           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2      Grundy Mining Co. v. Flynn, et al.        No. 01-3111
        ELECTRONIC CITATION: 2003 FED App. 0454P (6th Cir.)
                    File Name: 03a0454p.06                                                     _________________
                                                                                                    COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED: Ronald E. Gilbertson, BELL, BOYD & LLOYD,
                  FOR THE SIXTH CIRCUIT                                    Washington, D.C., for Petitioner. Mary Forrest-Doyle,
                    _________________                                      UNITED STATES DEPARTMENT OF LABOR,
                                                                           Washington, D.C., for Respondents. ON BRIEF: Ronald E.
 GRUNDY MINING COMPANY ,       X                                           Gilbertson, BELL, BOYD & LLOYD, Washington, D.C., for
                   Petitioner, -                                           Petitioner. Christian P. Barber, Edward Waldman, UNITED
                                -                                          STATES DEPARTMENT OF LABOR, Washington, D.C.,
                                -   No. 01-3111                            for Respondents.
           v.                   -
                                 >                                           ROSEN, D. J., delivered the opinion of the court, in which
                                ,                                          GILMAN, J., joined. MOORE, J. (pp. 30-38), delivered a
 DOUGLA S W. FLYNN and          -
 DIRECTOR, OFFICE OF                                                       separate opinion concurring in the result only.
                                -
 WORKERS ’ COMPENSATION         -                                                              _________________
 PROGRAMS, UNITED STATES        -
 DEPARTMENT OF LABOR,           -                                                                  OPINION
                 Respondents. -                                                                _________________
                                -
                               N                                               ROSEN, District Judge.
       On Petition for Review of an Order of the                                               I. INTRODUCTION
                Benefits Review Board,
          United States Department of Labor.                                 This action for coal miner’s black lung benefits arises under
                   No. 99-0386 BLA.                                        Title IV of the Federal Coal Mine Health and Safety Act of
                                                                           1969, as amended, 30 U.S.C. §§ 901-945 (“Black Lung
                     Argued: August 6, 2002                                Benefits Act” or “BLBA”). The petitioner/employer, Grundy
                                                                           Mining Company, appeals from a final order of the United
            Decided and Filed: December 23, 2003                           States Department of Labor (“DOL”) Benefits Review Board
                                                                           (“Board” or “BRB”) granting benefits to respondent/claimant
 Before: MOORE and GILMAN, Circuit Judges; ROSEN,                          Douglas W. Flynn. The respondent Director of the Office of
                  District Judge.*                                         Workers’ Compensation Programs of the DOL (“Director”)
                                                                           has also been named as a party in interest.
                                                                              This case has a long and involved history. Mr. Flynn filed
    *
     The Honorable Gerald E. Rosen, United States District Judge for the   his first claim for black lung benefits in 1970, while he was
Eastern District of Michigan, sitting by designation.                      still working in the coal mines. The claim was finally denied

                                   1
No. 01-3111         Grundy Mining Co. v. Flynn, et al.        3    4       Grundy Mining Co. v. Flynn, et al.               No. 01-3111

in 1981 because Flynn failed to prove that he was totally          II. FACTUAL AND PROCEDURAL BACKGROUND
disabled due to the pulmonary ailment pneumoconiosis. Had
Flynn been entitled to benefits at that time, responsibility for   A. The Claimant’s Coal Mine Employment and Medical
payment would have been assumed by the Black Lung                     History
Disability Trust Fund (“Trust Fund”).
                                                                      Claimant Douglas W. Flynn was born in May 1913,
   Mr. Flynn filed another claim for benefits in 1984, a month     completed eighth grade, and by 1932 was working in the
after retiring from the coal company. Pursuant to 20 C.F.R.        Tennessee coal mines. His career in the mines spanned more
§ 725.309 (1999), this claim was considered a “duplicate.” In      than 50 years, ending in 1984. For approximately 20 years
order to escape the res judicata effect of his earlier claim,      early in his career, he worked in the mines as a maintenance
Flynn had to demonstrate a “material change in conditions”         man. During the latter part of his career, Flynn worked as a
since the prior claim’s denial. Having surmounted this             light and utility man, with his responsibilities including
threshold obstacle, he then had to prevail on the merits. The      delivery of supplies to various areas of the mine and tending
present “duplicate” claim has been back and forth between the      to the electric lamps used by the miners. Although his work
Administrative Law Judge (“ALJ”) and the Board four times.         station at that time was at the entrance to the mine, he
On appeal to this Court, three questions remain: (1) Did Mr.       remained exposed to coal dust.
Flynn establish a “material change” under the governing legal
standard? (2) Who, as between Grundy Mining and the Trust            Mr. Flynn first applied for black lung benefits in November
Fund, should bear responsibility for paying any award of           1970, claiming that he was disabled by virtue of breathing
benefits? and, (3) Does substantial evidence support the           difficulties. He was engaged in coal mine employment at the
ALJ’s finding that Flynn’s total disability was due to             time, and remained so employed in 1981 when his first claim
pneumoconiosis?                                                    ultimately was denied. Flynn filed a duplicate claim in March
                                                                   1984, a month after retiring (at age seventy) from the coal
  In the administrative proceedings, the Board held that Mr.       company. It is this 1984 claim that is at issue here.
Flynn had properly established a “material change” and total
disability due to pneumoconiosis. The Board acknowledged             Two medical opinions of record, both by Dr. Martin
some idiosyncrasies in the examining doctor’s report, yet          Fritzhand, are relevant to the issues before us. First, upon
deferred to the ALJ’s judgment in weighing the evidence.           examining Mr. Flynn on behalf of the DOL on July 26, 1980,
The Board further held that Grundy Mining must assume              in connection with the miner’s first claim, Dr. Fritzhand
responsibility for the payment of benefits since Flynn’s 1984      reported a pulmonary function study which was non-
claim did not meet the statutory requirements for transfer to      qualifying,1 as set forth in Table 1 below.
the Trust Fund. For the reasons set forth below, we affirm the
Board’s decision on each of these points.

                                                                       1
                                                                         A pulmonary function study which “qualifies” to demonstrate total
                                                                   disability under 20 C.F.R. § 718.204(b)(2)(i) is one in which the FEV 1
                                                                   and either the MVV or FVC meet or fall below the table values at
                                                                   Appendix B of 20 C.F.R. Part 718 for the miner’s height, age, and gender,
                                                                   or in which the ratio of the FEV 1 to FVC is 55 p ercent or less.
No. 01-3111                Grundy Mining Co. v. Flynn, et al.             5    6       Grundy Mining Co. v. Flynn, et al.        No. 01-3111

             Table 1: 1980 Pulmonary Function Study                               Dr. Fritzhand reported at that time that Flynn could
                                                                               “ambulate on level terrain no more than 200 feet without
                  Forced          Forced       Maximum        FEV 1/FVC        associated shortness of breath,” and that this “this symptom
                 Expiratory        Vital       Voluntary                       increase[d] upon climbing stairs or walking up grades.” (J.A.
                 Vo lume in      Cap acity     Ventilation                     at 135.) The doctor further stated that Flynn was “unable to
                    One                                                        mow a lawn without associated dyspnea.” Id. When asked to
                  Second         (“FVC”)        (“MVV ”)
                                                                               “describe and explain limitations . . . that may be due to
                 (“FEV 1”)                                                     pulmonary disease,” Dr. Fritzhand opined that Flynn could do
                                                                               “mild activity at best without ass[ociated] s[hortness] o[f]
 Qualifying        # 2.51          # 3.2          # 100         # 0.55         b[reath].” (J.A. at 133.) Dr. Fritzhand diagnosed chronic
  Standard                                                                     obstructive pulmonary disease related to coal mine
   Flynn’s           3.3            4.3            117             0.77
                                                                               employment, as well as hypertension.
   Actual
   Result                                                                        Four years later, and several months after he ceased coal
                                                                               mine work, Mr. Flynn again was examined by Dr. Fritzhand
Dr. Fritzhand further reported an arterial blood gas study on                  on behalf of the DOL, this time in connection with the present
that occasion which was non-qualifying as well,2 as shown in                   claim. In a report dated June 16, 1984, Dr. Fritzhand noted
Table 2 below.                                                                 another non-qualifying pulmonary function study, as well as
                                                                               another non-qualifying blood gas study. See Tables 3 and 4
                 Table 2: 1980 Blood Gas Study                                 below.
                                                                                              Table 3: 1984 Pulmonary Function Study
                                  pCO2                       pO2
     Qualifying                                              # 62                                  FEV 1       FVC       MVV      FEV 1/FVC
     Standard                                                                      Qualifying      # 2.35     # 3.02      # 94         # 0.55
                                                                                    Standard
  (at pCO2 = 37.5)
                                                                                    Flynn’s         3.3        4.2        67.2          0.79
   Flynn’s Actual                  37.5                      80.0                   Actual
       Result                                                                       Resu lt




