Bohn v. Harris

• Decision Date: 06 June 1980
• Docket Number: Civ. No. C 79-0574.
• Parties: Cecil BOHN, Plaintiff, v. Patricia R. HARRIS, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — District of Utah

494 F. Supp. 101

Cecil BOHN, Plaintiff, v. Patricia R. HARRIS, Secretary of Health, Education and Welfare, Defendant.

Civ. No. C 79-0574.

United States District Court, D. Utah, C. D.

June 6, 1980.

Virginius Dabney, McMillan & Browning, Salt Lake City, Utah, for plaintiff.

James R. Holbrook, Asst. U. S. Atty. for Utah, Salt Lake City, Utah, for defendant.

MEMORANDUM, CONCLUSIONS OF LAW AND ORDER

JENKINS, District Judge.

Plaintiff seeks judicial review of the final decision of the Defendant Secretary of Health, Education and Welfare (hereinafter referred to as the Secretary)¹ denying his claim for black lung disability benefits under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 901, et seq. Presently before the court are Plaintiff's Motion for Reversal of the Final Decision of the Secretary Denying Black Lung Benefits to Plaintiff and Defendant's Motion to Affirm the Decision.

Jurisdiction and the standard for review of this action are found in 30 U.S.C. § 923(b), incorporating the Social Security Act, 42 U.S.C. § 405(g), which provides in pertinent part that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ." "Substantial evidence" is defined as ". . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Hanna v. Califano, 579 F.2d 67, 68 (10th Cir. 1978); Felthager v. Weinberger, 529 F.2d 130, 131 (10th Cir. 1976); Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970). See also, the Administrative Procedure Act, 5 U.S.C. § 706(2)(e). However, the court is not bound to accept the conclusions of the Secretary as to legal questions, and is free to review those conclusions, keeping in mind that some deference is accorded the Agency's own interpretation of its governing law. See, 5 U.S.C. § 706(2)(A) through (D). It should also be noted that in determining whether a conclusion is supported by substantial evidence, the reviewing body must look not only at the evidence which supports the conclusion, but at that evidence which fairly detracts from it. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The central issue, therefore, is narrow, i. e., whether there is substantial evidence upon the record as a whole to support the findings, conclusions and final decision of the Secretary that Plaintiff was not totally disabled due to pneumoconiosis, arising out of his employment in the nation's underground coal mines, on or before June 30, 1973. Paluso v. Mathews, 562 F.2d 33, 36 (10th Cir. 1977), reh., 573 F.2d 4, 10 (10th Cir. 1978).

Pneumoconiosis, commonly referred to as "black lung", is a chronic chest disease which is caused by fine coal dust particles lodging themselves in the lung. Because of the devastating, progressive character of this disease and because the Act is basically remedial in nature, claims for compensation are to be liberally construed in favor of awarding benefits, and any doubts from the evidence are to be resolved in favor of the claim. Paluso, supra at 36 and 573 F.2d at 10; Henson v. Weinberger, 548 F.2d 695, 699 (7th Cir. 1977); Puckett v. Mathews, 420 F.Supp. 364, 366 (D.C.Va.1976); Tonker v. Mathews, 412 F.Supp. 823, 827 (D.C.Va. 1976); Report No. 94-1254, Senate Committee on Labor and Public Welfare, pp. 1-3 (September 20, 1976); Report No. 92-743 Senate Committee on Labor and Public Welfare, p. 11 (April 10, 1972). As the United States Court of Appeals for the Tenth Circuit noted in Paluso on rehearing:

We are of the view that all reasonable inferences and presumptions should be construed in favor of a miner who when he filed his claim believed that he was suffering from black lung, even though he had not mustered sufficient evidence of his disability prior to the cut-off date. We anchor this approach to a variety of factors, including a claimant's ignorance or misunderstanding of eligibility standards, lack of adequate medical evidence due to the progressive nature of black lung disease, a miner's financial inability to seek proper medical confirmation, and inexact methods of diagnosis. It is a matter of overriding importance that the Act is remedial in nature and is to be given liberal construction. (citations).

* * * * * *

Any doubts which arise as to when black lung caused total disability are to be resolved in favor of these good faith claimants. Id. at 10 (emphasis added).

