*3 the coal company. Pursuant to 20 C.F.R. GILMAN, Before MOORE and Circuit (1999), § 725.309 was considered ROSEN, Judge.* Judges; District *4 a “duplicate.” escape order res ROSEN, J., opinion D. delivered the judicata earlier Flynn effect of his court, GILMAN, J., joined. in which had to demonstrate a “material in MOORE, 485-490), (pp. J. delivered a conditions” since the claim’s denial. separate opinion concurring in the result Having this threshold surmounted obsta- only. cle, prevail he then had to on the merits. present The “duplicate” has been OPINION back and forth between Administrative ROSEN, Judge. District (“ALJ”) Judge Law and the Board four Court, times. appeal On three I. INTRODUCTION (1) questions Did Mr. Flynn remain: es- This action for miner’s black lung coal change” gov- tablish under the benefits arises Title IV of under the Fed- (2) Who, erning legal standard? as be- Safety eral Coal Mine Act Health Grundy Fund, tween and the Mining Trust 1969, amended, §§ U.S.C. 901-945 should responsibility paying any bear for (“Black “BLBA”). Lung Act” or Benefits (3) and, award of benefits? Does substan- The petitioner/employer, Grundy Mining- tial support the ALJ’s finding Company, a final appeals from order of the Flynn’s disability total was due to United Department States Labor pneumoconiosis? (“DOL”) (“Board” Benefits Board Review “BRB”) In the granting respon- proceedings, benefits to administrative Flynn. W. Douglas Flynn The re- Board held properly that Mr. had dent/claimant spondent Director of the Office of Work- established a “material and total Programs ers’ Compensation of the DOL disability due to pneumoconiosis. The (“Director”) has been named also as a acknowledged idiosyncrasies Board some party in interest. examining report, yet doctor’s de- judgment ferred to in weighing the ALJ’s long
This case has a and involved histo- the evidence. The Board further held that ry. Flynn Mr. filed first claim for Grundy Mining responsibility must assume lung black benefits while he was for payment since benefits working still in the coal mines. The claim statutory 1984 claim did meet the finally was re- Flynn denied in 1981 because quirements prove totally failed to was to the that he disabled transfer Trust Fund. below, pulmonary pneumoconi- due to the ailment For the reasons set forth we affirm * Rosen, Michigan, sitting designation. The by Honorable Gerald E. United States Judge District for the Eastern District of mine, at the entrance to the that time was of these on each decision the Board’s to coal dust. exposed he remained points. lung for black Flynn applied first PROCEDURAL AND claiming II. FACTUAL in November benefits breathing BACKGROUND by virtue of he was disabled mine engaged coal He difficulties. Employ- Mine Coal A. Claimant’s time, and remained so at the employment History and Medical ment claim ulti- in 1981 when his first employed dupli- filed a mately was denied. was born W. Douglas Claimant 1984, a month after in March cate claim eighth grade, completed May (at the coal age seventy) from retiring coal in the Tennessee working 1932 was that is at It this 1984 claim company. spanned in the mines career mines. His issue here. For ending in 1984. years, more than 50 career, early in his years record, approximately opinions of both Two medical a maintenance Fritzhand, mines as worked to the he are relevant Dr. Martin *5 career, First, of his During part upon examining the latter man. us. issues before man, utility July light and Flynn worked as on behalf DOL Flynn Mr. delivery including 26, 1980, in with the miner’s connection responsibilities with reported pul- mine Dr. 'Fritzhand areas of the to various first supplies non- study function which was monary used lamps electric tending 1 below. as set forth Table qualifying,1 at work station Although his the miners. Study Pulmonary Function Table 1: 1980 Maximum Forced Forced FEVi/FVC Voluntary Vital Expiratory Capacity Ventilation Volume One (“FVC”) (“MW”) Second (“FEVi”) < < < 0.55 3.2 2.51
Qualifying < Standard 0.77 4.3 3.3
Actual
Result well,2 in Table as shown non-qualifying as arterial reported further an Dr. Fritzhand 2 below. which was study on that occasion gas blood study "qualifies” to dem- gas which “quali- 2. A blood study which pulmonary function 1. A disability disability under under 20 C.F.R. demonstrate total total fies” to onstrate 718.204(b)(2)(i) § one in which the 718.204(b)(2)(i) C.F.R. at or be- have values § must meet or fall the MW or FVC FEVj and either Appendix C of 20 at the table values low Appendix B of 20 at the table values below at which for the altitude C.F.R. Part 718 height, age, 718 for the miner's C.F.R. Part was administered. test FEVj gender, which the ratio of or in percent FVC is 55 or less. Study Table 2: 1980Blood Gas pC02_p02 <
Qualifying Standard = (at 37.5) pC02
Flynn’s Actual 37.5 80.0 Result Dr. reported Fritzhand at that diagnosed time chronic pulmonary obstructive Flynn could “ambulate on level terrain no disease employment, related to coal mine than more 200 feet without associated hypertension. well as breath,” shortness and that this “this later, years Four and several months symptom upon climbing increase[d] stairs work, after he ceased coal Flynn mine (J.A. 135.) walking up grades.” again was examined Dr. Fritzhand on doctor further stated that “un- DOL, behalf of the this time in connection able to mow a lawn without associated present claim. In a report dated dyspnea.” Id. When asked to “describe 16, 1984, June Dr. Fritzhand noted anoth- explain limitations ... may be er non-qualifying pulmonary function disease,” due to pulmonary Dr. Fritzhand study, as well non-qualifying as another opined activity could do “mild gas study. best without blood associated] See Tables 3 and 4 be- shortness] o[f] ' (J.A. 133.) Dr. b[reath].” Fritzhand low. *6 Pulmonary
Table 8: Study Function 198k FEVX_FVC_MVV_FEVx/FVC < < <
Qualifying 2.35 3.02 <94 0.55 Standard Flynn’s 3.3 4.2 67.2 0.79 Actual Result Study
Table Blood Gas k- 198k pC02_p02 <
Qualifying Standard = (at 33.9) pC02
Flynn’s Actual 33.9 72.1 Result examination, Following this climbing Dr. Frit- stairs or walking up grades.” (J.A. atl69.) reported Flynn zhand could “ambu- Flynn He also stated that late on level terrain no more than 300 feet was “unable to mow a lawn without associ- breath,” without associated dyspnea.” shortness ated Id. When asked to “de- symptom and that “this upon explain increase[d] scribe and limitations ... may ade, in the Benefits Re- disease,” culminating Frit- and Dr. pulmonary be due September 2000 decision Flynn was able to do view Board’s responded zhand (J.A. activity.” challenged appeal. on sedentary being which is now than “no more 167.) ASHD diagnosed rulings Fritzhand is- following Dr. The summarizes disease) (arteriosclerotic with atrial protracted heart of this during sued the course fibrillation, congestive hypertension, process. review failure, pneumoconiosis as well heart McElroy I: ALJ heard Y.M. employment. to coal mine related 20, July 1987 Decision case and issued (“D O”) awarding benefits. & Order History B. Procedural Mr. not address whether The ALJ did Flynn’s for Black First Claim 1. a “material Flynn had established Lung Benefits previ- of his in conditions” since the denial however, for federal did, initial claim Mr. claim. He find ous filed on November lung pneumoconiosis benefits was totally black disabled due 1970, by the 21, originally denied years of coal mine arising fifty out of his (“SSA”) on Security Administration Social employment. 9, Flynn then filed an election 1971.
