                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-1789


WILLIAMS MOUNTAIN COAL COMPANY,

                Petitioner,

           v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; DEWEY
LEE COMPTON,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(07-0720-BLA)


Argued:   March 25, 2009                     Decided:   May 27, 2009


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Petition denied by unpublished per curiam opinion.


ARGUED:   William   Steele   Mattingly,   JACKSON   KELLY    PLLC,
Morgantown, West Virginia, for Petitioner.      Daniel H. Ennis,
WASHINGTON & LEE UNIVERSITY, Black Lung Clinic, School of Law,
Lexington, Virginia; Jeffrey Steven Goldberg, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.         ON
BRIEF: Gregory F. Jacob, Solicitor of Labor, Rae Ellen Frank
James, Acting Associate Solicitor, Sean G. Bajkowski, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR,
Washington,   D.C.,  for   Federal   Respondent.      Timothy   C.
MacDonnell, Mary Z. Natkin, WASHINGTON & LEE UNIVERSITY, Black
Lung Clinic, School of Law, Lexington, Virginia, for Respondent
Dewey Lee Compton.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     In    this    case    brought    under    the   Black    Lung    Benefits     Act

(“the Act”), see 30 U.S.C.A. §§ 901-944 (West 2007), Williams

Mountain Coal Company (“the Employer”) petitions for review of

an order of the Benefits Review Board (“Board”) affirming an

administrative      law    judge’s     award   of    benefits.        We    deny   the

petition.



                                         I.

     Dewey Compton worked in coal mining for approximately 32

years, beginning in 1964.             His last year working in a mine was

1996, when he worked for the Employer as an electrician.                            He

filed his first black lung claim in 1998.                  Compton was examined

by several doctors in conjunction with this claim although only

one, Dr. Donald Rasmussen, is relevant to this appeal.

     Dr.     Rasmussen       first     evaluated      Compton        in    1999    and

determined       that     Compton’s    pneumoconiosis         left    him    totally

disabled.        His finding of total disability was based on the

moderate    loss    of    respiratory    function      that    Compton      exhibited

while     exercising,       combined      with       the     difficult      physical

requirements of Compton’s last coal mining job.

     When the District Director awarded benefits, the Employer

requested    a    formal    hearing    with    an    administrative        law    judge

(“ALJ”).     After this hearing took place on June 6, 2000, Judge

                                         3
Robert   Lesnick    (“ALJ1”)    denied      benefits.     In    so    doing,   he

credited    the    opinions    of   other    doctors    who    had    considered

clinical test results that Dr. Rasmussen had not reviewed.                  ALJ1

also observed that Dr. Rasmussen “appear[ed] to have slightly

overstated the exertion requirements” of Compton’s final coal

mining job.   J.A. 456.       The Board affirmed the denial on appeal.

     Compton filed a subsequent benefits claim in 2003.                    Based

on new test results, Dr. Rasmussen found Compton’s condition had

worsened and found that Compton’s resting arterial blood gas

test results were within one mmHg of the federal standards for

automatic qualification for total disability.                 Based on the new

evidence, and the difficult physical requirements of Compton’s

last mining job, Dr. Rasmussen again found Compton to be totally

disabled.

     The Employer had two experts examine Compton.                    First, Dr.

James R. Castle evaluated Compton on May 26, 2004.                     Based on

Compton’s blood gas results, Dr. Castle found that Compton was

impaired    but    not   totally    disabled.      Although      he    diagnosed

clinical pneumoconiosis, Dr. Castle opined that Compton’s coal

mine dust exposure did not contribute to Compton’s impairment,

which Dr. Castle attributed to Compton’s history of smoking.

Dr. Robert J. Crisalli examined Compton on November 22, 2004.

He concluded that Compton did not have pneumoconiosis at all but



                                       4
rather that he suffered from tuberculosis.                           Dr. Crisalli also

concluded that Compton was not totally disabled.

      Compton also sought an opinion from Dr. Robert A. C. Cohen.

