RAG American Coal Company v. OWCP ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1653
RAG A MERICAN C OAL C OMPANY,
Petitioner,
v.
O FFICE OF W ORKERS’ C OMPENSATION P ROGRAMS,
Respondent,
and
JIMMIE D. B UCHANAN,
Intervening Respondent.
Petition for Review of an Order of
the Benefits Review Board.
No. 06-BLA-0967
A RGUED JANUARY 14, 2009— D ECIDED A UGUST 5, 2009
Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Jimmie D. Buchanan worked in
Indiana coal strip mines for 20 years, enduring the
constant exposure to dust customary for that line of work.
He now suffers from substantial pulmonary/respiratory
2 No. 08-1653
problems. He filed two claims for benefits under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-945. His first
claim was denied. On his second claim, he was awarded
benefits. RAG American Coal Company (RAG) petitions
for review of the order of the Benefits Review Board
(Board), affirming the award. RAG contends that res
judicata bars his second claim. We affirm.
I. Background
In 1993, Jimmie D. Buchanan filed an application for
black lung benefits. He claimed that he had lung disease
caused by inhalation of coal dust. He had worked in
coal mines for 20 years. He also smoked cigarettes for
36 years, averaging about one pack per day until cutting
back during his last year as a miner, quitting entirely
in 1994. In defending the claim, the employer contested
that Buchanan had pneumoconiosis, that he was totally
disabled, and that his disability was due to pneumoconio-
sis.1
On July 27, 1996, Administrative Law Judge (ALJ) J.
Michael O’Neill issued his decision and order, denying
benefits. He concluded that the record established that
Buchanan stopped working because of his back condition
1
AMAX Coal Company originally was identified as the
employer. As in most industries, coal mining has undergone
a series of mergers and acquisitions in recent years and the
employer is now identified as RAG American Coal Company.
We will refer to the employer as RAG in this opinion.
No. 08-1653 3
and he was totally disabled due to his back injury. He also
found that Buchanan had a pulmonary impairment
which precluded him from working. The ALJ determined
that Buchanan did not have pneumoconiosis, however. In
so doing, he gave greater weight to the opinions of
Drs. Peter Tuteur and Frank Taylor that Buchanan’s
emphysema and bronchitis were caused by cigarette
smoking than to the opinions of Drs. Dan Combs and
William Houser that exposure to coal mine dust was a
significant factor in Buchanan’s lung impairment. ALJ
O’Neill found that “[e]xposure to coal mine dust was
neither a sufficient nor necessary cause of [Buchanan’s]
pulmonary disability” and that “pneumoconiosis is not a
necessary cause of his disability.” He concluded: “[E]ven
if the claimant had never worked in surface coal mines . . . ,
he would be disabled today because of cigarette-smoke-
induced emphysema and bronchitis, together with
chronic back pain and somewhat limited range of mo-
tion.” The ALJ thus determined that Buchanan failed to
establish that he was totally disabled due to pneumoconio-
sis. On July 18, 1997, the Board affirmed the ALJ’s deci-
sion. Buchanan took no further action on his first claim.
In August 1998, Buchanan filed a second claim for
benefits. In defending the claim, RAG argued that Bu-
chanan was not totally disabled by pneumoconiosis. On
May 20, 2002, ALJ Rudolf L. Jansen issued his decision
and order, awarding benefits. He considered the evidence
developed after the Board’s decision on Buchanan’s first
claim to determine whether Buchanan had shown that
his condition had substantially worsened so as to entitle
him to benefits. This included ten additional x-rays with
4 No. 08-1653
numerous interpretations, two of which were positive
for pneumoconiosis; five additional pulmonary function
studies; and four additional arterial blood gas studies. It
also included a report of an examination of Buchanan
by internist Dr. Reynoldo Carandang from December 2,
1998; a consulting report and supplement by Dr. Robert
Cohen, dated April 28, 1999, and November 6, 2000,
respectively; a June 17, 1999 examination and opinion by
Dr. Jeff W. Selby; progress notes from Dr. Stephen Shoe-
maker, Buchanan’s family physician; hospital records
from 2000; several progress reports dated from 1999 to
October 2000, from Dr. Houser, Buchanan’s treating
pulmonologist; and consulting reports completed by Drs.
