PEABODY COAL CO. and OLD REPUBLIC INSURANCE CO. v. Melba J. Odom

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0303P (6th Cir.)
File Name: 03a0303p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
PEABODY COAL CO. and OLD
REPUBLIC INSURANCE CO.,
Petitioners,
v.
MELBA J. ODOM and
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
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No. 02-3085
On Petition for Review of a Decision of the Benefits
Review Board, United States Department of Labor.
No. 00-0752 BLA.
Argued: June 12, 2003
Decided and Filed: August 25, 2003
Before: KEITH, MOORE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark E. Solomons, GREENBERG TRAURIG
LLP, Washington, D.C., for Petitioners. Jeffrey S. Goldberg,
2 Peabody Coal Co., et al. v. Odom, et al. No. 02-3085
1Odom is deceased. Melba J. Odom is his widow.
2Odom applied for and received workers’ compensation and Social
Security disability benefits for his injuries. The 1976 accident is not
relevant to Odom ’s claim for black lung benefits.
Christian P. Barber, UNITED STATES DEPARTMENT OF
LABOR, OFFICE OF THE SOLICITOR, Washington, D.C.,
for Respondents. ON BRIEF: Mark E. Solomons, Laura
Metcoff Klaus, GREENBERG TRAURIG LLP, Washington,
D.C., for Petitioners. Jeffrey S. Goldberg, Christian P.
Barber, UNITED STATES DEPARTMENT OF LABOR,
OFFICE OF THE SOLICITOR, Washington, D.C., for
Respondents. Melba Odom, Sturgis, Kentucky, pro se.
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Petitioners appeal from
a decision of the Benefits Review Board of the United States
Department of Labor affirming the award of black lung
benefits to respondent Melba J. Odom. For the reasons set
forth below, we AFFIRM the decision of the Benefits
Review Board.
I. BACKGROUND
Lonnie Odom1 worked as a coal miner for 21 years. For
the last five years of his career, he worked for the Peabody
Coal Company. His employment with Peabody and his career
as a miner both ended abruptly in 1976, when he was
seriously injured in a mine accident.2 Also around this time,
Odom began to have breathing problems, for which he took
medication beginning in 1976 or 1977.
Odom filed a claim for benefits under the Black Lung
Benefits Act, 30 U.S.C. §§ 901-945, on October 9, 1979.

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No. 02-3085 Peabody Coal Co., et al. v. Odom, et al. 3
Department of Labor Administrative Law Judge (ALJ) Daniel
Leland denied benefits on May 2, 1984. Odom did not
appeal, and the decision became final.
On April 2, 1986, Odom filed a new application for
benefits. The claim was governed by regulations contained
in 20 C.F.R. Part 718. See 20 C.F.R. § 718.2 (2001). In order
to establish entitlement to benefits under Part 718, a miner
must prove that: (1) he has pneumoconiosis; (2) his
pneumoconiosis arose at least in part out of his coal mine
employment; and (3) he is totally disabled by
pneumoconiosis. See C.F.R. §§ 718.202, 718.203, 718.204
(2001). Moreover, because this was Odom’s second claim, he
was also required to prove that he had suffered a “material
change in conditions” following the denial of his first claim.
20 C.F.R. § 725.309(d) (1999).
The matter was assigned to ALJ Richard Huddleston.
Judge Huddleston concluded that the criteria were met, and
awarded benefits on January 31, 1992. Peabody Coal
Company and its insurer, Old Republic Insurance Company
(collectively referred to as “Peabody” hereinafter), appealed
the award of benefits to the Benefits Review Board (“the
Board”). The Board affirmed. Peabody then filed a petition
for review in this Court. In an unpublished opinion dated
January 24, 1995, this Court vacated the award and remanded
the case to the ALJ for further consideration. Peabody Coal
Co. v. Odom, 1995 WL 27497 (6th Cir. Jan. 24, 1995).
The matter was then assigned to ALJ Mollie Neal. Judge
Neal concluded that the criteria for entitlement to benefits
were met, and issued a decision awarding benefits on
September 11, 1997. Peabody appealed, and the Board
vacated the award and remanded the case to the ALJ for
further consideration.
Judge Neal again awarded benefits on March 31, 2000.
The Board affirmed, and Peabody again petitioned this Court
for review. On appeal, Peabody contends that Judge Neal’s
4 Peabody Coal Co., et al. v. Odom, et al. No. 02-3085
finding of a “material change in conditions” was not
supported by substantial evidence. Peabody also contends
that Judge Neal erred in relying on the diagnosis of Odom’s
treating physician in concluding that Odom was entitled to
benefits, despite expert testimony that he did not have
pneumoconiosis.
II. DISCUSSION
A. Standard of Review
We review a decision of the ALJ to award black lung
benefits to determine whether it is supported by substantial
evidence and is consistent with applicable law.
Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246
(6th Cir. 1995). When the question is whether the ALJ
reached the correct result after weighing conflicting medical
evidence, our scope of review is exceedingly narrow. Absent
an error of law, findings of facts and conclusions flowing
therefrom must be affirmed if supported by substantial
evidence. Id. (internal quotation marks and citations
omitted). More than a mere scintilla, substantial evidence is
that which “a reasonable mind might accept as adequately
supporting a conclusion.” Id. As long as the ALJ’s
conclusion is supported by the evidence, we will not reverse,
“even if the facts permit an alternative conclusion.” Id.
Questions of law are reviewed de novo. Peabody Coal Co. v.
Greer, 62 F.3d 801 (6th Cir. 1995).
B. Analysis
We begin with a summary of the medical evidence in this
case. Between March 16, 1977 and June 11, 1996, several
chest x-rays were performed on Odom. These x-rays
produced two positive readings for pneumoconiosis and ten
negative readings prior to May 2, 1984, the date his initial
claim was denied. After May 2, 1984, there were six positive
readings and thirteen negative readings.

