Ansel v. Weinberger, 75-1743

• Decision Date: 12 February 1976
• Docket Number: No. 75-1743,75-1743
• Citation: 529 F.2d 304
• Parties: Claude R. ANSEL, Plaintiff-Appellant v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant- Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 304

529 F.2d 304

Claude R. ANSEL, Plaintiff-Appellant v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant- Appellee.

No. 75-1743.

United States Court of Appeals Sixth Circuit.

Argued Dec. 8, 1975.

Decided Feb. 12, 1976.

Frank J. Neff, Barkan, Barkan & Neff, Columbus, Ohio, Howdyshell & Dodd, Robert J. Dodd, Jr., New Lexington, Ohio, for plaintiff-appellant.

William W. Milligan, U.S. Atty., Thomas D. Thompson, Columbus, Ohio, for defendant-appellee.

Before EDWARDS, PECK and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

This is an appeal from denial of black lung benefits to a 75-year-old ex-coal miner with a fourth-grade education who worked in underground mines from 1914 to 1959. He has not worked since the last mine where he was employed was closed in 1959.

Mr. Ansel first sought benefits under the Federal Coal Mine Health and Safety Act of 1969. His application was denied on a finding that the evidence, including chest X-ray, did not show that he had pneumoconiosis. The finding of no pneumoconiosis and the denial of benefits were affirmed on reconsideration. The Black Lung Benefits Act of 1972 was adopted by Congress as an amendment to the 1969 Act. In accordance with requirements of the 1972 amendment, Ansel's claim was reexamined and he was notified that the Social Security Administration proposed to again deny benefits. Pursuant to Ansel's request, a hearing was held before an administrative law judge.

The applicant was hospitalized in 1968 after he suffered episodes of numbness and weakness in his left arm following a fall from a barn roof. He had previously experienced periods of momentary disorientation and confusion from time to time. After tests and examination the evaluating physician, Dr. R.D. Bateman, Jr., made a final diagnosis of cerebral arteriosclerosis with chronic vascular insufficiency, emphysema, and arteriosclerotic heart disease. The diagnosis of emphysema was based on X-rays of the chest and the opinion of a consulting radiologist.

Mr. Ansel was admitted to the same hospital in 1970 "with some pain in the right anterior chest." An X-ray of his chest showed emphysema changes "but no active infiltrate." Following treatment he was discharged witha final diagnosis of acute and chronic bronchitis by Dr. Charles Donley. The X-rays made during applicant's two periods of hospitalization were later interpreted by three radiologists at the request of the Social Security Administration and were found to be negative for pneumoconiosis.

Mr. Ansel was examined in 1971 at the request of the Social Security Administration. The examining physician reported that fluoroscopy revealed "fine nodulation throughout both lung fields indicating an early stage of silicosis." Pulmonary function studies made in connection with the examination were above the "expected normal." One of the evaluating physicians noted on a pulmonary function data sheet dated June 24, 1971, "Impression: Marked obstructive lung disease. Post bronchodilator and lung volume studies would give more definitive information."

Dr. Charles E. Bope filed a report in 1972 in connection with Ansel's black lung claim in which he listed three findings pertinent to the respiratory and cardiovascular systems based on his clinical examination. These were: cerebral arteriosclerosis with chronic vascular insufficiency, emphysema, and arteriosclerotic heart disease. To the question "If the applicant has chronic respiratory or pulmonary disease, what is your medical assessment of the severity of this impairment, i.e., to what extent does it prevent him from performing coal mine work?--Explain," he answered, "Total." Dr. Bope had been Mr. Ansel's personal physician for more than five years and was seeing him on a monthly basis. A radiology consultation report, also made in 1972, listed the "impressions" of the consultant as "1. Pulmonary emphysema. 2. Arteriosclerotic cardiovascular changes." In 1973 Dr. Bope reported that applicant had been admitted to a hospital again in March 1972 for acute and chronic bronchitis and was still unable to work.

