        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206                2       Peabody Coal Co., et al. v. Odom, et al. No. 02-3085
     ELECTRONIC CITATION: 2003 FED App. 0303P (6th Cir.)
                 File Name: 03a0303p.06                        Christian P. Barber, UNITED STATES DEPARTMENT OF
                                                               LABOR, OFFICE OF THE SOLICITOR, Washington, D.C.,
UNITED STATES COURT OF APPEALS                                 for Respondents. ON BRIEF: Mark E. Solomons, Laura
                                                               Metcoff Klaus, GREENBERG TRAURIG LLP, Washington,
               FOR THE SIXTH CIRCUIT                           D.C., for Petitioners. Jeffrey S. Goldberg, Christian P.
                 _________________                             Barber, UNITED STATES DEPARTMENT OF LABOR,
                                                               OFFICE OF THE SOLICITOR, Washington, D.C., for
 PEABODY COAL CO . and OLD X                                   Respondents. Melba Odom, Sturgis, Kentucky, pro se.
 REPUBLIC INSURANCE CO .,        -
                                                                                       _________________
                   Petitioners, -
                                 -    No. 02-3085                                          OPINION
                                 -                                                     _________________
            v.                    >
                                 ,
                                 -                               DAMON J. KEITH, Circuit Judge. Petitioners appeal from
 MELBA J. ODOM and               -                             a decision of the Benefits Review Board of the United States
 DIRECTOR, OFFICE OF             -                             Department of Labor affirming the award of black lung
 WORKERS ’ COMPENSATION          -                             benefits to respondent Melba J. Odom. For the reasons set
 PROGRAMS, UNITED STATES         -                             forth below, we AFFIRM the decision of the Benefits
                                 -                             Review Board.
 DEPARTMENT OF LABOR,
                                 -
                  Respondents. -                                                       I. BACKGROUND
                                N
                                                                 Lonnie Odom1 worked as a coal miner for 21 years. For
   On Petition for Review of a Decision of the Benefits        the last five years of his career, he worked for the Peabody
   Review Board, United States Department of Labor.            Coal Company. His employment with Peabody and his career
                    No. 00-0752 BLA.                           as a miner both ended abruptly in 1976, when he was
                                                               seriously injured in a mine accident.2 Also around this time,
                  Argued: June 12, 2003                        Odom began to have breathing problems, for which he took
                                                               medication beginning in 1976 or 1977.
          Decided and Filed: August 25, 2003
                                                                 Odom filed a claim for benefits under the Black Lung
Before: KEITH, MOORE, and GIBBONS, Circuit Judges.             Benefits Act, 30 U.S.C. §§ 901-945, on October 9, 1979.
                   _________________
                                                                   1
                        COUNSEL                                        Odom is deceased. Melba J. Odom is his widow.

                                                                   2
ARGUED: Mark E. Solomons, GREENBERG TRAURIG                          Odom applied for and received workers’ compensation and Social
LLP, Washington, D.C., for Petitioners. Jeffrey S. Goldberg,   Security disability benefits for his injuries. The 1976 accident is not
                                                               relevant to Odom ’s claim for black lung benefits.

                             1
No. 02-3085 Peabody Coal Co., et al. v. Odom, et al.        3    4    Peabody Coal Co., et al. v. Odom, et al. No. 02-3085

Department of Labor Administrative Law Judge (ALJ) Daniel        finding of a “material change in conditions” was not
Leland denied benefits on May 2, 1984. Odom did not              supported by substantial evidence. Peabody also contends
appeal, and the decision became final.                           that Judge Neal erred in relying on the diagnosis of Odom’s
                                                                 treating physician in concluding that Odom was entitled to
   On April 2, 1986, Odom filed a new application for            benefits, despite expert testimony that he did not have
benefits. The claim was governed by regulations contained        pneumoconiosis.
in 20 C.F.R. Part 718. See 20 C.F.R. § 718.2 (2001). In order
to establish entitlement to benefits under Part 718, a miner                         II. DISCUSSION
must prove that: (1) he has pneumoconiosis; (2) his
pneumoconiosis arose at least in part out of his coal mine       A. Standard of Review
employment; and (3) he is totally disabled by
pneumoconiosis. See C.F.R. §§ 718.202, 718.203, 718.204            We review a decision of the ALJ to award black lung
(2001). Moreover, because this was Odom’s second claim, he       benefits to determine whether it is supported by substantial
was also required to prove that he had suffered a “material      evidence and is consistent with applicable law.
