UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE W. HUTCHENS,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                    No. 96-2311
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
MABEN ENERGY CORPORATION,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(96-183-BLA)

Argued: July 10, 1997

Decided: September 9, 1997

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and NORTON, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael G. Miskowiec, Charleston, West Virginia, for
Petitioner. Edward Waldman, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondents. ON BRIEF: J.
Davitt McAteer, Acting Solicitor of Labor, Donald S. Shire, Asso-
ciate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation,
Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Willie Hutchens appeals from the Benefits Review
Board's affirmance of the Administrative Law Judge's denial of bene-
fits pursuant to the Black Lung Benefits Act, 30 U.S.C. § 901 et seq.
We affirm the decision of the Board.

I.

Mr. Hutchens' claim for benefits is before this court after fifteen
years of litigation. Mr. Hutchens filed a claim for benefits on July 13,
1981, and the claim was denied on November 19, 1981. The case was
then transferred to the Office of Administrative Law Judges on Sep-
tember 19, 1985. Administrative Law Judge (ALJ) Charles P. Rippey
remanded the case to the district director on October 23, 1987, who
denied benefits on February 10, 1988. The case was yet again trans-
ferred to the Office of Administrative Law Judges on May 20, 1988.
A hearing was held before Judge Henry W. Sayrs on January 25,
1989. The case was then transferred to Judge Thomas due to Judge
Sayrs' retirement.

In an opinion dated April 18, 1990, Judge Thomas found the exis-
tence of pneumoconiosis under § 718.202(a)(1) based on the "true
doubt rule." He also found the existence of pneumoconiosis under
§ 718.202(a)(4) and causality established pursuant to § 718.203(b).
However, Judge Thomas found that Mr. Hutchens had not established

                    2
total disability pursuant to § 718.204(c)(1)-(c)(4), and therefore
denied benefits.

On appeal, the Board remanded the case to the ALJ to reconsider
the blood gas studies under § 718.204(c), reevaluate Dr. Rasmussen's
opinion as to § 718.204(c)(4), and consider application of the pre-
sumption of § 718.305.

On remand, ALJ Thomas found that the evidence demonstrated
total respiratory disability under § 718.204(c)(2) and (c)(4). Judge
Thomas invoked § 718.305's pre-1982 presumption of total disability
due to pneumoconiosis, and awarded benefits.

On appeal to the Board, the employer contended that the ALJ (1)
erred in finding that the x-ray evidence established the existence of
pneumoconiosis under § 718.202(a)(1); (2) erred in finding total dis-
ability under § 718.204(c); and (3) erred in his findings regarding
§ 718.305.

The Board noted that subsequent to the ALJ's finding that the exis-
tence of pneumoconiosis was established under § 718.202(a)(1) based
on the "true doubt rule," the United States Supreme Court held that
the "true doubt rule" violates section 7(c) of the Administrative Proce-
dure Act, and that a claimant must carry the burden of proof with
respect to each element of the statute. See Director, OWCP v. Green-
wich Collieries, 512 U.S. 267(1994). However, the Board found this
incorrect reliance on the true doubt rule to be harmless, based on the
ALJ's proper finding that the existence of pneumoconiosis was estab-
lished under § 718.202(a)(4).

Next, the Board found that the ALJ erred in failing to consider Mr.
Hutchens' continued employment from 1981 to 1986 in evaluating
Dr. Rasmussen's 1981 report opining that Mr. Hutchens was totally
disabled from engaging in coal mine employment or comparable
work. Therefore, the Board vacated the ALJ's finding that total respi-
ratory disability was demonstrated, and remanded the claim for recon-
sideration of Dr. Rasmussen's medical opinion in light of Mr. Hutch-
ens' employment in the mines subsequent to his examination by Dr.
Rasmussen.

