Grundy Mining Company v. Douglas W. Flynn

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0454P (6th Cir.)
File Name: 03a0454p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GRUNDY MINING COMPANY,
Petitioner,
v.
DOUGLAS W. FLYNN and
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
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No. 01-3111
On Petition for Review of an Order of the
Benefits Review Board,
United States Department of Labor.
No. 99-0386 BLA.
Argued: August 6, 2002
Decided and Filed: December 23, 2003
Before: MOORE and GILMAN, Circuit Judges; ROSEN,
District Judge.*
2 Grundy Mining Co. v. Flynn, et al. No. 01-3111
_________________
COUNSEL
ARGUED: Ronald E. Gilbertson, BELL, BOYD & LLOYD,
Washington, D.C., for Petitioner. Mary Forrest-Doyle,
UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents. ON BRIEF: Ronald E.
Gilbertson, BELL, BOYD & LLOYD, Washington, D.C., for
Petitioner. Christian P. Barber, Edward Waldman, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.
ROSEN, D. J., delivered the opinion of the court, in which
GILMAN, J., joined. MOORE, J. (pp. 30-38), delivered a
separate opinion concurring in the result only.
_________________
OPINION
_________________
ROSEN, District Judge.
I. INTRODUCTION
This action for coal miner’s black lung benefits arises under
Title IV of the Federal Coal Mine Health and Safety Act of
1969, as amended, 30 U.S.C. §§ 901-945 (“Black Lung
Benefits Act” or “BLBA”). The petitioner/employer, Grundy
Mining Company, appeals from a final order of the United
States Department of Labor (“DOL”) Benefits Review Board
(“Board” or “BRB”) granting benefits to respondent/claimant
Douglas W. Flynn. The respondent Director of the Office of
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
his first claim for black lung benefits in 1970, while he was
still working in the coal mines. The claim was finally denied

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 3
in 1981 because Flynn failed to prove that he was totally
disabled due to the pulmonary ailment pneumoconiosis. Had
Flynn been entitled to benefits at that time, responsibility for
payment would have been assumed by the Black Lung
Disability Trust Fund (“Trust Fund”).
Mr. Flynn filed another claim for benefits in 1984, a month
after retiring from the coal company. Pursuant to 20 C.F.R.
§ 725.309 (1999), this claim was considered a “duplicate.” In
order to escape the res judicata effect of his earlier claim,
Flynn had to demonstrate a “material change in conditions”
since the prior claim’s denial. Having surmounted this
threshold obstacle, he then had to prevail on the merits. The
present “duplicate” claim has been back and forth between the
Administrative Law Judge (“ALJ”) and the Board four times.
On appeal to this Court, three questions remain: (1) Did Mr.
Flynn establish a “material change” under the governing legal
standard? (2) Who, as between Grundy Mining and the Trust
Fund, should bear responsibility for paying any award of
benefits? and, (3) Does substantial evidence support the
ALJ’s finding that Flynn’s total disability was due to
pneumoconiosis?
In the administrative proceedings, the Board held that Mr.
Flynn had properly established a “material change” and total
disability due to pneumoconiosis. The Board acknowledged
some idiosyncrasies in the examining doctor’s report, yet
deferred to the ALJ’s judgment in weighing the evidence.
The Board further held that Grundy Mining must assume
responsibility for the payment of benefits since Flynn’s 1984
claim did not meet the statutory requirements for transfer to
the Trust Fund. For the reasons set forth below, we affirm the
Board’s decision on each of these points.
4 Grundy Mining Co. v. Flynn, et al. No. 01-3111
1A pulmonary function study which “qualifies” to demonstrate total
disability under 20 C.F.R. § 718.204(b)(2)(i) is one in which the FEV1
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 FEV1 to FVC is 55 p ercent or less.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Claimant’s Coal Mine Employment and Medical
History
Claimant Douglas W. Flynn was born in May 1913,
completed eighth grade, and by 1932 was working in the
Tennessee coal mines. His career in the mines spanned more
than 50 years, ending in 1984. For approximately 20 years
early in his career, he worked in the mines as a maintenance
man. During the latter part of his career, Flynn worked as a
light and utility man, with his responsibilities including
delivery of supplies to various areas of the mine and tending
to the electric lamps used by the miners. Although his work
station at that time was at the entrance to the mine, he
remained exposed to coal dust.
Mr. Flynn first applied for black lung benefits in November
1970, claiming that he was disabled by virtue of breathing
difficulties. He was engaged in coal mine employment at the
time, and remained so employed in 1981 when his first claim
ultimately was denied. Flynn filed a duplicate claim in March
1984, a month after retiring (at age seventy) from the coal
company. It is this 1984 claim that is at issue here.
Two medical opinions of record, both by Dr. Martin
Fritzhand, are relevant to the issues before us. First, upon
examining Mr. Flynn on behalf of the DOL on July 26, 1980,
in connection with the miner’s first claim, Dr. Fritzhand
reported a pulmonary function study which was non-
qualifying,1 as set forth in Table 1 below.

