Prokes v. Mathews, 76-1283

• Decision Date: 27 July 1977
• Docket Number: No. 76-1283,76-1283
• Citation: 559 F.2d 1057
• Parties: Adolph E. PROKES, Plaintiff-Appellee, v. Forrest David MATHEWS, Secretary, Health, Education and Welfare, Defendant- Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1057

559 F.2d 1057

Adolph E. PROKES, Plaintiff-Appellee, v. Forrest David MATHEWS, Secretary, Health, Education and Welfare, Defendant- Appellant.

No. 76-1283.

United States Court of Appeals Sixth Circuit.

Argued April 12, 1977.

Decided July 27, 1977.

William W. Milligan, U. S. Atty., Thomas Thompson, Columbus, Ohio, Robert E. Kopp, Mark H. Gallant, Appellate Sect., Civil Div., Dept. of Justice, Washington, D. C., for defendant-appellant.

Steven E. Cichon, St. Clairsville, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

This case arises under the Black Lung Benefits Act of 1972 ¹ which amended the Coal Mine Health and Safety Act of 1969. Two issues are presented: (1) the extent to which the Social Security Administration is obligated to make certain that all relevant evidence is considered in deciding black lung claims, and (2) the related issue of the validity of Social Security Ruling 73-37. The Secretary appeals from a judgment of the district court granting the plaintiff's motion for summary judgment and remanding to the Secretary for further proceedings. We affirm.

At the time of the hearing in 1974 the claimant Prokes was 78 years old and had not worked in the mines since 1958, though he had worked in and around the mines for more than 15 years prior to 1958. The only witnesses before the administrative law judge were the claimant and his son, a mining engineer who attempted to assist his father in presenting his case. The claimant testified that he had great difficulty in breathing, that he had trouble sleeping, requiring two pillows doubled up, and that he could barely climb the steps to attend the hearing. Three of the exhibits which were introduced were reports by specialists who interpreted a chest X-ray of the claimant. One interpreted the X-ray as disclosing simple pneumoconiosis while the other two interpreted it as negative for pneumoconiosis. Another exhibit was a ventilatory function study report which showed values that did not meet or equal the severity required by applicable regulations to entitle Prokes to a presumption of total disability based upon a pulmonary impairment. 20 CFR § 410.490(b)(1)(ii). The administrative record also contained a note from the claimant's personal physician, Dr. Ortiz, certifying that he had been treating Prokes off and on since May 1965 for various conditions including chronic bronchitis with pulmonary emphysema.

The administrative law judge advised the claimant and his son that the problem with Dr. Ortiz's report was that "(c)hronic bronchitis and pulmonary emphysema are not pneumoconiosis." A more complete report was then secured from Dr. Ortiz by the administrative law judge and copies were sent to the claimant with the advice that he could object to admission of the report. The claimant's son relayed his father's concern that the report apparently again referred to bronchitis, and objected to its admission since the administrative law judge had told them at the hearing that "bronchitis did not come under the Black Lung qualification." The administrative law judge sustained the objection to the later report of Dr. Ortiz and did not consider it.

The district court correctly held that it was error to exclude from consideration a report of the long-time treating physician of a claimant which indicated the existence of bronchitis and pulmonary emphysema. The claimant did not have an attorney at the hearing and apparently had a misconception concerning the relevance of the existence of bronchitis and pulmonary emphysema to his black lung claim. The administrative law judge should have fully developed this "other evidence" rather than relying on the claimant's uncounseled and uninformed objections for excluding the report of Dr. Ortiz and not obtaining further information as to the severity of these conditions. If Dr. Ortiz should report that the claimant was totally disabled (within the definition contained in the Act) by reason of chronic bronchitis and pulmonary emphysema this would be significant evidence to be considered in determining whether he was entitled to the presumption that his disability resulted from pneumoconiosis, 30 U.S.C. § 921(c)(4) (Supp. V, 1975).

The second issue on appeal concerns application by the administrative law judge, and the Secretary, of Social Security Ruling 73-37. This ruling consists of a headnote, or syllabus, followed by an example and discussions. The headnote is as follows:

Where X-ray or ventilatory function test results submitted by a claimant for black lung benefits fail to establish total disability under interim regulatory criteria in Regulations No. 10, sections 410.490 ff., held, there is an inference that the miner is not totally disabled. Further held, where other relevant evidence is submitted, total disability may be determined to exist only when the evidence in file establishes the level of severity contemplated in § 410.426.

