Mills v. Dir OWCP ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Mills v. Director, OWCP No. 02-4209
ELECTRONIC CITATION: 2003 FED App. 0379P (6th Cir.)File Name: 03a0379p.06 OF THE SOLICITOR, Washington, D.C., for Respondent.
Margie Marie Mills, Heidrick, Kentucky, pro se.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
MARGIE MARIE MILLS, X BOYCE F. MARTIN, JR., Circuit Judge. Margie Marie
Mills, a Kentucky citizen, petitions pro se for review of an
Petitioner, - order of the Benefits Review Board affirming an
-
- No. 02-4209 administrative law judge’s decision denying the claims filed
v. - 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),
DIRECTOR, OFFICE OF -
WORKERS ’ COMPENSATION Rules of the Sixth Circuit. Upon examination, this panel
- unanimously agrees that oral argument is not needed. Fed. R.
PROGRAMS, UNITED STATES - App. P. 34(a).
DEPARTMENT OF LABOR, -
Respondent. - Mrs. Mills married Fred Mills, a former coal miner, in
- 1951. Mr. Mills filed a claim for black lung benefits in 1973.
N He died of prostate cancer in 1991, and Mrs. Mills filed a
On Petition for Review of an Order of the Benefits Review claim for survivor’s benefits. Both claims were denied, and
Board, United States Department of Labor. this court denied the petition for review filed in Case No. 97-
No. 01-0577 BLA. 4026. Within one year of that decision, Mrs. Mills submitted
a letter asking for modification of the decision. An
Submitted: October 23, 2003 administrative law judge determined that no mistake had been
made in denying the earlier claim. The Benefits Review
Decided and Filed: October 27, 2003 Board affirmed that decision, and denied a motion for
reconsideration. On appeal, Mrs. Mills argues that mistakes
Before: KEITH, MARTIN, and SUTTON, Circuit Judges. 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.
COUNSEL
This Court will uphold a decision of the Benefits Review
ON BRIEF: Christian P. Barber, Jeffrey S. Goldberg, Board where it is supported by substantial evidence and in
UNITED STATES DEPARTMENT OF LABOR, OFFICE conformance with the applicable law. Glen Coal Co. v. Seals,
147 F.3d 502, 510 (6th Cir. 1998). Upon careful
1
No. 02-4209 Mills v. Director, OWCP 3 4 Mills v. Director, OWCP No. 02-4209
consideration, we conclude that the Board’s decision meets administrative law judge carefully reviewed the x-ray
this standard. evidence and the readings of several qualified physicians that
concluded that the x-rays were negative for pneumoconiosis.
Because Mrs. Mills requested modification of the previous The only physicians who diagnosed Mr. Mills with
decision within one year of its issuance, she was entitled to a pneumoconiosis or determined that his medical condition was
review of the evidence for a mistake of fact. Y. & O. Coal related to his coal mine employment had been given
Co. v. Milliken, 200 F.3d 942, 954 (6th Cir. 1999). However, exaggerated work histories and their opinions were properly
as the administrative law judge noted, Mrs. Mills had filed accorded less weight. Because less than ten years of coal
two letters seeking review of the previous decision: one mine employment were proven, the miner was not entitled to
within one year and one after one year. Therefore, he also a presumption that any pneumoconiosis he might have had
examined Mrs. Mills’s claim as a duplicate claim, which arose out of his coal mine employment. Absent a showing
would require her to demonstrate a “material change” in that the miner had pneumoconiosis, that pneumoconiosis
condition. Sharondale Corp. v. Ross, 42 F.3d 993, 996 (6th arose out of his coal mine employment, or that death was due
Cir. 1994). Proving a “material change in condition” requires to pneumoconiosis, Mr. Mills’s claim was properly denied.
the claimant to prove one of the elements of entitlement
previously adjudicated against her. Id. at 997-98. Under Finally, in order to be entitled to benefits on her survivor’s
either standard of review, Mrs. Mills did not establish claim, Mrs. Mills was required to show that her husband’s
entitlement to benefits. death was caused or hastened by pneumoconiosis. Brown v.
Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir. 1993).
First, Mrs. Mills argues that her deceased husband was not The uncontradicted evidence in the record, however, showed
given credit for all of his coal mine employment. Mrs. Mills that his death was due to prostate cancer. Accordingly, Mrs.
testified that her husband worked in coal mining as a Mills did not demonstrate that a mistake was made and did
teenager, before they met, and returned to mining for a period not demonstrate any of the elements of entitlement that had
in the 1960s. The record in this case reveals that Mr. Mills’s been previously adjudicated against her in denying her claim.
recitation of his work history varied widely from document to The lack of evidence on the issue of the length of Mr. Mills’s
document. For example, Mr. Mills’s Social Security earnings coal mine employment, as well as on the medical issues,
record displayed that he had only two quarters of coal mine supports the denial of the claims in this case. Accordingly,
employment. Statements from former co-workers, however, the petition for review is denied. Rule 34(j)(2)(C), Rules of
directly conflicted with the Social Security earnings record. the Sixth Circuit.
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