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.

Lovilia Coal Company and its insurance carrier, Old Republic

Insurance Company, (collectively Lovilia), petition for review of an order

of the Benefits Review Board (Board) of the Department of Labor (DOL)

awarding benefits under 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 until

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 eligibility

requirements for benefits, and Harvey's claim was reopened and reviewed

under the more lenient standards, 30 U.S.C. § 945, but was denied. Harvey

again filed claims for benefits in 1983, 1984 and 1987, which were all

denied. In March 1990, Harvey again applied for benefits. The deputy

director denied the claim, finding that Harvey had not established a

material 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 grounds of the prior denial, unless the deputy director

determines 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 to

pneumoconiosis." See 30 U.S.C. § 901. In addition, the ALJ rejected

Lovilia's argument that 30 U.S.C § 932 transferred liability for payment

of benefits from the company to the Black Lung Disability Trust Fund.

Lovilia appealed to the Board. The Board rejected Lovilia's arguments

relating to transfer of liability and material change, but held that the

ALJ had erred in concluding that Harvey was totally disabled due to

pneumoconiosis by relying solely on the opinion of Harvey's treating

physician, Dr. Gordon Arnott. Accordingly, the Board remanded the case for

a reconsideration based on all the evidence of record. On remand, the ALJ

again awarded benefits. The Board affirmed, and this petition for review

follows.

DISCUSSION

On appeal Lovilia first renews its argument that if Harvey is

entitled to benefits, section 205 of the Black Lung Benefits Amendments of

1981, Pub. L. 97-119, Title II, 95 Stat 1635 (1981), codified at 30 U.S.C.

§§ 932(c)(2), (j)(3), transferred liability for payment of the benefits

from the company to the Black Lung Disability Trust Fund (Fund). Lovilia

next raises several 
-3-

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

In the event this court rejects its arguments relating to transfer of

liability and material change, Lovilia goes on to argue that Harvey is not

entitled to benefits. 

Initially, we note that Lovilia's presentation of "the issues

reverses the usual order of inquiry; that is, we determine who should pay

before 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 determine that liability should

be transferred to the government's Trust Fund we need not address the issue

of whether [Harvey] is eligible for benefits." Id. In addition, we note

that the regulations, 20 C.F.R. § 725.497(c), contemplate that transfer

issues should be decided "as early as possible in 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 will 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 Congress "substantially liberalized

the criteria for establishing an entitlement to benefits." Tonelli v.

Director, 878 F.2d 1083, 1984 n.2 (8th Cir. 1989). In addition, Congress

provided that "[c]laims denied before March 1, 1978 (the effective date of

the 1977 amendments) were to be reexamined under these less demanding

standards." Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir. 1987).

In order to relieve coal companies of unexpected retroactive liability, in

1981 "Congress provided that liability for claims denied before March 1,

1978 which were thereafter approved under the liberalized eligibility

criteria should be transferred from coal operators to the Black Lung

Disability Trust Fund." Director v. Drummond Coal
 In addition, the 1981 amendments, which were enacted in

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 Lopatto,

The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev.

677 (1983). 

-4-

Co., 831 F.2d 240, 242 (11th Cir. 1987) (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 account of death

or total disability due to pneumoconiosis . . . which was the

subject of a claim denied before March 1, 1978, and which is or

has been approved in accordance with the provisions of section

945 of this title.

Section 932(j) provides that the Trust Fund is liable for "payment of

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 the

provisions of section 945 of this title." At the 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 to

benefits." 20 C.F.R. § 725.101(a)(22) (1977) (recodified at 20 C.F.R. §

725.101(a)(16) (1994)).