April and, Mining Grundy appealed BRB I: claim under review of this request card to a D the Board issued January Act of Reform Lung Black Benefits remanding vacating the award and & O any filing, of this liabili- As a result matter for further consideration. to the DOL’s have transferred ty would McElroy had over- found that ALJ Board Fund, Flynn been entitled Trust had issue, looked the “material 932(c),(j)(3); § See 30 U.S.C. benefits. had estab- held nevertheless 725.496(d). Di- generally § See C.F.R. a matter of law a material lished Co., rector, Quarto Mining v. OWCP Co., 11 BLR Peabody Coal Spese under Cir.1990) (reviewing this (Ben.Rev.Bd.1988). The Board re- 1-174 scheme). statutory however, manded, consider- for further review, round of Following this second of benefits entitlement. ation on the merits lung for black Flynn’s initial claim *7 remand, McElroy ALJ II: ALJ On by the DOL’s finally was denied benefits benefits, in a D & this time again awarded 15, 1981. The director on June district However, 29,1991. the ALJ April O dated determined district director motion Grundy Mining’s to address failed arising out of his coal pneumoconiosis had liability to the and transfer to dismiss claim on employment, but denied the mine Fund. Trust Flynn failed to establish ground that appeal- Grundy Mining again of this dis- disability total result BRB II: his 1993, 4, the Board before ease. ed. On October died, decision, Mr. issue a could Flynn’s for Black 2. Claim Second widow, Flynn, pursued the his Gussie Lung Benefits 4, 1994, the April on his behalf. On find- vacated the ALJ’s again Board once pres- filed the Flynn subsequently and re- of entitlement 13, ings on the merits The district claim on March ent In so but, further consideration. at manded for new claim denied the director its however, re-affirmed the Board ruling, it for a formal Flynn’s request, referred change,” and holding of “material earlier review hearing. lengthy A administrative ar- Grundy Mining’s transfer rejected ensued, a dec- also spanning well over process gument ground only Cir.1994), however, qualify claim—which did not for transfer— rejected Circuit Spese standard. Con- remained open. sequently, the Board now held that a “ma- terial consistent with Sharondale January ALJ III: On ALJ would affirm be established if it could ALJ Campbell a D issued & 0 on remand rein- Campbell’s finding that Dr. Fritzhand’s stating First, the award of benefits. opinion disability. established total pneumoconiosis ALJ found that had been established on the basis x-ray of both the Next, in affirming finding, opinions. and the medical Sec- explained Board permissibly the ALJ ond, he found that Dr. Fritzhand’s 1984 found opinion the doctor’s sufficient to es- (that opinion Flynn could do no more than disability, tablish total finding since this sedentary activity) established total dis- was based on a comparison of Dr. Frit- ability Flynn’s since last coal employ- mine zhand’s 1984 assessment limiting Flynn to ment incompatible sedentary with this sedentary activity with the exertional re- restriction. The ALJ went on explain quirements last coal mine em- that Dr. opinion Fritzhand’s 1984 out- ployment. The Board further held that weighed non-qualifying pulmonary Campbell ALJ acted within his discretion function gas and blood studies because in determining that Dr. Fritzhand’s medi- such results “are not self explanatory, and report cal outweighed non-qualifying physician no has used them to support a test results. conclusion that Claimant is not disabled (J.A. 49.) pneumoconiosis.” due to Proceeding to the issue of pneumoconio- sis, the upheld Board the ALJ’s determi- Finally, regarding causation, disability nation that Dr. opinion Fritzhand’s 1984 Campbell ALJ noted that Dr. Fritzhand was documented and reasoned. Because diagnosed had both pulmonary cardiac and contrary there were no opinions medical report. However, conditions his 1984 record, the Board Camp- affirmed ALJ pointed that, the ALJ report, out in this finding bell’s pneumoconiosis. Finally, Dr. Fritzhand had explicitly stated that while the recognized Board that Dr. Frit- Flynn’s limitation to sedentary activity was zhand diagnosed had heart disease as well attributable to pulmonary disease. Conse- as coal employment-related mine pneumo- quently, Campbell reasoned that “the coniosis, it held that the ALJ had acted limitation pulmonary due to disease that within fact-finding discretion deter- Dr. Fritzhand listed must be related to mining that Flynn’s total disability was pneumoconiosis pneumoconiosis because pneumoconiosis. due to only pulmonary disability that Dr. Fritzhand included in his 1984 medical re- *8 BRB response IV: In Grundy Min- (Id.) port.” ing’s timely reconsideration, motion for
BRB III: The Board affirmed the Board vacated the award and in remanded award of in D benefits a & July 0 dated a D 14, & 0 on July Reconsideration dated 27, 1995. In so holding, the Board first 1997. In ruling, so the Board construed proper addressed the standard for portion estab- the last of Sharondale as “re- lishing a “material change in quiring] conditions.” that a miner show there has decision, In its initial the Board held that been a in worsening physical condi- Flynn (J.A. 30.) had established a change” “material tion.” at The Board therefore pursuant to then-prevailing Spese stan- instructed the ALJ to address on remand Ross, dard. Corp. v. 42 whether any qualitative there was differ-
475 opin- 1984, Dr. Fritzhand’s two ALJ observed that in Dr. ence between Fritzhand pulmonary ions: conducted new function and which, gas though blood studies still not judge, law on re- administrative [T]he qualifying, reflected at mand, least some declin- explain merely must whether he Additionally, values. the ALJ noted disagreed previous with the character- that Dr. Fritzhand had conducted a ization of Dr. Fritzhand’s 1980 medical new 1984, disability] physical examination in report establishing resulting [as shown, “sedentary” through whether claimant has restriction that was more lim- Dr. than iting activity” finding the submission of Fritzhand’s 1984 the “mild in the change Thus, in his opinion, report. medical material doctor’s 1980 Campbell ALJ denial. condition since earlier concluded that established a “mate- rial change conditions” consistent with (J.A. 32.) Thus, purpose the sole the Board’s directives. reconsideration of the “mate- remand was rial change” issue under Board’s re- 27, 2000, BRB September V: On reading vised Sharondctle. Campbell’s finding Board affirmed ALJ 5, 1998, On ALJ
ALJ TV:
November
and,
“material
in conditions”
Campbell issued a D & on Remand
therefore, affirmed the award of benefits.
