                                 __________

                                 No. 95-2259
                                 __________

Bernice Van Dyke,                      *
                                       *
           Petitioner,                 *
                                       *   On Petition For Review of an Order
     v.                                *   of the Benefits Review Board.
                                       *
Missouri Mining, Inc.;                 *
Wausau Insurance Company; and          *
Director, Office of Workers'           *
Compensation Programs, United          *
States Department of Labor,            *
                                       *
           Respondents.                *

                                 __________

                          Submitted:    January 10, 1996

                              Filed:    March 7, 1996
                                  __________

Before WOLLMAN, CAMPBELL*, and MURPHY, Circuit Judges.

                                 __________


MURPHY, Circuit Judge.


     Bernice Van Dyke, widow of coal miner James Van Dyke, petitions for
review of an order by the Benefits Review Board of the Department of Labor
(BRB) affirming the denial of benefits by an Administrative Law Judge (ALJ)
under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945.


     James Van Dyke spent 27 years working at coal mines.      His last




     *
      The HONORABLE LEVIN H. CAMPBELL, United States Circuit
     Judge for the First Circuit, sitting by designation.
job was at Missouri Mining, Inc., where he shoveled coal at the coal tipple
and helped regulate the water valves as a coal washer.   In 1973, he began
coughing up brown phlegm and having trouble breathing when he walked.   He
stopped working in 1979, a few months after hurting his back and hip in a
mine accident.


     Van Dyke filed his first claim for disability benefits under the
Black Lung Benefits Act in 1974.   He abandoned this claim after an initial
denial, and filed a new claim in 1976.   After an administrative hearing in
1982, ALJ Virgil M. McElroy awarded him benefits based on a pulmonary
function test (pft), fiberoptic bronchoscopy, and a report by Dr. Rolf E.
Gryte, who had concluded that Van Dyke suffered from pneumoconiosis (black
lung disease).   The BRB vacated and remanded because the ALJ had failed to
consider contrary medical evidence when he invoked an interim presumption
of disability due to pneumoconiosis, pursuant to 20 C.F.R. § 727.203(a),
and when he decided that there was insufficient rebuttal evidence under 20
C.F.R. § 727.203(b).


     Judge McElroy affirmed the award of benefits in 1986.    Although one
pft would have favored invoking the presumption of disability and a more
recent test would not have, the ALJ resolved his "true doubt" as to which
test result to follow in the worker's favor and concluded that the employer
had not rebutted the presumption of disability.1


     The BRB again vacated and remanded the case in 1993.   It vacated the
conclusion that the disability presumption had been invoked because Judge
McElroy had failed to discuss Dr. Mitchell's invalidation of Dr. Gryte's
pft values.   In addition, Judge McElroy had not properly explained why he
had relied on Dr. Gryte's




     1
      The Supreme Court has since struck down the "true doubt"
rule as violating the standards of proof required by § 7(c) of
the Administrative Procedure Act, 5 U.S.C. § 556(d). Director v.
Greenwich Collieries, 114 S.Ct. 2251, 2259 (1994).

                                     2
diagnosis rather than Dr. Hollinger's contrary opinion.     Instead, he had
noted that Dr. Hollinger was often hired by employers and incorrectly
stated that Dr. Gryte was board-certified in internal medicine.    Finally,
the BRB vacated Judge McElroy's determination that Missouri Mining had not
rebutted the presumption of disability because he did not consider negative
x-ray results and other medical evidence in addition to Van Dyke's work
history.


     After the case was remanded in 1993, Judge Edward Murty, Jr. was
assigned to review it since Judge McElroy had retired.       Prior to this
assignment, all parties were sent a notice of Judge McElroy's retirement
and the intent to transfer the case to a new ALJ.          The notice also
mentioned an opportunity to object; no objection was made.