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 5
2A blo od gas study which “q ualifies” to demonstrate 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.
Table 1: 1980 Pulmonary Function Study
Forced
Expiratory
Vo lume in
One
Second
(“FEV1”)
Forced
Vital
Cap acity
(“FVC”)
Maximum
Voluntary
Ventilation
(“MVV ”)
FEV1/FVC
Qualifying
Standard
# 2.51 # 3.2 # 100 # 0.55
Flynn’s
Actual
Result
3.3 4.3 117 0.77
Dr. Fritzhand further reported an arterial blood gas study on
that occasion which was non-qualifying as well,2 as shown in
Table 2 below.
Table 2: 1980 Blood Gas Study
pCO2 pO2
Qualifying
Standard
(at pCO2 = 37.5)
# 62
Flynn’s Actual
Result
37.5 80.0
6 Grundy Mining Co. v. Flynn, et al. No. 01-3111
Dr. Fritzhand reported at that time that Flynn could
“ambulate on level terrain no more than 200 feet without
associated shortness of breath,” and that this “this symptom
increase[d] upon climbing stairs or walking up grades.” (J.A.
at 135.) The doctor further stated that Flynn was “unable to
mow a lawn without associated dyspnea.” Id. When asked to
“describe and explain limitations . . . that may be due to
pulmonary disease,” Dr. Fritzhand opined that Flynn could do
“mild activity at best without ass[ociated] s[hortness] o[f]
b[reath].” (J.A. at 133.) Dr. Fritzhand diagnosed chronic
obstructive pulmonary disease related to coal mine
employment, as well as hypertension.
Four years later, and several months after he ceased coal
mine work, Mr. Flynn again was examined by Dr. Fritzhand
on behalf of the DOL, this time in connection with the present
claim. In a report dated June 16, 1984, Dr. Fritzhand noted
another non-qualifying pulmonary function study, as well as
another non-qualifying blood gas study. See Tables 3 and 4
below.
Table 3: 1984 Pulmonary Function Study
FEV1 FVC MVV FEV1/FVC
Qualifying
Standard
# 2.35 # 3.02 # 94 # 0.55
Flynn’s
Actual
Result
3.3 4.2 67.2 0.79

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 7
Table 4: 1984 Blood Gas Study
pCO2 pO2
Qualifying
Standard
(at pCO2 = 33.9)
# 66
Flynn’s Actual
Result
33.9 72.1
Following this examination, Dr. Fritzhand reported that
Flynn could “ambulate on level terrain no more than 300 feet
without associated shortness of breath,” and that “this
symptom increase[d] upon climbing stairs or walking up
grades.” (J.A. at169.) He also stated that Flynn was “unable
to mow a lawn without associated dyspnea.” Id. When asked
to “describe and explain limitations . . . that may be due to
pulmonary disease,” Dr. Fritzhand responded that Flynn was
able to do “no more than sedentary activity.” (J.A. at 167.)
Dr. Fritzhand diagnosed ASHD (arteriosclerotic heart disease)
with atrial fibrillation, hypertension, and congestive heart
failure, as well as pneumoconiosis related to coal mine
employment.
B. Procedural History
1. Flynn’s First Claim for Black Lung Benefits
Mr. Flynn’s initial claim for federal black lung benefits was
filed on November 21, 1970, and was originally denied by the
Social Security Administration (“SSA”) on April 9, 1971.
Flynn then filed an election card to request review of this
claim under the Black Lung Benefits Reform Act of 1977. As
a result of this filing, any liability would have transferred to
the DOL’s Trust Fund, had Flynn been entitled to benefits.
See 30 U.S.C. § 932(c),(j)(3); 20 C.F.R. § 725.496(d). See
8 Grundy Mining Co. v. Flynn, et al. No. 01-3111
generally Director, OWCP v. Quarto Mining Co., 901 F.2d
532, 535 (6th Cir. 1990) (reviewing this statutory scheme).
Following this second round of review, Mr. Flynn’s initial
claim for black lung benefits was finally denied by the DOL’s
district director on June 15, 1981. The district director
determined that Flynn had pneumoconiosis arising out of his
coal mine employment, but denied the claim on the ground
that Flynn failed to establish his total disability as a result of
this disease.
2. Flynn’s Second Claim for Black Lung Benefits
Mr. Flynn subsequently filed the present claim on
March 13, 1984. The district director denied the new claim
but, at Flynn’s request, referred it for a formal hearing. A
lengthy administrative review process ensued, spanning well
over a decade, and culminating in the Benefits Review
Board’s September 2000 decision which is now being
challenged on appeal. The following summarizes the rulings
issued during the course of this protracted review process.
ALJ I: ALJ V.M. McElroy heard the case and issued a
July 20, 1987 Decision and Order (“D&O”) awarding
benefits. The ALJ did not address whether Mr. Flynn had
established a “material change in conditions” since the denial
of his previous claim. He did, however, find Flynn totally
disabled due to pneumoconiosis arising out of his fifty years
of coal mine employment.
BRB I: Grundy Mining appealed and, on January 31,
1989, the Board issued a D&O vacating the award and
remanding the matter for further consideration. The Board
found that ALJ McElroy had overlooked the “material
change” issue, but nevertheless held that Flynn had
established a material change as a matter of law under Spese
v. Peabody Coal Co., 11 BLR 1-174 (Ben. Rev. Bd. 1988).
The Board remanded, however, for further consideration on
the merits of benefits entitlement.