In this case, the Board upheld the ALJ's rejection of Lovilia's

transfer of liability argument. The Board reasoned that the only claim

pending before the ALJ was Harvey's claim of March 1990 and that the claim

could not support a transfer of liability since it was not, and could not

have been, denied before March 1, 1978. The Board noted that although

Harvey's 1973 claim had been denied before March 1, 1978, it had been

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 means 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 application

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, 846

(1997). As relevant here, the dictionary defines "claim" as "a demand for

compensation or benefits (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 an

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 would

transfer, which claims they were and what the cost would be" and relied on

estimates that the amendment would transfer about 10,200 claims, valued at

approximately $1.4 to $1.5 billion. Old Ben Coal Co., 826 F.2d at 694

(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 (6th Cir. 1988) ("Legislative

history shows that the transfer of liability provisions of the 1981

Amendments reflect a congressional
 Lovilia does not, and could not, argue that Harvey's 1990

2

claim merged with his 1973 claim. See Tonelli v. Director, 878

F.2d 1083, 1087 (8th Cir. 1988) (under 20 C.F.R. § 725.309© "merger

is available only when a previously denied claim, reopened for

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

governed by the criteria of 20 C.F.R Part 718. If the claim had

been merged, "then the more liberal criteria of 20 C.F.R. 727 would

have governed." Tonelli, 878 F.2d at 1084 n.3. 

-6-

intent to accommodate only a limited number of claims within estimated cost

limitations."). In any event, if any ambiguity existed, we would defer to

DOL's reasonable interpretation of the statute it is charged with

administering. See Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). DOL's transfer of liability regulation

makes clear that unless a claim is subject to merger, 20 C.F.R.

§ 725.309(c), "the procedural history of each . . . claim must be

considered separately to determine whether the claim is subject to the

transfer of liability provisions." Id. § 725.496(c).2

Res Judicata

Lovilia also argues that consideration of Harvey's 1990 claim is

barred by the doctrine of res judicata. The doctrine "consist[s] of two

preclusion concepts: 'issue preclusion' and 'claim preclusion.'" Migra v.

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). Under

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.

United States, 440 U.S. 147, 153 (1979)), cert. denied, 116 S. Ct. 73

(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 judgment, 'the determination is conclusive in a subsequent action

between the parties, whether on the same or a different claim.’” Tyus v.

Schoemehl, 93 F.3d 449, 453 (8th Cir. 1996) (quoting Restatement (Second)

of Judgments § 27 (1982)), pet.
 Lovilia refers to the preclusive effect of an administrative 3

determination in a subsequent administrative proceeding, rather

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 merely a "recycled" version of his 1973 claim and by "obtain[ing] a

better lawyer and a friendlier ALJ, he finally was able to get benefits."

Lovilia'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 black

lung claimant may not "seek[] to avoid the bar of res judicata on the

ground that the decision was wrong." 

 

Contrary to Lovilia's assertion, Harvey was not attempting to

relitigate the previous denials of earlier claims; rather, he was

attempting to establish entitlement to benefits based on a change in

conditions since the denials. In such circumstances, res judicata does not

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 disability

at two entirely different times." Lisa Lee Mines v. Director, 86 F.3d

1358, 1362 (4th Cir. 1996) (en banc) (quoting 3 A. Larson, The Law of

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 not

susceptible to once-in-a-lifetime adjudication." Id. The Third Circuit

also has explained that although a black lung claimant is "precluded from

collaterally attacking the prior denial of benefits, [he] may file a new

claim, asserting that he is now eligible for benefits because he has become

totally disabled due to coal miner's pneumoconiosis and that his disability

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

coal mine employment' includes any chronic pulmonary disease

resulting in respiratory or pulmonary impairment significantly

related to . . . dust exposure in the coal mine employment." 20

C.F.R. § 718.201.

