*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 10 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

McNALLY PITTSBURG MANUFACTURING COMPANY, Petitioner,

v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
BETTY L. SHERTZER, on behalf of her late husband, Edward Shertzer,
Intervenor. No. 03-9508 (Benefits Review Board, United States Department of Labor) (No. 97-1121 BLA)

ORDER AND JUDGMENT *

Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, andMURPHY , Circuit Judge.1 Pneumoconiosis, commonly referred to as black lung disease, is defined as “a

chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).

-2- McNally Pittsburg Manufacturing Company (“McNally”) appeals the decision and order of the Benefits Review Board (“t he Board”) granting black lung benefits to Edward Shertzer, a former employee . For the reasons stated below, we reverse and remand.

I. Facts and Prior Proceedings In August 1983, Mr. Shertzer filed an application f or black lung benefits against McNally, claiming he suffered from a respir atory illness that prevented him from engaging in his regular employment. He ma de the claim pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901 - 944 (“t he Act”). The Director, Office of Workers’ Compensation Programs (“the Dire ctor”) denied his claim in November 1983, finding Mr. Shertzer failed to estab lish any of the elements necessary to qualify for black lung benefits. Spec ifically, he concluded the evidence presented did not “show” Mr. Shertzer cont racted pneumoconiosis, 1 the disease was caused at least in part by coal mine wo rk, and he was totally disabled by the disease. Mr. Shertzer did not appeal these determinations.2In making the initial material change determination, the Administrative Law

Judge utilized the standard pronounced in Spese v. Peabody Coal Co. , 1988 WL 232660 (Ben. Rev. Bd. Sept. 30, 1988). (Apt. Br. at A-4.) However, in Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502, 1511 (10th Cir. 1996), this court adopted a new standard to be utilized in making the material change determination in question.

-3- Nine years later, Mr. Shertzer filed a duplicate cl aim, which the Office of Administrative Law Judges subsequently denied in Au gust 1992. Being a duplicate claim, the administrative law judge assig ned to the claim first considered whether a material change in Mr. Shertze r’s condition occurred since denial of the prior claim as required by 20 C.F.R. § 725.309(d). Finding a material change in condition, 2 the administrative law judge proceeded to consider the merits of the claim and ultimately concluded Mr . Shertzer failed to satisfy any requirements for award of benefits.

Mr. Shertzer then sought modification of the 1992 d enial pursuant to 20 C.F.R. § 725.310. The same administrative law judg e from the original duplicate claim proceeding denied his claim in 1997 and again in 1999, following a remand by the Board. In the interim, Mr. Shertzer died in 1998. His widow, Betty Shertzer, then sought a final modification. In 200 1, a different administrative law judge reviewed her 1992 claim, accepted the modific ation, and awarded benefits. The Board affirmed the award on appeal. McNally no w appeals the Board’s3 McNally also argues the Board erred in finding the administrative law judge

correctly harmonized the duplicate claim and modification provisions. We disagree and find a miner may seek modification from the denial of his duplicate claim as explained by the Board.

-4- affirmance of the administrative law judge’s 2001 d ecision amending benefits.

On appeal, McNally essentially makes two arguments. 3 First, McNally contends the Board erred in affirming the 2001 deci sion because the administrative law judge failed to properly determi ne whether a material change in conditions occurred as required by Wyoming Fuel . Second, McNally contests the sufficiency of the evidence relied on by the ad ministrative law judge in reviewing the merits of Mr. Shertzer’s claim that r esulted in the benefits award.

For the reasons stated below, we agree with McNallythat the administrative law judge improperly applied the req uisite standard in determining whether Mr. Shertzer demonstrated a material change in conditions. We therefore reverse and remand for the Board to consider whethe r the evidence indicates Mr. Shertzer’s conditions in fact materially changed si nce the denial of his original 1983 claim. Because we remand this case to the Boa rd for determination of the threshold material change inquiry, we do not consid er McNally’s contentions regarding the sufficiency of the evidence in support of Mr. Shertzer’s disability-5-

benefits claim.

II. Standard of Review In reviewing a decision by the Board, this court wi ll only review the decision for errors of law and confirm the Board’s adherence to the substantial evidence standard governing its review of the factu al findings of an administrative law judge. See Maddaleni v. Director, OWCP , 961 F.2d 1524, 1525 (10th Cir. 1992). Further, we do not defer to the Board’s interpretation of the Act or the regulations, but review them de novo

. Wyoming Fuel , 90 F.3d at 1506. As noted in Lukman v. Director, OWCP , 896 F.2d 1248, 1250 (10th Cir. 1990), statutory and regulatory interpretations of the procedural requirements for the determination of black lung benefits are questi ons of law subject to this same de novo review.