change in conditions” following the denial of his first claim.   Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246
20 C.F.R. § 725.309(d) (1999).                                   (6th Cir. 1995). When the question is whether the ALJ
                                                                 reached the correct result after weighing conflicting medical
  The matter was assigned to ALJ Richard Huddleston.             evidence, our scope of review is exceedingly narrow. Absent
Judge Huddleston concluded that the criteria were met, and       an error of law, findings of facts and conclusions flowing
awarded benefits on January 31, 1992. Peabody Coal               therefrom must be affirmed if supported by substantial
Company and its insurer, Old Republic Insurance Company          evidence. Id. (internal quotation marks and citations
(collectively referred to as “Peabody” hereinafter), appealed    omitted). More than a mere scintilla, substantial evidence is
the award of benefits to the Benefits Review Board (“the         that which “a reasonable mind might accept as adequately
Board”). The Board affirmed. Peabody then filed a petition       supporting a conclusion.” Id. As long as the ALJ’s
for review in this Court. In an unpublished opinion dated        conclusion is supported by the evidence, we will not reverse,
January 24, 1995, this Court vacated the award and remanded      “even if the facts permit an alternative conclusion.” Id.
the case to the ALJ for further consideration. Peabody Coal      Questions of law are reviewed de novo. Peabody Coal Co. v.
Co. v. Odom, 1995 WL 27497 (6th Cir. Jan. 24, 1995).             Greer, 62 F.3d 801 (6th Cir. 1995).

  The matter was then assigned to ALJ Mollie Neal. Judge         B. Analysis
Neal concluded that the criteria for entitlement to benefits
were met, and issued a decision awarding benefits on               We begin with a summary of the medical evidence in this
September 11, 1997. Peabody appealed, and the Board              case. Between March 16, 1977 and June 11, 1996, several
vacated the award and remanded the case to the ALJ for           chest x-rays were performed on Odom. These x-rays
further consideration.                                           produced two positive readings for pneumoconiosis and ten
                                                                 negative readings prior to May 2, 1984, the date his initial
  Judge Neal again awarded benefits on March 31, 2000.           claim was denied. After May 2, 1984, there were six positive
The Board affirmed, and Peabody again petitioned this Court      readings and thirteen negative readings.
for review. On appeal, Peabody contends that Judge Neal’s
No. 02-3085 Peabody Coal Co., et al. v. Odom, et al.                   5    6    Peabody Coal Co., et al. v. Odom, et al. No. 02-3085

  On May 6, 1986, Dr. Valentino Simpao diagnosed Odom                       inflammatory scarring. The letter stated that pneumoconiosis
with coal workers’ pneumoconiosis 1/1 and chronic                           could be a contributing factor. On July 17, 1995, Dr. Houser
bronchitis, related to his coal mine employment. Dr. Simpao                 stated that he had treated Odom for pneumoconiosis since
concluded that Odom was moderately impaired and lacked                      1991. On February 22, 1996, Dr. Houser stated his
the respiratory capacity to perform his usual coal mine                     conclusion, based on pulmonary function studies, that
employment.                                                                 Odom’s pneumoconiosis was a significant factor contributing
                                                                            to his decrease in pulmonary function.
  On September 22, 1986, Dr. Wallas Bell, Odom’s treating
physician since the 1970s, reported that Odom was totally                      Dr. J. Selby examined Odom on June 11, 1996. Dr. Selby
disabled by coal workers’ pneumoconiosis.             On                    observed that, while Odom denied that he smoked, there was
November 13, 1989, Dr. Sam Traughber examined Odom and                      a strong smell of cigarette smoke about him. Dr. Selby found
diagnosed him with coal workers’ pneumoconiosis 2/2 and                     evidence of smoker’s lung disease. Odom’s chest x-ray was
cardiovascular disease. Dr. Traughber stated that Odom                      negative for pneumoconiosis, and Dr. Selby found no
should have no further exposure to coal mine dust.                          evidence of pneumoconiosis or any disease or impairment
                                                                            induced by exposure to coal dust. Dr. Selby stated that the
  In addition to these doctors, Odom was frequently seen by                 decreases in Odom’s pulmonary and respiratory functioning
Dr. William Houser, described below as Odom’s treating                      were consistent with the development of bronchial asthma,
physician since 1980. Dr. Houser is a pulmonary specialist,                 and that his coal mine employment was not a cause of any
board certified in internal medicine and pulmonary disease.                 pulmonary or respiratory problems.
