UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMOS TOLLIVER,
Petitioner,

v.

P.G. & H. INCORPORATED; DIRECTOR,
                                                                        No. 97-2141
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(96-1669-BLA)

Argued: October 26, 1998

Decided: January 26, 1999

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and MOON, United States District Judge for the Western District
of Virginia, sitting by designation.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: S.F. Raymond Smith, RUNDLE & RUNDLE, L.C.,
Pineville, West Virginia, for Tolliver. Sarah Marie Hurley, Office of
the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Director. Howard Gerald Salisbury, Jr., KAY,
CASTO, CHANEY, LOVE & WISE, Charleston, West Virginia, for
P.G.&H. ON BRIEF: Marvin Krislov, Deputy Solicitor for National
Operations, Donald S. Shire, Associate Solicitor, Christian P. Barber,
Counsel for Appellate Litigation, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Direc-
tor.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Here we have a black lung benefits claim by Amos Tolliver, a for-
mer mine worker. The conclusion that we reach has been arrived at
after numerous hearings, reading at least one attempted ending both
in Tolliver's favor and in another's favorable to Tolliver's employer.
Either, judged on the basis of what evidence there was before the
Administrative Law Judge or more complete evidence which would
look the other way if it was based on evidence of the employer that
was introduced too late, produced evidence that:

1) On July 8, 1987, Tolliver's initial claim was denied by the
District Director.

2) Tolliver arranged to object to that disposition before an ALJ.
The ALJ denied benefits to Tolliver.

3) Not unexpectedly, Tolliver made a timely appeal to the Bene-
fits Review Board (BRB), which on September 26, 1991 vacated the
ALJ's decision and remanded the claim for further proceedings.

4) On January 30, 1992, the ALJ again denied benefits, and that
took on finality since Tolliver did not appeal.

                    2
5) On September 8, 1993, Tolliver filed the instant claim. The
District Director made on March 4, 1994 a finding of entitlement to
benefits. Following that finding, the employer filed a notice of con-
troversion opposing its liability. On March 14, 1994, the employer
was notified that the final date for submission of evidence to the Dis-
trict Director was May 3, 1994.

6) On June 21, 1994, the District Director issued an initial deter-
mination awarding benefits. It was based on evidence from Dr. Ras-
mussen, who examined Tolliver on November 3, 1993. In addition to
making an x-ray diagnosis of pneumoconiosis, Dr. Rasmussen per-
formed ventilatory function studies, before and after the administra-
tion of a bronchodilator, producing results well in excess of the
standards set forth in the applicable regulations as being indicative of
total disability and within or near the limits of normal. Arterial blood
gas testing was also performed, with normal results at rest and upon
incremental exercise, but with a substantial decrease in the claimant's
p02 after a subsequent five minute period of "steady state" exercise.
Based upon these studies, Dr. Rasmussen concluded that the claimant
was rendered "totally disabled for resuming his former coal mine
employment with its attendant requirement for heavy manual labor."
The employer did not submit any evidence at this time, despite having
some of the reports in its possession upon which it would later rely.

7) The employer on June 28, 1994 objected to the award and
requested referral of the claim to the Office of Administrative Law
Judges for a formal hearing. Such forwarding of the claim to the
Office of Administrative Law Judges occurred on August 18, 1994.
Such a hearing came on before an ALJ only on December 7, 1994.

8) Here is where things grow confused. In addition to the claim-
ant's testimony, seven exhibits were then received into evidence by
the ALJ on behalf of the employer. A report dated July 1, 1994 but
not yet filed was received from Dr. George L. Zaldivar, a physician
Board certified in internal medicine and the subspecialty of pulmo-
nary diseases, reflecting his examination of the claimant on April 20,
1994. Though finding x-ray evidence of pneumoconiosis, Dr. Zaldi-
var found only a mild impairment of function, which would not pre-
vent the resumption of his former coal mine employment. Dr.
Zaldivar also raised concerns about the data supplied by Dr. Rasmus-

                    3
sen, which he also reviewed, most notably the discrepancy between
the p02 measurements on incremental exercise and those on a subse-
quent period of steady state exercise. Additional exhibits received
consisted of re-readings of chest x-ray films by Dr. Ralph T. Shipley,
Dr. Harold B. Spitz, and Dr. Jerome F. Wiot; and consultation reports
from Dr. Zaldivar, Dr. W. K. C. Morgan and Dr. Shawn A. Chillag.
Those exhibits were admitted into evidence at the hearing by the ALJ,
over the objection of counsel for the claimant.

