Grundy Mining Company v. Douglas W. Flynn and Director, Office of Workers' Compensation Programs, United States Department of Labor

MOORE, Circuit Judge,

concurring.

I concur in the result in this case that the award of black lung benefits was proper. However, because I believe that the majority’s interpretation of Sharondale Corp. v. Ross and Tennessee Consolidated Coal Co. v. Kirk is erroneous, I write separately.

In Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir.1994), we spent considerable time assessing the three alternate interpretations of the “material change” requirement. These included the meaning adopted by the Benefits Review Board in Spese v. Peabody Coal Co., 11 BLR 1-174 (1988) (that the “new evidence present a ‘reasonable possibility’ that it would change the prior administrative result”), the standard enunciated by the Seventh Circuit in Sahara Coal Co. v. OWCP, 946 F.2d 554, 556 (7th Cir.1991) (“[a] material change in condition means either that ‘the miner did not have black lung disease at the time of the first application but has since contracted it and become totally disabled by it, or that his disease has progressed to the point of becoming totally disabling although it was not at the time of the first application’ ”), and the position posited by the Director.

Ultimately, we chose to defer to the Director’s interpretation of “material change in conditions,” thereby adopting what has come to be appropriately named the “one element” test. Sharondale, 42 F.3d at 997-98. The test holds that “to assess whether a material change is established, the ALJ must consider all of the new evidence, favorable and unfavorable, and determine whether the miner has proven at least one of the elements of entitlement previously adjudicated against *486him. 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 all of the record evidence, including that submitted with the previous claims, supports a finding of entitlement to benefits.” Id. In accepting this test, we stressed that we did not have unbridled discretion in “adopting one construction over another,” and that we have “previously afforded due deference to the Director’s position in cases raising similar questions of regulatory interpretation.” Id. at 998 (quoting Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir.1993)) (internal quotation omitted). We went on to note that because Congress faded to provide us with a definition of “material change” as it is used in the BLBA, “the Secretary of Labor’s interpretation of the provisions of the Black Lung Act [wa]s entitled to deference,” as long as it was reasonable. Id. After thorough discourse, we concluded that it was “reasonable in light of the purpose of the statute and the language included in § 725.309(d).”1 Id. at 998. Now, however, the majority wishes to depart from this view and restrict the test in a manner not at all endorsed by the Director.

The majority concedes that “under a strict reading of the ‘one-element’ test endorsed by the Director, the ALJ’s ‘material change’ inquiry is limited solely to the new evidence of the claimant’s condition since the denial of his prior claim, with the ALJ asking whether this evidence establishes at least one of the elements of benefit entitlement that previously was adjudicated against the claimant.” Op. at 477 (emphasis added). The majority proceeds to state that “[tjhere seemingly is no place in this inquiry for comparison between the new evidence and the evidence produced in connection with the prior claim.” Op. at 477-478. However, it then endorses Grundy’s reading of Sharondale as requiring the ALJ to engage in a qualitative analysis to determine if the new evidence accompanying the subsequent claim is different from the old evidence that supported the earlier claim. The majority believes this to be the correct view based on the last paragraph of Sharondale, in which it claims that “we faulted the ALJ for failing to determine whether the claimant’s new x-ray evidence ‘differ[ed] qualitatively’ from the facially similar x-ray evidence that accompanied the prior claim.” Op. at 477. Therefore, the majority chooses to interpret this last paragraph of Sharon-dale as adding an additional requirement to the “one element” test. However, this is not the correct interpretation of Sharon-dale.

First of all, the language of Sharondale does not support the broad interpretation the majority wishes to assign to it. The case stands for the simple premise that after passage of one year from the denial of a claim, claimants can no longer argue they are entitled to benefits solely on the ground that their prior claims “should have been granted.” Sharondale, 42 F.3d at 998. Instead, they must demonstrate a material change and provide new evidence establishing such change. Id. at 997-98. In embracing the Director’s interpretation of “material change,” we emphasized that “[t]he Director’s interpretation takes into account the statutory distinction between a request for modification of the Board’s decision and a request for benefits based on a material change in condition.” Id. at 998. Outside of this, Sharondale does not *487speak to the manner in which a subsequent claim should be assessed. As a result, in no way can Sharondale be construed as adding any further requirements to the “one element” test.

Grundy argues, and the majority accepts as true, that the last paragraph of Sharon-dale supports the interpretation of the additional qualitative analysis requirement. The last paragraph of Sharondale stems from the Sharondale court’s 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 apparent that because of this concern, we spoke to the manner in which ALJs might ferret out claims seeking purely a modification of a decision on a prior claim, and not based on any material change, as is required by the statute. In so doing, we never stated that this method should also become a part of the Director’s “one element” test.

