In the
United States Court of Appeals
For the Seventh Circuit

No. 97-2381

HAROLD D. CROWE,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, and
ZEIGLER COAL COMPANY,

Respondents.



Petition for Review of a Decision of the Benefits
Review Board, United States Department of Labor.
BRB No. 96-827 BLA


Argued May 30, 2000--Decided August 21, 2000



  Before POSNER, COFFEY and KANNE, Circuit Judges.

  COFFEY, Circuit Judge. From 1975 until 1980,
Petitioner Harold D. Crowe ("Crowe") was employed
as a coal car operator for the Zeigler Coal
Company ("Zeigler") in Des Plaines, Illinois. But
due to respiratory problems which he claims
resulted from inhaling coal and rock dust, Crowe
has been unable to work since June 1980./1 On
January 22, 1981, Crowe filed an initial claim
for benefits under the Black Lung Benefits Act,
30 U.S.C. sec.sec. 901-945. However, according to
Crowe, his illiteracy prevented him from properly
responding to repeated requests from the
Department of Labor ("DOL") to submit
documentation "required to process [his] claim."
The DOL subsequently denied his 1981 claim on
procedural grounds only and did not reach the
merits of Crowe’s application.

  Nearly ten years later, Crowe filed a second
claim for black lung benefits, in which he
included medical records dating back to 1980. The
DOL denied his 1990 claim, ruling that he had
failed to demonstrate a material change in his
health conditions since the denial of his first
claim. The DOL also determined that Crowe failed
to demonstrate that: (1) he had black lung
disease; (2) his respiratory problems were
caused, at least in part, by coal mine work; and
(3) he was totally disabled due to black lung
disease. Thereafter, an administrative law judge
("ALJ") denied his second claim, concluding that
Sahara Coal Co. v. Office of Workers’
Compensation Programs ("McNew"), 946 F.2d 554
(7th Cir. 1991) prevented him from reaching the
merits of Crowe’s application for black lung
benefits. The ALJ’s decision was affirmed by the
Benefits Review Board ("Review Board").

  Crowe now petitions this court for a review of
the Review Board’s final order denying him black
lung benefits, arguing that the Review Board
"failed to engage in reasoned decisionmaking" and
"exceeded its statutory authority" in affirming
the ALJ’s findings. The petition for review is
GRANTED, and the petition is REMANDED to the ALJ for
proceedings consistent with this opinion.

I.   BACKGROUND

  In June 1980, Crowe was forced to leave his job
as a coal car operator due to respiratory
problems which he contends resulted from inhaling
coal and rock dust and thereafter, on January 22,
1981, filed his initial claim for black lung
benefits pro se. On February 5, 1981, the DOL
advised Crowe in a letter that in order for his
claim to proceed, he must submit documentation
"required to process [his] claim," including
"[p]roof of coal mine employment," birth
certificates of his children and prior W-2 forms.
The petitioner, possibly because of his
illiteracy, did not respond and one month later
on March 9, 1981, the DOL sent Crowe a second
letter, again explaining that he had failed to
provide the necessary documentation and that
"[i]f you do not respond to this notice within 30
(thirty) days, your claim may be DENIED for
failure to prove necessary facts in your case."

  When the DOL did not receive the necessary
information "required to process [his] claim,"
the DOL sent a third and final letter dated May
27, 1981, which recited:

IF YOU DO NOT WRITE OR CALL WITHIN THIRTY (30)
DAYS, YOUR CLAIM WILL BE DECLARED ABANDONED. IN
THAT EVENT THIS LETTER WILL SERVE AS NOTICE OF
DENIAL OF YOUR CLAIM FOR FAILURE TO PROVIDE
EVIDENCE NECESSARY TO YOUR CLAIM.

The petitioner failed to respond to this letter
and his 1981 claim for black lung disease
benefits was denied on procedural grounds only
without reaching the merits of his claim.

