BRB No. 98-1384 BLA

JAMES W. SHELTON              )
                              )
          Claimant-Petitioner      )
                              )
     v.                       )
                              )
CLAUDE V. KEEN TRUCKING       )    DATE ISSUED:08/18/1999       
COMPANY                       )
                              )
          Employer-Respondent      )    
                              )
DIRECTOR, OFFICE OF WORKERS'  )    
COMPENSATION PROGRAMS,             )
UNITED STATES DEPARTMENT OF   )
LABOR                         )
          Party-in-Interest        )    DECISION and ORDER

     Appeal of the Decision and Order on Modification Denying Benefits of Jeffrey
     Tureck, Administrative Law Judge, United States Department of Labor.

     James W. Shelton, Cedar Bluff, Virginia, for claimant.

     Gregory S. Feder (Arter & Hadden LLP), Washington, D.C., for employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant, without the assistance of counsel,[1]
 appeals the Decision and Order on Modification Denying Benefits (97-BLA-0676) of
Administrative Law Judge Jeffrey Tureck on a claim filed pursuant to the provisions
of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30
U.S.C. §901 et seq. (the Act).  Initially, claimant filed a claim for benefits in December
1991.  Director's Exhibit 1; see also Director's Exhibit 2.  Administrative Law Judge Charles P. Rippey
found that claimant established 17.25 years of coal mine employment.  Moreover, Judge Rippey found that the evidence
was insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). 
Accordingly, benefits were denied.[2]   Director's Exhibit 48.  Claimant
appealed, and the Board affirmed Judge Rippey's denial of benefits.  Director's Exhibit 52.  Shelton v. Claude V.
Keen Trucking Co., BRB No. 94-3940 BLA (Sept. 22, 1995).  Subsequently, claimant filed a request for
modification.  Director's Exhibit 53.  Administrative Law Judge Tureck (the administrative law judge) found that
claimant failed to establish either a change in conditions or a mistake in a determination of fact. See 20
C.F.R. §725.310.  Accordingly, modification was denied.

     Claimant, in the present appeal, contends generally that the administrative law judge erred by denying benefits. 
Employer has filed a response advocating affirmance of the administrative law judge's denial of modification.  The
Director, Office of Workers' Compensation Programs, has submitted a letter stating that he will not respond to the
present appeal unless specifically requested to do so by the Board.

     The Board's scope of review is defined by statute.  If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon the Board and may not be disturbed.  33 U.S.C. §921(b)(3), as
incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).

     Claimant may establish modification by establishing either a change in
conditions since the issuance of a previous decision or a mistake in a
determination of fact in the previous decision.  20 C.F.R. §725.310(a).  In
considering whether a change in conditions has been established pursuant to Section
725.310, an administrative law judge is obligated to perform an independent
assessment of the newly submitted evidence, considered in conjunction with the
previously submitted evidence, to determine if the weight of the new evidence is
sufficient to establish at least one element of entitlement which defeated
entitlement in the prior claim. See Kingery v. Hunt Branch Coal Co., 19 BLR
1-6, 1-11 (1994); Nataloni v. Director, OWCP, 17 BLR 1-82 (1993).  The
United States Court of Appeals for the Fourth Circuit, under whose jurisdiction the
instant case arises, has held that a claimant's allegation of general error is
sufficient to require the administrative law judge to reconsider the entire record
in addressing whether there was a mistake in a determination of fact pursuant to
Section 725.310. See Jessee v. Director, OWCP, 5 F.3d 723, 18 BLR 2-26 (4th
Cir. 1993); see also O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S.
254 (1971).

     With regard to change in conditions, the administrative law judge correctly
found that the only evidence claimant presented on modification was a qualifying
pulmonary function study performed on September 22, 1995. Director's Exhibit 53. 
The administrative law judge reasonably found that the pulmonary function study,
standing alone, does not aid claimant in establishing that he has pneumoconiosis.
See Tucker v. Director, OWCP, 10 BLR 1-35, 1-41 (1987).  Moreover, the
administrative law judge properly found that employer presented four new x-ray
readings, all of which were negative for pneumoconiosis, Employer's Exhibits 1-4,
and new reports from Drs. Sargent and Fino, both of whom concluded that claimant
does not have pneumoconiosis.[3]   Employer's
Exhibits 1, 6.  Therefore, we affirm the administrative law judge's finding that
the newly submitted evidence does not establish a change in conditions. See
Nataloni, supra.

     However, we vacate the administrative law judge's finding that there was no
mistake of fact.  The administrative law judge found that claimant failed to
establish a mistake in fact because Judge Rippey's finding of no pneumoconiosis was
affirmed by the Board, claimant had not pointed to any mistakes in his evaluation
of the evidence, and the evidence filed in connection with the modification
proceeding was consistent with the evidence in the record before Judge Rippey. 
Under Jessee, a claimant does not have to point specifically to any mistakes
in the prior determination and the administrative law judge is required to make a
de novo review of all the evidence.[4]  
Therefore, we vacate the administrative law judge's no mistake finding and remand
the case to the administrative law judge for further consideration pursuant to
Jessee.

     Accordingly, we affirm in part and vacate in part the administrative law judge's Decision and Order on
Modification Denying Benefits, and remand for further consideration consistent with this opinion.

     SO ORDERED.




                                                                       

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                       

                         ROY P. SMITH
                         Administrative Appeals Judge




                                                                       

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1) Tim White, a benefits counselor with Stone Mountain Health Services in Vansant, Virginia,
on behalf of claimant, requested an appeal of the administrative law judge's Decision and Order on Modification Denying
Benefits, but Mr. White is not representing claimant on appeal. See Shelton v. Claude V. Keen Trucking Co., 19
BLR 1-88 (1995)(Order).
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 2) In the instant case, Judge Rippey found at the hearing that the evidence seemed
overwhelming that claimant was totally disabled due to a respiratory impairment, and the parties agreed that the issues to
be decided were whether claimant had pneumoconiosis or whether he was totally disabled due to pneumoconiosis.
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 3) In addition, the record contains a newly submitted deposition of Dr. Sargent.  At the
deposition, Dr. Sargent opined that claimant's history of coal dust exposure played no role in the development of claimant's
obstructive lung disease.  Employer's Exhibit 5, Deposition at 5.  Inasmuch as Dr. Sargent's opinion does not support a
finding that claimant suffers from pneumoconiosis, 20 C.F.R. §718.201, any error by the administrative law judge
in not mentioning Dr. Sargent's deposition is harmless. See Larioni v. Director, OWCP, 6 BLR 1-1276
(1984).
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 4) Moreover, the principle of finality does not apply in cases where claimants seek to modify
prior decisions. See Jessee v. Director, OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993).
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