Gregory Fino and Tuteur, board-certified pulmonologists,
Dr. Joseph Renn, a pulmonary specialist, and Dr. David
Hinkamp, board-certified in preventative medicine and
occupational disease. Both Drs. Carandang and Houser
opined that Buchanan suffered from a pulmonary
disease that had arisen, in part, from his past coal dust
exposure. In contrast, Drs. Selby, Fino, Tuteur, and Renn
concluded that Buchanan’s disabling pulmonary impair-
ment was unrelated to his coal mine employment.
Giving greater weight to the opinions of Drs. Houser,
Carandang, and Cohen and less weight to the opinions of
Drs. Renn, Tuteur and Fino, ALJ Jansen found that Bu-
chanan had established the existence of pneumoconiosis,
thus showing a material change in his condition. The ALJ
assigned the greatest weight to Dr. Houser’s opinion
based on his specialty in pulmonology, his familiarity
with Buchanan’s pulmonary condition due to his treat-
ment of Buchanan since 1992, and the recency of his
No. 08-1653 5
examination and report. In addition, he explained that
Dr. Houser’s reports and Dr. Cohen’s opinions were well-
documented and well-reasoned. The ALJ weighed
Dr. Carandang’s opinion favorably, in part, because he
had examined Buchanan since the denial of his earlier
claim, and the ALJ found the opinions of Drs. Cohen,
Shoemaker, and Hinkamp supportive of Dr. Houser’s
diagnosis and conclusions.
The reports and opinions of Drs. Fino, Tuteur, and Renn
were assigned less weight for two reasons. First, they
relied on medical studies and literature which indicated
that pneumoconiosis seldom arose in an obstructive
disease and that in miners who were long-term smokers,
any obstructive disease resulted from only tobacco
smoke, not coal dust exposure. The ALJ found that this
view had been rejected by this court as contrary to the
prevailing view of the medical community and sub-
stantial weight of the medical and scientific literature,
citing Freeman United Coal Mining Co. v. Summers, 272
F.3d 473, 483 n.7 (7th Cir. 2001). The second reason for
giving these consultants’ opinions less weight was that
they were less familiar with Buchanan’s pulmonary
condition than Dr. Houser.
ALJ Jansen determined, based on Dr. Shoemaker’s
reports and opinions and Dr. Houser’s and Dr. Cohen’s
opinions, that Buchanan’s pulmonary condition had
progressively and substantially worsened over the last
four or five years. The ALJ relied, in part, on Dr. Shoe-
maker’s notations of Buchanan’s frequent, recent hospital-
izations, which showed he had several “acute” exacerba-
6 No. 08-1653
tions of his chronic pulmonary disease. ALJ Jansen
found that Buchanan had established total disability due
to pneumoconiosis and thus awarded him benefits com-
mencing August 1, 1998.
RAG petitioned the Board for review, and the Board
affirmed in part, vacated in part, and remanded. On
July 22, 2004, ALJ Jansen again issued an order awarding
benefits. RAG sought reconsideration. On reconsidera-
tion, ALJ Jansen reiterated that ALJ O’Neill had deter-
mined that the evidence failed to establish pneumoconiosis
and that Buchanan had demonstrated a material change
in condition by showing that he had pneumoconiosis. ALJ
Jansen also found a material change in Buchanan’s proof
of total disability, indicating that Buchanan’s respiratory
impairment had worsened in recent years. RAG appealed.
The Board affirmed in part, reversed in part, and re-
manded so the ALJ could reassess the medical opinions
of Drs. Fino and Tuteur.
On August 25, 2006, ALJ Jansen issued his decision and
order on remand, again awarding benefits. The ALJ
weighed the medical opinions, assigning less weight to
the opinions of Drs. Fino and Tuteur because he found
them not well-reasoned and in tension with the Depart-
ment of Labors’s (DOL) findings regarding coal dust
exposure and obstructive lung disease. ALJ Jansen
found that Buchanan had pneumoconiosis and had estab-
lished a material change in conditions. The ALJ also
found that Buchanan demonstrated that he was totally
disabled due to pneumoconiosis arising out of coal mine
employment. RAG appealed to the Board, which affirmed.
No. 08-1653 7
RAG moved for reconsideration; the motion was denied
on January 18, 2008, and RAG petitioned this court for
review.