9) Though admitting the employer's proffered exhibits, the ALJ
did not give any effect to them. He concluded that since the reports
were in the possession of P.G. & H. before the matter was transferred
by the District Director on August 18, 1994, they must be excluded
pursuant to 20 C.F.R. § 725.456.

10) The ALJ on January 18, 1995 awarded benefits to Tolliver.

11) A timely appeal followed resulting in issuance by the BRB
on November 30, 1995 which vacated the ALJ's award of benefits
and remanded the case for further consideration. Specifically the BRB
reversed the exclusion of the employer's exhibits and ordered that all
evidence be considered on remand.

12) The claim was assigned to another ALJ who on September
4, 1996 issued a decision and order denying the claim for benefits.
The ALJ concluded that the evidence before him did not establish the
presence of a totally disabling respiratory impairment.

13) As might be expected, Tolliver took a timely appeal to the
BRB, which affirmed.

DISCUSSION

We review the Board's decisions to determine whether the ALJ's
findings, which the Board affirmed, "are supported by substantial evi-
dence and in accordance with law." Jewell Smokeless Coal Corp. v.
Street, 42 F.3d 241, 243 (4th Cir. 1994). However, whether the ALJ
was required by the applicable regulations to exclude evidence is a
legal question that we review de novo. See Dehue Coal Co. v.
Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995).

                    4
I.

Tolliver has contended that his claim before the District Director
was pending until August 18, 1994 -- the day that the matter was
transferred to the Office of Administrative Law Judges. By contrast,
P.G. & H. has asserted that the claim was no longer pending as of
May 3, 1994, which was the date that the Commissioner set as a dead-
line for the submission of evidence, or, at the latest, June 21, 1994,
which was the date of the Commissioner's "initial determination,"
which awarded benefits to Tolliver. In addition, the OWCP Director
also has entered the debate, concluding that the transfer date is the
appropriate date to select.1 It concludes that since the report was in
the employer's possession but not put in evidence by August 18,
1994, in the absence of a "change of extraordinary circumstances,"
the Zaldivar report was introduced too late to be considered. 20
C.F.R. § 725.414(e)(1) (1994); Doss v. Itman Coal Co., 53 F.3d 654,
658 (4th Cir. 1995); Adams v. Island Creek Coal Co., 6 BLR 11-677
(1983). We agree with the Director that the date of transfer -- August
18, 1994 -- is the date upon which a claim is no longer pending
before the District Director.

We begin our analysis by examining the OWCP Director's view as
to the date that a claim is no longer pending before the District Direc-
tor. The OWCP Director's view is entitled to great deference, "unless
it is plainly erroneous or inconsistent with the regulation." Mullins
Coal Co. v. Director, OWCP, 484 U.S. 135, 159 (1987). The OWCP
Director now asserts that the claim remained pending until August 18,
1994, the date upon which the District Director transferred the claim
to the Office of Administrative Law Judges for further adjudication.
As is demonstrated below, that is the best interpretation of the appli-
cable regulations and the one that best advances Congress' goal of
ensuring the efficient adjudication of claims. See 43 FED. REG. 36794
(1978).
_________________________________________________________________

1 The Office of the OWCP Director advanced a slightly different posi-
tion in its brief, stating that the date selected should be a "reasonable
time after June 21, 1994." However, it agreed at oral argument that the
date of transfer was the appropriate date.

                    5
Under 20 C.F.R. § 725.410(a)-(b), the District Director may make
an initial finding that the claimant is eligible for benefits. Once he or
she makes that determination, and the potentially responsible opera-
tors are identified, the District Director gathers evidence from the
claimant and the operator. See 20 C.F.R.§§ 725.411-.414. After the
District Director has gathered the evidence, he may, among other
things, make an initial determination awarding benefits to the claim-
ant, which he did here.2 See 20 C.F.R. § 725.420.

