                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


DOROTHY M. HOWARD, Widow of          
Alfred Howard,
                     Petitioner,
                v.
VALLEY CAMP COAL COMPANY;                       No. 03-1706
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
                      Respondents.
                                     
               On Petition for Review of an Order
                 of the Benefits Review Board.
                          (02-490-BLA)

                     Argued: February 26, 2004

                      Decided: April 14, 2004

  Before LUTTIG, WILLIAMS and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Thomas McKennan Hazlett, KINDER, HARPER &
HAZLETT, St. Clairsville, Ohio, for Petitioner. Douglas Allan
Smoot, JACKSON KELLY, P.L.L.C., Charleston, West Virginia, for
Respondents. ON BRIEF: Kathy L. Snyder, JACKSON KELLY,
P.L.L.C., Morgantown, West Virginia, for Valley Camp Coal Com-
pany.
2              HOWARD v. VALLEY CAMP COAL COMPANY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Following the death of her husband Alfred Howard (Howard), a
retired coal miner, petitioner Dorothy Howard filed a survivor’s claim
against respondent Valley Camp Coal Company (Valley Camp),
Howard’s former employer, for benefits under the Black Lung Bene-
fits Act, 30 U.S.C. § 901 et seq., alleging that pneumoconiosis stem-
ming from Howard’s employment as a coal miner was a substantially
contributing cause of Howard’s death. After the district director
denied petitioner’s claim, she requested a formal hearing before an
Administrative Law Judge (ALJ). In July 2000, the ALJ issued a deci-
sion awarding benefits. After the Benefits Review Board (Board) in
August 2001 vacated and remanded the case to the ALJ for further
proceedings, however, the ALJ issued a decision in March 2002 deny-
ing benefits. The Board affirmed this denial of benefits in April 2003,
and petitioner now appeals. Applying a de novo standard of review
to the legal conclusions of the Board and the ALJ, and independently
reviewing the record to determine whether the ALJ’s findings of fact
are supported by substantial evidence, see Consolidation Coal Co. v.
Held, 314 F.3d 184, 186 (4th Cir. 2003), we affirm.

                                    I.

   Petitioner argues first that the Board erred in holding that collateral
estoppel, based on a successful claim for disability benefits brought
by Howard before his demise, did not prevent Valley Camp from liti-
gating the issue of whether Howard suffered from pneumoconiosis.
Under this court’s precedents, to preclude Valley Camp from litigat-
ing that issue, petitioner needed to prove that an identical issue was
actually litigated in a prior proceeding, that determination of this issue
was a critical and necessary part of the judgment in this prior proceed-
ing, that the prior judgment is final and valid, and that Valley Camp
had a full and fair opportunity to litigate the issue in the prior pro-
              HOWARD v. VALLEY CAMP COAL COMPANY                     3
ceeding. See Sedlack v. Braswell Services Group, 134 F.3d 219 (4th
Cir. 1998) (emphases added).

   After finding that the determination of whether Howard suffered
from pneumoconiosis was a critical and necessary part of the valid
and final judgment awarding benefits in Howard’s prior claim, and
that Valley Camp had full and fair opportunity to litigate the issue of
Howard’s pneumoconiosis during the prior proceedings, the ALJ ini-
tially held Valley Camp collaterally estopped from relitigating this
issue during petitioner’s survivor’s claim. J.A. 9. The Board reversed
this holding, however, reasoning as follows:

    At the time of . . . the miner’s claim, evidence sufficient to
    establish pneumoconiosis under one of the four methods set
    out at 20 C.F.R. section 718.202(a)(1)-(4) obviated the need
    to do so under any of the other methods. See Dixon v. North
    Camp Coal Co., 8 BLR 1-344 (1985). However, subsequent
    to the issuance of the award of benefits in the miner’s claim,
    the Fourth Circuit held that although Section 718.202(a)
    enumerates four distinct methods of establishing pneumoco-
    niosis, all types of relevant evidence must be weighed
    together to determine whether a miner suffers from the dis-
    ease. See Island Creek Coal Co. v. Compton, 211 F.3d 203
    (4th Cir. 2003) . . . In light of the change in law enunciated
    in Compton, which overruled the Board’s holding in Dixon,
    the issue of whether the existence of pneumoconiosis has
    been established pursuant to Section 718.202(a) . . . is not
    identical to the one previously litigated and actually deter-
    mined in the miner’s claim.

