Grundy Mining v. Flynn

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Grundy Mining Co. v. Flynn, et al. No. 01-3111

ELECTRONIC CITATION: 2003 FED App. 0454P (6th Cir.)

File Name: 03a0454p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Ronald E. Gilbertson, BELL, BOYD & LLOYD,

FOR THE SIXTH CIRCUIT Washington, D.C., for Petitioner. Mary Forrest-Doyle,

_________________ UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents. ON BRIEF: Ronald E.

GRUNDY MINING COMPANY , X Gilbertson, BELL, BOYD & LLOYD, Washington, D.C., for

Petitioner, - Petitioner. Christian P. Barber, Edward Waldman, UNITED

- STATES DEPARTMENT OF LABOR, Washington, D.C.,

- No. 01-3111 for Respondents.

v. -

> ROSEN, D. J., delivered the opinion of the court, in which

, GILMAN, J., joined. MOORE, J. (pp. 30-38), delivered a

DOUGLA S W. FLYNN and -

DIRECTOR, OFFICE OF separate opinion concurring in the result only.

-

WORKERS ’ COMPENSATION - _________________

PROGRAMS, UNITED STATES -

DEPARTMENT OF LABOR, - OPINION

Respondents. - _________________

-

N ROSEN, District Judge.

On Petition for Review of an Order of the I. INTRODUCTION

Benefits Review Board,

United States Department of Labor. This action for coal miner’s black lung benefits arises under

No. 99-0386 BLA. Title IV of the Federal Coal Mine Health and Safety Act of

1969, as amended, 30 U.S.C. §§ 901-945 (“Black Lung

Argued: August 6, 2002 Benefits Act” or “BLBA”). The petitioner/employer, Grundy

Mining Company, appeals from a final order of the United

Decided and Filed: December 23, 2003 States Department of Labor (“DOL”) Benefits Review Board

(“Board” or “BRB”) granting benefits to respondent/claimant

Before: MOORE and GILMAN, Circuit Judges; ROSEN, Douglas W. Flynn. The respondent Director of the Office of

District Judge.* Workers’ Compensation Programs of the DOL (“Director”)

has also been named as a party in interest.

This case has a long and involved history. Mr. Flynn filed

*

The Honorable Gerald E. Rosen, United States District Judge for the his first claim for black lung benefits in 1970, while he was

Eastern District of Michigan, sitting by designation. still working in the coal mines. The claim was finally denied

1

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in 1981 because Flynn failed to prove that he was totally II. FACTUAL AND PROCEDURAL BACKGROUND

disabled due to the pulmonary ailment pneumoconiosis. Had

Flynn been entitled to benefits at that time, responsibility for A. The Claimant’s Coal Mine Employment and Medical

payment would have been assumed by the Black Lung History

Disability Trust Fund (“Trust Fund”).

Claimant Douglas W. Flynn was born in May 1913,

Mr. Flynn filed another claim for benefits in 1984, a month completed eighth grade, and by 1932 was working in the

after retiring from the coal company. Pursuant to 20 C.F.R. Tennessee coal mines. His career in the mines spanned more

§ 725.309 (1999), this claim was considered a “duplicate.” In than 50 years, ending in 1984. For approximately 20 years

order to escape the res judicata effect of his earlier claim, early in his career, he worked in the mines as a maintenance

Flynn had to demonstrate a “material change in conditions” man. During the latter part of his career, Flynn worked as a

since the prior claim’s denial. Having surmounted this light and utility man, with his responsibilities including

threshold obstacle, he then had to prevail on the merits. The delivery of supplies to various areas of the mine and tending

present “duplicate” claim has been back and forth between the to the electric lamps used by the miners. Although his work

Administrative Law Judge (“ALJ”) and the Board four times. station at that time was at the entrance to the mine, he

On appeal to this Court, three questions remain: (1) Did Mr. remained exposed to coal dust.

Flynn establish a “material change” under the governing legal

standard? (2) Who, as between Grundy Mining and the Trust Mr. Flynn first applied for black lung benefits in November

Fund, should bear responsibility for paying any award of 1970, claiming that he was disabled by virtue of breathing

benefits? and, (3) Does substantial evidence support the difficulties. He was engaged in coal mine employment at the

ALJ’s finding that Flynn’s total disability was due to time, and remained so employed in 1981 when his first claim

pneumoconiosis? ultimately was denied. Flynn filed a duplicate claim in March

1984, a month after retiring (at age seventy) from the coal

In the administrative proceedings, the Board held that Mr. company. It is this 1984 claim that is at issue here.

Flynn had properly established a “material change” and total

disability due to pneumoconiosis. The Board acknowledged Two medical opinions of record, both by Dr. Martin

some idiosyncrasies in the examining doctor’s report, yet Fritzhand, are relevant to the issues before us. First, upon

deferred to the ALJ’s judgment in weighing the evidence. examining Mr. Flynn on behalf of the DOL on July 26, 1980,

The Board further held that Grundy Mining must assume in connection with the miner’s first claim, Dr. Fritzhand

responsibility for the payment of benefits since Flynn’s 1984 reported a pulmonary function study which was non-

claim did not meet the statutory requirements for transfer to qualifying,1 as set forth in Table 1 below.

the Trust Fund. For the reasons set forth below, we affirm the

Board’s decision on each of these points.

1

A pulmonary function study which “qualifies” to demonstrate total

disability under 20 C.F.R. § 718.204(b)(2)(i) is one in which the FEV 1

and either the MVV or FVC meet or fall below the table values at

Appendix B of 20 C.F.R. Part 718 for the miner’s height, age, and gender,

or in which the ratio of the FEV 1 to FVC is 55 p ercent or less.

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Table 1: 1980 Pulmonary Function Study Dr. Fritzhand reported at that time that Flynn could

“ambulate on level terrain no more than 200 feet without

Forced Forced Maximum FEV 1/FVC associated shortness of breath,” and that this “this symptom

Expiratory Vital Voluntary increase[d] upon climbing stairs or walking up grades.” (J.A.

Vo lume in Cap acity Ventilation at 135.) The doctor further stated that Flynn was “unable to

One mow a lawn without associated dyspnea.” Id. When asked to

Second (“FVC”) (“MVV ”)

“describe and explain limitations . . . that may be due to

(“FEV 1”) pulmonary disease,” Dr. Fritzhand opined that Flynn could do

“mild activity at best without ass[ociated] s[hortness] o[f]

Qualifying # 2.51 # 3.2 # 100 # 0.55 b[reath].” (J.A. at 133.) Dr. Fritzhand diagnosed chronic

Standard obstructive pulmonary disease related to coal mine

Flynn’s 3.3 4.3 117 0.77

employment, as well as hypertension.

Actual

Result Four years later, and several months after he ceased coal

mine work, Mr. Flynn again was examined by Dr. Fritzhand

Dr. Fritzhand further reported an arterial blood gas study on on behalf of the DOL, this time in connection with the present

that occasion which was non-qualifying as well,2 as shown in claim. In a report dated June 16, 1984, Dr. Fritzhand noted

Table 2 below. another non-qualifying pulmonary function study, as well as

another non-qualifying blood gas study. See Tables 3 and 4

Table 2: 1980 Blood Gas Study below.

Table 3: 1984 Pulmonary Function Study

pCO2 pO2

Qualifying # 62 FEV 1 FVC MVV FEV 1/FVC

Standard Qualifying # 2.35 # 3.02 # 94 # 0.55

Standard

(at pCO2 = 37.5)

Flynn’s 3.3 4.2 67.2 0.79

Flynn’s Actual 37.5 80.0 Actual

Result Resu lt

2

A blo od gas study which “q ualifies” to dem onstrate total disability

under 20 C .F.R. § 718.204(b)(2)(i) must have values at or below the table

values at Appendix C of 20 C.F.R. Part 718 for the altitude at which the

test was administered.

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Table 4: 1984 Blood Gas Study generally Director, OWCP v. Quarto Mining Co., 901 F.2d

532, 535 (6th Cir. 1990) (reviewing this statutory scheme).

pCO2 pO2

Following this second round of review, Mr. Flynn’s initial

Qualifying # 66 claim for black lung benefits was finally denied by the DOL’s

Standard district director on June 15, 1981. The district director

determined that Flynn had pneumoconiosis arising out of his

(at pCO2 = 33.9) coal mine employment, but denied the claim on the ground

that Flynn failed to establish his total disability as a result of

Flynn’s Actual 33.9 72.1 this disease.

