BRB No. 01-0358 BLA

HUGH T. GRIGG                      )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
PEABODY COAL COMPANY               )    DATE ISSUED:01/11/2002       

                         )
     and                           )
                         )
OLD REPUBLIC INSURANCE COMPANY     )
                         )
          Employer/Carrier-             )
          Respondents                   )
                         )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Donald W. Mosser,
     Administrative Law Judge, United States Department of Labor.

     Hugh T. Grigg, Wheatcroft, Kentucky, pro se.

     Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for
     employer.

     Before: DOLDER, Chief Administrative Appeals Judge, SMITH, and HALL,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appears without the assistance of counsel and appeals the Decision
and Order on Remand (98-BLA-0284) of Administrative Law Judge Donald W. Mosser
denying benefits on a duplicate claim[1]  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).[2]   This case is before the Board for a second
time.  In its prior Decision and Order, the Board affirmed in part and vacated
in part the administrative law judge's Decision and Order denying benefits.
Grigg v. Peabody Coal Co., BRB No. 99-0530 BLA (Apr. 26,
2000)(unpublished).  The Board remanded the case to the administrative law judge
for reconsideration of the newly submitted pulmonary function study and medical
opinion evidence relevant to the existence of pneumoconiosis and a totally
disabling respiratory impairment. Id.  On remand, the administrative law
judge denied benefits, finding that the evidence was insufficient to establish
either the existence of pneumoconiosis or a totally disabling respiratory
condition, and thus did not establish a material change in conditions pursuant
to 20 C.F.R. §725.309 (2000).  Claimant appeals the administrative law
judge's denial of benefits.  Employer has filed a response brief and asserts
that the denial of benefits should be affirmed.  The Director, Office of
Workers' Compensation Programs, has filed a letter indicating that he does not
intend to participate in this appeal.

     In an appeal filed by a claimant without the assistance of counsel, the
Board considers the issue raised to be whether the Decision and Order below is
supported by substantial evidence. McFall v. Jewell Ridge Coal Co., 12
BLR 1-176 (1989).  The Board must affirm the administrative law judge's Decision
and Order if the findings of fact and conclusions of law are rational, supported
by substantial evidence, and in accordance with law.  33 U.S.C. Section
921(b)(3), as incorporated by 30 U.S.C. Section 932 (a); O'Keefe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     To be entitled to benefits under Part 718, a claimant must establish that
he has pneumoconiosis, that such pneumoconiosis arose out of coal mine
employment, and that such pneumoconiosis is totally disabling. See 20
C.F.R. §§718.3, 718.202, 718.203, 718.204; Grant v. Director,
OWCP, 857 F.2d 1102, 12 BLR 2-1 (6th Cir. 1988); Director, OWCP v.
Mangifest, 826 F.2d 1318, 10 BLR 2-220 (3d Cir. 1987); Strike v.
Director, OWCP, 817 F.2d 395, 10 BLR 2-45 (7th Cir. 1987); Anderson v.
Valley Camp of Utah, Inc., 12 BLR 1-111 (1989); Baumgartner v. Director,
OWCP, 9 BLR 1-65 (1986); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985).  Failure to prove any one of the requisite elements compels a denial
of benefits. See Anderson, supra; Baumgartner,
supra; Perry v. Director, OWCP, 9 BLR 1-1 (1986).

     Moreover, the United States Court of Appeals for the Seventh Circuit,
within whose jurisdiction this case arises, has held that in order to establish
a material change in conditions pursuant to Section 725.309, the fact finder
must consider all of the new evidence, favorable and unfavorable, and determine
whether the miner has proven at least one element of entitlement previously
adjudicated against him. Peabody Coal Co. v. Spese, 117 F.3d 1001, 21 BLR
2-113 (7th Cir. 1997)(en banc rehearing), modifying, 94 F.3d 369
(7th Cir. 1996).  In the present case, claimant's first application for benefits
was denied on the grounds that claimant did not demonstrate any of the elements
of entitlement.  Director's Exhibit 17 at 1.

