                                                Filed:   July 16, 1996

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT



                              No. 94-2523
                             (92-338-BLA)



Lisa Lee Mines (Terrilynne Coal Company),

                                                           Petitioner,

           versus

Director, Office of Workers'       Compensation
Programs, etc., et al,

                                                          Respondents.



                              O R D E R



     The Court amends its opinion filed June 19, 1996, as follows:

     On the cover sheet, section 6 -- the section is corrected to

read: "Affirmed by published opinion. Judge Hall wrote the major-
ity opinion, in which Judges Widener, Murnaghan, Ervin, Niemeyer,

Michael, and Motz joined. Judge Niemeyer wrote a concurring opin-

ion. Judge Luttig wrote a dissenting opinion, in which Chief Judge

Wilkinson and Judges Russell, Wilkins, Hamilton, and Williams

joined."

                                       For the Court - By Direction


                                            /s/ Bert M. Montague
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA LEE MINES (TERRILYNNE COAL
COMPANY),
Petitioner,

v.
                                                            No. 94-2523
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; ALVA
RUTTER,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(92-338-BLA)

Argued: January 30, 1996

Decided: June 19, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Hall wrote the majority opin-
ion, in which Judges Widener, Murnaghan, Ervin, Niemeyer, Michael,
and Motz joined. Judge Niemeyer wrote a concurring opinion. Judge
Luttig wrote a dissenting opinion, in which Judges Wilkinson,
Russell, Wilkins, Hamilton, and Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: Ronald Eugene Gilbertson, KILCULLEN, WILSON &
KILCULLEN, CHARTERED, Washington, D.C., for Petitioner.
Christian P. Barber, Counsel for Appellate Litigation, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondent Director; Robert F. Cohen, Jr., COHEN,
ABATE & COHEN, Fairmont, West Virginia, for Respondent Rutter.
ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Don-
ald S. Shire, Associate Solicitor for Black Lung Benefits, Karen N.
Blank, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent Director.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

Lisa Lee Mines petitioned for review of an order of the Department
of Labor's Benefits Review Board (BRB) affirming the award of
black lung benefits to Alva Rutter, a former coal miner. A panel of
this court reversed and remanded. Lisa Lee Mines v. Director, Office
of Workers' Compensation Programs, 57 F.3d 402 (4th Cir. 1995).
Rutter, who had proceeded pro se before the panel, obtained counsel
and sought rehearing en banc. Having granted such rehearing, we now
affirm.

I.

Putting aside for a moment the question on which the parties dis-
agree, we must first note that Alva Rutter's medical condition unques-
tionably qualifies him for black lung benefits. He is the very paradigm
of the man Congress intended to compensate. According to x-rays
taken in 1988 and 1989, he has profuse1 small opacities in all six lung
_________________________________________________________________

1 One reader classified the profusion as 2/3 and the other as 3/2. There
are twelve levels of profusion classification for the radiographic interpre-
tation of simple pneumoconiosis. 2/3 is the fourth highest profusion and
3/2 the third. See N. LeRoy Lapp, "A Lawyer's Medical Guide to Black
Lung Litigation," 83 W. Va. Law Rev. 721, 729-731 (1981).

                    2
zones, upon which has developed complicated pneumoconiosis, or, by
its more dauntingly descriptive name, "progressive massive fibrosis."
One of the 1989 readers classified the large opacities in Rutter's lungs
in Category B, which means that they are greater than two inches in
diameter. Because progressive massive fibrosis is just that -- progres-
sive -- Rutter is doubtless worse off now, seven years later, and he
is not yet an old man.2 He spent his entire working life -- 32 years
-- in the mines, most of it loading coal by hand. Because of this long
tenure, he need prove nothing more than his complicated pneumoco-
niosis to be entitled to benefits. 30 U.S.C. § 921(c)(1), (3); 20 C.F.R.
§§ 718.302, .304. In short, the substance of Rutter's claim is fine.

II.