-8-

(3d Cir. 1995) (footnote omitted). Simply stated, "[r]es judicata is not

implicated when a miner brings a duplicate claim so long as the claimant

demonstrates 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 erroneous assumption that pneumoconiosis -- which under

the Act, 30 U.S.C. § 902(b), "means a chronic dust disease of the lung

. . . 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 miner demonstrates a "material change in conditions,"

violates res judicata. Specifically, Lovilia contends that if a coal miner

does not have pneumoconiosis or is not disabled by it at the time of an

initial denial and thereafter does not return to work in the mines, he

cannot develop the disease 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 recognized

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 which

(according to medical testimony accepted by Congress) is difficult for

miners and doctors to identify." Newman v. Director, 745 F.2d 1162, 1164

(8th Cir. 1984). Although Lovilia contends that the statements in our

opinions, as well as in the opinions of the Supreme 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 next address Lovilia's argument that the ALJ applied the wrong

standard in determining that Harvey had demonstrated a "material change"

in conditions. As previously indicated, 20 C.F.R. § 725.309(d), in

relevant part, provides that "[i]f [an] earlier miner's claim has been

finally denied, the later claim shall also be denied, on the grounds of the

prior denial, unless the deputy director determines that there has been a

material change in conditions." Neither the statute nor the regulations

define "material change." In this case, the ALJ applied the Benefits

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 the Spese standard at length. The

Director acknowledges that "[e]very circuit that has addressed the validity

of the Spese standard has rejected it[,]" Wyoming Fuel Co. v. Director, 90

F.3d at 1508 (listing cases), and concedes it is wrong. In Wyoming Fuel,

the court explained that appellate courts had rejected the Spese standard

because it "violates principles of res judicata by permitting a claimant --

when attempting to show a material change -- to present evidence that

merely shows the initial decision was in error, rather than limiting the

evidence to that which shows that the claimant's condition has worsened

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 have black

lung disease at the time of first application but has since

contracted it and become totally disabled by it, or that his

disease has progressed to the point of becoming totally disabling

although it was not at the time of the first application." 946

F.2d at 556. However, the court believed that "[i]t is not enough

that the new application be supported by new evidence of disease or

disability, because such evidence might show merely that the

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, 998

(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), submitted by all the parties, establishes at least one of the

elements of entitlement previously adjudicated against the miner."

Director's Br. at 32. In order to establish entitlement to black lung

benefits, a claimant has to establish three elements: "[1] total

disability; [2] that disability was caused 'at least in part by

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 or

total disability. Director's Br. at 33. If a claimant presents such

evidence, "[a]bsent contrary evidence clearly demonstrating that the denial

of the initial claim was a mistake," an inference of material change is

"compelled" and an ALJ "must then consider whether all the evidence in the

record, including the evidence predating the denial of the prior claim,

supports an entitlement to benefits." Id. 

The Director acknowledges that the Seventh Circuit, Sahara Coal Co.

v. Office of Workers' Comp. Prog., 946 F.2d 554, 556 (7th Cir. 1991), and 5

Tenth Circuit, Wyoming Fuel Co. v. Director, 90
 In Wyoming Fuel, the Tenth Circuit held that "a claimant must 6

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." 90 F.3d at

1511. 

-11-

F.3d at 1511, do not follow his "one-element" approach. However, the

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, the

Supreme Court has stated that: provided the agency's interpretation 'does

not violate the Constitution or a federal statute, it must be given

controlling weight unless it is plainly erroneous or inconsistent with the

regulation.'" Shalala v. St. Paul-Ramsey Med. Ctr., 50 F.3d 522, 527 (8th

Cir. 1995) (quoting Stinson v. United States, 508 U.S. 36, 45 (1993)). As

the Director points out, this means we may not "'reject reasonable

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-element

approach is not entitled to Chevron deference because it is inconsistent

with his past positions. "Of course the mere fact that an agency

interpretation contradicts a prior agency position is not fatal." See

Smiley v. Citibank, 116 S. Ct. 1730, 1734 (1996). Unless a change is

arbitrary or capricious or an abuse of discretion, "change is not

invalidating, since the whole point of Chevron is to leave the discretion

provided by the ambiguities of a statute with the implementing agency."