II. Discussion
In challenging the award of benefits, RAG makes three
arguments. RAG first contends that Buchanan’s second
claim is barred by res judicata. RAG next challenges ALJ
Jansen’s finding that Buchanan established a “material
change in conditions.” And, third, RAG suggests that the
refusal to apply ordinary principles of finality denied it
due process of law. We review questions of law de novo.
Midland Coal Co. v. Dir., Office of Workers’ Comp. Programs,
358 F.3d 486, 489 (7th Cir. 2004). We review the ALJ’s
decision to determine if it is rational, supported by sub-
stantial evidence, and consistent with controlling law.
Consolidation Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 521 F.3d 723, 725 (7th Cir. 2008). In doing so,
we accept the ALJ’s factual findings if supported by
substantial evidence in the record as a whole. Id.Buchanan may avoid the res judicata effect of the denial
of his earlier claim, if he establishes “that there has been a
material change in conditions.” 20 C.F.R. § 725.309(c)
(1999);2 see also Peabody Coal Co. v. Spese, 117 F.3d 1001, 1007
(7th Cir. 1997) (en banc) (“By requiring denial of a second
2
Though § 725.309 has been revised, we refer to the version in
effect when Buchanan filed his second claim for benefits and
which applies to his claim.
8 No. 08-1653
application unless there has been a material change in
conditions, the regulation gives res judicata effect to the
first decision.”); Midland Coal, 358 F.3d at 489-90 (stating
that “traditional principles of res judicata do not bar a
subsequent application for black lung benefits where a
miner demonstrates a material change in at least one of
the conditions of entitlement”). To show a material
change, the claimant cannot merely present new evidence
regarding his condition at the time of the earlier denial.
Id. at 491; Spese, 117 F.3d at 1008. Rather, he “must
show that something capable of making a difference has
changed since the record closed on the first application.”
Spese, 117 F.3d at 1008. Thus, “[i]f the earlier denial
listed both a failure to show pneumoconiosis and a
failure to show total disability, the claimant can avoid
automatic denial of his claim on res judicata grounds
by showing a material change in either of those elements.”
Id. at 1009. Accordingly, traditional principles of res
judicata do not bar Buchanan’s second claim, as long as
he has demonstrated a material change in his condition.
That brings us to the next issue: whether Buchanan
established a material change in his condition. ALJ Jansen
found that he did. RAG challenges that finding. A claimant
can establish a material change by establishing either
(1) 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 (2) that “his disease has
progressed to the point of becoming totally disabling
although it was not at the time of the first application.” Id.
at 1107 (quoting Sahara Coal Co. v. Office of Workers’ Comp.
Programs, 946 F.2d 554, 556 (7th Cir. 1991)); see also Midland
No. 08-1653 9
Coal, 358 F.3d at 493. The ALJ’s finding of a material
change in condition is a factual determination that we
review only for substantial evidence. See Midland Coal,
358 F.3d at 493.
ALJ Jansen’s finding that Buchanan showed a material
change in his condition was supported by substantial
evidence in the record. The ALJ found that Buchanan
proved that he had pneumoconiosis. He also found that
Buchanan’s pulmonary disease had progressively and
substantially worsened since the denial of his first claim,
such that he established total disability due to pneumoco-
niosis.
The finding of pneumoconiosis was based on the well-
documented and well-reasoned medical opinions of
Dr. Houser, Buchanan’s treating pulmonologist,
Dr. Carandang, board certified in internal medicine, and
Dr. Cohen, board certified pulmonary specialist. Both
Drs. Carandang and Houser, who examined Buchanan
since the denial of his first claim, opined that Buchanan
suffered from a pulmonary disease, including pneumoconi-
osis, that had arisen, in part, from his past coal dust
exposure. Specifically, in November 2000, Dr. Houser
reviewed Buchanan’s medical records going back to
August 1998, including office visits, hospitalizations,
pulmonary function tests, and arterial blood gas studies.
Dr. Houser concluded that Buchanan had a disabling
respiratory impairment which included coal workers’
pneumoconiosis, category 1, chronic obstructive pulmo-
nary disease (severe), chronic bronchitis, and emphysema.