Even after the initial determination, however, the District Director
may be required to take further action. The regulations expressly state
that "[t]here shall be no right to a hearing[before an ALJ] until the
processing and adjudication of the claim by the deputy commissioner
has been completed." 20 C.F.R. § 725.450. In the instant case, for
example, the District Director had to compute the benefits to be paid
to Tolliver, which he did on July 14, 1994. When the District Director
completes adjudication and processing, but determines that issues
remain unresolved, the District Director must refer the claim to the
Office of Administrative Law Judges upon the request of a party. See
20 C.F.R. § 725.421(a). Here, the District Director finished the pro-
cessing and transferred the claim on August 18, 1994.

P.G. & H.'s position simply is not tenable. It first contends that the
proper date should be May 3, which was the deadline for the submis-
sion of evidence, and the date relied upon by the BRB to order that
the excluded evidence be considered.3 This cannot be correct because
the regulations provide that after the parties submit their evidence, the
_________________________________________________________________
2 The District Director also may schedule a conference, see § 725.416,
issue a proposed decision and order, see§ 725.418, or forward the claim
to the ALJ, see § 725.421.
3 We have previously noted that it is unclear whether the BRB's inter-
pretations are entitled to any deference. See Wellmore Coal Corp. v.
Stiltner, 81 F.3d 490, 494 n.7 (4th Cir. 1996). While the general rule is
no, there may be an exception where the BRB's interpretation relates to
its own procedural rules rather than substantive law. Id. However, even
if the BRB's decisions would ordinarily be entitled to deference, the
decision here is not so entitled because the date it chose is "inconsistent
with the regulation[s]." Mullins Coal Co. v. Director, OWCP, 484 U.S.
135, 159 (1987).

                     6
District Director may, for example, schedule a conference between
the parties in a effort to settle the claim, see 20 C.F.R. §§ 725.415-
.416, issue a proposed decision and order deciding the claim, see 20
C.F.R. §§ 725.418, or issue an initial determination (which he did),
see 20 C.F.R. §§ 725.420. Given that there had not been any disposi-
tion of the claim through the above avenues or any others provided
in the regulations, the claim was still pending as of May 3. Cf.
BLACK'S LAW DICTIONARY 1134 (6th ed. 1990) (defining "pending" as
"begun, but not yet completed . . . in the process of settlement or
adjustment").

Alternatively, P.G. & H. contends that at the latest, June 21, 1994
should be declared the date upon which the claim was no longer pend-
ing before the District Director. However, that date is not the appro-
priate choice because the District Director had not yet determined that
a hearing was necessary to resolve any outstanding issues, completed
the processing of the claim or transferred the claim to the Office of
the ALJ. Notably, P.G. & H. did not even request a hearing before an
ALJ until June 28, 1994.4

Thus, the transfer date is the date most in line with the applicable
regulations. Other readings do not take into account the literal mean-
ing of § 725.450. Cf. Doss v. Director, OWCP, 53 F.3d 654, 656 (4th
Cir. 1995) (reading 20 C.F.R. §§ 725.414(e)(1) and 725.456(b) liter-
ally). Moreover, given the range of dispositions that the District
Director has and his concomitant responsibility to complete all adju-
dication and procedures before a party even has a right to a hearing,
it is clear that the Department of Labor intended to resolve claims as
early in the process as possible.

Finally, selecting the transfer date as the date upon which a claim
is no longer pending before the District Director is not only consistent
_________________________________________________________________
4 The case still was pending on June 28, despite the request. The regu-
lations specifically state that a party is not entitled to a hearing until all
processes and adjudication are complete. See 20 C.F.R. § 725.450. Thus,
the date that a hearing is requested cannot determine when the case is no
longer pending before the District Director and the BRB's holding to the
contrary in Hall v. Director, OWCP, 10 BLR 1-107 (1987), is inconsis-
tent with the regulations.

                    7
with the literal reading of the regulations, but also advances the
Department's goals of efficiency and eliminating surprise. The initial
drafts of §§ 725.414 and 725.456 contained time limits for submitting
evidence to achieve those goals. See 43 F ED. REG. 36794 (1978). The
Department found that claims could not be resolved in a timely man-
ner because both employers and claimants were either failing to
develop evidence while before the District Director or were withhold-
ing evidence already developed until the hearing before the ALJ. Id.
Moreover, parties withheld evidence for strategy purposes. Id.

However, the Department received uniformly adverse comments
regarding the time limits and subsequently removed them in favor of
the current version of those regulations. Id. Despite removing the spe-
cific time limits, the Department promulgated regulations that
embody its position that "[n]o party should be permitted to obtain and
withhold evidence until the [ALJ] hearing." Id. As selection of the
transfer date best promotes the Department's intent, it is the appropri-
ate date.