J.A. 18. Thus, the Board held that the requirement of identicality of
issues was not satisfied, because the intervening "change in law,"
introduced by our decision in Compton, made the issue of Howard’s
pneumoconiosis, as determined in the live miner’s claim, substan-
tively nonidentical to the issue of Howard’s pneumoconiosis as it
would be determined in petitioner’s survivor’s claim.

   Contrary to petitioner’s arguments, the Board did not err in reach-
ing this holding. Rather, the Board correctly recognized that an inter-
vening change in law may be significant enough to justify denying
4                 HOWARD v. VALLEY CAMP COAL COMPANY
preclusive effect to a determination made before the change. See
Comm’r v. Sunnen, 333 U.S. 591, 599 (1948) ("[A] judicial declara-
tion intervening between . . . two proceedings may so change the legal
atmosphere as to render the rule of collateral estoppel inapplicable.").
And the Board also correctly determined that the change in interpreta-
tion of the regulations for proving pneumoconiosis, which was
effected by this court’s decision in Compton, was sufficiently signifi-
cant to warrant refusal to apply issue preclusion based on a determi-
nation of pneumoconiosis made under the pre-Compton regime.

                                     II.

   Petitioner next asserts that the ALJ erred in excluding certain dis-
puted exhibits. These exhibits, which were created prior to the com-
mencement of petitioner’s claim and which petitioner admittedly did
not exchange with Valley Camp at least twenty days prior to the hear-
ing before the ALJ, were not submitted to the district director before
petitioner requested a hearing with the ALJ.1

   At the time of the hearing before the ALJ, the regulations relevant
to admission of evidence stated, in pertinent part, as follows:

        (b)(1) [D]ocumentary material, including medical reports,
        which was not submitted to the [district director], may be
        received in evidence subject to the objection of any party,
        if such evidence is sent to all other parties at least 20 days
        before a hearing is held in connection with the claim.

           (2) Documentary evidence, which is not exchanged with
        the parties in accordance with this paragraph, may be admit-
        ted at the hearing with the written consent of the parties or
        on the record at the hearing, or upon a showing of good
    1
    The disputed evidence consists of seven exhibits, including a report
of the findings of the West Virginia Occupational Pneumoconiosis Board
dated July 9, 1991, a transcript of testimony of members of the Occupa-
tional Pneumoconiosis Medical Board dated June 19, 1996, three sepa-
rate medical reports prepared by various physicians in 1990, 1993, and
1998, the curriculum vitae of one of those physicians, and a death sum-
mary prepared by a physician after Howard’s death.
                HOWARD v. VALLEY CAMP COAL COMPANY                      5
      cause why such evidence was not exchanged in accordance
      with this paragraph. If documentary evidence is not
      exchanged in accordance with paragraph (b)(1) of this sec-
      tion and the parties do not waive the 20-day requirement or
      good cause is not shown, the administrative law judge shall
      either exclude the late evidence from the record or remand
      the claim to the [district director] for consideration of such
      evidence.

        ...

      (d) Documentary evidence which is obtained by any party
      during the time a claim is pending before the deputy com-
      missioner, and which is withheld by such party until the
      claim is forwarded to the Office of Administrative Law
      Judges, shall, notwithstanding paragraph (b) of this section,
      not be admitted into the hearing record in the absence of
      extraordinary circumstances, unless such admission is
      requested by any other party to the claim . . .