(“ALJ IV”) awarding
At the out
benefits.
process,
In the
the Board declined to re-
set,
opined
the ALJ
this case was visit the issue of whether Dr. Fritzhand’s
factually
Lisa Lee
similar to
Mines Di
opinion
was documented and rea-
OWCP,
(4th Cir.1996)
rector,
“material in conditions” since (internal Next, Coal, Flynn’s previous claim. at 415 quotations denial 123 F.3d omitted). Mining that the Grundy argues record is and citations to the ALJ’s determi- insufficient sustain on the was dis-
nation
merits
Change” Inqui-
2. The
“Material
ALJ’s
pneumoconiosis. Finally,
to
in
due
abled
ry Fully Comported
the
with
Stan-
the event
the award
benefits is
dard Announced
in this Court’s
sustained,
argues
Grundy Mining
that the
Decision.
Sharondale
liability
by
should be
this claim
borne
starkly
As
illustrated
recitation
our
Lung Disability
Black
Trust
the
Fund. We
procedural history
of the
of this
lengthy
consider each of these contentions in turn.
case,
change”
“material
standard has
the
engendered
during
deal
great
a
of debate
Properly
a
A. The ALJ
Found
“Materi-
proceed-
course
administrative
Change
al
in
Re-
Conditions”
ings now under review.
When
quired to Avoid the Res Judicata
lung
filed
recent claim
his most
for black
Effect of
Denial of Mr.
1984, more than
year
benefits in
after
Previous Claim for Benefits.
1981,
perti-
earlier claim was denied in
1. Standard of Review
in
regulations
nent
effect at the time re-
Board
Whether
subsequent
quired that his
claim be denied
change”
applied
appropriate
grounds
“on the
denial” unless
question
a purely legal
standard is
that we
“there
in con-
has been material
Director,
address de novo. See
v.
OWCP
725.309(c) (1999).3
§
ditions.” 20 C.F.R.
Co.,
926,
884 F.2d
929
Consolidation Coal
regulation
length
We addressed
Cir.1989).
(6th
extent, however,
To
Ross,
Corp.
Upon
in
v.
supra.
that the ALJ’s
determination
“materi
possible
three
surveying
constructions
al
factual
we
upon
findings,
rests
change” requirement,
the “material
includ-
accept
findings
must
all
that are
such
meaning adopted by
the Board
“supported
in the
substantial evidence
Spese, supra, and the standard articulated
a whole.”
record considered as
Consolida
by the
Seventh Circuit
Sahara Coal Co.
Coal,
929;
tion
see
also Pea
(7th Cir.1991),
OWCP,
3. The of Labor revised this stated this rule. See tion, along applicable many 725.2(c); others Fed.Reg. § C.F.R. at 80057. The lung adjudication, in black final rules present regulation longer version of this no published on December See change” language, but includes the "material (Dec. 20, 2000). Fed.Reg. 79920-80107 requires that a instead claimant demonstrate Throughout opinion, we cite to the 1999 applicable in "one of conditions Regula- edition of Title Code of Federal 725.309(d). § of entitlement.” 20 C.F.R. Be- regulations in order to the tions to refer regulation apply cause the current does not their earlier form. All other references will here, legal signifi- not determine the need regulations. be to the current cance of this revision. Although regulations generally the revised claims, § apply pending 725.309 is one of *10 change whether a material is statute and language assess included in [T]o 725.309(d). established, § must consider all of the ALJ evidence, unfavor- the new favorable and Sharondale, 42 F.3d 998.4 able, and determine whether the miner Finally, we considered whether the ad- at least one of the elements proven has proper- ministrative decision under review adjudicated previously of entitlement ly found a change in conditions” If against him. the miner establishes in accordance with the standard we had element, of that he has the existence adopted: demonstrated, law, ma- as matter of interpretation, Under the Director’s change. terial properly analyze the ALJ did not Sharondale, 42 F.3d 997-98. In assessing claim, facts. the second the ALJ concluded that because he holding interpre- the Director’s x-ray found the new evidence estab- deference, tation was entitled to we found lished the pneumoconiosis, existence of it struck a reasonable balance be- material change Ross’s con- [claimant] judicata tween res concerns and the reme- shows, dition had occurred. The record dial nature of the BLBA: however, that positive negative both Here, interpretation the Director’s x-ray interpretations by both “B” read- premised on the notion that miners dis- ers and “non-B” readers accompanied by pneumoconiosis arising abled out of 1979 claim as [Ross’s] well as the 1985 employment coal mine are entitled to claim. The ALJ never discusses how Act. It affords a min- benefits under the x-rays the later differ qualitatively from er a entitlement second chance show Thus, those submitted we are provided to benefits his condition has unable to discern on the record before interpretation The implicitly worsened. merely us whether the disagreed judi- that the recognizes doctrine res previous with the characterization implicated by cata is not the claimant’s strength of the evidence or whether physical condition or the extent of his Ross indeed had shown the existence of disability at two different times. The a material in his condition since limits, entitlement is not without howev- the earlier denial. er; a miner whose condition has wors- (footnotes at 999 filing ened since the of an initial claim omitted). benefits, may eligible be but after year passed has portion gives since denial This last of Sharondale claim, parties’ point no is entitled to benefits rise to the of con- principal min[e]r simply because his claim have tention in Arguably, should this case. under a granted. interpre- reading been The Director’s strict of the “one-element” test Director, statutory tation takes into account the endorsed the ALJ’s “ma- request change” inquiry solely distinction between a for modifi- terial is limited cation of the Board’s decision and a re- the new evidence of the claimant’s condi- quest for benefits based on a material tion since the denial of his Accordingly, asking conditions. the ALJ whether this evidence es- interpretation find Director’s to be tablishes at least one of the elements of light purpose previously reasonable in benefit entitlement were 725.309(d) (1999), operative language § 4. Sharondale addressed of these two subsec- identical, 725.309(c) (1999). § while this case concerns tions is however. *11 478 compare
adjudicated against the claimant. There
the ALJ then must
the evidence
claims,
miner’s
in
accompanying the
two
no
in
seemingly
place
inquiry
is
qualitative
to
a
order
determine whether
and
between the new evidence
comparison
supports
in the record
the
difference
produced in
the
connection with
evidence
to
in outcome as
this element.