Procedure is the rub. In 1986, without the assistance of an attorney,
Rutter applied for black lung benefits. He was still working at the
time. An x-ray he submitted showed complicated pneumoconiosis;
nonetheless, a Department of Labor claims examiner sent him a form
denial. Rutter did not pursue the claim further.

In April 1989, he filed a new claim.3 Because of the denial of his
earlier claim, this one was subject to the "duplicate claims" regulation
at 20 C.F.R. § 725.309(d), which states, in relevant part:

        If the earlier miner's claim has been finally denied, the later
        claim shall also be denied, on the grounds of the prior
        denial, unless the deputy commissioner determines that
        there has been a material change in conditions . . ..

This time a deputy commissioner4 in the Department awarded bene-
fits. The responsible operator, petitioner Lisa Lee Mines, requested a
hearing. Lisa Lee's challenge to the deputy commissioner's decision
_________________________________________________________________

2 Rutter was born June 5, 1936. At the time of his 1989 claim applica-
tion, he had five minor dependent children living at home.

3 Rutter was still working as a miner helper at the time, though, the
very next month, his breathing problems led to a transfer to less arduous
toil. He retired in January 1990.

4 "Deputy commissioners" are now referred to as "district directors." 20
C.F.R. § 725.101(a)(11) (1995).

                    3
was limited to whether Rutter had made the threshold showing of a
"material change in conditions." The parties then agreed to submit the
question on the existing record.

On October 11, 1991, an administrative law judge (ALJ) issued a
decision and order awarding benefits. After canvassing the evidence,
the ALJ concluded, "the medical evidence in 1989 shows a definite
progression of the disease occurring over another interval of time
resulting in the Claimant's reduced capacity to do his former coal
mine work."

The ALJ then went on to hold that, if the evidence were inadequate
to establish a material change in conditions, Rutter would still be enti-
tled to benefits. According to the ALJ, the 1986 denial was erroneous
on its face and "null and void ab initio." Consequently, "it is believed
that a determination whether or not the new evidence establishes a
change of condition is immaterial." The ALJ set the date of onset of
disability as August 1, 1986.

On September 30, 1994, the BRB modified the award. It held that
the ALJ's finding of an actual progression of Rutter's disease was
sufficient to satisfy its Spese5 test for material change in condition.
However, the BRB held that the ALJ had no power to reopen or
review the denial of the 1986 claim, which became final upon Rut-
ter's failure to appeal or move to modify it. The BRB therefore
affirmed the award but changed the date from which benefits were
payable to April 1, 1989. Lisa Lee then filed a timely petition for
review in this court.

III.

Lisa Lee's argument is as easily stated as it is counterintuitive: Rut-
ter must now lose because he clearly should have won in 1986. He
likely should have; the ALJ here was so appalled by the 1986 denial
that he deemed it "void ab initio." Nonetheless, though we might
_________________________________________________________________

5 Spese v. Peabody Coal Co., 11 BLR 1-174, 1-176 (Ben. Rev. Bd.
1988) (change in conditions is established by evidence that is "relevant
and probative so that there is a reasonable possibility that [it] would
change the prior administrative result.").

                     4
share the ALJ's sentiment, we agree that his reasoning was flawed.
The 1986 denial is final, see Pittston Coal Group v. Sebben, 488 U.S.
105, 122-123 (1988), and for present purposes, we must assume that
it was correct.

The panel rejected the BRB and Director's standards for determin-
ing whether there was a material change in Rutter's condition. The
panel criticized the BRB's Spese standard because it "impermissibly
allows a claimant to present . . . evidence available at the time of the
initial decision tending to show that the initial decision was in error."
57 F.3d at 406. The Director's standard met similar criticism: "it per-
mits reconsideration of critical determinations underlying a decision
denying benefits." Id. at 407. Instead, the panel adopted the Seventh
Circuit's test, which, as applied, meant that the miner must show that
his condition has changed on every element previously decided
against him. See Sahara Coal Co. v. Director, OWCP, 946 F.2d 554
(7th Cir. 1991). Moreover, as in Sahara Coal, the panel required
inquiry into the evidence behind the earlier decision, rather than
merely accepting the factual predicate of the earlier decision as cor-
rect. Consequently, the panel remanded for an all-but-certain finding
that Rutter had actually been eligible for benefits in 1986, so his cur-
rent conceded eligibility could not evince a material change in condi-
tion. We disagree with this reasoning.

