F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              FEB 10 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 McNALLY PITTSBURG
 MANUFACTURING COMPANY,

          Petitioner,

 v.                                                       No. 03-9508
                                                    (Benefits Review Board,
 DIRECTOR, OFFICE OF WORKERS’                  United States Department of Labor)
 COMPENSATION PROGRAMS,                                (No. 97-1121 BLA)
 UNITED STATES DEPARTMENT
 OF LABOR,

          Respondent.


 BETTY L. SHERTZER, on behalf of
 her late husband, Edward Shertzer,

          Intervenor.




                            ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and 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.
      McNally Pittsburg Manufacturing Company (“McNally”) appeals the

decision and order of the Benefits Review Board (“the 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 for black lung benefits

against McNally, claiming he suffered from a respiratory illness that prevented

him from engaging in his regular employment. He made the claim pursuant to the

Black Lung Benefits Act, 30 U.S.C. §§ 901 - 944 (“the Act”). The Director,

Office of Workers’ Compensation Programs (“the Director”) denied his claim in

November 1983, finding Mr. Shertzer failed to establish any of the elements

necessary to qualify for black lung benefits. Specifically, he concluded the

evidence presented did not “show” Mr. Shertzer contracted pneumoconiosis, 1 the

disease was caused at least in part by coal mine work, and he was totally disabled

by the disease. Mr. Shertzer did not appeal these determinations.




      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-
      Nine years later, Mr. Shertzer filed a duplicate claim, which the Office of

Administrative Law Judges subsequently denied in August 1992. Being a

duplicate claim, the administrative law judge assigned to the claim first

considered whether a material change in Mr. Shertzer’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 denial pursuant to 20

C.F.R. § 725.310. The same administrative law judge 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 2001, a different administrative law

judge reviewed her 1992 claim, accepted the modification, and awarded benefits.

The Board affirmed the award on appeal. McNally now appeals the Board’s



      2
          In making the initial material change determination, the Administrative Law
Judge utilized the standard pronounced in Spese v. Peabody Coal Co., 

(Ben. Rev. Bd. Sept. 30, 1988). (Apt. Br. at A-4.) However, in Wyoming Fuel Co. v.
Director, OWCP, 

, 1511 (10th Cir. 1996), this court adopted a new standard
to be utilized in making the material change determination in question.


                                          -3-
affirmance of the administrative law judge’s 2001 decision amending benefits.



      On appeal, McNally essentially makes two arguments. 3 First, McNally

contends the Board erred in affirming the 2001 decision because the

administrative law judge failed to properly determine whether a material change

in conditions occurred as required by Wyoming Fuel. Second, McNally contests

the sufficiency of the evidence relied on by the administrative law judge in

reviewing the merits of Mr. Shertzer’s claim that resulted in the benefits award.



      For the reasons stated below, we agree with McNally that the

administrative law judge improperly applied the requisite standard in determining

whether Mr. Shertzer demonstrated a material change in conditions. We therefore

reverse and remand for the Board to consider whether the evidence indicates Mr.

Shertzer’s conditions in fact materially changed since the denial of his original

1983 claim. Because we remand this case to the Board for determination of the

threshold material change inquiry, we do not consider McNally’s contentions

regarding the sufficiency of the evidence in support of Mr. Shertzer’s disability


      3
         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-
benefits claim.



                             II. Standard of Review

      In reviewing a decision by the Board, this court will only review the

decision for errors of law and confirm the Board’s adherence to the substantial

evidence standard governing its review of the factual findings of an

administrative law judge. See Maddaleni v. Director, OWCP, 

,

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 

. As noted in Lukman v. Director, OWCP, 

, 1250 (10th Cir.

1990), statutory and regulatory interpretations of the procedural requirements for

the determination of black lung benefits are questions of law subject to this same

de novo review.



                                 III. Discussion

      On appeal, McNally argues the Board erred by not remanding the present

case back to the administrative law judge, contending he improperly applied the

standards pronounced in Wyoming Fuel concerning the adjudication of duplicate

claims. Specifically, McNally contends the administrative law judge erred by not

finding whether a material change of condition occurred since denial of the


                                        -5-
original 1983 claim. We agree.



      Under the relevant regulations, in order for a potential claimant to be

eligible for disability benefits, a claimant must prove (1) the presence of

pneumoconiosis; (2) the pneumoconiosis arose at least in part out of his or her

coal mine employment; and (3) total disability due to the pneumoconiosis. See

Wyoming 

. For duplicate claims – new claims 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 time of the prior denial before

the merits of the claim are considered. 

      Because the regulations do not define what must be proved to demonstrate

a material change, we clarified this standard in our Wyoming Fuel decision. 

At issue in Wyoming Fuel was whether the administrative law judge

properly concluded a claimant proved a material change in conditions and

subsequently correctly awarded benefits. 

At the time of the duplicate

claim proceeding, the administrative law judge applied the Board-endorsed Spese

standard, applied in Spese, 

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 change the prior administrative


                                         -6-
result.” Wyoming 

(quotation marks and citation omitted).