On June 16, 1980, Dr. Houser diagnosed Odom with:
(1) chronic bronchitis secondary to coal mine employment                      On August 17, 1996, Dr. G. Fino, a pulmonary specialist,
and cigarette smoking3 ; (2) possible coal workers’                         reviewed Odom’s medical records. Dr. Fino concluded that
pneumoconiosis; (3) history of bilateral kidney trauma; and                 Odom did not have an occupationally acquired pulmonary
(4) possible hypertension. The record contains a letter from                condition. Dr. Fino based his findings on the following five
Dr. Houser to Odom dated October 16, 1987, encouraging                      factors: (1) the majority of the chest x-ray readings were
him to stop smoking.                                                        negative for pneumoconiosis; (2) results of pulmonary
                                                                            function studies, which were generally normal when Odom
  In Dr. Houser’s treatment notes, an August 18, 1989 report                gave adequate effort; (3) elevated lung volumes consistent
diagnosed Odom with coal workers’ pneumoconiosis 1/0,                       with obstructive lung disease but not with pneumoconiosis;
chronic bronchitis, and moderately severe chronic obstructive               (4) Odom’s normal diffusion capacity; and (5) the absence of
pulmonary disease. In a letter dated November 3, 1993, Dr.                  an impairment of oxygen transfer.
Houser noted recent x-ray and CT lung scan results showing
nodular densities in the right lung, probably due to post-                    Another pulmonary specialist, Dr. P. Tuteur, reviewed
                                                                            Odom’s medical records on August 29, 1996. Dr. Tuteur
                                                                            found no evidence to support a diagnosis of significant
    3                                                                       pneumoconiosis. Rather, he diagnosed Odom with chronic
       Shortly after his accident in 1976, O dom resumed smoking
cigare ttes after a twenty-year hiatus. There is some dispute as to how     bronchitis induced by cigarette smoke. Dr. Tuteur noted that
long he continued to smoke, but Odom admitted he was still smoking as       Odom’s pulmonary problems began in May of 1984, more
late as 19 88. App arently, O dom ’s son lived with Odom and was a smoker   than eight years after he had stopped working in a coal mine.
as well.
No. 02-3085 Peabody Coal Co., et al. v. Odom, et al.          7    8       Peabody Coal Co., et al. v. Odom, et al. No. 02-3085

Dr. Tuteur opined that if Odom had contracted                        Peabody’s second contention is likewise without merit.
pneumoconiosis from working in the mine, symptoms would            Judge Neal found that Odom had pneumoconiosis, a totally
have begun to appear within a few years of his cessation of        disabling respiratory impairment. Her finding was based
mine employment.                                                   entirely on evidence relating to Odom’s condition after
                                                                   May 2, 1984, the date on which his initial claim was denied.4
  A claimant seeking benefits after an initial denial must         In particular, Judge Neal focused on a series of pulmonary
prove that he has suffered a “material change in conditions”       function tests performed after 1991 that demonstrated Odom’s
following the denial of his first claim. 20 C.F.R.                 respiratory disability. She also credited the testimony of
§ 725.309(d) (1999). To establish a material change in             medical experts that Odom’s respiratory impairment became
conditions, a claimant must prove, based on medical evidence       totally disabling after 1984. Therefore, it is clear that Judge
of his condition since the initial denial, at least one of the     Neal did indeed analyze the new evidence and determined
elements previously adjudicated against him. See Sharondale        that it established that Odom had developed pneumoconiosis.