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On remand, the ALJ reconsidered Dr. Rasmussen's opinion in light
of Mr. Hutchens' continued employment after Dr. Rasmussen found
him to be totally disabled. The ALJ reconsidered the blood gas evi-
dence, and concluded that it did not satisfy § 718.204(c)(2). The ALJ
also looked at the medical opinions of Drs. Rasmussen, Daniel, and
Zaldivar, and determined that Mr. Hutchens was not totally disabled
under § 718.204(c)(4). On appeal, the Board affirmed the ALJ's
denial of benefits.

Medical History

Mr. Hutchens first began to experience shortness of breath and
fatigue in the 1970's. On January 7, 1980, Mr. Hutchens was exam-
ined by Dr. Rasmussen, who administered a pulmonary function and
an arterial blood gas study, and issued a narrative report. The pulmo-
nary function study produced "non-qualifying" 1 results. The resting
blood gas studies produced qualifying values, while the exercise
blood gas studies produced non-qualifying values. In his report, Dr.
Rasmussen stated that the pulmonary function study was normal, but
that the arterial blood gas study indicated "marked impairment in oxy-
gen transfer, an abnormal ventilatory response with exercise, and an
abnormal cardiovascular response with exercise." He concluded that
Hutchens "would appear to be incapable of performing steady work
beyond light to strictly light work levels," and estimated that Hutch-
ens had lost 60 to 65 percent of his functional capacity. On January
19, 1980, Dr. Bassali, a radiologist, took an x-ray of Hutchens' lungs,
which showed numerous rounded small opacities, which he inter-
preted as positive for pneumoconiosis.

Dr. Rasmussen examined Hutchens on November 13, 1981, and
again administered pulmonary function and arterial blood gas studies,
and prepared a narrative report. The pulmonary function study pro-
duced normal, non-qualifying values. Blood gas studies were per-
formed at rest and at three different levels of exercise; the test at the
highest level of exercise was qualifying; the others were not. Dr. Ras-
_________________________________________________________________
1 If the results of a pulmonary function test or arterial blood-gas test
show value equal to or less than those stated in the appendix to 20 C.F.R.
§ 718.204(c), then they establish a miner's total disability and are
referred to as "qualifying."

                    4
mussen diagnosed a severe loss of respiratory capacity, arising out of
Hutchens' coal mine employment, which totally disabled him from
performing his coal mine or similar work. In regard to the blood gas
study, Dr. Rasmussen stated that it revealed marked impairment of
gas exchange and significant hypoxia, and indicated that Hutchens
had a severe loss of respiratory functional capacity. On November 3,
1981, Dr. Bassali again took X-rays of Hutchens' lungs, and again
interpreted them as positive for pneumonoconiosis.

On September 10, 1985, Hutchens was examined by Dr. Daniel at
the request of Maben, Mr. Hutchens' employer. A pulmonary func-
tion study was non-qualifying, and interpreted as showing a mild
obstructive defect. The blood gas study was non-qualifying, and inter-
preted as normal. In his narrative, Dr. Daniel diagnosed occupational
pneumoconiosis and chronic obstructive pulmonary disease. Dr. Dan-
iel concluded that Hutchens "suffers from no evidence of pulmonary
dysfunction from Occupational Pneumoconiosis or from obstructed
ventilation and from a pulmonary standpoint should be able to carry
out the usual and customary physical requirements required of a coal
miner in the performance of his duties." J.A. at 68.

Dr. Zaldivar then submitted a report based on his review of the
reports, x-rays, blood gas studies, and pulmonary function studies per-
formed by Dr. Rasmussen, Dr. Bassali, and Dr. Daniel. Dr. Zaldivar
opined that Hutchens did not suffer from pneumoconiosis, and that he
had only a mild obstructive pulmonary impairment that was of no
clinical significance.

II.