  Crowe waited almost ten years and then filed a
second claim for black lung benefits with the DOL
on August 15, 1990. On January 9, 1991, the DOL
denied Crowe’s second claim after making a
finding that he had failed to demonstrate that:
(1) he ever had black lung disease; (2) it was
caused, at least in part, by coal mine work; (3)
he was totally disabled due to black lung
disease; and (4) there was a "material change in
conditions" since the denial of his 1981 claim.
Thereafter, Crowe requested and was granted a
hearing before an ALJ, who initially denied Crowe
black lung disease benefits, but after a remand
from the Review Board,/2 reversed himself and
awarded benefits. But when Zeigler filed a motion
for reconsideration, on a third kick at the cat,
the ALJ reversed himself again, and, relying on
Sahara Coal, denied benefits to Crowe:

Mr. Crowe presented no evidence at all with his
original [1981] application for benefits. He then
reapplied after the first denial had become final
and presented evidence which I concluded in the
decision and order on remand is sufficient to
establish that he is totally disabled due to
pneumoconiosis arising from coal mine employment.
Under the McNew [Sahara Coal Co.] reasoning,
however, Mr. Crowe would be attempting to
relitigate his original claim by submitting the
new claim and additional evidence . . . .

. . .

I therefore find that the claim filed by Mr.
Crowe [in 1990] must be denied because the
claimant abandoned his previous claim . . . .

(Emphasis added).

  Crowe appealed the ALJ’s decision to the Review
Board. In a March 18, 1997 letter (likely written
with someone else’s assistance), Crowe explained
that inaccurate advice from an employee of the
social security office compounded with his
illiteracy, caused the problem with his 1981
application for benefits:

[I]t was extremely difficult to find anyone to
help me with my black lung claim. I contacted
many lawyers both locally and within surrounding
counties and none could give me any information
about black lung. As I was trying to deal with my
black lung claim I contacted the social security
office where I had originally filed my black lung
claim, hoping they would have some information to
help me deal with the claim. After contacting
them a few times one of the employees at the
social security office told me that I shouldn’t
concern myself with the black lung claim so much,
because if I qualified for disability social
security I would automatically qualify for black
lung benefits. Since I could get help with my
disability claim, but could not find any help for
my black lung claim I just went ahead pursuing my
[social security] disability claim under the
impression I was pursuing both claims. Since I am
illiterate I have to take another person’s word
for everything. Since I did file both claims on
the same day and the same place, with the same
person this did make sense to me.

. . .

  Now I would like to address the issue of non
response [sic] from the claims examiner in May
1981. I do vaguely remember getting some mail
from the claims examiner. At that time I thought
I was pursuing both claims through social
security but I have to add for the record the
letter that they state was dated May 27, 1981, I
do not know the reason but, I do not have any
knowledge of the contents that they say was in
the letter.

(Emphasis added)./3 Despite Crowe’s compelling
explanation and the ALJ’s flip-flopping, not to
mention the ALJ’s cursory analysis of Sahara
Coal,/4 the Review Board affirmed the ALJ’s
decision and denied Crowe’s motion for
reconsideration. Crowe subsequently filed a
petition for review with this court./5

II.   ISSUES

  On appeal, Crowe, now represented by counsel,
alleges that the Review Board "failed to engage
in reasoned decisionmaking" and "exceeded its
statutory authority" in affirming the ALJ’s
denial of black lung benefits.
III. DISCUSSION

  Although the petitioner is appealing a decision
of the Review Board, "[i]f the ALJ’s decision
passes muster, then the decision of the Board
affirming the ALJ’s determination likewise will
be affirmed by this court." See Peabody Coal Co.
v. Shonk, 906 F.2d 264, 267 (7th Cir. 1990).
Because Crowe challenges the ALJ’s application of
this court’s holding in Sahara Coal, we review
the denial of his 1990 claim for black lung
disease benefits de novo. See Keeling v. Peabody
Coal Co., 984 F.2d 857, 862 (7th Cir. 1993);
Shelton v. Old Ben Coal Co., 933 F.2d 504, 506
(7th Cir. 1991) ("With respect to questions of
law, however, our standard of review is de
novo.").

