*1 COMPANY, LABELLE PROCESSING
Petitioner, Office
John SWARROW Compensation Programs, Unit-
Workers’ Labor, Department Respon-
ed States
dents.
No. 95-3116. Appeals,
United States Court
Third Circuit.
Argued Oct. 1995. Nov. 1995.
Decided Rehearing Petition for Feb.
Sur *2 (Argued),
Mark E. Solomons Laura Met- Hadden, .Klaus, Washington, Arter coff & DC, for Petitioner. (Argued), Mine Work-
Jean Zeiler United Vernon, PA, Respon- District Belle for ers dent Swarrow. Williamson, Jr., Donald Thomas S. S.. Barber,
Shire, Dorothy Page P. L. Christian Department of La- (Argued), United States Solicitor, DC, bor, Washington, Office of the Respondent Office of Workers’ Programs, De- Compensation United States partment of Labor. SLOVITER, Judge, Chief
Before: GARTH, Judges. Circuit COWEN and THE OPINION OF COURT GARTH, Judge: Circuit Processing Company Petitioner Labelle (“Labelle”) appeals an adverse decision of the (“BRB”) of the Unit- Benefits Review Board (“DOL”). years), held for three or four Department of Labor he ed States underground until re- worked in mines he of an admin- BRB affirmed the decision (“ALJ”) tired. judge awarding law black istrative Swarrow, a former
lung benefits to John he testified that retired because *3 jurisdic- employee Labelle. The had respiratory problems, including chronic to the final decision of the ALJ tion review difficulty climbing ninety-four wheezing and 921(b)(3), § incorpo- as pursuant to 33 U.S.C. stair-steps thirteen-step a and ladder Lung Black Benefits Act rated into the his work station. Swarrow also testi- reach (“BLBA”), seq., by § U.S.C. 901 et pack ciga- had one fied that he smoked 932(a). jurisdiction § have over We days U.S.C. every three to four for about rettes pursuant final order to 33 U.S.C. upon the BRB’s forty years stopped smoking but retire- 921(c), incorporated § 30 U.S.C. as inhaler ment. Swarrow uses a Proventil1 932(a). § also takes other medication for his and breathing problems. arguments Labelle alternative advances 16, 1985, September Swarrow filed a (1) On for reversal: the ALJ’s determination the Black Ben- claim for benefits under employee former was entitled Labelle’s 1977, § seq. Act of 30 U.S.C. 901 et efits princi- to benefits under the BLBA violated claim The District Director denied Swarrow’s (2) ples judicata; applied the of res and ALJ February informing Swarrow finding wrong the standard in that the em- right that he had a to submit additional ployee had established “a material in request hearing medical evidence or a before conditions,” necessary prerequisite a subsequently an ALJ. Swarrow obtained filing duplicate a claim BLBA. under the and additional medical evi- counsel submitted judicata in inapplicable hold that res We support in of his claim. Labelle also dence context, agree present but we that the After submitted medical evidence. consider- apply ALJ did not the correct standard. We evidence, ing the new the District Director vacate the award of will therefore benefits reaffirmed the denial of Swarrow’s claim on proceedings for further consis- and remand May opinion. tent with this following submitted the Swarrow I. support medical evidence in of his claim: tests; x-rays; pulmonary chest six function Swarrow, Jr., claimant-respon- John gas and three blood studies. The results dent, thirty- worked as a coal miner for over (PFTs) pulmonary from the function tests years, retiring age four June studies, alone, gas standing and blood did sixty-three. for Swarrow worked disability.2 total not establish May In from 1976 to June 1985. his last loader, position, barge as a worked in a he physicians’ Swarrow also submitted small, room, very dusty operating control doctors, readings x-rays. of the chest Two preparation reader,”3 controls to load coal from the whom was a “B one of found plant onto a than barge. x-rays presence pneumoco Other when he was showed the (a doctors, employed barge position as a loader niosis. Four other three whom albuterol, sively disability” 1. Proventil is the brand name for establish "total within the bronchodilator, beta-adrenergic typically meaning regulations. admin- of the See OWCP Siwiec, (3d Cir.1990) istered in the form of an inhalation aerosol. See Physicians' Desk Reference 2280-83 ed. 1995). radiologist, physician, 3.A "B reader” is a often proficiency reading x- who has demonstrated "qualifying” pulmonary study rays pneumoconiosis passing annually 2. A function or for an gas yields study equal blood values that are to or examination established the National Institute Safety less than the values set out in the at Part Health tables and and administered 718, Appendices Department B C. See C.F.R. U.S. of Health and Human Services. 718.204(c)(1), (c)(2). 