    2
      A blo od gas study which “q ualifies” to dem onstrate total disability
under 20 C .F.R. § 718.204(b)(2)(i) must have values at or below the table
values at Appendix C of 20 C.F.R. Part 718 for the altitude at which the
test was administered.
No. 01-3111         Grundy Mining Co. v. Flynn, et al.        7    8        Grundy Mining Co. v. Flynn, et al.         No. 01-3111

               Table 4: 1984 Blood Gas Study                       generally Director, OWCP v. Quarto Mining Co., 901 F.2d
                                                                   532, 535 (6th Cir. 1990) (reviewing this statutory scheme).
                             pCO2                  pO2
                                                                     Following this second round of review, Mr. Flynn’s initial
       Qualifying                                 # 66             claim for black lung benefits was finally denied by the DOL’s
        Standard                                                   district director on June 15, 1981. The district director
                                                                   determined that Flynn had pneumoconiosis arising out of his
 (at pCO2 = 33.9)                                                  coal mine employment, but denied the claim on the ground
                                                                   that Flynn failed to establish his total disability as a result of
   Flynn’s Actual            33.9                  72.1            this disease.
      Result
                                                                       2.    Flynn’s Second Claim for Black Lung Benefits
   Following this examination, Dr. Fritzhand reported that            Mr. Flynn subsequently filed the present claim on
Flynn could “ambulate on level terrain no more than 300 feet       March 13, 1984. The district director denied the new claim
without associated shortness of breath,” and that “this            but, at Flynn’s request, referred it for a formal hearing. A
symptom increase[d] upon climbing stairs or walking up             lengthy administrative review process ensued, spanning well
grades.” (J.A. at169.) He also stated that Flynn was “unable       over a decade, and culminating in the Benefits Review
to mow a lawn without associated dyspnea.” Id. When asked          Board’s September 2000 decision which is now being
to “describe and explain limitations . . . that may be due to      challenged on appeal. The following summarizes the rulings
pulmonary disease,” Dr. Fritzhand responded that Flynn was         issued during the course of this protracted review process.
able to do “no more than sedentary activity.” (J.A. at 167.)
Dr. Fritzhand diagnosed ASHD (arteriosclerotic heart disease)        ALJ I: ALJ V.M. McElroy heard the case and issued a
with atrial fibrillation, hypertension, and congestive heart       July 20, 1987 Decision and Order (“D&O”) awarding
failure, as well as pneumoconiosis related to coal mine            benefits. The ALJ did not address whether Mr. Flynn had
employment.                                                        established a “material change in conditions” since the denial
                                                                   of his previous claim. He did, however, find Flynn totally
B. Procedural History                                              disabled due to pneumoconiosis arising out of his fifty years
  1.    Flynn’s First Claim for Black Lung Benefits                of coal mine employment.

   Mr. Flynn’s initial claim for federal black lung benefits was      BRB I: Grundy Mining appealed and, on January 31,
filed on November 21, 1970, and was originally denied by the       1989, the Board issued a D&O vacating the award and
Social Security Administration (“SSA”) on April 9, 1971.           remanding the matter for further consideration. The Board
Flynn then filed an election card to request review of this        found that ALJ McElroy had overlooked the “material
claim under the Black Lung Benefits Reform Act of 1977. As         change” issue, but nevertheless held that Flynn had
a result of this filing, any liability would have transferred to   established a material change as a matter of law under Spese
the DOL’s Trust Fund, had Flynn been entitled to benefits.         v. Peabody Coal Co., 11 BLR 1-174 (Ben. Rev. Bd. 1988).
See 30 U.S.C. § 932(c),(j)(3); 20 C.F.R. § 725.496(d). See         The Board remanded, however, for further consideration on
                                                                   the merits of benefits entitlement.
No. 01-3111         Grundy Mining Co. v. Flynn, et al.      9    10   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

   ALJ II: On remand, ALJ McElroy again awarded benefits,        pneumoconiosis is the only pulmonary disability that Dr.
this time in a D&O dated April 29, 1991. However, the ALJ        Fritzhand included in his 1984 medical report.” (Id.)
failed to address Grundy Mining’s motion to dismiss and
transfer liability to the Trust Fund.                               BRB III: The Board affirmed the award of benefits in a
                                                                 D&O dated July 27, 1995. In so holding, the Board first
  BRB II: Grundy Mining again appealed. On October 4,            addressed the proper standard for establishing a “material
1993, before the Board could issue a decision, Mr. Flynn         change in conditions.” In its initial decision, the Board held
died, and his widow, Gussie Flynn, pursued the claim on his      that Flynn had established a “material change” pursuant to the
behalf. On April 4, 1994, the Board once again vacated the       then-prevailing Spese standard. In Sharondale Corp. v. Ross,
ALJ’s findings on the merits of entitlement and remanded for     42 F.3d 993, 997 (6th Cir. 1994), however, this Circuit
further consideration. In so ruling, however, the Board re-      rejected the Spese standard. Consequently, the Board now
affirmed its earlier holding of “material change,” and also      held that a “material change” consistent with Sharondale
rejected Grundy Mining’s transfer argument on the ground         would be established if it could affirm ALJ Campbell’s
that only the 1984 claim — which did not qualify for transfer    finding that Dr. Fritzhand’s 1984 opinion established total
— remained open.                                                 disability.
  ALJ III: On January 30, 1995, ALJ Campbell issued a              Next, in affirming this finding, the Board explained that the
D&O on remand reinstating the award of benefits. First, the      ALJ permissibly found the doctor’s opinion sufficient to
ALJ found that pneumoconiosis had been established on the        establish total disability, since this finding was based on a
basis of both the x-ray evidence and the medical opinions.       comparison of Dr. Fritzhand’s 1984 assessment limiting
Second, he found that Dr. Fritzhand’s 1984 opinion (that         Flynn to sedentary activity with the exertional requirements
Flynn could do no more than sedentary activity) established      of Flynn’s last coal mine employment. The Board further
total disability since Flynn’s last coal mine employment was     held that ALJ Campbell acted within his discretion in
incompatible with this sedentary restriction. The ALJ went       determining that Dr. Fritzhand’s medical report outweighed
on to explain that Dr. Fritzhand’s 1984 opinion outweighed       the non-qualifying test results.
the non-qualifying pulmonary function and blood gas studies
because such results “are not self explanatory, and no             Proceeding to the issue of pneumoconiosis, the Board
physician has used them to support a conclusion that             upheld the ALJ’s determination that Dr. Fritzhand’s 1984
Claimant is not disabled due to pneumoconiosis.” (J.A. at        opinion was documented and reasoned. Because there were
49.)                                                             no contrary medical opinions of record, the Board affirmed
                                                                 ALJ Campbell’s finding of pneumoconiosis. Finally, while
  Finally, regarding disability causation, ALJ Campbell noted    the Board recognized that Dr. Fritzhand had diagnosed heart
that Dr. Fritzhand had diagnosed both cardiac and pulmonary      disease as well as coal mine employment-related
conditions in his 1984 report. However, the ALJ pointed out      pneumoconiosis, it held that the ALJ had acted within his
that, in this report, Dr. Fritzhand had explicitly stated that   fact-finding discretion in determining that Flynn’s total
Flynn’s limitation to sedentary activity was attributable to     disability was due to pneumoconiosis.
pulmonary disease. Consequently, ALJ Campbell reasoned
that “the limitation due to pulmonary disease that Dr.             BRB IV: In response to Grundy Mining’s timely motion
Fritzhand listed must be related to pneumoconiosis because       for reconsideration, the Board vacated the award and
No. 01-3111          Grundy Mining Co. v. Flynn, et al.        11    12   Grundy Mining Co. v. Flynn, et al.         No. 01-3111

