BRB No. 99-0664 BLA

JOHN L. ST. CLAIR

                 Claimant-
Petitioner

          v.

CONSOLIDATION COAL COMPANY

                 Employer-
Respondent

DIRECTOR, OFFICE OF WORKERS' 
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

                 Party-in-
Interest)
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ISSUED:03/31/2000         
     
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)    DECISION AND ORDER
          Appeal of the Decision and Order Denying Benefits of Richard A.
     Morgan, Administrative Law Judge, United States Department of
     Labor.

          Gregory C. Hook (Hook & Hook), Waynesburg, Pennsylvania, for
     claimant.

          William S. Mattingly (Jackson & Kelly, PLLC), Morgantown, West
     Virginia, for employer.

          Before:  BROWN and McGRANERY, Administrative Appeals Judges,
     and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits (98-BLA-
0970) of
 Administrative Law Judge Richard A. Morgan 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
administrative law judge credited claimant with thirty-eight years of
coal mine employment, based on a stipulation of the parties, and
adjudicated the case pursuant to 20 C.F.R. Part 718, in light of
claimant's July 27, 1997 filing date.  Noting the existence of three
previously filed claims, the administrative law judge, determined that
this case involves a duplicate claim pursuant to 20 C.F.R.
§725.309(d).[1]   After considering
the newly submitted evidence of record, the administrative law judge
found that the medical evidence was insufficient to establish the
existence of pneumoconiosis pursuant to 20 C.F.R.
§718.202(a)(1)-(4).  Although he found that claimant was totally
disabled, the administrative law judge also found that the newly
submitted evidence was insufficient to establish a totally disabling
respiratory impairment pursuant to 20 C.F.R. §718.204(c)(1)-(4) and
insufficient to establish that claimant's total disability was due to
pneumoconiosis pursuant to 20 C.F.R. §718.204(b).  Consequently, the
administrative law judge held that the newly submitted evidence was
insufficient to establish a material change in conditions pursuant to
Section 725.309(d).  Accordingly, benefits were denied.

     In challenging the administrative law judge's denial of benefits,
claimant contends that the administrative law judge erred in finding the
newly submitted x-ray evidence and medical opinion evidence insufficient
to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(1) and (a)(4).  In addition, claimant contends that the newly
submitted evidence is sufficient to establish that pneumoconiosis was a
contributing cause of the miner's total disability pursuant to Section
718.204(b).  In response, employer urges affirmance of the administrative
law judge's denial of benefits as supported by substantial evidence.  The
Director, Office of Workers' Compensation Programs, has filed a letter
stating that he will not file a response brief in this appeal.[2] 

     The Board's scope of review is defined by statute.  The
administrative law judge's Decision and Order must be affirmed if it is
supported by substantial evidence, is rational, and is in accordance with
applicable law.  33 U.S.C. §921(b)(3), as incorporated into the Act
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 Part 718,
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; Hobbs v. Clinchfield Coal Co. [Hobbs
II], 45 F.3d 819, 19 BLR 2-86 (4th Cir. 1995); Trent v. Director,
OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).  Failure to prove any one of these elements
precludes entitlement. Id.

     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 Fourth Circuit, within whose jurisdiction the instant
case arises, has held that in considering whether claimant has
established a material change in conditions, the administrative law judge
must consider all of the newly submitted evidence, favorable and
unfavorable, and determine whether claimant has proven at least one
element of entitlement previously adjudicated against him. Lisa Lee
Mines v. Director, OWCP [Rutter II], 86 F.3d 1358, 20 BLR 2-
227 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19 BLR 2-223 (4th
Cir. 1995).  In the case at bar, the prior claim was denied by
Administrative Law Judge Daniel L. Leland, finding that the evidence of
record was insufficient to establish either the existence of
pneumoconiosis pursuant to Section 718.202(a) or total respiratory
disability pursuant to Section 718.204(c).  Director's Exhibit 30.

     In the instant claim, claimant challenges the administrative law
judge's finding that the newly submitted evidence was insufficient to
establish a material change in conditions pursuant to Section 725.309(d). 
Initially, claimant contends that the administrative law judge erred in
finding the x-ray evidence insufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(1).  Specifically, claimant
asserts that the administrative law judge erred in weighing the x-ray
evidence by failing to take into consideration the obvious bias of the
various physicians in determining that the x-ray evidence was negative
for the existence of pneumoconiosis.  Claimant thus argues that the
administrative law judge erred in failing to accord dispositive weight to
the positive x-ray readings by Drs. Devabhaktuni and Gaziano, which were
obtained at the request of the Department of Labor (DOL).  We disagree.

