                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           JAN 24 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


    MICHAEL SVETICH,

              Petitioner,

    v.                                                 No. 01-9505
                                                    (No. 00-0363-BLA)
    DIRECTOR, OFFICE OF WORKERS’                   (Petition for Review)
    COMPENSATION PROGRAMS,
    UNITED STATES DEPARTMENT
    OF LABOR,

              Respondent.

    _____________________________

    U.S. STEEL MINING COMPANY,
    INC.,

              Intervenor.


                            ORDER AND JUDGMENT          *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Petitioner Mike Svetich seeks review of the decision of the Benefits

Review Board (“Board”) affirming the administrative law judge’s (“ALJ”) denial

of benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (the “Act”).

U.S. Steel Mining Company is the responsible operator (“Operator”).      See

20 C.F.R. §§ 725.491-725.493. Our jurisdiction arises pursuant to 33 U.S.C.

§ 921(c), and we affirm.


                                          I.

      Benefits are provided under the Act for a miner who establishes total

disability from performing his usual coal mine work or from engaging in other

work requiring comparable skills or abilities when that disability is due to

pneumoconiosis that developed in part out of coal mine employment. 20 C.F.R.

§§ 718.203-.204. The governing regulations also provide medical criteria which,

if satisfied, establish a rebuttable presumption of such total disability. Under

those regulations, total disability may be demonstrated by qualifying pulmonary

function tests, by qualifying arterial blood-gas tests, or by a showing of

pneumoconiosis combined with medical evidence of cor pulmonale.        Id.

                                          -2-
§ 718.204(b)(2). If total disability is not established by one of these medical

criteria, it may alternatively be established by a physician who concludes that the

miner’s respiratory or pulmonary impairment prevents him from engaging in his

prior work or other similar employment.     See id.


                                           II.

      It is uncontroverted that Mr. Svetich had forty-three and one-half years of

coal-mine employment at his retirement in 1983. The district director of the

Offices of Workers’ Compensation Programs of the Department of Labor denied

Mr. Svetich’s prior claims for benefits in 1983 and 1995. In 1995 the director

found that, although Mr. Svetich had established the existence of pneumoconiosis,

the medical evidence did not support a finding of total disability either by results

of objective tests or by a physician’s opinion. Mr. Svetich filed a subsequent

claim for benefits in 1997, asserting that there had been a material change in the

condition on which the denial was based.     See 20 C.F.R. § 725.309 (d)(2) (stating

that a change in conditions may be asserted only for “those conditions upon which

the prior denial was based”). He based the change in conditions on a 1997

arterial blood-gas test that, for the first time, unequivocally met the statutory

requirements of total disability. The district director determined that Mr. Svetich

was eligible for benefits based on this test, but the Operator contested that finding

and requested a formal hearing.

                                           -3-
      At the hearing, the ALJ considered several medical reports. In three of the

reports, the physicians concluded that Mr. Svetich was not totally disabled by his

pulmonary condition.   See Operator’s Ex. 9, at 4 (1997 report from Dr. Farney

stating that “there was no evidence of significant pulmonary impairment which

might lead to disability from coal worker’s pneumoconiosis,” and that Mr. Svetich

had “quite adequate levels of ventilation and gas exchange”); Director’s Ex. 9, at

4 (Dr. Klepper’s 1997 report stating that the “pulmonary condition does not

cause any limitations of activity”); Operator’s Ex. 25, at 2 (Dr. Repsher’s 1999

report stating that Mr. Svetich’s pulmonary function tests were “normal” and that

he “has no impairment as a result of . . . coal workers pneumoconiosis” and

“retains the respiratory capacity to do sustained, heavy, coal mine work”).

      Mr. Svetich’s expert, Dr. James, noted that Mr. Svetich’s arterial blood gas

results were abnormal but that his exercise tolerance and lung function tests were

normal for his age. Claimant’s Ex. 8, at 5. He stated that he could “not

determine with a reasonable degree of medical certainty that Mr. Svetich would

be totally disabled as a consequence of his coal mine dust induced lung disease.”

Id. Based on these reports, the ALJ concluded that Mr. Svetich had failed to

establish a material change in condition warranting the filing of the duplicate

claim and that, notwithstanding the abnormal arterial blood-gas test, record

evidence did not establish that Mr. Svetich was totally disabled from a respiratory


                                         -4-
impairment. Mr. Svetich appealed and the Board upheld the ALJ’s decision,

finding that substantial evidence in the record supported the ALJ’s findings and

conclusions.


                                         III.

       On review, the court of appeals must “scrutinize the [review board’s

decision] for errors of law and for adherence to the substantial evidence standard

governing the Board’s review of the administrative law judge’s factual

determinations.”   Maddaleni v. Dir., OWCP , 961 F.2d 1524, 1525 (10th Cir.

1992) (quotations omitted) (alteration in original). “Our review of alleged errors

of law, and the effect they may have had on the benefits decision, must be made

in light of the premise that [t]he Act is intended to be remedial in nature, and

doubts should be resolved in favor of the disabled miner or his [or her]

survivors.” Bosco v. Twin Pines Coal Co. , 892 F.2d 1473, 1476 (10th Cir. 1989)

(quotations omitted) (alterations in original).

      Mr. Svetich asserts that the Board misconstrued Dr. James’ testimony by

concluding that Dr. James did not find a totally disabling respiratory impairment.

We disagree. As his report quoted   supra shows, Dr. James clearly stated that he

was unable to conclude that Mr. Svetich’s respiratory impairment was totally

disabling.



                                          -5-
      Mr. Svetich next asserts that the Board erroneously relied on Dr. Repsher’s

opinion because it was based on an inaccurate smoking history. We agree with

the Board that any inaccuracy in the smoking history is not relevant to the issue of

whether a totally disabling respiratory impairment exists. Therefore, it was not

reversible error to consider Dr. Repsher’s opinion in determining that issue.

Further, even without Dr. Repsher’s opinion, there is substantial medical evidence

in the record to support the ALJ’s conclusion that Mr. Svetich’s respiratory

impairment was not totally disabling, notwithstanding the arterial blood-gas test.

The presumption of total disability arising from that test result was sufficiently

rebutted by other lung function and exercise tolerance tests and by the medical

opinions of Drs. Farney and Klepper. Because the ALJ’s determination that

Mr. Svetich is not totally disabled by his respiratory impairment is supported by

substantial evidence, the Board properly affirmed the ALJ’s order denying

benefits. We therefore need not address Mr. Svetich’s argument alleging error in

the ALJ’s determination that Mr. Svetich did not establish a material change in

condition.




                                         -6-
The petition for review is DENIED.



                                      Entered for the Court



                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                -7-