remanded in a D&O on Reconsideration dated July 14, 1997.              ALJ Campbell next turned to the inquiry that the Board had
In so ruling, the Board construed the last portion of                instructed him to perform on remand, and found that there
Sharondale as “requir[ing] that a miner show that there has          were qualitative differences between Dr. Fritzhand’s two
been a worsening in his physical condition.” (J.A. at 30.)           reports. Specifically, the ALJ observed that in 1984, Dr.
The Board therefore instructed the ALJ to address on remand          Fritzhand conducted new pulmonary function and blood gas
whether there was any qualitative difference between Dr.             studies which, though still not qualifying, reflected at least
Fritzhand’s two opinions:                                            some declining values. Additionally, the ALJ noted that Dr.
                                                                     Fritzhand had conducted a new physical examination in 1984,
  [T]he administrative law judge, on remand, must explain            resulting in a “sedentary” restriction that was more limiting
  whether he merely disagreed with the previous                      than the “mild activity” finding in the doctor’s 1980 report.
  characterization of Dr. Fritzhand’s 1980 medical report            Thus, ALJ Campbell concluded that Flynn established a
  [as not establishing disability] or whether claimant has           “material change in conditions” consistent with the Board’s
  shown, through the submission of Dr. Fritzhand’s 1984              directives.
  medical opinion, a material change in his condition since
  the earlier denial.                                                  BRB V: On September 27, 2000, the Board affirmed ALJ
                                                                     Campbell’s finding of a “material change in conditions” and,
(J.A. at 32.) Thus, the sole purpose for remand was                  therefore, affirmed the award of benefits. In the process, the
reconsideration of the “material change” issue under the             Board declined to revisit the issue of whether Dr. Fritzhand’s
Board’s revised reading of Sharondale.                               1984 opinion was documented and reasoned based on the
                                                                     law-of-the-case doctrine. Instead, the Board endorsed the
   ALJ IV: On November 5, 1998, ALJ Campbell issued a                ALJ’s reasoning vis-à-vis “material change” because Dr.
D&O on Remand (“ALJ IV”) awarding benefits. At the                   Fritzhand had conducted a new physical examination and new
outset, the ALJ opined that this case was factually similar to       objective tests in 1984, and had downgraded Flynn’s physical
Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir.             capacity from “mild activity” in 1980 to “sedentary activity”
1996) (en banc), cert. denied, 519 U.S. 1090 (1997), in which        in 1984. The Board did note Dr. Fritzhand’s findings that
the Fourth Circuit addressed the meaning of the “material            Flynn could walk 200 feet in 1980 and 300 feet in 1984, but
change” standard. The ALJ accepted Lisa Lee Mines as                 nonetheless held that substantial evidence supported the
persuasive authority, and described it as standing for the           ALJ’s findings, and that this minor incongruity would not
proposition that “an administrative law judge cannot base a          have required the ALJ to discredit the 1984 report.
finding of material change on his or her disagreement with the
factual underpinnings of a prior denial.” (J.A. at 23.) Rather,        Grundy Mining timely sought reconsideration of the
in a material change analysis, the ALJ must accept as correct        Board’s latest ruling, but the Board summarily denied this
both the prior denial and the facts necessary to sustain it. (Id.)   request on December 20, 2000. This appeal followed.
Applying this standard, the ALJ reasoned that since Flynn’s
earlier claim was denied and Dr. Fritzhand’s 1980 opinion                                  III. ANALYSIS
was part of the record considered on that occasion, it followed
that this opinion did not establish total disability. (Id. at 24.)     Grundy Mining advances three challenges to the
                                                                     administrative award of black lung benefits to Mr. Flynn.
                                                                     First, it contends that the ALJ erred in finding a “material
No. 01-3111         Grundy Mining Co. v. Flynn, et al.      13    14       Grundy Mining Co. v. Flynn, et al.                No. 01-3111

change in conditions” since the denial of Flynn’s previous        administrative proceedings now under review. When Mr.
claim. Next, Grundy Mining argues that the record is              Flynn filed his most recent claim for black lung benefits in
insufficient to sustain the ALJ’s determination on the merits     1984, more than a year after his earlier claim was denied in
that Flynn was disabled due to pneumoconiosis. Finally, in        1981, the pertinent regulations in effect at the time required
the event that the award of benefits is sustained, Grundy         that his subsequent claim be denied “on the grounds of the
Mining argues that the liability for this claim should be borne   prior denial” unless “there has been a material change in
by the Black Lung Disability Trust Fund. We consider each         conditions.” 20 C.F.R. § 725.309(c) (1999).3
of these contentions in turn.
                                                                     We addressed this regulation at length in Sharondale Corp.
A. The ALJ Properly Found a “Material Change in                   v. Ross, supra. Upon surveying three possible constructions
   Conditions” as Required to Avoid the Res Judicata              of the “material change” requirement, including the meaning
   Effect of the Denial of Mr. Flynn’s Previous Claim for         adopted by the Board in Spese, supra, and the standard
   Benefits.                                                      articulated by the Seventh Circuit in Sahara Coal Co. v.
                                                                  OWCP, 946 F.2d 554 (7th Cir. 1991), we elected to defer to
  1.   Standard of Review                                         the position advocated by the Director. See Sharondale, 42
                                                                  F.3d at 997-98. Specifically, we characterized the Director’s
  Whether the ALJ and the Board applied the appropriate           “one-element” test as follows:
“material change” standard is a purely legal question that we
address de novo. See Director, OWCP v. Consolidation Coal           [T]o assess whether a material change is established, the
Co., 884 F.2d 926, 929 (6th Cir. 1989). To the extent,              ALJ must consider all of the new evidence, favorable and
however, that the ALJ’s determination of a “material change”        unfavorable, and determine whether the miner has proven
rests upon factual findings, we must accept all such findings       at least one of the elements of entitlement previously
that are “supported by substantial evidence in the record           adjudicated against him. If the miner establishes the
considered as a whole.” Consolidation Coal, 884 F.2d at 929;
see also Peabody Coal Co. v. Hill, 123 F.3d 412, 415 (6th
Cir. 1997). More generally, in the course of our review, we
must “keep in mind that the Black Lung Benefits Act is                 3
remedial in nature and must be liberally construed to include           The Secretary of Labo r revised this regulation, along with many
the largest number of miners as benefit recipients.” Peabody      others applicable to black lung claim adjudication, in final rules published
                                                                  on December 2 0, 20 00. See 65 Fed. Reg. 79920-80107 (Dec. 20, 2000 ).
Coal,123 F.3d at 415 (internal quotations and citations           Througho ut this opinion, we cite to the 1999 edition of Title 20, Code of
omitted).                                                         Federal Regulations in order to refer to the regulations in their earlier
                                                                  form. All other referenc es will be to the current regulations.
  2.   The ALJ’s “Material Change” Inquiry Fully
       Comported with the Standard Announced in this                   Although the revised regulations generally apply to pending claims,
       Court’s Sharondale Decision.                               § 725.309 is one of the stated exceptions to this rule. See 20 C.F.R.
                                                                  § 725.2(c); 65 Fed. Reg. at 8005 7. The present version of this regulation
                                                                  no longer includes the “material change” language, but instead requires
  As starkly illustrated by our recitation of the lengthy         that a claimant demon strate a change in “one of the applicable conditions
procedural history of this case, the “material change” standard   of entitleme nt.” 20 C.F.R . § 725.309 (d). Because the current regulation
has engendered a great deal of debate during the course of the    does not apply here, we need not determine the legal significance of this
                                                                  revision.
No. 01-3111             Grundy Mining Co. v. Flynn, et al.             15     16   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

  existence of that element, he has demonstrated, as a                          Finally, we considered whether the administrative decision
  matter of law, a material change.                                           under review properly found a “material change in
                                                                              conditions” in accordance with the standard we had adopted:
Sharondale, 42 F.3d at 997-98.
                                                                                  Under the Director’s interpretation, the ALJ did not
  In holding that the Director’s interpretation was entitled to                 properly analyze the facts. In assessing the second claim,
deference, we found that it struck a reasonable balance                         the ALJ concluded that because he found the new x-ray
between res judicata concerns and the remedial nature of the                    evidence established the existence of pneumoconiosis, a
BLBA:                                                                           material change in [claimant] Ross’s condition had
                                                                                occurred. The record shows, however, that both positive
  Here, the Director’s interpretation is premised on the                        and negative x-ray interpretations by both “B” readers
  notion that miners disabled by pneumoconiosis arising                         and “non-B” readers accompanied [Ross’s] 1979 claim
  out of coal mine employment are entitled to benefits                          as well as the 1985 claim. The ALJ never discusses how
  under the Act. It affords a miner a second chance to                          the later x-rays differ qualitatively from those submitted
  show entitlement to benefits provided his condition has                       in 1985. Thus, we are unable to discern on the record
  worsened. The interpretation implicitly recognizes that                       before us whether the ALJ merely disagreed with the
  the doctrine of res judicata is not implicated by the                         previous characterization of the strength of the evidence
  claimant’s physical condition or the extent of his                            or whether Ross indeed had shown the existence of a
  disability at two different times. The entitlement is not                     material change in his condition since the earlier denial.
  without limits, however; a miner whose condition has
  worsened since the filing of an initial claim may be                        Sharondale, 42 F.3d at 999 (footnotes omitted).
  eligible for benefits, but after a year has passed since the
  denial of his claim, no min[e]r is entitled to benefits                        This last portion of Sharondale gives rise to the parties’
  simply because his claim should have been granted. The                      principal point of contention in this case. Arguably, under a
  Director’s interpretation takes into account the statutory                  strict reading of the “one-element” test endorsed by the
  distinction between a request for modification of the                       Director, the ALJ’s “material change” inquiry is limited
  Board’s decision and a request for benefits based on a                      solely to the new evidence of the claimant’s condition since
  material change in conditions. Accordingly, we find the                     the denial of his prior claim, with the ALJ asking whether this
  Director’s interpretation to be reasonable in light of the                  evidence establishes at least one of the elements of benefit
  purpose of the statute and the language included in                         entitlement that previously were adjudicated against the
  § 725.309(d).                                                               claimant. There seemingly is no place in this inquiry for
                                                                              comparison between the new evidence and the evidence
Sharondale, 42 F.3d at 998.4                                                  produced in connection with the prior claim. Yet, in applying
                                                                              the “one-element” standard to the facts in Sharondale, we
                                                                              faulted the ALJ for failing to determine whether the
                                                                              claimant’s new x-ray evidence “differ[ed] qualitatively” from
    4
                                                                              the facially similar x-ray evidence that accompanied the prior
      Sha rondale addressed § 725 .309(d) (1999 ), while this case concerns   claim. Sharondale, 42 F.3d at 999. On remand, we directed
§ 725.309(c) (1999). The operative language of these two su bsections is      the ALJ to determine whether there was such a qualitative
identical, however.
No. 01-3111              Grundy Mining Co. v. Flynn, et al.              17     18     Grundy Mining Co. v. Flynn, et al.                   No. 01-3111

