Filed: July 16, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 94-2523

(92-338-BLA)

Lisa Lee Mines (Terrilynne Coal Company),

Petitioner,

versus

Director, Office of Workers' Compensation

Programs, etc., et al,

Respondents.

ORDER

The Court amends its opinion filed June 19, 1996, as follows:

On the cover sheet, section 6 -- the section is corrected to

read: "Affirmed by published opinion. Judge Hall wrote the majority opinion, in which Judges Widener, Murnaghan, Ervin, Niemeyer,

Michael, and Motz joined. Judge Niemeyer wrote a concurring opinion. Judge Luttig wrote a dissenting opinion, in which Chief Judge

Wilkinson and Judges Russell, Wilkins, Hamilton, and Williams

joined."

For the Court - By Direction

/s/ Bert M. Montague
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA LEE MINES (TERRILYNNE COAL

COMPANY),

Petitioner,

v.

No. 94-2523

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR; ALVA

RUTTER,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(92-338-BLA)

Argued: January 30, 1996

Decided: June 19, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Hall wrote the majority opinion, in which Judges Widener, Murnaghan, Ervin, Niemeyer, Michael, 

and Motz joined. Judge Niemeyer wrote a concurring opinion. Judge

Luttig wrote a dissenting opinion, in which Judges Wilkinson, 

Russell, Wilkins, Hamilton, and Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: Ronald Eugene Gilbertson, KILCULLEN, WILSON &

KILCULLEN, CHARTERED, Washington, D.C., for Petitioner.

Christian P. Barber, Counsel for Appellate Litigation, Office of the

Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director; Robert F. Cohen, Jr., COHEN,

ABATE & COHEN, Fairmont, West Virginia, for Respondent Rutter.

ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor for Black Lung Benefits, Karen N.

Blank, Office of the Solicitor, UNITED STATES DEPARTMENT

OF LABOR, Washington, D.C., for Respondent Director.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

Lisa Lee Mines petitioned for review of an order of the Department

of Labor's Benefits Review Board (BRB) affirming the award of

black lung benefits to Alva Rutter, a former coal miner. A panel of

this court reversed and remanded. Lisa Lee Mines v. Director, Office

of Workers' Compensation Programs, 57 F.3d 402 (4th Cir. 1995).

Rutter, who had proceeded pro se before the panel, obtained counsel

and sought rehearing en banc. Having granted such rehearing, we now

affirm.

I.

Putting aside for a moment the question on which the parties disagree, we must first note that Alva Rutter's medical condition unquestionably qualifies him for black lung benefits. He is the very paradigm

of the man Congress intended to compensate. According to x-rays

taken in 1988 and 1989, he has profuse1 small opacities in all six lung

_________________________________________________________________

1 One reader classified the profusion as 2/3 and the other as 3/2. There

are twelve levels of profusion classification for the radiographic interpretation of simple pneumoconiosis. 2/3 is the fourth highest profusion and

3/2 the third. See N. LeRoy Lapp, "A Lawyer's Medical Guide to Black

Lung Litigation," 83 W. Va. Law Rev. 721, 729-731 (1981).

 2
zones, upon which has developed complicated pneumoconiosis, or, by

its more dauntingly descriptive name, "progressive massive fibrosis."

One of the 1989 readers classified the large opacities in Rutter's lungs

in Category B, which means that they are greater than two inches in

diameter. Because progressive massive fibrosis is just that -- progressive -- Rutter is doubtless worse off now, seven years later, and he

is not yet an old man.2 He spent his entire working life -- 32 years

-- in the mines, most of it loading coal by hand. Because of this long

tenure, he need prove nothing more than his complicated pneumoconiosis to be entitled to benefits. 30 U.S.C. § 921(c)(1), (3); 20 C.F.R.

§§ 718.302, .304. In short, the substance of Rutter's claim is fine.

II.

Procedure is the rub. In 1986, without the assistance of an attorney,

Rutter applied for black lung benefits. He was still working at the

time. An x-ray he submitted showed complicated pneumoconiosis;

nonetheless, a Department of Labor claims examiner sent him a form

denial. Rutter did not pursue the claim further.

In April 1989, he filed a new claim.3 Because of the denial of his

earlier claim, this one was subject to the "duplicate claims" regulation

at 20 C.F.R. § 725.309(d), which states, in relevant part:

If the 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 commissioner determines that

there has been a material change in conditions . . ..