He also stated that Buchanan’s chest radiograph showed
10 No. 08-1653
category 1 pneumoconiosis and that his pneumoconiosis
was related to his coal mine employment. Similarly,
Dr. Carandang believed that Buchanan suffered from coal
workers’ pneumoconiosis and severe obstructive lung
disease caused by his tobacco use and coal mine employ-
ment. He also believed that Buchanan would be unable
to work in coal mine employment because of his im-
paired lung function. And Dr. Cohen, board certified in
pulmonology, gave a consulting opinion in which he
opined that Buchanan suffered from coal workers’ pneu-
moconiosis as well as severe chronic obstructive pulmo-
nary disease which resulted from both his coal dust
exposure and cigarette smoking. In Dr. Cohen’s judg-
ment, Buchanan did not have the pulmonary capacity to
perform his last coal mine job.
Both Dr. Houser’s and Dr. Shoemaker’s records
support a finding that Buchanan’s pulmonary disease
progressively worsened since the denial of his first claim.
In early 1999, Dr. Houser noted that Buchanan’s respira-
tory condition was “fairly stable” and “essentially un-
changed,” but in May 1999, he also noted Buchanan’s
complaints of dyspnea 3 at night. Then, in January 2000,
Dr. Houser noted that Buchanan was having “some
exacerbation of respiratory symptoms,” with “increased
cough and shortness of breath, plus some sputum produc-
3
Dyspnea is difficulty in breathing or shortness of
breath. MedicineNet.com, Definition of Dyspnea, http://www.
medterms.com/ script/main/art.asp?articlekey=3145 (last visited
July 17, 2009).
No. 08-1653 11
tion.” On February 13, 2000, Dr. Shoemaker admitted
Buchanan to the hospital for an “[a]cute exacerbation of
chronic obstructive pulmonary disease” and bronchopneu-
monia. Buchanan was experiencing shortness of breath
with wheezing and some crackles throughout his lungs.
His lungs were tight and he had poor air exchange. Bu-
chanan was given steroids, oxygen, and aerosol treat-
ments and was discharged one week later in an improved
condition. In early May 2000, Dr. Houser indicated that
Buchanan was having problems with increasing dyspnea,
that pulmonary function tests and a spirometry showed
“severe airway obstruction with no response to
bronchodilator administration” and that Buchanan’s FEV1
had decreased from 30% to 27% since November 1998.
The doctor recommended pulmonary rehabilitation,
including an inpatient program. On May 18, Dr. Shoe-
maker admitted Buchanan to the hospital for shortness of
breath and diagnosed him with pneumonia and acute
exacerbation of chronic obstructive pulmonary disease.
Buchanan was again treated with steroids and breathing
treatments. On May 29, 2000, Buchanan was admitted to an
inpatient pulmonary rehabilitation program. He was
discharged on June 6, 2000, in an improved condition.
Later that month, Dr. Houser observed that Buchanan
seemed to be doing “fairly well” and in October 2000,
noted that Buchanan said he was feeling better and had
improved since the rehab program. Nonetheless, at that
time, Buchanan’s chest exam showed diminished breath
sounds, a prolonged expiratory phase, and his oxygen
saturation on room air was only 90%.
Dr. Houser’s and Dr. Cohen’s opinions further sup-
port the conclusion that Buchanan’s pulmonary condi-
12 No. 08-1653
tion had worsened. Dr. Houser reviewed Buchanan’s
pulmonary function tests from 1997, 1998, and 2000, all
of which showed severe airway obstruction. He also
reviewed arterial blood gas studies from June 17, 1999, and
indicated that they showed “severe hypoxemia,” with a
PO2 of 54 on exercise and oxygen saturation of 87.6%,
below the 88% level which would qualify a person for
home oxygen under Medicare guidelines. According to
Dr. Houser, these values indicated that Buchanan needed
supplemental oxygen on exercise. Dr. Cohen noted that
1999 arterial blood gas tests showed a worsening of Bu-
chanan’s lowered gas exchange with exercise and that
those tests were stopped due to “extreme dyspnea.” He
also indicated that Buchanan developed hypoxemia
with exercise,4 which progressively worsened from Decem-
ber 1998 to June 1999, when he described severe
hypoxemia on exercise.
