Petry v. Califano

• Decision Date: 18 May 1978
• Docket Number: No. 77-1640,77-1640
• Citation: 577 F.2d 860
• Parties: Herman K. PETRY, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 860

577 F.2d 860

Herman K. PETRY, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.

No. 77-1640.

United States Court of Appeals Fourth Circuit.

Argued Jan. 11, 1978.

Decided May 18, 1978.

Richard W. Crews, Beckley, W.Va. (E. Carl Meadows, Meadows & Crews, Beckley, W.Va., on brief), for appellant.

Rebecca A. Betts, Asst. U. S. Atty. (Robert B. King, U. S. Atty., and Steven L. Jones, Sp. Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.

K. K. HALL, Circuit Judge:

Herman K. Petry appeals from an order of the district court affirming a decision of the Secretary of Health, Education and Welfare that he was not entitled to "black lung" benefits sought pursuant to Part B of the Federal Coal Mine Health and Safety Act of 1969, as amended, (the Act) 30 U.S.C. § 901, et seq., and the regulations promulgated thereunder. Our scope of review is confined to ascertaining whether the Secretary's denial was supported by "substantial evidence." If such support exists, we must affirm. If not, we must reverse. 30 U.S.C. § 923(b), incorporating by reference § 205(g) of the Social Security Act, 42 U.S.C. § 405(g); see Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1968). In the instant case we conclude that there was not substantial evidence to support the Secretary's decision, reverse the district court's order and direct it to remand the case to the Secretary to enter an award for the claimant.

I. BASIC ENTITLEMENT

Entitlement of black lung benefits under the Act is conditioned on the proof of three basic elements:

1. That claimant is or was a miner; and

2. That claimant is totally disabled due to pneumoconiosis; and

3. That his pneumoconiosis arose out of his coal mine employment.

See 30 U.S.C. § 901; 20 C.F.R. § 410.410.

From an analysis of those elements, there is no question in this case (1) that claimant is or was a miner and (3) that if he is found to have contracted pneumoconiosis, that it arose out of his employment in the mines. ¹ The second element is in dispute whether the claimant is totally disabled due to pneumoconiosis and we focus on this element.

Although this is a not a case in which the claimant has shown conclusively that he has pneumoconiosis, nevertheless, "if other evidence demonstrates the existence of a totally disabling ² chronic respiratory or pulmonary impairment," and the claimant "was employed 15 or more years in one or more of the Nation's underground coal mines," he is entitled to a rebuttable presumption that the disability is due to pneumoconiosis. ³ In this case, there is no dispute that Petry has met the fifteen year requirement, ⁴ and from our review of the record we hold also that he presented other evidence demonstrating the existence of a totally disabling chronic respiratory impairment and that the Secretary's findings to the contrary were not supported by substantial evidence.

II. THE § 410.414(b) PRESUMPTION

The question of when the presumption in 20 C.F.R. § 410.414(b) is created is the crucial issue here, for the Secretary found that the claimant did not provide "other evidence" sufficient to raise the presumption. ⁵ Although several other cases have found the presumption met on their own facts, none have specified exactly why the presumption was met and why the Secretary was wrong in saying that the claimant had not carried his burden. See e. g., Bozwich v. Mathews, 558 F.2d 475, 480 (8th Cir. 1977); Henson v. Weinberger, 548 F.2d 695, 698-99 (7th Cir. 1977). Any analysis of the facts of this case hinges upon a clear understanding of the presumption created in § 410.414(b), especially in light of the relevant congressional intent surrounding 30 U.S.C. § 921(c)(4), ⁶ the parent statute of § 410.414.

A. CONGRESSIONAL INTENT

After passage of the Federal Coal Mine Health and Safety Act of 1969, statistics revealed that in the following three years, almost fifty percent of disability claims were denied. S.Rep. No. 743, 92d Cong., 1st Sess., reprinted in (1972) U.S. Code Cong. & Admin. News pp. 2305, 2307. Although negative or inconclusive X-ray evidence was the greatest single reason for the large percentage of denials, Id. at 2313, research showed that in twenty-five percent of the cases where X-ray evidence was negative, autopsies performed after the miners' deaths demonstrated the presence of pneumoconiosis. Id. at 2314, 2316. Additionally, other evidence presented to Congress revealed that miners suffered from other respiratory impairments at rates greater than those of the general public. Id. at 2314.