difference, or whether the ALJ “merely disagreed” with the                         We are not free to pick and choose the portions of a prior
decision to deny the prior claim under a qualitatively similar                  published decision that we will follow and those that we will
evidentiary record. 42 F.3d at 999.                                             disregard. Nor do we enjoy greater latitude in situations
                                                                                where our precedents purportedly are tainted by analytical
   In the present case, Grundy Mining reads Sharondale as                       flaws, as the Director contends is the case with Sharondale.
augmenting the basic “one-element” test in one important                        Rather, we are bound by the published opinions of previous
respect. Upon finding a change in at least one of the elements                  panels, and this rule encompasses all parts of a prior ruling
of benefit entitlement — the pure “one-element” inquiry —                       that are properly construed as holdings rather than dicta. See
the ALJ then must compare the evidence accompanying the                         Johnson v. City of Cincinnati, 310 F.3d 484, 493 (6th Cir.
miner’s two claims, in order to determine whether a                             2002), cert. denied, 123 S. Ct. 2276 (2003). It can hardly be
qualitative difference in the record supports the change in                     contended that the final paragraph of Sharondale is dicta, as
outcome as to this element. The Director, on the other hand,                    this is the portion of the opinion in which the panel applied
argues that this reading of the last paragraph of Sharondale is                 the “material change” standard to the facts of the case before
irreconcilable with the immediately preceding portion of that                   it. Specifically, although the miner in that case had met the
decision, in which the panel held that the Director’s “one-                     strict terms of the “one-element” test — his initial claim was
element” standard was entitled to deference as a reasonable                     denied for failure to establish the presence of
exercise of agency policy-making authority. It is quite
unlikely, in the Director’s view, that the Sharondale Court
would critique the competing “material change” standards,
accurately summarize the Director’s proposed “one-element”                      Simp ly stated, there were no such distinct “1985” and “later” subsets of
test and its rationale, announce its adoption of the Director’s                 x-ray evidence accompa nying the miner’s duplicate claim in that case.
interpretation, and then, in the very next paragraph, disregard                 W ith the benefit of the underlying administrative decisio n, as placed into
                                                                                the record by the Director, we learn that the x-rays accompanying the
the strict “one-element” standard and order the ALJ to                          miner’s duplicate claim in Sha rondale were taken in April and May of
examine the evidence underlying the denial of the original                      1986 and J uly, Nove mbe r and December o f 1989. See Ross v.
claim as a prerequisite to finding a “material change.”5                        Sharondale Corp., Case No. 86-BLA-4985, slip op. at 7 (July 25, 1990)
                                                                                (unpublished). Thus, no x-ra ys were taken in 1985, and it follows that
                                                                                none could have been subm itted that year versus “later.” Moreo ver, it is
    5
                                                                                not even true that the ALJ in Sha rondale uniformly favored the “later”
      The Director also suggests, and J udge Moore likewise maintains in        over the earlier x-rays accompanying the miner’s duplicate claim. Rather,
her conc urrence, that this interpre tative dilemma can be avoided by           the ALJ considered all of the 1989 and one of the 1986 x-rays, with the
construing the last paragraph of Sha ronda le as not actually mandating a       remaining 1986 x-ray given little weight because it was classified by two
comparison of the evidence accompanying a miner’s first and subsequent          B-readers as unreadab le. No thing in Sha rondale suggests that the panel
claims. This argument rests largely on Sha rondale’s reference to “later        meant to fault the ALJ for this analysis.
x-rays,” in contrast to “those submitted in 1985.” 42 F.3d at 999. In the
Director’s view, as further explicated in the concurrence, the Sha rondale           In light of this rec ord, it seems evident that Sha rondale’s reference
panel meant only to fault the ALJ in that case for failing to p roperly         to “198 5” x-ra ys is a typographical error. If we assume that the panel
address all of the x-rays submitted with the miner’s dup licate 1 985 claim .   meant to refer to x-rays “submitted in 197 9,” the year of the miner’s
The ALJ erred, in other words, by favoring the “later x-rays” submitted         initial claim, the last paragraph of Sha rondale make s coherent sense, with
in support of the duplicate claim over those x-rays “submitted in 198 5.”       one sentenc e flowing logically into the next. In any event, as discussed
                                                                                below, it is not necessary for us to venture a definitive pronouncement
   This proposed reading of Sha rondale is dem onstrably inco rrect,            about the meaning o f Sha rondale, because an intervening panel has
however, as shown by the very record the Director cites in support of it.       already done so, and we are bound to follow this subsequent ruling.
No. 01-3111             Grundy Mining Co. v. Flynn, et al.              19     20       Grundy Mining Co. v. Flynn, et al.                 No. 01-3111

pneumoconiosis, while the ALJ found that this condition was                      medical evidence were essentially the same, but in which
established through the evidence accompanying his                                there had been a legal error in the previous adjudication.
subsequent claim — the panel directed the ALJ to conduct a                       In Sharondale, we held that such situations were
further inquiry whether this change in outcome was                               correctable within the one-year time period after a denial,
attributable to qualitatively different evidence, as opposed to                  but that after this point, a claimant is not “entitled to
the ALJ’s different assessment of an essentially unchanged                       benefits simply because his claim should have been
evidentiary record. The import of Sharondale is clear, then                      granted.” 42 F.3d at 998. In order to maintain this
— miners whose claims are governed by this Circuit’s                             limitation in favor of finality, and in order to measure a
precedents must do more than satisfy the strict terms of the                     “change in conditions” the ALJ must compare the sum of
one-element test, but must also demonstrate that this change                     the new evidence with the sum of the earlier evidence on
rests upon a qualitatively different evidentiary record.6                        which the denial of the claim had been premised. A
                                                                                 “material change” exists only if the new evidence both
  Indeed, any lingering uncertainty about the proper reading                     establishes the element and is substantially more
of Sharondale surely has been dispelled in this Court’s                          supportive of claimant.
subsequent decision in Tennessee Consolidated Coal Co. v.
Kirk, 264 F.3d 602, 608-10 (6th Cir. 2001). There, as here,                    Kirk, 264 F.3d at 609 (footnote omitted).7
the employer contended that Sharondale mandates an inquiry
beyond the one-element standard, under which “the new                            Kirk further explains that the “change” referred to under the
medical evidence must be compared with the preexisting                         “material change” standard “is the actual difference between
medical evidence on the same issue” to determine if a                          the bodies of evidence presented at different times,” while
different outcome is warranted. Kirk, 264 F.3d at 608. We                      “the ‘materiality’ of the change is marked by the fact that this
agreed:                                                                        difference has the capability of converting an issue
                                                                               determined against the claimant into one determined in his
     As the employer correctly points out, if the ALJ need                     favor.” 264 F.3d at 609 n.6. Applying this standard to the
  only assess whether the new medical evidence proved an                       facts before it, the panel found that “[t]he ALJ in this case
  element previously held to have been missing, it would                       made a legal error similar to that of the judge in Sharondale
  allow the relitigation of cases in which the new and old
                                                                                    7
    6
                                                                                     In light of this p lain langu age, which is accurately recounted in the
      As the Director and the concurrence observe, two of our sister           concurrence, we fail to discern the basis for Judge Mo ore’s disagreement
circuits have d eclined to end orse the final paragraph of Sha rondale, on     with our reading of Kirk. The concurrence recognizes both that the
the ground that it apparently “req uire[s] consideration of the evidence       Director’s strict one-element test does not call for a comparison of the
behind the earlier denial to determine whether it ‘differ[s] qualitatively’    evidence acco mpa nying a m iner’s prior and current claims, (see
from the new evidence.” Lisa Lee Mines, supra, 86 F .3d at 136 3 n.11; see     Concurring Op . at 31), and that Kirk does require such a com pariso n, to
also Lovilia Coal Co . v. Harvey, 109 F.3d 4 45, 454 n.7 (8th Cir. 1997).      ensure that the miner’s current claim is not accompanied by evidence
Yet, we fail to see how this supp orts the D irector’s position here. To the   which is “identical” or “substantially similar” to that which accompanied
contrary, these Fourth and Eighth Circuit decisions seemingly share our        the prior claim, (see id. at 36). Any such “substantially similar” inquiry
own view as to the pro per re ading of Sha rondale and the inquiry called      plainly entails so m e comparison of the new and old evidence, as Judge
for under that ruling. These other circuits, of course, are free to disagree   Mo ore concedes in her concurrence. This being so, we rely on the
with Sha rondale and adopt a different rule, but we enjoy no such latitude     language of Sha rondale and Kirk to determine the precise nature and
here.                                                                          extent of this comparison.
No. 01-3111          Grundy Mining Co. v. Flynn, et al.       21    22    Grundy Mining Co. v. Flynn, et al.           No. 01-3111