      After considering the Spese standard, we rejected it, finding it violative of

res judicata principles. 

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 presented to that which
      shows that the claimant’s condition has worsened since the previous
      denial. Instead, ... the [administrative law judge] must apply a
      standard that denies the claimant the opportunity to relitigate the
      earlier denial of benefits while permitting the claimant to prove that
      his or her conditions have worsened materially since the earlier
      denial.

      After reviewing standards adopted in other circuits, we developed our own

standard, taking into consideration traditional notions of res judicata as well as

the plain language of the statute and relevant regulations. 

We stated

a claimant establishes a material change in conditions by proving each element

“has worsened materially since the time of the prior denial.” 

in order for an administrative law judge to determine whether a

claimant establishes this necessary change in his or her physical conditions, the

administrative law judge should determine whether evidence obtained after the


                                         -7-
prior denial demonstrates a material worsening of those elements found against

the claimant. 

      Having articulated the relevant standard, we now turn to the case before us.

We first review the administrative law judge’s material change in conditions

analysis with respect to the presence of the pneumoconiosis element and then

review his analysis for the total disability element.



                                A. Pneumoconiosis

      Before reviewing the evidence to make his material change in conditions

determination, the administrative law judge correctly articulated the Wyoming

Fuel standard: “In order to meet the claimant’s threshold burden of proving a

material change in a particular element, ... the claimant need show only that this

element has worsened materially since the time of the prior denial.” However, in

determining whether a material change in conditions actually took place with

respect to whether Mr. Shertzer contracted pneumoconiosis, the administrative

law judge misapplied the standard by comparing evidence available at the time of

the 1997 denial of Mr. Shertzer’s request for modification 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 claim


                                          -8-
with the evidence currently at his disposal. The administrative law judge’s

comparison baldly does not comply with the mandate of Wyoming Fuel because of

this erroneous comparison.



      Despite this error, Mrs. Shertzer contends the Board’s decision may still be

affirmed by this court, arguing the error is harmless. 4 She reasons the erroneous

time frame considered is irrelevant because the administrative law judge found a

material change of conditions. We disagree. Apart from the error made by the

administrative law judge in comparing conditions during the wrong time period,

he also failed to point to any specific evidence or facts establishing a material

change in conditions from the 1983 denial. Without this analysis, nothing

prevents Mrs. Shertzer from simply relitigating the denial of the original 1983

claim. In other words, in this duplicate claim situation, 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 assurance that the same issue is

not being adjudicated in the duplicate claim as in the prior denial.” Wyoming

.


      4
         The Director concedes the administrative law judge erred in applying Wyoming
Fuel, but likewise asserts the error was harmless.


                                          -9-
      In this case, a comparison must be made of the evidence presented for each

claim. In finding for Mrs. Shertzer, the administrative law judge relied primarily

on new evidence obtained after the claimant’s death to conclude Mr. Shertzer

suffered from coal workers’ pneumoconiosis at the time 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 autopsy report in his ultimate

conclusion. Alternatively, in the original 1983 denial, it appears the Director

relied primarily upon a number of x-ray interpretations that the Director

concluded did not “show” the presence of pneumoconiosis.



      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 clearly 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 answer for the differences in their


                                        -10-
results. See 

(“[To meet the threshold burden] a claimant might offer

to compare past and present x-rays reflecting that any conditions suggesting ...

pneumoconiosis have become materially more severe since the last claim was

rejected.”) Such a discrepancy in the results between 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 new evidence produced by the

more invasive physical autopsy examination. 5



      By not specifically addressing the prior evidence in making his material

change determination, which specifically found Mr. Shertzer had not shown the

existence of pneumoconiosis in 1983, this court cannot determine from the record

whether the administrative law judge’s material change-in-conditions finding was

based on his determination of an actual material worsening of Mr. Shertzer’s 1983

condition or on another explanation, which might only establish the presentation

of evidence tending to show the prior denial was wrong, leading to an improper

adjudication of the first claim. See Wyoming 

. Therefore, to



      5
        Of 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-
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 presence of pneumoconiosis

element, we also conclude the administrative law judge erred by not making the

threshold material change inquiry with respect to the total disability element.

Because the administrative law judge relied on the other administrative law

judge’s determination Mr. Shertzer was totally disabled, he determined it

unnecessary to consider whether a material change in conditions occurred with

respect to the claimant’s disability status. 6 This inquiry is mandated, however,

because in 1983, the Director found Mr. Shertzer failed to establish any of the

necessary elements to receive benefits. 7 We therefore remand this issue as well.


      6
         Although 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.

      7
           McNally 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 

n.17.


                                           -12-
                                 IV. Conclusion

      In sum, we hold the Board erred in affirming the administrative law judge’s

decision that erroneously failed to properly apply the material change-in-

conditions standard in determining a worsening of Mr. Shertzer’s physical

condition occurred and finding him totally disabled. Because we conclude the

administrative law judge incorrectly applied the legal 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




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