718.202(a)(1)(ii)(E); § In the absence of con- See 20 C.F.R. 42 C.F.R. evidence, trary probative "qualifying” generally give greater weight test results 37.51. Courts values) equal x-ray readings performed by less than the or table from "B readers.” See pulmonary gas function or blood studies conclu- Mullins Coal Co. v. readers,” x-rays On October Swarrow filed sec- that the determined “B were claim,” application, “duplicate or for ond negative for were support In lung benefits. of his new black addition, the evalu- application submitted Swarrow resubmit- Swarrow he had ted the medical evidence who had exam- physicians of several ations attempted to submit connec- submitted Riegel, request at the George Dr. him. ined original claim. This evidence tion with his DOL, on Novem- examined reports Drs. Garson and included determined 1985 and ber Silverman, rejected un- had been as which pneumoco- coal workers’ not suffer from did timely by accordingly had not the DOL February report In a dated niosis. by the DOL in its review of been considered treating Morgan, Swarrow’s Dr. Thomas *4 original application. Swarrow’s 18, 1983, diagnosed May physician since evi- also submitted new medical Swarrow pulmonary disease obstructive chronic PFTs, dence, x-rays, including chest and that Swarrow and concluded pneumoconiosis) gas gas studies. The PFTs and blood blood demonstrate, exposure to to coal totally disabled due not under the stan- was studies did regulations, in the federal dards set forth Kaplan Dr. examined Swarrow dust. Peter totally disabling respiratory impairment. 21, and found no evidence March on by reports Drs. Fino Additional medical opining that Swarrow was pneumoconiosis, phy- Kaplan also submitted. Both and were duties of his last capable performing not suffer sicians concluded that Swarrow did job. pneumoconiosis.5 physician, from Another Cander, upon his review of Swar- Dr. based 18, 1987, Swarrow, through coun- May On records, initially diagnosed row’s medical sel, attempted submit additional evidence.4 totally pneumo- as disabled due to Swarrow material, however, DOL, returned the recanted, stating that “the coniosis later but new evidence was advising that the Swarrow disabling pneumoconiosis has not presence of would not be consid- untimely and therefore avail- been established the information wrote, in a let- Specifically, the DOL ered. (Swar- Morgan to Drs. able.”6 addition ter, have been sub- that the evidence should treating physician), and row’s Garson Silver- year initial deci- one from the mitted within man, examining physicians, Drs. two other is, denying that one Swarrow’s Levine, sion concluded that Swarrow Cho and 21, disabling pneumoconiosis.7 from February 1987. suffered year prior to 427, 16, 135, 16, Kaplan on Dr. Peter examined Swarrow 433 n. 145 n. 108 S.Ct. 6, 21, 1986, 14, 1990, and June December March Ben Coal Co. v. Bat L.Ed.2d 450 tram, Old occasions, Kaplan Dr. found 1991. On all three (7th Cir.1993). 7 F.3d 1276 n. lung pneumoconiosis and im- no evidence of no however, deposed pairment. in Dr. When attempted evalua- to submit medical 4. Swarrow Kaplan that he had observed a decrease admitted performed J.D. Silverman and Dr. tions Dr. tests, lung function since the 1986 in Swarrow’s examined Garson. Dr. Silverman Warfield aging of this decrease to but attributed "some” 3, 1987, diagnosing April anthraco- Swarrow on effort exerted Swarrow and less than maximal obesity. and Dr. Silverman stated silicosis performing test. in totally was disabled due to anthracosil- Swarrow dust, Cander, actually by exposure did examine to coal and fur- 6. Dr. Leon who icosis caused Swarrow, medical records reviewed Swarrow’s opined would be disabled that Swarrow ther Compen- upon request Workers' of the Office of weight. even if he lost (OWCP). reported that After Dr. Cander sation on June examined Swarrow Dr. Garson pneumoconiosis, disabling the records indicated pneumoconiosis, diagnosing coal workers' 2, 1990, OWCP, February forwarded arteriosclerosis, obesity. and Dr. Gar- arthritis Cander and asked him "revised” file to Dr. that Swarrow was disabled son concluded reconsideration, Upon diagnosis. reevaluate his prob- of his medical as a result of a combination February report on a new Dr. Cander submitted lems. 12, 1991, diagnosis withdrawing and his earlier did concluding the medical evidence instead Gregory Swarrow on J. Fino examined Dr. disabling pneumoconiosis. not establish 21, 1987, diagnosed and bronchial asth- October bronchitis, ma, hypertension and a Yong asthmatic Swarrow on No- Dae Cho examined 7. Dr. 8, 1989, opined diagnosed disabling that Swar- restric- stomach ulcer. Dr. Fino also vember expo- hypoxia coal lung caused to coal dust disease with row's asthma was unrelated tive obesity. exposure dust sure. Finding proven only encompasses lung had not “a diseases caused conditions,”8 change fibrotic reaction of tissue to inhaled material the District duplicate Director denied claim in dust. See Doris Coal Swarrow’s Co. (4th Cir.1991). February
an order dated
1990. On 938 F.2d
6, 1990,
appealed
March
the denial
Congress granted
Secretary
of Labor
5,1990,
to the BRB.