We note as well that in comparing Buchanan’s pulmo-
nary function test results from December 1998 to
December 1993, Dr. Carandang noted a “marked decrease”
in the DLCO—“the diffusing capacity of the lung
for carbon monoxide.” MedlinePlus, Medical Encyclo-
pedia, http://www.nlm.nih.gov/medlineplus/ency/article/
4
Hypoxemia is a low level of oxygen in the blood, the main
symptom of which is shortness of breath. An arterial blood test
measures blood oxygen. Normal values are between 95 and 100
percent at sea level. Values under 90 are low; severe hypoxemia
occurs when saturation is below 80 percent. MayoClinic.com,
Hypoxemia, http://www.mayoclinic.com /health/
hypoxemia/MY00219 (last visited July 17, 2009).
No. 08-1653 13
003854.htm (last visited July 17, 2009). He also observed a
decline in Buchanan’s arterial blood gas test results from
December 1993 to December 1998. And Dr. Hinkamp
agreed that “[t]here is no doubt that [Buchanan’s] gas
exchange abnormalities worsened over the years.” Dr.
Renn likewise noted that the arterial blood gas studies
showed a worsening of Buchanan’s condition from 1993
to August 1997 and December 1998. He also indicated a
decline in Buchanan’s condition demonstrated by pulmo-
nary function studies, from 1982 (normal), 1990 (showing
a “severe, significantly bronchoreversible obstructive
ventilatory defect”), and 1997 and 1998 (showing a
“very severe, significantly bronchoreversible obstructive
ventilatory defect”). ALJ Jansen did not specifically rely
on these opinions in finding that Buchanan’s
pulmonary condition had progressively worsened. We
mention them here only to show that the ALJ’s conclusion
is supported by even more evidence than he actually cited.
Furthermore, the record supports the finding that Bu-
chanan’s back condition, though once totally disabling,
had improved to the point at which it was no longer
the source of his total disability. Subsequent to the denial
of his first claim, Buchanan underwent two surgeries on
his back, after which his back condition improved. After
the second surgery, Dr. Houser indicated that most of
Buchanan’s physical limitations, except those related to
sitting, were due primarily to chronic obstructive pulmo-
nary disease and that there was no indication that his
treadmill exercise performance was affected by his back
problem. The record contains not a single medical
opinion that after the second surgery, Buchanan was
totally disabled by his back condition.
14 No. 08-1653
Buchanan has demonstrated that “something capable of
making a difference has changed since the record closed on
the first application,” Spese, 117 F.3d at 1008. That some-
thing is that he now has pneumoconiosis and his chronic
pulmonary disease has progressively and substantially
worsened to the point that he is now totally disabled
by pneumoconiosis.
None of RAG’s arguments lead us to a different con-
clusion. RAG claims that Buchanan was totally disabled
due to emphysema and bronchitis 5 when he litigated and
lost his first claim for benefits. However, in the first claim,
RAG maintained that Buchanan was totally disabled
because of his lower back condition and wasn’t disabled on
a pulmonary or respiratory basis. Buchanan and the
Director argue that RAG should be judicially estopped
from arguing that Buchanan was totally disabled by his
respiratory impairment at the time of his first claim. We
could hold that judicial estoppel bars any argument by
RAG that Buchanan was totally disabled by emphysema
and bronchitis at the time of his first claim. See Pakovich v.
Broadspire Servs., Inc., 535 F.3d 601, 606 n.2 (7th Cir. 2008)
(“[J]udicial estoppel provides that when a party prevails
on one legal or factual ground in a lawsuit, that party
cannot later repudiate that ground in subsequent litiga-
tion based on the underlying facts.” (quotation omitted,
emphasis in Pakovich)). RAG did argue in Buchanan’s
5
RAG uses COPD (chronic obstructive pulmonary disease),
emphysema and bronchitis, and respiratory disease some-
what interchangeably.
No. 08-1653 15
first claim that he was not totally disabled due to his
pulmonary/respiratory impairment—and ALJ O’Neill
agreed, finding him totally disabled due to his back injury.
But RAG’s res judicata argument really rests on its view
that Buchanan should not be allowed to relitigate the cause
of his pulmonary/respiratory impairment. See, e.g., Pet’r’s
Br. at 15 (“This appeal seeks to restore principles of finality
as a bar to a successive black lung claim where the
dispositive issue raised in the litigation—the source of a
claimant’s pulmonary or respiratory impairment—is not
subject to change and has already been adjudicated . . . .”).