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 9
ALJ II: On remand, ALJ McElroy again awarded benefits,
this time in a D&O dated April 29, 1991. However, the ALJ
failed to address Grundy Mining’s motion to dismiss and
transfer liability to the Trust Fund.
BRB II: Grundy Mining again appealed. On October 4,
1993, before the Board could issue a decision, Mr. Flynn
died, and his widow, Gussie Flynn, pursued the claim on his
behalf. On April 4, 1994, the Board once again vacated the
ALJ’s findings on the merits of entitlement and remanded for
further consideration. In so ruling, however, the Board re-
affirmed its earlier holding of “material change,” and also
rejected Grundy Mining’s transfer argument on the ground
that only the 1984 claim — which did not qualify for transfer
— remained open.
ALJ III: On January 30, 1995, ALJ Campbell issued a
D&O on remand reinstating the award of benefits. First, the
ALJ found that pneumoconiosis had been established on the
basis of both the x-ray evidence and the medical opinions.
Second, he found that Dr. Fritzhand’s 1984 opinion (that
Flynn could do no more than sedentary activity) established
total disability since Flynn’s last coal mine employment was
incompatible with this sedentary restriction. The ALJ went
on to explain that Dr. Fritzhand’s 1984 opinion outweighed
the non-qualifying pulmonary function and blood gas studies
because such results “are not self explanatory, and no
physician has used them to support a conclusion that
Claimant is not disabled due to pneumoconiosis.” (J.A. at
49.)
Finally, regarding disability causation, ALJ Campbell noted
that Dr. Fritzhand had diagnosed both cardiac and pulmonary
conditions in his 1984 report. However, the ALJ pointed out
that, in this report, Dr. Fritzhand had explicitly stated that
Flynn’s limitation to sedentary activity was attributable to
pulmonary disease. Consequently, ALJ Campbell reasoned
that “the limitation due to pulmonary disease that Dr.
Fritzhand listed must be related to pneumoconiosis because
10 Grundy Mining Co. v. Flynn, et al. No. 01-3111
pneumoconiosis is the only pulmonary disability that Dr.
Fritzhand included in his 1984 medical report.” (Id.)
BRB III: The Board affirmed the award of benefits in a
D&O dated July 27, 1995. In so holding, the Board first
addressed the proper standard for establishing a “material
change in conditions.” In its initial decision, the Board held
that Flynn had established a “material change” pursuant to the
then-prevailing Spese standard. In Sharondale Corp. v. Ross,
42 F.3d 993, 997 (6th Cir. 1994), however, this Circuit
rejected the Spese standard. Consequently, the Board now
held that a “material change” consistent with Sharondale
would be established if it could affirm ALJ Campbell’s
finding that Dr. Fritzhand’s 1984 opinion established total
disability.
Next, in affirming this finding, the Board explained that the
ALJ permissibly found the doctor’s opinion sufficient to
establish total disability, since this finding was based on a
comparison of Dr. Fritzhand’s 1984 assessment limiting
Flynn to sedentary activity with the exertional requirements
of Flynn’s last coal mine employment. The Board further
held that ALJ Campbell acted within his discretion in
determining that Dr. Fritzhand’s medical report outweighed
the non-qualifying test results.
Proceeding to the issue of pneumoconiosis, the Board
upheld the ALJ’s determination that Dr. Fritzhand’s 1984
opinion was documented and reasoned. Because there were
no contrary medical opinions of record, the Board affirmed
ALJ Campbell’s finding of pneumoconiosis. Finally, while
the Board recognized that Dr. Fritzhand had diagnosed heart
disease as well as coal mine employment-related
pneumoconiosis, it held that the ALJ had acted within his
fact-finding discretion in determining that Flynn’s total
disability was due to pneumoconiosis.
BRB IV: In response to Grundy Mining’s timely motion
for reconsideration, the Board vacated the award and

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 11
remanded in a D&O on Reconsideration dated July 14, 1997.
In so ruling, the Board construed the last portion of
Sharondale as “requir[ing] that a miner show that there has
been a worsening in his physical condition.” (J.A. at 30.)
The Board therefore instructed the ALJ to address on remand
whether there was any qualitative difference between Dr.
Fritzhand’s two opinions:
[T]he administrative law judge, on remand, must explain
whether he merely disagreed with the previous
characterization of Dr. Fritzhand’s 1980 medical report
[as not establishing disability] or whether claimant has
shown, through the submission of Dr. Fritzhand’s 1984
medical opinion, a material change in his condition since
the earlier denial.
(J.A. at 32.) Thus, the sole purpose for remand was
reconsideration of the “material change” issue under the
Board’s revised reading of Sharondale.
ALJ IV: On November 5, 1998, ALJ Campbell issued a
D&O on Remand (“ALJ IV”) awarding benefits. At the
outset, the ALJ opined that this case was factually similar to
Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir.
1996) (en banc), cert. denied, 519 U.S. 1090 (1997), in which
the Fourth Circuit addressed the meaning of the “material
change” standard. The ALJ accepted Lisa Lee Mines as
persuasive authority, and described it as standing for the
proposition that “an administrative law judge cannot base a
finding of material change on his or her disagreement with the
factual underpinnings of a prior denial.” (J.A. at 23.) Rather,
in a material change analysis, the ALJ must accept as correct
both the prior denial and the facts necessary to sustain it. (Id.)
Applying this standard, the ALJ reasoned that since Flynn’s
earlier claim was denied and Dr. Fritzhand’s 1980 opinion
was part of the record considered on that occasion, it followed
that this opinion did not establish total disability. (Id. at 24.)
12 Grundy Mining Co. v. Flynn, et al. No. 01-3111
ALJ Campbell next turned to the inquiry that the Board had
instructed him to perform on remand, and found that there
were qualitative differences between Dr. Fritzhand’s two
reports. Specifically, the ALJ observed that in 1984, Dr.
Fritzhand conducted new pulmonary function and blood gas
studies which, though still not qualifying, reflected at least
some declining values. Additionally, the ALJ noted that Dr.
Fritzhand had conducted a new physical examination in 1984,
resulting in a “sedentary” restriction that was more limiting
than the “mild activity” finding in the doctor’s 1980 report.
Thus, ALJ Campbell concluded that Flynn established a
“material change in conditions” consistent with the Board’s
directives.
BRB V: On September 27, 2000, the Board affirmed ALJ
Campbell’s finding of a “material change in conditions” and,
therefore, affirmed the award of benefits. In the process, the
Board declined to revisit the issue of whether Dr. Fritzhand’s
1984 opinion was documented and reasoned based on the
law-of-the-case doctrine. Instead, the Board endorsed the
ALJ’s reasoning vis-à-vis “material change” because Dr.
Fritzhand had conducted a new physical examination and new
objective tests in 1984, and had downgraded Flynn’s physical
capacity from “mild activity” in 1980 to “sedentary activity”
in 1984. The Board did note Dr. Fritzhand’s findings that
Flynn could walk 200 feet in 1980 and 300 feet in 1984, but
nonetheless held that substantial evidence supported the
ALJ’s findings, and that this minor incongruity would not
have required the ALJ to discredit the 1984 report.
Grundy Mining timely sought reconsideration of the
Board’s latest ruling, but the Board summarily denied this
request on December 20, 2000. This appeal followed.
III. ANALYSIS
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