On December
authority
promulgate regulations
broad
remanded Swarrow’s claim to the Office of
932(a),
§§
under
the BLBA.
30 U.S.C.
Judges,
upon
Administrative Law
based
936(a);
725.301-.422;
20 C.F.R.
see also
Director,
ruling
Tenth
Circuit’s
Lukman v.
Corp.,
OWCP v. National Mines
OWCP,
(1990),9
hearing
for a
Cir.1977) (holding
before an ALJ.
validity
regulations
will be sustained
“ ‘reasonably
long
pur-
as
as
9, 1992,
related to the
hearing,
April
After
held on
”)
poses
enabling legislation’
(quoting
ALJ, finding that Swarrow had established
Serv.,
Mourning
Family
Publications
conditions,”
“a material
issued its
Inc.,
356, 369,
93 S.Ct.
decision and order on March
1993. This
(1973)). Congress expressly
V. Spese, administrative result.” Lung Black (MB) 1-176; Rep. Shupink at see argues, alternative,12 also in the Co., (MB) Lung Rep. LTV Steel 17 Black applied 1- wrong ALJ standard de- 1-27 Rice v. termining Sahara Coal whether Swarrow demonstrated “a (MB) (1990) (en 1-19, Lung Rep. Black 1-21 change material in conditions.” The ALJ banc). Shupink, the BRB applied reaffirmed the standard enunciated Spese explained Spese Peabody Spese that under the Coal Black (MB) formulation, (Ben.Rev.Bd.1988) Rep. only the ALJ examines the fa- (per cu- riam). vorable new weigh evidence and does not ap- Labelle notes that the courts of against peal favorable evidence unfavorable new have addressed this issue uni- have Shupink, evidence. formly rejected Lung Rep. Spese standard. Labelle Ross, argues Corp. 1-28. See also Sharondale that the Third Circuit should likewise (6th Cir.1994). reject that standard. 725.309(d), Under 20 C.F.R. when a min- rejected Spese Seventh Circuit er files more than claim one plain misreading standard as “a regu- 309(d) merged ]_” later claims are with the first claim if lation [i.e. C.F.R. Sahara pending. the earlier claim is still If an earli- Coal Co. v. denied, however, (7th Cir.1991) J.).
er claim (Posner, has been a later Characteriz- claim must likewise ing Spese be denied “unless the “mak[ing] framework as [District Director] determines that there judicata,” has mincemeat of res the Seventh Cir- change been a material in conditions or the cuit declared “the [BRB] had confused a request later claim is a for modification in the claimant’s condition with the moconiosis is established one of the methods the determinations made the ALJ. read- Our *9 provision. listed ing opinion in the See 30 U.S.C. of the ALJ's does not disclose the 921(c)(3). rely pre- shortcomings Swarrow did not complains. on that of which Labelle We sumption not, however, proof but rather submitted that he was do reach or decide this issue in totally light disabled due to holding applied of our that the ALJ the legal incorrect standard. alternative, argues, 12. Labelle also in the that the ALJ’s decision appeal must be reversed because the ALJ 13. An the of Board’s decision was taken satisfy duty explana- failed to the Appeals factfinder's of to the United States Court of for the brief, Circuit, specify tion. In its Labelle fails to the preju- Seventh but was dismissed with findings allegedly of fact that by stipulation. Spese the ALJ did Peabody not dice See v. Coal fully explain. (7th 2, 1989) (order). Rather Labelle contests each of No. 88-3309 Cir. Feb.