     Initially, contrary to claimant's contention, the x-ray reading
attributed to Dr. Devabhaktuni is not a positive reading for the
existence of pneumoconiosis.  Within his medical report, Dr. Devabhaktuni
stated that the x-ray "showed increased markings at both bases" with no
further comment regarding the x-ray.  Therefore, this is not a positive
interpretation pursuant to 20 C.F.R. §718.102(b).  20 C.F.R.
§718.102(b); Director's Exhibit 14; Employer's Exhibit 5; see
generally Trent, supra.  Moreover, contrary to claimant's
contention, the administrative law judge did not err in failing to accord
dispositive weight to the x-ray readings of Drs. Devabhaktuni and Gaziano
because these readings were obtained at the request of DOL inasmuch as
there is no evidence in the record establishing that the physicians
submitting the x-ray interpretations at employer's request are biased.
See Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991);
Stanford v. Director, OWCP, 7 BLR 1-906 (1985); Chancey v.
Consolidation Coal Co., 7 BLR 1-240 (1984).  

     Rather, the administrative law judge properly weighed all of the
relevant x-ray evidence and found that the record contained eleven
readings of five x-ray films, of which only the readings of Drs. Gaziano
and Jaworski, both of whom are B readers, were positive for the existence
of pneumoconiosis.  Decision and Order at 16; Director's Exhibit 17;
Claimant's Exhibit 2.  The remainder of the x-ray reports, while noting
abnormalities of emphysema, nodulation or parenchymal abnormalities, did
not provide readings classified as positive for the existence of
pneumoconiosis.  Decision and Order at 17; Director's Exhibits 16, 18,
20; Claimant's Exhibit 2; Employer's Exhibits 1-3; 20 C.F.R.
§718.102(b); see generally Trent, supra.  Within a reasonable
exercise of his discretion as fact-finder, the administrative law judge
accorded greatest weight to the negative x-ray interpretations of Dr.
Wiot, based on his superior qualifications as a B reader and Board-
certified radiologist, and further found these readings supported by the
weight of the x-ray evidence of record.[3]   Decision and Order at 17; Employer's Exhibit 2; see
Adkins v. Director, OWCP, 958 F.2d 49, 16 BLR 2-61 (4th Cir.
1992); Edmiston v. F & R Coal Co., 14 BLR 1-710 (1990); Roberts
v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); see also
Sheckler v. Clinchfield Coal Co., 7 BLR 1-128 (1984),
aff'd, 806 F.2d 258 (4th Cir.1986)(table).  We, therefore, affirm
the administrative law judge's finding that the newly submitted x-ray
evidence is insufficient to establish the existence of pneumoconiosis
pursuant to Section 718.202(a)(1).

     With respect to Section 718.202(a)(4), claimant contends that the
administrative law judge erred in finding the medical opinion evidence
insufficient to establish the existence of pneumoconiosis.  Specifically,
claimant contends that the administrative law judge erred in not
according the opinions of claimant's treating physicians, Drs.
Devabhaktuni and Jaworski, both of whom concluded that claimant has coal
workers' pneumoconiosis, more weight because the administrative law judge
found that they lacked specialized expertise, alleging that this finding
is not supported by the record.  These arguments are not meritorious. 

     Contrary to claimant's contention, the Fourth Circuit has held that
an administrative law judge should not automatically credit the testimony
of a treating or an examining physician merely because the physician
treated or personally examined the miner.  Rather, the administrative law
judge should also consider the qualifications of the physicians, the
explanation of their medical opinions, and the documentation underlying
their opinions. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21
BLR 2-323 (4th. Cir. 1998); Sterling Smokeless Coal Co. v. Akers,
131 F.3d 438, 21 BLR 2-269 (4th Cir. 1997); Grizzle v. Pickands Mather
and Co., 994 F.2d 1093, 17 BLR 2-123 (4th Cir. 1993).  In the instant
case, the administrative law judge considered the qualifications of all
of the physicians and found that Drs. Devabhaktuni and Jaworski were
Board-certified in Internal Medicine and pulmonary specialists, as were
Drs. Renn and Fino.  Decision and Order at 18; Employer's Exhibits 5, 7,
8.  Thus, in accordance with the Fourth Circuit's holdings, the
administrative law judge reasonably found that the opinions of Drs.
Devabhaktuni and Jaworski, were not entitled to greater weight, based
solely on their status as treating physicians, but rather, properly
considered each of the relevant medical opinions of record to determine
the weight to be accorded these opinions.  Decision and Order at 18-19;
see Hicks, supra; Akers, supra; Grizzle, supra.   