II.

The BRB also required that the ALJ consider three other reports
that were offered by a potentially responsible operator later dismissed
from the case.5 The first ALJ excluded them because that operator
was dismissed and no other party had moved the reports into evi-
dence. The BRB vacated that decision, concluding that the reports
were admissible pursuant to 33 U.S.C. § 923(b) (1994), which
requires that "all relevant evidence shall be considered," id., and cases
in other circuits permitting evidence submitted by a party later dis-
missed to remain on the record. See e.g., Hardisty v. Director, OWCP,
776 F.2d 129, 130 (7th Cir. 1985); York v. Benefits Review Board,
_________________________________________________________________
5 Ranger Fuel Corporation ("Ranger") was originally identified as a
potentially responsible operator. However, it was determined at the hear-
ing before the first ALJ in January, 1995, that P.G. & H., not Ranger,
was the appropriate operator to hold responsible for any liability, as P.G.
& H. was Tolliver's last employer and met the other criteria. Thus,
Ranger was dismissed from the case at that hearing. However, as the
reports were produced in November, 1994, Ranger had already submitted
them to the ALJ.

                    8
819 F.2d 134, 136 (6th Cir. 1987). The reports at issue were produced
in November, 1994 by Dr. Zaldivar and two other physicians, Dr.
Morgan and Dr. Chillag. Dr. Zaldivar essentially reproduced verbatim
his July 1 report. The other two doctors relied heavily on Dr. Zaldi-
var's July 1 report. On the basis of the November reports and Dr. Zal-
divar's July 1 report, the ALJ and the BRB found that Tolliver was
not "totally disabled," and therefore not entitled to benefits.6

While 33 U.S.C. § 923 does require the District Director and ALJs
to consider all relevant evidence, it does not require them to consider
such evidence where it is improperly in the record. For example, evi-
dence that was not submitted in a timely manner is not admissible.
See Doss v. Director, OWCP, 53 F.3d 654, 656 (4th Cir. 1995)
(excluding late evidence pursuant to 20 C.F.R. § 725.456(d)).

Moreover, the cases cited by the BRB are distinguishable. In both
Hardisty v. Director, OWCP, 776 F.2d 129, 130 (7th Cir. 1985), and
York v. Benefits Review Bd., 819 F.2d 134, 136 (6th Cir. 1987), the
OWCP Director was substituted as a party and adopted the evidence
as its own. See Hardisty, 776 F.2d at 130; York, 819 F.2d at 136. In
the instant case, P.G. & H. neither submitted the evidence nor adopted
it as its own. Therefore, the ALJ was left with evidence that was nei-
ther submitted by a party nor adopted by one. However, as the evi-
dence remained on the record, and is relevant, P.G. & H.'s failure to
act should not bar consideration of it.

However, the evidence still cannot be considered. The three reports
in question -- Dr. Zaldivar's November 12, 1994 report; Dr. Mor-
gan's November 14, 1994 report; and Dr. Chillag's November 14,
1994 report -- all substantially rely on and refer to Dr. Zaldivar's
July 1, 1994 report. That report, of course, is inadmissable. The
admission of these November reports would only serve to undermine
the purpose of § 725.456.
_________________________________________________________________
6 The ALJ found Dr. Rassmussen's report unconvincing in light of P.G.
& H.'s reports. He described Dr. Rassmussen's reports as "questionable,
yet qualifying" and continued to state throughout the report that P.G. &
H.'s reports showed little or no impairment.

                    9
That is a result we find unacceptable. If parties are allowed to
admit and rely upon evidence submitted too late merely by submitting
other reports later developed that essentially incorporate the late evi-
dence by reference, § 725.456 will have little meaning. Therefore, the
three November reports must also be excluded.

III.

In light of our holding that P.G. & H.'s evidence is inadmissible,
Tolliver's evidence establishing total disability is the only evidence
on the record that addresses his claim that his circumstances have
materially changed. See 20 C.F.R. § 725.309(d). Dr. Rassmussen's
report is sufficient to establish that Tolliver is"totally disabled"
within the meaning of 20 C.F.R. § 718.204(b).

