Margie Marie Mills v. Director, Office of Workers’ Compensation Programs, United States Department of Labor

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0379P (6th Cir.)
File Name: 03a0379p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARGIE MARIE MILLS,
Petitioner,
v.
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondent.
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No. 02-4209
On Petition for Review of an Order of the Benefits Review
Board, United States Department of Labor.
No. 01-0577 BLA.
Submitted: October 23, 2003
Decided and Filed: October 27, 2003
Before: KEITH, MARTIN, and SUTTON, Circuit Judges.
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COUNSEL
ON BRIEF: Christian P. Barber, Jeffrey S. Goldberg,
UNITED STATES DEPARTMENT OF LABOR, OFFICE
2 Mills v. Director, OWCP No. 02-4209
OF THE SOLICITOR, Washington, D.C., for Respondent.
Margie Marie Mills, Heidrick, Kentucky, pro se.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Margie Marie
Mills, a Kentucky citizen, petitions pro se for review of an
order of the Benefits Review Board affirming an
administrative law judge’s decision denying the claims filed
by Mrs. Mills and her deceased husband for benefits under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-45. This case has
been referred to a panel of the court pursuant to Rule 34(j)(1),
Rules of the Sixth Circuit. Upon examination, this panel
unanimously agrees that oral argument is not needed. Fed. R.
App. P. 34(a).
Mrs. Mills married Fred Mills, a former coal miner, in
1951. Mr. Mills filed a claim for black lung benefits in 1973.
He died of prostate cancer in 1991, and Mrs. Mills filed a
claim for survivor’s benefits. Both claims were denied, and
this court denied the petition for review filed in Case No. 97-
4026. Within one year of that decision, Mrs. Mills submitted
a letter asking for modification of the decision. An
administrative law judge determined that no mistake had been
made in denying the earlier claim. The Benefits Review
Board affirmed that decision, and denied a motion for
reconsideration. On appeal, Mrs. Mills argues that mistakes
were made in adjudicating this case, particularly in the
calculation of the length of her husband’s coal mine
employment, and the determination of whether he suffered
from pneumoconiosis.
This Court will uphold a decision of the Benefits Review
Board where it is supported by substantial evidence and in
conformance with the applicable law. Glen Coal Co. v. Seals,
147 F.3d 502, 510 (6th Cir. 1998). Upon careful

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No. 02-4209 Mills v. Director, OWCP 3
consideration, we conclude that the Board’s decision meets
this standard.
Because Mrs. Mills requested modification of the previous
decision within one year of its issuance, she was entitled to a
review of the evidence for a mistake of fact. Y. & O. Coal
Co. v. Milliken, 200 F.3d 942, 954 (6th Cir. 1999). However,
as the administrative law judge noted, Mrs. Mills had filed
two letters seeking review of the previous decision: one
within one year and one after one year. Therefore, he also
examined Mrs. Mills’s claim as a duplicate claim, which
would require her to demonstrate a “material change” in
condition. Sharondale Corp. v. Ross, 42 F.3d 993, 996 (6th
Cir. 1994). Proving a “material change in condition” requires
the claimant to prove one of the elements of entitlement
previously adjudicated against her. Id. at 997-98. Under
either standard of review, Mrs. Mills did not establish
entitlement to benefits.
First, Mrs. Mills argues that her deceased husband was not
given credit for all of his coal mine employment. Mrs. Mills
testified that her husband worked in coal mining as a
teenager, before they met, and returned to mining for a period
in the 1960s. The record in this case reveals that Mr. Mills’s
recitation of his work history varied widely from document to
document. For example, Mr. Mills’s Social Security earnings
record displayed that he had only two quarters of coal mine
employment. Statements from former co-workers, however,
directly conflicted with the Social Security earnings record.
Based on this conflicting record, the administrative law judge
concluded that the miner could not have worked more than
eight and one half years in coal mining. It is the claimant’s
burden to prove the duration of his coal mine employment.
Griffith v. Director, OWCP, 868 F.2d 847, 848-49 (6th Cir.
1989). Mrs. Mills has pointed to no evidence that would
show that a mistake in fact was made in this determination.
Mrs. Mills also argues that the finding that her husband did
not suffer from pneumoconiosis was mistaken. The
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administrative law judge carefully reviewed the x-ray
evidence and the readings of several qualified physicians that
concluded that the x-rays were negative for pneumoconiosis.
The only physicians who diagnosed Mr. Mills with
pneumoconiosis or determined that his medical condition was
related to his coal mine employment had been given
exaggerated work histories and their opinions were properly
accorded less weight. Because less than ten years of coal
mine employment were proven, the miner was not entitled to
a presumption that any pneumoconiosis he might have had
arose out of his coal mine employment. Absent a showing
that the miner had pneumoconiosis, that pneumoconiosis
arose out of his coal mine employment, or that death was due
to pneumoconiosis, Mr. Mills’s claim was properly denied.
Finally, in order to be entitled to benefits on her survivor’s
claim, Mrs. Mills was required to show that her husband’s
death was caused or hastened by pneumoconiosis. Brown v.
Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir. 1993).
The uncontradicted evidence in the record, however, showed
that his death was due to prostate cancer. Accordingly, Mrs.
Mills did not demonstrate that a mistake was made and did
not demonstrate any of the elements of entitlement that had
been previously adjudicated against her in denying her claim.
The lack of evidence on the issue of the length of Mr. Mills’s
coal mine employment, as well as on the medical issues,
supports the denial of the claims in this case. Accordingly,
the petition for review is denied. Rule 34(j)(2)(C), Rules of
the Sixth Circuit.

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