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 13
change in conditions” since the denial of Flynn’s previous
claim. Next, Grundy Mining argues that the record is
insufficient to sustain the ALJ’s determination on the merits
that Flynn was disabled due to pneumoconiosis. Finally, in
the event that the award of benefits is sustained, Grundy
Mining argues that the liability for this claim should be borne
by the Black Lung Disability Trust Fund. We consider each
of these contentions in turn.
A. The ALJ Properly Found a “Material Change in
Conditions” as Required to Avoid the Res Judicata
Effect of the Denial of Mr. Flynn’s Previous Claim for
Benefits.
1. Standard of Review
Whether the ALJ and the Board applied the appropriate
“material change” standard is a purely legal question that we
address de novo. See Director, OWCP v. Consolidation Coal
Co., 884 F.2d 926, 929 (6th Cir. 1989). To the extent,
however, that the ALJ’s determination of a “material change”
rests upon factual findings, we must accept all such findings
that are “supported by substantial evidence in the record
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
remedial in nature and must be liberally construed to include
the largest number of miners as benefit recipients.” Peabody
Coal,123 F.3d at 415 (internal quotations and citations
omitted).
2. The ALJ’s “Material Change” Inquiry Fully
Comported with the Standard Announced in this
Court’s Sharondale Decision.
As starkly illustrated by our recitation of the lengthy
procedural history of this case, the “material change” standard
has engendered a great deal of debate during the course of the
14 Grundy Mining Co. v. Flynn, et al. No. 01-3111
3The Secretary of Labo r revised this regulation, along with many
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 ).
Througho ut this opinion, we cite to the 1999 edition of Title 20, Code of
Federal Regulations in order to refer to the regulations in their earlier
form. All other referenc es will be to the current regulations.
Although the revised regulations generally apply to pending claims,
§ 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
that a claimant demon strate a change in “one of the applicable conditions
of entitlement.” 20 C.F.R . § 725.309 (d). Because the current regulation
does not apply here, we need not determine the legal significance of this
revision.
administrative proceedings now under review. When Mr.
Flynn filed his most recent claim for black lung benefits in
1984, more than a year after his earlier claim was denied in
1981, the pertinent regulations in effect at the time required
that his subsequent claim be denied “on the grounds of the
prior denial” unless “there has been a material change in
conditions.” 20 C.F.R. § 725.309(c) (1999).3
We addressed this regulation at length in Sharondale Corp.
v. Ross, supra. Upon surveying three possible constructions
of the “material change” requirement, including the meaning
adopted by the Board in Spese, supra, and the standard
articulated by the Seventh Circuit in Sahara Coal Co. v.
OWCP, 946 F.2d 554 (7th Cir. 1991), we elected to defer to
the position advocated by the Director. See Sharondale, 42
F.3d at 997-98. Specifically, we characterized the Director’s
“one-element” test as follows:
[T]o 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 him. If the miner establishes the

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 15
4Sha rondale addressed § 725 .309(d) (1999 ), while this case concerns
§ 725.309(c) (1999). The operative language of these two subsections is
identical, however.
existence of that element, he has demonstrated, as a
matter of law, a material change.
Sharondale, 42 F.3d at 997-98.
In holding that the Director’s interpretation was entitled to
deference, we found that it struck a reasonable balance
between res judicata concerns and the remedial nature of the
BLBA:
Here, the Director’s interpretation is 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. The interpretation implicitly recognizes that
the doctrine of res judicata is not implicated by the
claimant’s physical condition or the extent of his
disability at two different times. The entitlement is not
without limits, however; a miner whose condition has
worsened since the filing of an initial claim may be
eligible for benefits, but after a year has passed since the
denial of his claim, no min[e]r is entitled to benefits
simply because his claim should have been granted. The
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 conditions. Accordingly, we find the
Director’s interpretation to be reasonable in light of the
purpose of the statute and the language included in
§ 725.309(d).
Sharondale, 42 F.3d at 998.4
16 Grundy Mining Co. v. Flynn, et al. No. 01-3111
Finally, we considered whether the administrative decision
under review properly found a “material change in
conditions” in accordance with the standard we had adopted:
Under the Director’s interpretation, the ALJ did not
properly analyze the facts. In assessing the second claim,
the ALJ concluded that because he found the new x-ray
evidence established the existence of pneumoconiosis, a
material change in [claimant] Ross’s condition had
occurred. The record shows, however, that both positive
and negative x-ray interpretations by both “B” readers
and “non-B” readers accompanied [Ross’s] 1979 claim
as well as the 1985 claim. The ALJ never discusses how
the later x-rays differ qualitatively from those submitted
in 1985. Thus, we are unable to discern on the record
before us whether the ALJ merely disagreed with the
previous characterization of the strength of the evidence
or whether Ross indeed had shown the existence of a
material change in his condition since the earlier denial.
Sharondale, 42 F.3d at 999 (footnotes omitted).
This last portion of Sharondale gives rise to the parties’
principal point of contention in this case. Arguably, 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 were adjudicated against the
claimant. There seemingly is no place in this inquiry for
comparison between the new evidence and the evidence
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
the facially similar x-ray evidence that accompanied the prior
claim. Sharondale, 42 F.3d at 999. On remand, we directed
the ALJ to determine whether there was such a qualitative