by failing to show that, on the element selected to show a          sufficient to establish the existence of pneumoconiosis, but
material change, there was in fact a worsening of claimant’s        that this claim was denied for failure to establish that this
condition.” 264 F.3d at 609. Kirk also cautions that the ALJ        condition was totally disabling. (See J.A. at 96, 103.)
must accurately identify the elements of entitlement                Accordingly, to satisfy the “material change” standard, there
adjudicated against the miner in the earlier claim denial,          must be a qualitative difference in the evidence as it bears
because these elements are the proper focus of a subsequent         upon this element of total disability.
“material change” inquiry.
                                                                       In comparing the two bodies of evidence accompanying
   In sum, our precedents have defined the relevant inquiry         Mr. Flynn’s initial and subsequent claims, the ALJ focused
with sufficient clarity. In order to grant a subsequent claim       almost exclusively on differences between the 1980 and 1984
for black lung benefits more than a year after an earlier claim     reports of Dr. Martin Fritzhand, who examined Flynn on
has been denied, the ALJ must (i) determine, based upon all         behalf of the DOL. In particular, Dr. Fritzhand opined in his
of the evidence accompanying the subsequent claim, that the         1980 report that Flynn could do “mild activity at best,” (J.A.
miner has proven at least one of the elements of benefit            at 133), but his 1984 report stated that Flynn was limited to
entitlement previously adjudicated against him; (ii) find,          “no more than sedentary activity,” (J.A. at 167.) The ALJ
based upon a comparison of the sum of the new evidence with         found that Dr. Fritzhand’s downgraded assessment of Flynn’s
the sum of the evidence considered in connection with the           condition was properly supported by a change in the objective
earlier claim denial, that the new evidence is sufficiently more    medical data, where separate physical examinations,
supportive to warrant a change in outcome; and, finally             pulmonary function studies, and arterial blood gas studies had
(iii) determine on the merits, based upon the entirety of the       been conducted in the course of Flynn’s 1980 and 1984 visits
record, that the miner is entitled to benefits. Significantly,      with this physician.
despite the Director’s protests against the second step of this
inquiry, the Board in this case correctly perceived the need for       We find no basis to disturb the ALJ’s determination that
this evidentiary comparison under this Circuit’s precedents,        qualitative differences exist between Dr. Fritzhand’s 1980 and
and remanded the matter to the ALJ for a third and final time       1984 reports, and that these differences support a changed
expressly for this purpose. Consequently, we discern no legal       outcome on the issue of total disability. There is no question
error in the Board’s interpretation of the “material change”        that Dr. Fritzhand’s two reports, on their face, reflect a degree
standard, and Grundy Mining does not contend otherwise.             of worsening in Mr. Flynn’s condition between 1980 and
                                                                    1984. Specifically, as observed by both the ALJ and the
  It remains only to ask, therefore, whether the ALJ’s finding      Board, Dr. Fritzhand found that Flynn was capable of mild
of a “qualitative difference” in the records accompanying Mr.       activity in 1980, but only sedentary activity in 1984. In an
Flynn’s initial and subsequent claims is supported by               earlier round of the administrative proceedings, the ALJ
substantial evidence. As explained in Kirk, any such                found that “Claimant’s coal mine employment, although
difference must be sufficient to account for the change in one      light-duty work, required more than sedentary activities,” so
or more of the elements of entitlement that were found              that “Dr. Fritzhand’s conclusion [in 1984] that Claimant is
lacking in the adjudication of Mr. Flynn’s initial claim. The       limited to sedentary activities establishes that Claimant was
specific element of entitlement at issue here is total disability   totally disabled from his coal-mine employment.” (J.A. at
— the record indicates that the evidence submitted in               49.) Grundy Mining does not challenge this reasoning on
connection with Mr. Flynn’s initial claim was deemed                appeal, but apparently concedes that a limitation to sedentary
No. 01-3111             Grundy Mining Co. v. Flynn, et al.             23     24   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

activity, if supported by the evidence, would render Flynn                    requirement would transcend the finality concerns behind the
incapable of engaging in his usual coal mine work or                          “material change” standard, and would effectively penalize
comparable employment. Likewise, Grundy Mining does not                       miners whose initial claims were denied. This problem would
dispute that the sedentary limitation reported by Dr.                         be particularly acute in cases where the miner narrowly fails
Fritzhand, if credited and properly supported, bears directly                 to prove the conditions of benefit entitlement; under such
on the “total disability” element that was adjudicated against                circumstances, it would be unreasonable to insist that the
Flynn in the denial of his earlier claim.8                                    miner’s new evidence accompanying a subsequent claim be
                                                                              significantly and uniformly more supportive of an award of
  Nonetheless, Grundy Mining contends that Dr. Fritzhand’s                    benefits, when even a modest change in the overall record
cursory statements regarding “mild” versus “sedentary”                        would suffice to establish all of the elements of entitlement.
activity cannot alone establish a qualitative difference                      All that we require is that the evidence be sufficiently
between the physician’s 1980 and 1984 reports, absent                         different to warrant a different outcome on one or more of
underlying medical evidence that would support Dr.                            these elements, so that we need not be concerned that two
Fritzhand’s downgraded assessment. The medical record, in                     factfinders are making different assessments of essentially the
Grundy Mining’s view, is virtually unchanged from 1980 to                     same record. As stated in Kirk, the change must be
1984. On both occasions, for example, Dr. Fritzhand reported                  “material,” meaning that it “has the capability of converting
non-qualifying pulmonary function and blood gas studies, and                  an issue determined against the claimant into one determined
his two physical examinations both revealed that Flynn’s                      in his favor.” 264 F.3d at 609 n.6.
“breath sounds [were] clear without rales, rhonchi, or
wheezes.” (J.A. at 135, 169.) Indeed, Grundy Mining notes                       Upon comparing the sum of the new evidence
that Dr. Fritzhand’s reports reflect improvement in one                       accompanying Flynn’s 1984 claim with the evidence
respect — the 1980 report states that Flynn could “ambulate                   submitted in connection with his prior claim, we find
on level terrain no more than 200 feet without associated                     sufficient differences to meet this standard and, more
shortness of breath,” (J.A. at 135), while this distance                      specifically, to support Dr. Fritzhand’s downgraded
increased to 300 feet in the 1984 report, (J.A. at 169).                      assessment from “mild” to “sedentary.” As the ALJ
                                                                              observed, the studies performed in 1984, while still non-
  The material change standard, however, does not demand                      qualifying, revealed some declining results in individual
that a claimant’s new evidence point uniformly and                            values. Moreover, Dr. Fritzhand did conduct a second
unmistakably toward a more favorable outcome. Such a                          physical examination of Flynn in 1984. While a detailed
                                                                              explanation of the “sedentary” limitation might have been
                                                                              preferable, we decline Grundy Mining’s invitation to assume
    8                                                                         that Dr. Fritzhand’s choice of the words “mild” in 1980 and
      It follows from these concessions that Flynn has satisfied the strict   “sedentary” in 1984 lacks any significance or medical basis
“one-element” standard advocated by the Director, because the new
evidence establishes an element that was adjudicated against Flynn in the     whatsoever, particularly where the employer has not produced
denial of his earlier claim. Yet, as explained above, more is required        any evidence or opinion that Flynn was capable of more than
under this Court’s “material change” precedents. Unfortunately, the           sedentary activity at the time of his second claim. Finally, as
Director’s brief on appeal is content to rest on the incorrect premise that   further evidence of Flynn’s declining condition between 1980
Sha rondale mandates only a “one-element” inquiry; the Director               and 1984, we note: (i) that he remained on the job when Dr.
expresses no view as to whether the ALJ properly performed the
additional comparison required under our Sha rondale and Kirk decisions.      Fritzhand first examined him, but had ceased working at the
No. 01-3111             Grundy Mining Co. v. Flynn, et al.              25     26   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

