Back v. Califano

• Decision Date: 05 March 1979
• Docket Number: No. 77-3139,77-3139
• Citation: 593 F.2d 758
• Parties: James D. BACK, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 758

593 F.2d 758

James D. BACK, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 77-3139.

United States Court of Appeals Sixth Circuit.

Argued Oct. 13, 1978.

Decided March 5, 1979.

Frank J. Neff, Barkan, Barkan & Neff, Columbus, Ohio, for plaintiff-appellant.

James C. Cissell, U. S. Atty., Cincinnati, Ohio, Joseph E. Kane, II, Asst. U. S. Atty., Columbus, Ohio, for defendant-appellee.

Before EDWARDS, Chief Judge, and WEICK, Circuit Judge, and LAWRENCE ^*, Senior District Judge.

WEICK, Circuit Judge.

Plaintiff-appellant Back has appealed to this Court from an order of the District Court affirming the denial by the Secretary of Health, Education and Welfare of his claim for black lung benefits. On appeal he submits that the decision of the Secretary is not supported by substantial evidence. He next contends that under Begley v. Mathews, 544 F.2d 1345 (6th Cir. 1976), Cert. denied, 430 U.S. 985, 97 S.Ct. 1684, 52 L.Ed.2d 380 (1977), certain 1975 evidence relates back to establish total disability due to pneumoconiosis existing on or before the June 30, 1973 date for establishing such total disability. He further contends that even if he is not entitled to benefits under Begley, he is entitled to an award of benefits under the most recent supplements to the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 Et seq., contained in the Black Lung Benefits Reform Act of 1977, Pub.L. No. 95-239, 92 Stat. 95, signed into law March 1, 1978, and regulations promulgated thereunder which were adopted by the Secretary of Labor on August 18, 1978. See 43 Fed.Reg. 36,772-831 (1978).

Back is a 56 year old former miner. He is married and has no dependent children. Between 1942 and 1958 he worked for the Westmoreland Coal Company. The Administrative Law Judge found that Back worked in the Westmoreland mine for thirteen and one-fourth years, of those sixteen years. This finding is unchallenged. He quit his work as a miner in 1958. At the time he quit there was no indication that he was suffering from black lung or any other disease; nor was he disabled in any respect. In fact, from 1959 to 1972 Back worked for a local company in a warehouse as a packer of merchandise for shipment to retail outlets, and as a shipping and receiving clerk. In 1972 he suffered a heart attack and stopped working. On December 9, 1972, because he had applied for and obtained an award, he began receiving total and permanent disability Social Security benefits for arteriosclerotic heart disease. He did not file a claim for worker's compensation as this type of benefit is ordinarily awarded only for disability arising from physical injury sustained in the course of employment, as distinguished from disease which may be incurred by anyone irrespective of employment.

Back filed a claim for benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended in 1972, on April 30, 1973. His application was denied initially and upon reconsideration.

Back requested a hearing before an Administrative Law Judge. A hearing was held on November 11, 1975, at which hearing he appeared and testified. The Administrative Law Judge denied benefits to Back. The Appeals Council affirmed on May 4, 1976.

On June 3, 1976 Back filed an action in United States District Court for the Southern District of Ohio, seeking a review of the Secretary's decision. The District Court held that the decision of the Secretary was supported by substantial evidence and denied Back's motion for summary judgment. We agree.

On appeal Back contends that he has presented sufficient medical evidence of lung disease existing on or before the June 30, 1973 deadline, to be entitled to a presumption of total disability due to pneumoconiosis under 20 C.F.R. § 410.490(b). ¹ Because he worked for more than ten years in the Westmoreland mine, he submits that he also has the benefit of a presumption that his pneumoconiosis arose out of his employment at the mine under § 410.416. ² He contends that he has presented sufficient medical evidence and that he should enjoy both the presumption that he is totally disabled due to pneumoconiosis and the presumption that his disabling pneumoconiosis arose out of his mine employment from 1942 to 1958. ³