This time a deputy commissioner4 in the Department awarded benefits. The responsible operator, petitioner Lisa Lee Mines, requested a

hearing. Lisa Lee's challenge to the deputy commissioner's decision

_________________________________________________________________

2 Rutter was born June 5, 1936. At the time of his 1989 claim application, he had five minor dependent children living at home.

3 Rutter was still working as a miner helper at the time, though, the

very next month, his breathing problems led to a transfer to less arduous

toil. He retired in January 1990.

4 "Deputy commissioners" are now referred to as "district directors." 20

C.F.R. § 725.101(a)(11) (1995).

 3
was limited to whether Rutter had made the threshold showing of a

"material change in conditions." The parties then agreed to submit the

question on the existing record.

On October 11, 1991, an administrative law judge (ALJ) issued a

decision and order awarding benefits. After canvassing the evidence,

the ALJ concluded, "the medical evidence in 1989 shows a definite

progression of the disease occurring over another interval of time

resulting in the Claimant's reduced capacity to do his former coal

mine work."

The ALJ then went on to hold that, if the evidence were inadequate

to establish a material change in conditions, Rutter would still be entitled to benefits. According to the ALJ, the 1986 denial was erroneous

on its face and "null and void ab initio." Consequently, "it is believed

that a determination whether or not the new evidence establishes a

change of condition is immaterial." The ALJ set the date of onset of

disability as August 1, 1986.

On September 30, 1994, the BRB modified the award. It held that

the ALJ's finding of an actual progression of Rutter's disease was

sufficient to satisfy its Spese5 test for material change in condition.

However, the BRB held that the ALJ had no power to reopen or

review the denial of the 1986 claim, which became final upon Rutter's failure to appeal or move to modify it. The BRB therefore

affirmed the award but changed the date from which benefits were

payable to April 1, 1989. Lisa Lee then filed a timely petition for

review in this court.

III.

Lisa Lee's argument is as easily stated as it is counterintuitive: Rutter must now lose because he clearly should have won in 1986. He

likely should have; the ALJ here was so appalled by the 1986 denial

that he deemed it "void ab initio." Nonetheless, though we might

_________________________________________________________________

5 Spese v. Peabody Coal Co., 11 BLR 1-174, 1-176 (Ben. Rev. Bd.

1988) (change in conditions is established by evidence that is "relevant

and probative so that there is a reasonable possibility that [it] would

change the prior administrative result.").

 4
share the ALJ's sentiment, we agree that his reasoning was flawed.

The 1986 denial is final, see Pittston Coal Group v. Sebben, 488 U.S.

105, 122-123 (1988), and for present purposes, we must assume that

it was correct.

The panel rejected the BRB and Director's standards for determining whether there was a material change in Rutter's condition. The

panel criticized the BRB's Spese standard because it "impermissibly

allows a claimant to present . . . evidence available at the time of the

initial decision tending to show that the initial decision was in error."

57 F.3d at 406. The Director's standard met similar criticism: "it permits reconsideration of critical determinations underlying a decision

denying benefits." Id. at 407. Instead, the panel adopted the Seventh

Circuit's test, which, as applied, meant that the miner must show that

his condition has changed on every element previously decided

against him. See Sahara Coal Co. v. Director, OWCP, 946 F.2d 554

(7th Cir. 1991). Moreover, as in Sahara Coal, the panel required

inquiry into the evidence behind the earlier decision, rather than

merely accepting the factual predicate of the earlier decision as correct. Consequently, the panel remanded for an all-but-certain finding

that Rutter had actually been eligible for benefits in 1986, so his current conceded eligibility could not evince a material change in condition. We disagree with this reasoning.

If the 1986 denial is "final" in a legal sense, we must accept the

correctness of its legal conclusion -- Rutter was not eligible for benefits at that time -- and that determination is as off-limits to criticism

by the respondent as by the claimant. Only by repudiating the 1986

judgment and its necessary factual underpinning can no change in

Rutter's condition be found. We believe that such repudiation is

improper.

Accepting the correctness of a final judgment is more than legalistic tunnel vision; it is a practical -- perhaps the only practical -- way

to discern a concrete form in the mists of the past. The ease we might

feel at second-guessing this final judgment ought not tempt us to

overestimate our retrospective perspicacity; most black lung claims

involve a mixed bag of test results and wildly divergent medical opinions. The final decision of the ALJ (or BRB or claims examiner) on

the spot is the best evidence of the truth at the time.