20 C.F.R. § 725.456 (2000) (emphases added).2

   Despite petitioner’s failure to exchange the documents with Valley
Camp at least twenty days prior to the hearing, the ALJ initially
admitted the disputed exhibits over Valley Camp’s objection. After
the Board reversed this ruling and remanded for findings of whether
extraordinary circumstances or good cause had been shown, however,
see J.A. 16-17, the ALJ excluded the exhibits under sec-
tion 725.456(d), reasoning that they had all been "in existence at the
time the instant claim was pending before the district director," but
that "[t]here [were] no extraordinary circumstances which justify why
these documents were not submitted to the district director." J.A. 25.
  2
   Because the hearing before the ALJ took place on March 22, 2000,
the cited version of § 725.456, from the 2000 edition of the Code of Fed-
eral Regulations, was applicable at the time and remains applicable to
petitioner’s claim even now. While § 725.456 was then amended by the
Department of Labor effective January 19, 2001, the amended version of
§ 725.456 was not made retroactive to claims, like the petitioner’s, which
were already pending at the time of the amendment. See 20 C.F.R.
§ 725.2 (2003); 20 C.F.R. § 725.456 (2003).
6              HOWARD v. VALLEY CAMP COAL COMPANY
   The Board having affirmed the ALJ’s decision on remand to
exclude the disputed exhibits, petitioner argues that such exclusion
constituted reversible error. Petitioner’s primary contention is that the
ALJ applied the "extraordinary circumstances" standard of section
725.456(d) to exclude the exhibits based only on a finding that the
disputed exhibits were "in existence" at the time of the proceedings
before the district director, but application of the "extraordinary cir-
cumstances" standard requires a finding that the exhibits had been
"obtained" by petitioner during that time. See Petitioner’s Br. at 13.

   In fact, petitioner is correct that a finding that documents were "in
existence" during the proceedings before the district director does not
equate to a finding that petitioner had herself "obtained" these docu-
ments at that time. The ALJ was thus in error to apply the "extraordi-
nary circumstances" standard of section 725.456(d) based only on his
finding that the documents were "in existence," without making a fur-
ther finding that petitioner had indeed "obtained" the documents dur-
ing the pendency of the proceedings before the district director.

   Notwithstanding this error, we affirm the ALJ’s decision to exclude
the disputed exhibits. Although the "extraordinary circumstances"
standard of section 725.456(d) was inapplicable, petitioner still
needed to show "good cause" under section 725.456(b) in order to
make the exhibits part of the record before the ALJ, given petitioner’s
admitted failure to exchange the exhibits with Valley Camp at least
twenty days prior to the hearing and Valley Camp’s objection to the
introduction of the exhibits. The record, however, is devoid of any
evidence that "good cause" excused petitioner’s failure to exchange
the documents with Valley Camp at least twenty days prior to the
hearing before the ALJ. Most importantly, counsel for petitioner con-
tended before the ALJ not that he lacked access to the exhibits before
some time within the twenty days prior to the hearing, or that other
special circumstances existed which precluded him from exchanging
the exhibits with Valley Camp in a timely fashion, but only that he
"wasn’t aware that [he] had them," and "wasn’t aware that they
weren’t already in the record." J.A. 389.

  As a matter of law, this explanation, which was tantamount to an
admission of inattentiveness, was insufficient to establish "good
cause" for failing to meet the deadline for exchange of documents not
               HOWARD v. VALLEY CAMP COAL COMPANY                      7
made a part of the record before the district director. Accordingly,
section 725.456(b)(2) would have required the ALJ either to "exclude
the late evidence from the record or remand the claim to the [district
director]." Given the lack of any excuse for failing to exchange the
exhibits within the specified time frame, the apparent overlap between
the excluded exhibits and many other exhibits petitioner had already
introduced into the record, and the recognition that remand to the dis-
trict director would necessarily entail further delay and expense, we
further hold that a remand from the ALJ to the district director under
the circumstances would have been unwarranted, and thus decline
ourselves to remand the matter to the ALJ for further proceedings.

                                  III.

   Finally, petitioner asserts that the ALJ erred in finding on remand
that Howard did not in fact suffer from pneumoconiosis. We reject
this argument. Our review of the record and of the ALJ’s opinion on
remand, after the ALJ’s initial decision to preclude Valley Camp from
contesting the issue of whether Howard suffered from pneumoconio-
sis was reversed by the Board, see supra at 2-4, shows that the ALJ
reviewed the conflicting views formed by various medical profession-
als about Howard’s condition and reached a reasoned conclusion, sup-
ported by substantial evidence in the record, that the miner did not
suffer from pneumoconiosis. See J.A. 25-26.3

                                  IV.

  For the foregoing reasons, we affirm the Board’s order denying
petitioner’s claim.

                                                            AFFIRMED

  3
   Because we find that the ALJ did not err in holding on remand that
Howard had not suffered from pneumoconiosis at all, we necessarily
reject petitioner’s argument that the ALJ erred in holding that pneumoco-
niosis was not a substantially contributing cause or factor leading to
Howard’s death.