Id. We also reject Lovilia's related argument that no deference is due

because the Director's position is a mere litigating position. In the

circumstances of this case, the Director's "position is in no sense a 'post

hoc rationalizatio[n]’ advanced by an agency seeking 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 and

considered judgment on the matter in question." Id. 

Lovilia also contends that the Director's one-element standard is not

entitled to deference because it violates section 7(c) Administrative

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, the

Supreme Court invalidated the DOL's "true doubt" rule, which provided that

if the evidence was evenly balanced, a black lung claimant was entitled to

benefits. The Court held that the rule violated section 7(c) because it

"shifted the burden of persuasion to the party opposing the benefits

claim." Id. at 269. 

Here, Lovilia argues that the Director's one-element approach

impermissibly shifts the burden of persuasion from the claimant to the coal

company. We disagree. There is no dispute that the Director's

interpretation creates a presumption--that is, it calls for an "inference

of an ultimate fact from a predicate one." Mullins, 484 U.S. at 157 n.30.

However, the presumption does not violate Greenwich Collieries. In fact,

in that case, the Court noted that "due to Congress' recognition that

[black 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 recognized

that DOL's "solicitude for benefits claimants is reflected in the

regulations adopting additional presumptions." Id. (citing 20 C.F.R.

§§ 718.301-718-306). The Court indicated that the statutory and regulatory

presumptions which ease a claimant's burden of production (i.e., a party's

obligation to come forward with evidence supporting its claim") do not

violate the APA. 512 U.S. at 272. The Court distinguished the true doubt

rule
-13-

from those presumptions because the rule "attempt[ed] to go one step

further" and "[i]n so doing," id. at 280, impermissibly shifted the burden

of persuasion (i.e., "the notion that if the evidence is evenly balanced,

the party that bears the burden of persuasion must lose"). Id. at 272.

In this case, the Director's interpretation is akin to the statutory and

regulatory presumptions which ease a black lung claimant's burden of

production, but do not shift the burden of persuasion, as that term is used

in Greenwich Collieries. See Lovell v. Poway Unified Sch. Dist., 90 F.3d

367, 373 (9th Cir. 1996) ("'Burdens of persuasion affect the outcomes only

of cases in which the trier of fact thinks that plaintiff's and defendant's

positions equiprobable.'") (quoting Bristow v. Drake St., Inc., 41 F.3d

345, 353 (7th Cir. 1994)).

Lovilia also argues that the Director's one-element standard violates

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 only

essential that there shall be some rational connection between the fact

proved and the ultimate fact presumed, and that the inference of one fact

from proof of another shall not be so unreasonable as to be a purely

arbitrary mandate." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28

(1976) (internal quotation omitted). Moreover, the Supreme Court has

recognized that "[t]he process of making the determination of rationality

is, by its nature, highly empirical, and in matters not within specialized

judicial competence or completely commonplace, significant weight should

be accorded the capacity of Congress to amass the stuff of actual

experience and cull conclusions from it." Id. (quotation omitted). We

also keep in mind that "black lung presumptions, no less than any

presumption established or recognized in law, are the product of both

factual understandings and policy concerns." Mullins, 484 U.S. at 157. 
-14-

In this case, Lovilia argues that the Director's standard violates

due process because there is no rational connection between the fact

presumed -- material change -- and the fact proved -- new evidence of

disease or disability. However, Lovilia's argument is based on the premise

that pneumoconiosis is not a progressive disease, a premise we have

previously rejected. Lovilia also argues that the presumption is

irrational because new evidence of disease or disability "might show merely

that the original denial was wrong, and would thereby constitute an

impermissible collateral attack on that denial." Sahara Coal, 946 F.2d at

556.