If the 1986 denial is "final" in a legal sense, we must accept the
correctness of its legal conclusion -- Rutter was not eligible for bene-
fits at that time -- and that determination is as off-limits to criticism
by the respondent as by the claimant. Only by repudiating the 1986
judgment and its necessary factual underpinning can no change in
Rutter's condition be found. We believe that such repudiation is
improper.

Accepting the correctness of a final judgment is more than legalis-
tic tunnel vision; it is a practical -- perhaps the only practical -- way
to discern a concrete form in the mists of the past. The ease we might
feel at second-guessing this final judgment ought not tempt us to
overestimate our retrospective perspicacity; most black lung claims
involve a mixed bag of test results and wildly divergent medical opin-
ions. The final decision of the ALJ (or BRB or claims examiner) on
the spot is the best evidence of the truth at the time.

                     5
In this regard, the panel opinion could be read to imply that the
deputy commissioner made an express finding of fact in 1986 that
Rutter had complicated pneumoconiosis. See 57 F.3d at 404 ("A
Department of Labor deputy commissioner denied that claim, finding
that although Rutter had presented evidence of complicated
pneumoconiosis, he had not established that the disease was caused
by coal mine work, or that he was totally disabled by the disease.")
(emphasis added). This implication is mistaken. The form denial nei-
ther states that Rutter has complicated pneumoconiosis nor acknowl-
edges that he "had presented evidence" of it. It may have been
obvious to all who could and would see, but a finding that should
have been made is not a finding that was made.6

Not only does the denial of benefits itself necessarily imply the
opposite finding, see 20 C.F.R. §§ 718.302 and .304, but the language
of the summary denial form can logically lead only to that finding. In
one part of the correspondence, Rutter was told that he had not proved
total disability; in another, he was invited to submit additional evi-
dence on that issue, and was told that proof of complicated pneumo-
coniosis would suffice.7
_________________________________________________________________

6 We can only speculate that Rutter would have had the 1986 denial
reversed on appeal to an ALJ, the BRB, or this court. For all we can
know, had Rutter requested a hearing, the respondent would have pro-
duced a dozen radiologists to deny that his x-rays were positive for com-
plicated pneumoconiosis.

Moreover, it is at least conceivable that the claims examiner con-
sciously rejected the x-ray evidence of complicated pneumoconiosis as
inconsistent with Rutter's "essentially normal" pulmonary function tests.

7 The denial of benefits was accomplished through Department of
Labor form letter No. CM-1000a (Jan. 1982) and its "Guide for Submit-
ting Additional Evidence," No. CM-1000g (Jan. 1982). The letter states,
as pertinent here:

        Dear Claimant:

        We have carefully reviewed the evidence in your claim under the
        Black Lung Benefits Act. This evidence does not show that you
        qualify for black lung benefits.

        * * *

                    6
We accept the final 1986 decision, as well as its necessary factual
predicate, as correct. Rutter has shown a stark change in condition,
and he is entitled to have his 1989 claim decided on its own consider-
able merits.

IV.

A.

Rutter's is just a single case, and our reasons for affirming the
award could end here. However, the proper standard to determine
whether a given claimant has proved a "material change in condition"
has recently split the circuits, and we now take this opportunity to
align ourselves with the Third and Sixth Circuits, rather than the Sev-
enth.

In choosing the proper standard, we have three candidates: (1) the
BRB's Spese formulation, which broadly looks to whether the newly
submitted evidence favorable to the claim has a "reasonable possibil-
ity" of changing the prior result; (2) the Sahara Coal test, adopted by
the Seventh Circuit and the panel here, which requires the miner to
_________________________________________________________________

        You do not qualify for benefits because the evidence in your
        claim

        * * *

        2. (X) does not show that the disease was caused at least
        in part by coal mine work; [and]

        3. (X) does not show you are totally disabled by the dis-
        ease. Totally disabled means you are unable to perform the
        type of work required by your coal mine work because of a
        breathing impairment caused by pneumoconiosis (black lung
        disease). The results of your medical evidence are shown on
        the enclosed explanation.