Result

2. Flynn’s Second Claim for Black Lung Benefits

Following this examination, Dr. Fritzhand reported that Mr. Flynn subsequently filed the present claim on

Flynn could “ambulate on level terrain no more than 300 feet March 13, 1984. The district director denied the new claim

without associated shortness of breath,” and that “this but, at Flynn’s request, referred it for a formal hearing. A

symptom increase[d] upon climbing stairs or walking up lengthy administrative review process ensued, spanning well

grades.” (J.A. at169.) He also stated that Flynn was “unable over a decade, and culminating in the Benefits Review

to mow a lawn without associated dyspnea.” Id. When asked Board’s September 2000 decision which is now being

to “describe and explain limitations . . . that may be due to challenged on appeal. The following summarizes the rulings

pulmonary disease,” Dr. Fritzhand responded that Flynn was issued during the course of this protracted review process.

able to do “no more than sedentary activity.” (J.A. at 167.)

Dr. Fritzhand diagnosed ASHD (arteriosclerotic heart disease) ALJ I: ALJ V.M. McElroy heard the case and issued a

with atrial fibrillation, hypertension, and congestive heart July 20, 1987 Decision and Order (“D&O”) awarding

failure, as well as pneumoconiosis related to coal mine benefits. The ALJ did not address whether Mr. Flynn had

employment. established a “material change in conditions” since the denial

of his previous claim. He did, however, find Flynn totally

B. Procedural History disabled due to pneumoconiosis arising out of his fifty years

1. Flynn’s First Claim for Black Lung Benefits of coal mine employment.

Mr. Flynn’s initial claim for federal black lung benefits was BRB I: Grundy Mining appealed and, on January 31,

filed on November 21, 1970, and was originally denied by the 1989, the Board issued a D&O vacating the award and

Social Security Administration (“SSA”) on April 9, 1971. remanding the matter for further consideration. The Board

Flynn then filed an election card to request review of this found that ALJ McElroy had overlooked the “material

claim under the Black Lung Benefits Reform Act of 1977. As change” issue, but nevertheless held that Flynn had

a result of this filing, any liability would have transferred to established a material change as a matter of law under Spese

the DOL’s Trust Fund, had Flynn been entitled to benefits. v. Peabody Coal Co., 11 BLR 1-174 (Ben. Rev. Bd. 1988).

See 30 U.S.C. § 932(c),(j)(3); 20 C.F.R. § 725.496(d). See The Board remanded, however, for further consideration on

the merits of benefits entitlement.

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 9 10 Grundy Mining Co. v. Flynn, et al. No. 01-3111

ALJ II: On remand, ALJ McElroy again awarded benefits, pneumoconiosis is the only pulmonary disability that Dr.

this time in a D&O dated April 29, 1991. However, the ALJ Fritzhand included in his 1984 medical report.” (Id.)

failed to address Grundy Mining’s motion to dismiss and

transfer liability to the Trust Fund. BRB III: The Board affirmed the award of benefits in a

D&O dated July 27, 1995. In so holding, the Board first

BRB II: Grundy Mining again appealed. On October 4, addressed the proper standard for establishing a “material

1993, before the Board could issue a decision, Mr. Flynn change in conditions.” In its initial decision, the Board held

died, and his widow, Gussie Flynn, pursued the claim on his that Flynn had established a “material change” pursuant to the

behalf. On April 4, 1994, the Board once again vacated the then-prevailing Spese standard. In Sharondale Corp. v. Ross,

ALJ’s findings on the merits of entitlement and remanded for 42 F.3d 993, 997 (6th Cir. 1994), however, this Circuit

further consideration. In so ruling, however, the Board re- rejected the Spese standard. Consequently, the Board now

affirmed its earlier holding of “material change,” and also held that a “material change” consistent with Sharondale

rejected Grundy Mining’s transfer argument on the ground would be established if it could affirm ALJ Campbell’s

that only the 1984 claim — which did not qualify for transfer finding that Dr. Fritzhand’s 1984 opinion established total

— remained open. disability.

ALJ III: On January 30, 1995, ALJ Campbell issued a Next, in affirming this finding, the Board explained that the

D&O on remand reinstating the award of benefits. First, the ALJ permissibly found the doctor’s opinion sufficient to

ALJ found that pneumoconiosis had been established on the establish total disability, since this finding was based on a

basis of both the x-ray evidence and the medical opinions. comparison of Dr. Fritzhand’s 1984 assessment limiting

Second, he found that Dr. Fritzhand’s 1984 opinion (that Flynn to sedentary activity with the exertional requirements

Flynn could do no more than sedentary activity) established of Flynn’s last coal mine employment. The Board further

total disability since Flynn’s last coal mine employment was held that ALJ Campbell acted within his discretion in

incompatible with this sedentary restriction. The ALJ went determining that Dr. Fritzhand’s medical report outweighed

on to explain that Dr. Fritzhand’s 1984 opinion outweighed the non-qualifying test results.

the non-qualifying pulmonary function and blood gas studies

because such results “are not self explanatory, and no Proceeding to the issue of pneumoconiosis, the Board

physician has used them to support a conclusion that upheld the ALJ’s determination that Dr. Fritzhand’s 1984

Claimant is not disabled due to pneumoconiosis.” (J.A. at opinion was documented and reasoned. Because there were

49.) no contrary medical opinions of record, the Board affirmed

ALJ Campbell’s finding of pneumoconiosis. Finally, while

Finally, regarding disability causation, ALJ Campbell noted the Board recognized that Dr. Fritzhand had diagnosed heart

that Dr. Fritzhand had diagnosed both cardiac and pulmonary disease as well as coal mine employment-related

conditions in his 1984 report. However, the ALJ pointed out pneumoconiosis, it held that the ALJ had acted within his

that, in this report, Dr. Fritzhand had explicitly stated that fact-finding discretion in determining that Flynn’s total

Flynn’s limitation to sedentary activity was attributable to disability was due to pneumoconiosis.

pulmonary disease. Consequently, ALJ Campbell reasoned

that “the limitation due to pulmonary disease that Dr. BRB IV: In response to Grundy Mining’s timely motion

Fritzhand listed must be related to pneumoconiosis because for reconsideration, the Board vacated the award and

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remanded in a D&O on Reconsideration dated July 14, 1997. ALJ Campbell next turned to the inquiry that the Board had

In so ruling, the Board construed the last portion of instructed him to perform on remand, and found that there

Sharondale as “requir[ing] that a miner show that there has were qualitative differences between Dr. Fritzhand’s two

been a worsening in his physical condition.” (J.A. at 30.) reports. Specifically, the ALJ observed that in 1984, Dr.

The Board therefore instructed the ALJ to address on remand Fritzhand conducted new pulmonary function and blood gas

whether there was any qualitative difference between Dr. studies which, though still not qualifying, reflected at least

Fritzhand’s two opinions: some declining values. Additionally, the ALJ noted that Dr.

Fritzhand had conducted a new physical examination in 1984,

[T]he administrative law judge, on remand, must explain resulting in a “sedentary” restriction that was more limiting

whether he merely disagreed with the previous than the “mild activity” finding in the doctor’s 1980 report.

characterization of Dr. Fritzhand’s 1980 medical report Thus, ALJ Campbell concluded that Flynn established a

[as not establishing disability] or whether claimant has “material change in conditions” consistent with the Board’s

shown, through the submission of Dr. Fritzhand’s 1984 directives.

medical opinion, a material change in his condition since

the earlier denial. BRB V: On September 27, 2000, the Board affirmed ALJ

Campbell’s finding of a “material change in conditions” and,

(J.A. at 32.) Thus, the sole purpose for remand was therefore, affirmed the award of benefits. In the process, the

reconsideration of the “material change” issue under the Board declined to revisit the issue of whether Dr. Fritzhand’s

Board’s revised reading of Sharondale. 1984 opinion was documented and reasoned based on the

law-of-the-case doctrine. Instead, the Board endorsed the

ALJ IV: On November 5, 1998, ALJ Campbell issued a ALJ’s reasoning vis-à-vis “material change” because Dr.

