                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0480n.06

                                          No. 18-3317

                           UNITED STATES COURT OF APPEALS                              FILED
                                FOR THE SIXTH CIRCUIT                            Sep 13, 2019
                                                                             DEBORAH S. HUNT, Clerk
MAC A. COLEMAN,                                     )
                                                    )
       Petitioner,                                  )       ON PETITION FOR REVIEW
                                                    )       OF AN ORDER OF THE
                                                    )       BENEFITS REVIEW BOARD
                                                    )
CHRISTEN COLEMAN TRUCKING;                          )       OPINION
KENTUCKY EMPLOYERS MUTUAL                           )
INSURANCE; DIRECTOR, OFFICE OF                      )
WORKERS’ COMPENSATION PROGRAMS,                     )
U. S. DEPARTMENT OF LABOR,                          )
                                                    )
       Respondents.                                 )


BEFORE: NORRIS, DAUGHTREY, and LARSEN, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Petitioner Mac Arthur Coleman applied for, and

received, disability benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (“the Act”).

At this juncture, no one disputes that he suffers from pneumoconiosis. The sole question on appeal

concerns the date on which claimant qualified for these benefits. An administrative law judge

concluded that his entitlement to benefits began in November 2008; the Benefits Review Board

(“the Board”) disagreed and determined the date to be August 2012. The Board’s decision resulted

in a loss to Mr. Coleman of $41,978.10 in benefits. He now seeks review.

       We conclude that the ruling of the administrative law judge was legally correct and grant

the petition for review.
                                                                     Coleman v. Coleman Trucking.
                                                                                     No. 18-3317


                                                  I.

       Mr. Coleman was born in 1944 and began working as a coal miner in 1964. (ALJ Decision

and Order, Nov. 21, 2016). He left the mining industry in 2006. His employer, for the purposes of

this black lung claim, was respondent Christen Coleman Trucking; the Director of the Department

of Labor’s Office of Workers’ Compensation Programs (“the Director”) is also a respondent, as is

Kentucky Employers Mutual Insurance, which insures Coleman Trucking.

       Petitioner filed his first application for black lung benefits on January 14, 2008. The district

director issued a proposed decision and order on September 30, 2008, denying the claim. In the

order, the Director found that Mr. Coleman “was employed as a coal miner in the Nation’s coal

mines for 23 years.” However, the Director went on to conclude that “the evidence does not show

that the miner has pneumoconiosis.” Claimant did not seek review of the proposed order and it

therefore became final after 30 days. 20 C.F.R. § 725.419(d).

       Mr. Coleman filed a second claim on August 7, 2012. On April 14, 2016, Administrative

Law Judge Alice Craft conducted a hearing during which Mr. Coleman testified at length about

the nature of his work history. On November 21, 2016, she issued a decision awarding disability

benefits under the Act:

               The Claimant has met his burden to establish that he had more than 15 years
       of qualifying coal mine employment, and a totally disabling pulmonary or
       respiratory impairment. The Employer has failed to rebut the presumption that the
       Claimant is totally disabled due to pneumoconiosis. The Claimant is therefore
       entitled to benefits under the Act.
       ....
               In the case of a miner who is totally disabled due to pneumoconiosis,
       benefits commence with the month of onset of total disability due to
       pneumoconiosis. Medical evidence of total disability does not establish the date of
       the entitlement; rather, it shows that a claimant became disabled at some earlier
       date. Where the evidence does not establish the month of onset, benefits begin with


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                                                                                   No. 18-3317


       the month that the claim was filed, unless the evidence establishes that the Miner
       was not totally disabled due to pneumoconiosis at any subsequent time.
               The regulation regarding subsequent claims [such as this one] also provides,
       however, that “[i]n any case in which a subsequent claim is awarded, no benefits
       may be paid for any period prior to the date upon which the order denying the prior
       claim became final.” I have found that the Claimant is totally disabled based on the
       results of his pulmonary function testing, which shows obstructive disease, and the
       medical opinions. I have also concluded that the Claimant’s obstructive disease
       constitutes legal pneumoconiosis based on the operation of the presumption.
       Review of the testing in his prior claim discloses that all of his pulmonary testing
       in that claim was qualifying as well, except for the pre-bronchodilator testing on
       July 29, 2008. . . . I do not credit the opinions of Drs. Broudy and Rosenberg given
       in the prior claim that the Claimant was not disabled. Their opinions were not
       consistent with the objective testing available to them. Drs. Forehand and Jarboe
       agreed that the Claimant was disabled even then. I find that the Claimant has been
       totally disabled by a pulmonary impairment since at least [February] 2008 when he
       was first examined by Dr. Forehand in connection with the prior claim. I also
       conclude that his disability has always been due to legal pneumoconiosis. The
       District Director issued his proposed decision and order denying the Claimant’s
       prior claim on September 8, 2008. As the Claimant took no further action on that
       claim, it became final one year later, on September 2009. There is no evidence that
       he was not disabled at any time thereafter.
              I find that Claimant is entitled to benefits commencing in September 2009,
       the month the denial of his prior claim became final.

