                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                              No. 05-10163                      August 25, 2005
                          Non-Argument Calendar                THOMAS K. KAHN
                        ________________________                   CLERK


                       Agency No. BRB 04-0205-BLA

MAY W. TUCKER,

Surviving Divorced Spouse
of James A. Tucker,

                                                                      Petitioner,

                                    versus

DIRECTOR, OWCP,

                                                                    Respondent.


                        ________________________

                    Petition for Review of a Decision of the
                             Benefits Review Board
                         _________________________
                               (August 25, 2005)


Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       May W. Tucker, surviving divorced spouse of James A. Tucker (“the

miner”), appeals pro se the Benefits Review Board’s (“BRB”) reversal of the grant

of benefits to Tucker by the Administrative Law Judge (“ALJ”), pursuant to the

Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (“the Act”). Upon review of the

record and the arguments of the parties, we AFFIRM the BRB’s decision.

                                I. BACKGROUND

       Tucker and the miner were married in 1937 and divorced in 1967. In March

1979, the Office of Workers’ Compensation Programs (“OWCP”) found that the

miner was entitled to federal black lung benefits. In February 1980, the miner

died, and Tucker filed her first claim for divorced survivors’ benefits under the

Act.

       As part of her application, Tucker submitted a court order dated 28

November 1967. The order decreed the divorce of Tucker and the miner on the

grounds of cruelty and ordered the miner to pay $15.00 per week to Tucker for the

support and maintenance of Deborah, their minor child. In April 1980, the OWCP

found that Tucker failed to show that she was dependent on the miner at the time of

his death and denied Tucker’s claim.

       In April of 2002, Tucker filed the instant claim for survivors’ benefits under

the Act. The record included the 1972 United States income tax return filed by the

miner. In the tax return, the miner claimed as dependents May Tucker, as his wife,
                                          2
and two children, Diane and Deborah.1 After the OWCP again denied her claim, a

hearing was held before an ALJ.

       After the 2003 hearing, the ALJ granted Tucker’s claim for survivors’ black

lung benefits under the Act. The ALJ found that Tucker sustained her burden of

proving that an applicable condition of entitlement (dependency) had changed

since the denial of her 1980 claim, in that testimony at the hearing testimony and

the 1972 income tax return proved that the court-ordered $15.00 per week

constituted “support” under the Act, and the evidence otherwise showed that

Tucker was dependent on the miner.

       The BRB reversed the ALJ. The BRB found that the ALJ erred in finding

that the new evidence submitted by Tucker established a change in a condition of

entitlement because the issue of the dependency of a surviving divorced spouse is

based on the month before the month of the miner’s death and is thus not capable

of change.

       On appeal, Tucker advances two main arguments. First, she contends that

she sufficiently established a change in a condition of entitlement by presenting

evidence and testimony not considered by the OWCP when it ruled on her 1980

claim. Specifically, Tucker argues that hearing testimony, evidence that the miner

       1
        Apparently, in the return, the miner was claiming that his wife at that time was Tucker,
even though they had divorced in 1967, and that his two minor dependents were their daughter,
Deborah, and his then-wife, Diane.
                                               3
threatened Tucker with violence if she did not acquiesce at the time of their divorce

to $15.00 monthly child support payment, and additional documents introduced

into evidence, including the miner’s 2002 Tax Return, demonstrated her

dependence on the miner. Second, Tucker avers that the abuse by the miner, and

the miner’s alcoholism, present extraordinary circumstances that warrant a finding

of dependency, even if they do not fit neatly into a subsection of the Act.

                                 II. DISCUSSION

        “Decisions of the ALJ are reviewable only as to whether they are in

accordance with law and supported by substantial evidence in light of the entire

record. This deferential standard of review binds both the BRB and this Court.”

Lollar v. Ala. By-Prods. Corp., 893 F.2d 1258, 1261 (11th Cir. 1990). We review

de novo decisions of the BRB. Id. “Thus, although [this] case comes to us from

the BRB, we begin our analysis by reviewing the decision of the ALJ.” Coleman

v. Director, OWCP, 345 F.3d 861, 863 (11th Cir. 2003) (per curiam) (citation

omitted). We have recognized that “substantial evidence” is “more than a scintilla.

It means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Lollar, 893 F.2d at 1261-62 (citation omitted). We address

each of Tucker’s arguments in turn.