Furthermore, the meaning the majority wishes to give to this discussion fails to take note of an important textual difficulty which totally undermines such an interpretation. By pointing out that “[t]he ALJ never discusses how the later x-rays differ qualitatively from those submitted in 1985,” the Sharondale court was simply admonishing the ALJ for its failure to address and weigh all of the x-rays submitted with the claim filed in 1985.2 Sharon-dale, 42 F.3d at 999. The majority asserts that because the underlying 1990 ALJ decision speaks only of x-rays taken in 1986 and 1989, there were no x-rays submitted in 1985 when the claim was filed, and hence the Sixth Circuit’s reference to 1985 was a “typographical error.” Op. at 478 n. 5. However, the ALJ’s 1990 opinion fails to identify what medical evidence aecompa-nied the second claim at the time it was filed in 1985. See Ross v. Sharondale Corp., Case No. 86-BLA-4985, slip op. at 6-8 (July 25, 1990) (unpublished). The majority cannot simply conclude that because of this, there were no x-rays taken in 1985, as nothing exists in the record available to us to indicate one way or the other. In addition, to dismiss summarily the 1985 reference as a “typographical error” seems implausible, as it is a rather significant error for the entire Sixth Circuit panel to have overlooked.

Moreover, grammatically speaking, that the Sharondale court was criticizing the ALJ for its failure to address and weigh all of the x-rays submitted with the subsequent 1985 claim is the only legitimate conclusion. As used in this context, “later” means “subsequent.” See Merriam Webster Online Dictionary, http://www.merriam-webster.com (Oct. 22, 2003). Hence, the reference to the “later” x-rays can only mean those ones developed subsequent to 1985. In addition, the Shar-ondale court’s act of faulting the ALJ for failing'to look at all of the x-rays produced to support the 1985 claim was appropriate in light of our decision in Woodward v. Director, OWCP, 991 F.2d 314, 320-21 (6th Cir.1993). In that case, we discussed the decision of the ALJ to limit consideration of x-ray evidence solely to the last five x-rays taken. Id. at 319. Specifically, we “recognized the need for qualitative evaluation of the x-ray evidence, as well” as a quantitative analysis. Id. at 321 (emphasis added). The ALJ in Sharondale appears to have relied on the later x-ray interpretations that were submitted to support the second claim, and excluded the earlier x-ray interpretations also submitted with the same claim. See Sharondale, Case No. 86-BLA-4985, slip op. at 6-8. As a result, *488our opinion in Sharondale should not be interpreted to require the ALJ to compare the evidence from the second claim with that from the earlier denied claim. In order for that to be the case, the sentence would have to have said “differ qualitatively from those submitted in 1979,” and not 1985. Hence, the majority’s conclusion that Sharondale holds that miners “must do more than satisfy the strict terms of the one-element test” by “demonstrat[ing] that this change rests upon a qualitatively different evidentiary record,” Op. at 479, is not supported by the language of Sharon-dale.

Concededly, it cannot be denied that the phrase “the earlier denial” in the last sentence of the last paragraph of Sharondale does in fact refer to the 1979 claim. The Director views this sentence as merely serving “to point out that the ALJ’s failure to consider all of the x-ray readings submitted with the duplicate claim raised the possibility that the 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 weighed against the existence of the disease.” Appellee’s Br. at 23-24. Alternatively, this last sentence might also be read as instructing the ALJ to compare the evidence submitted with the second claim with that submitted with the previously denied claim. Indeed, as the Director appropriately points out, these “textual difficulties” in the last paragraph of Sharondale may have been the reason why both the Fourth and Eighth Circuits, uncertain as to its meaning, were unwilling to adopt this part of the opinion, as they stated that the paragraph “seems to have required consideration of the evidence behind the earlier denial to determine whether it ‘differ[s] qualitatively’ from the new evidence.” Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1363 n. 11 (4th Cir.1996) (emphasis added); Lovi-lia Coal Co. v. Harvey, 109 F.3d 445, 454 n. 7 (8th Cir.1997) (emphasis added) (quoting Lisa Lee Mines, 86 F.3d at 1363 n. 11).

In addition to these “textual difficulties” created by Grundy’s interpretation, even more arduous to overcome is its insistent focus on the paragraph in isolation. As the Director notes, “[t]he paragraph must, of course, be read in the context of the entire decision that precedes it.” Appel-lee’s Br. at 24. Immediately preceding the paragraph at issue, the Sharondale court, after engaging in a thorough analysis of the differing “material change” standards, concluded that the Director’s “one element” test should be accorded deference because it was a reasonable construction of the regulation at issue. Sharondale, 42 F.3d at 998. The Director never spoke of a qualitative analysis as part of a “material change” determination. Indeed, the “one element” test espoused by the Director flatly bars review of evidence from previous claims unless and until a “material change” has been proven. Id. at 997-98. As the Director states, the “[cjourt implicitly acknowledged the irrelevance of evidence regarding the miner’s condition at the time of the first claim' — -prior to the establishment of a material change — in disregarding the standard articulated by the Board in its Spese decision.” Appel-lee’s Br. at 25.