After    examining        all    of   the          medical     evidence,          Dr.     Cohen

determined    that       Compton    was    totally         disabled.         He    based   his

opinion on the impairment in Compton’s oxygen transfer and on

the   physical     requirements       of       his    last    job.      Dr.       Cohen    also

agreed   with      Dr.    Rasmussen       and      Dr.     Castle     that    Compton      had

clinical pneumoconiosis arising out of coal mining employment.

      Based   on    the    new     evidence,         the     District    Director         again

awarded benefits, and the Employer again requested a hearing

before   an   ALJ.         On    April     25,       2006,    Judge     Michael         Lesniak

(“ALJ2”) held a formal hearing.                      After examining the evidence,

ALJ2 also awarded benefits.                On the issue of total disability,

he credited the opinions of Drs. Rasmussen and Cohen over the

opinions of Drs. Castle and Crisalli in concluding that Compton

was totally disabled.           The Board affirmed on appeal.



                                           II.

      The Employer first argues that the Board erred in affirming

the benefits award because, in light of the doctrine of issue

preclusion,        ALJ2      erred        in       reconsidering         the        physical

requirements of Compton’s last coal mine job found by ALJ1.                                  We

disagree.

                                               5
       As   is   relevant    here,      the       Act   provides    benefits     to    coal

miners who are totally disabled because of pneumoconiosis.                              See

30 U.S.C.A. 901(a).          One way that a claimant can prove that he

is   totally     disabled     is   by    proving         that   his   respiratory        or

pulmonary condition prevents him from engaging in his usual coal

mine work or comparable work.                     See 20 C.F.R. § 718.204(b)(1)

(2008).     A miner’s usual coal mine work is his most recent coal

mining job.      See Walker v. Director, 927 F.2d 181, 183 (4th Cir.

1991).

       ALJ1 found Compton’s last mining job required him to “lift

items weighing about 40 to 50 pounds, but occasionally, he would

lift items weighing 100 pounds or more.”                        J.A. 446.        He added

that if “items were too heavy to carry they were lifted by a

scoop.”     J.A. 446.       In contrast, Dr. Rasmussen had stated in his

1999   report     that   Compton     “carried           tools   weighing    50    to   70”

pounds.      J.A. 40.       In the end, ALJ1 chose not to credit Dr.

Rasmussen’s opinion that Compton could not perform his usual

coal mining work because Dr. Rasmussen had relied “upon isolated

abnormal     arterial    blood     gas    studies,        without     considering       the

clinical test results obtained by other physicians.”                           J.A. 456.

ALJ1 also noted, though, that “Dr. Rasmussen appears to have

slightly     overstated      the   exertion         requirements      of   [Compton’s]

last usual coal mine job.”           J.A. 456.



                                              6
       In   considering      Compton’s        subsequent        benefits      claim,      ALJ2

recounted      the    evidence         regarding     Compton’s      work      requirements

before      finding       that     the     record     supported        Dr.     Rasmussen’s

assessment that Claimant’s usual coal mine job “involved heavy

and some very heavy lifting.”                     J.A. 504 (ALJ2’s opinion).                We

note   initially      that       even    assuming     that   ALJ2      was    required     to

accept      ALJ1’s    conclusion          that      Dr.   Rasmussen          had     slightly

exaggerated Compton’s job requirements in his 1999 opinion, we

see no indication that ALJ2 did not accept it.                             His agreement

with     Dr.    Rasmussen’s            assessment     that      Compton’s          last    job

“involved heavy and some very heavy lifting” does not foreclose

the    possibility        that     Dr.     Rasmussen’s       1999      account       of    the

specific weight amounts that Compton was required to lift was

indeed slightly exaggerated.

       In any event, ALJ1’s statement that Dr. Rasmussen’s 1999

opinion appeared to slightly overstate the physical demands of

Compton’s      job    was        not     binding    on    ALJ2.         The        applicable

Department of Labor (“DOL”) regulation states that “[i]f the

claimant       demonstrates        a     change     in    one     of    the        applicable

conditions of entitlement, no findings made in connection with

the prior claim, except those based on a party’s failure to

contest an issue . . ., shall be binding on any party in the

adjudication         of      the        subsequent        claim.”             20       C.F.R.