D&O on Remand (“ALJ IV”) awarding benefits. At the Fritzhand had conducted a new physical examination and new

outset, the ALJ opined that this case was factually similar to objective tests in 1984, and had downgraded Flynn’s physical

Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir. capacity from “mild activity” in 1980 to “sedentary activity”

1996) (en banc), cert. denied, 519 U.S. 1090 (1997), in which in 1984. The Board did note Dr. Fritzhand’s findings that

the Fourth Circuit addressed the meaning of the “material Flynn could walk 200 feet in 1980 and 300 feet in 1984, but

change” standard. The ALJ accepted Lisa Lee Mines as nonetheless held that substantial evidence supported the

persuasive authority, and described it as standing for the ALJ’s findings, and that this minor incongruity would not

proposition that “an administrative law judge cannot base a have required the ALJ to discredit the 1984 report.

finding of material change on his or her disagreement with the

factual underpinnings of a prior denial.” (J.A. at 23.) Rather, Grundy Mining timely sought reconsideration of the

in a material change analysis, the ALJ must accept as correct Board’s latest ruling, but the Board summarily denied this

both the prior denial and the facts necessary to sustain it. (Id.) request on December 20, 2000. This appeal followed.

Applying this standard, the ALJ reasoned that since Flynn’s

earlier claim was denied and Dr. Fritzhand’s 1980 opinion III. ANALYSIS

was part of the record considered on that occasion, it followed

that this opinion did not establish total disability. (Id. at 24.) Grundy Mining advances three challenges to the

administrative award of black lung benefits to Mr. Flynn.

First, it contends that the ALJ erred in finding a “material

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 13 14 Grundy Mining Co. v. Flynn, et al. No. 01-3111

change in conditions” since the denial of Flynn’s previous administrative proceedings now under review. When Mr.

claim. Next, Grundy Mining argues that the record is Flynn filed his most recent claim for black lung benefits in

insufficient to sustain the ALJ’s determination on the merits 1984, more than a year after his earlier claim was denied in

that Flynn was disabled due to pneumoconiosis. Finally, in 1981, the pertinent regulations in effect at the time required

the event that the award of benefits is sustained, Grundy that his subsequent claim be denied “on the grounds of the

Mining argues that the liability for this claim should be borne prior denial” unless “there has been a material change in

by the Black Lung Disability Trust Fund. We consider each conditions.” 20 C.F.R. § 725.309(c) (1999).3

of these contentions in turn.

We addressed this regulation at length in Sharondale Corp.

A. The ALJ Properly Found a “Material Change in v. Ross, supra. Upon surveying three possible constructions

Conditions” as Required to Avoid the Res Judicata of the “material change” requirement, including the meaning

Effect of the Denial of Mr. Flynn’s Previous Claim for adopted by the Board in Spese, supra, and the standard

Benefits. articulated by the Seventh Circuit in Sahara Coal Co. v.

OWCP, 946 F.2d 554 (7th Cir. 1991), we elected to defer to

1. Standard of Review the position advocated by the Director. See Sharondale, 42

F.3d at 997-98. Specifically, we characterized the Director’s

Whether the ALJ and the Board applied the appropriate “one-element” test as follows:

“material change” standard is a purely legal question that we

address de novo. See Director, OWCP v. Consolidation Coal [T]o assess whether a material change is established, the

Co., 884 F.2d 926, 929 (6th Cir. 1989). To the extent, ALJ must consider all of the new evidence, favorable and

however, that the ALJ’s determination of a “material change” unfavorable, and determine whether the miner has proven

rests upon factual findings, we must accept all such findings at least one of the elements of entitlement previously

that are “supported by substantial evidence in the record adjudicated against him. If the miner establishes the

considered as a whole.” Consolidation Coal, 884 F.2d at 929;

see also Peabody Coal Co. v. Hill, 123 F.3d 412, 415 (6th

Cir. 1997). More generally, in the course of our review, we

must “keep in mind that the Black Lung Benefits Act is 3

remedial in nature and must be liberally construed to include The Secretary of Labo r revised this regulation, along with many

the largest number of miners as benefit recipients.” Peabody others applicable to black lung claim adjudication, in final rules published

on December 2 0, 20 00. See 65 Fed. Reg. 79920-80107 (Dec. 20, 2000 ).

Coal,123 F.3d at 415 (internal quotations and citations Througho ut this opinion, we cite to the 1999 edition of Title 20, Code of

omitted). Federal Regulations in order to refer to the regulations in their earlier

form. All other referenc es will be to the current regulations.

2. The ALJ’s “Material Change” Inquiry Fully

Comported with the Standard Announced in this Although the revised regulations generally apply to pending claims,

Court’s Sharondale Decision. § 725.309 is one of the stated exceptions to this rule. See 20 C.F.R.

§ 725.2(c); 65 Fed. Reg. at 8005 7. The present version of this regulation

no longer includes the “material change” language, but instead requires

As starkly illustrated by our recitation of the lengthy that a claimant demon strate a change in “one of the applicable conditions

procedural history of this case, the “material change” standard of entitleme nt.” 20 C.F.R . § 725.309 (d). Because the current regulation

has engendered a great deal of debate during the course of the does not apply here, we need not determine the legal significance of this

revision.

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existence of that element, he has demonstrated, as a Finally, we considered whether the administrative decision

matter of law, a material change. under review properly found a “material change in

conditions” in accordance with the standard we had adopted:

Sharondale, 42 F.3d at 997-98.

Under the Director’s interpretation, the ALJ did not

In holding that the Director’s interpretation was entitled to properly analyze the facts. In assessing the second claim,

deference, we found that it struck a reasonable balance the ALJ concluded that because he found the new x-ray

between res judicata concerns and the remedial nature of the evidence established the existence of pneumoconiosis, a

BLBA: material change in [claimant] Ross’s condition had

occurred. The record shows, however, that both positive

Here, the Director’s interpretation is premised on the and negative x-ray interpretations by both “B” readers

notion that miners disabled by pneumoconiosis arising and “non-B” readers accompanied [Ross’s] 1979 claim

out of coal mine employment are entitled to benefits as well as the 1985 claim. The ALJ never discusses how

under the Act. It affords a miner a second chance to the later x-rays differ qualitatively from those submitted

show entitlement to benefits provided his condition has in 1985. Thus, we are unable to discern on the record

worsened. The interpretation implicitly recognizes that before us whether the ALJ merely disagreed with the

the doctrine of res judicata is not implicated by the previous characterization of the strength of the evidence

claimant’s physical condition or the extent of his or whether Ross indeed had shown the existence of a

disability at two different times. The entitlement is not material change in his condition since the earlier denial.

without limits, however; a miner whose condition has

worsened since the filing of an initial claim may be Sharondale, 42 F.3d at 999 (footnotes omitted).

eligible for benefits, but after a year has passed since the

denial of his claim, no min[e]r is entitled to benefits This last portion of Sharondale gives rise to the parties’

simply because his claim should have been granted. The principal point of contention in this case. Arguably, under a

Director’s interpretation takes into account the statutory strict reading of the “one-element” test endorsed by the

distinction between a request for modification of the Director, the ALJ’s “material change” inquiry is limited

Board’s decision and a request for benefits based on a solely to the new evidence of the claimant’s condition since

material change in conditions. Accordingly, we find the the denial of his prior claim, with the ALJ asking whether this

Director’s interpretation to be reasonable in light of the evidence establishes at least one of the elements of benefit

purpose of the statute and the language included in entitlement that previously were adjudicated against the

§ 725.309(d). claimant. There seemingly is no place in this inquiry for

comparison between the new evidence and the evidence

Sharondale, 42 F.3d at 998.4 produced in connection with the prior claim. Yet, in applying

the “one-element” standard to the facts in Sharondale, we

faulted the ALJ for failing to determine whether the

claimant’s new x-ray evidence “differ[ed] qualitatively” from

4

the facially similar x-ray evidence that accompanied the prior

Sha rondale addressed § 725 .309(d) (1999 ), while this case concerns claim. Sharondale, 42 F.3d at 999. On remand, we directed

§ 725.309(c) (1999). The operative language of these two su bsections is the ALJ to determine whether there was such a qualitative

identical, however.