     In weighing the newly submitted medical opinion evidence, the
administrative law judge reasonably found that the opinion of Dr.
Devabhaktuni was entitled to little weight because the physician did not
adequately explain how his underlying documentation supported his
diagnosis.  Decision and Order at 18; Director's Exhibit 14; Employer's
Exhibit 5; see Lafferty v. Cannelton Industries, Inc., 12
BLR 1-190 (1989); Lucostic v. United States Steel Corp., 8 BLR 1-
46 (1985).  Moreover, the administrative law judge reasonably
accorded little weight to the opinion of Dr. Jaworski inasmuch as the
physician was not definitive in his opinion that coal dust exposure
contributed to the miner's chronic obstructive pulmonary disease.[4]   Decision and Order at 18; Claimant's
Exhibit 1; see Justice v. Island Creek Coal Co., 11 BLR 1-
91 (1988); Campbell v. Director, OWCP, 11 BLR 1-16 (1987). 

     The administrative law judge reasonably accorded greater weight to
the opinions of Drs. Renn and Fino, finding that these opinions provided
a more detailed explanation of their rationale and were better supported
by their underlying documentation and the overall evidence of record,
including the opinions of Drs. Devabhaktuni and Jaworski.[5]   Decision and Order at 18-19;
Director's Exhibit 20; Employer's Exhibits 7, 8; see Lafferty, supra;
Lucostic, supra; Pastva v. The Youghiogheny & Ohio Coal Co., 7
BLR 1-829 (1985); see generally Snorton v. Zeigler Coal
Co., 9 BLR 1-106 (1986).  Inasmuch as the administrative law judge
considered all the relevant newly submitted evidence, we affirm his
finding that claimant failed to meet his burden of proof in establishing
the existence of pneumoconiosis pursuant to Section 718.202(a)(4).
See Perry, supra; see also Director, OWCP v.
Greenwich Collieries [Ondecko], 114 S.Ct. 2251, 18 BLR 2A-1 (1994),
aff'g sub nom. Greenwich Collieries v. Director, OWCP, 990
F.2d 730, 17 BLR 2-64 (3d Cir. 1993)

     Lastly, in order to establish entitlement under Part 718, claimant
must establish a totally disabling respiratory or pulmonary impairment.
20 C.F.R. §718.204(c)(4); Jewell Smokeless Coal Corp. v.
Street, 42 F.3d 241, 19 BLR 2-1 (4th Cir. 1994); see also
Hicks, supra; Carson v. Westmoreland Coal Co., 19 BLR 1-16
(1994).  In the instant case, while providing a conclusion that claimant
was totally disabled, the administrative law judge found, nonetheless,
that the newly submitted medical evidence was insufficient to establish a
totally disabling respiratory impairment pursuant to Section 718.204(c). 
Specifically, the administrative law judge found that none of the newly
submitted pulmonary function study or blood gas study evidence yielded
qualifying values.[6]   Decision and
Order at 20; Director's Exhibits 10, 11, 18, 20; Employer's Exhibit 4; 20
C.F.R. §718.204(c)(1), (c)(2).  In addition, the administrative law
judge's found that there was no evidence of cor pulmonale with right-
sided congestive heart failure.  Decision and Order at 20; 20 C.F.R.
§718.204(c)(3).  The administrative law judge further found that all
of the physicians found claimant totally disabled from a "whole man"
standpoint, but that none of the new medical reports opined that claimant
has a total respiratory disability.  Decision and Order at 21; Director's
Exhibits 14, 20; Claimant's Exhibit 1; Employer's Exhibits 5, 7, 8; 20
C.F.R. 718.204(c)(4); Street, supra; Carson, supra.  Consequently,
the administrative law judge found that claimant has not met his burden
of proof in establishing the existence of total respiratory disability. 

     Claimant asserts that the administrative law judge found total
disability but does not challenge the administrative law judge's finding
that the evidence is insufficient to establish total respiratory
disability pursuant to Section 718.204(c).  Inasmuch as the
administrative law judge rendered a specific finding that the medical
evidence was insufficient to establish total respiratory disability
pursuant to Section 718.204(c), we affirm this finding as unchallenged on
appeal.  See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983); see also Sarf v. Director, OWCP, 10 BLR 1-119
(1987); Fish v. Director, OWCP, 6 BLR 1-107 (1983).

     Inasmuch as the newly submitted evidence is insufficient to
establish the existence of pneumoconiosis pursuant to Section 718.202(a)
and total respiratory disability pursuant to Section 718.204(c), claimant
failed to establish a material change in conditions pursuant to Section
725.309(d).[7]   20 C.F.R.
§725.309(d); Rutter II, supra.
     Accordingly, the administrative law judge's Decision and Order
Denying Benefits is affirmed. 

     SO ORDERED.


     


                              
                           
JAMES F. BROWN
Administrative Appeals Judge



                              
                           
REGINA C. McGRANERY
Administrative Appeals Judge




                              
                         
MALCOLM D. NELSON, Acting
Administrative Appeals Judge


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Footnotes.
 1) Claimant filed his initial application for benefits
with the Social Security Administration (SSA) on May 24, 1973, which was
denied by SSA on September 21, 1973.  Director's Exhibit 30.  Following
claimant's election of review of the denial by SSA, the claim was again
denied on October 12, 1978. Id.  The claim was transferred to the
Department of Labor, which denied the claim on November 7, 1980.
Id.  No further action was taken on this claim.