§ 725.309(d)(4) (2008).                In this case, the denial of Compton’s

                                              7
initial     claim       rested     on      his       failure      to     establish        total

disability.            Utilizing     Dr.        Rasmussen’s        new     medical       report

finding    total       disability       based       on    new    test    results,     Compton

demonstrated       a     material        change       in    one    of      the     applicable

conditions of entitlement, and therefore no findings ALJ1 made

in connection with Compton’s prior claim were binding on ALJ2.

See 20 C.F.R. § 725.202(d) (2008) (including total disability as

a    condition   of      entitlement).              And,    to    the    extent     that    the

Employer argues that ALJ2 should be bound by ALJ1’s assessment

because no facts had changed since the earlier decision, the

Employer is simply incorrect.                       Dr. Rasmussen opined in 2003,

based on a new medical examination and testing, that Compton’s

condition had worsened since he provided his prior opinion.

       ALJ1’s    statement       that      Dr.        Rasmussen         appeared    to     have

slightly overstated the requirements of Compton’s job was also

not binding on ALJ2 because it was not the sole basis for ALJ1’s

decision.        “[H]oldings        in     the       alternative,        either     of    which

independently would be sufficient to support the result, are not

conclusive with respect to either issue standing alone.”                                   Lisa

Lee Mines v. Director, 86 F.3d 1358, 1363 (4th Cir. 1996) (en

banc) (internal quotation marks and alterations omitted).                                    As

the    Board    correctly     found        in       its    decision      affirming       ALJ1’s

denial of benefits, ALJ1 offered the statement in question only

as    an   alternative       basis       for        crediting      the     other     doctors’

                                                8
opinions over Dr. Rasmussen’s.                  The primary basis was that Dr.

Rasmussen had relied “upon isolated abnormal arterial blood gas

studies, without considering the clinical test results obtained

by other physicians.”         J.A. 456 (ALJ1’s decision).



                                       III.

       The Employer also argues that in light of ALJ1’s decision

not    to   credit   Dr.    Rasmussen’s         1999   opinion,   our     decision   in

Consolidation Coal Co. v. Williams, 453 F.3d 609, 618 (4th Cir.

2006), obligated ALJ2 to treat Dr. Rasmussen’s 2003 opinion,

which the Employer maintains was not materially different from

the 1999 opinion, as a misdiagnosis as a matter of law.                              We

disagree.

       Williams concerned 20 C.F.R. § 725.308(a) and our decision

in Lisa Lee Mines.          Section 725.308(a) provides in relevant part

that

       [a] claim for benefits filed under this part by, or on
       behalf of, a miner shall be filed within three years
       after a medical determination of total disability due
       to pneumoconiosis which has been communicated to the
       miner or a person responsible for the care of the
       miner, or within three years after the date of
       enactment of the Black Lung Benefits Reform Act of
       1977, whichever is later.

20 C.F.R. § 725.308(a) (2008).              In Lisa Lee Mines, we held that

finality     concerns      attaching   to       a   prior   denial   of    black   lung

benefits require that the legal conclusion underlying a prior


                                            9
denial—that    the     miner    was       not   eligible        for   benefits    at     that

time—must be accepted when a miner makes a subsequent claim for

benefits.      See     Lisa    Lee    Mines,        86   F.3d    at   1361.      For     that

reason, we held that a miner was not required to prove that he

actually had not been entitled to benefits at the time of a

prior    denial   in     order       to    show     that    a     material      change    in

conditions had occurred since that time that entitled him to

benefits.     See id. at 1362-63; see also 20 C.F.R. § 725.309(d)

(2008)     (requiring     denial          of    subsequent        claims      unless      the

claimant demonstrates a material change in conditions).

     The claimant in Williams received his original diagnosis of

pneumoconiosis in 1995 but lost his initial case in 1996.                                  He

later filed a second claim in 2001, which he won.                             Because the

claimant    had   been    medically         diagnosed      with       totally    disabling

pneumoconiosis in 1995, the coal company argued on appeal to us

that 20 C.F.R. § 725.308 barred the claimant from filing any

claim more than three years after that diagnosis.                          We disagreed.