     Judge Murty denied Van Dyke benefits in a 1994 decision after he had
reviewed all of the evidence.   He pointed out that three x-ray readings and
two arterial blood gas studies were negative for pneumoconiosis.     Of the
four pfts in the record, one was invalidated for lack of effort, and
another, relied upon by Dr. Gryte, was invalidated for inconsistent values.
The two remaining pft results did not qualify for pneumoconiosis and
therefore did not justify invoking the presumption of disability due to
pneumoconiosis.


     Judge Murty also found that Dr. Hollinger, a pulmonary disease
specialist, was more reliable than Dr. Gryte since the latter had relied
on an invalidated pft.   Dr. Hollinger had diagnosed Van Dyke as having
chronic obstructive pulmonary disease related to his thirty years of
cigarette smoking, followed by several years of pipe smoking.       The ALJ
noted that Van Dyke's job as a coal washer required little physical
exertion and that Van Dyke had told an investigator that he had quit his
job because of his back injury.   Based on all of this evidence, Judge Murty
concluded that Van Dyke was not entitled to a presumption of disability
under 20 C.F.R.




                                     3
727.203(a), and that he had not demonstrated that he had pneumoconiosis.
The BRB affirmed the denial of benefits on March 29, 1995, and Van Dyke
petitioned this court for review.


        Van Dyke does not focus on the BRB's recent decision in 1995 which
affirmed Judge Murty's denial of benefits.                   Although the petition for
review formally sought review of all prior decisions, including the BRB's
1995 order, Van Dyke's brief focuses on whether the BRB erred in vacating
and remanding Judge McElroy's award of benefits in 1986.                Counsel conceded
at oral argument that there was substantial evidence to support Judge
Murty's 1994 decision, but petitioner argues that the second award of Judge
McElroy in 1986 should have been affirmed because it was supported by
substantial evidence and was in accordance with the law.


        Missouri Mining responds that we lack jurisdiction over the thrust
of Van Dyke's argument because we are limited to reviewing the BRB's latest
decision in 1995.         It also argues that Van Dyke waived consideration of
Judge       McElroy's   1986   decision   by       failing   to   exhaust   administrative
              2
remedies.         In any case, Missouri Mining argues that the BRB correctly
vacated Judge McElroy's decision because it was based on several errors of
law and later affirmed Judge Murty's denial of benefits.


        Congress created a special system for review of black lung benefit
claims.       It is up to an ALJ to resolve conflicting medical




        2
      Missouri Mining contends that because Van Dyke did not seek
reconsideration of the BRB's remand of Judge McElroy's 1986
decision, she has not exhausted her administrative remedies and
has waived her right to challenge that BRB action. Generally, a
claimant must exhaust her administrative remedies by seeking a
final decision from the agency before going to court. See
Consolidation Coal Co. v. Smith, 837 F.2d 321, 323 n.3 (8th Cir.
1988). Under the Black Lung Benefits Act, however, a claimant
need not seek reconsideration of a BRB decision before
petitioning to this court. See 20 C.F.R. § 802.407 (a party
"may" request reconsideration of a BRB decision within thirty
days).

                                               4
evidence and to determine whether to award benefits.     See, e.g., Phillips
v. Director, OWCP, 768 F.2d 982, 984 (8th Cir. 1985) (it is within the
ALJ's discretion as finder of fact to determine whether a physician's
report is sufficiently documented and reasoned to support a claim).        A
claimant may challenge the ALJ's decision on appeal to the BRB.    33 U.S.C.
§ 921(b); Aubrey v. Director, OWCP, 916 F.2d 451, 452-53 (8th Cir. 1990).
The BRB's scope of review is limited, and it must affirm the ALJ's decision
if there are no prejudicial errors of law and the factual findings are
supported by substantial evidence in the record as a whole.        33 U.S.C.
§ 921(b)(3); Oliver v. Director, OWCP, 993 F.2d 1353, 1353-54 (8th Cir.
1993).     The BRB is not authorized to undertake a de novo review or to
substitute its views for those of the ALJ.      Yauk v. Director, OWCP, 912
F.2d 192, 194 (8th Cir. 1989).


