                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0012p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                             X
                                              -
 BUCK CREEK COAL COMPANY; OLD

                               Petitioners, --
 REPUBLIC INSURANCE COMPANY,

                                              -
                                                 No. 11-4304

                                              ,
                                               >
                                              -
           v.

                                              -
                                              -
 GAY NELL SEXTON, widow of and on behalf
                                              -
 of FRABLE SEXTON; DIRECTOR, OFFICE OF
                                              -
                                              -
 WORKERS’ COMPENSATION PROGRAMS,

                              Respondents. -
 UNITED STATES DEPARTMENT OF LABOR,
                                             N
                   Appeal from the Benefits Review Board.
                      Nos. 10-0192 BLA; 10-0191 BLA.
                       Decided and Filed: January 10, 2013
   Before: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit
                                Judges.
                                _________________
                                     COUNSEL
ON BRIEF: Laura Metcoff Klaus, Mark E. Solomons, GREENBERG TRAURIG,LLP,
Washington, D.C., for Petitioners. Miller Kent Carter, CARTER & LUCAS,
ATTORNEYS, Pikeville, Kentucky, William L. Roberts, WILLIAM LAWRENCE
ROBERTS, P.S.C., Pikeville, Kentucky, for Sexton Respondent. Michelle S. Gerdano,
Gary K. Stearman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Government Respondent.
                                _________________
                                    OPINION
                                _________________
       MERRITT, Circuit Judge. Frable Sexton, a long-time smoker and career coal
miner, filed a series of petitions for benefits under the Black Lung Benefits Act. This
case arises from his final petition and award of benefits. After filing for benefits in
2001, Mr. Sexton passed away. However, an administrative law judge, hearing both Mr.
Sexton’s claim and his widow’s survivor claim, found that the medical evidence


                                          1
No. 11-4304         Buck Creek Coal, et al. v. Sexton, et al.                    Page 2


established a change in Mr. Sexton’s condition and that he suffered a total disability
from clinical and legal pneumoconiosis. The ALJ awarded benefits and the Benefits
Review Board affirmed. Buck Creek Coal Company appeals this determination, arguing
that its application of 20 C.F.R. § 725.309 is invalid and that it violates due process
because it contravenes the principles of finality and res judicata by permitting the re-
adjudication of the cause of black lung disease. We affirm the judgment of the Benefits
Review Board and hold that 20 C.F.R. § 725.309 is valid and was correctly applied in
this case and that the Board’s decision does not violate the long-standing principles of
finality or res judicata.

                                         I. Facts

        Frable Sexton spent 25 years working in coal mines. His struggle to receive
black lung benefits lasted even longer in the courts—starting in 1973 and continuing
today. Sexton first applied for benefits in 1973. The application was unsuccessful as
were two other claims. On April 12, 2001, two years after the denial became final, Mr.
Sexton filed a subsequent claim. This time the district director recommended an award
of benefits. Buck Creek Coal Company requested a formal hearing. While his claim
was still pending before the Office of Administrative Law Judges, Mr. Sexton died. His
widow filed her own claim for benefits and the district director issued a proposed
decision and order awarding benefits in the survivor claim. Buck Creek requested a
hearing.    Both claims were consolidated and heard on October 28, 2008.            The
administrative law judge considered four medical opinions, and based on that new
evidence, determined that Mr. Sexton suffered a total disability from clinical and legal
pneumoconiosis. The judge found that Sexton established a change in an applicable
condition of entitlement pursuant to 20 C.F.R. § 725.309 and accordingly awarded
benefits.

        Buck Creek appealed to the Benefits Review Board challenging the merits of the
decision, the ALJ’s application of 20 C.F.R. § 725.309, and the awarding of benefits in
a subsequent claim, which it contends violates the principles of res judicata. The Board
affirmed the award of benefits as to Mr. Sexton’s claim and affirmed in part and vacated
No. 11-4304        Buck Creek Coal, et al. v. Sexton, et al.                     Page 3


in part with respect to Sexton’s widow’s survivor claim. Buck Creek appeals the
decision in regard to Mr. Sexton’s claim only.