Corp. v. Ross, 42 F.3d 993, 997-98 (6th Cir. 1994). “[N]o
miner is entitled to benefits simply because his [initial] claim     Peabody’s third contention is also without merit. The main
should have been granted.” Id. at 998.                             thrust of Peabody’s third argument is that pneumoconiosis is
                                                                   not a latent or progressive disease. In other words, Peabody
  Judge Neal found that Odom had established a material            argues that a person cannot develop pneumoconiosis from
change in conditions. Citing Dr. Houser’s report, she              exposure to coal dust after a period of years during which he
concluded that Odom had established the presence of                was not employed as a coal miner. Peabody advanced this
pneumoconiosis by newly submitted evidence. On appeal,             argument the first time this case came before this court, and
Peabody contends that Judge Neal erred in finding a material       we rejected it. See Peabody Coal Co. v. Odom, 1995 WL
change in conditions. Peabody first claims that Judge Neal         27497 (6th Cir. Jan. 24, 1995). As we pointed out then, there
misidentified the elements of entitlement adjudicated against      is a long line of Sixth Circuit cases characterizing
Odom in his initial claim. Second, Peabody claims that Judge       pneumoconiosis as progressive. See Sharondale, 42 F.3d at
Neal failed to analyze the new evidence to determine if it         996; Woodward v. Director, OWCP, 991 F.2d 314, 319 (6th
established an element adjudicated against Odom the first          Cir. 1993); Saginaw Mining Co. v. Ferda, 879 F.2d 198, 205
time and was substantially more supportive of Odom’s               (6th Cir. 1989); Orange v. Island Creek Coal Co., 786 F.2d
position. Third, Peabody claims that Judge Neal’s finding is
not supported by evidence.
   Peabody’s first contention in support of its argument that          4
                                                                         W e note that Jud ge N eal, in her material-change analysis, did refer
Judge Neal erred in finding a material change in conditions is     to a document that was or could have been submitted in Odom’s initial
without merit. Judge Neal found that Odom had developed            claim — a 1980 m edica l evaluation of Odom by Dr. Houser.
pneumoconiosis. The ALJ who heard Odom’s first claim               Neve rtheless, Judge Neal’s opinion indicates that her finding of a material
                                                                   change due to the new evidence of pneumoconiosis did not consider the
found that Odom had failed to prove that he had                    evaluation itself as new evidence suppo rting the finding of
pneumoconiosis. It is clear that Odom proved to Judge Neal         pneum oconiosis. The 1980 evaluation was used only to devalue the
one of the elements previously adjudicated against him. That       testimony of two of Peabody’s doctors, who presumed that Odom did not
is all the law requires.                                           have pneumoco niosis in 1980. M oreover, Ne al’s consideration of the
                                                                   1980 evaluation was o nly one of the reasons why she chose to value
                                                                   Houser’s post-198 4 testimony ove r the two Pea body doctors.
No. 02-3085 Peabody Coal Co., et al. v. Odom, et al.        9    10    Peabody Coal Co., et al. v. Odom, et al. No. 02-3085

724, 727 (6th Cir. 1986). The progressive nature of              proceedings.” Eastover Mining, 2003 WL 21756342, at *7.
pneumoconiosis has also been recognized by the Supreme           We noted that “other circuits have . . . rejected the treating
Court. See Mullins Coal Co. v. Director, OWCP, 484 U.S.          physician rule in black lung litigation,” id. at *8, and that the
135, 151 (1987). In light of these binding precedents, we        relevant Department of Labor regulations do not call for
must reject Peabody’s argument that pneumoconiosis cannot        automatic acceptance of the treating physician’s opinion, id.
arise or progress in the absence of continued exposure to coal   After analyzing these authorities, we concluded that the
dust.                                                            opinions of treating physicians are not necessarily entitled to
                                                                 greater weight than those of non-treating physicians in black
   In evaluating the medical evidence in this case, Judge Neal   lung litigation. Id. at *9. Instead, “ALJs must evaluate
accorded additional weight to the opinions of Dr. Houser,        treating physicians just as they consider other experts.” Id.
Odom’s treating physician. On appeal, Peabody takes issue
with Judge Neal’s preference for Dr. Houser’s opinion. In
Tussey v. Island Creek Coal Co., we held that in black lung        Eastover Mining did not hold that deference to treating
litigation, “opinions of treating physicians are entitled to     physicians is never appropriate. We simply stated that “in
greater weight than those of non-treating physicians.” 982       black lung litigation, the opinions of treating physicians get
F.2d 1036, 1042 (6th Cir. 1993). Peabody notes that the          the deference they deserve based on their power to persuade.”
Supreme Court recently criticized the so-called “treating        Id. “For instance,” we continued, “a highly qualified treating
physician rule” in the context of disability determinations      physician who has lengthy experience with a miner may
under employee benefit plans covered by the Employee             deserve tremendous deference, whereas a treating physician
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.        without the right pulmonary certifications should have his
§§ 1001-53. See Black & Decker Disability Plan v. Nord,          opinions appropriately discounted.” Id.
