The HONORABLE LEVIN H. CAMPBELL, United States Circuit *

Judge for the First Circuit, sitting by designation. 

__________

No. 95-2259

__________

Bernice Van Dyke, *

*

Petitioner, *

* On Petition For Review of an Order

v. * of the Benefits Review Board. 

*

Missouri Mining, Inc.; *

Wausau Insurance Company; and *

Director, Office of Workers' *

Compensation Programs, United *

States Department of Labor, *

*

Respondents. *

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Submitted: January 10, 1996

Filed: March 7, 1996

__________

Before WOLLMAN, CAMPBELL , and MURPHY, Circuit Judges. *

__________

MURPHY, Circuit Judge.

Bernice Van Dyke, widow of coal miner James Van Dyke, petitions for

review of an order by the Benefits Review Board of the Department of Labor

(BRB) affirming the denial of benefits by an Administrative Law Judge (ALJ)

under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. 

James Van Dyke spent 27 years working at coal mines. His last
 The Supreme Court has since struck down the "true doubt" 1

rule as violating the standards of proof required by § 7(c) of

the Administrative Procedure Act, 5 U.S.C. § 556(d). Director v.

Greenwich Collieries, 114 S.Ct. 2251, 2259 (1994).

2

job was at Missouri Mining, Inc., where he shoveled coal at the coal tipple

and helped regulate the water valves as a coal washer. In 1973, he began

coughing up brown phlegm and having trouble breathing when he walked. He

stopped working in 1979, a few months after hurting his back and hip in a

mine accident.

Van Dyke filed his first claim for disability benefits under the

Black Lung Benefits Act in 1974. He abandoned this claim after an initial

denial, and filed a new claim in 1976. After an administrative hearing in

1982, ALJ Virgil M. McElroy awarded him benefits based on a pulmonary

function test (pft), fiberoptic bronchoscopy, and a report by Dr. Rolf E.

Gryte, who had concluded that Van Dyke suffered from pneumoconiosis (black

lung disease). The BRB vacated and remanded because the ALJ had failed to

consider contrary medical evidence when he invoked an interim presumption

of disability due to pneumoconiosis, pursuant to 20 C.F.R. § 727.203(a),

and when he decided that there was insufficient rebuttal evidence under 20

C.F.R. § 727.203(b). 

Judge McElroy affirmed the award of benefits in 1986. Although one

pft would have favored invoking the presumption of disability and a more

recent test would not have, the ALJ resolved his "true doubt" as to which

test result to follow in the worker's favor and concluded that the employer

had not rebutted the presumption of disability. 

1

The BRB again vacated and remanded the case in 1993. It vacated the

conclusion that the disability presumption had been invoked because Judge

McElroy had failed to discuss Dr. Mitchell's invalidation of Dr. Gryte's

pft values. In addition, Judge McElroy had not properly explained why he

had relied on Dr. Gryte's
3

diagnosis rather than Dr. Hollinger's contrary opinion. Instead, he had

noted that Dr. Hollinger was often hired by employers and incorrectly

stated that Dr. Gryte was board-certified in internal medicine. Finally,

the BRB vacated Judge McElroy's determination that Missouri Mining had not

rebutted the presumption of disability because he did not consider negative

x-ray results and other medical evidence in addition to Van Dyke's work

history.

 

After the case was remanded in 1993, Judge Edward Murty, Jr. was

assigned to review it since Judge McElroy had retired. Prior to this

assignment, all parties were sent a notice of Judge McElroy's retirement

and the intent to transfer the case to a new ALJ. The notice also

mentioned an opportunity to object; no objection was made. 

Judge Murty denied Van Dyke benefits in a 1994 decision after he had

reviewed all of the evidence. He pointed out that three x-ray readings and

two arterial blood gas studies were negative for pneumoconiosis. Of the

four pfts in the record, one was invalidated for lack of effort, and

another, relied upon by Dr. Gryte, was invalidated for inconsistent values.

The two remaining pft results did not qualify for pneumoconiosis and

therefore did not justify invoking the presumption of disability due to

pneumoconiosis.

 

Judge Murty also found that Dr. Hollinger, a pulmonary disease

specialist, was more reliable than Dr. Gryte since the latter had relied

on an invalidated pft. Dr. Hollinger had diagnosed Van Dyke as having

chronic obstructive pulmonary disease related to his thirty years of

cigarette smoking, followed by several years of pipe smoking. The ALJ

noted that Van Dyke's job as a coal washer required little physical

exertion and that Van Dyke had told an investigator that he had quit his

job because of his back injury. Based on all of this evidence, Judge Murty

concluded that Van Dyke was not entitled to a presumption of disability

under 20 C.F.R.
 Missouri Mining contends that because Van Dyke did not seek 2

reconsideration of the BRB's remand of Judge McElroy's 1986

decision, she has not exhausted her administrative remedies and

has waived her right to challenge that BRB action. Generally, a

claimant must exhaust her administrative remedies by seeking a

final decision from the agency before going to court. See

Consolidation Coal Co. v. Smith, 837 F.2d 321, 323 n.3 (8th Cir.

1988). Under the Black Lung Benefits Act, however, a claimant

need not seek reconsideration of a BRB decision before

petitioning to this court. See 20 C.F.R. § 802.407 (a party

"may" request reconsideration of a BRB decision within thirty

days).

4

727.203(a), and that he had not demonstrated that he had pneumoconiosis.

The BRB affirmed the denial of benefits on March 29, 1995, and Van Dyke

petitioned this court for review. 