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 17 18 Grundy Mining Co. v. Flynn, et al. No. 01-3111

difference, or whether the ALJ “merely disagreed” with the We are not free to pick and choose the portions of a prior

decision to deny the prior claim under a qualitatively similar published decision that we will follow and those that we will

evidentiary record. 42 F.3d at 999. disregard. Nor do we enjoy greater latitude in situations

where our precedents purportedly are tainted by analytical

In the present case, Grundy Mining reads Sharondale as flaws, as the Director contends is the case with Sharondale.

augmenting the basic “one-element” test in one important Rather, we are bound by the published opinions of previous

respect. Upon finding a change in at least one of the elements panels, and this rule encompasses all parts of a prior ruling

of benefit entitlement — the pure “one-element” inquiry — that are properly construed as holdings rather than dicta. See

the ALJ then must compare the evidence accompanying the Johnson v. City of Cincinnati, 310 F.3d 484, 493 (6th Cir.

miner’s two claims, in order to determine whether a 2002), cert. denied, 123 S. Ct. 2276 (2003). It can hardly be

qualitative difference in the record supports the change in contended that the final paragraph of Sharondale is dicta, as

outcome as to this element. The Director, on the other hand, this is the portion of the opinion in which the panel applied

argues that this reading of the last paragraph of Sharondale is the “material change” standard to the facts of the case before

irreconcilable with the immediately preceding portion of that it. Specifically, although the miner in that case had met the

decision, in which the panel held that the Director’s “one- strict terms of the “one-element” test — his initial claim was

element” standard was entitled to deference as a reasonable denied for failure to establish the presence of

exercise of agency policy-making authority. It is quite

unlikely, in the Director’s view, that the Sharondale Court

would critique the competing “material change” standards,

accurately summarize the Director’s proposed “one-element” Simp ly stated, there were no such distinct “1985” and “later” subsets of

test and its rationale, announce its adoption of the Director’s x-ray evidence accompa nying the miner’s duplicate claim in that case.

interpretation, and then, in the very next paragraph, disregard W ith the benefit of the underlying administrative decisio n, as placed into

the record by the Director, we learn that the x-rays accompanying the

the strict “one-element” standard and order the ALJ to miner’s duplicate claim in Sha rondale were taken in April and May of

examine the evidence underlying the denial of the original 1986 and J uly, Nove mbe r and December o f 1989. See Ross v.

claim as a prerequisite to finding a “material change.”5 Sharondale Corp., Case No. 86-BLA-4985, slip op. at 7 (July 25, 1990)

(unpublished). Thus, no x-ra ys were taken in 1985, and it follows that

none could have been subm itted that year versus “later.” Moreo ver, it is

5

not even true that the ALJ in Sha rondale uniformly favored the “later”

The Director also suggests, and J udge Moore likewise maintains in over the earlier x-rays accompanying the miner’s duplicate claim. Rather,

her conc urrence, that this interpre tative dilemma can be avoided by the ALJ considered all of the 1989 and one of the 1986 x-rays, with the

construing the last paragraph of Sha ronda le as not actually mandating a remaining 1986 x-ray given little weight because it was classified by two

comparison of the evidence accompanying a miner’s first and subsequent B-readers as unreadab le. No thing in Sha rondale suggests that the panel

claims. This argument rests largely on Sha rondale’s reference to “later meant to fault the ALJ for this analysis.

x-rays,” in contrast to “those submitted in 1985.” 42 F.3d at 999. In the

Director’s view, as further explicated in the concurrence, the Sha rondale In light of this rec ord, it seems evident that Sha rondale’s reference

panel meant only to fault the ALJ in that case for failing to p roperly to “198 5” x-ra ys is a typographical error. If we assume that the panel

address all of the x-rays submitted with the miner’s dup licate 1 985 claim . meant to refer to x-rays “submitted in 197 9,” the year of the miner’s

The ALJ erred, in other words, by favoring the “later x-rays” submitted initial claim, the last paragraph of Sha rondale make s coherent sense, with

in support of the duplicate claim over those x-rays “submitted in 198 5.” one sentenc e flowing logically into the next. In any event, as discussed

below, it is not necessary for us to venture a definitive pronouncement

This proposed reading of Sha rondale is dem onstrably inco rrect, about the meaning o f Sha rondale, because an intervening panel has

however, as shown by the very record the Director cites in support of it. already done so, and we are bound to follow this subsequent ruling.

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 19 20 Grundy Mining Co. v. Flynn, et al. No. 01-3111

pneumoconiosis, while the ALJ found that this condition was medical evidence were essentially the same, but in which

established through the evidence accompanying his there had been a legal error in the previous adjudication.

subsequent claim — the panel directed the ALJ to conduct a In Sharondale, we held that such situations were

further inquiry whether this change in outcome was correctable within the one-year time period after a denial,

attributable to qualitatively different evidence, as opposed to but that after this point, a claimant is not “entitled to

the ALJ’s different assessment of an essentially unchanged benefits simply because his claim should have been

evidentiary record. The import of Sharondale is clear, then granted.” 42 F.3d at 998. In order to maintain this

— miners whose claims are governed by this Circuit’s limitation in favor of finality, and in order to measure a

precedents must do more than satisfy the strict terms of the “change in conditions” the ALJ must compare the sum of

one-element test, but must also demonstrate that this change the new evidence with the sum of the earlier evidence on

rests upon a qualitatively different evidentiary record.6 which the denial of the claim had been premised. A

“material change” exists only if the new evidence both

Indeed, any lingering uncertainty about the proper reading establishes the element and is substantially more

of Sharondale surely has been dispelled in this Court’s supportive of claimant.

subsequent decision in Tennessee Consolidated Coal Co. v.

Kirk, 264 F.3d 602, 608-10 (6th Cir. 2001). There, as here, Kirk, 264 F.3d at 609 (footnote omitted).7

the employer contended that Sharondale mandates an inquiry

beyond the one-element standard, under which “the new Kirk further explains that the “change” referred to under the

medical evidence must be compared with the preexisting “material change” standard “is the actual difference between

medical evidence on the same issue” to determine if a the bodies of evidence presented at different times,” while

different outcome is warranted. Kirk, 264 F.3d at 608. We “the ‘materiality’ of the change is marked by the fact that this

agreed: difference has the capability of converting an issue

determined against the claimant into one determined in his

As the employer correctly points out, if the ALJ need favor.” 264 F.3d at 609 n.6. Applying this standard to the

only assess whether the new medical evidence proved an facts before it, the panel found that “[t]he ALJ in this case

element previously held to have been missing, it would made a legal error similar to that of the judge in Sharondale

allow the relitigation of cases in which the new and old

7

6

In light of this p lain langu age, which is accurately recounted in the

As the Director and the concurrence observe, two of our sister concurrence, we fail to discern the basis for Judge Mo ore’s disagreement

circuits have d eclined to end orse the final paragraph of Sha rondale, on with our reading of Kirk. The concurrence recognizes both that the

the ground that it apparently “req uire[s] consideration of the evidence Director’s strict one-element test does not call for a comparison of the

behind the earlier denial to determine whether it ‘differ[s] qualitatively’ evidence acco mpa nying a m iner’s prior and current claims, (see

from the new evidence.” Lisa Lee Mines, supra, 86 F .3d at 136 3 n.11; see Concurring Op . at 31), and that Kirk does require such a com pariso n, to

also Lovilia Coal Co . v. Harvey, 109 F.3d 4 45, 454 n.7 (8th Cir. 1997). ensure that the miner’s current claim is not accompanied by evidence

Yet, we fail to see how this supp orts the D irector’s position here. To the which is “identical” or “substantially similar” to that which accompanied

contrary, these Fourth and Eighth Circuit decisions seemingly share our the prior claim, (see id. at 36). Any such “substantially similar” inquiry

own view as to the pro per re ading of Sha rondale and the inquiry called plainly entails so m e comparison of the new and old evidence, as Judge

for under that ruling. These other circuits, of course, are free to disagree Mo ore concedes in her concurrence. This being so, we rely on the

with Sha rondale and adopt a different rule, but we enjoy no such latitude language of Sha rondale and Kirk to determine the precise nature and

here. extent of this comparison.