Yet, in
prior
applying
claim.
the “one-
the
hand,
Director,
that
argues
on the other
facts in
element” standard to the
Sharon-
reading
paragraph
of the last
of Shar-
dale,
failing
the ALJ for
to
we faulted
immedi-
ondale is irreconcilable with the
claimant’s
x-
determine whether the
new
decision,
ately
of
in
preceding portion
that
from
ray
qualitatively”
evidence “differ[ed]
panel
which the
held that
the Director’s
facially
x-ray evidence that ac-
the
similar
standard
entitled to
“one-element”
was
prior
the
claim.
42
companied
agen-
a reasonable
of
deference as
exercise
remand,
at 999. On
we directed the
F.3d
cy
quite
It
policy-making authority.
to determine whether there was such
ALJ
view,
unlikely, in
Director’s
that
the
the
difference, or
the
a
whether
critique
would
the com-
Sharondale Court
“merely disagreed” with the
ALJ
decision
standards,
peting “material
accu-
deny
qualitative-
the
claim under a
to
rately
the
proposed
summarize
Director’s
ly
evidentiary
similar
record.
rationale,
“one-element” test and
an-
its
nounce
of the
inter-
adoption
its
Director’s
case, Grundy
present
Mining
In the
then, in
pretation,
very
para-
and
the
next
augmenting
reads Sharondale as
the basic
graph, disregard the strict “one-element”
important
in one
re-
“one-element” test
the
standard and order
ALJ to examine
in
Upon finding
at least
spect.
underlying
the
of the
evidence
the denial
one of the elements of benefit
original
prerequisite
finding
entitle-
claim as a
to
pure
change.”5
“one-element”
inquiry—
ment —the
Director,
suggests,
Judge
by
5. The Director
also
and
into the record
the
we learn that
concurrence,
x-rays accompanying
dupli-
Moore likewise maintains
in her
the
the miner's
interpretative
can
April
that this
dilemma
be avoid-
cate claim in Sharondale were taken in
of Shar-
by construing
paragraph
ed
the last
of 1986 and
May
July,
November
actually mandating
ondale
compari-
as not
December of 1989. See Ross v. Sharondale
accompanying
miner's
86-BLA-4985,
son
Corp.,
op.
slip
No.
at 7
Case
subsequent
argument
first and
claims. This
Thus,
25, 1990)
no x-
(July
(unpublished).
Sharondale’s reference to “la-
largely on
rests
rays
were taken
that
and it follows
x-rays,” in
to "those
ter
contrast
submitted in
year
none could have been submitted
that
1985.”
F.3d at 999.
In the Director's
Moreover,
versus
it
even true
"later.”
is not
view,
explicated
the
as further
concur-
the ALJ in Sharondale
uniformly
favored
rence,
the Sharondale
panel
only
meant
to
accompany-
x-rays
the
over the earlier
"later”
failing
proper-
ALJ in
fault the
that case for
Rather,
duplicate
the miner’s
claim.
address all of
ly
x-rays
submitted
with the
all of the
considered
1989 and one
erred,
duplicate
1985 claim. The ALJ
miner's
x-rays,
remaining
x-ray
with the
words, by favoring
x-rays”
in other
“later
given
weight
because it
classified
little
duplicate
support
submitted
Nothing
two B-readers
as unreadable.
x-rays
over those
“submitted in 1985.”
Sharondale
suggests
panel
meant
analysis.
fault
ALJ for this
of Sharondale is de-
proposed reading
This
record,
light
of this
it
evident
however,
seems
incorrect,
monstrably
as shown
Sharondale’s reference
x-rays
is a
"1985”
very
support
record
cites in
the Director
error.
typographical
stated,
If
assume that
there were no such dis-
Simply
of it.
panel
x-rays
to refer to
meant
"submitted
x-ray
tinct "1985” and "later” subsets
evi-
1979,”
year
miner's
initial
accompanying
duplicate
dence
the miner’s
paragraph
the last
makes co-
claim in
case. With the benefit of the
decision,
sense,
underlying
flowing logi-
placed
herent
with one
administrative
sentence
pick
fy
test,
We are not free to
the strict
terms
the one-element
*12
portions
prior published
choose the
of a
but must also demonstrate
that
this
that
decision
we will follow and those that
a
upon
qualitatively
rests
different
disregard.
enjoy great
do
we will
Nor we
evidentiary record.6
our prece
er latitude
situations where
Indeed, any lingering uncertainty about
purportedly
by
are
analytical
dents
tainted
the proper
of
reading
Sharondale surely
flaws, as the Director contends is the case
has
dispelled
been
in this Court’s subse-
Rather,
with Sharondale.
arewe
bound
quent decision in Tennessee Consolidated
published opinions
previous pan
the
of
Kirk,
(6th
602,
Coal Co. v.
264 F.3d
608-10
els,
encompasses
parts
and this rule
all
of
Cir.2001). There,
here,
as
the employer
a prior ruling
properly
that are
construed
contended that Sharondale
an
mandates
holdings
rather than dicta.
John
See
Cincinnati,
inquiry beyond
City
standard,
the one-element
son
310 F.3d
of
-—
(6th Cir.2002),
denied,
cert.
under
U.S.
which “the new medical evidence
-,
S.Ct.
L.Ed.2d 130
compared
must be
with the preexisting
(2003).
hardly
It can
be
contended
medical evidence on the same issue” to
dicta,
paragraph
the final
of Sharondale is
determine if a different outcome is war-
portion
as this is the
opinion
Kirk,
ranted.
before
the miner
if
only
the ALJ need
assess whether the
in that case had met the strict terms of the
new medical
proved
an element
“one-element” test —his initial claim was
previously held to
missing,
have been
it
presence
denied
failure to establish the
would
relitigation
allow the
of cases in
pneumoconiosis,
of
while the ALJ found
which the new and old medical evidence
that this condition was
through
established
same,
essentially
were
the
but in which
the evidence accompanying
subsequent
there
a legal
had been
error in
pre-
panel
claim—the
directed the ALJ to con
adjudication.
Sharondale,
vious
In
inquiry
duct a further
whether
held that such situations were correct-
qualitative
outcome was attributable to
one-year
period
able within the
time
af-
evidence,
ly
opposed
different
to the
denial,
ter a
point,
after this
ALJ’s different
of an
assessment
essential
claimant is not “entitled to benefits sim-
ly unchanged evidentiary record. The im
clear,
ply
claim
of
because his
should have been
port
Sharondale is
then —miners
governed
granted.”
whose
are
42 F.3d at
In
claims
this Cir
order to
precedents
cuit’s
must do more than satis-
maintain this limitation in favor of finali-
event,
cally
any
into the next.
Lisa
qualitatively'
as discussed
from the new evidence.”