The guide for submitting additional evidence directed Rutter to submit
proof of total disability due to pneumoconiosis. Five types of such proof
were listed; the very first was "X-ray or other evidence confirming the
presence of complicated pneumoconiosis (the most severe form of black
lung disease)[.]"

                    7
show that he "did not have black lung disease at the time of the first
application but has since contracted it and become totally disabled by
it, or that his disease has progressed to the point of becoming totally
disabling although it was not at the time of the first application," 946
F.2d at 556; and (3) the Director's "one-element" standard, which
requires the claimant to prove, under all of the probative medical evi-
dence of his condition after the prior denial, at least one of the ele-
ments previously adjudicated against him. The Director's standard, to
which we owe deference,8 is easily the most reasonable and workable
of the lot. To explain why, we should begin with background princi-
ples.

B.

A new black lung claim is not barred, as a matter of ordinary res
judicata, by an earlier denial, because the claims are not the same.
The health of a human being is not susceptible to once-in-a-lifetime
adjudication.

        It is almost too obvious for comment that res judicata does
        not apply if the issue is claimant's physical condition or
        degree of disability at two entirely different times, particu-
        larly in the case of occupational diseases.

3 A. Larson, The Law of Workmen's Compensation , § 79.72(f)
(1989). The issue in 1986 was Rutter's condition in 1986, and his
future condition was not and could not have been litigated then.

Thus, nothing bars or should bar claimants from filing claims
seriatim, and the regulations recognize that many will. See, e.g., 20
C.F.R. § 725.409(b) (if prior claim has been denied by reason of
abandonment, "a new claim may be filed at any time and new evi-
dence submitted where [the claims modification process is unavail-
able.]") The duplicate claims regulation, 20 C.F.R. § 725.309(d), does
not bar new claims, but rather directs that they shall be denied based
on the earlier denial absent a threshold showing of a material change
_________________________________________________________________

8 Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991); see
generally, Chevron U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837, 845 (1984).

                    8
in conditions. Thus, the regulation simply interposes a rebuttable pre-
sumption that nothing has changed, apparently to lessen the adminis-
trative burden of the black lung program.9 It creates a sort of
presumptive finality operating upon a future dispute, a finality that
must not be confused with ordinary res judicata, which cannot look
forward.

The Sahara Coal test, as applied by the panel here, forces the
claimant to show a material change on every element that was previ-
ously decided against him.10 This approach fails to account for the
frailty of alternative holdings. A black lung claimant must prove
every element of his claim. If he loses on one, or two, or three ele-
ments, the end result is the same: a denial. For this reason, if he loses
on more than one element, but only one is in fact a correct basis for
denial, the law does not impose a duty upon him to file a meaningless
appeal to "correct" the erroneous alternative holdings. Otherwise, "the
rule might be responsible for increasing the burdens of litigation on
the parties and the courts rather than lightening them." Restatement
(Second) of Judgments § 27, comment i. (1982). Accordingly, hold-
ings in the alternative, "either of which independently would be suffi-
cient to support the result, . . . [are] not conclusive with respect to
either issue standing alone." Id.

Here we meet up with something of a dilemma. We must have an
anchor in the past with which to compare current conditions, but alter-
native holdings are not necessarily conclusive.
_________________________________________________________________

9 Lisa Lee correctly notes that there is no express statutory basis for the
duplicate claims regulation, and asserts that it is invalid. The premise of
this argument is that, absent the regulation, miners could not file new
claims. But of course they could; as the excerpt from Larson's treatise
quoted above makes clear, common-law res judicata has no applicability
where the issue is a person's health at two different times.

10 If, as we have held above, the necessary factual premises of the 1986
decision must be accepted as true, Rutter would win under any standard.
Because of statutory presumptions, see supra at 3, proof of complicated
pneumoconiosis, in and of itself, establishes "all elements" of Rutter's
claim.

