UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. O. LIVELY CONSTRUCTION

COMPANY,

Petitioner,

v.

No. 97-2441

RALPH MANNING, Deceased;

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of Orders

of the Benefits Review Board.

(95-2148-BLA, 92-1841-BLA)

Submitted: May 19, 1998

Decided: June 29, 1998

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William H. Howe, Mary Lou Smith, HOWE, ANDERSON &

STEYER, P.C., Washington, D.C., for Petitioner. Robert F. Cohen,

Jr., COHEN, ABATE & COHEN, L.C., Fairmont, West Virginia;

Marvin Krislov, Deputy Solicitor for National Operations, Donald S.

Shire, Associated Solicitor, Christian P. Barber, Rita Roppolo,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

J.O. Lively Construction Company ("employer") petitions for

review of a decision of the Benefits Review Board ("Board") affirming the administrative law judge's ("ALJ") award of black lung benefits to Ralph Manning, a deceased former coal miner. The first

hearing on Manning's claim took place in 1987 before ALJ Marden.

In his 1988 decision, the ALJ credited Manning with 30 years of coal

mine employment and evaluated the claim under 20 C.F.R. Part 718

(1997), of the applicable regulations. He found the evidence of record

insufficient to directly prove the existence of pneumoconiosis under

20 C.F.R. § 718.202(a) (1997). The ALJ recognized that because of

the length of his coal mine employment, Manning could establish a

rebuttable presumption of entitlement through 20 C.F.R. § 718.305

(1997), by establishing a totally disabling respiratory impairment. By

so doing, Manning could receive a rebuttable presumption that all elements of his claim, including pneumoconiosis, had been established.

Although Manning's pulmonary function studies qualified under

Appendix B of the regulations, reflecting a disabling respiratory

impairment, the ALJ found no total disability based on his view that

the ventilatory studies were outweighed by the non-qualifying blood

gas studies and the medical opinions of Drs. Salom, Daniel, and Zaldivar, who the ALJ found considered the ventilatory evidence in rendering their opinions. Drs. Salom and Daniel actually collaborated on

a single report and found no evidence of significant pulmonary dysfunction. Dr. Zaldivar found a moderate obstructive impairment

which he opined would limit the miner's work activities to a "mild

level."

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The Board affirmed ALJ Marden's decision and Manning filed a

petition for modification under 20 C.F.R. § 725.310 (1997), which

permits any party to seek reconsideration within one year of a decision if he can establish either a material change in conditions or a

mistake of fact. Id. Together with this petition Manning submitted

new medical evidence, some of which he possessed at the time the

case was originally before the district director (called "deputy commissioners" at the time) but never submitted. This "deputy commissioner" evidence consisted of pulmonary function studies and blood

gas studies performed on October 19, 1982, and November 8, 1992,

a 1982 medical opinion from Dr. Rasmussen, and an opinion from the

West Virginia Occupational Pneumoconiosis Board.

ALJ Neusner initially considered Manning's modification petition.

He admitted medical evidence submitted by both parties, including

the deputy commissioner evidence, into the record without objection,

but remanded the claim to the deputy commissioner because some of

the evidence had never been considered at the deputy commissioner

level. When the case returned to the ALJ level, ALJ Neusner was

unavailable, so the claim was assigned to ALJ Levin.

In his first consideration of the claim, ALJ Levin found that Manning could not submit the deputy commissioner evidence because he

could not establish extraordinary circumstances permitting admission

of evidence which could have been submitted earlier, in accordance

with 20 C.F.R. § 725.456(d) (1997). Because he viewed this evidence

as the basis for Manning's claim of a mistake of fact, he found no

mistake of fact. He further found, however, that the evidence developed since ALJ Marden's decision established a change in conditions

that warranted granting modification and an award of benefits. He

found that new qualifying ventilatory studies established total disability in the absence of contrary probative evidence. He further determined that non-qualifying blood gas tests conducted after the original

denial did not negate the qualifying ventilatory evidence because pulmonary function studies and blood gas studies measure different types

of impairment. Because he found that employer submitted no evidence contrary to the qualifying ventilatory studies, the ALJ found

disability and awarded benefits.

Employer appealed the finding of a change in conditions and Manning appealed the finding of no mistake of fact. Manning desired that

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the finding of modification be based on a mistake of fact rather than

a change in conditions because a finding of mistake of fact would

result in an earlier onset date for the commencement of benefit payments. The Board vacated the ALJ's finding of a change in conditions

based on its finding that the ALJ erred by considering only the new

evidence, rather than the new evidence in conjunction with the old

evidence, to determine this issue. The Board also vacated the ALJ's

finding of no mistake of fact so that he could reconsider this issue in

accordance with this Court's then recent decision in Jessee v. Director, Office of Workers' Compensation Programs, 5 F.3d 723 (4th Cir.

1993).