 5
In this regard, the panel opinion could be read to imply that the

deputy commissioner made an express finding of fact in 1986 that

Rutter had complicated pneumoconiosis. See 57 F.3d at 404 ("A

Department of Labor deputy commissioner denied that claim, finding

that although Rutter had presented evidence of complicated

pneumoconiosis, he had not established that the disease was caused

by coal mine work, or that he was totally disabled by the disease.")

(emphasis added). This implication is mistaken. The form denial neither states that Rutter has complicated pneumoconiosis nor acknowledges that he "had presented evidence" of it. It may have been

obvious to all who could and would see, but a finding that should

have been made is not a finding that was made.6

Not only does the denial of benefits itself necessarily imply the

opposite finding, see 20 C.F.R. §§ 718.302 and .304, but the language

of the summary denial form can logically lead only to that finding. In

one part of the correspondence, Rutter was told that he had not proved

total disability; in another, he was invited to submit additional evidence on that issue, and was told that proof of complicated pneumoconiosis would suffice.7

_________________________________________________________________

6 We can only speculate that Rutter would have had the 1986 denial

reversed on appeal to an ALJ, the BRB, or this court. For all we can

know, had Rutter requested a hearing, the respondent would have produced a dozen radiologists to deny that his x-rays were positive for complicated pneumoconiosis.

Moreover, it is at least conceivable that the claims examiner consciously rejected the x-ray evidence of complicated pneumoconiosis as

inconsistent with Rutter's "essentially normal" pulmonary function tests.

7 The denial of benefits was accomplished through Department of

Labor form letter No. CM-1000a (Jan. 1982) and its "Guide for Submitting Additional Evidence," No. CM-1000g (Jan. 1982). The letter states,

as pertinent here:

Dear Claimant:

We have carefully reviewed the evidence in your claim under the

Black Lung Benefits Act. This evidence does not show that you

qualify for black lung benefits.

* * *

 6
We accept the final 1986 decision, as well as its necessary factual

predicate, as correct. Rutter has shown a stark change in condition,

and he is entitled to have his 1989 claim decided on its own considerable merits.

IV.

A.

Rutter's is just a single case, and our reasons for affirming the

award could end here. However, the proper standard to determine

whether a given claimant has proved a "material change in condition"

has recently split the circuits, and we now take this opportunity to

align ourselves with the Third and Sixth Circuits, rather than the Seventh.

In choosing the proper standard, we have three candidates: (1) the

BRB's Spese formulation, which broadly looks to whether the newly

submitted evidence favorable to the claim has a "reasonable possibility" of changing the prior result; (2) the Sahara Coal test, adopted by

the Seventh Circuit and the panel here, which requires the miner to

_________________________________________________________________

You do not qualify for benefits because the evidence in your

claim

* * *

2. (X) does not show that the disease was caused at least

in part by coal mine work; [and]

3. (X) does not show you are totally disabled by the disease. Totally disabled means you are unable to perform the

type of work required by your coal mine work because of a

breathing impairment caused by pneumoconiosis (black lung

disease). The results of your medical evidence are shown on

the enclosed explanation.

The guide for submitting additional evidence directed Rutter to submit

proof of total disability due to pneumoconiosis. Five types of such proof

were listed; the very first was "X-ray or other evidence confirming the

presence of complicated pneumoconiosis (the most severe form of black

lung disease)[.]"

 7
show that he "did not have black lung disease at the time of the 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; and (3) the Director's "one-element" standard, which

requires the claimant to prove, under all of the probative medical evidence of his condition after the prior denial, at least one of the elements previously adjudicated against him. The Director's standard, to

which we owe deference,8 is easily the most reasonable and workable

of the lot. To explain why, we should begin with background principles.

B.

A new black lung claim is not barred, as a matter of ordinary res

judicata, by an earlier denial, because the claims are not the same.

The health of a human being is not susceptible to once-in-a-lifetime

adjudication.

It is almost too obvious for comment that res judicata does

not apply if the issue is claimant's physical condition or

degree of disability at two entirely different times, particularly in the case of occupational diseases.

3 A. Larson, The Law of Workmen's Compensation , § 79.72(f)

(1989). The issue in 1986 was Rutter's condition in 1986, and his

future condition was not and could not have been litigated then.