                    9
The Director's approach strikes a reasonable balance. Each of the
alternative holdings is presumed to have been correct when made and
to continue to be correct through time. Because of their tenuous
nature, however, disproof of the continuing validity of just one of the
alternative holdings is enough to establish a material change in condi-
tion. We defer to the Director's reasonable interpretation of the dupli-
cate claims regulation. In doing so, we join the Third and Sixth
Circuits. Labelle Processing Co. v. Swarrow, 72 F.3d 308 (3rd Cir.
1995); Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir. 1994).11

C.

In comparison to the Director's approach, Spese and Sahara Coal
come up short. The Spese test is too vague to be applied consistently,
contains illogical evidentiary rules (it permits resort to evidence avail-
able before the prior denial and forbids consideration of contrary pro-
bative evidence), and arguably sets too low a threshold ("reasonable
possibility") to discern "material" changes in condition.

Sahara Coal has two flaws. First, it founders on issue-preclusion
principles where there are alternative holdings in the first claim, as
discussed above. Second, and more importantly, it is the only one of
the standards that permits -- in fact demands -- a plenary review of
the evidence behind the first claim. For example, it is not enough for
the miner to rely on an ALJ's final determination that he did not have
pneumoconiosis or was not disabled by it. The miner must affirma-
tively prove that these adverse determinations were correct.12 To use
_________________________________________________________________

11 We do not endorse, however, the closing paragraph of Sharondale
Corp., 42 F.3d at 999, where, after adopting the Director's standard, the
Sixth Circuit seems to have required consideration of the evidence
behind the earlier denial to determine whether it "differ[s] qualitatively"
from the new evidence. Even if we agreed with such a requirement, Rut-
ter certainly satisfied it here, inasmuch as the ALJ found an actual deteri-
oration in his condition.

12 The Seventh Circuit did speculate that this rule might allow for an
exception if the claimant's current condition were "substantially worse,"
lest the possibility of his prior entitlement "complicate the proceeding
unduly." 946 F.2d at 558. Where the claimant is only "slightly worse
off," however, he must prove that he correctly (and slightly) missed the
disability threshold the first time around. Id. This requirement lends itself
to evidentiary mischief, inasmuch as the prior file will generally contain
"admissions" by the miner of all of the elements of entitlement.

                     10
that court's own words, its standard "makes mincemeat of res judi-
cata." 946 F.2d at 556.

V.

We are not unmindful of the possibility that the Director's standard
might encourage abuse of the administrative process by wily claim-
ants and their wily lawyers. After today's decision, an unsuccessful
claimant will doubtless schedule a morning appointment with a com-
pliant physician for a year and a day after the denial of his claim.
Armed with evidence contrary to an element previously found against
him, the claimant will file a new claim that afternoon, and so on, ad
infinitum.

This scenario belongs to that genre of horribles that seems impres-
sive in academic debate but has little relevance to real life. Any
claimant who wants to be a perpetual litigator can already be a perpet-
ual litigator, and in a much easier fashion. The day before his hypo-
thetical doctor's appointment, the miner may file a request for
"modification" of the earlier denial. For the claimant, modification is
a far more attractive option than a new claim, because, in addition to
a change in conditions, it can be based on a "mistake in a determina-
tion of fact" in the original denial. 20 C.F.R. § 725.310(a). No new
evidence is required. A claims examiner may "`correct mistakes of
fact, whether demonstrated by wholly new evidence, cumulative evi-
dence, or merely further reflection on the evidence initially submit-
ted.'" Jessee v. Director, OWCP, 5 F.3d 723, 724 (4th Cir. 1993)
(quoting O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254,
256 (1971) (per curiam) (decided under Longshore and Harbor Work-
ers' Compensation Act)). Because the § 725.310(a) procedure
modifies the original denial, the claimant has the opportunity to col-
lect benefits from an onset of disability date preceding the original
denial. The miner who waits a year and a day must file a brand new
claim, and, as we have stated above, the prior denial becomes a final
adjudication that the miner was not disabled by pneumoconiosis as of
the date of its issuance.