The Director counters that Lovilia misunderstands his standard. The

Director asserts that his standard is faithful to the language of the

regulation and to both claim and issue preclusion principles. The Director

maintains that his standard ensures that a miner has experienced a material

change in conditions and prevents an impermissible collateral attack on a

previous denial by presuming that the initial denial was correct and

requiring the claimant to establish an element of entitlement capable of

change with new evidence. For example, the Director explains that if a

miner was found not to have pneumoconiosis at the time of an earlier

denial, and he thereafter establishes that he has the disease, in the

absence of evidence showing the denial was a mistake, an inference of

"material change" is not only permitted but "compelled." We agree. Cf.

Mullins, 484 U.S at 158-59 ("Secretary's reading of the interim

presumption's invocation burden satisfies both the purposes of the statute

and the need for a logical connection between the proven fact and the

presumed conclusion.") (footnote omitted).

The Director also asserts that his one-element standard promotes

administrative and judicial efficiency, while at the same
-15-

time respects issue preclusion principles, which requires that a

determination of an issue "must have been essential to the final judgment."

Tyus, 93 F.3d at 453. In the context of a black lung claim, the Fourth

Circuit explained, "[a] black lung claimant must prove every element of his

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 issue

preclusion principles, "holdings in the alternative, either of which

independently would be sufficient to support the result . . . [are] not

conclusive with respect to either issue standing alone." Id. (internal

quotation omitted); see also Ritter v. Mount St. Mary's College, 814 F.2d

986, 993 (4th Cir.) ("where the court in the prior suit has determined two

issues, either of which could independently support the result, then

neither 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 for

denial, the law does not impose a duty upon him to file a meaningless

appeal to 'correct' the erroneous alternative holdings." Lisa Lee Mines,

86 F.3d at 1363. Also, 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 would

simultaneously account for the progressiveness of the disease, discourage

useless 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-element' approach accomplishes this difficult task." Id.

at 1364-65. We thus reject Lovilia's due process argument.

 

Apparently realizing 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 presumption is irrebuttable, it

is "illegal," but does not explain why. An irrebuttable, or "conclusive

presumption does, of course, foreclose the person against whom it is

invoked from demonstrating, in a particularized proceeding, that applying

the presumption to him will in fact not further the lawful governmental

policy the presumption is designed to effectuate." Michael H. v. Gerald

D., 491 U.S. 110, 120 (1989). Although the Director 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 irrebuttable presumption because it allows an employer

to dispute the presumed fact. 

The Director is correct that as a technical matter his interpretation

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 "irrebuttable

presumption cases" and explained that the "cases must ultimately be

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 serves." 491 U.S. at 121 (internal citation omitted).

As just discussed, we find that there is an "adequate fit" between the

Director's one-element standard and the finality and efficiency policies

it is designed to serve. Moreover, as the Director notes, his

interpretation serves the remedial purpose of the Act. See Labelle

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 not

7

endorse . . . the closing paragraph of Sharondale Corp., 42 F.3d at

999, where . . . the Sixth Circuit seems to have required

consideration of evidence behind the earlier denial to determine

whether it 'differ[s] qualitatively' from the new evidence." 86

F.3d at 1363 n.11.

 We note, however, our agreement with the Tenth Circuit's

8

criticism of the Seventh Circuit's Sahara Coal standard, Wyoming

Fuel, 90 F.3d at 1509-10, but for reasons stated above, we tend to

disagree with the Tenth Circuit 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 this

court adopts the Director's one-element standard, then we must remand so

that the ALJ can apply the standard. The Director and Harvey contend that

a remand is unnecessary because the evidence submitted in support of

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 to

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 four 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 submitted medical records showing that Dr. Arnott had

treated Harvey for breathing problems since 1988, including

hospitalizations solely because of breathing problems or where his

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 breathing

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

question "whether the ALJ merely disagreed with the previous

characterization of the strength of the evidence or whether [Harvey] indeed

had shown the existence of a material change in his conditions since the

earlier denial." Sharondale Corp., 42 F.3d at 999. In this case, the ALJ

expressly found that the "hospital records dramatically demonstrate that

[Harvey's] respiratory status has worsened substantially" since the

previous denial, and that the evidence showed both the existence of

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 Lee

Mines, 86 F.3d at 1362 (although ALJ applied Spese standard, remand

unnecessary where claimant "ha[d] shown a stark change in condition"). 