A.    New Evidence of a Change of Condition of Entitlement

      “If a claimant files a claim [for benefits] more than one year after the
                                          4
effective date of a final order denying a claim previously filed by the claimant,” the

claim “shall be denied unless the claimant demonstrates that one of the applicable

conditions of entitlement . . . has changed since the date upon which the order

denying the prior claim became final.” 20 C.F.R. § 725.309(d). The conditions of

entitlement for a surviving divorced spouse of a miner include that the claimant

must have been “dependent on the miner at the pertinent time.” 20 C.F.R. §

725.212(a)(2). We deem a surviving divorced spouse to have been dependent on

the miner

      if, for the month before the month in which the miner died: (a) [she]
      was receiving at least one-half of . . . her support from the miner . . .;
      or (b) [she] was receiving substantial contributions from the miner
      pursuant to a written agreement . . . ; or (c) [a] court order required the
      miner to furnish substantial contributions to [her] support.

20 C.F.R. § 725.217. “One-half of her support ” is defined as support that

“equaled or exceeded one-half the total cost of such individual’s support at such

time or during such period.” 20 C.F.R. § 725.233(g).

      Because this claim was filed in 2002, more than one year after the 1980

claim, Tucker must demonstrate that a condition of entitlement–here, her

dependency on the miner–has changed since 1980. See 20 C.F.R. § 725.309(d).

We assume without deciding that new evidence may establish a change in a

condition of entitlement, including the dependency of a surviving divorced spouse.

Even so, applying the criteria set forth in 20 C.F.R. § 725.217, we conclude that
                                           5
substantial evidence does not support the ALJ’s finding that Tucker demonstrated

her dependency on the miner. First, there is no evidence in the record that Tucker

was receiving substantial contributions from the miner pursuant to a written

agreement. Second, none of the evidence to which Tucker points supports a

finding that “[a] court order required the miner to furnish substantial contributions

to [her] support.” 20 C.F.R. § 725.217(c). The 1967 court order required the

miner to provide weekly support for Tucker’s minor child, not for Tucker herself.

See Director, OWCP v. Ball, 826 F.2d 603, 605-06 (7th Cir. 1987) (noting that an

order for support of the spouse’s child only does not qualify under 20 C.F.R. §

725.217(c)). Third, we cannot conclude, based on the new evidence Tucker

submitted, that “[she] was receiving at least one-half of . . . her support from the

miner . . .” 20 C.F.R. § 725.217(a). Although the miner may wrongfully have

claimed Tucker as a dependent in his 1972 tax return, the miner’s subjective notion

that he supported Tucker does not establish her dependency on him as defined by

the regulations. Furthermore, there is no evidence that Tucker depended on the

miner for at least one-half of her support the month before the month of his death.

To the contrary, Tucker’s daughter Phyllis testified that when Tucker “had no

means of support whatsoever” after the divorce, Tucker survived “[j]ust with what

help [Phyllis and her husband] could give.” R1, Tr. at 20. Additionally, Tucker's

daughter Beverly testified that the miner gave Tucker no money in the months
                                           6
before his death. Although Tucker’s daughter Deborah indicated that she, as “a 16

year old child,” allowed Tucker to use part of the fifteen dollar weekly payment for

Tucker’s own support, id. at 24, this has no bearing on the use of any payment in

the month before the month of the miner’s death, which was approximately

thirteen years later.2 Thus, because there is no evidence demonstrating that Tucker

was dependent on the miner in the month before the month in which the miner

died, substantial evidence does not support the ALJ’s finding that Tucker had

demonstrated that the applicable condition of entitlement, her dependency on the

miner, had changed since the denial of her previous claim. See 20 C.F.R. §

725.309(d).

B.     Extraordinary Circumstances Warranting a Finding of Dependency

       In her appellate brief, Tucker cites Briggs v. Director, OWCP, 13 BLR 3-

470 (1990), a case decided by an ALJ, to support her claim that her extraordinary

circumstances warrant a finding of dependency. Tucker attached a copy of the

case to the brief submitted to the BRB. In Briggs, the ALJ made a finding of

dependency on the basis of regulation 20 C.F.R. 727.227. 13 BLR at 476. That

regulation was removed by the Department of Labor effective 19 January 2001. 65

FR 80107 (Dec. 20, 2000). We have not found, and Tucker does not cite, any

       2
        In a letter dated 3 August 2002, Deborah claimed that the fifteen dollars represented she
and her mother's entire income for 1967. Again, this has no bearing on the use of the payment in
the month before the month of the miner's death.
                                               7
additional legal authority that supports her argument and is still in effect.

Accordingly, we reject Tucker’s argument that she is entitled to a finding of

dependency because of extraordinary circumstances.

                                III. CONCLUSION

      Because we find that substantial evidence does not support the ALJ's finding

that Tucker was dependent on the miner under 20 C.F.R. § 725.217, and that

Tucker's extraordinary circumstances do not warrant a finding of dependency, we

AFFIRM the BRB’s decision reversing the ALJ’s grant of survivors’ benefits to

Tucker under the Act.




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