Moreover, a miner who wanted to file duplicate claims ad infini-
tum would have to live ad infinitum. The black lung claims process
is extraordinarily slow; today, in 1996, we still routinely hear cases

                    11
involving the 20 C.F.R. § 727.203 interim presumption, which was
superseded by the permanent regulations sixteen years ago. See 20
C.F.R. § 718.2 (permanent regulations effective March 31, 1980).
Few miners have the time or wherewithal to go through the system
twice; all too many die during the first run.13

The risk of sporadic abuse of the duplicate claims process is far
outweighed by the necessity that there be some such process and by
the utility of the Director's approach to it. As we emphasized above,
pneumoconiosis -- especially in the advanced form from which this
claimant suffers -- is a progressive disease, and no rational system
of law or of medicine could stand on the proposition that it can or
must be measured only once.14 A rational system would simulta-
neously account for the progressiveness of the disease, discourage
useless appeals of alternative holdings, and require, at the threshold,
a palpable basis to believe that conditions have changed over time.
The Director's "one-element" approach accomplishes this difficult
task.

VI.

Finally, we return to Mr. Alva Rutter. In clinical terms, the change
in his condition has been very real, even if we reexamine the 1986
_________________________________________________________________

13 Of course, an especially cagey claimant could abuse the system by
simply dropping each claim after its administrative denial, filing anew in
a year and a day, and waiting, as if for the lottery jackpot, to strike it rich
with a sympathetic claims examiner.

This elaborate ploy could happen; all sorts of odd things happen. But
it simply does not describe typical human behavior. Our lottery winner,
for all the skill of his gambit, would quickly find himself faced with a
controversion of the claim from the responsible operator, and he would
then get a much belated chance at his decade of litigation. Out-of-work
coal miners, disabled or not, generally need money badly enough to
forgo such pointless intrigue in favor of honestly and earnestly prosecut-
ing their claims.

14 Accepting this proposition would put the miner in an absurd
dilemma. Should he file now, and risk losing everything by filing a bit
"too soon," or should he wait a few years until his disease has progressed
to a more "favorable" stage?

                     12
evidence. The ALJ found that, in 1986, Rutter had small opacities of
2/2 profusion in four of six lung zones, with large opacities of cate-
gory A (greater than one but less than five centimeters in diameter).
By 1989, small opacities clogged all six lung zones, in greater profu-
sion (2/3 to 3/2), and large opacities had progressed to Category B
(greater than five centimeters). In 1986, notwithstanding his advanced
disease, Rutter could work and support his family. Now he cannot.
From Rutter's viewpoint, the change in his condition could scarcely
be more "material."

The award of benefits is affirmed.

AFFIRMED

NIEMEYER, Circuit Judge, concurring:

I join in Judge Hall's opinion for the court but write separately to
explain that my vote does not rest on the assumptions that the dissent
attributes to the majority opinion.

The effect of the majority opinion is to award benefits to a person
who indisputably falls within the class of persons that Congress
intended to benefit. While a review of the record from the claimant's
first application for benefits may call the original denial of benefits
into question, established and desirable principles of finality bind us
to accept that conclusion. On the claimant's reapplication for benefits
some years later, the objective medical facts demonstrate that his con-
dition worsened, to the point that the Department of Labor concluded,
without difficulty, that the claimant was disabled. The change,
defined by the later finding of disability when previously such a find-
ing was not made combined with the finding of a worsened condition,
is material. And it is that material change that demands my vote in
favor of affirming the Department's award of benefits, but only from
the date of the second benefits application.

I depart from the dissenting opinion where it draws the conclusion,
contrary to the law of the case, that the claimant was "unquestionably
disabled" at the time of his first application. To reach that conclusion,
the dissent engages in an improper review of the first decision deny-
ing benefits, a decision the majority has left at rest.

                    13
Contrary to the dissent's suggestion, sympathy--other than for
what the law prescribes--played no role in our disposition of this
case.