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 21 22 Grundy Mining Co. v. Flynn, et al. No. 01-3111

by failing to show that, on the element selected to show a sufficient to establish the existence of pneumoconiosis, but

material change, there was in fact a worsening of claimant’s that this claim was denied for failure to establish that this

condition.” 264 F.3d at 609. Kirk also cautions that the ALJ condition was totally disabling. (See J.A. at 96, 103.)

must accurately identify the elements of entitlement Accordingly, to satisfy the “material change” standard, there

adjudicated against the miner in the earlier claim denial, must be a qualitative difference in the evidence as it bears

because these elements are the proper focus of a subsequent upon this element of total disability.

“material change” inquiry.

In comparing the two bodies of evidence accompanying

In sum, our precedents have defined the relevant inquiry Mr. Flynn’s initial and subsequent claims, the ALJ focused

with sufficient clarity. In order to grant a subsequent claim almost exclusively on differences between the 1980 and 1984

for black lung benefits more than a year after an earlier claim reports of Dr. Martin Fritzhand, who examined Flynn on

has been denied, the ALJ must (i) determine, based upon all behalf of the DOL. In particular, Dr. Fritzhand opined in his

of the evidence accompanying the subsequent claim, that the 1980 report that Flynn could do “mild activity at best,” (J.A.

miner has proven at least one of the elements of benefit at 133), but his 1984 report stated that Flynn was limited to

entitlement previously adjudicated against him; (ii) find, “no more than sedentary activity,” (J.A. at 167.) The ALJ

based upon a comparison of the sum of the new evidence with found that Dr. Fritzhand’s downgraded assessment of Flynn’s

the sum of the evidence considered in connection with the condition was properly supported by a change in the objective

earlier claim denial, that the new evidence is sufficiently more medical data, where separate physical examinations,

supportive to warrant a change in outcome; and, finally pulmonary function studies, and arterial blood gas studies had

(iii) determine on the merits, based upon the entirety of the been conducted in the course of Flynn’s 1980 and 1984 visits

record, that the miner is entitled to benefits. Significantly, with this physician.

despite the Director’s protests against the second step of this

inquiry, the Board in this case correctly perceived the need for We find no basis to disturb the ALJ’s determination that

this evidentiary comparison under this Circuit’s precedents, qualitative differences exist between Dr. Fritzhand’s 1980 and

and remanded the matter to the ALJ for a third and final time 1984 reports, and that these differences support a changed

expressly for this purpose. Consequently, we discern no legal outcome on the issue of total disability. There is no question

error in the Board’s interpretation of the “material change” that Dr. Fritzhand’s two reports, on their face, reflect a degree

standard, and Grundy Mining does not contend otherwise. of worsening in Mr. Flynn’s condition between 1980 and

1984. Specifically, as observed by both the ALJ and the

It remains only to ask, therefore, whether the ALJ’s finding Board, Dr. Fritzhand found that Flynn was capable of mild

of a “qualitative difference” in the records accompanying Mr. activity in 1980, but only sedentary activity in 1984. In an

Flynn’s initial and subsequent claims is supported by earlier round of the administrative proceedings, the ALJ

substantial evidence. As explained in Kirk, any such found that “Claimant’s coal mine employment, although

difference must be sufficient to account for the change in one light-duty work, required more than sedentary activities,” so

or more of the elements of entitlement that were found that “Dr. Fritzhand’s conclusion [in 1984] that Claimant is

lacking in the adjudication of Mr. Flynn’s initial claim. The limited to sedentary activities establishes that Claimant was

specific element of entitlement at issue here is total disability totally disabled from his coal-mine employment.” (J.A. at

— the record indicates that the evidence submitted in 49.) Grundy Mining does not challenge this reasoning on

connection with Mr. Flynn’s initial claim was deemed appeal, but apparently concedes that a limitation to sedentary

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 23 24 Grundy Mining Co. v. Flynn, et al. No. 01-3111

activity, if supported by the evidence, would render Flynn requirement would transcend the finality concerns behind the

incapable of engaging in his usual coal mine work or “material change” standard, and would effectively penalize

comparable employment. Likewise, Grundy Mining does not miners whose initial claims were denied. This problem would

dispute that the sedentary limitation reported by Dr. be particularly acute in cases where the miner narrowly fails

Fritzhand, if credited and properly supported, bears directly to prove the conditions of benefit entitlement; under such

on the “total disability” element that was adjudicated against circumstances, it would be unreasonable to insist that the

Flynn in the denial of his earlier claim.8 miner’s new evidence accompanying a subsequent claim be

significantly and uniformly more supportive of an award of

Nonetheless, Grundy Mining contends that Dr. Fritzhand’s benefits, when even a modest change in the overall record

cursory statements regarding “mild” versus “sedentary” would suffice to establish all of the elements of entitlement.

activity cannot alone establish a qualitative difference All that we require is that the evidence be sufficiently

between the physician’s 1980 and 1984 reports, absent different to warrant a different outcome on one or more of

underlying medical evidence that would support Dr. these elements, so that we need not be concerned that two

Fritzhand’s downgraded assessment. The medical record, in factfinders are making different assessments of essentially the

Grundy Mining’s view, is virtually unchanged from 1980 to same record. As stated in Kirk, the change must be

1984. On both occasions, for example, Dr. Fritzhand reported “material,” meaning that it “has the capability of converting

non-qualifying pulmonary function and blood gas studies, and an issue determined against the claimant into one determined

his two physical examinations both revealed that Flynn’s in his favor.” 264 F.3d at 609 n.6.

“breath sounds [were] clear without rales, rhonchi, or

wheezes.” (J.A. at 135, 169.) Indeed, Grundy Mining notes Upon comparing the sum of the new evidence

that Dr. Fritzhand’s reports reflect improvement in one accompanying Flynn’s 1984 claim with the evidence

respect — the 1980 report states that Flynn could “ambulate submitted in connection with his prior claim, we find

on level terrain no more than 200 feet without associated sufficient differences to meet this standard and, more

shortness of breath,” (J.A. at 135), while this distance specifically, to support Dr. Fritzhand’s downgraded

increased to 300 feet in the 1984 report, (J.A. at 169). assessment from “mild” to “sedentary.” As the ALJ

observed, the studies performed in 1984, while still non-

The material change standard, however, does not demand qualifying, revealed some declining results in individual

that a claimant’s new evidence point uniformly and values. Moreover, Dr. Fritzhand did conduct a second

unmistakably toward a more favorable outcome. Such a physical examination of Flynn in 1984. While a detailed

explanation of the “sedentary” limitation might have been

preferable, we decline Grundy Mining’s invitation to assume

8 that Dr. Fritzhand’s choice of the words “mild” in 1980 and

It follows from these concessions that Flynn has satisfied the strict “sedentary” in 1984 lacks any significance or medical basis

“one-element” standard advocated by the Director, because the new

evidence establishes an element that was adjudicated against Flynn in the whatsoever, particularly where the employer has not produced

denial of his earlier claim. Yet, as explained above, more is required any evidence or opinion that Flynn was capable of more than

under this Court’s “material change” precedents. Unfortunately, the sedentary activity at the time of his second claim. Finally, as

Director’s brief on appeal is content to rest on the incorrect premise that further evidence of Flynn’s declining condition between 1980

Sha rondale mandates only a “one-element” inquiry; the Director and 1984, we note: (i) that he remained on the job when Dr.

expresses no view as to whether the ALJ properly performed the

additional comparison required under our Sha rondale and Kirk decisions. Fritzhand first examined him, but had ceased working at the

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 25 26 Grundy Mining Co. v. Flynn, et al. No. 01-3111

time of his 1984 physician visit;9 (ii) that Dr. Fritzhand notes, this causal link must be more than de minimis. Peabody

diagnosed pneumoconiosis following the second exam, in Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997). To

contrast to his 1980 diagnosis of chronic obstructive satisfy the “due to” requirement of the BLBA and its

pulmonary disease; and (iii) that the record includes implementing regulations, a claimant must demonstrate by a

statements from Flynn and his co-workers that he required preponderance of the evidence that pneumoconiosis is “more

assistance in performing his duties during his last few years than merely a speculative cause of his disability,” but instead

on the job, (see J.A. at 140, 142, 144). “is a contributing cause of some discernible consequence to

his totally disabling respiratory impairment.” Smith, 127 F.3d

We recognize that Mr. Flynn’s new evidence at 507. To the extent that the claimant relies on a physician’s

accompanying his 1984 claim does not all point decisively opinion to make this showing, such statements cannot be

toward a finding of benefit entitlement. Again, however, the vague or conclusory, but instead must reflect reasoned

bar is not so high for a miner to demonstrate a “material medical judgment. See Griffith v. Director, OWCP, 49 F.3d

change in conditions” under the governing regulations. 184, 186-87 (6th Cir. 1995).