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 17
5The Director also suggests, and Judge Moore likewise maintains in
her conc urrence, that this interpretative dilemma can be avoided by
construing the last paragraph of Sha ronda le as not actually mandating a
comparison of the evidence accompanying a miner’s first and subsequent
claims. This argument rests largely on Sha rondale’s reference to “later
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
panel meant only to fault the ALJ in that case for failing to properly
address all of the x-rays submitted with the miner’s dup licate 1985 claim .
The ALJ erred, in other words, by favoring the “later x-rays” submitted
in support of the duplicate claim over those x-rays “submitted in 198 5.”
This proposed reading of Sha rondale is demonstrably inco rrect,
however, as shown by the very record the Director cites in support of it.
difference, or whether the ALJ “merely disagreed” with the
decision to deny the prior claim under a qualitatively similar
evidentiary record. 42 F.3d at 999.
In the present case, Grundy Mining reads Sharondale as
augmenting the basic “one-element” test in one important
respect. Upon finding a change in at least one of the elements
of benefit entitlement — the pure “one-element” inquiry —
the ALJ then must compare the evidence accompanying the
miner’s two claims, in order to determine whether a
qualitative difference in the record supports the change in
outcome as to this element. The Director, on the other hand,
argues that this reading of the last paragraph of Sharondale is
irreconcilable with the immediately preceding portion of that
decision, in which the panel held that the Director’s “one-
element” standard was entitled to deference as a reasonable
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”
test and its rationale, announce its adoption of the Director’s
interpretation, and then, in the very next paragraph, disregard
the strict “one-element” standard and order the ALJ to
examine the evidence underlying the denial of the original
claim as a prerequisite to finding a “material change.”5
18 Grundy Mining Co. v. Flynn, et al. No. 01-3111
Simp ly stated, there were no such distinct “1985” and “later” subsets of
x-ray evidence accompa nying the miner’s duplicate claim in that case.
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
miner’s duplicate claim in Sha rondale were taken in April and May of
1986 and July, Nove mbe r and December o f 1989. See Ross v.
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
not even true that the ALJ in Sha rondale uniformly favored the “later”
over the earlier x-rays accompanying the miner’s duplicate claim. Rather,
the ALJ considered all of the 1989 and one of the 1986 x-rays, with the
remaining 1986 x-ray given little weight because it was classified by two
B-readers as unreadab le. No thing in Sha rondale suggests that the panel
meant to fault the ALJ for this analysis.
In light of this record, it seems evident that Sha rondale’s reference
to “198 5” x-ra ys is a typographical error. If we assume that the panel
meant to refer to x-rays “submitted in 197 9,” the year of the miner’s
initial claim, the last paragraph of Sha rondale make s coherent sense, with
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
about the meaning o f Sha rondale, because an intervening panel has
already done so, and we are bound to follow this subsequent ruling.
We are not free to pick and choose the portions of a prior
published decision that we will follow and those that we will
disregard. Nor do we enjoy greater latitude in situations
where our precedents purportedly are tainted by analytical
flaws, as the Director contends is the case with Sharondale.
Rather, we are bound by the published opinions of previous
panels, and this rule encompasses all parts of a prior ruling
that are properly construed as holdings rather than dicta. See
Johnson v. City of Cincinnati, 310 F.3d 484, 493 (6th Cir.
2002), cert. denied, 123 S. Ct. 2276 (2003). It can hardly be
contended that the final paragraph of Sharondale is dicta, as
this is the portion of the opinion in which the panel applied
the “material change” standard to the facts of the case before
it. Specifically, although the miner in that case had met the
strict terms of the “one-element” test — his initial claim was
denied for failure to establish the presence of

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 19
6As the Director and the concurrence observe, two of our sister
circuits have d eclined to end orse the final paragraph of Sha rondale, on
the ground that it apparently “req uire[s] consideration of the evidence
behind the earlier denial to determine whether it ‘differ[s] qualitatively’
from the new evidence.” Lisa Lee Mines, supra, 86 F .3d at 136 3 n.11; see
also Lovilia Coal Co . v. Harvey, 109 F.3d 4 45, 454 n.7 (8th Cir. 1997).
Yet, we fail to see how this supp orts the D irector’s position here. To the
contrary, these Fourth and Eighth Circuit decisions seemingly share our
own view as to the pro per re ading of Sha rondale and the inquiry called
for under that ruling. These other circuits, of course, are free to disagree
with Sha rondale and adopt a different rule, but we enjoy no such latitude
here.
pneumoconiosis, while the ALJ found that this condition was
established through the evidence accompanying his
subsequent claim — the panel directed the ALJ to conduct a
further inquiry whether this change in outcome was
attributable to qualitatively different evidence, as opposed to
the ALJ’s different assessment of an essentially unchanged
evidentiary record. The import of Sharondale is clear, then
— miners whose claims are governed by this Circuit’s
precedents must do more than satisfy the strict terms of the
one-element test, but must also demonstrate that this change
rests upon a qualitatively different evidentiary record.6
Indeed, any lingering uncertainty about the proper reading
of Sharondale surely has been dispelled in this Court’s
subsequent decision in Tennessee Consolidated Coal Co. v.
Kirk, 264 F.3d 602, 608-10 (6th Cir. 2001). There, as here,
the employer contended that Sharondale mandates an inquiry
beyond the one-element standard, under which “the new
medical evidence must be compared with the preexisting
medical evidence on the same issue” to determine if a
different outcome is warranted. Kirk, 264 F.3d at 608. We
agreed:
As the employer correctly points out, if the ALJ need
only assess whether the new medical evidence proved an
element previously held to have been missing, it would
allow the relitigation of cases in which the new and old
20 Grundy Mining Co. v. Flynn, et al. No. 01-3111
7In light of this p lain language, which is accurately recounted in the
concurrence, we fail to discern the basis for Judge Mo ore’s disagreement
with our reading of Kirk. The concurrence recognizes both that the
Director’s strict one-element test does not call for a comparison of the
evidence acco mpa nying a m iner’s prior and current claims, (see
Concurring Op. at 31), and that Kirk does require such a com pariso n, to
ensure that the miner’s current claim is not accompanied by evidence
which is “identical” or “substantially similar” to that which accompanied
the prior claim, (see id. at 36). Any such “substantially similar” inquiry
plainly entails so m e comparison of the new and old evidence, as Judge
Mo ore concedes in her concurrence. This being so, we rely on the
language of Sha rondale and Kirk to determine the precise nature and
extent of this comparison.
medical evidence were essentially the same, but in which
there had been a legal error in the previous adjudication.
In Sharondale, we held 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.” 42 F.3d at 998. In order to maintain this
limitation in favor of finality, and 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. A
“material change” exists only if the new evidence both
establishes the element and is substantially more
supportive of claimant.
Kirk, 264 F.3d at 609 (footnote omitted).7
Kirk further explains that the “change” referred to under the
“material change” standard “is the actual difference between
the bodies of evidence presented at different times,” while
“the ‘materiality’ of the change is marked by the fact that this
difference has the capability of converting an issue
determined against the claimant into one determined in his
favor.” 264 F.3d at 609 n.6. Applying this standard to the
facts before it, the panel found that “[t]he ALJ in this case
made a legal error similar to that of the judge in Sharondale

