BRB No. 99-0672 BLA

CHARLIE D. MORRISON             )  
                                     )
          Claimant-Petitioner             )
                                     )
     v.                              )
                                               )
                         TENNESSEE CONSOLIDATED          )   DATE ISSUED:03/28/2000                 
COAL COMPANY                  )
                                     )  
          Employer-Respondent        )       
                                     )
DIRECTOR, OFFICE OF WORKERS'        )
COMPENSATION PROGRAMS, UNITED  )
STATES DEPARTMENT OF LABOR           )
                                     )
          Party-in-Interest               )    DECISION and ORDER

          Appeal of the Decision and Order of Edward Terhune Miller, Administrative Law Judge, United States
     Department of Labor.

          Charlie D. Morrison, Whitwell, Tennessee, pro se.

          Ronald E. Gilbertson (Kilcullen, Wilson & Kilcullen Chartered),
     Washington, D.C., for employer.

          Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY, 
     Administrative Appeals Judges. 
  
     PER CURIAM:

     Claimant, representing himself, appeals the Decision and Order (98-BLA-0390) of Administrative Law Judge
Edward Terhune Miller denying benefits on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine
Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act).  The
instant case involves a duplicate claim filed on February 3, 1997.[1]   The administrative law judge found the evidence
insufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309.  Accordingly, the administrative law judge denied benefits.  On
appeal, claimant generally contends that the administrative law judge erred in
denying benefits.  Employer responds in support of the administrative law judge's
denial of benefits.  The Director, Office of Workers' Compensation Programs, has not filed a response brief.

     In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue to be whether
the Decision and Order below is supported by substantial evidence. Stark v. Director, OWCP, 9 BLR 1-36
(1986).  We must affirm the findings of the administrative law judge if they are supported by substantial evidence, are
rational, and are in accordance with applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     In order to establish entitlement to benefits under 20 C.F.R. Part 718 in a living miner's claim, a claimant must
establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the
pneumoconiosis is totally disabling.  20 C.F.R. §§718.3, 718.202, 718.203, 718.204.  Failure to establish
any one of these elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee
v. W. G. Moore and Sons, 9 BLR 1-4 (1986) (en banc); Perry v. Director, OWCP, 9 BLR
1-1 (1986) (en banc).

     Section 725.309 provides that a duplicate claim is subject to automatic denial
on the basis of the prior denial, unless there is a determination of a material
change in conditions since the denial of the prior claim.  20 C.F.R.
§725.309(d).  The United States Court of Appeals for the Sixth Circuit, within
whose jurisdiction this case arises, has held that in assessing whether a material
change in conditions has been established, an administrative law judge must
consider all of the new evidence, favorable and unfavorable, and determine whether
the miner has proven at least one of the elements of entitlement previously
adjudicated against him. Sharondale Corp. v. Ross, 42 F.3d 993, 19 BLR 2-10
(6th Cir. 1994).  Claimant's prior 1991 claim was denied because claimant failed
to establish total disability pursuant to 20 C.F.R. §718.204(c).  Director's
Exhibit 24.  Consequently, in order to establish a material change in conditions
pursuant to 20 C.F.R. §725.309, the newly submitted evidence must support a
finding of total disability pursuant to 20 C.F.R. §718.204(c).

     The administrative law judge properly found that all of the valid newly
submitted pulmonary function and arterial blood gas studies are non-qualifying.[2]   Decision and Order at 5; Director's Exhibits 5,
7, 9, 21.  The administrative law judge also found that there was no evidence of
cor pulmonale with right sided congestive heart failure.  Decision and Order at 5. 
We, therefore, affirm the administrative law judge's findings that the newly
submitted evidence is insufficient to establish total disability pursuant to 20
C.F.R. §718.204(c)(1)-(3).    

     In his consideration of whether the newly submitted medical opinion evidence
was sufficient to establish total disability pursuant to 20 C.F.R.
§718.204(c)(4), the administrative law judge noted that Dr. Soteres was the
only physician who addressed the extent of claimant's pulmonary impairment.  In a
report dated March 17, 1997, Dr. Soteres indicated that claimant suffered from a
Class III impairment under the AMA Guidelines.  Director's Exhibit 8.  The
administrative law judge, however, permissibly rejected Dr. Soteres's assessment of claimant's impairment
because Dr. Soteres failed to provide an explanation for his conclusion. See Clark v. Karst-Robbins
Coal Co., 12 BLR 1-149 (1989)(en banc); Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985); Decision and Order at 5; Director's Exhibit 8.  Inasmuch as there are no other newly
submitted medical opinions addressing the extent of claimant's pulmonary impairment, we affirm the administrative law
judge's finding that the newly submitted medical opinion evidence is insufficient to establish total disability pursuant to
20 C.F.R. §718.204(c)(4).

     In light of our affirmance of the administrative law judge's findings that the
newly submitted medical evidence is insufficient to establish total disability
pursuant to 20 C.F.R. §718.204(c)(1)-(4), we affirm the administrative law
judge's finding that claimant failed to establish a material change in conditions
pursuant to 20 C.F.R. §725.309.  Ross, supra.       Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.

     SO ORDERED.




                                                                                                      
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                                                      
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                                                      
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.
 1)The relevant procedural history of the instant case is as
follows: Claimant initially filed a claim for benefits on September 30, 1987. 
Director's Exhibit 24.  By Decision and Order dated December 5, 1989,
Administrative Law Judge John H. Bedford found that the evidence was insufficient
to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4). Id.  Judge Bedford also found the evidence
insufficient to establish total disability pursuant to 20 C.F.R. §718.204(c).
Id.  Accordingly, Judge Bedford denied benefits.  Id.  There is no
indication that claimant took any further action in regard to his 1987 claim.  

     Claimant filed a second claim on January 14, 1991.  Director's Exhibit 24. 
By Decision and Order dated November 6, 1992, Administrative Law Judge E. Earl
Thomas  found that the newly submitted medical opinion evidence was sufficient to
establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(4). Id.  Judge Thomas, therefore, found that the evidence
was sufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309. Id. However, in his consideration of the merits of claimant's
1991 claim, Judge Thomas found that the evidence was insufficient to establish
total disability pursuant to 20 C.F.R. §718.204(c). Id.  Accordingly,
Judge Thomas denied benefits. Id.  By Decision and Order dated March 29,
1994, the Board affirmed Judge Thomas's finding that claimant failed to establish
total disability pursuant to 20 C.F.R. §718.204(c).  Morrison v. Tennessee
Consolidated Coal Co., BRB No. 93-0618 BLA (Mar. 29, 1994) (unpublished).  The
Board, therefore, affirmed Judge Thomas's denial of benefits. Id.  The Board
denied claimant's motion for reconsideration on July 27, 1995. Morrison v.
Tennessee Consolidated Coal Co., BRB No. 93-0618 BLA (July 27, 1995) (Order)
(unpublished).  There is no indication that claimant took any further action in
regard to his 1991 claim.

     Claimant filed a third claim on February 3, 1997.  Director's Exhibit 1.
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 2)The administrative law judge noted that Dr. Burki invalidated
claimant's March 17, 1997 pulmonary function study due to poor effort.  Decision
and Order at 3 n.4; Director's Exhibits 5, 6.  The remaining newly submitted
pulmonary function studies conducted on April 23, 1997 and November 4, 1997 are
non-qualifying.  Director's Exhibits 7, 21.  The only newly submitted arterial
blood gas study, a study conducted on March 17, 1997, is also non-qualifying. 
Director's Exhibit 9.
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