In his decision on remand, ALJ Levin considered all the evidence

of record, including the deputy commissioner evidence. He found

consideration of this evidence proper in light of the liberal standards

of Jessee, and because employer had not objected when this evidence

was entered into the record before ALJ Neusner. As in his first consideration of the claim, all conforming ventilatory studies of record

were qualifying. Again, he found that the non-qualifying blood gas

studies did not undermine the tendency of the ventilatory studies to

establish disability. He found that the only other potentially contrary

evidence of record consisted of the reports of Drs. Daniel (which was

also Dr. Salom's report) and Zaldivar. Unlike ALJ Marden, however,

he rejected Dr. Daniel's opinion because he failed to reconcile his

finding of no significant respiratory dysfunction with the ventilatory

evidence. He also rejected Dr. Zaldivar's finding of no total disability

because his report failed to reflect that the doctor was aware of the

exertional requirements of Manning's last coal mine job. Hence, ALJ

Levin again awarded benefits, this time based upon a mistake of fact.

The Board affirmed.

In Jessee, we held that the statutory and regulatory provisions relating to modification in black lung cases give deputy commissioners

authority, for one year after the final order on a claim, "to simply

rethink a prior finding of fact." Id. at 725. We stated, "[t]hus, a claimant may simply allege that the ultimate fact -- disability due to pneumoconiosis -- was mistakenly decided, and the deputy commissioner

may, if he so chooses, modify the final order on the claim." Id. We

also noted in Jessee that although the underlying authorities use the

term "deputy commissioners," that term includes ALJs. Id. at 725 n.2.

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Employer contends, however, that a finding of a mistake of fact

would be improper in this case, because such a finding would be

improperly based upon the deputy commissioner evidence which

should not have been considered. We find it unnecessary to resolve

whether this evidence was properly considered, however, because we

find that even excluding such evidence, there is no doubt that the

ALJ's ruling would have been the same. The qualifying ventilatory

studies he considered were merely cumulative of other qualifying

studies performed both before and after the disputed studies, and all

conforming studies of record were qualifying. The only other deputy

commissioner evidence favorable to Manning which the ALJ considered was the report of Dr. Rasmussen. But Dr. Rasmussen's finding

that the miner could only perform sedentary work is essentially the

same as the finding of Dr. Scott, employer's physician, that the miner

could only perform "light" work in view of his respiratory impairment.

The real key to the ALJ's finding of disability was the employer's

inability to submit contrary and probative evidence to outweigh the

ventilatory evidence of disability. A claimant may invoke the presumption at § 718.305 by establishing total disability in accordance

with the criteria set forth in § 718.204. See 20 C.F.R. § 718.305(c)

(1997). Under § 718.204, a miner establishes disability by any one of

the four alternative means set forth in that section, in the absence of

contrary probative evidence. Lane v. Union Carbide Corp., 105 F.3d

166, 171 (4th Cir. 1997). One way to preliminarily establish disability

under § 718.204 is through qualifying pulmonary function studies.

Thus, contrary to employer's contention, the ALJ did not improperly

shift the burden of proof in this case when weighing the relevant evidence under § 718.204, but properly found that the qualifying ventilatory evidence established disability in the absence of contrary

evidence.

Next, the ALJ properly found that the non-qualifying blood gas

evidence did not constitute contrary probative evidence because those

tests measure a different type of impairment than the kind measured

by ventilatory studies. See Tussey v. Island Creek Coal Co., 982 F.2d

1036, 1041 (6th Cir. 1993). He then properly rejected Dr. Daniel's

opinion, which was contrary to the ventilatory evidence, because he

failed to reconcile his opinion with the contrary objective evidence.

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See Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 823 (4th Cir. 1995).

Particularly where the ventilatory evidence uniformly established the

existence of a significant impairment, the ALJ could rationally question the validity of an opinion that found the opposite without explanation for the discrepancy.

Finally, the ALJ discredited the report of Dr. Zaldivar, whose opinion constituted the only remaining contrary evidence, because his

report did not reflect that he was aware of the exertional requirements

of the miner's usual coal mine work. There is no dispute that an ALJ

may reject a report on this basis. See Walker v. Director, Office of

Workers' Compensation Programs, 927 F.2d 181, 183 (4th Cir.

1991). Moreover, substantial evidence supports the ALJ's determination in this case. Dr. Zaldivar found that Manning could perform the

job of a truck driver and mechanic. He found the miner's work activities restricted to a "mild level." The record, however, reflects that the

miner's last job was as a millwright, requiring him to hang and load

steel, unload trucks containing steel, and carry heavy objects up

flights of stairs. As the ALJ noted, Dr. Zaldivar did not consider these

occupational requirements.

Employer also asserts that the fact that ALJ Levin weighed the evidence differently from ALJ Marden demonstrates that he found modification based on a finding of a mistake of law, not fact. We disagree.

As reflected by the language quoted above from Jessee, disability is

the ultimate fact the ALJ must find. Moreover, there can be no doubt

that an ALJ's weighing of the evidence is intensely factual, even

though it must, of course, be done in accordance with law.

Employer finally avers that modification would not be in the interest of justice in this case. Such inquiry is not part of the analysis

employed by this Court in black lung modification cases, and we

decline to require consideration of this factor. Moreover, we note, in

any event, that the cases employer cites in support of its position on

this point are inapposite to this case and therefore fail to persuade us

that the grant of modification in this case resulted in any injustice.

Accordingly, the decision of the Board is affirmed. We dispense

with oral argument because the facts and legal contentions are ade-

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quately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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