Gary Faries, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 909 F.2d 170 (6th Cir. 1990)

Petitioner Gary Faries appeals a decision and order of the Benefits Review Board (BRB or Board) reinstating a February 8, 1985 decision and order of an Administrative Law Judge (ALJ) denying his claim for benefits under the Black Lung Benefits Act (Act), as amended, 30 U.S.C. § 901 et seq.

On appeal, petitioner contends that because of a change in the interpretation of the regulations applicable to invocation of the interim presumption pursuant to 20 C.F.R. Sec. 727.203(a) (1)-(a) (4) during the pendency of the adjudication of his claim, due process mandates remand of his claim to the ALJ for purposes of presenting additional evidence to satisfy the "new" interpretation of the burden of proof standard for invocation of the interim presumption. Petitioner further alleges that the "new" interpretation of the applicable regulations should not be applied retroactively. Finding that petitioner's claim was initially considered by the ALJ pursuant to the interpretation of section 727.203(a) (1) subsequently promulgated by the United States Supreme Court in Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987), and that the Mullins decision merely reaffirmed the prevailing interpretation of section 727.203(a) (1) in effect at the time petitioner's claim was first considered and rejected by the ALJ, we affirm the August 24, 1989 decision and order of the BRB reinstating a February 8, 1985 decision and order of the ALJ denying benefits.

Petitioner's initial claim for benefits was filed in 1973. After his claim was denied by the Social Security Administration in 1979 and by the Department of Labor in 1980, petitioner requested a hearing. On October 4, 1984, a formal hearing was convened before an ALJ who credited petitioner with ten to twelve years of coal mine employment. Since petitioner's claim was filed prior to March 31, 1980, the ALJ properly evaluated petitioner's claim pursuant to 20 C.F.R. Sec. 727.203(a), the "interim regulations," and on February 5, 1985, the ALJ rendered a decision and order denying benefits, finding the evidence insufficient to invoke the interim presumption pursuant to 20 C.F.R. Sec. 727.203(a).¹  Specifically, the ALJ found that the record contained the reports of seven doctors who examined x-ray films and that five physicians found evidence of pneumoconiosis to be lacking. The ALJ further concluded that although one of the two positive reports was based upon the findings of a physician who was a "B" reader, four of the physicians who issued negative findings also possessed "B" reader credentials. Accordingly, after weighing the conflicting interpretations of the x-ray films prior to invocation, the ALJ concluded that the weight of the x-ray evidence did not support a finding of affliction with black lung. The ALJ further noted that petitioner was subjected to a clinical examination, a blood gas study, and a ventilatory study, but none of the reports from those studies provided any evidence of a breathing impairment or indicated a disabling condition under the applicable regulations (20 C.F.R. Sec. 727.203(a) (2), (a) (3), or (a) (4)). Thus, invocation of the interim presumption pursuant to section 727.203(a) was denied.

Thereafter, petitioner appealed the ALJ's decision to the BRB and on March 23, 1987, the BRB reversed and remanded instructing the ALJ to reconsider petitioner's claim in light of the holding in Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986) (en banc), rev'd sub nom. Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987), a case which was decided subsequent to the issuance of the ALJ's initial decision and order.

Upon remand, the ALJ concluded that pursuant to the Stapleton decision, which held that a single positive x-ray interpretation, qualifying diagnostic test or medical report was sufficient to trigger the Part 727 interim presumption, id. at 426, the evidence was sufficient to establish invocation of the interim presumption pursuant to section 727.203(a) (1) since one physician (Dr. Asbahi) found that an x-ray film established the presence of pneumoconiosis. The ALJ further found that the Director failed to rebut the presumption pursuant to section 727.203(b).²  Accordingly, benefits were awarded.

After benefits were awarded, the Director appealed to the BRB contending that subsequent to the ALJ's decision and order on remand conferring benefits, the United States Supreme Court overruled the Stapleton holding in Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987), wherein the Court supplanted the Stapleton requirement of invocation of the interim presumption upon the presence of a single item of qualifying evidence with the rule that invocation pursuant to any subpart of section 727.203(a) had to be invoked by a preponderance of the evidence. The Director further alleged that the ALJ in his original decision denying benefits properly weighed the evidence of record in accordance with Mullins and, therefore, the initial order denying benefits should be reinstated.