III. Discussion On appeal, McNally argues the Board erred by not re manding the present case back to the administrative law judge, contendi ng he improperly applied the standards pronounced in Wyoming Fuelconcerning the adjudication of duplicate claims. Specifically, McNally contends the adminis trative law judge erred by not finding whether a material change of condition occu rred since denial of the-6-

original 1983 claim. We agree.

Under the relevant regulations, in order for a pote ntial claimant to be eligible for disability benefits, a claimant must p rove (1) the presence of pneumoconiosis; (2) the pneumoconiosis arose at lea st in part out of his or her coal mine employment; and (3) total disability due to the pneumoconiosis. See Wyoming Fuel , 90 F.3d at 1505. For duplicate claims – new clai ms filed more than one year after the denial of a previous claim – we held a claimant must first prove a “material change in conditions” since the t ime of the prior denial before the merits of the claim are considered. Id. at 1505.

Because the regulations do not define what must be proved to demonstrate a material change, we clarified this standard in ou r Wyoming Fueldecision. Id. at 1508. At issue in Wyoming Fuelwas whether the administrative law judge properly concluded a claimant proved a material cha nge in conditions and subsequently correctly awarded benefits. Id. at 1504. At the time of the duplicate claim proceeding, the administrative law judge appl ied the Board-endorsed Spese standard, applied in Spese , 1988 WL 232660 at *2, which defined proof of a material change in conditions as “evidence which is relevant and probative so that there is a reasonable probability that it would cha nge the prior administrative-7-

result.” Wyoming Fuel , 90 F.3d at 1508 (quotation marks and citation omi tted).

After considering the Spese standard, we rejected it, finding it violative of res judicata principles. Id. at 1508-09. We explained the Spese standard was problematic: by permitting a claimant – when attempting to show a material change – to present evidence that merely shows the initial decision was in error, rather than limiting the evidence pre sented to that which shows that the claimant’s condition has worsened si nce the previous denial. Instead, ... the [administrative law judge ] must apply a standard that denies the claimant the opportunity t o relitigate the earlier denial of benefits while permitting the cla imant to prove that his or her conditions have worsened materially sinc e the earlier denial. Id. at 1509.

After reviewing standards adopted in other circuits , we developed our own standard, taking into consideration traditional not ions of res judicata as well as the plain language of the statute and relevant regu lations. Id. at 1511. We stated a claimant establishes a material change in conditi ons by proving each element “has worsened materially since the time of the prio r denial.” Id. Practically speaking, in order for an administrative law judge to determine whether a claimant establishes this necessary change in his o r her physical conditions, the administrative law judge should determine whether e vidence obtained after the-8-

prior denial demonstrates a material worsening of t hose elements found against the claimant. Id. at 1512.

Having articulated the relevant standard, we now tu rn to the case before us. We first review the administrative law judge’s mate rial change in conditions analysis with respect to the presence of the pneumo coniosis element and then review his analysis for the total disability elemen t.

A. Pneumoconiosis Before reviewing the evidence to make his material change in conditions determination, the administrative law judge correct ly articulated the Wyoming Fuelstandard: “In order to meet the claimant’s thresh old burden of proving a material change in a particular element, ... the cl aimant need show only that this element has worsened materially since the time of t he prior denial.” However, in determining whether a material change in conditions actually took place with respect to whether Mr. Shertzer contracted pneumoco niosis, the administrative law judge misapplied the standard by comparing evid ence available at the time of the 1997 denial of Mr. Shertzer’s request for modif ication to the evidence available at the time of the most current review. The administrative law judge should instead have compared the evidence available at the time of the 1983 claim4The Director concedes the administrative law judge erred in applying Wyoming

Fuel, but likewise asserts the error was harmless.

-9- with the evidence currently at his disposal. The a dministrative law judge’s comparison baldly does not comply with the mandate of Wyoming Fuelbecause of this erroneous comparison.