Van Dyke does not focus on the BRB's recent decision in 1995 which

affirmed Judge Murty's denial of benefits. Although the petition for

review formally sought review of all prior decisions, including the BRB's

1995 order, Van Dyke's brief focuses on whether the BRB erred in vacating

and remanding Judge McElroy's award of benefits in 1986. Counsel conceded

at oral argument that there was substantial evidence to support Judge

Murty's 1994 decision, but petitioner argues that the second award of Judge

McElroy in 1986 should have been affirmed because it was supported by

substantial evidence and was in accordance with the law.

 

Missouri Mining responds that we lack jurisdiction over the thrust

of Van Dyke's argument because we are limited to reviewing the BRB's latest

decision in 1995. It also argues that Van Dyke waived consideration of

Judge McElroy's 1986 decision by failing to exhaust administrative

remedies. In any case, Missouri Mining argues that the BRB correctly

2

vacated Judge McElroy's decision because it was based on several errors of

law and later affirmed Judge Murty's denial of benefits. 

 

Congress created a special system for review of black lung benefit

claims. It is up to an ALJ to resolve conflicting medical
5

evidence and to determine whether to award benefits. See, e.g., Phillips

v. Director, OWCP, 768 F.2d 982, 984 (8th Cir. 1985) (it is within the

ALJ's discretion as finder of fact to determine whether a physician's

report is sufficiently documented and reasoned to support a claim). A

claimant may challenge the ALJ's decision on appeal to the BRB. 33 U.S.C.

§ 921(b); Aubrey v. Director, OWCP, 916 F.2d 451, 452-53 (8th Cir. 1990).

The BRB's scope of review is limited, and it must affirm the ALJ's decision

if there are no prejudicial errors of law and the factual findings are

supported by substantial evidence in the record as a whole. 33 U.S.C.

§ 921(b)(3); Oliver v. Director, OWCP, 993 F.2d 1353, 1353-54 (8th Cir.

1993). The BRB is not authorized to undertake a de novo review or to

substitute its views for those of the ALJ. Yauk v. Director, OWCP, 912

F.2d 192, 194 (8th Cir. 1989).

 

Our jurisdiction is predicated on the issuance of a final order by

the BRB pursuant to 33 U.S.C. § 921(c). This provision states in part

that: 

Any person adversely affected or aggrieved by a final order of the

Board may obtain a review of that order in the United States court

of appeals for the circuit in which the injury occurred . . . . Upon

such filing [of petition for review], the court shall have

jurisdiction of the proceeding and shall have the power to give a

decree affirming, modifying, or setting aside, in whole or in part,

the order of the Board and enforcing same to the extent that such

order is affirmed or modified. 

33 U.S.C.A. § 921(c) (1986).

Here, the BRB's 1993 decision was not a final order because it merely

vacated and remanded Judge McElroy's decision for further findings, without

resolving Van Dyke's claims. See Bartley v. L & M Coal Co., 901 F.2d 1311,

1313 (6th Cir. 1990) (ALJ's initial decision which was vacated and remanded

by the BRB could not constitute the final disposition of the claim); Redden

v. Director,
6

OWCP, 825 F.2d 337, 338 (11th Cir. 1987) (BRB order vacating and remanding

is not a final order because it neither fixes employer's liability nor

claimant's right to benefits). 

The BRB's 1995 order was its final decision because it determined the

liabilities and rights at stake by affirming the denial of benefits. Van

Dyke's petition for review of the BRB's 1995 decision therefore authorizes

our jurisdiction over the proceeding pursuant to 33 U.S.C. § 921(c). 

Although our review arises from the BRB's 1995 order, we are entitled

to look at the entire record in determining whether the BRB committed

errors of law or adhered to its standard of review, and whether the ALJ's

decision was supported by substantial evidence and reached in conformance

with the applicable law. See Robinson v. Missouri Mining Co., 955 F.2d

1181, 1183 (8th Cir. 1992); Oliver, 993 F.2d at 1353-54; Cline v. Director,

OWCP, 917 F.2d 9, 10 (8th Cir. 1990). 

In this case, a thorough review of the record reveals no errors by

the BRB in the earlier stages of the proceeding that should taint its final

decision. The BRB vacated Judge McElroy's 1986 decision because it was

premised on legal errors. These errors included Judge McElroy's failure

to discuss Dr. Mitchell's invalidation of the MVV values on Dr. Gryte's

pulmonary function study and the negative x-ray evidence prior to making

his findings. See Phillips, 768 F.2d at 985 (finder of fact must examine

the validity of a medical opinion in light of contrary test results or

diagnosis). Judge McElroy also improperly credited Dr. Gryte's opinion

over Dr. Hollinger's contrary report because Dr. Hollinger worked for mine

operators, see Richardson v. Perales, 402 U.S. 389, 403 (1971) (bias not

established by mere fact that physician received a fee from a party), and

he stated that Dr. Gryte was board-certified in internal medicine when

there was no evidence of such qualification. Compare Long v. Bowen, 866

F.2d 1066, 1067
7

(8th Cir. 1989) (affirming ALJ decision where greater weight given to

doctors whose credentials were not in doubt). The BRB should not affirm

a decision containing prejudicial errors of law, so even if Judge McElroy's

findings could be said to have been supported by substantial evidence, his

decision was properly vacated and remanded "for further appropriate

action." 33 U.S.C. § 921(b)(4); Oliver, 993 F.2d at 1353. 

Even though Van Dyke's challenge does not focus on the BRB's

affirmance of Judge Murty's decision, we have also carefully reviewed the

record as to that. We conclude that the BRB limited itself to the proper

standard of review and that Judge Murty's findings were supported by

substantial evidence and were reached in accordance with the applicable

law. See Oliver, 993 F.2d at 1354. We therefore affirm the BRB's March

29, 1995 order denying benefits.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.