       Claimant filed a second application for benefits on November 12,
1981, which was denied by the district director on May 17, 1982. 
Director's Exhibit 30.  Following a formal hearing, Administrative Law
Judge Lawrence Brenner issued a Decision and Order - Denying Benefits,
finding that claimant's November 1981 claim was a duplicate claim
pursuant to 20 C.F.R. §725.309(c).  Reviewing the newly submitted
evidence, Judge Brenner found this evidence insufficient to establish the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) and
also insufficient to establish a totally disabling respiratory or
pulmonary impairment pursuant to 20 C.F.R. §718.204(c). 
Consequently, Judge Brenner found that claimant failed to establish a
material change in conditions and, therefore, denied benefits. Id. 
Claimant appealed this denial to the Board. Id.  By Order dated
March 31, 1988, the Board dismissed claimant's appeal as abandoned.
St. Clair v. Consolidation Coal Co., BRB No. 87-2101 BLA (Mar. 31,
1988)(Order)(unpub.).

       On April 13, 1989, claimant filed a third application for
benefits, which was denied by the district director on August 18, 1989. 
Director's Exhibit 30.  Following a formal hearing, Administrative Law
Judge Daniel L. Leland issued a Decision and Order - Denying Benefits on
December 23, 1994. Id.  Initially, Judge Leland determined that
the instant claim was a duplicate claim, noting the presence of two
previously filed claims.  In addition, Judge Leland credited claimant
with thirty-eight years of coal mine employment.  Considering the newly
submitted evidence, Judge Leland found that the medical opinion of Dr.
Levine was sufficient to establish the existence of pneumoconiosis and,
therefore, was sufficient to establish a material change in conditions. 
However, considering the evidence as a whole, Judge Leland found the
evidence insufficient to establish the existence of pneumoconiosis
pursuant to Section 718.202(a).  Additionally, Judge Leland found the
medical evidence of record insufficient to establish total disability
pursuant to Section 718.204(c).  Accordingly, Judge Leland denied
benefits. Id.  No further action was taken with respect to this
claim.

     Claimant filed his fourth and current application for benefits on
July 23, 1997.  Director's Exhibit 1. 
 Back to Text

 2) The parties do not challenge the administrative law
judge's decision to credit claimant with thirty-eight years of coal mine
employment or his findings at 20 C.F.R. §718.202(a)(2) and (a)(3). 
Therefore, these findings are affirmed. See Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983).
 Back to Text

 3) Likewise, the administrative law judge found that the
results of the February 1998 CT scan did not establish the existence of
pneumoconiosis.  Decision and Order at 17; Director's Exhibit 18;
Employer's Exhibits 1-3; see Melnick v. Consolidation Coal
Co., 16 BLR 1-31 (1991)(en banc).
 Back to Text

 4) Dr. Jaworski, in a letter dated April 10, 1997,
diagnosed chronic fibrotic lung disease with multiple pulmonary masses,
etiology uncertain.  In addition, Dr. Jaworski diagnosed chronic
obstructive pulmonary disease secondary to cigarette smoking with
possible contribution of coal dust exposure.  Claimant's Exhibit 1.  The
record also contains treatment notes from Dr. Jaworski from November 1994
through February 1998, which reflect that Dr. Jaworski was treating
claimant specifically for his pulmonary condition, but does not reflect a
diagnosis of pneumoconiosis during this time.  Director's Exhibit 18.
 Back to Text

 5) Claimant also states that the administrative law judge
should have considered the low percentages of diagnoses of pneumoconiosis
by Drs. Renn and Fino, in weighing their opinions.  However, inasmuch as
claimant does not provide any specific allegations of bias with respect
to the physicians' opinions in this case, we reject claimant's allegation
of error. See Melnick v. Consolidation Coal Co., 16 BLR 1-
31 (1991)(en banc); see also Cochran v. Consolidation Coal
Co., 16 BLR 1-101 (1992).
 Back to Text

 6) A "qualifying" pulmonary function study or blood gas
study yields values that are equal to or less than the appropriate values
set out in the tables at 20 C.F.R. Part 718, Appendices B, C,
respectively.  A "non-qualifying" study exceeds those values. See
20 C.F.R. §718.204(c)(1), (2).
 Back to Text

 7) In light of the administrative law judge's appropriate
finding that claimant failed to establish total respiratory disability
under 20 C.F.R. §718.204(c), proof of a material change in condition
based upon a finding of total disability due to pneumoconiosis under 20
C.F.R. §718.204(b) was not available in this case.  We decline to
address, therefore, claimant's allegations of error under Section
718.204(b).
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