Whether or not Buchanan was totally disabled due to a
pulmonary/respiratory impairment at the time of his
first claim is somewhat beside the point of RAG’s argu-
ment here. Even if judicial estoppel were applied, Bu-
chanan need not rely on this bar to prevail given the
substantial evidence of a material change in his condi-
tion, including that he had developed pneumoconiosis,
which ALJ O’Neill found Buchanan had not established
in deciding the first claim.
As RAG asserts, ALJ O’Neill concluded that Buchanan’s
emphysema and bronchitis were caused solely by
cigarette smoking, not coal dust exposure. RAG argues
that Buchanan was allowed to relitigate the cause of his
emphysema and bronchitis. This leads right into RAG’s
sideswipe at the conclusion (both the DOL’s and ours) that
pneumoconiosis is progressive and latent. See Zeigler Coal
Co. v. Office of Workers’ Comp. Programs, 490 F.3d 609, 618-19
(7th Cir. 2007) (“We previously have held that both the
latency and progressivity of coal workers’ pneumoconiosis
16 No. 08-1653
are legislative facts.”); Spese, 117 F.3d at 1010 (stating that
“the question whether simple pneumoconiosis can prog-
ress in the absence of further exposure to coal dust is
a question of legislative fact” and noting that the
Benefits Review Board found “it has long been held that
pneumoconiosis is a progressive and irreversible disease”
(quotation omitted)). RAG gives us no good reason
to revisit that view here.
We note, however, that a report of the Surgeon General
indicates that “simple” pneumoconiosis “does not progress
in the absence of further exposure.” Surgeon General, U.S.
Dep’t of Health & Human Servs., The Health Conse-
quences of Smoking: Cancer and Chronic Lung Disease in
the Workplace 294 (1985). For support, the report cites
articles from 1961, 1955, and 1974. On the other hand, in
support of its conclusion that pneumoconiosis is progres-
sive, the DOL cites numerous authorities created after
1985. See Regulations Implementing the Federal Coal Mine
Health and Safety Act of 1969, as amended, 65 Fed. Reg.
79920, 79971 (Dec. 20, 2000); 64 Fed. Reg. 54966,
54978-79 (Oct. 8, 1999); 62 Fed. Reg. 3338, 3343-44 (Jan. 22,
1997). Obviously, the Surgeon General could not have
considered these more recent authorities back in 1985.
Besides, none of the enumerated “summary and conclu-
sions” in the Surgeon General’s report addresses whether
pneumoconiosis is latent or progressive. RAG argues that
the 1985 report is not outdated, directing us to a more
recent report in which the Surgeon General updated the
conclusions reached in prior reports. Ctrs for Disease
Control & Prevention, U.S. Dep’t of Health & Human
Servs., The Health Consequences of Smoking: A Report of
No. 08-1653 17
the Surgeon General (2004), http://www.cdc.gov/tobacco/
data_statistics/sgr/2004/index.htm. None of the conclusions
from the 1985 report summarized in the 2004 report
concern the latency or progressivity of pneumoconiosis,
however. See id. at 465-66.
The fact that pneumoconiosis may be progressive and
latent justifies allowing a subsequent claim even
without additional coal dust exposure since the denial of
the earlier claim. Regulations Implementing the Federal
Coal Mine Health and Safety Act of 1969, as amended, 62
Fed. Reg. 3338, 3343-44 (Jan. 22, 1997). Because pneumoco-
niosis can be progressive and latent, ALJ Jansen’s deter-
mination that Buchanan’s pneumoconiosis was caused in
part by coal dust exposure did not necessarily revisit the
earlier determination of the cause of Buchanan’s pulmo-
nary impairment. Because ALJ O’Neill found that Bu-
chanan did not have pneumoconiosis, he did not decide
what caused the alleged pneumoconiosis. Thus, Bu-
chanan’s second claim did not seek to relitigate the
cause of his pneumoconiosis.
RAG’s assertion that ALJ Jansen’s decision was not based
on a change in Buchanan’s condition, but merely reflects
disagreement with ALJ O’Neill’s decision concerning
the source of Buchanan’s lung disease is not supported by
the record. RAG identifies Drs. Houser, Cohen, Hinkamp,
and Carandang as having opinions about Buchanan’s
lung disease that did not change over time. It is not
surprising that the doctors who believed that Buchanan’s
lung disease was due to coal dust exposure in the first
claim still believed that it was caused by coal dust expo-
18 No. 08-1653
sure in the second claim. But this does not require that
ALJ Jansen reject their opinions. See Midland Coal, 358
F.3d at 493 (stating that the physician’s opinion that
claimant had some degree of pneumoconiosis all along
was not necessarily dispositive where there was sub-
stantial evidence to show a material change in the total
disability element).