Accordingly, we affirm the decision of the Board that Mr.

Flynn’s 1984 claim satisfies this standard. The parties here agree that Mr. Flynn’s showing of

causation rests upon Dr. Fritzhand’s 1984 report. Grundy

B. The ALJ’s Decision to Award Benefits Is Supported Mining contends that careful examination of this report

by Substantial Evidence. reveals no specific finding that pneumoconiosis contributed

in any way to Flynn’s disability. In support of this argument,

Having determined that Mr. Flynn had satisfied the the employer notes that Dr. Fritzhand diagnosed heart disease

“material change” standard, the ALJ turned to the merits of as well as pneumoconiosis, and that the detailed findings set

Flynn’s 1984 claim for black lung benefits, and found that the forth in his typewritten report provide no basis to discern

miner had established total disability due to pneumoconiosis. which of these conditions was the cause of Flynn’s disability.

We must affirm this decision provided that it rests upon Moreover, at least some of these findings seemingly suggest

substantial evidence in the record. See Consolidation Coal, that Flynn’s pulmonary condition might not be the cause of

884 F.2d at 929. In arguing that this decision should be set his disability — Dr. Fritzhand reported, for example, that

aside, Grundy Mining contends that the evidence is lacking as Flynn’s chest expansion was “normal,” that he did not “use

to a causal link between pneumoconiosis and total disability. accessory muscles of respiration,” and that his “breath sounds

We agree with the Board, however, that the ALJ’s resolution [were] clear without rales, rhonchi, or wheezes.” (J.A. at

of the causation issue reflects a proper exercise of his 169.)

factfinding authority.

These points, while certainly relevant to the causation

The claimant bears the burden of proving total disability inquiry, do not compel us to reject the ALJ’s findings on this

due to pneumoconiosis and, as Grundy Mining correctly factual issue. The ALJ expressly recognized that Dr.

Fritzhand’s 1984 opinion diagnosed heart disease as well as

pneumoconiosis. Nonetheless, in determining that the latter

9 was at least a contributing cause of Flynn’s disability, the

No tably, the fact that Flynn was still working counted against him ALJ observed that Dr. Fritzhand reported his “sedentary”

in the adjudicatio n of his initial claim, because it rebutted a presumption

of total d isability due to pneum oco niosis. (See J.A. at 9 8, 10 3, 10 8.)

finding in a section of the DOL medical history and

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 27 28 Grundy Mining Co. v. Flynn, et al. No. 01-3111

examination form in which the physician is asked to describe Board’s determination that Flynn is entitled to an award of

the limitations “due to pulmonary disease.” (J.A. at 167.) black lung benefits.

Accordingly, the ALJ reasoned that “the limitations due to

pulmonary disease that Dr. Fritzhand listed must be related to C. Grundy Mining Has Failed to Identify a Basis for

pneumoconiosis because pneumoconiosis is the only Imposing Liability on the Trust Fund.

pulmonary disability that Dr. Fritzhand included in his 1984

medical report.” (J.A. at 49.) The Board determined, and we Finally, in an appeal to notions of equity, Grundy Mining

agree, that the ALJ drew a reasonable inference that lies argues that the Black Lung Disability Trust Fund should bear

within his “broad discretion in evaluating the medical the liability for the award of benefits to Mr. Flynn. This is a

evidence.” (J.A. at 39.) “[A] reviewing court may not set purely legal issue that we address de novo. See Consolidation

aside an inference because it finds another more reasonable.” Coal, 884 F.2d at 929. This matter is readily resolved, as it

Moseley v. Peabody Coal Co., 769 F.2d 357, 360 (6th Cir. is inextricably linked with our disposition of the “material

1985). change” issue.

Nor can we accept Grundy Mining’s assertion that any Grundy Mining’s argument on this point rests upon the

causal connection identified by Dr. Fritzhand lacks support in premise that Dr. Fritzhand’s 1980 and 1984 reports are

the underlying medical evidence. As noted, pneumoconiosis “nearly identical,” (Petitioner Br. at 20), so that they both

need not be the sole cause of a miner’s disability, but only a must equally establish Mr. Flynn’s entitlement to black lung

contributing factor. Dr. Fritzhand’s 1980 and 1984 reports benefits. It follows, in Grundy Mining’s view, that Flynn

alike state that Mr. Flynn had a long history of shortness of must have been just as entitled to benefits under his initial

breath, that he could ambulate only a few hundred feet claim as under his present one. Yet, if benefits had been

without associated shortness of breath, that this symptom awarded under the initial claim, the liability would have been

increased upon climbing stairs or walking up grades, that he borne by the Trust Fund under the transfer provisions of the

could not mow a lawn without associated dyspnea, that he BLBA. See Quarto Mining, supra, 901 F.2d at 535

frequently awoke during the night with shortness of breath, (explaining the operation of this statutory scheme). From all

and that he had long suffered from a chronic cough. All of this, Grundy Mining reasons that it should not be made to pay

this provides support for a link between pulmonary disease for the presumably mistaken decision to deny Flynn’s initial

and disability. In addition, the ALJ noted the absence of any claim; rather, equity dictates that the Trust Fund should

medical opinion contradicting Dr. Fritzhand’s report or assume any liability.

otherwise suggesting that Flynn’s limitations might be due to

a condition other than pneumoconiosis. Liability properly transfers from the responsible operator to

the Trust Fund on those claims which were finally denied

Under this record, the assessment of Dr. Fritzhand’s report before the effective date of the Black Lung Benefits Reform

is “essentially a credibility matter” for the ALJ to resolve, and Act of 1977 (i.e., March 1, 1978), but then reopened and

it would lie beyond “our limited scope of review” to assign a approved under the 1977 Act. See Caney Creek Coal Co. v.

different weight or meaning to this medical opinion. Peabody Satterfield, 150 F.3d 568, 570-71 (6th Cir. 1998); Quarto

Coal Co. v. Groves, 277 F.3d 829, 836 (6th Cir. 2002), cert. Mining, 901 F.2d at 535. Mr. Flynn’s initial claim was

denied, 537 U.S. 1147 (2003). Consequently, we affirm the denied prior to, and then reopened under, the 1977 Act. As

such, liability for this earlier claim would have been

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 29 30 Grundy Mining Co. v. Flynn, et al. No. 01-3111

transferred to the Trust Fund had benefits been awarded. This ____________________

claim was denied, however, and this decision became final

upon the expiration of the allotted period for appealing or CONCURRENCE

seeking modification. Grundy Mining, therefore, must invoke ____________________

notions of equity in order to transfer liability to the Trust

Fund, because such a transfer obviously is not compelled as KAREN NELSON MOORE, Circuit Judge, concurring. I

a matter of law. As the Board correctly held, Flynn’s current concur in the result in this case that the award of black lung

claim, which was filed in 1984, does not meet the statutory benefits was proper. However, because I believe that the

criteria for transfer, as it was not (and, as a practical matter, majority’s interpretation of Sharondale Corp. v. Ross and

could not have been) denied before the effective date of the Tennessee Consolidated Coal Co. v. Kirk is erroneous, I write

1977 Act. separately.

Yet, Grundy Mining’s equitable appeal quickly founders on In Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir.

a flawed logical premise. In rejecting Grundy Mining’s 1994), we spent considerable time assessing the three

challenge on the “material change” issue, we have already alternate interpretations of the “material change” requirement.

held that there was a qualitative difference in the bodies of These included the meaning adopted by the Benefits Review

evidence accompanying Mr. Flynn’s initial and subsequent Board in Spese v. Peabody Coal Co., 11 BLR 1-174 (1988)

claims. Accordingly, there was nothing necessarily wrong, (that the “new evidence present a ‘reasonable possibility’ that

much less unfair, in the contrary results reached on Flynn’s it would change the prior administrative result”), the standard

two claims. Indeed, principles of finality flatly preclude us enunciated by the Seventh Circuit in Sahara Coal Co. v.

from questioning the correctness of the initial claim denial, Director, OWCP, 946 F.2d 554, 556 (7th Cir. 1991) (“[a]

and these same principles would defeat Mr. Flynn’s 1984 material change in condition means either that ‘the miner did

claim if, as Grundy Mining now contends, the evidence not have black lung disease at the time of the first application

accompanying the two claims was essentially unchanged. By but has since contracted it and become totally disabled by it,

holding that Flynn’s 1984 claim satisfied the “material or that his disease has progressed to the point of becoming

change” standard, and that benefits were properly awarded totally disabling although it was not at the time of the first

under this claim, we have already rejected the necessary application’”), and the position posited by the Director.

predicates to Grundy Mining’s plea for equitable relief.