Relying upon the Mullins decision, the BRB concluded that the ALJ's finding of invocation on remand pursuant to Stapleton was improper. Rather than remanding for reconsideration in light of Mullins, however, the BRB held that while the ALJ's finding of invocation on remand was not supported by substantial evidence, the ALJ's initial weighing of the evidence of record on February 5, 1985, pursuant to section 727.203(a) (1)-(a) (4) wherein benefits were denied, comported with the standard promulgated by the Supreme Court in Mullins. Accordingly, on August 24, 1989, the BRB reinstated the ALJ's initial decision and order denying benefits under Part 727. Petitioner's timely appeal ensued.

Petitioner's initial contention on appeal is that in the event the retroactive application of Mullins is upheld, the BRB erred by not remanding petitioner's case to the ALJ for reconsideration pursuant to the Mullins "preponderance of the evidence" standard. Petitioner maintains that because Mullins was decided after the ALJ hearing on October 4, 1984 as well as after the ALJ's decision and order denying benefits dated February 5, 1985, he was denied the opportunity to offer proof directed at the post-Mullins standard and thus, due process requires the remand of his claim for the development of additional medical evidence directed at the "new" (Mullins) standard for invoking the interim presumption. We disagree.

Procedural due process requires that all parties be given reasonable notice of the pendency of an action and an opportunity for a hearing where their objections can be presented. Jordan v. Benefits Review Bd., 876 F.2d 1455, 1459 (11th Cir. 1989). See also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Where the ALJ or BRB has erred by reviewing evidence under an incorrect legal standard, remand of the case for additional proceedings is normally appropriate. See Tackett v. Benefits Review Bd., 806 F.2d 640 (6th Cir. 1988); Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th Cir. 1990). Remand is especially appropriate where the applicable law has changed in the course of legal proceedings so as to enable both parties to present proof directed at the "new" legal standard. Id. In the case at bar, however, we do not find that due process mandates remanding petitioner's claim to the ALJ.

In Tackett v. Benefits Review Bd., 806 F.2d 640 (6th Cir. 1988), we held that where a petitioner had no reason to provide medical evidence on a determinative issue which arose as a result of a change in the applicable law after the case was first considered by the ALJ, remand was necessary for the submission of additional medical evidence directed at the "new" determinative issue.³  In the case at bar, we find that petitioner had reason to provide medical evidence on the determinative issue of an x-ray establishing the existence of pneumoconiosis pursuant to section 727.203(a) (1) at the time of his initial hearing before the ALJ in 1984.

Petitioner's contention that at the time he filed for benefits he submitted evidence of pneumoconiosis which satisfied the burden of proof to invoke the interim presumption under the then prevailing interpretation of section 727.203(a) (1) through (a) (4) is misguided. While the x-ray evidence submitted by petitioner did suffice to invoke the interim presumption pursuant to Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986) (en banc), rev'd sub nom. Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987), Stapleton was not decided until February 26, 1986. At the time of petitioner's initial hearing before the ALJ on October 4, 1984, and at the time of the ALJ's initial decision and order denying benefits, the applicable law was the same as subsequently upheld in Mullins and thus contrary to Stapleton.

Prior to Stapleton, when petitioner's case was first argued before the ALJ in 1984 and ruled upon by the ALJ in 1985, the applicable law was settled that the interim presumption at 20 C.F.R. Sec. 727.203(a) (1) could only be invoked if the weight of the x-ray interpretations of record established the existence of pneumoconiosis by a preponderance of the evidence. See Lawson v. Secretary of Health and Human Services, 688 F.2d 436, 438 (6th Cir. 1982) ("When x-ray evidence is in conflict, it is for the Secretary to weigh the evidence to determine whether the x-rays establish pneumoconiosis."); Consolidated Coal Co. v. Sanati, 713 F.2d 480, 482 (4th Cir. 1983) (rev'd in part by Stapleton) (when there is conflicting evidence an administrative tribunal must "ascertain whether or not the petitioner has established the presence of the impairment by a preponderance of the evidence, and in so doing" consider and weigh all the evidence); Meadows v. Westmoreland Coal Co., 6 Black Lung Rep. (MB) 1-773 (Ben.Rev.Bd.1984) (upholding ALJ's denial of invocation pursuant to section 727.203(a) (1) after weighing six conflicting x-ray readings); Justice v. Jewell Ridge Coal Corp., 3 Black Lung Rep. 1-547, 1-550 (Ben.Rev.Bd.1981) (ALJ must consider and weigh all the competent and relevant evidence bearing on the fact in question in determining whether to invoke the presumption set forth in Sec. 727.203(a) (1)). Consequently, when petitioner first argued before the ALJ in 1984, the applicable legal standard for invocation under section 727.203(a) (1) was the same standard ultimately upheld by the Supreme Court in Mullins in 1987.⁴  While Stapleton did expressly overrule Sanati insofar as the Sanati opinion held that one qualifying physician's opinion did not necessarily invoke the interim presumption, Stapleton, as previously noted, was not decided until after the initial hearing and decision by the ALJ denying benefits in 1985.