 

As to entitlement, Lovilia challenges the ALJ's findings that Harvey

had pneumoconiosis, that it arose out of coal mine employment, and that

Harvey was totally disabled by the disease. We, like the Board, must

uphold "an ALJ's findings if they are
-19-

rational, supported by substantial evidence, and consistent with the

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 for

benefits shall be denied solely on the basis of a negative chest X-ray")).

Indeed, the regulations provide that a determination of pneumoconiosis may

be made "if a physician, exercising sound medical judgment, notwithstanding

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 on

objective medical evidence such as blood gas studies, electrocardiograms,

pulmonary function studies, physical performance tests, physical

examination, and medical and work histories" and be "supported by a

reasoned medical opinion." Id. In addition, a determination of "total

disability may be [] found if a physician exercising reasoned medical

judgment, based on medically acceptable clinical and laboratory diagnostic

techniques, concludes that a miner's respiratory or pulmonary condition

prevents him" from performing his usual coal mine duties or comparable

work. Id. § 718.204(c)(4). 

Lovilia also recognizes that in evaluating medical opinions an ALJ

may assign great weight to the opinion of a treating physician. Hudson,

73 F.3d at 848. However, Lovilia incorrectly asserts that there is no

record evidence showing that Dr. Arnott was in fact Harvey's treating

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 concluding 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 sufficiently documented and

reasoned[,]" id. at 848, as Lovilia points out, an ALJ must view the report

"in light of the studies conducted and the objective indications upon which

the medical opinion or conclusion is based." Logsdon v. Director, 853 F.2d

613, 615 (8th Cir. 1988) (internal quotation omitted). 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 opinion of an expert." Id.

(internal quotation omitted). 

In this case, the ALJ did not err in concluding that Dr. Arnott's

opinion was well-documented and reasoned. The ALJ evaluated the doctor's

opinion against the medical records. In fact, the ALJ discounted Dr.

Arnott's statement that Harvey had X-ray evidence of pneumoconiosis because

no X-rays of record supported that statement. The ALJ also noted the

objective medical tests did not conclusively demonstrate the existence of

pneumoconiosis, but found that Dr. Arnott's opinion was nonetheless welldocumented because it was supported by records of numerous hospitalizations

and treatments for breathing problems, physical examinations, consideration

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 "documented

opinion of a physician exercising reasoned medical judgment" even though

it differed from equivocal test results. We explained 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." Id

(internal quotation omitted). See also Ware v. Director, 814 F.2d 514, 517

(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 the

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 arose out

of coal mine employment." Hudson, 73 F.3d at 848 (citing 20 C.F.R.

§ 718.203(b). As the ALJ found, no contrary evidence rebuts this

presumption. 

-21-

medical opinions indicated that Harvey did not have pneumoconiosis, but

found they were not relevant since they did not address Harvey's condition

at the time of the administrative hearing. See Robinson v. Missouri

Mining, 955 F.2d at 1184 ("[a]s pneumoconiosis is a progressive disease,"

the ALJ should consider "temporal proximity . . . in determining which of

two different medical opinions to credit"). The ALJ also noted that in

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 obstructive

pulmonary disease due to cigarette smoking. Contrary to Lovilia's

suggestion, these reports are not inconsistent with the ALJ's finding that

as of March 1990 Harvey had pneumoconiosis and that it "arose at least in

part out of coal mine employment." 20 C.F.R. § 718.203(a)(emphasis

added). Cf. Hudson, 73 F.3d at 849 (doctor's opinion that symptoms

9

consistent 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.

Hage, 908 F.2d 393, 394 (8th Cir. 1990) (employer's "cigarette defense"

insufficient to rebut statutory presumption of existence of

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.