Relying in part on Lisa Lee Mines, we held that any medical

diagnosis that the miner had received at the time of the denial

and that was inconsistent with the denial would be treated, for

legal purposes, as a misdiagnosis, and thus would not trigger

the statute of limitations.                See Williams, 453 F.3d at 616.                  In

so holding, we emphasized the remedial nature of the Act and the

need to interpret it favorably to miners and noted the “chilling

                                               10
effect”    that       would   be    created       by    adopting     a    contrary       rule

because    some    miners     would    be     discouraged         from    seeking       early

diagnoses.       Id. at 618.

     The     Employer         now    argues           that   under       Williams,        Dr.

Rasmussen’s 1999 opinion must be treated as a misdiagnosis and

therefore that his 2003 opinion, reaching the same result, must

receive    the    same    treatment.         We       disagree.      Simply       put,    Dr.

Rasmussen’s       2003    diagnosis     is        a    new   opinion      based    on     new

evidence.        Thus, even were we to treat Dr. Rasmussen’s 1999

opinion as a misdiagnosis for this purpose, his 2003 opinion

would not receive the same treatment.



                                            IV.

    The     Employer      next      argues    that       ALJ2   made     two     errors    in

weighing     the       doctors’       medical          opinions      regarding          total

disability.       We disagree.

                                             A.

     In 2003, Dr. Rasmussen obtained PO2 values from blood gas

studies performed when Compton was sitting down (67), when he

was standing on a treadmill (73), and when he was exercising

lightly on the treadmill (67).                    Based on the drop between the

standing-resting results and the exercise values, Dr. Rasmussen

diagnosed a moderate impairment in oxygen transfer during light

exercise.        In    discussing     the     other      doctors’        views    of    these

                                             11
tests, ALJ2 noted that “Dr. Castle did not recognize that Dr.

Rasmussen had two sets of resting results and therefore did not

recognize the drop in values.”                  J.A. 508.       The Employer argues

that     that     statement       was   erroneous       because       DOL    regulations

require resting blood gas studies initially to be administered

while a claimant is sitting down.                     See 20 C.F.R. § 718.105(b)

(2008) (“A blood-gas study shall initially be administered at

rest and in a sitting position.                 If the results of the blood-gas

test at rest do not satisfy the requirements of Appendix C to

this part, an exercise blood-gas test shall be offered to the

miner unless medically contraindicated.”).                     We find no error in

the statement.

        Doctors    are     not    required,      in    evaluating       a    black    lung

benefits    claimant,       to    consider      only    the    tests    that    the   DOL

requires.       Rather, they may consider other medical tests that

are    “medically     acceptable        clinical       and    laboratory      diagnostic

techniques.”        20 C.F.R. § 718.204(b)(2)(iv) (2008); see Walker,

927 F.2d at 184-85.              Here, the ALJ specifically noted that Dr.

Rasmussen initially administered the blood gas study to Compton

while    Compton     was   sitting      down,    in    line    with    the    applicable

regulation.       Nothing in the record suggests that Dr. Rasmussen’s

standing PO2 test, even if not specifically sanctioned by the

regulations, was not medically valid.



                                           12
                                             B.

     The Employer also argues that ALJ2 used flawed reasoning in

crediting Dr. Rasmussen’s opinion that altitude and age had no

significant      effect    on    Compton’s          arterial      blood      gas     study

results. 1      This   argument    makes          reference    to    the    presumptive

medical criteria that can establish a miner’s total disability

when his arterial blood gas tests produce values equal to or

less than the values in Appendix C of 21 C.F.R. Part 718.                              The

criteria vary depending upon the altitude of the location at

which the study was conducted.               There is one set of criteria for

all locations at or below 2,999 feet above sea level, one for

altitudes of 3,000 to 5,999 feet, and one for altitudes of 6,000

feet or greater.        The criteria do not vary based on the age of

the claimant.

     Here,      ALJ2   noted    that    both      Dr.    Castle     and    Dr.   Crisalli

opined that the fact that Dr. Rasmussen conducted his tests at a

relatively high altitude caused Dr. Rasmussen’s PO2 results to be

lower    and,   further,   that        Dr.    Castle     believed     that       Compton’s

advanced age had the same effect. 2                     ALJ2 also noted that “Dr.