LUTTIG, Circuit Judge, dissenting:

The majority today is tempted, and ultimately persuaded, by the
sympathies of this case, as is evident from the fact that it begins its
analysis by "[p]utting aside" the legal question before us, and instead,
dwelling on the uncontroverted fact that the claimant today has com-
plicated pneumoconiosis caused by coal mine work. Whether or not,
in our judgment, Rutter has complicated pneumoconiosis, or whether
he is someone to whom we would award benefits were it our respon-
sibility, are not the questions before us, however. Rather, we have
before us a question of law, whether this claimant has proven a "mate-
rial change in conditions" that would warrant reconsideration of
whether he is entitled to black lung benefits. See 20 C.F.R.
§ 725.309(d) (providing that a successive application for benefits
"shall . . . be denied" unless there has been a "material change in con-
ditions").

The Department of Labor promulgated section 725.309(d), the so-
called duplicate claims provision, to allow miners who were not dis-
abled at the time they were initially denied benefits an opportunity to
establish their entitlement to benefits if they become totally disabled
following a denial of benefits. As the Department itself described the
regulation, "a miner whose claim has once been finally denied either
by the Social Security Administration or the Department should be
allowed to file a new claim on the grounds of a progression to total
disability." See Discussion of Comments to Proposed Regulations on
Duplicate Claims, 43 Fed. Reg. 36772, 36785 (Aug. 18, 1978)
(emphasis added). The regulation was never intended to, nor does it,
reach a person who was unquestionably disabled at the time of the ini-
tial denial, but erroneously held to be not disabled. The law provides
avenues of relief -- neither of which this claimant pursued -- for a
person who has been erroneously denied benefits. He may either
appeal the erroneous decision, 20 C.F.R. § 725.410(c), or seek modi-
fication of that decision, for up to a year after the initial denial, id. at
§ 725.310. He is not, however, entitled to benefits under the duplicate
claim provision.

                     14
In order to conclude that this claimant is entitled to benefits under
the duplicate claims provision, the majority entirely relieves claimants
of their burden of proving a material change in conditions, holding
that any miner who is currently entitled to benefits shall receive them,
a standard that invites claimants to file claim after claim until they
find a pliant ALJ. As the majority unabashedly explains:

        [N]othing bars or should bar claimants from filing claims
        seriatim . . . .

        ...

        After today's decision, an unsuccessful claimant will doubt-
        less schedule a morning appointment with a compliant phy-
        sician for a year and a day after the denial of his claim.
        Armed with evidence contrary to an element previously
        found against him, the claimant will file a new claim that
        afternoon, and so on, ad infinitum.

Ante at 8, 11. This is, of course, precisely the result intended to be
avoided under the regulation. Like the now repudiated Spese standard,
this standard fails even to examine or consider the claimant's original
conditions, much less to require a determination of whether there has
been a "material change" (or for that matter, even an immaterial
change) in those conditions -- as the Director himself concedes. See
Director's Answer in Support of Respondent's Petition for Rehearing
En Banc at 9 (acknowledging that the "one-element" test "allows an
inference of change" in conditions to support reexamination of a
duplicate claim (emphasis added)). Indeed, in its haste to award bene-
fits in this case, the majority does not so much as bother to differenti-
ate between a change and a "material change," effectively holding that
all changes are material.

That the majority's standard allows recovery of benefits merely
upon a showing that the claimant is today eligible for benefits, with-
out any evidence whatever of a change in his condition, is confirmed
by the fact that the majority expressly rejects the requirement, from
the Sixth Circuit's decision it purports to adopt, that the ALJ make
certain that the evidence presented with the duplicate claim "`differ[s]
qualitatively'" from the evidence available at the time of the initial

                    15
denial. See ante at 10 n.11 (quoting Sharondale Corp. v. Ross, 42
F.3d 993, 999 (6th Cir. 1994)). The majority, thus, adopts for this cir-
cuit the very rule that even the Sixth Circuit recognized was mani-
festly untenable under the regulation -- that the claimant may recover
benefits if "the ALJ merely disagree[s] with the previous characteriza-
tion of the strength of the evidence." Sharondale, 42 F.3d at 999.

