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

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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.

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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

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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.

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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