time of his 1984 physician visit;9 (ii) that Dr. Fritzhand                     notes, this causal link must be more than de minimis. Peabody
diagnosed pneumoconiosis following the second exam, in                         Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997). To
contrast to his 1980 diagnosis of chronic obstructive                          satisfy the “due to” requirement of the BLBA and its
pulmonary disease; and (iii) that the record includes                          implementing regulations, a claimant must demonstrate by a
statements from Flynn and his co-workers that he required                      preponderance of the evidence that pneumoconiosis is “more
assistance in performing his duties during his last few years                  than merely a speculative cause of his disability,” but instead
on the job, (see J.A. at 140, 142, 144).                                       “is a contributing cause of some discernible consequence to
                                                                               his totally disabling respiratory impairment.” Smith, 127 F.3d
  We recognize that Mr. Flynn’s new evidence                                   at 507. To the extent that the claimant relies on a physician’s
accompanying his 1984 claim does not all point decisively                      opinion to make this showing, such statements cannot be
toward a finding of benefit entitlement. Again, however, the                   vague or conclusory, but instead must reflect reasoned
bar is not so high for a miner to demonstrate a “material                      medical judgment. See Griffith v. Director, OWCP, 49 F.3d
change in conditions” under the governing regulations.                         184, 186-87 (6th Cir. 1995).
Accordingly, we affirm the decision of the Board that Mr.
Flynn’s 1984 claim satisfies this standard.                                       The parties here agree that Mr. Flynn’s showing of
                                                                               causation rests upon Dr. Fritzhand’s 1984 report. Grundy
B. The ALJ’s Decision to Award Benefits Is Supported                           Mining contends that careful examination of this report
   by Substantial Evidence.                                                    reveals no specific finding that pneumoconiosis contributed
                                                                               in any way to Flynn’s disability. In support of this argument,
   Having determined that Mr. Flynn had satisfied the                          the employer notes that Dr. Fritzhand diagnosed heart disease
“material change” standard, the ALJ turned to the merits of                    as well as pneumoconiosis, and that the detailed findings set
Flynn’s 1984 claim for black lung benefits, and found that the                 forth in his typewritten report provide no basis to discern
miner had established total disability due to pneumoconiosis.                  which of these conditions was the cause of Flynn’s disability.
We must affirm this decision provided that it rests upon                       Moreover, at least some of these findings seemingly suggest
substantial evidence in the record. See Consolidation Coal,                    that Flynn’s pulmonary condition might not be the cause of
884 F.2d at 929. In arguing that this decision should be set                   his disability — Dr. Fritzhand reported, for example, that
aside, Grundy Mining contends that the evidence is lacking as                  Flynn’s chest expansion was “normal,” that he did not “use
to a causal link between pneumoconiosis and total disability.                  accessory muscles of respiration,” and that his “breath sounds
We agree with the Board, however, that the ALJ’s resolution                    [were] clear without rales, rhonchi, or wheezes.” (J.A. at
of the causation issue reflects a proper exercise of his                       169.)
factfinding authority.
                                                                                  These points, while certainly relevant to the causation
  The claimant bears the burden of proving total disability                    inquiry, do not compel us to reject the ALJ’s findings on this
due to pneumoconiosis and, as Grundy Mining correctly                          factual issue. The ALJ expressly recognized that Dr.
                                                                               Fritzhand’s 1984 opinion diagnosed heart disease as well as
                                                                               pneumoconiosis. Nonetheless, in determining that the latter
    9                                                                          was at least a contributing cause of Flynn’s disability, the
      No tably, the fact that Flynn was still working counted against him      ALJ observed that Dr. Fritzhand reported his “sedentary”
in the adjudicatio n of his initial claim, because it rebutted a presumption
of total d isability due to pneum oco niosis. (See J.A. at 9 8, 10 3, 10 8.)
                                                                               finding in a section of the DOL medical history and
No. 01-3111          Grundy Mining Co. v. Flynn, et al.       27    28   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

examination form in which the physician is asked to describe        Board’s determination that Flynn is entitled to an award of
the limitations “due to pulmonary disease.” (J.A. at 167.)          black lung benefits.
Accordingly, the ALJ reasoned that “the limitations due to
pulmonary disease that Dr. Fritzhand listed must be related to      C. Grundy Mining Has Failed to Identify a Basis for
pneumoconiosis because pneumoconiosis is the only                      Imposing Liability on the Trust Fund.
pulmonary disability that Dr. Fritzhand included in his 1984
medical report.” (J.A. at 49.) The Board determined, and we            Finally, in an appeal to notions of equity, Grundy Mining
agree, that the ALJ drew a reasonable inference that lies           argues that the Black Lung Disability Trust Fund should bear
within his “broad discretion in evaluating the medical              the liability for the award of benefits to Mr. Flynn. This is a
evidence.” (J.A. at 39.) “[A] reviewing court may not set           purely legal issue that we address de novo. See Consolidation
aside an inference because it finds another more reasonable.”       Coal, 884 F.2d at 929. This matter is readily resolved, as it
Moseley v. Peabody Coal Co., 769 F.2d 357, 360 (6th Cir.            is inextricably linked with our disposition of the “material
1985).                                                              change” issue.

   Nor can we accept Grundy Mining’s assertion that any               Grundy Mining’s argument on this point rests upon the
causal connection identified by Dr. Fritzhand lacks support in      premise that Dr. Fritzhand’s 1980 and 1984 reports are
the underlying medical evidence. As noted, pneumoconiosis           “nearly identical,” (Petitioner Br. at 20), so that they both
need not be the sole cause of a miner’s disability, but only a      must equally establish Mr. Flynn’s entitlement to black lung
contributing factor. Dr. Fritzhand’s 1980 and 1984 reports          benefits. It follows, in Grundy Mining’s view, that Flynn
alike state that Mr. Flynn had a long history of shortness of       must have been just as entitled to benefits under his initial
breath, that he could ambulate only a few hundred feet              claim as under his present one. Yet, if benefits had been
without associated shortness of breath, that this symptom           awarded under the initial claim, the liability would have been
increased upon climbing stairs or walking up grades, that he        borne by the Trust Fund under the transfer provisions of the
could not mow a lawn without associated dyspnea, that he            BLBA. See Quarto Mining, supra, 901 F.2d at 535
frequently awoke during the night with shortness of breath,         (explaining the operation of this statutory scheme). From all
and that he had long suffered from a chronic cough. All of          this, Grundy Mining reasons that it should not be made to pay
this provides support for a link between pulmonary disease          for the presumably mistaken decision to deny Flynn’s initial
and disability. In addition, the ALJ noted the absence of any       claim; rather, equity dictates that the Trust Fund should
medical opinion contradicting Dr. Fritzhand’s report or             assume any liability.
otherwise suggesting that Flynn’s limitations might be due to
a condition other than pneumoconiosis.                                Liability properly transfers from the responsible operator to
                                                                    the Trust Fund on those claims which were finally denied
   Under this record, the assessment of Dr. Fritzhand’s report      before the effective date of the Black Lung Benefits Reform
is “essentially a credibility matter” for the ALJ to resolve, and   Act of 1977 (i.e., March 1, 1978), but then reopened and
it would lie beyond “our limited scope of review” to assign a       approved under the 1977 Act. See Caney Creek Coal Co. v.
different weight or meaning to this medical opinion. Peabody        Satterfield, 150 F.3d 568, 570-71 (6th Cir. 1998); Quarto
Coal Co. v. Groves, 277 F.3d 829, 836 (6th Cir. 2002), cert.        Mining, 901 F.2d at 535. Mr. Flynn’s initial claim was
denied, 537 U.S. 1147 (2003). Consequently, we affirm the           denied prior to, and then reopened under, the 1977 Act. As
                                                                    such, liability for this earlier claim would have been
No. 01-3111          Grundy Mining Co. v. Flynn, et al.       29    30   Grundy Mining Co. v. Flynn, et al.           No. 01-3111