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 21
by failing to show that, on the element selected to show a
material change, there was in fact a worsening of claimant’s
condition.” 264 F.3d at 609. Kirk also cautions that the ALJ
must accurately identify the elements of entitlement
adjudicated against the miner in the earlier claim denial,
because these elements are the proper focus of a subsequent
“material change” inquiry.
In sum, our precedents have defined the relevant inquiry
with sufficient clarity. In order to grant a subsequent claim
for black lung benefits more than a year after an earlier claim
has been denied, the ALJ must (i) determine, based upon all
of the evidence accompanying the subsequent claim, that the
miner has proven at least one of the elements of benefit
entitlement previously adjudicated against him; (ii) find,
based upon a comparison of the sum of the new evidence with
the sum of the evidence considered in connection with the
earlier claim denial, that the new evidence is sufficiently more
supportive to warrant a change in outcome; and, finally
(iii) determine on the merits, based upon the entirety of the
record, that the miner is entitled to benefits. Significantly,
despite the Director’s protests against the second step of this
inquiry, the Board in this case correctly perceived the need for
this evidentiary comparison under this Circuit’s precedents,
and remanded the matter to the ALJ for a third and final time
expressly for this purpose. Consequently, we discern no legal
error in the Board’s interpretation of the “material change”
standard, and Grundy Mining does not contend otherwise.
It remains only to ask, therefore, whether the ALJ’s finding
of a “qualitative difference” in the records accompanying Mr.
Flynn’s initial and subsequent claims is supported by
substantial evidence. As explained in Kirk, any such
difference must be sufficient to account for the change in one
or more of the elements of entitlement that were found
lacking in the adjudication of Mr. Flynn’s initial claim. The
specific element of entitlement at issue here is total disability
— the record indicates that the evidence submitted in
connection with Mr. Flynn’s initial claim was deemed
22 Grundy Mining Co. v. Flynn, et al. No. 01-3111
sufficient to establish the existence of pneumoconiosis, but
that this claim was denied for failure to establish that this
condition was totally disabling. (See J.A. at 96, 103.)
Accordingly, to satisfy the “material change” standard, there
must be a qualitative difference in the evidence as it bears
upon this element of total disability.
In comparing the two bodies of evidence accompanying
Mr. Flynn’s initial and subsequent claims, the ALJ focused
almost exclusively on differences between the 1980 and 1984
reports of Dr. Martin Fritzhand, who examined Flynn on
behalf of the DOL. In particular, Dr. Fritzhand opined in his
1980 report that Flynn could do “mild activity at best,” (J.A.
at 133), but his 1984 report stated that Flynn was limited to
“no more than sedentary activity,” (J.A. at 167.) The ALJ
found that Dr. Fritzhand’s downgraded assessment of Flynn’s
condition was properly supported by a change in the objective
medical data, where separate physical examinations,
pulmonary function studies, and arterial blood gas studies had
been conducted in the course of Flynn’s 1980 and 1984 visits
with this physician.
We find no basis to disturb the ALJ’s determination that
qualitative differences exist between Dr. Fritzhand’s 1980 and
1984 reports, and that these differences support a changed
outcome on the issue of total disability. There is no question
that Dr. Fritzhand’s two reports, on their face, reflect a degree
of worsening in Mr. Flynn’s condition between 1980 and
1984. Specifically, as observed by both the ALJ and the
Board, Dr. Fritzhand found that Flynn was capable of mild
activity in 1980, but only sedentary activity in 1984. In an
earlier round of the administrative proceedings, the ALJ
found that “Claimant’s coal mine employment, although
light-duty work, required more than sedentary activities,” so
that “Dr. Fritzhand’s conclusion [in 1984] that Claimant is
limited to sedentary activities establishes that Claimant was
totally disabled from his coal-mine employment.” (J.A. at
49.) Grundy Mining does not challenge this reasoning on
appeal, but apparently concedes that a limitation to sedentary

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 23
8It follows from these concessions that Flynn has satisfied the strict
“one-element” standard advocated by the Director, because the new
evidence establishes an element that was adjudicated against Flynn in the
denial of his earlier claim. Yet, as explained above, more is required
under this Court’s “material change” precedents. Unfortunately, the
Director’s brief on appeal is content to rest on the incorrect premise that
Sha rondale mandates only a “one-element” inquiry; the Director
expresses no view as to whether the ALJ properly performed the
additional comparison required under our Sha rondale and Kirk decisions.
activity, if supported by the evidence, would render Flynn
incapable of engaging in his usual coal mine work or
comparable employment. Likewise, Grundy Mining does not
dispute that the sedentary limitation reported by Dr.
Fritzhand, if credited and properly supported, bears directly
on the “total disability” element that was adjudicated against
Flynn in the denial of his earlier claim.8
Nonetheless, Grundy Mining contends that Dr. Fritzhand’s
cursory statements regarding “mild” versus “sedentary”
activity cannot alone establish a qualitative difference
between the physician’s 1980 and 1984 reports, absent
underlying medical evidence that would support Dr.
Fritzhand’s downgraded assessment. The medical record, in
Grundy Mining’s view, is virtually unchanged from 1980 to
1984. On both occasions, for example, Dr. Fritzhand reported
non-qualifying pulmonary function and blood gas studies, and
his two physical examinations both revealed that Flynn’s
“breath sounds [were] clear without rales, rhonchi, or
wheezes.” (J.A. at 135, 169.) Indeed, Grundy Mining notes
that Dr. Fritzhand’s reports reflect improvement in one
respect — the 1980 report states that Flynn could “ambulate
on level terrain no more than 200 feet without associated
shortness of breath,” (J.A. at 135), while this distance
increased to 300 feet in the 1984 report, (J.A. at 169).
The material change standard, however, does not demand
that a claimant’s new evidence point uniformly and
unmistakably toward a more favorable outcome. Such a
24 Grundy Mining Co. v. Flynn, et al. No. 01-3111
requirement would transcend the finality concerns behind the
“material change” standard, and would effectively penalize
miners whose initial claims were denied. This problem would
be particularly acute in cases where the miner narrowly fails
to prove the conditions of benefit entitlement; under such
circumstances, it would be unreasonable to insist that the
miner’s new evidence accompanying a subsequent claim be
significantly and uniformly more supportive of an award of
benefits, when even a modest change in the overall record
would suffice to establish all of the elements of entitlement.
All that we require is that the evidence be sufficiently
different to warrant a different outcome on one or more of
these elements, so that we need not be concerned that two
factfinders are making different assessments of essentially the
same record. As stated in Kirk, the change must be
“material,” meaning that it “has the capability of converting
an issue determined against the claimant into one determined
in his favor.” 264 F.3d at 609 n.6.
Upon comparing the sum of the new evidence
accompanying Flynn’s 1984 claim with the evidence
submitted in connection with his prior claim, we find
sufficient differences to meet this standard and, more
specifically, to support Dr. Fritzhand’s downgraded
assessment from “mild” to “sedentary.” As the ALJ
observed, the studies performed in 1984, while still non-
qualifying, revealed some declining results in individual
values. Moreover, Dr. Fritzhand did conduct a second
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
that Dr. Fritzhand’s choice of the words “mild” in 1980 and
“sedentary” in 1984 lacks any significance or medical basis
whatsoever, particularly where the employer has not produced
any evidence or opinion that Flynn was capable of more than
sedentary activity at the time of his second claim. Finally, as
further evidence of Flynn’s declining condition between 1980
and 1984, we note: (i) that he remained on the job when Dr.
Fritzhand first examined him, but had ceased working at the