Mines,
below,
11;
supra,
Lee
necessary
it is not
see
for us to venture a
In our in or have de one more of elements of inquiry fined the relevant that found lacking sufficient entitlement were clarity. adjudication In grant subsequent Flynn’s order of Mr. initial claim. lung claim for more a The specific black benefits than element of entitlement at is- plain light language, In accompanied of this which is miner's claim is not current concurrence, accurately recounted we which is "identical" "substantial- Moore’s Judge ly accompanied fail discern basis for similar” to that which claim, (see 489). id. disagreement Kirk. reading prior Any with our such "sub- recognizes both entails some stantially inquiry plainly that Di- similar” concurrence evidence, test does not call comparison rector's strict one-element and old new comparison accompany- Judge for a of the evidence Moore concedes in her concurrence. (see so, claims, being rely language miner's and current This on the Concurring Op. 486), and that does Sharondale and Kirk to determine Kirk precise require comparison, comparison. to ensure such nature and extent disability total record in- degree sue here is reflect a of worsening in Mr. —the Flynn’s dicates that the evidence submitted con- condition between 1980 and 1984. with Mr. initial claim was Specifically, nection as observed both the ALJ Board, deemed sufficient establish exis- and the Dr. Fritzhand found that pneumoconiosis, tence of but this Flynn capable was activity mild claim was denied for failure to establish only sedentary activity in 1984. In an totally condition disabling. was earlier round of the pro- administrative (See 96,103.) Accordingly, J.A. at to satis- ceedings, the ALJ found that “Claimant’s fy standard, the “material there coal employment, mine although light-duty must be difference the work, required sedentary more than activi- upon evidence as it bears this element of ties,” so that “Dr. Fritzhand’s conclusion disability. total [in 1984] Claimant is limited to seden- tary activities establishes that Claimant comparing the two bodies of evidence totally disabled from his coal-mine *14 accompanying Flynn’s initial and sub- (J.A. 49.) employment.” at Grundy Min- claims, sequent the ALJ focused almost ing does not challenge reasoning exclusively on differences between the appeal, but apparently concedes that a lim- reports 1980 and 1984 of Dr. Martin Frit- itation to sedentary activity, if supported zhand, Flynn who examined on behalf of evidence, by Flynn would render in- particular, the DOL. In Dr. Fritzhand capable engaging in his usual coal mine opined in report Flynn his 1980 that could work or comparable employment. Like- (J.A. best,” 133), activity do “mild at at wise, Grundy Mining dispute does not that report Flynn his 1984 lim- stated was sedentary reported by limitation Dr. sedentary activity,” ited to “no more than Fritzhand, if credited and (J.A. properly sup- 167.) at The ALJ found that Dr. ported, directly bears on the “total disabili- downgraded Fritzhand’s assessment of ty” adjudicated element that against Flynn’s properly supported condition was Flynn in the denial of his earlier claim.8 objective data, in medical examinations, separate physical pul- where Nonetheless, Grundy Mining contends monary studies, function and arterial blood that Dr. cursory Fritzhand’s statements gas studies had in been conducted regarding “sedentary” “mild” versus activ- Flynn’s course of 1980 and 1984 visits with ity cannot qualitative alone establish a dif- physician. physician’s ference between 1980 and reports, 1984 absent underlying We find no basis to medical disturb the ALJ’s support determination evidence that would Dr. Frit- differences downgraded exist between Dr. zhand’s Fritzhand’s 1980 and assessment. record, reports, view, 1984 medical in Grundy Mining’s and that these differences support changed is virtually unchanged outcome on the issue of from 1980 1984. disability. occasions, total question There is no that On both example, Dr. Frit- face, Dr. reports, Fritzhand’s two on their reported non-qualifying pulmonary zhand Flynn It follows appeal from these concessions rector’s brief on is to rest on content has satisfied the strict "one-element” stan- premise that Sharondale man- the incorrect Director, dard advocated because the only inquiry; dates a "one-element” the Di- new evidence establishes an element that was expresses rector no view as to whether adjudicated against Flynn in the denial of his properly performed the additional com- Yet, above, explained earlier claim. more parison required under our Sharondale and required under this Court's "material Kirk decisions. change" precedents. Unfortunately, the Di- studies, Upon his two new gas comparing function and blood the sum physical accompanying Flynn’s examinations both revealed 1984 claim sounds clear with- with the evidence submitted connection [were] “breath (J.A. rhonchi, rales, find out or wheezes.” sufficient 169.) Indeed, and, Grundy Mining notes differences to meet this standard im- reports specifically, support that Dr. reflect more Dr. Frit- Fritzhand’s report provement respect downgraded in one zhand’s assessment from —the “sedentary.” on level “mild” to states that could “ambulate As ALJ ob- served, terrain more feet as- performed no than 200 without the studies (J.A. 135), breath,” still non-qualifying, sociated shortness of while revealed some in declining distance increased to feet while this results individual values. (J.A. 169). Moreover, report, the 1984 Dr. Fritzhand did conduct physical second examination standard, The material explanation 1984. While a detailed however, does demand that a claim “sedentary” limitation might have been ant’s point uniformly new evidence preferable, Grundy Mining’s we decline in- unmistakably a more out toward favorable Dr. vitation assume that Fritzhand’s come. tran requirement Such would choice the words “mild” in finality scend the concerns behind “sedentary” any significance lacks standard, ef and would whatsoever, particularly or medical basis initial fectively penalize miners whose *15 the employer produced any where has not problem claims were denied. This would opinion Flynn capable evidence or that was particularly be acute eases where sedentary more at activity of than the time narrowly prove miner to condi fails Finally, of his second claim. as further entitlement; tions of benefit under such Flynn’s declining evidence of condition be- circumstances, it would be unreasonable (i) tween 1980 and note: that he we insist that the miner’s new evidence ac job remained on the when Dr. Fritzhand companying signifi claim subsequent be him, first examined but had ceased work- cantly uniformly more of supportive visit;9 at the ing physician time of his 1984 benefits, an award of when even a modest (ii) that diagnosed pneumo- Dr. Fritzhand change in the overall record suffice would exam, coniosis following second in con- all of establish the elements of entitle diagnosis trast to his 1980 of chronic ob- ment. All that require that (iii) pulmonary disease; structive that sufficiently different to war be Flynn the record includes statements from rant a different outcome on one or more of required and his co-workers that he assis- elements, these so that we not be need performing tance in during his duties his making that two factfinders concerned are (see years job, few last J.A. at essentially different assessments of 142,144). Kirk, same record. As stated “material,” change must be that it meaning recognize Flynn's We that Mr. new evi- capability “has the converting accompanying an issue dence claim his 1984 does against point decisively determined the claimant into one not all a finding toward however, in his determined favor.” F.3d at 609 benefit Again, entitlement. n. 6. not high bar is so for a miner to demon- Notably, sumption pneumoco- 9. the fact disability that was still work- due to of total against adjudication (See 98, 103, 108.) counted him in the niosis. at J.A. pre- it initial because rebutted judgment. Director, strate a “material conditions” See Griffith OWCP, (6th Cir.1995). governing regulations. Accord- 49 F.3d under the 186-87 affirm the decision of the Board ingly, we parties here agree that Mr. Flynn’s that Mr. satisfies this Flynn’s showing of upon causation rests standard. Dr. Fritzhand’s 1984 report. Grundy
Mining contends that careful examination report B. The ALJ’s Decision to Award Bene- reveals no specific finding Supported that pneumoconiosis fits Is Evi- any Substantial contributed in way Flynn’s disability. dence. In support of argument, employer *16 finding authority.