transferred to the Trust Fund had benefits been awarded. This                         ____________________
claim was denied, however, and this decision became final
upon the expiration of the allotted period for appealing or                             CONCURRENCE
seeking modification. Grundy Mining, therefore, must invoke                           ____________________
notions of equity in order to transfer liability to the Trust
Fund, because such a transfer obviously is not compelled as           KAREN NELSON MOORE, Circuit Judge, concurring. I
a matter of law. As the Board correctly held, Flynn’s current       concur in the result in this case that the award of black lung
claim, which was filed in 1984, does not meet the statutory         benefits was proper. However, because I believe that the
criteria for transfer, as it was not (and, as a practical matter,   majority’s interpretation of Sharondale Corp. v. Ross and
could not have been) denied before the effective date of the        Tennessee Consolidated Coal Co. v. Kirk is erroneous, I write
1977 Act.                                                           separately.
  Yet, Grundy Mining’s equitable appeal quickly founders on            In Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir.
a flawed logical premise. In rejecting Grundy Mining’s              1994), we spent considerable time assessing the three
challenge on the “material change” issue, we have already           alternate interpretations of the “material change” requirement.
held that there was a qualitative difference in the bodies of       These included the meaning adopted by the Benefits Review
evidence accompanying Mr. Flynn’s initial and subsequent            Board in Spese v. Peabody Coal Co., 11 BLR 1-174 (1988)
claims. Accordingly, there was nothing necessarily wrong,           (that the “new evidence present a ‘reasonable possibility’ that
much less unfair, in the contrary results reached on Flynn’s        it would change the prior administrative result”), the standard
two claims. Indeed, principles of finality flatly preclude us       enunciated by the Seventh Circuit in Sahara Coal Co. v.
from questioning the correctness of the initial claim denial,       Director, OWCP, 946 F.2d 554, 556 (7th Cir. 1991) (“[a]
and these same principles would defeat Mr. Flynn’s 1984             material change in condition means either that ‘the miner did
claim if, as Grundy Mining now contends, the evidence               not have black lung disease at the time of the first application
accompanying the two claims was essentially unchanged. By           but has since contracted it and become totally disabled by it,
holding that Flynn’s 1984 claim satisfied the “material             or that his disease has progressed to the point of becoming
change” standard, and that benefits were properly awarded           totally disabling although it was not at the time of the first
under this claim, we have already rejected the necessary            application’”), and the position posited by the Director.
predicates to Grundy Mining’s plea for equitable relief.
Consequently, we affirm the Board’s decision on this point.           Ultimately, we chose to defer to the Director’s
                                                                    interpretation of “material change in conditions,” thereby
                     IV. CONCLUSION                                 adopting what has come to be appropriately named the “one
                                                                    element” test. Sharondale, 42 F.3d at 997-98. The test holds
  For the reasons set forth above, we AFFIRM the decision           that “to assess whether a material change is established, the
and order of the Benefits Review Board awarding black lung          ALJ must consider all of the new evidence, favorable and
benefits to claimant Douglas W. Flynn.                              unfavorable, and determine whether the miner has proven at
                                                                    least one of the elements of entitlement previously
                                                                    adjudicated against him. If the miner establishes the
                                                                    existence of that element, he has demonstrated, as a matter of
                                                                    law, a material change. Then the ALJ must consider whether
No. 01-3111              Grundy Mining Co. v. Flynn, et al.                31     32   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

all of the record evidence, including that submitted with the                     from the old evidence that supported the earlier claim. The
previous claims, supports a finding of entitlement to                             majority believes this to be the correct view based on the last
benefits.” Id. In accepting this test, we stressed that we did                    paragraph of Sharondale, in which it claims that “we faulted
not have unbridled discretion in “adopting one construction                       the ALJ for failing to determine whether the claimant’s new
over another,” and that we have “previously afforded due                          x-ray evidence ‘differ[ed] qualitatively’ from the facially
deference to the Director’s position in cases raising similar                     similar x-ray evidence that accompanied the prior claim.”
questions of regulatory interpretation.” Id. at 998 (quoting                      Op. at 16. Therefore, the majority chooses to interpret this
Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir.                       last paragraph of Sharondale as adding an additional
1993)) (internal quotation omitted). We went on to note that                      requirement to the “one element” test. However, this is not
because Congress failed to provide us with a definition of                        the correct interpretation of Sharondale.
“material change” as it is used in the BLBA, “the Secretary of
Labor’s interpretation of the provisions of the Black Lung Act                      First of all, the language of Sharondale does not support the
[wa]s entitled to deference,” as long as it was reasonable. Id.                   broad interpretation the majority wishes to assign to it. The
After thorough discourse, we concluded that it was                                case stands for the simple premise that after passage of one
“reasonable in light of the purpose of the statute and the                        year from the denial of a claim, claimants can no longer argue
language included in § 725.309(d).”1 Id. at 998. Now,                             they are entitled to benefits solely on the ground that their
however, the majority wishes to depart from this view and                         prior claims “should have been granted.” Sharondale,
restrict the test in a manner not at all endorsed by the                          42 F.3d at 998. Instead, they must demonstrate a material
Director.                                                                         change and provide new evidence establishing such change.
                                                                                  Id. at 997-98. In embracing the Director’s interpretation of
  The majority concedes that “under a strict reading of the                       “material change,” we emphasized that “[t]he Director’s
‘one-element’ test endorsed by the Director, the ALJ’s                            interpretation takes into account the statutory distinction
‘material change’ inquiry is limited solely to the new evidence                   between a request for modification of the Board’s decision
of the claimant’s condition since the denial of his prior claim,                  and a request for benefits based on a material change in
with the ALJ asking whether this evidence establishes at least                    condition.” Id. at 998. Outside of this, Sharondale does not
one of the elements of benefit entitlement that previously was                    speak to the manner in which a subsequent claim should be
adjudicated against the claimant.” Op. at 16 (emphasis                            assessed. As a result, in no way can Sharondale be construed
added). The majority proceeds to state that “[t]here                              as adding any further requirements to the “one element” test.
seemingly is no place in this inquiry for comparison between
the new evidence and the evidence produced in connection                             Grundy argues, and the majority accepts as true, that the
with the prior claim.” Op. at 16-17. However, it then                             last paragraph of Sharondale supports the interpretation of the
endorses Grundy’s reading of Sharondale as requiring the                          additional qualitative analysis requirement.         The last
ALJ to engage in a qualitative analysis to determine if the                       paragraph of Sharondale stems from the Sharondale court’s
new evidence accompanying the subsequent claim is different                       expression in the previous paragraph of concern with regard
                                                                                  to claimants who file subsequent claims supplemented by the
                                                                                  exact same evidence that supported a prior claim. It is readily
    1                                                                             apparent that because of this concern, we spoke to the manner
      Sha rondale Corp . v. Ross, 42 F .3d 9 93 (6th Cir. 1994), involved         in which ALJs might ferret out claims seeking purely a
§ 725.309(d), while the case at hand involves § 725 .309 (c). T his is
irrelevant, howe ver, as the language of b oth sec tions in 1999 is identica l.
                                                                                  modification of a decision on a prior claim, and not based on
No. 01-3111            Grundy Mining Co. v. Flynn, et al.            33     34   Grundy Mining Co. v. Flynn, et al.          No. 01-3111

any material change, as is required by the statute. In so doing,            22, 2003). Hence, the reference to the “later” x-rays can only
we never stated that this method should also become a part of               mean those ones developed subsequent to 1985. In addition,
the Director’s “one element” test.                                          the Sharondale court’s act of faulting the ALJ for failing to
                                                                            look at all of the x-rays produced to support the 1985 claim
  Furthermore, the meaning the majority wishes to give to                   was appropriate in light of our decision in Woodward v.
this discussion fails to take note of an important textual                  Director, OWCP, 991 F.2d 314, 320-21 (6th Cir. 1993). In
difficulty which totally undermines such an interpretation.                 that case, we discussed the decision of the ALJ to limit
By pointing out that “[t]he ALJ never discusses how the later               consideration of x-ray evidence solely to the last five x-rays
x-rays differ qualitatively from those submitted in 1985,” the              taken. Id. at 319. Specifically, we “recognized the need for
Sharondale court was simply admonishing the ALJ for its                     qualitative evaluation of the x-ray evidence, as well” as a
failure to address and weigh all of the x-rays submitted with               quantitative analysis. Id. at 321 (emphasis added). The ALJ
the claim filed in 1985.2 Sharondale, 42 F.3d at 999. The                   in Sharondale appears to have relied on the later x-ray
majority asserts that because the underlying 1990 ALJ                       interpretations that were submitted to support the second
decision speaks only of x-rays taken in 1986 and 1989, there                claim, and excluded the earlier x-ray interpretations also
were no x-rays submitted in 1985 when the claim was filed,                  submitted with the same claim. See Sharondale, Case No.
and hence the Sixth Circuit’s reference to 1985 was a                       86-BLA-4985, slip op. at 6-8. As a result, our opinion in
“typographical error.” Op. at 18 n.5. However, the ALJ’s                    Sharondale should not be interpreted to require the ALJ to
1990 opinion fails to identify what medical evidence                        compare the evidence from the second claim with that from
accompanied the second claim at the time it was filed in 1985.              the earlier denied claim. In order for that to be the case, the
See Ross v. Sharondale Corp., Case No. 86-BLA-4985, slip                    sentence would have to have said “differ qualitatively from
op. at 6-8 (July 25, 1990) (unpublished). The majority cannot               those submitted in 1979,” and not 1985. Hence, the
simply conclude that because of this, there were no x-rays                  majority’s conclusion that Sharondale holds that miners
taken in 1985, as nothing exists in the record available to us              “must do more than satisfy the strict terms of the one-element
to indicate one way or the other. In addition, to dismiss                   test” by “demonstrat[ing] that this change rests upon a
summarily the 1985 reference as a “typographical error”                     qualitatively different evidentiary record,” Op. at 19, is not
seems implausible, as it is a rather significant error for the              supported by the language of Sharondale.
entire Sixth Circuit panel to have overlooked.
                                                                               Concededly, it cannot be denied that the phrase “the earlier
  Moreover, grammatically speaking, that the Sharondale                     denial” in the last sentence of the last paragraph of
court was criticizing the ALJ for its failure to address and                Sharondale does in fact refer to the 1979 claim. The Director
weigh all of the x-rays submitted with the subsequent 1985                  views this sentence as merely serving “to point out that the
claim is the only legitimate conclusion. As used in this                    ALJ’s failure to consider all of the x-ray readings submitted
context, “later” means “subsequent.” See Merriam Webster                    with the duplicate claim raised the possibility that the
Online Dictionary, http://www.merriam-webster.com (Oct.                     preponderance of that evidence might weigh against the
                                                                            presence of pneumoconiosis, and a material change, just as
                                                                            the conflicting x-ray evidence submitted with the 1979 claim
    2                                                                       weighed against the existence of the disease.” Appellee’s Br.
      The miner’s previous claim was filed in 1979 and was finally denied   at 23-24. Alternatively, this last sentence might also be read
in 1981. Subseq uently, the miner filed a claim for benefits in 1985.
Sha rondale, 42 F.3d at 995.                                                as instructing the ALJ to compare the evidence submitted
No. 01-3111         Grundy Mining Co. v. Flynn, et al.       35    36    Grundy Mining Co. v. Flynn, et al.           No. 01-3111

