UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. O. LIVELY CONSTRUCTION
COMPANY,
Petitioner,

v.
                                                                      No. 97-2441
RALPH MANNING, Deceased;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of Orders
of the Benefits Review Board.
(95-2148-BLA, 92-1841-BLA)

Submitted: May 19, 1998

Decided: June 29, 1998

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William H. Howe, Mary Lou Smith, HOWE, ANDERSON &
STEYER, P.C., Washington, D.C., for Petitioner. Robert F. Cohen,
Jr., COHEN, ABATE & COHEN, L.C., Fairmont, West Virginia;
Marvin Krislov, Deputy Solicitor for National Operations, Donald S.
Shire, Associated Solicitor, Christian P. Barber, Rita Roppolo,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

J.O. Lively Construction Company ("employer") petitions for
review of a decision of the Benefits Review Board ("Board") affirm-
ing the administrative law judge's ("ALJ") award of black lung bene-
fits to Ralph Manning, a deceased former coal miner. The first
hearing on Manning's claim took place in 1987 before ALJ Marden.
In his 1988 decision, the ALJ credited Manning with 30 years of coal
mine employment and evaluated the claim under 20 C.F.R. Part 718
(1997), of the applicable regulations. He found the evidence of record
insufficient to directly prove the existence of pneumoconiosis under
20 C.F.R. § 718.202(a) (1997). The ALJ recognized that because of
the length of his coal mine employment, Manning could establish a
rebuttable presumption of entitlement through 20 C.F.R. § 718.305
(1997), by establishing a totally disabling respiratory impairment. By
so doing, Manning could receive a rebuttable presumption that all ele-
ments of his claim, including pneumoconiosis, had been established.

Although Manning's pulmonary function studies qualified under
Appendix B of the regulations, reflecting a disabling respiratory
impairment, the ALJ found no total disability based on his view that
the ventilatory studies were outweighed by the non-qualifying blood
gas studies and the medical opinions of Drs. Salom, Daniel, and Zal-
divar, who the ALJ found considered the ventilatory evidence in ren-
dering their opinions. Drs. Salom and Daniel actually collaborated on
a single report and found no evidence of significant pulmonary dys-
function. Dr. Zaldivar found a moderate obstructive impairment
which he opined would limit the miner's work activities to a "mild
level."

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The Board affirmed ALJ Marden's decision and Manning filed a
petition for modification under 20 C.F.R. § 725.310 (1997), which
permits any party to seek reconsideration within one year of a deci-
sion if he can establish either a material change in conditions or a
mistake of fact. Id. Together with this petition Manning submitted
new medical evidence, some of which he possessed at the time the
case was originally before the district director (called "deputy com-
missioners" at the time) but never submitted. This "deputy commis-
sioner" evidence consisted of pulmonary function studies and blood
gas studies performed on October 19, 1982, and November 8, 1992,
a 1982 medical opinion from Dr. Rasmussen, and an opinion from the
West Virginia Occupational Pneumoconiosis Board.

ALJ Neusner initially considered Manning's modification petition.
He admitted medical evidence submitted by both parties, including
the deputy commissioner evidence, into the record without objection,
but remanded the claim to the deputy commissioner because some of
the evidence had never been considered at the deputy commissioner
level. When the case returned to the ALJ level, ALJ Neusner was
unavailable, so the claim was assigned to ALJ Levin.

In his first consideration of the claim, ALJ Levin found that Man-
ning could not submit the deputy commissioner evidence because he
could not establish extraordinary circumstances permitting admission
of evidence which could have been submitted earlier, in accordance
with 20 C.F.R. § 725.456(d) (1997). Because he viewed this evidence
as the basis for Manning's claim of a mistake of fact, he found no
mistake of fact. He further found, however, that the evidence devel-
oped since ALJ Marden's decision established a change in conditions
that warranted granting modification and an award of benefits. He
found that new qualifying ventilatory studies established total disabil-
ity in the absence of contrary probative evidence. He further deter-
mined that non-qualifying blood gas tests conducted after the original
denial did not negate the qualifying ventilatory evidence because pul-
monary function studies and blood gas studies measure different types
of impairment. Because he found that employer submitted no evi-
dence contrary to the qualifying ventilatory studies, the ALJ found
disability and awarded benefits.

Employer appealed the finding of a change in conditions and Man-
ning appealed the finding of no mistake of fact. Manning desired that

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the finding of modification be based on a mistake of fact rather than
a change in conditions because a finding of mistake of fact would
result in an earlier onset date for the commencement of benefit pay-
ments. The Board vacated the ALJ's finding of a change in conditions
based on its finding that the ALJ erred by considering only the new
evidence, rather than the new evidence in conjunction with the old
evidence, to determine this issue. The Board also vacated the ALJ's
finding of no mistake of fact so that he could reconsider this issue in
accordance with this Court's then recent decision in Jessee v. Direc-
tor, Office of Workers' Compensation Programs, 5 F.3d 723 (4th Cir.
1993).