In the decision of the administrative law judge the medical evidence was examined and it was concluded that the claimant was "not entitled to a presumption of total disability based upon the interim criteria." The administrative law judge then considered the "continuing criteria" (20 CFR § 410.412-410.462), noting that they are more stringent than the interim criteria, and concluded that the evidence did not establish total disability due to pneumoconiosis under these standards. These considerations led to the conclusion that Where X-ray and ventilatory test findings do not demonstrate the presence of pneumoconiosis or a chronic respiratory or pulmonary impairment, respectively, in accordance with the interim criteria, there is an inference that Applicant is not totally disabled due to such a cause. (See Social Security Ruling 73-37.) While ventilatory studies demonstrate the ability of the Applicant to move air in and out of his lungs, such studies do not necessarily describe the ability of Applicant's lungs to transfer oxygen to his bloodstream. Nevertheless, where the values of the interim table of the regulations (20 CFR 410.490(b)(ii)) are exceeded, only in an unusual case will such an individual be totally disabled due to a lung impairment. A finding of disability becomes less likely as the ventilatory study values increase further above this table.

This language is copied verbatim from the discussion portion of Ruling 73-37. The finding of the administrative law judge, adopted by the Secretary as his final decision was:

The preponderance of the medical and other evidence does not demonstrate the presence of a totally disabling pneumoconiosis or a totally disabling chronic respiratory or pulmonary disease presumed to be pneumoconiosis.

The district court held that the Secretary's decision insofar as it was based upon the inference referred to in Ruling 73-37, was contrary to the Act and erroneous as a matter of law. On appeal the Secretary argues that Ruling 73-37 is valid and that the administrative law judge applied it properly. The plaintiff contends that reliance on Ruling 73-37 was error since it purports to rebut the presumption created in 30 U.S.C. § 921(c)(4) by means of an inference which is based in part at least on the same negative medical evidence which permitted resort to the presumption in the first place. The plaintiff relies on our opinion in Ansel v. Weinberger, 529 F.2d 304 (6th Cir. 1976). In Ansel, the court found that the claimant had established that he was totally disabled within the meaning of the Act; in fact, that there was no substantial evidence to the contrary. Id. at 309. Since his disability arose from a chronic respiratory or pulmonary impairment, Ansel was entitled to a presumption under Section 921(c)(4) that he was disabled due to pneumoconiosis. The court held that this presumption could not be rebutted by evidence consisting only of negative X-rays and pulmonary function studies.

The purpose in creating the rebuttable presumption of § 921(c)(4) was to provide an alternative to X-rays as a means of establishing entitlement to black lung benefits. Congress concluded that many claims were being denied on the basis of negative X-rays where other evidence indicated the existence of coal miner's pneumoconiosis. S.Rep.No.92-743, 92d Cong., 2d Sess., 2 U.S.Code Cong. & Admin.News (1972) at 2306. Thus Section 921(c)(4) provides that a person with 15 years exposure who cannot produce an X-ray which meets the standards of 30 U.S.C. § 921(c)(3) (Supp. V, 1975) for the establishment of pneumoconiosis may nevertheless be entitled to benefits if he establishes total disability arising from a pulmonary or respiratory impairment. The claimant has the burden of proving his entitlement to benefits, and the effect of the presumption is to assist him in carrying this burden. In effect, if the requirements of § 921(c)(4) are met, the claimant has made out a prima facie case of presumed pneumoconiosis, and the burden of going forward shifts to the Secretary to produce evidence sufficient under the same section to rebut the presumption. These are the usual functions of a statutory presumption to assist one having the burden of proof and to shift the burden of going forward with evidence to the other party. See Webre Steib Co. v. Commissioner, 324 U.S. 164, 170-71, 65 S.Ct. 578, 89 L.Ed. 819 (1945).

In Ansel the Secretary contended that the negative X-rays which required the claimant to proceed by way of the § 921(c)(4) presumption were themselves sufficient to rebut the presumption. This argument was rejected since its acceptance would render the presumption meaningless. It was the unreliability of X-rays, when considered alone, as indicators of the absence of pneumoconiosis that led to the enactment of § 921(c)(4). S.Rep., supra. In Ansel the court further held that the § 921(c)(4) presumption of total disability from pneumoconiosis could not be rebutted by a...