To aid the miner in pursuing black lung benefits, ⁷ Congress enacted the 1972 amendments to the Act, which, among other things, created the presumption found in 30 U.S.C. § 921(c)(4) and implemented in 20 C.F.R. § 410.414(b). The Secretary also was required to consider all relevant evidence of disability, and not just one or two objective tests. 30 U.S.C. § 923(b). Finally, Congress indicated the liberality with which it intended the amended Act to be construed when it said:

The Black Lung Benefits Act of 1972 is intended to be a remedial law to improve upon the 1969 provisions so that the cases which should be compensated, will be compensated. In the absence of definitive medical conclusions there is a clear need to resolve doubts in favor of the disabled miner or his survivors.

S.Rep. No. 743, 92d Cong., 1st Sess., reprinted in (1972) U.S. Code Cong. & Admin. News p. 2315. See generally Bozwich v. Mathews, 558 F.2d 475, 478-79 (8th Cir. 1977). This latter principle was given effect in Henson v. Weinberger, supra, where the court stated:

The Committee made clear the desire that evidence submitted by a miner's physician be considered, . . . and the claimants, particularly after 15 years or more of work in a coal mine, be given the benefit of the doubt . . . .

548 F.2d at 699. A close reading of the cases from other circuits indicates that there are several stages in the claims procedure wherein the benefit of doubt could be resolved in favor of the claimant. However, the following language reveals that Congress considered the doubt to have been resolved in favor of the disabled miner when it enacted the 1972 amendments:

The Committee bill gives the benefit of the doubt to claimants by prohibiting denial of a claim solely on the basis of an X-ray, by providing a presumption of pneumoconiosis for miners with respiratory or pulmonary disability where they have worked for 15 years or more in a coal mine, and by requiring the Social Security Administration to use tests other than the X-ray to establish the basis for a judgment that a miner is or is not totally disabled due to pneumoconiosis.

B. ANALYSIS OF THE PRESUMPTION

With the Congressional intent and findings as guideposts, we turn to an analysis of the presumption contained in 20 C.F.R. § 410.414(b). As noted above, the claimant must establish two elements in order to trigger the presumption:

1. Fifteen years of employment in the mines; and,

2. Other evidence (other than X-rays, biopsy or autopsy) demonstrating the existence of a totally disabling chronic respiratory impairment.

The burden is on the claimant to establish these two elements by a preponderance of the evidence, and, if the claimant fails to establish either or both of the two elements of § 410.414(b), then the presumption fails and the claim should be denied insofar as it is based on the presumption. However, if the two elements are established from all the evidence, then the burden of going forward with the evidence shifts to the Secretary, Prokes v. Mathews, supra at 1060, and he must make one of two findings to rebut the presumption:

1. That the miner does not have pneumoconiosis; or,

2. That the respiratory or pulmonary impairment did not arise out of employment in the coal mines.

20 C.F.R. § 410.414(b)(2). If neither of these findings is made, the presumption accorded the claimant is not rebutted, and he should be awarded benefits. As usual, the Secretary must state clearly on the record his findings and precise reasons therefor.

III. THIS APPEAL

Application of this legal analysis to the instant claim is now proper. The Secretary admits that the claimant meets the fifteen-year requirement of the presumption, but denies that claimant has demonstrated a totally disabling chronic respiratory impairment. Therefore, it becomes necessary to review the record to determine whether the Secretary's decision is supported by substantial evidence.

In support of establishing that he has a totally disabling chronic respiratory impairment, claimant relies on the following:

1. X-ray readings by plaintiff's doctors;

2. Pulmonary function studies;

3. Blood-gas tests;

4. Lung scan results;

5. Personal physical examination by three doctors, including a long-time treating physician, and the results of their tests;

6. Claimant's own testimony; and

7. A total review of claimant's medical record and a physical examination by Dr. John M. Daniel, Chief of Medicine at Beckley Hospital.

To support the finding that plaintiff is not totally disabled due to a chronic respiratory impairment, the Secretary relies on different interpretations of the same evidence, and in addition, the Secretary places great, if not determinative weight on the testimony of Dr. W. Keith C. Morgan, Chief of the Division of Pulmonary Diseases at the West Virginia University Medical School, who reviewed the findings of plaintiff's physicians and the tests they administered.

1. X-rays

The Act and regulations prohibit denying a claim for benefits solely on the basis of negative X-rays. 30 U.S.C. § 923(b); 20 C.F.R. § 410.414(c). Furthermore, it is by the use of evidence other than X-rays, biopsies or autopsies that the presumption of § 410.414(b) is raised, and it is likewise by a finding that the other evidence does not demonstrate a totally disabling chronic...