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No. 02-3085 Peabody Coal Co., et al. v. Odom, et al. 5
3Shortly after his accident in 1976, O dom resumed smoking
cigare ttes after a twenty-year hiatus. There is some dispute as to how
long he continued to smoke, but Odom admitted he was still smoking as
late as 1988. App arently, O dom ’s son lived with Odom and was a smoker
as well.
On May 6, 1986, Dr. Valentino Simpao diagnosed Odom
with coal workers’ pneumoconiosis 1/1 and chronic
bronchitis, related to his coal mine employment. Dr. Simpao
concluded that Odom was moderately impaired and lacked
the respiratory capacity to perform his usual coal mine
employment.
On September 22, 1986, Dr. Wallas Bell, Odom’s treating
physician since the 1970s, reported that Odom was totally
disabled by coal workers’ pneumoconiosis. On
November 13, 1989, Dr. Sam Traughber examined Odom and
diagnosed him with coal workers’ pneumoconiosis 2/2 and
cardiovascular disease. Dr. Traughber stated that Odom
should have no further exposure to coal mine dust.
In addition to these doctors, Odom was frequently seen by
Dr. William Houser, described below as Odom’s treating
physician since 1980. Dr. Houser is a pulmonary specialist,
board certified in internal medicine and pulmonary disease.
On June 16, 1980, Dr. Houser diagnosed Odom with:
(1) chronic bronchitis secondary to coal mine employment
and cigarette smoking3; (2) possible coal workers’
pneumoconiosis; (3) history of bilateral kidney trauma; and
(4) possible hypertension. The record contains a letter from
Dr. Houser to Odom dated October 16, 1987, encouraging
him to stop smoking.
In Dr. Houser’s treatment notes, an August 18, 1989 report
diagnosed Odom with coal workers’ pneumoconiosis 1/0,
chronic bronchitis, and moderately severe chronic obstructive
pulmonary disease. In a letter dated November 3, 1993, Dr.
Houser noted recent x-ray and CT lung scan results showing
nodular densities in the right lung, probably due to post-
6 Peabody Coal Co., et al. v. Odom, et al. No. 02-3085
inflammatory scarring. The letter stated that pneumoconiosis
could be a contributing factor. On July 17, 1995, Dr. Houser
stated that he had treated Odom for pneumoconiosis since
1991. On February 22, 1996, Dr. Houser stated his
conclusion, based on pulmonary function studies, that
Odom’s pneumoconiosis was a significant factor contributing
to his decrease in pulmonary function.
Dr. J. Selby examined Odom on June 11, 1996. Dr. Selby
observed that, while Odom denied that he smoked, there was
a strong smell of cigarette smoke about him. Dr. Selby found
evidence of smoker’s lung disease. Odom’s chest x-ray was
negative for pneumoconiosis, and Dr. Selby found no
evidence of pneumoconiosis or any disease or impairment
induced by exposure to coal dust. Dr. Selby stated that the
decreases in Odom’s pulmonary and respiratory functioning
were consistent with the development of bronchial asthma,
and that his coal mine employment was not a cause of any
pulmonary or respiratory problems.
On August 17, 1996, Dr. G. Fino, a pulmonary specialist,
reviewed Odom’s medical records. Dr. Fino concluded that
Odom did not have an occupationally acquired pulmonary
condition. Dr. Fino based his findings on the following five
factors: (1) the majority of the chest x-ray readings were
negative for pneumoconiosis; (2) results of pulmonary
function studies, which were generally normal when Odom
gave adequate effort; (3) elevated lung volumes consistent
with obstructive lung disease but not with pneumoconiosis;
(4) Odom’s normal diffusion capacity; and (5) the absence of
an impairment of oxygen transfer.
Another pulmonary specialist, Dr. P. Tuteur, reviewed
Odom’s medical records on August 29, 1996. Dr. Tuteur
found no evidence to support a diagnosis of significant
pneumoconiosis. Rather, he diagnosed Odom with chronic
bronchitis induced by cigarette smoke. Dr. Tuteur noted that
Odom’s pulmonary problems began in May of 1984, more
than eight years after he had stopped working in a coal mine.