vant to the
inquiry,
causation
do not com
reject
The claimant
pel
findings
bears the burden
us to
the ALJ’s
on this
proving
disability
of
total
due to pneumo
expressly recog
factual issue. The ALJ
and,
Grundy
correctly
coniosis
as
Mining
nized that Dr.
opinion
Fritzhand’s 1984
notes,
diagnosed
this causal link must be more than
pneu
heart disease
well as
Smith,
Nonetheless,
Peabody
de minimis.
Coal Co. v.
moconiosis.
in determining
(6th Cir.1997).
507
To satis
that
contributing
the latter was at least a
fy the
to” requirement
Flynn’s disability,
“due
of the BLBA cause of
the ALJ ob
implementing regulations,
and its
a claim
reported
served that Dr. Fritzhand
his
by
ant
a preponderance
“sedentary” finding
must demonstrate
in a section of the
of
evidence that pneumoconiosis
history
is DOL medical
and examination
merely
speculative
“more than
of
physician
cause
form which the
is asked to
disability,”
but instead “is a contribut
pulmonary
describe the limitations “due to
(J.A.
167.)
ing
consequence
cause of some discernible
Accordingly,
disease.”
totally disabling respiratory impair
to his
that
ALJ reasoned
“the limitations due to
Smith,
pulmonary
ment.”
the ALJ drew reasonable on Trust Fund. discretion in evaluat- lies within his “broad (J.A. 39.) medical evidence.” Finally, to notions appeal equity, in an of may not court aside an reviewing set “[A] that the Black Grundy Mining argues it finds another more inference because Fund Lung Disability Trust should bear Moseley Peabody Coal reasonable.” of liability for the award benefits (6th Cir.1985). Co., 360 769 legal Flynn. purely is a issue This that we de novo. See Consolida- address Grundy Min accept can we Nor Coal, This tion F.2d at 929. matter is any causal ing’s assertion that connection resolved, readily inextricably as it is linked support Dr. Fritzhand identified lacks disposition with our in the medical evidence. As underlying change” issue. noted, need not the sole pneumoconiosis be disability, only a cause of a miner’s Grundy Mining’s argument point this Dr. contributing factor. Fritzhand’s 1980 upon premise rests Frit- Dr. alike state that Mr. reports reports “nearly zhand’s are 1980 and history (Petitioner of long identical,” 20), had a shortness Br. at so that breath, only could ambulate a few that he they equally both must establish Mr. without associated shortness lung hundred feet Flynn’s to black entitlement benefits. breath, symptom follows, view, increased Grundy Mining’s It upon climbing walking up grades, stairs or just been must have entitled not mow a without he could lawn initial claim as benefits under his under his dyspnea, frequently that he Yet, associated if benefits present one. had been night awoke during shortness initial awarded under the the liabili- breath, long that he had from suffered ty would have been borne the Trust provides All of this cough. sup chronic provisions Fund the transfer under port pulmonary for a link between disease Quarto Mining, supra, BLBA. See addition, disability. noted (explaining operation F.2d at any opinion scheme). medical contra this, absence statutory From all dicting report Dr. Fritzhand’s or otherwise Grundy that it Mining reasons should not Flynn’s might suggesting that limitations presumably be made for the pay mistak- be other pneumo- due to a condition than claim; deny en decision to initial *17 rather, coniosis. equity dictates the Trust Fund any liability. should assume record, Under assessment “essentially Liability properly of Dr. from report Fritzhand’s is transfers resolve, credibility responsible operator for the ALJ to the Fund matter” Trust finally it “our on those were beyond scope lie limited claims which denied would assign weight Lung of review” to different or before effective date the Black (i.e., 1, opinion. Peabody Benefits Act of 1977 meaning to this medical Reform March Groves, (6th 829, 1978), reopened 277 F.3d and approved Coal Co. v. 836 then denied, Cir.2002), 1147, Caney 537 123 under the Act. See cert. U.S. 1977 Creek Coal (2003). 568, Satterfield, L.Edüd 849 Co. v. 150 F.3d 570-71 S.Ct. 154 Conse (6th Cir.1998); Quarto Mining, the Board’s quently, we affirm determina Flynn’s tion entitled to award of at 535. Mr. initial claim was de an under, to, prior reopened black nied and then lung benefits.
