                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUL 18 2000
                              FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

    WYOMING FUEL COMPANY,

                Petitioner,

    v.                                                   No. 99-9526
                                                      (No. 521-24-3572)
    DIRECTOR, OFFICE OF WORKERS’                     (Petition for Review)
    COMPENSATION PROGRAMS,
    UNITED STATES DEPARTMENT
    OF LABOR,

                Respondent.


    WILLIAM ARNOLDI,

                Intervenor.


                              ORDER AND JUDGMENT         *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.


         Petitioner Wyoming Fuel Co., the responsible operator, seeks review of the

decision of the Benefits Review Board (“Board”) affirming the administrative law

judge’s (“ALJ”) grant of benefits to miner William Arnoldi on a duplicate claim


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45.         1
                                                                    After finding that

Arnoldi had established a material change in conditions so as to warrant review

of his duplicate claim, the ALJ concluded that Arnoldi had established he was

totally disabled due to pneumoconiosis arising out of his coal mine employment.

On administrative review, the Board concluded that the ALJ’s decision was

supported by substantial evidence and was not contrary to law.



                                    Standard of Review

       We review the Board’s decision “to decide whether the Board correctly

concluded that the ALJ’s decision is supported by substantial evidence and not

contrary to law.”    Northern Coal Co. v. Director, OWCP        , 100 F.3d 871, 873

(10th Cir. 1996). “[I]n deciding whether substantial evidence exists to support

the ALJ’s decision, the court cannot reweigh the evidence, but may only inquire

into the existence of evidence to support the trier of fact.”       Id. (quotation

omitted). Wyoming Fuel challenges both the ALJ’s threshold determination that

Arnoldi established a material change in his condition, and the ALJ’s ultimate




1
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

                                              -2-
determination that Arnoldi established he was totally disabled due to

pneumoconiosis.



                           Material Change in Conditions

      Once a miner has been finally denied benefits on a claim, any subsequent

(“duplicate”) claim will be denied on the basis of res judicata unless the miner

can make a threshold showing that “there has been a material change in

conditions” since the time of the earlier denial. 20 C.F.R. § 725.309(d). Arnoldi

filed a claim for benefits in May 1980 and it was finally denied by the District

Director in March 1981. Arnoldi filed the current claim in October 1985. In

order for the ALJ to review the merits of this duplicate claim, Arnoldi first had to

show a material change in conditions.

      The regulations do not define what a claimant must prove to establish

a material change in conditions, and the circuit courts are divided over the

showing that must be made. This circuit has defined the required showing as

follows:

      [I]n order to bring a duplicate claim, a claimant must prove for each
      element that actually was decided adversely to the claimant in the
      prior denial that there has been a material change in that condition
      since the prior claim was denied. In order to meet the claimant’s
      threshold burden of proving material change in a particular element,
      the claimant need not go as far as proving that he or she now satisfies
      the element. Instead, . . . the claimant need show only that this
      element has worsened materially since the time of the prior denial.

                                         -3-
Wyoming Fuel Co. v. Director, OWCP     , 90 F.3d 1502, 1511 (10th Cir. 1996)

(footnotes omitted).

      In denying Arnoldi’s first claim, the District Director stated that Arnoldi

had to prove three elements to be entitled to benefits: (1) that he had

pneumoconiosis, (2) that his pneumoconiosis was caused at least in part by his

coal mine work, and (3) that his pneumoconiosis had caused total disability.

See Admin. R., Dir. Ex. 30, Ltr. of 3/6/81. The District Director denied Arnoldi’s

claim solely on the ground that he failed to establish the third element: that his

pneumoconiosis had caused total disability. Therefore, to avoid having his

second claim denied on res judicata grounds, Arnoldi had to establish this element

had materially worsened since March 1981.

      The ALJ found that Arnoldi made the requisite showing of a material

worsening in his condition. The ALJ pointed to three pieces of evidence to

support this finding: (1) the new pulmonary function tests (“PFT”) showed

a decrease in the values obtained compared with the PFTs submitted in connection

with the first claim; (2) two of the new arterial blood gas studies (“ABGS”)

produced qualifying values, whereas the ABGS submitted in connection with the

first claim did not; and (3) the weight of new medical opinions showed that

Arnoldi had a disabling pulmonary impairment, whereas the only medical opinion




                                         -4-
submitted in connection with the first claim stated that Arnoldi had no pulmonary

impairment.

      Wyoming Fuel argues both that the ALJ did not apply the correct legal

standards in finding a material change in Arnoldi’s condition and that his decision

is not supported by substantial evidence. Much of Wyoming Fuel’s dispute is

actually with the weight the ALJ gave to conflicting medical evidence. “It is

within the sole province of the ALJ to weigh conflicting medical evidence,”

and we cannot reweigh that evidence.    Northern Coal Co. , 100 F.3d at 873. We

conclude that the ALJ applied the correct legal standard and that his decision on

the threshold issue of material change is supported by substantial evidence.

Therefore, we turn to the merits of Arnoldi’s claim for benefits.

      Wyoming Fuel attacks the merits of Arnoldi’s claim on two broad grounds.

First, it argues that the ALJ failed to provide valid reasons for his finding that

Arnoldi had pneumoconiosis. Second, it argues that the ALJ failed to provide

valid reasons for his finding that Arnoldi was totally disabled due to

pneumoconiosis. A careful reading of Wyoming Fuel’s arguments again reveals

that they are founded on the operator’s dissatisfaction with the way the ALJ

weighed the medical evidence. The ALJ fully explained why he credited certain

evidence over other evidence and how he reached the conclusion that Arnoldi

suffered from pneumoconiosis that was totally disabling. Wyoming Fuel simply


                                          -5-
disagrees with the reasons the ALJ gave for weighing the conflicting evidence as

he did. As the Board correctly concluded, however, the reasons advanced by the

ALJ were legally proper and they were supported by substantial evidence.

      The Decision and Order of the Benefits Review Board is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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