  In Sahara Coal Co. v. Officer of Workers’
Compensation Programs, 946 F.2d 554, 556 (7th
Cir. 1991) (emphasis added), this court resolved
a case involving a second claim for black lung
benefits, explaining that:
[a] second application for black lung benefits,
filed after the first application was finally
denied, may be granted only (as far as relates to
this case) if there has been "a material change
in conditions." 20 C.F.R. sec. 725.309(d).
Otherwise that first denial, having become final,
is res judicata and bars a subsequent
application. Lukman v. Director, 896 F.2d 1248,
1253-54 (10th Cir. 1990); cf. Pittston Coal Group
v. Sebben, 488 U.S. 105, 122-23, 109 S. Ct. 414,
424-25, 102 L. Ed. 2d 408 (1988). . . . It is not
enough that the new application is supported by
new evidence of disease or disability, because
such evidence might show merely that the original
denial was wrong, and would thereby constitute an
impermissible collateral attack on that denial.
Suppose for example that in his original
application the miner had presented no evidence
at all, and been turned down. He reapplies after
the first denial has become final and this time
presents an abundance of evidence. If the
evidence shows not that his condition has
worsened since the first application but merely
that he should not have been turned down, he has
failed to demonstrate a material change in his
condition; he is merely attempting to relitigate
his original claim.

Accordingly, under Sahara Coal, a claimant who
files a second application for black lung
benefits must demonstrate a "material change in
conditions," which is defined as: (1) "the miner
did not have black lung disease at the time of
the first application but has since contracted it
and become completely disabled by it"; or (2)
"his disease has progressed to the point of
becoming totally disabling although it was not at
the time of the first application." Id.
"Otherwise that first denial, having become
final, is res judicata and bars a subsequent
application." Id.; see Peabody Coal Co. v. Spese,
117 F.3d 1001, 1008-09 (7th Cir. 1997) (en banc).

  Turning our attention to the case at hand, we
are presented with an entirely different factual
situation than what was presented in Sahara Coal.
While it is true that both Sahara Coal and this
case involve successive claims for black lung
benefits, contrary to the ALJ’s conclusion and
the respondent Zeigler’s assertions, the
similarity ends there. Crowe’s initial
application for benefits was denied solely on
procedural grounds and without any discussion of
or much less any ruling on the merits of his
health condition and thus, does not fit within
the parameters of Sahara Coal. The basis of our
reasoning in Sahara Coal is that "[t]he law of
preclusion . . . bars relitigation of issues
between the same parties when those issues were
actually litigated and necessary to the decision
of the earlier tribunal." Peabody Coal, 117 F.3d
at 1008 (emphasis added). But Crowe’s 1981 claim
was denied by the DOL on procedural grounds
because the petitioner failed to provide
documentation "required to process [his] claim"
(i.e., proof of coal mine employment, birth
certificates of his children and prior W-2
forms). Indeed, the DOL in 1981 failed to reach
the merits of Crowe’s health condition and never
saw fit to determine whether Crowe met the
standard of proof required to establish
pneumoconiosis. Conversely, in Sahara Coal, the
claimant’s initial claim for benefits was denied
by the DOL on the merits, and the claimant filed
his second claim two and one-half years later.
See Sahara Coal, 946 F.2d at 556.

  Furthermore, while the record is unclear as to
whether the claimant in Sahara Coal proceeded pro
se, the record before us is clear that Crowe
filed both his 1981 and 1990 claims for black
lung benefits without the benefit of counsel. We
also find compelling the petitioner’s explanation
that his failure to provide the requested
information "required to process [his 1980]
claim" was due to the confusion caused by the
social security office and his lack of
educational capacity to comprehend the letters
due to his illiteracy. When his illiteracy is
considered in conjunction with his lack of
representation and the misinformation provided by
the representative from the social security
office, we are of the opinion that it would be
unfair and improper to hold that the procedural
denial of the petitioner’s initial claim is
sufficient to deprive him of an opportunity with
the assistance of counsel to advance his 1990
claim on the merits of his health condition. See
also Marin v. HEW, 769 F.2d 590, 593 (9th Cir.
1985) (emphasis added) ("[A] denial with
prejudice may be a final judgment with res
judicata effect as long as the result is not
unfair.").