Thus, nothing bars or should bar claimants from filing claims

seriatim, and the regulations recognize that many will. See, e.g., 20

C.F.R. § 725.409(b) (if prior claim has been denied by reason of

abandonment, "a new claim may be filed at any time and new evidence submitted where [the claims modification process is unavailable.]") The duplicate claims regulation, 20 C.F.R. § 725.309(d), does

not bar new claims, but rather directs that they shall be denied based

on the earlier denial absent a threshold showing of a material change

_________________________________________________________________

8 Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991); see

generally, Chevron U.S.A., Inc. v. Natural Resources Defense Council,

467 U.S. 837, 845 (1984).

 8
in conditions. Thus, the regulation simply interposes a rebuttable presumption that nothing has changed, apparently to lessen the administrative burden of the black lung program.9 It creates a sort of

presumptive finality operating upon a future dispute, a finality that

must not be confused with ordinary res judicata, which cannot look

forward.

The Sahara Coal test, as applied by the panel here, forces the

claimant to show a material change on every element that was previously decided against him.10 This approach fails to account for the

frailty of alternative holdings. 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. For this reason, if he 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. Otherwise, "the

rule might be responsible for increasing the burdens of litigation on

the parties and the courts rather than lightening them." Restatement

(Second) of Judgments § 27, comment i. (1982). Accordingly, 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.

Here we meet up with something of a dilemma. We must have an

anchor in the past with which to compare current conditions, but alternative holdings are not necessarily conclusive.

_________________________________________________________________

9 Lisa Lee correctly notes that there is no express statutory basis for the

duplicate claims regulation, and asserts that it is invalid. The premise of

this argument is that, absent the regulation, miners could not file new

claims. But of course they could; as the excerpt from Larson's treatise

quoted above makes clear, common-law res judicata has no applicability

where the issue is a person's health at two different times.

10 If, as we have held above, the necessary factual premises of the 1986

decision must be accepted as true, Rutter would win under any standard.

Because of statutory presumptions, see supra at 3, proof of complicated

pneumoconiosis, in and of itself, establishes "all elements" of Rutter's

claim.

 9
The Director's approach strikes a reasonable balance. Each of the

alternative holdings is presumed to have been correct when made and

to continue to be correct through time. Because of their tenuous

nature, however, disproof of the continuing validity of just one of the

alternative holdings is enough to establish a material change in condition. We defer to the Director's reasonable interpretation of the duplicate claims regulation. In doing so, we join the Third and Sixth

Circuits. Labelle Processing Co. v. Swarrow, 72 F.3d 308 (3rd Cir.

1995); Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir. 1994).11

C.

In comparison to the Director's approach, Spese and Sahara Coal

come up short. The Spese test is too vague to be applied consistently,

contains illogical evidentiary rules (it permits resort to evidence available before the prior denial and forbids consideration of contrary probative evidence), and arguably sets too low a threshold ("reasonable

possibility") to discern "material" changes in condition.

Sahara Coal has two flaws. First, it founders on issue-preclusion

principles where there are alternative holdings in the first claim, as

discussed above. Second, and more importantly, it is the only one of

the standards that permits -- in fact demands -- a plenary review of

the evidence behind the first claim. For example, it is not enough for

the miner to rely on an ALJ's final determination that he did not have

pneumoconiosis or was not disabled by it. The miner must affirmatively prove that these adverse determinations were correct.12 To use

_________________________________________________________________

11 We do not endorse, however, the closing paragraph of Sharondale

Corp., 42 F.3d at 999, where, after adopting the Director's standard, the

Sixth Circuit seems to have required consideration of the evidence

behind the earlier denial to determine whether it "differ[s] qualitatively"

from the new evidence. Even if we agreed with such a requirement, Rutter certainly satisfied it here, inasmuch as the ALJ found an actual deterioration in his condition.

12 The Seventh Circuit did speculate that this rule might allow for an

exception if the claimant's current condition were "substantially worse,"

lest the possibility of his prior entitlement "complicate the proceeding

unduly." 946 F.2d at 558. Where the claimant is only "slightly worse

off," however, he must prove that he correctly (and slightly) missed the

disability threshold the first time around. Id. This requirement lends itself

to evidentiary mischief, inasmuch as the prior file will generally contain

"admissions" by the miner of all of the elements of entitlement.

 10
that court's own words, its standard "makes mincemeat of res judicata." 946 F.2d at 556.

V.