In Spese, we clarified that a claimant need not negate
every alternative ground on which an earlier denial was
based. 117 F.3d at 1008. This, we said, was “consistent
with general principles of issue preclusion, under which
holdings in the alternative, either of which would inde-
pendently be sufficient to support a result, are not con-
clusive in subsequent litigation with respect to either
issue standing alone.” Id.; see also Midland Coal, 358 F.3d at
493; Regulations Implementing the Federal Coal Mine
Health and Safety Act of 1969, as amended, 65 Fed. Reg.
79920, 79973 (Dec. 20, 2000) (“Where [a] finding was not
essential to the original denial of benefits, because the
ALJ ultimately denied benefits on another basis, or used
alternative bases, issue preclusion would not prevent
a second factfinder from making a different finding,
based on his independent weighing of the evidence, in
connection with an additional claim.”). ALJ O’Neill
denied Buchanan’s earlier claim both because he found
Buchanan had not shown pneumoconiosis and because he
found that Buchanan was not totally disabled due to
pneumoconiosis. Because ALJ O’Neill’s denial was based
on these alternative holdings, neither is conclusive in
Buchanan’s second claim with respect to the other
standing alone. Thus, ALJ Jansen could, consistent with
No. 08-1653 19
principles of issue preclusion, independently consider and
weigh the opinions of Drs. Houser, Cohen, Hinkamp, and
Carandang to determine such matters as the cause of
Buchanan’s pulmonary condition, whether he has
shown pneumoconiosis, and whether he is now totally
disabled due to pneumoconiosis.
And ALJ Jansen did consider and weigh the medical
opinions. As we have said, “weighing conflicting medical
evidence is precisely the function of the ALJ as fact-finder.”
Consolidation Coal Co., 521 F.3d at 726 (quotation omitted).
ALJ Jansen gave greater weight to the opinions of Drs.
Houser, Carandang, and Cohen and less weight to the
opinions of Drs. Renn, Tuteur and Fino, and he gave
good reasons for doing so. It is not up to us to reweigh
the medical evidence. And ALJ Jansen had medical find-
ings subsequent to the earlier denial to consider along
with the prior medical history. We are asked to decide
whether the ALJ’s decision is supported by substantial
evidence in the record. Having considered the record,
we conclude that ALJ Jansen’s determination that Bu-
chanan has shown a material change in his condition is
supported by substantial evidence.6
Having decided that the ALJ’s decision regarding a
material change in conditions is supported by substantial
evidence, we move on to consider Buchanan’s entitlement
6
RAG’s claim that the refusal to apply ordinary principles of
finality denies it due process of law is nothing more than a
variation of its res judicata argument which we have already
addressed.
20 No. 08-1653
to black lung benefits. In addition to demonstrating a
material change in conditions, Buchanan must also estab-
lish three elements to prove entitlement to benefits: that (1)
he is totally disabled (2) by pneumoconiosis (3) arising at
least in part out of coal mine employment. Id. at 725. RAG
has not challenged ALJ Jansen’s findings that Buchanan
proved these elements. Therefore, it waived any challenge
to these findings. Capitol Indem. Corp. v. Elston Self Serv.
Wholesale Groceries, Inc., 559 F.3d 616, 619 (7th Cir. 2009)
(failure to develop argument to dispute finding made
below results in waiver of argument on appeal).
Even if RAG had challenged these findings, its efforts
would fail because these findings are supported by sub-
stantial evidence in the record as a whole. The opinions of
Drs. Houser, Carandang, Cohen, and Shoemaker sup-
port ALJ Jansen’s finding that Buchanan is totally
disabled by pneumoconiosis caused at least in part by
coal mine employment. While there are other medical
opinions that differ, ALJ Jansen gave a reasoned explana-
tion for crediting the opinions that he did. We see no
reason to disturb his weighing of the evidence.
III.
The decision awarding benefits is AFFIRMED.
8-5-09