When all is said and done, therefore, the majority holds that a
claimant is entitled to benefits if he comes forward with any addi-
tional evidence of his condition "after" the denial of the original claim
and shows that he is now entitled to benefits, ante at 8, whether or
not the claimant proves a material change (or a change at all) in his
conditions from what they were at the time he was earlier denied ben-
efits. A claimant, for example, who is denied benefits and then files
a duplicate claim accompanied by an additional "probative" x-ray
taken after the initial denial that is identical to the x-rays presented
with the initial claim (that is, that show identical opacities) would
receive black lung benefits on his duplicate claim, notwithstanding
that his condition has not changed at all. For, he has, according to the
majority, "prove[d], under all of the probative medical evidence of
his condition after the prior denial, at least one of the elements previ-
ously adjudicated against him." Ante at 8. Not only is such a holding
irreconcilable with the plain language of section 725.309(d), it
"makes mincemeat" of the doctrine of res judicata underlying section
725.309(d) by permitting the previous decision to be reevaluated, as
the majority itself says, ad infinitum. Cf. Sahara, 946 F.2d at 556
(similar criticism of the Spese standard).

Because the standard articulated by the Seventh Circuit in Sahara
Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir. 1991), is the only
standard which both requires a "material change in conditions" and
respects the finality of the initial judgment, I would adopt that test as
the law of this circuit. The Sahara standard provides that,

        [a] material change in conditions means either that the miner
        did not have black lung disease at the time of the first appli-
        cation but has since contracted it and become totally dis-
        abled by it, or that his disease has progressed to the point of
        becoming totally disabling although it was not at the time of
        the first application.

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Id. Of the various tests for determining eligibility for duplicate claim
benefits, only the Sahara standard focuses upon the miner's
conditions and requires that those conditions change in a way that is
material. The majority's characterization notwithstanding, the Sahara
standard does not require that the claimant show a material change
"on every element previously decided against him," ante at 5, 9.
Rather, it requires only that the claimant show, through a comparison
of the evidence existing at the time of his original denial of benefits
and the evidence currently available, that he was not then, but is now,
eligible for benefits. In other words, the focus of the Sahara standard
is not on the conclusions reached as to the conditions, but rather on
the underlying conditions themselves, which is exactly what section
725.309(d)'s plain language demands. In no other possible way can
it be determined whether the claimant's conditions have materially
changed since the earlier denial of benefits.

The majority is critical of the Sahara standard because it believes
that any examination of the evidence underlying the prior denial of
benefits (that is, examination of the evidence as to the miner's prior
condition) would offend principles of res judicata. A standard that
requires denial of a duplicate claim because the claimant's underlying
conditions have not materially changed (for example, because the
claimant was disabled then and is disabled now), however, does not
undermine the original decision to deny benefits; rather, such a stan-
dard fully respects that decision, in stark contrast to the standard
adopted by the majority, which continuously allows reopening of that
original decision based upon evidence reflecting no change at all in
the claimant's conditions. Instead of "foundering" on principles of res
judicata and collateral estoppel, as the majority contends, the Sahara
standard actually represents too strict an application of those princi-
ples for the majority, because that standard, unlike the majority's
standard, does require faithful adherence to the initial denial, irrespec-
tive of whether that denial was correct or incorrect.

The court's tortured interpretation of the duplicate claims regula-
tion comes about as a result of this one claimant's refusal either to
appeal or to seek modification of an arguably erroneous decision and
the court's unwillingness to accept the result that he may, as a conse-
quence of his insouciance, find himself without remedy. As a court
of law, however, we should recognize that this circumstance is an

                    17
extraordinarily unusual one, not likely to frequently, if ever, repeat
itself, and resist the temptation to yield to our collective sense as to
what would be "fair" in this most peculiar of circumstances. Doing so,
and simply applying the plain language of the regulation, I would
vacate and remand to the ALJ for reconsideration of whether Rutter,
under the standard adopted by the Seventh Circuit in Sahara, has
shown a "material change in conditions."

Chief Judge Wilkinson and Judges Russell, Wilkins, Hamilton and Wil-
liams join in this opinion.

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