485 such, liability the 1977 Act. As for this Benefits Review Board awarding black lung earlier claim would have been transferred benefits to Douglas claimant W. Flynn. to the Fund had benefits Trust been denied, however,
awarded. claim This was MOORE, Circuit Judge, concurring. upon and this decision became final expiration period appeal- of the allotted I concur in the result in this case that seeking Grundy modification. Min- the award of lung black prop- benefits was therefore, ing, must invoke notions of equi- However, er. because I believe that the ty liability in order to transfer to the Trust majority’s interpretation of Sharondale Fund, obviously because such transfer is Corp. v. Ross and Tennessee Consolidated compelled aas matter of laiv. As the erroneous, Coal Co. v. Kirk is I write held, correctly Flynn’s Board current separately. claim, which was filed in does not Ross, Corporation transfer, statutory
meet the criteria for (6th Cir.1994), F.3d 993 spent consider- (and, matter, practical it was not as a could able assessing time the three alternate been) not have denied before the effective interpretations of the “material change” date of the 1977Act. requirement. These included meaning adopted by the Benefits Review Board in
Yet, Grundy Mining’s equitable Co., Spese v. Peabody Coal 11 BLR 1-174 appeal quickly founders on a flawed logical (1988) (that the “new present premise. In rejecting Grundy Mining’s possibility’ ‘reasonable it would issue, challenge on the “material change result”), administrative already we have held that there awas the standard enunciated the Seventh difference the bodies of evi OWCP, Circuit Sahara Coal Co. v. accompanying Flynn’s dence initial Cir.1991) (“[a] material and subsequent Accordingly, claims. condition means either that ‘the nothing necessarily wrong, there was much miner lung did not have black disease at unfair, less contrary results reached the time of the first application but has Indeed, Flynn’s principles two claims. since contracted it and totally become dis- finality flatly preclude question us from it, abled or that his pro- disease has ing the correctness of the initial claim de gressed point totally to the of becoming nial, and principles these same would de disabling although it was not at the time of if, Flynn’s feat Mr. Grundy ”), application’ the first position and the contends, Mining now the evidence accom posited by the Director. panying essentially the two un claims changed. By holding Ultimately, we chose to defer to the claim satisfied the “material change” stan interpretation Director’s of “material dard, and that properly benefits were conditions,” thereby adopting awarded under already we have what appropriately has come to be named *18 rejected necessary predicates the to Grun Sharondale, the “one element” test. dy Mining’s plea equitable for relief. Con F.3d at 997-98. The test holds that “to sequently, we affirm the Board’s decision assess whether a material change is estab- on point. this lished, the ALJ must all consider of the evidence, unfavorable, new favorable and IV. CONCLUSION and determine whether the miner has above, For the reasons forth proven set we at least one of the elements of AFFIRM the decision and order previously adjudicated of the entitlement against for inquiry comparison If miner the exis- in this between the him. the establishes element, produced demonstrat- new evidence the evidence tence of that he has the ed, law, change. prior Op. claim.” at a matter of a material connection as However, all of it then endorses Grun- must consider whether 477-478. Then the ALJ evidence, reading requiring of as including dy’s that submit- Sharondale the record analysis claims, engage a to in a previous supports the the ALJ ted with accompa- if the Id. to determine evidence finding of entitlement to benefits.” new test, nying subsequent we we did the claim is different this stressed that accepting supported “adopting from the old evidence that the not have unbridled discretion another,” majority that The believes over earlier claim. one construction correct on the last “previously afforded due defer- to be the view based we have Sharondale, paragraph in cases of which it position ence to the Director’s failing in- that “we faulted the ALJ for raising questions regulatory similar of claims at the claimant’s (quoting Id. Brown to determine whether new terpretation.” Co., qualitatively’ Mining x-ray v. evidence ‘differ[ed] Rock Creek Cir.1993)) (6th (internal facially x-ray quotation from the similar omitted). Op. claim.” accompanied prior went on to note that be- that the We Therefore, majority faded a chooses Congress provide cause us with 477. the interpret paragraph it is used this last of Sharon- definition of BLBA, adding requirement an Secretary “the of Labor’s dale as additional the However, the the element” provisions of of to the “one test. interpretation defer- correct Lung interpretation [wa]s Black Act entitled to is not the Sharon- ence,” long as it Id. dale. was reasonable. discourse, thorough we concluded
After
all,
First of
the
language
Sharondale
of the
light
that
it was “reasonable in
support
interpretation
does not
the broad
language
purpose of
statute and
majority
it.
assign
wishes to
The
725.309(d).”1
§in
Id. at 998.
included
premise
for
simple
case stands
that
however,
Now,
majority
wishes to de-
from the
passage
year
after
one
denial
part from this view and restrict the test
claim,
longer argue
can no
claimants
Di-
a manner not at all
endorsed
solely
are entitled to
on
they
benefits
rector.
their
ground
prior claims “should
majority
granted.”
“under a
The
concedes that
have been
Instead,
reading
they
test en-
must demonstrate
strict
‘one-element’
Director,
provide
‘materi- material
new evidence
dorsed
the ALJ’s
change’ inquiry
solely
establishing
change.
is limited
to the
such
Id. at 997-98.
al
embracing
interpretation
condition In
new evidence
claimant’s
Director’s
change,”
emphasized
the denial of his
with the
of “material
since
takes
asking
interpretation
whether this evidence estab-
Director’s
into
“[t]he
one of
between
statutory
lishes at least
the elements of bene-
account
distinction
adjudi-
of the Board’s de-
previously
request
fit entitlement
modification
request
at 477
against
Op.
the claimant.”
cision and
for benefits based
cated
added).
Id.
majority proceeds
a material
in condition.”
(emphasis
“[tjhere
this,
does not
seemingly
place
is no
998. Outside
to state
irrelevant, however,
Ross,
Corp.
language
Furthermore,
majority
the meaning the
faulting
ondale court’s act of
the ALJ for
give
wishes to
to this discussion fails to
failing'to
x-rays produced
look
all of the
an important
difficulty
take note of
textual
support
appropriate
the 1985 claim was
totally
which
an interpre-
undermines such
in
in
light of our decision
Woodward
By
tation.
out that
pointing
“[t]he
Director, OWCP,
320-21
x-rays
never discusses
the later
differ
how
Cir.1993).
case,
In that
we discussed the
qualitatively from those
submitted
decision
the ALJ to limit consideration
1985,”
simply
the Sharondale court was
x-ray
solely
to the
x-
last five
admonishing the ALJ for its failure to
rays
Specifically,
taken.
Id. at 319.
weigh
x-rays
address and
all of the
submit-
“recognized the need for qualitative evalu-
ted with the claim filed in 1985.2 Sharon-
evidence,
dale,
x-ray
ation of the
as well” as a
our
Cir.1997)
added)
(8th
(quot-
require
compare
(emphasis
to
ALJ to
7
interpreted
the
n.
11).
Mines,
claim with
n.
from the second
F.3d at 1363
the evidence
Lisa Lee
In
the earlier
claim.
that from
denied
to
“textual
addition
these
difficulties”
case,
to be
the sentence
for that
the
order
by Grundy’s interpretation,
created
even
qualitative-
have
would have to
said “differ
to
is its
more arduous
overcome
insistent
1979,”
ly
and not
from those submitted in
the
in isolation. As
paragraph
focus on
Hence,
majority’s
the
conclusion
notes,
must,
paragraph
Director
“[t]he
the
miners “must
that Sharondale holds that
course,
of
of
be read in the context
the
satisfy
terms of the
more than
the strict
do
Appel-
it.”
precedes
entire decision that
by “demonstrat[ing] that
test”
one-element
Immediately preceding
lee’s Br. at 24.
the
upon
dif-
qualitatively
rests
this
court,
issue,
paragraph at
the Sharondale
evidentiary record,”
is
Op.
ferent
analysis
engaging
thorough
after
of
by the
supported
language
Sharon-
standards,
differing
change”
“material
the
dale.
“one
concluded that
the Director’s
ele-
Concededly, it
that the
cannot be denied
ment” test should be accorded deference
sen-
phrase “the earlier denial” in the last
it was a
construction of
because
reasonable
the last paragraph
tence of
of Sharondale
Sharondale,
regulation at
the
issue.
claim. The
does in fact refer
the 1979
spoke
never
F.3d at 998.