Standard of Review

When a claimant appeals a denial of benefits under the Black Lung
Benefits Act ("the Act"), the ALJ is responsible for "making factual
findings, including evaluating the credibility of witnesses and weigh-
ing contradicting evidence." Doss v. Director, OWCP, 53 F.3d 654,
658 (4th Cir. 1995). The Benefits Review Board ("the Board") then
reviews the ALJ's findings to determine whether they are "supported
by substantial evidence in the record considered as a whole." Id.
(quoting Wilson v. Benefits Review Bd., 748 F.2d 198, 199-200 (4th

                     5
Cir. 1984)). We review the Board's decision for errors of law and to
ensure that the Board adhered to its statutory standard of review of
factual determinations. Doss, at 658. Thus,"we must affirm the Board
if it properly determined that the ALJ's findings are supported by sub-
stantial evidence, keeping in mind that `a reviewing body may not set
aside an inference merely because it finds the opposite conclusion
more reasonable or because it questions the factual basis.'" Id. (quot-
ing Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir. 1988)).

(1) Did the ALJ err in reconsidering his 1993 finding that the blood
          gas evidence supported a finding of total disability?

Section 411(c)(4) of the Act provides that if a miner has been
employed in an underground coal mine for fifteen years or more, and
if other evidence demonstrates that he has "a totally disabling respira-
tory or pulmonary impairment," then there is a rebuttable presumption
that the miner is totally disabled due to pneumoconiosis. 30 U.S.C.
§ 921(c)(4). Once this presumption is established, it may only be
rebutted by establishing that: (1) the miner does not have pneumoco-
niosis; or (2) his respiratory or pulmonary impairment did not arise
out of, or in connection with, employment in a coal mine. See 30
U.S.C. § 921(c)(4). It is undisputed that Mr. Hutchens had more than
fifteen years of underground coal mine employment, and that Mr.
Hutchens' disability, if he has one, is a result of coal mine employ-
ment. Thus, the issue in this case is whether Mr. Hutchens has a "to-
tally disabling pulmonary impairment."

The criteria for determining whether a claimant has a totally dis-
abling pulmonary impairment are set forth in 20 C.F.R. § 718.204(c).
This section provides for a presumption of total disability where spe-
cific types of evidence meet certain criteria, including:

          (1) Pulmonary function tests showing values equal to or
          less than those listed . . . in appendix B to this part . . .,
          or

          (2) Arterial blood-gas tests show the values listed in
          Appendix C to this part, or

                     6
          (3) The miner has pneumoconiosis and has been shown by
          the medical evidence to be suffering from cor pulmon-
          ale with right sided congestive heart failure, or

          (4) Where total disability cannot be established under
          paragraphs (c)(1), (c)(2) or (c)(3) of this section, or
          where pulmonary function tests and/or blood-gas
          studies are medically contraindicated, total disability
          may nevertheless be found if a physician exercising
          reasoned medical judgment, based on medically
          acceptable clinical and laboratory diagnostic tech-
          niques, concludes that a miner's respiratory or pulmo-
          nary condition prevents or prevented the miner from
          engaging in employment as described in paragraph (b)
          of this section.

20 C.F.R. § 718.204(c)(1)-(4). If the miner produces evidence suffi-
cient to satisfy one of the four subsections above, thus establishing a
presumption of total disability, the ALJ must then determine whether
the record contains contrary probative evidence, such as, for example,
medical opinions under subsection (c)(4) finding no totally disabling
pulmonary impairment. See Lane v. Union Carbide Corp., 105 F.3d
166, 171 (4th Cir. 1997). If contrary evidence does exist, the ALJ
must determine whether the contrary evidence outweighs the evidence
that supports a finding of total disability. Id.

In his 1993 decision, the ALJ found that Hutchens had presented
evidence satisfying (c)(2) by submitting qualifying blood gas studies.
In addition, the ALJ credited Dr. Rasmussen's medical opinion
reports, concluding that Hutchens had established that he was totally
disabled. In doing so, the ALJ rejected Dr. Daniels' report and found
that Dr. Zaldivar's report did not address the issue of the degree of
disability. On appeal, the Board affirmed the ALJ's finding that
Hutchens had satisfied subsection (c)(2) by submitting qualifying
blood gas studies. The Board remanded the case to the ALJ, however,
because the ALJ failed to consider the fact that Hutchens continued
working for a period of years following Dr. Rasmussen's 1981 report
opining that Hutchens was totally disabled.