Consequently, we affirm the Board’s decision on this point. Ultimately, we chose to defer to the Director’s

interpretation of “material change in conditions,” thereby

IV. CONCLUSION adopting what has come to be appropriately named the “one

element” test. Sharondale, 42 F.3d at 997-98. The test holds

For the reasons set forth above, we AFFIRM the decision that “to assess whether a material change is established, the

and order of the Benefits Review Board awarding black lung ALJ must consider all of the new evidence, favorable and

benefits to claimant Douglas W. Flynn. unfavorable, and determine whether the miner has proven at

least one of the elements of entitlement previously

adjudicated against him. If the miner establishes the

existence of that element, he has demonstrated, as a matter of

law, a material change. Then the ALJ must consider whether

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 31 32 Grundy Mining Co. v. Flynn, et al. No. 01-3111

all of the record evidence, including that submitted with the from the old evidence that supported the earlier claim. The

previous claims, supports a finding of entitlement to majority believes this to be the correct view based on the last

benefits.” Id. In accepting this test, we stressed that we did paragraph of Sharondale, in which it claims that “we faulted

not have unbridled discretion in “adopting one construction the ALJ for failing to determine whether the claimant’s new

over another,” and that we have “previously afforded due x-ray evidence ‘differ[ed] qualitatively’ from the facially

deference to the Director’s position in cases raising similar similar x-ray evidence that accompanied the prior claim.”

questions of regulatory interpretation.” Id. at 998 (quoting Op. at 16. Therefore, the majority chooses to interpret this

Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir. last paragraph of Sharondale as adding an additional

1993)) (internal quotation omitted). We went on to note that requirement to the “one element” test. However, this is not

because Congress failed to provide us with a definition of the correct interpretation of Sharondale.

“material change” as it is used in the BLBA, “the Secretary of

Labor’s interpretation of the provisions of the Black Lung Act First of all, the language of Sharondale does not support the

[wa]s entitled to deference,” as long as it was reasonable. Id. broad interpretation the majority wishes to assign to it. The

After thorough discourse, we concluded that it was case stands for the simple premise that after passage of one

“reasonable in light of the purpose of the statute and the year from the denial of a claim, claimants can no longer argue

language included in § 725.309(d).”1 Id. at 998. Now, they are entitled to benefits solely on the ground that their

however, the majority wishes to depart from this view and prior claims “should have been granted.” Sharondale,

restrict the test in a manner not at all endorsed by the 42 F.3d at 998. Instead, they must demonstrate a material

Director. change and provide new evidence establishing such change.

Id. at 997-98. In embracing the Director’s interpretation of

The majority concedes that “under a strict reading of the “material change,” we emphasized that “[t]he Director’s

‘one-element’ test endorsed by the Director, the ALJ’s interpretation takes into account the statutory distinction

‘material change’ inquiry is limited solely to the new evidence between a request for modification of the Board’s decision

of the claimant’s condition since the denial of his prior claim, and a request for benefits based on a material change in

with the ALJ asking whether this evidence establishes at least condition.” Id. at 998. Outside of this, Sharondale does not

one of the elements of benefit entitlement that previously was speak to the manner in which a subsequent claim should be

adjudicated against the claimant.” Op. at 16 (emphasis assessed. As a result, in no way can Sharondale be construed

added). The majority proceeds to state that “[t]here as adding any further requirements to the “one element” test.

seemingly is no place in this inquiry for comparison between

the new evidence and the evidence produced in connection Grundy argues, and the majority accepts as true, that the

with the prior claim.” Op. at 16-17. However, it then last paragraph of Sharondale supports the interpretation of the

endorses Grundy’s reading of Sharondale as requiring the additional qualitative analysis requirement. The last

ALJ to engage in a qualitative analysis to determine if the paragraph of Sharondale stems from the Sharondale court’s

new evidence accompanying the subsequent claim is different expression in the previous paragraph of concern with regard

to claimants who file subsequent claims supplemented by the

exact same evidence that supported a prior claim. It is readily

1 apparent that because of this concern, we spoke to the manner

Sha rondale Corp . v. Ross, 42 F .3d 9 93 (6th Cir. 1994), involved in which ALJs might ferret out claims seeking purely a

§ 725.309(d), while the case at hand involves § 725 .309 (c). T his is

irrelevant, howe ver, as the language of b oth sec tions in 1999 is identica l.

modification of a decision on a prior claim, and not based on

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 33 34 Grundy Mining Co. v. Flynn, et al. No. 01-3111

any material change, as is required by the statute. In so doing, 22, 2003). Hence, the reference to the “later” x-rays can only

we never stated that this method should also become a part of mean those ones developed subsequent to 1985. In addition,

the Director’s “one element” test. the Sharondale court’s act of faulting the ALJ for failing to

look at all of the x-rays produced to support the 1985 claim

Furthermore, the meaning the majority wishes to give to was appropriate in light of our decision in Woodward v.

this discussion fails to take note of an important textual Director, OWCP, 991 F.2d 314, 320-21 (6th Cir. 1993). In

difficulty which totally undermines such an interpretation. that case, we discussed the decision of the ALJ to limit

By pointing out that “[t]he ALJ never discusses how the later consideration of x-ray evidence solely to the last five x-rays

x-rays differ qualitatively from those submitted in 1985,” the taken. Id. at 319. Specifically, we “recognized the need for

Sharondale court was simply admonishing the ALJ for its qualitative evaluation of the x-ray evidence, as well” as a

failure to address and weigh all of the x-rays submitted with quantitative analysis. Id. at 321 (emphasis added). The ALJ

the claim filed in 1985.2 Sharondale, 42 F.3d at 999. The in Sharondale appears to have relied on the later x-ray

majority asserts that because the underlying 1990 ALJ interpretations that were submitted to support the second

decision speaks only of x-rays taken in 1986 and 1989, there claim, and excluded the earlier x-ray interpretations also

were no x-rays submitted in 1985 when the claim was filed, submitted with the same claim. See Sharondale, Case No.

and hence the Sixth Circuit’s reference to 1985 was a 86-BLA-4985, slip op. at 6-8. As a result, our opinion in

“typographical error.” Op. at 18 n.5. However, the ALJ’s Sharondale should not be interpreted to require the ALJ to

1990 opinion fails to identify what medical evidence compare the evidence from the second claim with that from

accompanied the second claim at the time it was filed in 1985. the earlier denied claim. In order for that to be the case, the

See Ross v. Sharondale Corp., Case No. 86-BLA-4985, slip sentence would have to have said “differ qualitatively from

op. at 6-8 (July 25, 1990) (unpublished). The majority cannot those submitted in 1979,” and not 1985. Hence, the

simply conclude that because of this, there were no x-rays majority’s conclusion that Sharondale holds that miners

taken in 1985, as nothing exists in the record available to us “must do more than satisfy the strict terms of the one-element

to indicate one way or the other. In addition, to dismiss test” by “demonstrat[ing] that this change rests upon a

summarily the 1985 reference as a “typographical error” qualitatively different evidentiary record,” Op. at 19, is not

seems implausible, as it is a rather significant error for the supported by the language of Sharondale.

entire Sixth Circuit panel to have overlooked.