(Footnotes and citations omitted.) In short, the date of onset forms the crux of this appeal. Mr.

Coleman’s total disability due to legal pneumoconiosis is not in dispute.

       On January 23, 2017, the administrative law judge granted a motion for reconsideration

from the Director, which modified the commencement date for black lung benefits from September

2009 to November 2008. The revised date recognized that the administrative law judge had

wrongly determined when the district director’s proposed order denying Mr. Coleman’s first claim

for benefits became final. As cited earlier, the regulations provide that such orders become final

after thirty days, not the one year initially applied by the administrative law judge. 20 C.F.R.

§ 725.419(d).



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       Respondent Coleman Trucking appealed the administrative law judge’s decision to the

Board, which held that the administrative law judge erred in is onset-date determination. The

Board changed the date when Mr. Coleman’s benefits began to August 1, 2012, the date when Mr.

Coleman filed his second claim, instead of November 1, 2008, the date when his first claim became

final. The Board reasoned as follows:

       The district director determined in the prior claim that claimant had a totally
       disabling respiratory or pulmonary impairment but did not have pneumoconiosis,
       and therefore was not totally disabled due to pneumoconiosis. In this claim,
       however, the administrative law judge reconsidered the medical opinion evidence
       submitted in the prior claim and determined, contrary to the district director’s
       original finding, that claimant has been totally disabled due to pneumoconiosis
       since March 2008. That finding was improper. The district director’s decision in
       the prior claim, and its underlying findings, must be given effect as final and
       correct.
               The administrative law judge cited no other evidence to establish that
       claimant became totally disabled due to pneumoconiosis at any point between the
       denial of the prior claim and the filing date of this claim. Nor has claimant pointed
       to any such evidence. On the other hand, contrary to employer’s argument
       regarding Dr. Forehand’s opinion in this claim, a medical opinion diagnosing total
       disability due to pneumoconiosis does not establish an onset date, but establishes
       only that claimant became disabled due to pneumoconiosis at some point before the
       opinion was provided. Because the evidence does not reflect the date upon which
       claimant became totally disabled due to pneumoconiosis, we modify the
       administrative law judge’s decision to reflect that benefits are payable from August
       2012, the month in which claimant filed his subsequent claim.

(Footnotes and citations omitted.) This appeal followed.

                                                II.

       The Act defines pneumoconiosis 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).

       With respect to the critical question of onset, the regulations provide as follows:

       Benefits are payable to a miner who is entitled beginning with the month of onset
       of total disability due to pneumoconiosis arising out of coal mine employment.

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       Where the evidence does not establish the month of onset, benefits shall be payable
       to such miner beginning with the month during which the claim was filed.

20 C.F.R. § 725.503(b).

       When a miner files a second, or subsequent, claim for benefits more than a year after the

final order denying a prior claim, he must show that “one of the applicable conditions of

entitlement has changed since the date upon which the order denying the prior claim became final.”

20 C.F.R. § 725.309(c) (citation omitted). Furthermore, “[a]ny evidence submitted in connection

with any prior claim must be made a part of the record in the subsequent claim, provided that it

was not excluded in the adjudication of the prior claim.” 20 C.F.R. § 725.309(c)(2). Lastly, “[i]n

any case in which a subsequent claim is awarded, no benefits may be paid for any period prior to

the date upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(c)(6).

       There is one other wrinkle that affects our analysis. As of 2010, the Affordable Care Act,

Pub. L. No. 111-48, § 1556(a), revived a former rebuttable presumption: “if a miner was employed

for fifteen years or more in one or more underground coal mines, . . . and if other evidence

demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there

shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.” 30

U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)(1)(i) (clarifying that the presumption includes

“conditions substantially similar to those in underground mines”). Mr. Coleman’s first claim, filed

in 2008, did not benefit from this rebuttable presumption. In denying that claim, the district director

found that two of the breathing tests submitted by claimant met the regulatory standards required

to establish total disability; however, in his view, they did not establish that this disability was

“due to pneumoconiosis.” However, the presumption applies to the 2012 claim currently on appeal,




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                                                                                   No. 18-3317


which the administrative law judge recognized,(observing that “[e]mployer has failed to rebut the

presumption that the Miner’s disability was due to pneumoconiosis.”