On remand, in his 1995 decision, the ALJ reconsidered his earlier
finding with regard to the arterial blood gas studies in spite of the

                     7
Board's affirmance of his 1993 decision on that issue. Hutchens
argues that the ALJ erred in reconsidering the qualifying blood gas
studies, and that the 1993 finding was binding on the ALJ in his 1995
decision.

Under the law of the case doctrine, a decision of a higher court
establishes "the law of the case," which must be followed in all subse-
quent proceedings in the same case, unless (1) a subsequent trial pro-
duces substantially different evidence; (2) controlling authority has
since made a contrary decision of law applicable to the issue; or (3)
the prior decision was clearly erroneous and would work manifest
injustice. See Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th
Cir. 1988). In the context of black lung benefit cases, the Board has
previously established that unless there is a basis for an exception to
the application of the law of the case doctrine, an ALJ's finding on
a particular issue that has been affirmed by the Board is controlling
in subsequent proceedings. See Sammons v. Wolf Creek Collieries, 18
BLR 1-24, 1-28 n.3 (Ben.Rev.Bd. 1994). In this case, the ALJ specifi-
cally found that Hutchens had submitted sufficient qualifying blood
gas studies to establish the presumption contained in subsection
(c)(2). On appeal, the Board affirmed that finding. Therefore, the ALJ
erred in reconsidering that finding on remand.

However, this conclusion does not preclude this court from review-
ing the 1993 finding of total disability under (c)(2). As noted by
DOWCP, while the law of the case doctrine would preclude the ALJ
from reconsidering his earlier finding, it does not preclude this court's
review of that finding in a subsequent appeal. Consequently, this
court will consider whether the 1993 finding was supported by sub-
stantial evidence.

(2) Was the ALJ's 1993 finding of total disability under 20 C.F.R.
          § 718.204(c)(2) supported by substantial evidence?

Of the three blood gas studies performed on Hutchens, the January
1980 study was qualifying when administered at rest, but non-
qualifying when administered during exercise. The November 1981
study was non-qualifying at rest and at the first two levels of exercise,
but qualifying when administered on the third level of exercise. The

                     8
September 1985 study produced non-qualifying results both at rest
and during exercise.

The ALJ noted that in performing blood-gas studies, a blood sam-
ple taken after exercise is particularly useful in that exercise requires
the body to oxygenate blood more quickly. The ALJ also stated that
an insufficiency in gas transfers may be noted after exercise before it
is evident at rest. Based on this knowledge and the fact that two of
the test results were qualifying, the ALJ found that Hutchens had
established the existence of a totally disabling impairment pursuant to
subsection (c)(2).

The ALJ's 1993 finding is not supported by substantial evidence.
The ALJ gives no explanation why the two qualifying test results are
more credible than the five non-qualifying test results performed by
Dr. Rasmussen.2 While the ALJ states that an insufficiency in gas
transfers may be noted after exercise where not evident at rest, the
ALJ does not explain why one qualifying test taken during exercise
is more credible than four other non-qualifying results during exer-
cise. Therefore, even though it was error for the ALJ to reconsider the
1993(c)(2) finding, the ALJ correctly reversed himself on remand.

(3) Was the ALJ's 1995 decision denying benefits supported by sub-
          stantial evidence?