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 25
9No tably, the fact that Flynn was still working counted against him
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.)
time of his 1984 physician visit;9 (ii) that Dr. Fritzhand
diagnosed pneumoconiosis following the second exam, in
contrast to his 1980 diagnosis of chronic obstructive
pulmonary disease; and (iii) that the record includes
statements from Flynn and his co-workers that he required
assistance in performing his duties during his last few years
on the job, (see J.A. at 140, 142, 144).
We recognize that Mr. Flynn’s new evidence
accompanying his 1984 claim does not all point decisively
toward a finding of benefit entitlement. Again, however, the
bar is not so high for a miner to demonstrate a “material
change in conditions” under the governing regulations.
Accordingly, we affirm the decision of the Board that Mr.
Flynn’s 1984 claim satisfies this standard.
B. The ALJ’s Decision to Award Benefits Is Supported
by Substantial Evidence.
Having determined that Mr. Flynn had satisfied the
“material change” standard, the ALJ turned to the merits of
Flynn’s 1984 claim for black lung benefits, and found that the
miner had established total disability due to pneumoconiosis.
We must affirm this decision provided that it rests upon
substantial evidence in the record. See Consolidation Coal,
884 F.2d at 929. In arguing that this decision should be set
aside, Grundy Mining contends that the evidence is lacking as
to a causal link between pneumoconiosis and total disability.
We agree with the Board, however, that the ALJ’s resolution
of the causation issue reflects a proper exercise of his
factfinding authority.
The claimant bears the burden of proving total disability
due to pneumoconiosis and, as Grundy Mining correctly
26 Grundy Mining Co. v. Flynn, et al. No. 01-3111
notes, this causal link must be more than de minimis. Peabody
Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997). To
satisfy the “due to” requirement of the BLBA and its
implementing regulations, a claimant must demonstrate by a
preponderance of the evidence that pneumoconiosis is “more
than merely a speculative cause of his disability,” but instead
“is a contributing cause of some discernible consequence to
his totally disabling respiratory impairment.” Smith, 127 F.3d
at 507. To the extent that the claimant relies on a physician’s
opinion to make this showing, such statements cannot be
vague or conclusory, but instead must reflect reasoned
medical judgment. See Griffith v. Director, OWCP, 49 F.3d
184, 186-87 (6th Cir. 1995).
The parties here agree that Mr. Flynn’s showing of
causation rests upon Dr. Fritzhand’s 1984 report. Grundy
Mining contends that careful examination of this report
reveals no specific finding that pneumoconiosis contributed
in any way to Flynn’s disability. In support of this argument,
the employer notes that Dr. Fritzhand diagnosed heart disease
as well as pneumoconiosis, and that the detailed findings set
forth in his typewritten report provide no basis to discern
which of these conditions was the cause of Flynn’s disability.
Moreover, at least some of these findings seemingly suggest
that Flynn’s pulmonary condition might not be the cause of
his disability — Dr. Fritzhand reported, for example, that
Flynn’s chest expansion was “normal,” that he did not “use
accessory muscles of respiration,” and that his “breath sounds
[were] clear without rales, rhonchi, or wheezes.” (J.A. at
169.)
These points, while certainly relevant to the causation
inquiry, do not compel us to reject the ALJ’s findings on this
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
was at least a contributing cause of Flynn’s disability, the
ALJ observed that Dr. Fritzhand reported his “sedentary”
finding in a section of the DOL medical history and