Thus, although the applicable legal standard changed during the course of the proceedings, unlike Tackett, petitioner's due process rights were not violated since petitioner was not precluded from presenting all relevant medical evidence at the initial hearing before the ALJ. In the case at bar, the applicable legal standard travelled a full circle beginning and ending at the same place, "preponderance of the evidence." The intervening aberration of the Stapleton holding does not bolster petitioner's due process claim since petitioner was afforded the opportunity and had every reason to present evidence directed at the legal standard ultimately adopted in Mullins at his initial hearing before the ALJ wherein benefits were denied. Since the interpretation of section 727.203(a) articulated by the Supreme Court in Mullins was the applicable standard in effect when petitioner's claim was first considered by the ALJ, petitioner's assertion that the BRB took his benefits away solely on a new interpretation of a regulation without giving him an opportunity to be heard is baseless.

Petitioner further maintains that if his claim were remanded pursuant to Mullins, the ALJ could award benefits based solely upon the one positive x-ray interpretation by a "B" reader. In support of his contention, petitioner cites language from Mullins that "a single item of qualifying evidence may be sufficient to invoke the presumption." Mullins, 484 U.S. at 156, 108 S. Ct. at 438 (emphasis added). However, Mullins further held that one item of qualifying evidence was not always sufficient to invoke the interim presumption. Id. at 157, 108 S. Ct. at 439.⁵ 

While the preponderance of the evidence standard envisioned by the Supreme Court in Mullins does not amount to a mere counting of positive versus negative x-ray interpretations, we find, as did the BRB, that given the five negative x-ray interpretations by board certified readers as well as the negative clinical examination, non-qualifying blood gas study, and negative ventilatory study, the ALJ's initial conclusion upon weighing the evidence that a preponderance of the evidence precluded invocation of the interim presumption was supported by substantial evidence. For the ALJ to reverse himself on remand would be wholly irrational in light of his original decision wherein he carefully weighed the evidence of record and denied invocation of the interim presumption. Accordingly, we find that the ALJ's 1985 decision clearly applied and satisfied the dictates of the subsequent Mullins decision.

As we agree with the BRB that the ALJ did not err in his initial weighing of the evidence of record prior to invocation pursuant to section 727.203(a) (1)-(a) (4), and that petitioner's due process rights were not violated since he was afforded an opportunity to present evidence pursuant to what was at the time and subsequently adjudicated the applicable evidentiary standard for invocation of the interim presumption, we will not disturb the BRB's reinstatement of the ALJ's initial decision denying benefits based upon petitioner's initial contention on appeal.

Petitioner's final contention on appeal is that due process requires that the evidentiary standard promulgated by the Supreme Court in Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987) not be applied retroactively and that the ALJ's 1987 decision awarding benefits made pursuant to Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986) be reinstated.

However, the law is settled that "a court must apply the law in effect at the time it renders its decision unless doing so results in manifest injustice or there is legislative history or a statutory directive to the contrary." Tackett v. Benefits Review Bd., 806 F.2d 640, 642 (6th Cir. 1986) (quoting Bradley v. School Board, 416 U.S. 696, 711, 94 S. Ct. 2006, 2016, 40 L. Ed. 2d 476 (1974)). Thus, absent "manifest injustice," the application of intervening case law in a black lung proceeding is appropriate.

Since we have found that petitioner was afforded the opportunity to present and did submit all relevant evidence in support of his claim, and that petitioner's claim was initially considered under the same legal standard as subsequently upheld in Mullins, we find no due process violation constituting "manifest injustice."

Accordingly, the August 24, 1989 decision and order of the BRB reinstating the February 8, 1985 decision and order of the ALJ denying petitioner's claim is affirmed.