Despite this error, Mrs. Shertzer contends the Boar d’s decision may still be affirmed by this court, arguing the error is harmle ss. 4 She reasons the erroneous time frame considered is irrelevant because the adm inistrative law judge found a material change of conditions. We disagree. Apartfrom the error made by the administrative law judge in comparing conditions du ring the wrong time period, he also failed to point to any specific evidence orfacts establishing a material change in conditions from the 1983 denial. Withoutthis analysis, nothing prevents Mrs. Shertzer from simply relitigating the denial of the original 1983 claim. In other words, in this duplicate claim sit uation, a distinction must be made “between an actual worsening in [the] miner’s health and the presentation of evidence tending to show that the prior denial was wrong.... When the miner does not make [a material change] showing, there is no a ssurance that the same issue is not being adjudicated in the duplicate claim as in the prior denial.” Wyoming Fuel , 90 F.3d at 1510.-10-

In this case, a comparison must be made of the evid ence presented for each claim. In finding for Mrs. Shertzer, the administr ative law judge relied primarily on new evidence obtained after the claimant’s death to conclude Mr. Shertzer suffered from coal workers’ pneumoconiosis at the t ime of his death. Specifically, he placed great weight on the reports of Drs. John A. Heidingsfelder and Francis H.Y. Green. Both doctors concluded Mr. Shertzer suffered from mixed dust pneumoconiosis. Dr. Heidingsfelder, who performed the autopsy on Mr. Shertzer’s body, based his medical opinion on the autopsy as well as pathology reports. Dr. Green based his opinion on pathology slides, x-ray reports, pulmonary function and arterial blood gas studies, the autopsy report, and other medical reports, but placed great weight on the aut opsy report in his ultimate conclusion. Alternatively, in the original 1983 de nial, it appears the Director relied primarily upon a number of x-ray interpretat ions that the Director concluded did not “show” the presence of pneumoconi osis.

Because the type of evidence relied on in these two proceedings differs, a specific finding by the administrative law judge on this issue was required. Unlike comparisons between two sets of x-rays clear ly showing a marked change over time, reliance on different types of evidence in analyzing a claimant’s past and present condition does not provide a clear answ er for the differences in their5Of note is the fact the administrative law judge also found x-ray evidence from

1998 unhelpful in establishing a material change in conditions for Mr. Shertzer’s pneumoconiosis claim.

-11- results. See id. at 1511 (“[To meet the threshold burden] a claiman t might offer to compare past and present x-rays reflecting that any conditions suggesting ... pneumoconiosis have become materially more severe s ince the last claim was rejected.”) Such a discrepancy in the results betw een different types of evidence can have explanations other than a material change in conditions. For instance, in this case, the older x-ray evidence simply may have not shown or established the presence of disease, although discoverable by the n ew evidence produced by the more invasive physical autopsy examination. 5

By not specifically addressing the prior evidence i n making his material change determination, which specifically found Mr. Shertzer had not shown the existence of pneumoconiosis in 1983, this court can not determine from the record whether the administrative law judge’s material cha nge-in-conditions finding was based on his determination of an actual material wo rsening of Mr. Shertzer’s 1983 condition or on another explanation, which might on ly establish the presentation of evidence tending to show the prior denial was wr ong, leading to an improper adjudication of the first claim. See Wyoming Fuel , 90 F.3d at 1510. Therefore, to6Although the administrative law judge is correct in stating the other

administrative law judge found Mr. Shertzer disabled, it is unclear whether he found the claimant disabled due to pneumoconiosis . We direct the Board to address this issue on remand.

7McNally also argues a claimant should be required to also prove a material change in conditions as to the causation element. We disagree. As discussed in Wyoming Fuel, because the element requiring a claimant to show his or her pneumoconiosis arose at least in part from coal mine element is not technically progressive like the other two elements, a claimant need not demonstrate a material change for this element to pass the threshold inquiry. Wyoming Fuel, 90 F.3d at 1512 n.17.

-12- ensure compliance with res judicata principles, we must remand this issue to the administrative law judge for further consideration.

B. Total Disability In addition to the incorrect analysis as to the pre sence of pneumoconiosis element, we also conclude the administrative law ju dge erred by not making the threshold material change inquiry with respect to t he total disability element. Because the administrative law judge relied on the other administrative law judge’s determination Mr. Shertzer was totally disa bled, he determined it unnecessary to consider whether a material change i n conditions occurred with respect to the claimant’s disability status. 6 This inquiry is mandated, however, because in 1983, the Director found Mr. Shertzer fa iled to establish any of the necessary elements to receive benefits. 7We therefore remand this issue as well.-13- IV. Conclusion In sum, we hold the Board erred in affirming the ad ministrative law judge’s decision that erroneously failed to properly apply the material change-inconditions standard in determining a worsening of M r. Shertzer’s physical condition occurred and finding him totally disabled . Because we conclude the administrative law judge incorrectly applied the le gal standard of Wyoming Fuel on these points, we REMAND Mr. Shertzer’s claim for further proceedings consistent with this opinion and VACATE the Board’s award of benefits.

Entered by the Court: WADE BRORBY United States Circuit Judge