  We therefore conclude that Sahara Coal is
inapplicable and decline to hold that his 1990
claim for black lung benefits "is merely [an
attempt] to relitigate his original claim."
Because Sahara Coal does not apply to the
specific and unique facts of this case, we hold
that Crowe was not required to demonstrate a
"material change in conditions" in his 1990
claim./6

  Turning to the merits of the petitioner’s 1990
claim for black lung benefits,/7 the record
reflects that in August 1980, one year prior to
the filing of his initial claim, Dr. Curtis
Krock, Crowe’s doctor and a board certified
specialist in pulmonary disease and internal
medicine, examined and diagnosed the petitioner
with bronchitis and asthma and concluded that
Crowe "was not capable of work in an industrial
environment because of his tremendous paroxysms
of coughing" resulting from "specific dust
exposure."/8 In February 1982, Dr. Krock again
examined Crowe and noted that he "continues to be
disabled . . . because of asthmatic bronchitis
with intolerance to hyperventilation exercise,
and fumes and dusts of all kinds."/9 Similarly,
in June 1988, a Dr. K. R. Crabtree, a family
practice physician, examined and diagnosed Crowe
with an upper respiratory allergy, infection,
acute and chronic bronchitis and asthma, as well
as opined that "he is disabled as a result of
th[ese] problem[s] and will remain so for the
remainder of his life." But we note that neither
Dr. Krock nor Dr. Crabtree, in their record
entries, diagnosed Crowe as suffering from
pneumoconiosis./10

  From 1988 through 1990, Crowe was admitted to
the Monroe County Medical Center in
Tompkinsville, Kentucky on four occasions for
asthmatic bronchitis. On October 19, 1988 and on
June 29, 1989, Crowe was also admitted to the
hospital and treated for "acute asthmatic
bronchitis."/11 Crowe was confined in the
hospital again on July 21, 1990 for shortness of
breath and upon discharge, was diagnosed with
asthmatic bronchitis and chronic obstructive
pulmonary disease. His next trip to the
Tompkinsville hospital during this period
occurred on September 1, 1990,/12 and he was
treated for and diagnosed with asthmatic
bronchitis, as well as an upper respiratory
infection and depression./13

  Furthermore, after the filing of Crowe’s second
claim for black lung benefits in 1990, the DOL
arranged to have Crowe undergo a variety of
tests, including a chest x-ray. A chest x-ray
taken of Crowe on August 31, 1990 was read by
Drs. Kirk Hippensteel and James Castle, both
board certified "B-readers" (doctors who have
demonstrated proficiency in evaluating chest x-
rays for black lung disease, see 20 C.F.R. sec.
718.202(a)(1)(ii)(E)), and they concluded that
the chest x-ray was negative for black lung
disease. However, in October 1990, Dr. Glen
Baker, also a certified B-reader, took another
chest x-ray of Crowe and found "abnormalities
consistent with pneumoconiosis." Dr. Baker
discovered small "opacities" (spots) of widths up
to about 3 millimeters in Crowe’s middle and
lower areas of his left and right lungs./14

  While it seems clear that there exists
significant evidence of Crowe’s debilitating lung
condition,/15 because Sahara Coal is
inapplicable to the specific and unique facts of
this case, we are convinced that the parties
involved and the interests of justice would best
be served if the ALJ made more detailed findings
of fact based on the evidence presented after the
parties have the opportunity to argue the merits
of the petitioner’s 1990 claim for black lung
benefits. We are also inclined to remand the case
because the ALJ previously flip-flopped on the
same question of whether Crowe sufficiently
demonstrated that he is suffering from
pneumoconiosis, and relied on a cursory (and
incorrect) analysis of the law. Accordingly, we
grant the petition for review and remand the case
to the ALJ with instructions that he address the
merits of the petitioner’s 1990 claim for black
lung benefits. Because the petitioner’s 1990
claim for black lung benefits is more than a
decade old, we encourage the ALJ to proceed as
expeditiously as possible on remand.

  The petition for review is GRANTED, and the
petition is REMANDED to the ALJ for proceedings
consistent with this opinion./16



/1 We note that due to his condition, the petitioner
applied for and was granted social security
disability benefits in 1983.

/2 The Review Board’s remand instructed the ALJ to
consider whether "Dr. Krock may have diagnosed
pneumoconiosis."

/3 Because Crowe’s allegations regarding his
illiteracy and the misleading information
provided by the social security office are
unrefuted, we accept them as true on appeal.

/4 In fact, the Review Board even noted that the ALJ
erred in interpreting 20 C.F.R. sec. 725.409(b),
but concluded that the ALJ’s "misinterpretation
of this regulation is harmless error, however, in
view of our ultimate affirmance of the [ALJ’s]
denial of benefits."

