BUCK CREEK COAL COMPANY; Old Republic Insurance Company, Petitioners, v. Gay Nell SEXTON, widow of and on behalf of Frable Sexton; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
No. 11-4304.
United States Court of Appeals, Sixth Circuit.
Jan. 10, 2013.
Rehearing and Rehearing En Banc Denied March 19, 2013.
706 F.3d 756
F. Failure to File Post-Conviction Petition
[REDACTED] Coley claims that appellate counsel was ineffective for not filing a state post-conviction petition but does not argue the claim in his brief. See United States v. Layne, 192 F.3d 556, 566 (6th Cir.1999) (“[I]ssues adverted to [on appeal] in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived....“). This claim was not certified for appeal. Hence, we lack the authority to address it. See Hill, 400 F.3d at 329, 335. To the extent that this argument is another aspect of Coley‘s already-addressed ineffective assistance of appellate counsel claim, it is meritless for the reasons stated here.
Similarly, while the district court granted a certificate of appealability on three additional issues, Coley has abandoned those issues on appeal.
AFFIRMED.
ON BRIEF: Laura Metcoff Klaus, Mark E. Solomons, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. Miller Kent Carter, Carter & Lucas, Attorneys, Pikeville, Kentucky, William L. Roberts, William Lawrence Roberts, P.S.C., Pikeville, Kentucky, for Sexton Respondent. Michelle S. Gerdano, Gary K. Stearman, United States Department of Labor, Washington, D.C., for Government Respondent.
Before: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit Judges.
MERRITT, Circuit Judge.
Frable Sexton, a long-time smoker and career coal miner, filed a series of petitions for benefits under the Black Lung Benefits Act. This case arises from his final petition and award of benefits. After filing for benefits in 2001, Mr. Sexton passed away. However, an administrative law judge, hearing both Mr. Sexton‘s claim and his widow‘s survivor claim, found that the medical evidence established a change in Mr. Sexton‘s condition and that he suffered a total disability from clinical and legal pneumoconiosis. The ALJ awarded benefits and the Benefits Review Board affirmed. Buck Creek Coal Company appeals this determination, arguing that its application of
I. Facts
Frable Sexton spent 25 years working in coal mines. His struggle to receive black lung benefits lasted even longer in the courts—starting in 1973 and continuing today. Sexton first applied for benefits in 1973. The application was unsuccessful as were two other claims. On April 12, 2001, two years after the denial became final, Mr. Sexton filed a subsequent claim. This time the district director recommended an award of benefits. Buck Creek Coal Company requested a formal hearing. While his claim was still pending before the Office of Administrative Law Judges, Mr. Sexton died. His widow filed her own
Buck Creek appealed to the Benefits Review Board challenging the merits of the decision, the ALJ‘s application of
II. Black Lung Benefits Act
[REDACTED] The Black Lung Benefits Act provides benefits to coal miners who become disabled due to pneumoconiosis.
In order to establish entitlement to benefits under the Black Lung Benefits Act, a miner must prove that (1) he suffered from pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) the miner was totally disabled, and (4) his disability was due to pneumoconiosis.
Because pneumoconiosis is considered a “latent and progressive” disease, a miner may file a subsequent claim even after a final order denying benefits.
Buck Creek argues that the ALJ in this case misapplied
Next, Buck Creek argues that the ALJ erred in not comparing the old evidence from previous claims with new evidence. Indeed, this practice, a version of the “one-element test,” was once the approach endorsed by this Court. It required the ALJ to compare “the sum of the new evidence with the sum of the earlier evidence on which the denial of the claim had been premised.” Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602, 609 (6th Cir.2001); Sharondale Corp. v. Ross, 42 F.3d 993, 998 (6th Cir.1994). Several of our sister circuits rejected our formulation of the “one-
After the removal of the word “material” from the language of
Recently this Court adopted the regulatory interpretation urged by the Director of the Office of Workers’ Compensation in Cumberland River Coal Company v. Billie Banks and Director, OWCP, 690 F.3d 477 (6th Cir.2012). As this Court explained in Cumberland,
[W]e construe the term “change” to mean “disproof of the continuing validity” of the original denial, rather than the “actual difference between the bodies of evidence presented at different times.” Under this definition, the ALJ need not compare the old and new evidence to determine a change in condition; rather, he will consider only the new evidence to determine whether the element of entitlement previously found lacking is now present.
Id. at 486 (internal citations omitted).
[REDACTED] The ALJ in considering Mr. Sexton‘s claim did just that. He looked to the new evidence, medical opinions from four physicians, and determined that an element of entitlement previously found lacking in the earlier claims was now present in this latest and final claim. Thus, the ALJ appropriately applied the test put forth by the Department and this Court in Cumberland.
[REDACTED] Buck Creek also argues that the ALJ‘s consideration of this subsequent claim is invalid and violates due process because it contravenes the well-established principles of finality and res judicata. It does not challenge the ALJ‘s factual determination of a changed condition, but rather just the legal question of whether the finding violates res judicata. Buck Creek looks as far back as the Theodosian Code, the Justinian Code, Babylonian law, ancient Jewish law, and the trial of the Duchess of Kingston in 1776 to argue that the ALJ recklessly dispensed with thousands of years of law by awarding Mr. Sexton benefits. Buck Creek needed to look only so far as this circuit‘s and other circuit‘s modern jurisprudence to find that res judicata is not violated by the filing of a subsequent claim under the Black Lung Benefits Act. Sharondale Corp., 42 F.3d at 998 (“[T]he doctrine of res judicata is not implicated by the claimant‘s physical condition or the extent of his disability at two different times.“); see also U.S. Steel Mining Co., 386 F.3d at 990; Midland Coal Co. v. Director, OWCP, 358 F.3d 486, 490 (7th Cir.2004); Lovilia Coal Co., 109 F.3d at 450; Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502, 1510 (10th Cir.1996); Lisa Lee Mines, 86 F.3d at 1362; Labelle Processing Co. v. Swarrow, 72 F.3d 308, 313–16 (3d Cir.1995).
A claimant is required to submit newly developed evidence to ensure that he is not merely relitigating the prior claim. The latent and progressive nature of black lung disease ensures that a claimant‘s physical condition may be different at entirely different times, and thus, the claims are not the same. The
In the prior unsuccessful claim, the ALJ did not find that the pneumoconiosis substantially contributed to Mr. Sexton‘s disability at the time the claim was filed; however, new evidence developed subsequent to the denial established a change in condition, specifically that the pneumoconiosis substantially contributed to his total disability in 2001, when the last claim was filed. As this Court recognized in Sharondale, a miner‘s physical condition changes over time, and thus the presence of the disease at one point in time in no way precludes future proof that the disease has become present or has become so severe as to become totally disabling. 42 F.3d at 998. The ALJ did not err in adjudicating Mr. Sexton‘s subsequent claim, as it did not violate the principle of res judicata.
III. Conclusion
The ALJ in this case appropriately applied
MERRITT
CIRCUIT JUDGE