Hutchens argues that the ALJ's 1995 finding that he is not disabled
from performing his usual and customary coal mine work due to
pneumoconiosis is not supported by substantial evidence based on the
assertion that there is no evidence that Dr. Daniel had any idea of
Hutchens' job duties either as a car dropper or heavy equipment oper-
ator. The opinion of a physician that a miner can perform his usual
and customary coal mine work must be based on knowledge of the
_________________________________________________________________
2 There is some question as to whether the two blood gas tests per-
formed by Dr. Daniels were reliable. As noted by the Board in its
December 28, 1994 opinion, "Dr. Daniel indicated on cross-examination
that when exercise blood gas studies were performed in 1985, they were
using an arterial puncture within 30 seconds of stopping the exercise, but
changed the protocol in 1986 to using an `indwelling A-line' and exercis-
ing at three-levels." J.A. at 192.

                     9
specific job and the job requirements of the specific miner involved.
Walker v. Director, OWCP, 927 F.2d 181, 183 (4th Cir. 1991). Hutch-
ens asserts that the only evidence of Dr. Daniel's familiarity with the
work of coal miners is his statement that he has"a general idea of
what type of work they do." J.A. at 85.

Respondent agrees that the medical opinion evidence is flawed, but
for different reasons. First, Respondent argues that because the ALJ
relied to a large extent on his evaluation of the blood gas study evi-
dence in his consideration of the medical opinion evidence, he based
his finding on an improper factor. However, as discussed above, this
court finds that the ALJ's 1993 conclusion as the to the blood gas
studies was flawed.

In his 1995 decision, the ALJ reconsidered the blood gas studies
conducted by Dr. Rasmussen in 1980 and 1981 and concluded that the
test results were inconclusive, at best. J.A. at 198. Specifically, the
ALJ noted that in the 1980 study, the test conducted at rest was quali-
fying, while the test conducted during exercise was non-qualifying.
By contrast, in the 1981 study, the tests conducted at rest and at two
of three exercise levels were non-qualifying, while only the test con-
ducted at the third exercise level was qualifying. Because only two of
the seven tests conducted by Dr. Rasmussen were qualifying, the ALJ
found the results inconclusive. In addition, the ALJ noted that Dr.
Rasmussen reported that Hutchens' ventilatory studies and maximum
breathing capacity were normal, and that Dr. Rasmussen was aware
in 1981 that Hutchens was continuing to work at his regular coal mine
employment. Nevertheless, Dr. Rasmussen failed to explain either the
inconclusive blood gas study results or Hutchens' continued employ-
ment. The ALJ concluded that these omissions diminished the value
of Dr. Rasmussen's opinion that Hutchens was totally disabled.

The ALJ next considered Dr. Daniels' opinion and found that he
had sufficiently explained why a test conducted at rest might be quali-
fying initially and non-qualifying later. Finally, the ALJ considered
Dr. Zaldivar's report and found it consistent with Dr. Daniels'. There-
fore, the ALJ gave greater weight to Dr. Daniels' opinion that Hutch-
ens was not totally disabled and was capable of performing his usual
coal mine work.

                    10
The ALJ's decision to credit Dr. Daniels' opinion over that of Dr.
Rasmussen, and to find that Dr. Daniels' opinion outweighed the two
qualifying blood gas tests, was supported by substantial evidence. As
set forth above, the ALJ explained why he found Dr. Rasmussen's
blood gas studies to be inconclusive and why he further found Dr.
Rasmussen's medical opinion to be inadequate. In addition, the ALJ
explained why he credited Dr. Daniels' opinion over Dr. Rasmus-
sen's. Although the ALJ failed to discuss the blood gas study con-
ducted by Dr. Daniel in 1985, this omission does not render the
decision inadequate, because both tests in 1985 were non-qualifying,
further supporting the conclusion that Hutchens was not totally dis-
abled.

III.

For these reasons, the court finds that the ALJ's 1995 decision in
denying benefits was supported by substantial evidence. However,
while this decision renders improper those benefits already paid to
Hutchens, this court would not look favorably on an attempt by the
Secretary to reclaim those benefits. Such action would be inequitable
in light of the tortuous history of this litigation in which Hutchens has
had to wait fifteen years for a definite decision by the Director.

The Board's decision is affirmed.

AFFIRMED

                     11