We are not unmindful of the possibility that the Director's standard

might encourage abuse of the administrative process by wily claimants and their wily lawyers. After today's decision, an unsuccessful

claimant will doubtless schedule a morning appointment with a compliant physician for a year and a day after the denial of his claim.

Armed with evidence contrary to an element previously found against

him, the claimant will file a new claim that afternoon, and so on, ad

infinitum.

This scenario belongs to that genre of horribles that seems impressive in academic debate but has little relevance to real life. Any

claimant who wants to be a perpetual litigator can already be a perpetual litigator, and in a much easier fashion. The day before his hypothetical doctor's appointment, the miner may file a request for

"modification" of the earlier denial. For the claimant, modification is

a far more attractive option than a new claim, because, in addition to

a change in conditions, it can be based on a "mistake in a determination of fact" in the original denial. 20 C.F.R. § 725.310(a). No new

evidence is required. A claims examiner may "`correct mistakes of

fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.'" Jessee v. Director, OWCP, 5 F.3d 723, 724 (4th Cir. 1993)

(quoting O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254,

256 (1971) (per curiam) (decided under Longshore and Harbor Workers' Compensation Act)). Because the § 725.310(a) procedure

modifies the original denial, the claimant has the opportunity to collect benefits from an onset of disability date preceding the original

denial. The miner who waits a year and a day must file a brand new

claim, and, as we have stated above, the prior denial becomes a final

adjudication that the miner was not disabled by pneumoconiosis as of

the date of its issuance.

Moreover, a miner who wanted to file duplicate claims ad infinitum would have to live ad infinitum. The black lung claims process

is extraordinarily slow; today, in 1996, we still routinely hear cases

 11
involving the 20 C.F.R. § 727.203 interim presumption, which was

superseded by the permanent regulations sixteen years ago. See 20

C.F.R. § 718.2 (permanent regulations effective March 31, 1980).

Few miners have the time or wherewithal to go through the system

twice; all too many die during the first run.13

The risk of sporadic abuse of the duplicate claims process is far

outweighed by the necessity that there be some such process and by

the utility of the Director's approach to it. As we emphasized above,

pneumoconiosis -- especially in the advanced form from which this

claimant suffers -- is a progressive disease, and no rational system

of law or of medicine could stand on the proposition that it can or

must be measured only once.14 A rational system would simultaneously account for the progressiveness of the disease, discourage

useless appeals of alternative holdings, and require, at the threshold,

a palpable basis to believe that conditions have changed over time.

The Director's "one-element" approach accomplishes this difficult

task.

VI.

Finally, we return to Mr. Alva Rutter. In clinical terms, the change

in his condition has been very real, even if we reexamine the 1986

_________________________________________________________________

13 Of course, an especially cagey claimant could abuse the system by

simply dropping each claim after its administrative denial, filing anew in

a year and a day, and waiting, as if for the lottery jackpot, to strike it rich

with a sympathetic claims examiner.

This elaborate ploy could happen; all sorts of odd things happen. But

it simply does not describe typical human behavior. Our lottery winner,

for all the skill of his gambit, would quickly find himself faced with a

controversion of the claim from the responsible operator, and he would

then get a much belated chance at his decade of litigation. Out-of-work

coal miners, disabled or not, generally need money badly enough to

forgo such pointless intrigue in favor of honestly and earnestly prosecuting their claims.

14 Accepting this proposition would put the miner in an absurd

dilemma. Should he file now, and risk losing everything by filing a bit

"too soon," or should he wait a few years until his disease has progressed

to a more "favorable" stage?

 12
evidence. The ALJ found that, in 1986, Rutter had small opacities of

2/2 profusion in four of six lung zones, with large opacities of category A (greater than one but less than five centimeters in diameter).

By 1989, small opacities clogged all six lung zones, in greater profusion (2/3 to 3/2), and large opacities had progressed to Category B

(greater than five centimeters). In 1986, notwithstanding his advanced

disease, Rutter could work and support his family. Now he cannot.

From Rutter's viewpoint, the change in his condition could scarcely

be more "material."

The award of benefits is affirmed.

AFFIRMED

NIEMEYER, Circuit Judge, concurring:

I join in Judge Hall's opinion for the court but write separately to

explain that my vote does not rest on the assumptions that the dissent

attributes to the majority opinion.