with the second claim with that submitted with the previously      misplaced. In that case, we stated that, when the new and old
denied claim. Indeed, as the Director appropriately points         medical evidence was substantially similar, we had held in
out, these “textual difficulties” in the last paragraph of         Sharondale that “such situations were correctable within the
Sharondale may have been the reason why both the Fourth            one-year time period after a denial, but that after this point, a
and Eighth Circuits, uncertain as to its meaning, were             claimant is not ‘entitled to benefits simply because his claim
unwilling to adopt this part of the opinion, as they stated that   should have been granted.’” Id. at 609 (quoting Sharondale,
the paragraph “seems to have required consideration of the         42 F.3d at 998). Hence, Kirk holds that “in order to measure
evidence behind the earlier denial to determine whether it         a ‘change in conditions’ the ALJ must compare the sum of
‘differ[s] qualitatively’ from the new evidence.” Lisa Lee         the new evidence with the sum of the earlier evidence on
Mines v. Director, OWCP, 86 F.3d 1358, 1363 n.11 (4th Cir.         which the denial of the claim had been premised.” Id. “A
1996) (emphasis added); Lovilia Coal Co. v. Harvey, 109            ‘material change’ exists only if the new evidence both
F.3d 445, 454 n.7 (8th Cir. 1997) (emphasis added) (quoting        establishes the element and is substantially more supportive
Lisa Lee Mines, 86 F.3d at 1363 n.11).                             of claimant.” Id.
   In addition to these “textual difficulties” created by             Through its analysis, the Kirk court did not add a new
Grundy’s interpretation, even more arduous to overcome is its      requirement to the “one element” “material change” standard.
insistent focus on the paragraph in isolation. As the Director     Rather, Kirk reasserts approvingly the Director’s “one
notes, “[t]he paragraph must, of course, be read in the context    element” test immediately before discussing the need for
of the entire decision that precedes it.” Appellee’s Br. at 24.    comparison of the new and old evidence so as to rule out
Immediately preceding the paragraph at issue, the Sharondale       claims based on the same evidence. Id. More importantly,
court, after engaging in a thorough analysis of the differing      however, the opinion reiterates the important difference
“material change” standards, concluded that the Director’s         between “claim modification” and “material change” analysis.
“one element” test should be accorded deference because it         In discussing the method to be employed in examining
was a reasonable construction of the regulation at issue.          whether evidence submitted on a subsequent claim is identical
Sharondale, 42 F.3d at 998. The Director never spoke of a          to that submitted on a prior claim, this court stated that the
qualitative analysis as part of a “material change”                “ALJ must compare the sum of the new evidence with the
determination. Indeed, the “one element” test espoused by          sum of the earlier evidence on which the denial of the claim
the Director flatly bars review of evidence from previous          had been premised.” Id. (emphasis added). The Kirk court
claims unless and until a “material change” has been proven.       was simply making the ALJ aware of situations in which a
Id. at 997-98. As the Director states, the “[c]ourt implicitly     claimant attempts to circumvent the statutory requirements
acknowledged the irrelevance of evidence regarding the             after a year has passed, by submitting the exact same evidence
miner’s condition at the time of the first claim — prior to the    in the hope that it will be treated by the court as
establishment of a material change — in disregarding the           demonstrating a material change. As a result, the Kirk court
standard articulated by the Board in its Spese decision.”          is saying that “[i]n order to maintain this limitation in favor
Appellee’s Br. at 25.                                              of finality,” it would be prudent for ALJs to engage in an
                                                                   overview comparison of the sum of the evidence to rule out
  Furthermore, the majority’s reliance on Tennessee                duplicate claims. Id. Nowhere in the Kirk opinion is there a
Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001),       call for ALJs to engage in a thorough evidentiary qualitative
as further support for the qualitative analysis requirement is
No. 01-3111         Grundy Mining Co. v. Flynn, et al.       37    38   Grundy Mining Co. v. Flynn, et al.         No. 01-3111

analysis between the evidence in the old and new claims in         notion that miners disabled by pneumoconiosis arising out of
assessing a “material change in conditions.”                       coal mine employment are entitled to benefits under the Act.
                                                                   It affords a miner a second chance to show entitlement to
   Moreover, acceptance of the Director’s interpretation of the    benefits provided his condition has worsened.” Sharondale,
Sharondale “material change” standard is consistent with the       42 F.3d at 998. We concluded that it was important to accept
other circuits that have dealt with this issue. In particular,     the Director’s interpretation because it was “reasonable in
both the Fourth and Eighth Circuits have accepted the              light of the purpose of the statute and the language included
Director’s interpretation of the “material change” standard.       in § 725.309(d).” Id.
See Lisa Lee Mines, 86 F.3d at 1363; Lovilia, 109 F.3d at 454.
In so doing, both courts refused to endorse the final paragraph      It strikes me as rather schizophrenic of us in Sharondale to
of Sharondale, which “seems to have required consideration         painstakingly analyze and weigh the competing “material
of the evidence behind the earlier denial to determine whether     change” interpretations, choose the Director’s test, and then
it ‘differ[s] qualitatively’ from the new evidence.” Lisa Lee      immediately afterwards, depart from the test that we have
Mines, 86 F.3d at 1363 n.11; see also Lovilia, 109 F.3d at 454     chosen to adopt. Because of this, I believe that the
n.7. Furthermore, the Lovilia court, in deciding to accept the     interpretation of Sharondale that the majority endorses is
Director’s approach, noted that pursuant to established            wrong. Furthermore, despite the fact that the ambiguous
Supreme Court precedent, “[w]hen, like in this case, the issue     language of Sharondale leaves the meaning of the last
is whether the agency has erred in interpreting its own            paragraph open to multiple interpretations, the rest of the
regulations, the Supreme Court has stated that: provided the       decision does acknowledge the principle that it is
agency’s interpretation ‘does not violate the Constitution or      inappropriate to compare the evidence in a new claim with the
a federal statute, it must be given controlling weight unless it   evidence submitted in connection with a previously denied
is plainly erroneous or inconsistent with the regulation.’”        claim in assessing whether a “material change” has been
Lovilia, 109 F.3d at 451-52 (quoting Shalala v. St. Paul-          established. To retreat from the “one element” test that we
Ramsey Med. Ctr., 50 F.3d 522, 527-28 (8th Cir. 1995)              endorsed not only violates the deference due the Director as
(quoting Stinson v. U.S., 508 U.S. 36, 45 (1993)). This            noted above, but also proves utterly contradictory of our own
demonstrates that we are violating established principles          Sharondale opinion. For these reasons, I concur only in the
when in one instance, we accord due deference to the               result.
Director’s interpretation in deciding to accept it, but then in
the next instance, infuse it with a meaning not a part of the
Director’s interpretation. This clearly provided the impetus
for both Lisa Lee Mines and Lovinia to reject the
interpretation of Sharondale’s final paragraph that the
majority now suggests.
  Finally, misconstruing the Director’s “one element” test by
adding a qualitative analysis completely undermines the very
reason we felt compelled initially to accept the “one element”
test. In assessing the reasonableness of the Director’s
interpretation, we noted that his view was “premised on the