The administrative law judge who conducted the hearing after Mr. Ansel's application for benefits had been denied originally and upon reconsideration concluded that Ansel had neither simple nor complicated pneumoconiosis. He reviewed the medical evidence and the testimony taken at the hearing and determined that the claimant had "marked respiratory distress during periods when his bronchitis flares up but at other times has no marked difficulty." After discussing the pulmonary function studies, the opinion continued. "In addition the claimant's primary problem would appear to be his cerebral arteriosclerosis with vascular insufficiency and his arteriosclerotic heart disease." The administrative law judge made specific findings that Ansel's respiratory and pulmonary condition would not preclude him from doing any of the work he formerly performed in coal mines and that he was not "totally disabled" within the meaning of the Act. The Secretary adopted the findings and opinion of the administrative law judge.

The claimant then filed an action in the district court seeking a review and reversal of the final administrative decision. Following briefing on cross motions for summary judgment the district court granted the motion of the Secretary and dismissed the complaint. In his opinion the District Judge reviewed the medical evidence and made the following finding:

The evidence before the Secretary demonstrates an emphysematic conditions of the lung and acute and chronic bronchitis. However, the record fails to demonstrate the existence of pneumoconiosis. Neither Dr. Bope nor Dr. Donley, plaintiff's long-time treating physicians, have stated an opinion that plaintiff is disabled as a result of pneumoconiosis. The x-rays and pulmonary function studies are negative for pneumoconiosis. Under such circumstances, the Secretary's decision that plaintiff does not suffer from pneumoconiosis is supported by substantial evidence.

In a motion for relief from judgment the plaintiff argued that both the Secretary and the district court had failed to apply the statutory presumption of 30 U.S.C. Sec. 921(c)(4), infra, and that neither had ever gotten beyond the admitted fact that plaintiff was unable to demonstrate pneumoconiosis by direct evidence. The district court entered an order denying relief, stating--

The administrative law judge found that "[a]ll of this evidence shows that claimant has neither simple nor complicated pneumoconiosis." This finding that plaintiff does not have pneumoconiosis rebuts the statutory presumption. Accordingly, the Court affirms its holding that the Secretary's decision is supported by substantial evidence.

Under Title IV of the Federal Coal Mine Health and Safety Act of 1969 (the Act), 30 U.S.C. Sec. 801 et seq., a person who has worked in underground coal mines for stated periods of time and is totally disabled because of pneumoconiosis is entitled to receive federal benefits. The statutory definition of pneumoconiosis is "a chronic dust disease of the lung arising out of employment in an underground coal mine." 30 U.S.C. Sec. 902. The Black Lung Benefits Act of 1972 amended the 1969 Act in a number of respects without changing its basic goals. One of the purposes of the 1972 amendment was to--

Relax the often insurmountable burden of proving eligibility by prohibiting a denial of claims based solely on a negative chest roentgenogram and by presuming that miners with 15 years experience who are disabled by a respiratory or pulmonary impairment are disabled by pneumoconiosis. Senate Report No. 92-743 (1972) 92d Cong., 2d Sess., 2 U.S.Cong. & Admin.News '72 at 2306.

This statement refers to amended 30 U.S.C. Sec. 921(c)(4) which creates a rebuttable presumption as follows:

(c) For purposes of this section--

(4) if a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner's, his widow's, his child's, his parent's, his brother's, sister's, or his dependent's claim under this subchapter and it is interpreted as negative with respect to the requirements of paragraph (3) of this subsection, 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 disable due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. In the case of a living miner, a wife's affidavit may not be used by itself to establish the presumption. The Secretary shall not apply all or a portion of the requirement of this paragraph that the miner work in an underground mine where he determines that conditions of a miner's employment in a coal mine other than an underground mine were substantially similar to conditions in an underground mine. The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

The 1972 amendment further provided for defining "total disability" by regulation:

The term"total disability" has the meaning given it by regulations of the Secretary of Health, Education, and Welfare, except that such regulations shall provide that a miner shall be considered totally disabled when pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time. Such regulations shall not provide more restrictive criteria than those application under section 423(d) of Title 42. 30 U.S.C. Sec. 902(f).

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