     After consideration of the administrative law judge's Decision and Order on
Remand, the issues on appeal, and the evidence of record, we conclude that
substantial evidence supports the administrative law judge's finding that the
newly submitted medical evidence does not establish a material change in
conditions pursuant to Section 725.309(d) (2000).  With respect to the medical
opinion evidence relevant to 20 C.F.R. §718.202(a)(4) (2000), the
administrative law judge first addressed the validity of the documentation
underlying Dr. Traughber's diagnosis of pneumoconiosis.  The administrative law
judge rationally found that the May 20, 1997 pulmonary function study
administered by Dr. Traughber is invalid based on Dr. Burki's opinion that
claimant's effort was poor, as demonstrated by the shape of the curves on the
tracings, and based on the opinion of Dr. Traughber, that the study did not
"meet the intratest reliability criteria."  Decision and Order on Remand at 3;
Director's Exhibits 5, 7; see Trent v. Director, OWCP, 11 BLR 1-26
(1987); Casella v. Kaiser Steel Corp., 9 BLR 1-131 (1986).  In addition,
the administrative law judge rationally found that the July 14, 1997 pulmonary
function study was invalid based on Dr. Burki's opinion that claimant's effort
was poor, according to the tracings, and based on Dr. Traughber's observation
that claimant's comprehension and cooperation were fair.  Decision and Order on
Remand at 3; Director's Exhibit 6; see Trent, supra;
Casella, supra.  Furthermore, the administrative law judge acted
within his discretion in giving  greater weight to Dr. Burki's opinion regarding
the May 20, 1997 and July 14, 1997 pulmonary function studies because of his
superior qualifications as a Board-certified internist and pulmonologist.[3]   Decision and Order on Remand at 3; see
Amax Coal Co. v. Beasley, 957 F.2d 324, 16 BLR 2-45 (7th Cir. 1992);
Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en banc);
Dillon v. Peabody Coal Co., 11 BLR 1-113 (1985); Wetzel v. Director,
OWCP, 8 BLR 1-139 (1985); Kendrick v. Kentland-Elkhorn Coal Corp., 5
BLR 1-730 (1983).

     The administrative law judge reasonably concluded, therefore, that the
opinions of Drs. Burki and Traughber "question the validity of the [July 14,
1997] pulmonary function study."  Decision and Order on Remand at 3.  Based upon
these appropriate findings, we affirm the administrative law judge's
determination to give less weight to Dr. Traughber's opinion diagnosing the
existence of pneumoconiosis because he relied upon invalid pulmonary function
study evidence.  We also affirm the administrative law judge's finding that the
contrary opinions of Drs. Gallo, Fino and Branscomb are entitled to greater
weight as they are more well-reasoned and well-documented.  Decision and Order
on Remand at 3-4; see Tackett v. Cargo Mining Co., 12 BLR 1-11 (1988). 
Therefore, we affirm the administrative law judge's finding that the newly
submitted medical opinion evidence is insufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a)(4) and, thus, insufficient to
establish a material change in conditions pursuant to Section 725.309(d) (2000).

     Inasmuch as the administrative law judge rationally found that the
pulmonary functions studies administered by Dr. Traughber are invalid, as
discussed supra, and the other newly submitted pulmonary function studies
were properly discredited by the administrative law judge, see Grigg v.
Peabody Coal Co., BRB No. 99-0530 BLA (Apr. 26, 2000)(unpublished), slip
opinion at 4, we affirm his finding that the newly submitted pulmonary function
study evidence is insufficient to establish total disability under 20 C.F.R.
§718.204(c)(1) (2000).  Decision and Order on Remand at 4.  Under 20 C.F.R.
§718.204(c)(4) (2000), the administrative law judge properly gave less
weight to the opinion of Dr. Traughber because he did not identify the medical
evidence on which he relied in finding claimant totally disabled and the
pulmonary function studies he administered to claimant produced invalid results. 
Decision and Order on Remand at 4; see Fields v. Island Creek Coal Co., 
10 BLR 1-19 (1987).  Additionally, the administrative law judge reasonably found
Dr. Houser's opinion, that claimant was totally disabled, "questionable" because
he based his opinion on pulmonary function studies which produced normal values
with poor effort.  Decision and Order on Remand at 4.  Thus, the administrative
law judge, rationally found the opinions of Drs. Traughber and Houser, the only
newly submitted medical opinions that diagnosed total disability, insufficient
to establish the existence of a totally disabling respiratory impairment under
Section 718.204(c)(4) (2000).  We also affirm the administrative law judge's
determination to accord greater weight to the contrary opinions of Drs.
Branscomb and Fino because their opinions were more consistent with the
objective medical evidence of record. See Clark, supra; Fields, supra. 
In addition, we affirm the administrative law judge's finding that the contrary
evidence outweighs the evidence supportive of a finding that claimant suffers
from a totally disabling respiratory impairment pursuant to Section 718.204(c)
(2000) and, thus, that claimant has failed to establish a material change in
conditions pursuant to Section 725.309(d) (2000).  Decision and Order on Remand
at 4; see Shedlock v. Bethlehem Mines Corp., 9 BLR 1-4 (1986).

     Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.

     SO ORDERED.


                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.
 1)The relevant procedural history is outlined in our previous
Decision and Order. See Grigg v.  Peabody Coal Co., BRB 99-0530 BLA (Apr.
26, 2000)(unpublished), slip opinion at 2.
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 2)The Department of Labor has amended the regulations implementing the Federal Coal
Mine Health and Safety Act of 1969, as amended.  These regulations became effective on January 19, 2001, and are
found at 20 C.F.R. Parts 718, 722, 725, and 726 (2001).
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 3)The administrative law judge found that Dr. Traughber's qualifications are not in the
record.  Decision and Order at 3.
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