### 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 Orde r 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. *

__________ Submitted: January 10, 1996 Filed: March 7, 1996

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

__________ MURPHY, Circuit Judge.

Bernice V an 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 tippl e and helped regulate t he water valves as a coal washer. In 1973, he began coughing up brown phl egm and having trouble breathing when he walked. He stopped working in 19 79, a few months after hurting his back and hip in a mine accident.

Va n Dyke filed his first claim for disability benefits under th e Black Lung Benefits Act in 1974. He abandoned t his 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 pulmonar y 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 bec ause the ALJ had failed to consider contrary med ical 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 McE lroy 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 employe r had not rebutted the presumption of disability. 1

The BRB again vacated and remanded t he case in 1993. It vacated the conclusion that the d isability presumption had been invoked because Judge McElroy had failed to discuss Dr. Mitchell's invalidation of Dr. Gryte's pft values. In addit ion, Judge McElroy had not properly explained why he had relied on Dr. Gryte's

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diagnosis rather than Dr. Hollinger's contrary opinion. Instead, he had noted t hat Dr. Hollinger was often hired by employers and incorrectl y stated that Dr. Gryte was board-certified in internal medicine. Finally, the BRB vacated Judge McElroy's determination th at Missouri Mining had not rebutted the presumption of disability because he did not consider negativ e x-ray results and other medical evidence in addition to Van Dyke's wor k history.

After the case was remanded in 1993, Judge Edward Murty, Jr. wa s
ass igned to review it since Judge McElroy had retired. Prior to thi s 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 als o 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 an d two arterial blood gas studies were negative for pneumoconiosis. Of the four p fts in the record, one was invalidated for lack of effort, an d another, relied upon by Dr. Gryte, was invalidated for inconsistent values

. The two remaining pft results did not qualify for pneumoconiosis an d the refore did not justify invoking the presumption of disability due t o pneumoconiosis.

Judge Murty also found that Dr. Hollinger, a pulmonary diseas e specialist, was more reliable than Dr. Gryte since the latter had relied

on an invalidated pft. Dr. Hollinger had diagnosed Van Dyke as havin g chroni c obstructive pulmonary disease related to his thirty years o f cigar ette smoking, followed by several years of pipe smoking. The AL J noted tha t Van Dyke's job as a coal washer required little physica l 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 Murt y concluded that Van Dyke was not entitled to a presumption of disabilit y 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 Dyk e petitioned this court for review.

Van Dy ke does not focus on the BRB's recent decision in 1995 whic h affirme d Judge Murty's denial of benefits. Although the petition fo r review formally sough t 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 Judg e Murty's 1994 decision, but petitioner argues that the second award of Judg e McElroy in 1986 should have been affirmed because it was supported b y substantial evidence and was in accordance with the law.

Missouri Mining responds that we lack jurisdiction over the thrus t of Van Dyke's argument because we are limited to reviewing the BRB's lates t decision in 1995. It also argues that Van Dyke waived consideration o f Judge McElroy's 1986 decision by failing to exhaust administrativ e remed ies. In any case, Missouri Mining argues that the BRB correctl y

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 benefi t claims. It is up to an ALJ to resolve conflicting medical

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

v. Direc tor, OWCP , 768 F.2d 982, 984 (8th Cir. 1985) (it is within th e ALJ's d iscretion as finder of fact to determine whether a physician' s repor t is sufficiently documented and reasoned to support a claim). A claimant may challenge the ALJ's decision on app eal to the BRB. 33 U.S.C. § 921(b); Aubrey v. D irector, 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 decisio n if there are no prejudicial errors of law and the factual findings ar e 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

. 199 3). The BRB is not authorized to undertake a de novo review or t o substit ute its views for those of the ALJ. Yauk v. Director, OWCP , 91 2 F.2d 192, 194 (8th Cir. 1989).

Our jur isdiction is predicated on the issuance of a final order b y the BRB pursuant to 33 U.S.C. § 921(c). This provision states in par t that:

Any per son adversely affected or aggrieved by a final order of th e Board may obtain a review of that order in the United States cour t of appeals for the circuit in which the injury occurred . . . . Upon such filing [of petition for review], the court shall hav e jurisdiction of the proceeding and shall have the power to give a decree af firming, modifying, or setting aside, in whole or in part, the order of the Board and enforcing same to the extent that suc h 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, withou t 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 remande d by the BRB could not constitute the final disposition of the claim); Redde n v. Director,

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OWCP , 825 F.2d 337, 338 (11th Cir. 1987) (BRB or der vacating and remanding is no t a final order because it neither fixes employer's liability no r claimant's right to benefits).

The BRB's 1995 order was its final decision because it determin ed the liabilities and right s at stake by affirming the denial of benefits. Van Dyke's petition for review of the BRB's 1995 dec ision 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 en titled to look at the entire record in determining whether the BRB committe d errors of law or adhe red to its standard of review, and whether the ALJ's decision was supporte d by substantial evidence and reached in conformance with the applicable law. See Robinson v. Missouri Mining Co. , 955 F.2 d 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 thi s case, a thorough review of the record reveals no errors b y the BRB in the earlier stages of the proceeding that should taint its fina l decision. The BRB vacated Judge McElroy's 1986 decision because it wa s 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 Ph illips , 768 F.2d at 985 (finder of fact must examine the validity of a medical opinion in light of contrary test results o r diagno sis). Judge McElroy also improperly credited Dr. Gryte's opinio n 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 f act that physician received a fee from a party), and he stated that Dr. Gryte was board-certified in internal medicine whe n there was no evidence of such qualification. Compare Long v. Bowen , 866 F.2d 1066, 1067

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(8th Ci r. 1989) (affirming ALJ decision where greater weight given t o 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, hi s decis ion was properly vacated and remanded "for further appropriat e 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 M urty's decision, we have also carefully reviewed the record as to that. W e conclude that the BRB limited itself to the proper stan dard of review and that Judge Murty's findings were supported b y substa ntial evidence and were reached in accordance with the applicabl e 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.