Judicial review of the Secretary's findings of fact is limited to whether there is substantial evidence to support such findings. 30 U.S.C. § 923(b); 42 U.S.C. § 405(g). See, e. g., Beavers v. Secretary of HEW, 577 F.2d 383 (6th Cir. 1978); Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978); Stille v. Weinberger, 499 F.2d 244 (6th Cir. 1974); Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973); Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972); Ross v. Richardson, 440 F.2d 690 (6th Cir. 1971); Ragan v. Finch, 435 F.2d 239 (6th Cir. 1970); Rose v. Cohen, 406 F.2d 753 (6th Cir. 1969); Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967). In Begley, supra, this Court held, after reviewing the legislative history of the Act, that under 20 C.F.R. § 410.490 the medical evidence must establish total disability due to pneumoconiosis on or prior to June 30, 1973, otherwise recovery of benefits will not be allowed. Evidence of total disability due to pneumoconiosis, which disability occurred a relatively short time after June 30, 1973, may establish total disability as of such date. 544 F.2d at 1354. See also Paluso v. Mathews, 573 F.2d 4, 9-10 (10th Cir. 1978); Arnold v. Secretary of HEW, 567 F.2d 258 (4th Cir. 1977); Humphreville v. Mathews, 560 F.2d 347 (8th Cir. 1977); Talley v. Mathews, 550 F.2d 911, 917 (4th Cir. 1977); Ingram v. Califano, 547 F.2d 904 (5th Cir. 1977). Further, pneumoconiosis must be the primary cause of the total disability. Gastineau v. Mathews, 577 F.2d 356 (6th Cir. 1978).

Back contends that he had respiratory problems prior to the June 30, 1973 deadline for filing claims. He offered a letter dated March, 1975, written by his personal physician, which interpreted an x-ray taken four years earlier, in April, 1971, as showing pulmonary fibrosis. As hereinafter noted, this reading conflicts with other readings by medical experts.

Back also offered a series of x-rays taken between June, 1970 and October, 1973, which were diagnosed as showing a granulomatous lesion overlying the spine. Although there is no mention of lung disease in the reports associated with these x-rays, Back submits that there x-rays are highly probative evidence of significant lung disease existing prior to July 1, 1973.

The Administrative Law Judge found as a fact that Back was not totally disabled due to pneumoconiosis on or before June 30, 1973. He considered all of the evidence. The District Court found that the decision of the Secretary was supported by substantial evidence.

Assuming for the purpose of argument that Back was in fact disabled on June 30, 1973, the medical evidence on or about that date does not tend to support a finding that the disability was due to pneumoconiosis, as required. In December, 1972, seven months before the deadline, Back suffered a myocardial infarction and spent twenty days in the hospital. He had applied for and obtained an award and began, on December 9, 1972, receiving total and permanent disability insurance benefits because of arteriosclerotic, heart disease. During his stay in the hospital, an x-ray was interpreted by one Dr. Morrice as suggesting discoid atelectasis. This same x-ray was later interpreted by one Dr. Fox, who stated:

There does not appear to be any evidence of any inhalation disease or other definite pulmonary lesion. CONCLUSION: Classification "0" without evidence of pneumoconiosis.

On May 14, 1973 Back's personal physician, one Dr. Grove, in a report, diagnosed Back as having a myocardial infarct and hypertensive cardiovascular disease. Several weeks later, on June 14, 1973, pulmonary studies were conducted on Back by one Dr. Hook. Dr. Hook noted:

No significant restrictive or obstructive impairment (is) noted . . .. Values are within normal variables from predicted.

The report indicated that Back's cooperation was good.

In October, 1973, over three months beyond the deadline, a chest fluoroscopy given by one Dr. Rauchway showed "nodular lesion posteriorly located in the left lung with calcification present." On October 24, 1973 a chest x-ray was read by one Dr. Jacobson, an A reader, and by one Dr. Wheeler, a B reader, as negative for pneumoconiosis. To counter this lack of evidence of total disability due to pneumoconiosis existing on or about the June 30, 1973 deadline, Back offered the 1975-letter of his Doctor interpreting an April, 1971 x-ray as positive for pulmonary fibrosis and the series of x-rays from 1970 to 1973 which indicated a granulatomous lesion overlying the spine. The Secretary's regulations ⁴ require a much stronger case, such as massive pulmonary fibrosis, to qualify for benefits.

There is no x-ray interpretation on or about the June 30, 1973 deadline which qualifies Back under § 410.428. The medical evidence taken within several months prior to the deadline, and within a relatively short time after the deadline, seem to indicate that Back was totally disabled from heart disease, not pneumoconiosis. Pneumoconiosis was not the primary cause of his disability. Gastineau, supra, at 358-59.

Back also offered the interpretations by two doctors of certain 1975 x-rays which tend to show possible simple pneumoconiosis. An x-ray taken on January 28, 1975 was interpreted by one Dr. Straughan as demonstrating emphysema, bronchitis, and "fibrosis on the basis of pneumoconiosis, simple, category 1/1P? Chest is otherwise normal." An x-ray taken on July 6, 1975 was interpreted by one Dr. Shiv Navani as demonstrating mildly emphysematous lungs, "consistent with changes of coal worker's pneumoconiosis of the type p1/0." He observed no acute focal pulmonary disease. Back submits that under this Court...