317 Director, not newly agreeing evidence The while presentation of discovered judicata argument, res with Labelle’s does as un- justify reopening the case might agree with Labelle that the ALJ erred in 60(b) the Rules of Civil of Federal der Rule Director, however, following Spese. The Id. Procedure.” adopt a urges us to different standard than Spese, court criticizing the Sahara In the standard enunciated Sahara: finali- that the doctrine of its concern voiced interpretation, the Director’s Under the be ty, integral aspect judicata, of not res an evidence, ALJ must consider all of the new black by subsequent application for eroded unfavorable, favorable determine As recited the Sahara lung benefits. proven the miner at least whether has one court, of the elements of entitlement enough application that the new is not [i]t against adjudicated him. If the miner es- or new evidence of disease supported element, the of that tablishes existence he might disability, such because evidence demonstrated, law, has as a matter was merely original that the denial show change. must material Then the ALJ con- an thereby would' constitute wrong, and evidence, all of the record sider whether attack on that de- impermissible collateral including previous with the submitted nial. claims, supports finding of entitlement to Id. benefits. Ross, Corp. v. 42 standard, Sharondale F.3d 997- Spese/Shupink the place Cir.1994). (6th 98 favor- only to an
which looked evaluation evidence, the of- Seventh Circuit recently able new The Sixth Circuit embraced the change”: proposed its own definition “material after fered Director’s standard consider- ing Spese and Sahara standards. See id. ei- change conditions means A material acknowledged at 998. Sixth Circuit miner did have black that the ther the Sahara standard was “a reasonable inter- application at the time the first disease pretation change,” of material id. at but contracted it and become but has since interpretation, deferred DOL’s accu- it, totally or that his disease disabled rately noting that must defer to “courts becoming progressed point to has by Congress make agency ‘entrusted such disabling not at the although it was ” policy (quoting at 998 determinations.’ Id. application. the first time of Mines, Inc., 501 Pauley BethEnergy v. U.S. Id. 680, 697, 111 S.Ct. L.Ed.2d Circuit, Recently, Fourth in Lisa Lee (1991)). Director, OWCP, adopted v. the Sahara Mines lung regula Notably, the black “[b]ecause competing over formulations. standard rather tions are issued than [OWCP] (4th Cir.1995). BRB, F.3d [BRB], body it is to the former rather however, acquiesce refused has latter we owe the usual defer tha[t] than the rejection Spese,. instead circuit courts’ give interpreta agencies’ courts ence that of “ma adhering to its discredited definition governing- regulations of their own tions Shupink, change.” See terial Sahara, 557. See statutes.” Rep. (stating would at 1-27 that the Board Elec. v. Potomac Power Co. also apply Spese “except cases] [in continue to OWCP, 18, 101 278 n. jurisdiction ... arising Sev within 18, 66 n. L.Ed.2d Di Circuit.”). enth rector, Tucker OWCP Barnes & (3d agree Cir.1992); with our circuits that 1524, 1527 sister Saginaw We F.2d Min Mazzulli, Spese modification confuses the standard for ing Co. Cir.1987); Corp. new with the standard for Mines Di a decision Bethlehem OWCP, rector, in condi- on “a material Cir. claims based 1985).
tions.”
*10
commonly re-
was the
in Sahara.
14.
also
McNew
claimant
The Sahara standard is
Mr.
to as the McNew standard because
ferred
course,
agen
Accordingly,
Of
deference to an
we will
Sep-
vacate the BRB’s
cy’s interpretation
regulations
of its own
is
tember
1994 award of benefits to Swar-
only
interpretation
warranted
when the
is
row, with the direction that Swarrow’s claim
U.S.A.,
reasonable. Chevron
Inc. v. Natural
be remanded to the
for
proceed-
ALJ
further
Council, Inc.,
Resources
ings
Defense
opinion.
consistent with this
837, 845, 104
Lastly, urges us to affirm the
ALJ’s award of even if we conclude applied standard, wrong ALJ theory
under the that the error was harm- agree less. We cannot with disposition. WINTERBERG; Patricia James Winter decide, may very remand, The ALJ well on berg, Individually and as Husband evidence, that all of the new favorable and Wife, Plaintiffs/Appellants, unfavorable, (or balance, satisfies does not satisfy) the defining Sharondale standard “a change material TRANSPORTATION conditions.” If INSURANCE no materi- found, al COMPANY then Swarrow CNA Insurance cannot t/a pursue hand, Company, his Defendant/Appellee. second claim. On the other if the proved ALJ finds that Swarrow has “at No. 95-1206. least one of the new elements adjudicated him,” against Sharondale, 42 Appeals, United States Court of Swarrow will have demonstrated Third Circuit. change. a material point, At that the ALJ Argued Oct. 1995. evidence, must consider all of the record including prior submitted with the Decided Dec. to determine whether supports such evidence a finding of entitlement to benefits. These
determinations, however, must be made in
the first instance an ALJ.