Concededly, it cannot be denied that the phrase “the earlier

Moreover, grammatically speaking, that the Sharondale denial” in the last sentence of the last paragraph of

court was criticizing the ALJ for its failure to address and Sharondale does in fact refer to the 1979 claim. The Director

weigh all of the x-rays submitted with the subsequent 1985 views this sentence as merely serving “to point out that the

claim is the only legitimate conclusion. As used in this ALJ’s failure to consider all of the x-ray readings submitted

context, “later” means “subsequent.” See Merriam Webster with the duplicate claim raised the possibility that the

Online Dictionary, http://www.merriam-webster.com (Oct. preponderance of that evidence might weigh against the

presence of pneumoconiosis, and a material change, just as

the conflicting x-ray evidence submitted with the 1979 claim

2 weighed against the existence of the disease.” Appellee’s Br.

The miner’s previous claim was filed in 1979 and was finally denied at 23-24. Alternatively, this last sentence might also be read

in 1981. Subseq uently, the miner filed a claim for benefits in 1985.

Sha rondale, 42 F.3d at 995. as instructing the ALJ to compare the evidence submitted

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 35 36 Grundy Mining Co. v. Flynn, et al. No. 01-3111

with the second claim with that submitted with the previously misplaced. In that case, we stated that, when the new and old

denied claim. Indeed, as the Director appropriately points medical evidence was substantially similar, we had held in

out, these “textual difficulties” in the last paragraph of Sharondale that “such situations were correctable within the

Sharondale may have been the reason why both the Fourth one-year time period after a denial, but that after this point, a

and Eighth Circuits, uncertain as to its meaning, were claimant is not ‘entitled to benefits simply because his claim

unwilling to adopt this part of the opinion, as they stated that should have been granted.’” Id. at 609 (quoting Sharondale,

the paragraph “seems to have required consideration of the 42 F.3d at 998). Hence, Kirk holds that “in order to measure

evidence behind the earlier denial to determine whether it a ‘change in conditions’ the ALJ must compare the sum of

‘differ[s] qualitatively’ from the new evidence.” Lisa Lee the new evidence with the sum of the earlier evidence on

Mines v. Director, OWCP, 86 F.3d 1358, 1363 n.11 (4th Cir. which the denial of the claim had been premised.” Id. “A

1996) (emphasis added); Lovilia Coal Co. v. Harvey, 109 ‘material change’ exists only if the new evidence both

F.3d 445, 454 n.7 (8th Cir. 1997) (emphasis added) (quoting establishes the element and is substantially more supportive

Lisa Lee Mines, 86 F.3d at 1363 n.11). of claimant.” Id.

In addition to these “textual difficulties” created by Through its analysis, the Kirk court did not add a new

Grundy’s interpretation, even more arduous to overcome is its requirement to the “one element” “material change” standard.

insistent focus on the paragraph in isolation. As the Director Rather, Kirk reasserts approvingly the Director’s “one

notes, “[t]he paragraph must, of course, be read in the context element” test immediately before discussing the need for

of the entire decision that precedes it.” Appellee’s Br. at 24. comparison of the new and old evidence so as to rule out

Immediately preceding the paragraph at issue, the Sharondale claims based on the same evidence. Id. More importantly,

court, after engaging in a thorough analysis of the differing however, the opinion reiterates the important difference

“material change” standards, concluded that the Director’s between “claim modification” and “material change” analysis.

“one element” test should be accorded deference because it In discussing the method to be employed in examining

was a reasonable construction of the regulation at issue. whether evidence submitted on a subsequent claim is identical

Sharondale, 42 F.3d at 998. The Director never spoke of a to that submitted on a prior claim, this court stated that the

qualitative analysis as part of a “material change” “ALJ must compare the sum of the new evidence with the

determination. Indeed, the “one element” test espoused by sum of the earlier evidence on which the denial of the claim

the Director flatly bars review of evidence from previous had been premised.” Id. (emphasis added). The Kirk court

claims unless and until a “material change” has been proven. was simply making the ALJ aware of situations in which a

Id. at 997-98. As the Director states, the “[c]ourt implicitly claimant attempts to circumvent the statutory requirements

acknowledged the irrelevance of evidence regarding the after a year has passed, by submitting the exact same evidence

miner’s condition at the time of the first claim — prior to the in the hope that it will be treated by the court as

establishment of a material change — in disregarding the demonstrating a material change. As a result, the Kirk court

standard articulated by the Board in its Spese decision.” is saying that “[i]n order to maintain this limitation in favor

Appellee’s Br. at 25. of finality,” it would be prudent for ALJs to engage in an

overview comparison of the sum of the evidence to rule out

Furthermore, the majority’s reliance on Tennessee duplicate claims. Id. Nowhere in the Kirk opinion is there a

Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001), call for ALJs to engage in a thorough evidentiary qualitative

as further support for the qualitative analysis requirement is

No. 01-3111 Grundy Mining Co. v. Flynn, et al. 37 38 Grundy Mining Co. v. Flynn, et al. No. 01-3111

analysis between the evidence in the old and new claims in notion that miners disabled by pneumoconiosis arising out of

assessing a “material change in conditions.” coal mine employment are entitled to benefits under the Act.

It affords a miner a second chance to show entitlement to

Moreover, acceptance of the Director’s interpretation of the benefits provided his condition has worsened.” Sharondale,

Sharondale “material change” standard is consistent with the 42 F.3d at 998. We concluded that it was important to accept

other circuits that have dealt with this issue. In particular, the Director’s interpretation because it was “reasonable in

both the Fourth and Eighth Circuits have accepted the light of the purpose of the statute and the language included

Director’s interpretation of the “material change” standard. in § 725.309(d).” Id.

See Lisa Lee Mines, 86 F.3d at 1363; Lovilia, 109 F.3d at 454.

In so doing, both courts refused to endorse the final paragraph It strikes me as rather schizophrenic of us in Sharondale to

of Sharondale, which “seems to have required consideration painstakingly analyze and weigh the competing “material

of the evidence behind the earlier denial to determine whether change” interpretations, choose the Director’s test, and then

it ‘differ[s] qualitatively’ from the new evidence.” Lisa Lee immediately afterwards, depart from the test that we have

Mines, 86 F.3d at 1363 n.11; see also Lovilia, 109 F.3d at 454 chosen to adopt. Because of this, I believe that the

n.7. Furthermore, the Lovilia court, in deciding to accept the interpretation of Sharondale that the majority endorses is

Director’s approach, noted that pursuant to established wrong. Furthermore, despite the fact that the ambiguous

Supreme Court precedent, “[w]hen, like in this case, the issue language of Sharondale leaves the meaning of the last

is whether the agency has erred in interpreting its own paragraph open to multiple interpretations, the rest of the

regulations, the Supreme Court has stated that: provided the decision does acknowledge the principle that it is

agency’s interpretation ‘does not violate the Constitution or inappropriate to compare the evidence in a new claim with the

a federal statute, it must be given controlling weight unless it evidence submitted in connection with a previously denied

is plainly erroneous or inconsistent with the regulation.’” claim in assessing whether a “material change” has been

Lovilia, 109 F.3d at 451-52 (quoting Shalala v. St. Paul- established. To retreat from the “one element” test that we

Ramsey Med. Ctr., 50 F.3d 522, 527-28 (8th Cir. 1995) endorsed not only violates the deference due the Director as

(quoting Stinson v. U.S., 508 U.S. 36, 45 (1993)). This noted above, but also proves utterly contradictory of our own

demonstrates that we are violating established principles Sharondale opinion. For these reasons, I concur only in the

when in one instance, we accord due deference to the result.

Director’s interpretation in deciding to accept it, but then in

the next instance, infuse it with a meaning not a part of the

Director’s interpretation. This clearly provided the impetus

for both Lisa Lee Mines and Lovinia to reject the

interpretation of Sharondale’s final paragraph that the

majority now suggests.

Finally, misconstruing the Director’s “one element” test by

adding a qualitative analysis completely undermines the very

reason we felt compelled initially to accept the “one element”

test. In assessing the reasonableness of the Director’s

interpretation, we noted that his view was “premised on the