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No. 02-3085 Peabody Coal Co., et al. v. Odom, et al. 7
Dr. Tuteur opined that if Odom had contracted
pneumoconiosis from working in the mine, symptoms would
have begun to appear within a few years of his cessation of
mine employment.
A claimant seeking benefits after an initial denial must
prove that he has suffered a “material change in conditions”
following the denial of his first claim. 20 C.F.R.
§ 725.309(d) (1999). To establish a material change in
conditions, a claimant must prove, based on medical evidence
of his condition since the initial denial, at least one of the
elements previously adjudicated against him. See Sharondale
Corp. v. Ross, 42 F.3d 993, 997-98 (6th Cir. 1994). “[N]o
miner is entitled to benefits simply because his [initial] claim
should have been granted.” Id. at 998.
Judge Neal found that Odom had established a material
change in conditions. Citing Dr. Houser’s report, she
concluded that Odom had established the presence of
pneumoconiosis by newly submitted evidence. On appeal,
Peabody contends that Judge Neal erred in finding a material
change in conditions. Peabody first claims that Judge Neal
misidentified the elements of entitlement adjudicated against
Odom in his initial claim. Second, Peabody claims that Judge
Neal failed to analyze the new evidence to determine if it
established an element adjudicated against Odom the first
time and was substantially more supportive of Odom’s
position. Third, Peabody claims that Judge Neal’s finding is
not supported by evidence.
Peabody’s first contention in support of its argument that
Judge Neal erred in finding a material change in conditions is
without merit. Judge Neal found that Odom had developed
pneumoconiosis. The ALJ who heard Odom’s first claim
found that Odom had failed to prove that he had
pneumoconiosis. It is clear that Odom proved to Judge Neal
one of the elements previously adjudicated against him. That
is all the law requires.
8 Peabody Coal Co., et al. v. Odom, et al. No. 02-3085
4W e note that Jud ge N eal, in her material-change analysis, did refer
to a document that was or could have been submitted in Odom’s initial
claim — a 1980 m edica l evaluation of Odom by Dr. Houser.
Neve rtheless, Judge Neal’s opinion indicates that her finding of a material
change due to the new evidence of pneumoconiosis did not consider the
evaluation itself as new evidence suppo rting the finding of
pneum oconiosis. The 1980 evaluation was used only to devalue the
testimony of two of Peabody’s doctors, who presumed that Odom did not
have pneumoco niosis in 1980. M oreover, Ne al’s consideration of the
1980 evaluation was o nly one of the reasons why she chose to value
Houser’s post-198 4 testimony ove r the two Pea body doctors.
Peabody’s second contention is likewise without merit.
Judge Neal found that Odom had pneumoconiosis, a totally
disabling respiratory impairment. Her finding was based
entirely on evidence relating to Odom’s condition after
May 2, 1984, the date on which his initial claim was denied.4
In particular, Judge Neal focused on a series of pulmonary
function tests performed after 1991 that demonstrated Odom’s
respiratory disability. She also credited the testimony of
medical experts that Odom’s respiratory impairment became
totally disabling after 1984. Therefore, it is clear that Judge
Neal did indeed analyze the new evidence and determined
that it established that Odom had developed pneumoconiosis.
Peabody’s third contention is also without merit. The main
thrust of Peabody’s third argument is that pneumoconiosis is
not a latent or progressive disease. In other words, Peabody
argues that a person cannot develop pneumoconiosis from
exposure to coal dust after a period of years during which he
was not employed as a coal miner. Peabody advanced this
argument the first time this case came before this court, and
we rejected it. See Peabody Coal Co. v. Odom, 1995 WL
27497 (6th Cir. Jan. 24, 1995). As we pointed out then, there
is a long line of Sixth Circuit cases characterizing
pneumoconiosis as progressive. See Sharondale, 42 F.3d at
996; Woodward v. Director, OWCP, 991 F.2d 314, 319 (6th
Cir. 1993); Saginaw Mining Co. v. Ferda, 879 F.2d 198, 205
(6th Cir. 1989); Orange v. Island Creek Coal Co., 786 F.2d