123 S.Ct 1965 (2003). Peabody argues that in light of Black
& Decker, courts should not prefer or defer to the opinions of      Applying the standards set forth in Eastover Mining, we
treating physicians in cases brought under the Black Lung        conclude that Judge Neal properly accorded additional weight
Benefits Act.                                                    to Dr. Houser’s opinions. Judge Neal noted that Dr. Houser
                                                                 was a “highly qualified,” board-certified pulmonary
   We recently considered the status of the treating physician   specialist. He treated Odom for at least 16 years, producing
rule in Eastover Mining Co. v. Williams, ___ F.3d ___, 2003      what Judge Neal described as “probative and persuasive
WL 21756342, at *1 (6th Cir. July 31, 2003). We noted that       medical reports.” J.A. at 64. Judge Neal considered Dr.
“this Court’s jurisprudence is somewhat equivocal,” Eastover     Houser’s extensive treatment notes from 1980 through 1996.
Mining, 2003 WL 21756342, at *7, and that subsequent cases       She found that Dr. Houser’s opinion was well supported by
have limited Tussey by emphasizing that treating physicians      his ongoing treatment of Odom and well documented in his
are not automatically presumed to be correct, id. (citing        treatment notes. She found that Dr. Houser’s diagnosis of
Peabody Coal Co. v. Groves, 277 F.3d 829, 834 (6th Cir.          pneumoconiosis was supported by positive chest x-ray reports
2002); Wolf Creek Collieries v. Dir., OWCP, 298 F.3d 511,        included in the record. Judge Neal described Dr. Houser’s
521 (6th Cir. 2002)). We also discussed Black & Decker,          report as “the most persuasive” of the expert opinions she
concluding that the Court’s “critiques of the ‘treating          considered. In other words, Judge Neal gave deference to the
physician rule’ apply with equal force to the notion that        “persuasive” opinions of a highly qualified physician who had
treating physicians should receive deference in black lung
No. 02-3085 Peabody Coal Co., et al. v. Odom, et al.        11    12   Peabody Coal Co., et al. v. Odom, et al. No. 02-3085

treated Odom for many years. Such deference is appropriate          Recalling the narrow scope of our review, we find that
under Eastover Mining.                                            Judge Neal’s decision to award benefits was supported by
                                                                  substantial evidence and was consistent with applicable law.
  Peabody also claims that Judge Neal did not properly credit     While the facts in this case might permit an alternative
and weigh the other opinions in the record, as required by        conclusion, see Youghiogheny & Ohio Coal Co. v. Webb, 49
Peabody Coal v. Groves, 277 F.3d 829 (6th Cir. 2002). We          F.3d 244, 246 (6th Cir. 1995), we must not disturb Judge
disagree. In addition to Dr. Houser’s opinion, Judge Neal         Neal’s decision in this case because it is supported by the
also considered the opinions of Drs. Simpao, Bell, and            evidence.
Traughber, each of whom diagnosed Odom with
pneumoconiosis. Contrary to suggestions in Peabody’s brief,                          III. CONCLUSION
Judge Neal did not ignore the opinions of Drs. Selby, Fino,
and Tuteur, each of whom found no evidence that Odom had           For these reasons, the decision of the Benefits Review
pneumoconiosis. Judge Neal noted that these doctors based         Board awarding black lung benefits is AFFIRMED.
their conclusions that Odom did not have pneumoconiosis in
part on a finding that pneumoconiosis was not evident in
Odom in 1980, and that this finding was contradicted by Dr.
Houser’s 1980 diagnosis of Odom as having possible coal
miner’s pneumoconiosis.
  Peabody argues that Judge Neal resolved the conflict
between the examining physicians not on the basis of their
reasoning and support, but solely based on Dr. Houser’s
unique status as the treating physician. That is not correct.
Judge Neal considered the findings and opinions of the
examining and treating physicians, the laboratory test results,
and the qualifications of the physicians. She found that Dr.
Houser’s report was well-reasoned and that his opinions were
supported by documents in the record. She stated that his
report was “the most persuasive,” repeatedly referring to his
“probative and persuasive medical reports.” J.A. at 64.
  Nor did Judge Neal “resort to [Dr. Houser’s] status to
resolve the conflict in the record.” Appellant’s Br. at 38.
Rather, she analyzed all of the relevant evidence, including
the opinions of doctors who disagreed with Dr. Houser, and
concluded that the presence of pneumoconiosis in Odom had
been established.