       The Director readily concedes that the regulations specifically provide for multiple black

lung disability claims because pneumoconiosis is a progressive disease that may manifest itself

only after the miner has stopped working. 20 C.F.R. § 718.201(c). For that reason, traditional

notions of res judicata do not apply to these claims. See Lisa Lee Mines v. Director, OWCP, 86

F.3d 1358, 1362 (4th Cir. 1996) (en banc) (“[N]othing bars or should bar claimants from filing

claims seriatim, and the regulations recognize that many will”). That said, a subsequent claim does

not provide an opportunity to relitigate an earlier denial of benefits; the miner must show that his

condition has changed. 20 C.F.R. § 725.309(c); Lisa Lee Mines, 86 F.3d at 1362 (“The duplicate

claims regulation, 20 C.F.R. § 725.309(d), does not bar new claims, but rather directs that they

shall be denied based on the earlier denial absent a threshold showing of a material change in

conditions.”). Relying upon Lisa Lee Mines, we have specifically approved this approach to

determine whether a claimant has shown enough of a “change” in circumstances to support a

subsequent claim:

       [W]e construe the term “change” to mean “disproof of the continuing validity” of
       the original denial, Lisa Lee Mines, 86 F.3d at 1363, rather than the actual
       difference between the bodies of evidence presented at different times. Under this
       definition, the ALJ need not compare the old and new evidence to determine a
       change in condition; rather, he will consider only the new evidence to determine
       whether the element of entitlement previously found lacking is now present.
Cumberland River Coal Co. v. Banks, 690 F.3d 477, 485—86 (6th Cir. 2012) (internal citation

omitted).

       Turning to the record, the Director states that the only “relevant” evidence is Dr.

Forehand’s report dated February 18, 2008. While the administrative law judge relied upon a


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                                                                    Coleman v. Coleman Trucking.
                                                                                    No. 18-3317


variety of medical evidence when determining that claimant was disabled, she used the report of

Dr. Forehand to set the onset date. The Director stakes out a simple position: since Mr. Coleman’s

first claim was denied in September 2008, the administrative law judge’s reliance upon Dr.

Forehand’s report dated February 18, 2008, is misplaced because an earlier denial of benefits

cannot be undone by a subsequent claim. In order to establish an onset date of disability that

predates the filing of a subsequent claim, the onus is on the miner to come forward with evidence

of a change in his medical condition since the prior denial of benefits. Because Mr. Coleman does

not point to any medical evidence submitted after the denial of his first claim but before the filing

of his current claim, the Director contends that the appropriate onset date is when he filed his

current claim.

       Counsel for petitioner focuses upon the significance of the reenactment of the fifteen-year

rebuttable presumption in favor of a finding that a miner’s respiratory or pulmonary disease

resulted in pneumoconiosis. As already mentioned, the district director who denied Mr. Coleman’s

first claim concluded as follows: “Although the Pulmonary Function Studies establish the presence

of a disease which would be considered to be totally disabling based upon the regulations, that

total disability must be DUE TO PNEUMOCONIOSIS.” Counsel argues that the 2010

reenactment of the presumption changed that analysis by shifting the burden to the employer to

rebut the presumption that coal dust exposure caused pneumoconiosis. Had the presumption been

in place in 2008, counsel claims the district director would have been compelled to find

pneumoconiosis unless Coleman Trucking came forward with evidence rebutting causation.

Notably, the administrative law judge found in 2012 that Coleman Trucking failed to rebut the

presumption of causation, and Coleman Trucking does not challenge that finding on appeal.



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                                                                     Coleman v. Coleman Trucking.
                                                                                     No. 18-3317


       Seen through the new lens provided by the presumption, the administrative law judge

rightly reconsidered the medical evidence submitted with the 2008 claim and determined that, in

conjunction with the presumption, an unrebutted finding that pneumoconiosis existed as of the

date of Dr. Forehand’s report had been established. This approach is completely consonant with

the regulations. First, “[a]ny evidence submitted in connection with any prior claim must be made

a part of the record in the subsequent claim.” 20 C.F.R. § 725.309(c)(2). Second, the administrative

law judge did not disturb the district director’s decision with her finding. To the contrary, she set

the onset date for Mr. Coleman’s disability entitlement to begin after the district director’s decision

became final. 20 C.F.R. § 725.309(c)(6).

       Because the Act is a remedial statute, it “has always been interpreted with any ambiguity

weighed in favor of miners.” Arch of Kentucky, Inc. v. Director, OWCP, 556 F.3d 472, 482 (6th

Cir. 2009). In this appeal, the parties agree that Mr. Coleman suffers from legal pneumoconiosis

and is eligible for total disability benefits. The sole bone of contention is whether he is entitled to

approximately four years of additional benefits based upon an earlier onset date.

       In our view, the reinstatement of the fifteen-year rebuttable presumption that preceded the

filing of Mr. Coleman’s second claim supports the decision of the administrative law judge. In the

earlier claim, the district director recognized that medical evidence existed that established “the

presence of a disease which would be considered to be totally disabling based upon the

regulations;” however, he found that Mr. Coleman had not proven that it was “due to

pneumoconiosis.” Had the presumption been in place, the burden would have shifted to the

employer to rebut the presumption that coal dust exposure caused Mr. Coleman’s disease. With

the benefit of the presumption, the administrative law judge had reason to conclude that the

medical evidence submitted during the first claim, coupled with the presumption that coal mining

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                                                                                  No. 18-3317


caused Mr. Coleman’s health problems, would have resulted in a finding of pneumoconiosis. In

that sense, she was not reexamining the evidence as much as reevaluating its legal significance.

                                               III.

       The petition for review is granted and the matter is remanded with instructions to reinstate

the award of black lung benefits to petitioner beginning on November 1, 2008.




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