The effect of the majority opinion is to award benefits to a person

who indisputably falls within the class of persons that Congress

intended to benefit. While a review of the record from the claimant's

first application for benefits may call the original denial of benefits

into question, established and desirable principles of finality bind us

to accept that conclusion. On the claimant's reapplication for benefits

some years later, the objective medical facts demonstrate that his condition worsened, to the point that the Department of Labor concluded,

without difficulty, that the claimant was disabled. The change,

defined by the later finding of disability when previously such a finding was not made combined with the finding of a worsened condition,

is material. And it is that material change that demands my vote in

favor of affirming the Department's award of benefits, but only from

the date of the second benefits application.

I depart from the dissenting opinion where it draws the conclusion,

contrary to the law of the case, that the claimant was "unquestionably

disabled" at the time of his first application. To reach that conclusion,

the dissent engages in an improper review of the first decision denying benefits, a decision the majority has left at rest.

 13
Contrary to the dissent's suggestion, sympathy--other than for

what the law prescribes--played no role in our disposition of this

case.

LUTTIG, Circuit Judge, dissenting:

The majority today is tempted, and ultimately persuaded, by the

sympathies of this case, as is evident from the fact that it begins its

analysis by "[p]utting aside" the legal question before us, and instead,

dwelling on the uncontroverted fact that the claimant today has complicated pneumoconiosis caused by coal mine work. Whether or not,

in our judgment, Rutter has complicated pneumoconiosis, or whether

he is someone to whom we would award benefits were it our responsibility, are not the questions before us, however. Rather, we have

before us a question of law, whether this claimant has proven a "material change in conditions" that would warrant reconsideration of

whether he is entitled to black lung benefits. See 20 C.F.R.

§ 725.309(d) (providing that a successive application for benefits

"shall . . . be denied" unless there has been a "material change in conditions").

The Department of Labor promulgated section 725.309(d), the socalled duplicate claims provision, to allow miners who were not disabled at the time they were initially denied benefits an opportunity to

establish their entitlement to benefits if they become totally disabled

following a denial of benefits. As the Department itself described the

regulation, "a miner whose claim has once been finally denied either

by the Social Security Administration or the Department should be

allowed to file a new claim on the grounds of a progression to total

disability." See Discussion of Comments to Proposed Regulations on

Duplicate Claims, 43 Fed. Reg. 36772, 36785 (Aug. 18, 1978)

(emphasis added). The regulation was never intended to, nor does it,

reach a person who was unquestionably disabled at the time of the initial denial, but erroneously held to be not disabled. The law provides

avenues of relief -- neither of which this claimant pursued -- for a

person who has been erroneously denied benefits. He may either

appeal the erroneous decision, 20 C.F.R. § 725.410(c), or seek modification of that decision, for up to a year after the initial denial, id. at

§ 725.310. He is not, however, entitled to benefits under the duplicate

claim provision.

 14
In order to conclude that this claimant is entitled to benefits under

the duplicate claims provision, the majority entirely relieves claimants

of their burden of proving a material change in conditions, holding

that any miner who is currently entitled to benefits shall receive them,

a standard that invites claimants to file claim after claim until they

find a pliant ALJ. As the majority unabashedly explains:

[N]othing bars or should bar claimants from filing claims

seriatim . . . .

. . .

After today's decision, an unsuccessful claimant will doubtless schedule a morning appointment with a compliant physician for a year and a day after the denial of his claim.

Armed with evidence contrary to an element previously

found against him, the claimant will file a new claim that

afternoon, and so on, ad infinitum.

Ante at 8, 11. This is, of course, precisely the result intended to be

avoided under the regulation. Like the now repudiated Spese standard,

this standard fails even to examine or consider the claimant's original

conditions, much less to require a determination of whether there has

been a "material change" (or for that matter, even an immaterial

change) in those conditions -- as the Director himself concedes. See

Director's Answer in Support of Respondent's Petition for Rehearing

En Banc at 9 (acknowledging that the "one-element" test "allows an

inference of change" in conditions to support reexamination of a

duplicate claim (emphasis added)). Indeed, in its haste to award benefits in this case, the majority does not so much as bother to differentiate between a change and a "material change," effectively holding that

all changes are material.