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 27
examination form in which the physician is asked to describe
the limitations “due to pulmonary disease.” (J.A. at 167.)
Accordingly, the ALJ reasoned that “the limitations due to
pulmonary disease that Dr. Fritzhand listed must be related to
pneumoconiosis because pneumoconiosis is the only
pulmonary disability that Dr. Fritzhand included in his 1984
medical report.” (J.A. at 49.) The Board determined, and we
agree, that the ALJ drew a reasonable inference that lies
within his “broad discretion in evaluating the medical
evidence.” (J.A. at 39.) “[A] reviewing court may not set
aside an inference because it finds another more reasonable.”
Moseley v. Peabody Coal Co., 769 F.2d 357, 360 (6th Cir.
1985).
Nor can we accept Grundy Mining’s assertion that any
causal connection identified by Dr. Fritzhand lacks support in
the underlying medical evidence. As noted, pneumoconiosis
need not be the sole cause of a miner’s disability, but only a
contributing factor. Dr. Fritzhand’s 1980 and 1984 reports
alike state that Mr. Flynn had a long history of shortness of
breath, that he could ambulate only a few hundred feet
without associated shortness of breath, that this symptom
increased upon climbing stairs or walking up grades, that he
could not mow a lawn without associated dyspnea, that he
frequently awoke during the night with shortness of breath,
and that he had long suffered from a chronic cough. All of
this provides support for a link between pulmonary disease
and disability. In addition, the ALJ noted the absence of any
medical opinion contradicting Dr. Fritzhand’s report or
otherwise suggesting that Flynn’s limitations might be due to
a condition other than pneumoconiosis.
Under this record, the assessment of Dr. Fritzhand’s report
is “essentially a credibility matter” for the ALJ to resolve, and
it would lie beyond “our limited scope of review” to assign a
different weight or meaning to this medical opinion. Peabody
Coal Co. v. Groves, 277 F.3d 829, 836 (6th Cir. 2002), cert.
denied, 537 U.S. 1147 (2003). Consequently, we affirm the
28 Grundy Mining Co. v. Flynn, et al. No. 01-3111
Board’s determination that Flynn is entitled to an award of
black lung benefits.
C. Grundy Mining Has Failed to Identify a Basis for
Imposing Liability on the Trust Fund.
Finally, in an appeal to notions of equity, Grundy Mining
argues that the Black Lung Disability Trust Fund should bear
the liability for the award of benefits to Mr. Flynn. This is a
purely legal issue that we address de novo. See Consolidation
Coal, 884 F.2d at 929. This matter is readily resolved, as it
is inextricably linked with our disposition of the “material
change” issue.
Grundy Mining’s argument on this point rests upon the
premise that Dr. Fritzhand’s 1980 and 1984 reports are
“nearly identical,” (Petitioner Br. at 20), so that they both
must equally establish Mr. Flynn’s entitlement to black lung
benefits. It follows, in Grundy Mining’s view, that Flynn
must have been just as entitled to benefits under his initial
claim as under his present one. Yet, if benefits had been
awarded under the initial claim, the liability would have been
borne by the Trust Fund under the transfer provisions of the
BLBA. See Quarto Mining, supra, 901 F.2d at 535
(explaining the operation of this statutory scheme). From all
this, Grundy Mining reasons that it should not be made to pay
for the presumably mistaken decision to deny Flynn’s initial
claim; rather, equity dictates that the Trust Fund should
assume any liability.
Liability properly transfers from the responsible operator to
the Trust Fund on those claims which were finally denied
before the effective date of the Black Lung Benefits Reform
Act of 1977 (i.e., March 1, 1978), but then reopened and
approved under the 1977 Act. See Caney Creek Coal Co. v.
Satterfield, 150 F.3d 568, 570-71 (6th Cir. 1998); Quarto
Mining, 901 F.2d at 535. Mr. Flynn’s initial claim was
denied prior to, and then reopened under, the 1977 Act. As
such, liability for this earlier claim would have been

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 29
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
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
a matter of law. As the Board correctly held, Flynn’s current
claim, which was filed in 1984, does not meet the statutory
criteria for transfer, as it was not (and, as a practical matter,
could not have been) denied before the effective date of the
1977 Act.
Yet, Grundy Mining’s equitable appeal quickly founders on
a flawed logical premise. In rejecting Grundy Mining’s
challenge on the “material change” issue, we have already
held that there was a qualitative difference in the bodies of
evidence accompanying Mr. Flynn’s initial and subsequent
claims. Accordingly, there was nothing necessarily wrong,
much less unfair, in the contrary results reached on Flynn’s
two claims. Indeed, principles of finality flatly preclude us
from questioning the correctness of the initial claim denial,
and these same principles would defeat Mr. Flynn’s 1984
claim if, as Grundy Mining now contends, the evidence
accompanying the two claims was essentially unchanged. By
holding that Flynn’s 1984 claim satisfied the “material
change” standard, and that benefits were properly awarded
under this claim, we have already rejected the necessary
predicates to Grundy Mining’s plea for equitable relief.
Consequently, we affirm the Board’s decision on this point.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the decision
and order of the Benefits Review Board awarding black lung
benefits to claimant Douglas W. Flynn.
30 Grundy Mining Co. v. Flynn, et al. No. 01-3111
____________________
CONCURRENCE
____________________
KAREN NELSON 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.
Director, 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 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

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 31
1Sha rondale Corp. v. Ross, 42 F.3d 9 93 (6th Cir. 1994), involved
§ 725.309(d), while the case at hand involves § 725 .309 (c). T his is
irrelevant, howe ver, as the language of b oth sections in 1999 is identical.
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 failed 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 16 (emphasis
added). The majority proceeds to state that “[t]here
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 16-17. 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
32 Grundy Mining Co. v. Flynn, et al. No. 01-3111
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 16. Therefore, the majority chooses to interpret this
last paragraph of Sharondale as adding an additional
requirement to the “one element” test. However, this is not
the correct interpretation of Sharondale.
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
speak 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 Sharondale 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

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 33
2The miner’s previous claim was filed in 1979 and was finally denied
in 1981. Subseq uently, the miner filed a claim for benefits in 1985.
Sha rondale, 42 F.3d at 995.
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 Sharondale, 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 18 n.5. However, the ALJ’s
1990 opinion fails to identify what medical evidence
accompanied 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.
34 Grundy Mining Co. v. Flynn, et al. No. 01-3111
22, 2003). Hence, the reference to the “later” x-rays can only
mean those ones developed subsequent to 1985. In addition,
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
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, our 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 19, is not
supported by the language of Sharondale.
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

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 35
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); Lovilia 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.” Appellee’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 “[c]ourt 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.”
Appellee’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
36 Grundy Mining Co. v. Flynn, et al. No. 01-3111
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,
42 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 evidentiary qualitative

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No. 01-3111 Grundy Mining Co. v. Flynn, et al. 37
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 (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 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
38 Grundy Mining Co. v. Flynn, et al. No. 01-3111
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 afterwards, 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
Sharondale opinion. For these reasons, I concur only in the
result.

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