Director
merely
Director views
as
sentence
analysis
qualitative
part
as
of “material
failure
serving
point
“to
out that the ALJ’s
Indeed, the
change” determination.
“one
the x-ray readings
all of
sub-
to consider
espoused by
test
element”
Director
duplicate
mitted with the
claim raised
flatly
previ-
bars review of
from
evidence
possibility that the
preponderance of
unless
until a
ous claims
might weigh
presence
against
evidence
proven.
has been
Id. at 997-98.
change,
pneumoconiosis,
and a material
“[cjourt
states,
implic-
Director
As the
just
conflicting x-ray
sub-
as the
evidence
acknowledged
itly
the irrelevance
evi-
weighed against
the 1979 claim
mitted with
condition
regarding
dence
the miner’s
Appellee’s
the existence
disease.”
-prior
the time of
first
claim'—
sen-
Alternatively,
Br. at 23-24.
this last
establishment
a material
—in
instructing the
might also be read as
tence
disregarding
the standard articulated
compare the
ALJ to
evidence submitted
Appel-
the Board in its
decision.”
Spese
with the second
submitted
Br. at 25.
lee’s
Indeed,
previously
with the
denied claim.
Furthermore,
majority’s reliance
out,
appropriately points
the Director
Kirk,
v.
Tennessee Consolidated Coal Co.
para-
these “textual difficulties” in the last
(6th Cir.2001),
489
Moreover,
998). Hence,
acceptance
holds that
of the Director’s
Kirk
42
in condi-
‘change
interpretation
a
of the Sharondale “material
“in
to measure
order
the sum of
compare
the ALJ must
is consistent
the
change”
tions’
standard
evidence with the sum
the new
other circuits
have dealt with this
evidence on which the denial
earlier
particular,
issue.
In
both the Fourth and
“A ‘materi-
premised.”
had been
Id.
claim
Eighth
Di
accepted
Circuits have
the
only if
evidence
change’ exists
the new
al
interpretation
rector’s
of the “material
is
establishes the element and
sub-
both
Mines,
change”
See Lisa Lee
standard.
stantially
claimant.”
supportive
more
of
1363; Lovilia,
Through
analysis,
court did
its
the Kirk
required
“seems to have
consideration
the “one
requirement
add a new
to
not
the
behind the earlier
to
evidence
denial
change”
“material
standard.
element”
it
Rather,
qualitative
‘differ[s]
Di- determine whether
Kirk
the
approvingly
reasserts
ly’ from
new
Lee
immediately
the
evidence.” Lisa
“one element” test
rector’s
Mines,
11;
comparison
F.3d at
n.
discussing the need for
see also
before
Lovilia,
Furthermore,
and old
as to rule
F.3d at 454 n. 7.
of the new
evidence so
court,
evidence.
claims based on the same
in deciding
accept
out
the Lovilia
to
the
however, the
importantly,
opinion
Id. More
approach,
pursuant
noted that
Director’s
the
be-
important
reiterates
difference
Supreme
precedent,
to
Court
established
“claim
and “material
tween
modification”
“[w]hen,
case,
in
like
the
is
issue
analysis.
discussing
the meth-
agency
interpret
whether
has erred in
the
examining
in
whether
employed
be
od to
ing
regulations,
Supreme
its
the
own
subsequent
on a
evidence submitted
provided
agen
that:
Court has stated
the
on a
to that
is identical
submitted
cy’s
‘does not violate
interpretation
“ALJ must
this court stated that the
statute,
or a federal
it must
Constitution
the sum of the new evidence with
compare
it
controlling
is
given
weight
be
unless
of the earlier
which
the sum
evidence
plainly erroneous
inconsistent with
”
prem-
of the claim had
the denial
been
Lovilia,
regulation.’
reason felt Plaintiff-Appellee, In assessing “one element” test. *22 interpre- of the Director’s reasonableness tation, “prem- we noted that his view was the
ised on notion miners disabled (02-1662); Joan Marie ANDERSON mine pneumoconiosis arising out of coal Sagorski (02-1673); Francis Albert to under employment are entitled benefits Rodger (02-1700); Yates Arthur Bruce Act. It affords a miner chance second Henry (02-1703); Modderman Susan provided to show entitlement to benefits (02-1736); Elaine Robert Lee Sloboda condition has worsened.” (02-1769); Goodwin, Elaine Jr. Ruth it was 998. We concluded that (02-1771), Defendants-Appel Shriver accept to inter- important Director’s lants. it was pretation because “reasonable 02-1703, 02-1673, 02-1662, 02-1771, Nos. light purpose of the statute and the 02-1736, 02-1700, 02-1769. 725.309(d).” § language included in Id. schizophrenic It strikes me as rather Appeals, United States Court of analyze in Sharondale to painstakingly us Circuit. Sixth weigh competing “material Argued and Submitted: Dec. 2003. Di- change” interpretations, choose the test, immediately then after- rector’s Decided Filed: Dec. wards, depart from the test that we have this, adopt. chosen Because I believe
that the interpretation majority Further- wrong. endorses
more, despite ambiguous fact that
language of Sharondale the mean- leaves open paragraph multiple last
interpretations, the rest the decision that it is acknowledge principle
does in a
inappropriate compare the evidence claim
new with the evidence submitted previously
connection with a denied assessing whether To
has been established. retreat from
“one element” test that we endorsed Di-
only violates the deference due above, proves
rector noted but also
utterly contradictory of our own Sharon- reasons, I opinion.
dale For these concur in the
only result. notes Having determined that Mr. Dr( Fritzhand diagnosed heart disease as had satisfied the “material stan pneumoconiosis, well as and that the de- dard, the ALJ turned to the merits of tailed findings set forth in his typewritten benefits, Flynn’s lung 1984 claim for black report provide no basis to discern which and found that the miner had established of these conditions was the cause of disability pneumoconiosis. total due to We Flynn’s Moreover, disability. least affirm this that it provided must decision findings some of these seemingly suggest upon rests substantial evidence the rec Flynn’s pulmonary might condition Coal, ord. See Consolidation disability be the cause of his —Dr. arguing this decision should reported, Fritzhand for example, aside, Grundy Mining be set contends that “normal,” expansion chest lacking the evidence is as to a causal link that he accessory did not “use muscles of pneumoconiosis between and total disabili respiration,” and that his “breath sounds Board, however, ty. agree with the We rales, rhonchi, [were] clear without that the ALJ’s resolution causation (J.A. 169.) wheezes.” proper issue reflects exercise his fact- points, certainly These while rele