Furthermore, the majority’s reliance on Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir.2001), as further support for the qualitative analysis requirement is misplaced. In that case, we stated that, when the new and old medical evidence was substantially similar, we had held in Sharondale that “such situations were correctable within the one-year time period after a denial, but that after this point, a claimant is not ‘entitled to benefits simply because his claim should have been granted.’ ” Id. at 609 (quoting Sharondale, *48942 F.3d at 998). Hence, Kirk holds that “in order to measure a ‘change in conditions’ the ALJ must compare the sum of the new evidence with the sum of the earlier evidence on which the denial of the claim had been premised.” Id. “A ‘material change’ exists only if the new evidence both establishes the element and is substantially more supportive of claimant.” Id.

Through its analysis, the Kirk court did not add a new requirement to the “one element” “material change” standard. Rather, Kirk reasserts approvingly the Director’s “one element” test immediately before discussing the need for comparison of the new and old evidence so as to rule out claims based on the same evidence. Id. More importantly, however, the opinion reiterates the important difference between “claim modification” and “material change” analysis. In discussing the method to be employed in examining whether evidence submitted on a subsequent claim is identical to that submitted on a prior claim, this court stated that the “ALJ must compare the sum of the new evidence with the sum of the earlier evidence on which the denial of the claim had been premised.” Id. (emphasis added). The Kirk court was simply making the ALJ aware of situations in which a claimant attempts to circumvent the statutory requirements after a year has passed, by submitting the exact same evidence in the hope that it will be treated by the court as demonstrating a material change. As a result, the Kirk court is saying that “[i]n order to maintain this limitation in favor of finality,” it would be prudent for ALJs to engage in an overview comparison of the sum of the evidence to rule out duplicate claims. Id. Nowhere in the Kirk opinion is there a call for ALJs to engage in a thorough eviden-tiary qualitative analysis between the evidence in the old and new claims in assessing a “material change in conditions.”

Moreover, acceptance of the Director’s interpretation of the Sharondale “material change” standard is consistent with the other circuits that have dealt with this issue. In particular, both the Fourth and Eighth Circuits have accepted the Director’s interpretation of the “material change” standard. 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 of Sharondale, which “seems to have required consideration of the evidence behind the earlier denial to determine whether it ‘differ[s] qualitatively’ from the new evidence.” Lisa Lee Mines, 86 F.3d at 1363 n. 11; see also Lovilia, 109 F.3d at 454 n. 7. Furthermore, the Lovilia court, in deciding to accept the Director’s approach, noted that pursuant to established Supreme Court precedent, “[w]hen, like in this case, the issue is whether the agency has erred in interpreting its own regulations, the Supreme Court has stated that: provided the agency’s interpretation ‘does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” Lovilia, 109 F.3d at 451-52 (quoting Shalala v. St. Paul-Ramsey Med. Ctr., 50 F.3d 522, 527-28 (8th Cir.1995)) (quoting Stinson v. U.S., 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). This demonstrates that we are violating established principles when in one instance, we accord due deference to the 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 Lovilia 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 *490analysis 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 notion that miners disabled by pneumoconiosis arising out of coal mine employment are entitled to benefits under the Act. It affords a miner a second chance to show entitlement to benefits provided his condition has worsened.” Sharondale, 42 F.3d at 998. We concluded that it was important to accept the Director’s interpretation because it was “reasonable in light of the purpose of the statute and the language included in § 725.309(d).” Id.

It strikes me as rather schizophrenic of us in Sharondale to painstakingly analyze and weigh the competing “material change” interpretations, choose the Director’s test, and then immediately after-wards, depart from the test that we have chosen to adopt. Because of this, I believe that the interpretation of Sharondale that the majority endorses is wrong. Furthermore, despite the fact that the ambiguous language of Sharondale leaves the meaning of the last paragraph open to multiple interpretations, the rest of the decision does acknowledge the principle that it is inappropriate to compare the evidence in a new claim with the evidence submitted in connection with a previously denied claim in assessing whether a “material change” has been established. To retreat from the “one element” test that we endorsed not only violates the deference due the Director as noted above, but also proves utterly contradictory of our own Sharon-dale opinion. For these reasons, I concur only in the result.

. Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir.1994), involved § 725.309(d), while the case at hand involves § 725.309(c). This is irrelevant, however, as the language of both sections in 1999 is identical.

. The miner's previous claim was filed in 1979 and was finally denied in 1981. Subsequently, the miner filed a claim for benefits in . 1985. Sharondale, 42 F.3d at 995.