                             II. Black Lung Benefits Act

       The Black Lung Benefits Act provides benefits to coal miners who become
disabled due to pneumoconiosis. 30 U.S.C. § 901. Pneumoconiosis, commonly known
as black lung disease, is a “latent and progressive” disease caused by the “long-term
inhalation of coal dust.” Gray v. SLC Coal Co., 176 F.3d 382, 386 (6th Cir. 1999); 20
C.F.R. § 718.201(c).

       In order to establish entitlement to benefits under the Black Lung Benefits Act,
a miner must prove that (1) he suffered from pneumoconiosis, (2) the pneumoconiosis
arose out of coal mine employment, (3) the miner was totally disabled, and (4) his
disability was due to pneumoconiosis. 20 C.F.R. § 725.202(d)(2).

       Because pneumoconiosis is considered a “latent and progressive” disease, a
miner may file a subsequent claim even after a final order denying benefits. 20 C.F.R.
§ 725.309. For a successful subsequent claim, a miner must prove that one of the
applicable conditions of entitlement “has changed since the date upon which the order
denying the prior claim became final.” 20 C.F.R. § 725.309(d).

       Buck Creek argues that the ALJ in this case misapplied 20 C.F.R. § 725.309(d).
First, it argues that the ALJ should have found a “material” change in a condition of
entitlement, rather than just a “changed” condition of entitlement. Buck Creek ignores
the current regulatory language. The previous version of 20 C.F.R. § 725.309(d)
required that a subsequent claim be denied unless “there has been a material change in
conditions.” 20 C.F.R. § 725.309(d) (1999) (emphasis added). However, the current
version of 20 C.F.R. § 725.309(d) became effective on January 1, 2001, and uses the
language “change[d] . . . conditions” of entitlement. The ALJ looked to the current
version of § 725.309(d) and after considering new evidence in the form of medical
opinions from four physicians, determined that there was in fact a change in a condition
of entitlement.
No. 11-4304         Buck Creek Coal, et al. v. Sexton, et al.                          Page 4


        Next, Buck Creek argues that the ALJ erred in not comparing the old evidence
from previous claims with new evidence. Indeed, this practice, a version of the “one-
element test,” was once the approach endorsed by this Court. It required the ALJ to
compare “the sum of the new evidence with the sum of the earlier evidence on which the
denial of the claim had been premised.” Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602,
609 (6th Cir. 2001); Sharondale Corp. v. Ross, 42 F.3d 993, 998 (6th Cir. 1994).
Several of our sister circuits rejected our formulation of the “one-element test.” See,
e.g., U.S. Steel Mining Co., v. Director, OWCP, 386 F.3d 977, 988 n.12 (11th Cir. 2004);
Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 n.7 (8th Cir. 1997); Lisa Lee Mines v.
Director, OWCP, 86 F.3d 1358, 1363 n.11 (4th Cir. 1996).

        After the removal of the word “material” from the language of § 725.309(d), the
Department of Labor explained that the section created “a threshold test which allowed
the miner to litigate his entitlement to benefits without regard to any previous findings
by producing new evidence that established any of the elements of entitlement
previously resolved against him.” 65 Fed. Reg. 79920, 79968 (Dec. 20, 2000). The
Department also explicitly stated that the regulation was intended to codify the Fourth
Circuit’s test as articulated in Lisa Lee Mines. Id.

        Recently this Court adopted the regulatory interpretation urged by the Director
of the Office of Workers’ Compensation in Cumberland River Coal Company v. Billie
Banks and Director, OWCP, 690 F.3d 477 (6th Cir. 2012). As this Court explained in
Cumberland,

        [W]e construe the term “change” to mean “disproof of the continuing
        validity” of the original denial, rather than the “actual difference between
        the bodies of evidence presented at different times.” Under this
        definition, the ALJ need not compare the old and new evidence to
        determine a change in condition; rather, he will consider only the new
        evidence to determine whether the element of entitlement previously
        found lacking is now present.