In his decision on remand, ALJ Levin considered all the evidence
of record, including the deputy commissioner evidence. He found
consideration of this evidence proper in light of the liberal standards
of Jessee, and because employer had not objected when this evidence
was entered into the record before ALJ Neusner. As in his first con-
sideration of the claim, all conforming ventilatory studies of record
were qualifying. Again, he found that the non-qualifying blood gas
studies did not undermine the tendency of the ventilatory studies to
establish disability. He found that the only other potentially contrary
evidence of record consisted of the reports of Drs. Daniel (which was
also Dr. Salom's report) and Zaldivar. Unlike ALJ Marden, however,
he rejected Dr. Daniel's opinion because he failed to reconcile his
finding of no significant respiratory dysfunction with the ventilatory
evidence. He also rejected Dr. Zaldivar's finding of no total disability
because his report failed to reflect that the doctor was aware of the
exertional requirements of Manning's last coal mine job. Hence, ALJ
Levin again awarded benefits, this time based upon a mistake of fact.
The Board affirmed.

In Jessee, we held that the statutory and regulatory provisions relat-
ing to modification in black lung cases give deputy commissioners
authority, for one year after the final order on a claim, "to simply
rethink a prior finding of fact." Id. at 725. We stated, "[t]hus, a claim-
ant may simply allege that the ultimate fact -- disability due to pneu-
moconiosis -- was mistakenly decided, and the deputy commissioner
may, if he so chooses, modify the final order on the claim." Id. We
also noted in Jessee that although the underlying authorities use the
term "deputy commissioners," that term includes ALJs. Id. at 725 n.2.

                     4
Employer contends, however, that a finding of a mistake of fact
would be improper in this case, because such a finding would be
improperly based upon the deputy commissioner evidence which
should not have been considered. We find it unnecessary to resolve
whether this evidence was properly considered, however, because we
find that even excluding such evidence, there is no doubt that the
ALJ's ruling would have been the same. The qualifying ventilatory
studies he considered were merely cumulative of other qualifying
studies performed both before and after the disputed studies, and all
conforming studies of record were qualifying. The only other deputy
commissioner evidence favorable to Manning which the ALJ consid-
ered was the report of Dr. Rasmussen. But Dr. Rasmussen's finding
that the miner could only perform sedentary work is essentially the
same as the finding of Dr. Scott, employer's physician, that the miner
could only perform "light" work in view of his respiratory impair-
ment.

The real key to the ALJ's finding of disability was the employer's
inability to submit contrary and probative evidence to outweigh the
ventilatory evidence of disability. A claimant may invoke the pre-
sumption at § 718.305 by establishing total disability in accordance
with the criteria set forth in § 718.204. See 20 C.F.R. § 718.305(c)
(1997). Under § 718.204, a miner establishes disability by any one of
the four alternative means set forth in that section, in the absence of
contrary probative evidence. Lane v. Union Carbide Corp., 105 F.3d
166, 171 (4th Cir. 1997). One way to preliminarily establish disability
under § 718.204 is through qualifying pulmonary function studies.
Thus, contrary to employer's contention, the ALJ did not improperly
shift the burden of proof in this case when weighing the relevant evi-
dence under § 718.204, but properly found that the qualifying ventila-
tory evidence established disability in the absence of contrary
evidence.

Next, the ALJ properly found that the non-qualifying blood gas
evidence did not constitute contrary probative evidence because those
tests measure a different type of impairment than the kind measured
by ventilatory studies. See Tussey v. Island Creek Coal Co., 982 F.2d
1036, 1041 (6th Cir. 1993). He then properly rejected Dr. Daniel's
opinion, which was contrary to the ventilatory evidence, because he
failed to reconcile his opinion with the contrary objective evidence.

                    5
See Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 823 (4th Cir. 1995).
Particularly where the ventilatory evidence uniformly established the
existence of a significant impairment, the ALJ could rationally ques-
tion the validity of an opinion that found the opposite without expla-
nation for the discrepancy.

Finally, the ALJ discredited the report of Dr. Zaldivar, whose opin-
ion constituted the only remaining contrary evidence, because his
report did not reflect that he was aware of the exertional requirements
of the miner's usual coal mine work. There is no dispute that an ALJ
may reject a report on this basis. See Walker v. Director, Office of
Workers' Compensation Programs, 927 F.2d 181, 183 (4th Cir.
1991). Moreover, substantial evidence supports the ALJ's determina-
tion in this case. Dr. Zaldivar found that Manning could perform the
job of a truck driver and mechanic. He found the miner's work activi-
ties restricted to a "mild level." The record, however, reflects that the
miner's last job was as a millwright, requiring him to hang and load
steel, unload trucks containing steel, and carry heavy objects up
flights of stairs. As the ALJ noted, Dr. Zaldivar did not consider these
occupational requirements.

Employer also asserts that the fact that ALJ Levin weighed the evi-
dence differently from ALJ Marden demonstrates that he found modi-
fication based on a finding of a mistake of law, not fact. We disagree.
As reflected by the language quoted above from Jessee, disability is
the ultimate fact the ALJ must find. Moreover, there can be no doubt
that an ALJ's weighing of the evidence is intensely factual, even
though it must, of course, be done in accordance with law.

Employer finally avers that modification would not be in the inter-
est of justice in this case. Such inquiry is not part of the analysis
employed by this Court in black lung modification cases, and we
decline to require consideration of this factor. Moreover, we note, in
any event, that the cases employer cites in support of its position on
this point are inapposite to this case and therefore fail to persuade us
that the grant of modification in this case resulted in any injustice.

Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-

                     6
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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