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

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No. 02-3085 Peabody Coal Co., et al. v. Odom, et al. 11
treated Odom for many years. Such deference is appropriate
under Eastover Mining.
Peabody also claims that Judge Neal did not properly credit
and weigh the other opinions in the record, as required by
Peabody Coal v. Groves, 277 F.3d 829 (6th Cir. 2002). We
disagree. In addition to Dr. Houser’s opinion, Judge Neal
also considered the opinions of Drs. Simpao, Bell, and
Traughber, each of whom diagnosed Odom with
pneumoconiosis. Contrary to suggestions in Peabody’s brief,
Judge Neal did not ignore the opinions of Drs. Selby, Fino,
and Tuteur, each of whom found no evidence that Odom had
pneumoconiosis. Judge Neal noted that these doctors based
their conclusions that Odom did not have pneumoconiosis in
part on a finding that pneumoconiosis was not evident in
Odom in 1980, and that this finding was contradicted by Dr.
Houser’s 1980 diagnosis of Odom as having possible coal
miner’s pneumoconiosis.
Peabody argues that Judge Neal resolved the conflict
between the examining physicians not on the basis of their
reasoning and support, but solely based on Dr. Houser’s
unique status as the treating physician. That is not correct.
Judge Neal considered the findings and opinions of the
examining and treating physicians, the laboratory test results,
and the qualifications of the physicians. She found that Dr.
Houser’s report was well-reasoned and that his opinions were
supported by documents in the record. She stated that his
report was “the most persuasive,” repeatedly referring to his
“probative and persuasive medical reports.” J.A. at 64.
Nor did Judge Neal “resort to [Dr. Houser’s] status to
resolve the conflict in the record.” Appellant’s Br. at 38.
Rather, she analyzed all of the relevant evidence, including
the opinions of doctors who disagreed with Dr. Houser, and
concluded that the presence of pneumoconiosis in Odom had
been established.
12 Peabody Coal Co., et al. v. Odom, et al. No. 02-3085
Recalling the narrow scope of our review, we find that
Judge Neal’s decision to award benefits was supported by
substantial evidence and was consistent with applicable law.
While the facts in this case might permit an alternative
conclusion, see Youghiogheny & Ohio Coal Co. v. Webb, 49
F.3d 244, 246 (6th Cir. 1995), we must not disturb Judge
Neal’s decision in this case because it is supported by the
evidence.
III. CONCLUSION
For these reasons, the decision of the Benefits Review
Board awarding black lung benefits is AFFIRMED.

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