Because Tolliver's previous claim was denied, he had the burden
of proving that between the denial of the last claim and the initiation
of the new one, there was a "material change in circumstances." 20
C.F.R. § 725.309(d).

In deciding whether a claimant has exhibited a "material change in
circumstances," the ALJ examines the evidence to determine whether
the claimant has proven, given all relevant evidence after the denial
of the prior claim, "at least one of the elements previously adjudicated
against him." Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1362
(4th Cir. 1996) (en banc). Since Tolliver established the existence of
pneumoconiosis in the earlier proceeding, the only issue is whether
he is totally disabled. Id. Thus, Tolliver must ultimately show that he
is totally disabled by pneumoconiosis, and that the disability resulted
from his work in the mines.

Tolliver presented the report of Dr. Donald Rasmussen to prove
that he is totally disabled. A miner is "totally disabled" if pneumoco-
niosis prevents him or her from: (1) performing his or her usual coal
mine work; and (2) engaging in gainful employment similar to that
done in the mines. See 20 C.F.R. § 725.204(b) (1994); Jewell, 42 F.3d
at 243. The miner may prove total disability by: (1) an irrebuttable
presumption arising from evidence of opacities of the lung as shown
by x-ray, see 20 C.F.R. § 718.304; (2) proving that pneumoconiosis
prevents him or her from: (a) "performing his or her usual coal mine

                     10
work," 20 C.F.R. § 718.204(b)(1), or (b) working near his or her
home at a job requiring the same or similar skills, see 20 C.F.R.
§ 718.204(b)(2); (3) pulmonary function tests, see 20 C.F.R.
§ 718.204(c)(1); (4) arterial blood-gas tests, see 20 C.F.R.
§ 718.204(c)(2); (5) showing suffering from cor pulmonale, see 20
C.F.R. § 718.204(c)(3); or (6) a reasoned medical opinion based on
acceptable test procedures, see 20 C.F.R.§ 718.204(c)(4). The claim-
ant has the burden of proving total disability and material change of
circumstances by a preponderance of the evidence. See 20 C.F.R.
§ 718.403 (stating that claimant has the burden of proof); Greenwich
Collieries v. Director, OWCP, 513 U.S. 267, 281 (1994) (stating that
claimant bears the burden of persuasion under APA§ 7(c)).

Tolliver has shown his total disability through Dr. Rassmussen's
reports. Those reports were produced during an examination of Tol-
liver on November 3, 1993. Dr. Rasmussen conducted several tests
that indicated that Tolliver had normal capabilities, including a pul-
monary function test and an arterial blood-gas test. Dr. Rasmussen
then performed incremental exercise testing, during which Tolliver
initially performed normally. However, when Tolliver was tested for
a longer period of time, there was such a precipitous drop in his
"p02" level that he fell into the range of persons considered totally dis-
abled. On the basis of the longer test, Dr. Rasmussen concluded that
Tolliver was totally disabled. That finding was independently verified
by Dr. Ranavaya, a physician employed by the Department of Labor.

Both ALJs concluded that the Rassmussen report qualifies Tolliver
for benefits. The first ALJ found the report more persuasive than the
other reports, even though he ultimately did not admit them. The sec-
ond ALJ acknowledged that Rassmussen's report shows that Tolliver
is totally disabled, but found Dr. Zaldivar's July 1 report and the
reports of the doctors reviewing Zaldivar's report much more persua-
sive. Neither ALJ independently engaged in any fact finding as to
Tolliver's condition. Given that P.G. & H's reports are not admissible
and that both ALJ's acknowledge that the Rassmussen report shows
Tolliver to be totally disabled, Tolliver is entitled to benefits.

CONCLUSION

To review, we hold that a claim is no longer pending before the
District Director as of the date that the District Director transfers the

                     11
claim to the Office of Administrative Law Judges for further adjudi-
cation. Any evidence in a party's possession but not submitted before
that date will not be admissible in later proceedings. See 20 C.F.R.
725.456. Since the reports P.G. & H. received in June and July, 1994
were in its possession before the transfer date but were not submitted
to the District Director, those reports are inadmissible. Moreover, the
reports originally submitted by Ranger incorporate the untimely evi-
dence and rely heavily on it and therefore are inadmissible as well.
As there is no competent evidence to rebut Dr. Rassmussen's finding
of total disability, Tolliver has met his burden of proof and is entitled
to benefits.

REVERSED

                     12