     1
        The DOL’s Director of Workers’ Compensation Programs
participated in this appeal in support of the Employer’s
argument on this issue.
     2
       Dr. Rasmussen reported that the altitude of his testing
site was about 2400 feet.     Dr. Castle did not indicate the
specific altitude of his site, but indicated that it was less
(Continued)
                                             13
Rasmussen was aware of those assertions and stated that while

altitude and age have some effect on arterial blood gas study

results, he did not believe the effect to be that much in this

case,” and that even considering those factors, the results were

abnormal.     J.A. 507.     ALJ2 then concluded that, for the reasons

we   have   discussed,     “under   the     regulatory    criteria,     altitude

ha[d] no effect in this case.             Nor does age have any effect in

this case, as the regulatory criteria do not include age in its

criteria for arterial blood gas testing.”                 J.A. 508 (emphasis

added).      He further found that Dr. Castle testified that he

determines whether a miner is disabled simply by considering

whether the numerical criteria are met.                  He also stated that

while Dr. Crisalli recognized that the results of the test he

himself administered were borderline low and while he was aware

of   the    exertional    requirements      of   Compton’s     job,    he   simply

opined that Compton could perform his job without any further

explanation of why that was the case.                In the end, ALJ2 was

persuaded    by   Dr.    Rasmussen’s   reliance    on    the   facts    that   the




than 2400 feet. Dr. Crisalli reported that the altitude of his
site was about 600 feet. Compton was 69, 70, and 71 years old
respectively, when he underwent the tests performed by Drs.
Rasmussen, Castle, and Crisalli.




                                       14
results      here    were    close   to   the    regulatory    criteria      and   that

Compton’s job had particularly difficult physical requirements.

       The Employer maintains that ALJ2 fallaciously reasoned that

the fact that differences in the altitudes of the site locations

and in Compton’s age would not affect how close the values came

to satisfying the criteria set out in Appendix C showed that Dr.

Rasmussen was correct that altitude and age in fact did not

substantially impact the test results.                   We do not read ALJ2’s

opinion as employing that reasoning.                Rather, it appears that in

considering         the    various    experts’    opinions     regarding      whether

Compton      was    totally    disabled,    ALJ2    arrived     at    the    eminently

reasonable conclusion that Compton’s test results were close to

satisfying the Appendix C criteria, which apply regardless of

the requirements of a particular miner’s job.                        ALJ2 concluded

that       this    fact,     combined     with    the   particularly         difficult

physical          requirements       of   Compton’s      job,        supported      Dr.

Rasmussen’s opinion that Compton could not perform that job, as

did Dr. Rasmussen’s persuasive analysis and his experience in

determining        miners’    disabilities.        We   find   no    error    in   that

reasoning. 3


       3
       Even had ALJ2 made the error that the Employer alleges, it
would have been harmless because there were several other
reasons that ALJ2 credited Dr. Rasmussen’s and Dr. Cohen’s
opinion that Compton was totally disabled over Dr. Castle’s and
Dr. Crisalli’s contrary opinions. See Sahara Coal Co. v. Office
(Continued)
                                           15
                               V.

    In sum, for the foregoing reasons, we deny the petition for

review.

                                                 PETITION DENIED




of Workers’ Comp. Programs, 946 F.2d 554, 558 (7th Cir. 1991)
(holding harmless error doctrine applicable to judicial review
of ALJ action in black lung cases). As we have explained, ALJ2
was   impressed   with   Rasmussen’s   experience  and  research
concerning the use of arterial blood gas testing to determine
total disability in coal miners.       ALJ2 also found that the
preponderance of evidence indicates Compton suffers a diffusion
capacity abnormality, and he noted that Dr. Castle was the only
doctor who concluded that Compton’s diffusion capacity study
results were near normal.     He further found that Dr. Crisalli
did not explain why the moderately reduced results in diffusion
capacity and borderline low arterial blood gas results that Dr.
Crisalli found would not have prevented Compton from performing
heavy and very heavy labor.



                               16