That the majority's standard allows recovery of benefits merely

upon a showing that the claimant is today eligible for benefits, without any evidence whatever of a change in his condition, is confirmed

by the fact that the majority expressly rejects the requirement, from

the Sixth Circuit's decision it purports to adopt, that the ALJ make

certain that the evidence presented with the duplicate claim "`differ[s]

qualitatively'" from the evidence available at the time of the initial

 15
denial. See ante at 10 n.11 (quoting Sharondale Corp. v. Ross, 42

F.3d 993, 999 (6th Cir. 1994)). The majority, thus, adopts for this circuit the very rule that even the Sixth Circuit recognized was manifestly untenable under the regulation -- that the claimant may recover

benefits if "the ALJ merely disagree[s] with the previous characterization of the strength of the evidence." Sharondale, 42 F.3d at 999.

When all is said and done, therefore, the majority holds that a

claimant is entitled to benefits if he comes forward with any additional evidence of his condition "after" the denial of the original claim

and shows that he is now entitled to benefits, ante at 8, whether or

not the claimant proves a material change (or a change at all) in his

conditions from what they were at the time he was earlier denied benefits. A claimant, for example, who is denied benefits and then files

a duplicate claim accompanied by an additional "probative" x-ray

taken after the initial denial that is identical to the x-rays presented

with the initial claim (that is, that show identical opacities) would

receive black lung benefits on his duplicate claim, notwithstanding

that his condition has not changed at all. For, he has, according to the

majority, "prove[d], under all of the probative medical evidence of

his condition after the prior denial, at least one of the elements previously adjudicated against him." Ante at 8. Not only is such a holding

irreconcilable with the plain language of section 725.309(d), it

"makes mincemeat" of the doctrine of res judicata underlying section

725.309(d) by permitting the previous decision to be reevaluated, as

the majority itself says, ad infinitum. Cf. Sahara, 946 F.2d at 556

(similar criticism of the Spese standard).

Because the standard articulated by the Seventh Circuit in Sahara

Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir. 1991), is the only

standard which both requires a "material change in conditions" and

respects the finality of the initial judgment, I would adopt that test as

the law of this circuit. The Sahara standard provides that,

[a] material change in conditions means either that the miner

did not have black lung disease at the time of the 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.

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Id. Of the various tests for determining eligibility for duplicate claim

benefits, only the Sahara standard focuses upon the miner's

conditions and requires that those conditions change in a way that is

material. The majority's characterization notwithstanding, the Sahara

standard does not require that the claimant show a material change

"on every element previously decided against him," ante at 5, 9.

Rather, it requires only that the claimant show, through a comparison

of the evidence existing at the time of his original denial of benefits

and the evidence currently available, that he was not then, but is now,

eligible for benefits. In other words, the focus of the Sahara standard

is not on the conclusions reached as to the conditions, but rather on

the underlying conditions themselves, which is exactly what section

725.309(d)'s plain language demands. In no other possible way can

it be determined whether the claimant's conditions have materially

changed since the earlier denial of benefits.

The majority is critical of the Sahara standard because it believes

that any examination of the evidence underlying the prior denial of

benefits (that is, examination of the evidence as to the miner's prior

condition) would offend principles of res judicata. A standard that

requires denial of a duplicate claim because the claimant's underlying

conditions have not materially changed (for example, because the

claimant was disabled then and is disabled now), however, does not

undermine the original decision to deny benefits; rather, such a standard fully respects that decision, in stark contrast to the standard

adopted by the majority, which continuously allows reopening of that

original decision based upon evidence reflecting no change at all in

the claimant's conditions. Instead of "foundering" on principles of res

judicata and collateral estoppel, as the majority contends, the Sahara

standard actually represents too strict an application of those principles for the majority, because that standard, unlike the majority's

standard, does require faithful adherence to the initial denial, irrespective of whether that denial was correct or incorrect.

The court's tortured interpretation of the duplicate claims regulation comes about as a result of this one claimant's refusal either to

appeal or to seek modification of an arguably erroneous decision and

the court's unwillingness to accept the result that he may, as a consequence of his insouciance, find himself without remedy. As a court

of law, however, we should recognize that this circumstance is an

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extraordinarily unusual one, not likely to frequently, if ever, repeat

itself, and resist the temptation to yield to our collective sense as to

what would be "fair" in this most peculiar of circumstances. Doing so,

and simply applying the plain language of the regulation, I would

vacate and remand to the ALJ for reconsideration of whether Rutter,

under the standard adopted by the Seventh Circuit in Sahara, has

shown a "material change in conditions."

Chief Judge Wilkinson and Judges Russell, Wilkins, Hamilton and Williams join in this opinion.

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