        Our jurisdiction is predicated on the issuance of a final order by
the BRB pursuant to 33 U.S.C. § 921(c).       This provision states in part
that:


        Any person adversely affected or aggrieved by a final order of the
        Board may obtain a review of that order in the United States court
        of appeals for the circuit in which the injury occurred . . . . Upon
        such filing [of petition for review], the court shall have
        jurisdiction of the proceeding and shall have the power to give a
        decree affirming, modifying, or setting aside, in whole or in part,
        the order of the Board and enforcing same to the extent that such
        order is affirmed or modified.


33 U.S.C.A. § 921(c) (1986).


        Here, the BRB's 1993 decision was not a final order because it merely
vacated and remanded Judge McElroy's decision for further findings, without
resolving Van Dyke's claims.    See Bartley v. L & M Coal Co., 901 F.2d 1311,
1313 (6th Cir. 1990) (ALJ's initial decision which was vacated and remanded
by the BRB could not constitute the final disposition of the claim); Redden
v. Director,




                                       5
OWCP, 825 F.2d 337, 338 (11th Cir. 1987) (BRB order vacating and remanding
is not a final order because it neither fixes employer's liability nor
claimant's right to benefits).


     The BRB's 1995 order was its final decision because it determined the
liabilities and rights at stake by affirming the denial of benefits.   Van
Dyke's petition for review of the BRB's 1995 decision therefore authorizes
our jurisdiction over the proceeding pursuant to 33 U.S.C. § 921(c).


     Although our review arises from the BRB's 1995 order, we are entitled
to look at the entire record in determining whether the BRB committed
errors of law or adhered to its standard of review, and whether the ALJ's
decision was supported by substantial evidence and reached in conformance
with the applicable law.     See Robinson v. Missouri Mining Co., 955 F.2d
1181, 1183 (8th Cir. 1992); Oliver, 993 F.2d at 1353-54; Cline v. Director,
OWCP, 917 F.2d 9, 10 (8th Cir. 1990).


     In this case, a thorough review of the record reveals no errors by
the BRB in the earlier stages of the proceeding that should taint its final
decision.   The BRB vacated Judge McElroy's 1986 decision because it was
premised on legal errors.    These errors included Judge McElroy's failure
to discuss Dr. Mitchell's invalidation of the MVV values on Dr. Gryte's
pulmonary function study and the negative x-ray evidence prior to making
his findings.   See Phillips, 768 F.2d at 985 (finder of fact must examine
the validity of a medical opinion in light of contrary test results or
diagnosis).     Judge McElroy also improperly credited Dr. Gryte's opinion
over Dr. Hollinger's contrary report because Dr. Hollinger worked for mine
operators, see Richardson v. Perales, 402 U.S. 389, 403 (1971) (bias not
established by mere fact that physician received a fee from a party), and
he stated that Dr. Gryte was board-certified in internal medicine when
there was no evidence of such qualification.    Compare Long v. Bowen, 866
F.2d 1066, 1067




                                     6
(8th Cir. 1989) (affirming ALJ decision where greater weight given to
doctors whose credentials were not in doubt).           The BRB should not affirm
a decision containing prejudicial errors of law, so even if Judge McElroy's
findings could be said to have been supported by        substantial evidence, his
decision was properly vacated and remanded "for further appropriate
action."   33 U.S.C. § 921(b)(4); Oliver, 993 F.2d at 1353.


       Even though    Van   Dyke's   challenge   does   not   focus   on   the   BRB's
affirmance of Judge Murty's decision, we have also carefully reviewed the
record as to that.    We conclude that the BRB limited itself to the proper
standard of review and that Judge Murty's findings were supported by
substantial evidence and were reached in accordance with the applicable
law.   See Oliver, 993 F.2d at 1354.         We therefore affirm the BRB's March
29, 1995 order denying benefits.


       A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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