Id. at 486 (internal citations omitted).
No. 11-4304        Buck Creek Coal, et al. v. Sexton, et al.                        Page 5


       The ALJ in considering Mr. Sexton’s claim did just that. He looked to the new
evidence, medical opinions from four physicians, and determined that an element of
entitlement previously found lacking in the earlier claims was now present in this latest
and final claim. Thus, the ALJ appropriately applied the test put forth by the Department
and this Court in Cumberland.

       Buck Creek also argues that the ALJ’s consideration of this subsequent claim is
invalid and violates due process because it contravenes the well-established principles
of finality and res judicata. It does not challenge the ALJ’s factual determination of a
changed condition, but rather just the legal question of whether the finding violates res
judicata. Buck Creek looks as far back as the Theodosian Code, the Justinian Code,
Babylonian law, ancient Jewish law, and the trial of the Duchess of Kingston in 1776 to
argue that the ALJ recklessly dispensed with thousands of years of law by awarding Mr.
Sexton benefits. Buck Creek needed to look only so far as this circuit’s and other
circuit’s modern jurisprudence to find that res judicata is not violated by the filing of a
subsequent claim under the Black Lung Benefits Act. Sharondale Corp., 42 F.3d at 998
(“[T]he doctrine of res judicata is not implicated by the claimant’s physical condition or
the extent of his disability at two different times.”); see also U.S. Steel Mining Co.,
386 F.3d at 990; Midland Coal Co. v. Director, OWCP, 358 F.3d 486, 490 (7th Cir.
2004); Lovilia Coal Co., 109 F.3d at 450; Wyoming Fuel Co. v. Director, OWCP,
90 F.3d 1502, 1510 (10th Cir. 1996); Lisa Lee Mines, 86 F.3d at 1362; Labelle
Processing Co. v. Swarrow, 72 F.3d 308, 313-16 (3d Cir. 1995).

       A claimant is required to submit newly developed evidence to ensure that he is
not merely relitigating the prior claim. The latent and progressive nature of black lung
disease ensures that a claimant’s physical condition may be different at entirely different
times, and thus, the claims are not the same. The § 725.309(d) standard “gives full credit
to the finality of the original denial, but plainly recognizes that pneumoconiosis is a
latent and progressive disease, and that a miner’s condition can change over time.” U.S.
Steel Mining Co., 386 F.3d at 990. As the Third Circuit explained in Labelle Processing,
“The denial of [a prior] claim . . . established only that [the miner] was not then totally
No. 11-4304         Buck Creek Coal, et al. v. Sexton, et al.                    Page 6


disabled due to pneumoconiosis.” 72 F.3d at 314. A subsequent claim, on the other
hand, is an “asserti[on] that [the miner] is now . . . totally disabled due to . . .
pneumoconiosis and that his disability occurred subsequent to the prior adjudication.”
Id.

        In the prior unsuccessful claim, the ALJ did not find that the pneumoconiosis
substantially contributed to Mr. Sexton’s disability at the time the claim was filed;
however, new evidence developed subsequent to the denial established a change in
condition, specifically that the pneumoconiosis substantially contributed to his total
disability in 2001, when the last claim was filed.          As this Court recognized in
Sharondale, a miner’s physical condition changes over time, and thus the presence of
the disease at one point in time in no way precludes future proof that the disease has
become present or has become so severe as to become totally disabling. 42 F.3d at 998.
The ALJ did not err in adjudicating Mr. Sexton’s subsequent claim, as it did not violate
the principle of res judicata.

                                     III. Conclusion

        The ALJ in this case appropriately applied 20 C.F.R. § 725.309 and found that
Frable Sexton, after 25 years of working in the coal mines, developed disabling
pneumoconiosis. In doing so, the ALJ did not contravene any long-standing legal
principles. For the foregoing reasons, we affirm the awarding of benefits.