/5 Although this court appointed counsel to
represent the petitioner on appeal, it is
important to note that during all prior
proceedings before the DOL, ALJ and the Review
Board, Crowe proceeded without counsel.

/6 Our holding today is limited to the specific and
unique facts of this case and in no way overrules
Sahara Coal.

/7 20 C.F.R. sec. 727.203(a) provides, in relevant
part:
A miner who engaged in coal mine employment for
at least 10 years will be presumed to be totally
disabled due to pneumoconiosis, . . . arising out
of that employment, if one of the following
medical requirements is met:

(1) A chest roentgenogram (X-ray), biopsy, or
autopsy establishes the existence of
pneumoconiosis . . . ;

(2) Ventilatory studies establish the presence
of a chronic respiratory or pulmonary disease .
. . ;

(3) Blood gas studies which demonstrate the
presence of an impairment in the transfer of
oxygen from the lung alveoli to the blood . . .
;

(4) Other medical evidence, including the
documented opinion of a physician exercising
reasoned medical judgment, establishes the
presence of a totally disabling respiratory or
pulmonary impairment . . . .

Because Crowe worked in a coal mine for only 5
years, he is not entitled to the benefit of this
presumption.

/8 Dr. Krock examined Crowe ten months later in May
1981, and again concluded that "he continues to
have asthmatic bronchitis with [an]
incapacitating cough that has made it impossible
for him to resume mining or other gainful
employment; he has more evidence of wheeze and
airway obstruction today than on any previous
visit."

/9 When Dr. Krock examined Crowe on December 16,
1982, he reiterated his finding that the
petitioner "is disabled and unable to work due to
his chronic and intractable cough associated with
abnormal airways reactivity."

/10 Nonetheless, the ALJ concluded that
Dr. Krock did positively attribute claimant’s
total disability to his coal mine employment [on
August 27, 1980], while Drs. Crabtree and Small
did not make that connection. None of the other
hospital reports contains an opinion expressly
relating claimant’s coal dust exposure to his
total respiratory disability. I do note, however,
that Dr. Baker only diagnosed mild impairment,
but he attributed that impairment to
pneumoconiosis. I also find it significant that
the reports of Drs. Small and Crabtree, as well
as the hospital reports, do not expressly
contradict claimant’s respiratory disability to
his coal dust exposure. Indeed, none of the
reports rules out coal dust exposure as the cause
of the claimant’s respiratory disability. Because
of Dr. Krock’s positive conclusion, and no
contradictory evidence, I find that the claimant
has established that pneumoconiosis is a
contributing cause of his respiratory impairment.
(Emphasis added).

/11 Crowe was transferred to The Medical Center at
Bowling Green on June 29, 1989 for treatment of
his "respiratory distress."

/12 Upon his discharge from the Tompkinsville
hospital, Crowe was transferred to the T.J.
Samson Community Hospital on September 7, 1990.
In the discharge summary dated September 19,
1990, a Dr. Karen Small diagnosed Crowe with
"asthma with chronic obstructive pulmonary
disease" and "candida bronchitis."

/13 These same ailments would force Crowe to be
admitted to a hospital as a patient on four other
occasions from 1991 through January 1992.

/14 We note, however, that Drs. Jay Gordenson and
Nicholas Sargent, both certified B-readers and
also board certified radiologists, disagreed with
Dr. Baker’s findings. Dr. Gordenson re-read the
chest x-ray and found no "parenchymal" or
"pleural abnormalities consistent with
pneumoconiosis." Dr. Sargent also re-read the
chest x-ray and similarly found it "completely
negative" for pneumoconiosis.

/15 Indeed, the ALJ made the alternative finding that
"should these conclusions [(based on Sahara
Coal)] prove to be incorrect and that the merits
of Mr. Crowe’s second claim must be addressed,
then I would conclude that . . . [the evidence]
is sufficient to establish total disability due
to pneumoconiosis arising from coal mine
employment." (Emphasis added).

/16 In light of our above holding, we need not reach
the petitioner’s claims that the Review Board
"failed to engage in reasoned decisionmaking" and
"exceeded its statutory authority" in affirming
the ALJ’s denial of black lung benefits.