Generally speaking, a living miner shall be considered totally disabled due to pneumoconiosis if his pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time, and his impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months. 20 CFR 410.412(a)(1), (2). Because of the medical difficulty in obtaining a clinical diagnosis of pneumoconiosis, and as a matter of public policy, Congress established certain standards and presumptions to assist coal miners in establishing their claims.

There is an irrebuttable presumption that a living coal miner is totally disabled due to pneumoconiosis if he is suffering or suffered from a chronic dust disease of the lung as established by chest x-rays yielding one or more opacities greater than one centimeter in diameter and which are classified as "complicated pneumoconiosis".

There is a rebuttable presumption that a living coal miner is totally disabled due to pneumoconiosis if a chest x-ray, biopsy or autopsy yields a finding of "simple pneumoconiosis". 20 CFR 410.490(b)(1)(i) and 20 CFR 410.428. Mutter v. Weinberger, 391 F.Supp. 951, 953-954 (W.D. Va.1975). See Gray v. Secretary, 402 F.Supp. 1303, 1305-1306 (E.D.Mich.1975). The presumption may be rebutted only if the coal miner is actually performing, or other evidence indicates that he could perform, either his usual coal mine work or comparable and gainful work. 20 CFR 410.490(c). Blood gas analyses and ventilatory studies are among the other alternative types of evidence that may establish the rebuttable presumption.

These presumptions, it should be noted, were created to enable black lung claimants to obtain benefits despite the absence of clinical diagnoses of pneumoconiosis as the exact cause of total disability or death. Smakula v. Weinberger, 572 F.2d 127, 129 (3rd Cir. 1978); Putsakulish v. Califano, 448 F.Supp. 192, 194-195 (W.D.Pa. 1978). In addition, once the coal miner triggers the presumption, the burden of going forward shifts to the Secretary. Sanchez v. Califano, No. 77-1900 (10th Cir., January 11, 1979), an unreported decision relying on Keating v. Secretary, 468 F.2d 788 (10th Cir. 1972) and Valentine v. Richardson, 468 F.2d 588 (10th Cir. 1972); Prokes v. Mathews, 559 F.2d 1057, 1060 (6th Cir. 1977).

Bohn's application for black lung benefits was timely filed on November 30, 1972, approximately seven months prior to the jurisdictional cut-off date (Tr. 45-48). It was denied on June 18, 1973 on the grounds that although he was suffering from simple pneumoconiosis (Category 1/1), he was "currently engaging in coal mine work" and his "evidence did not establish complicated pneumoconiosis" (Tr. 49, 50-52). He requested reconsideration of that decision on December 13, 1973 (Tr. 53) which was again denied on February 5, 1974 for the same reasons stated in the prior denial (Tr. 54, 55-57).

A hearing on Bohn's application (Tr. 25) was held before an Administrative Law Judge on March 25, 1975 (Tr. 26-44). Bohn testified at the hearing and certain medical evidence was introduced into evidence. Bohn testified that he planned to retire in 1976 for medical reasons, but desired to keep working to obtain a substantial increase in his miner's pension and other benefits (Tr. 17, 30-31, 34-35, 41). He claimed that his lungs hurt nearly all the time, that he was short-winded, that his chest ached, and that he woke up at night with pain in his lungs (Tr. 17, 31-33, 39-40).

An x-ray report of January 11, 1973 was originally read as ½ (U.I.C.C.) "simple" pneumoconiosis and re-read by a board-certified "B" reader as 1/1 (U.I.C.C.) "simple" pneumoconiosis (Tr. 60-62). A subsequent x-ray report of August 2, 1973 was read as containing "some diffuse pulmonary fibrotic change" without reference to any category of pneumoconiosis (Tr. 65). The medical report of December 18, 1973 included the diagnosis of pulmonary emphysema and mild fibrosis (Tr. 63-64, 66). The blood gas study of May 1, 1975 both before and after exercise rendered values equal or less than the values contained in the regulations (Tr. 11, 70).

At the time of the hearing, Bohn was 62 years old (Tr. 30), had worked in the coal mines for more than 25 years (Tr. 18, 31, 47, 58), and had an eighth grade education (Tr. 45, 49, 54).

On May 20, 1975 the Administrative Law Judge awarded black lung benefits to Bohn holding that the medical evidence demonstrated the existence of "complicated" pneumoconiosis (Tr. 18). Subsequently, on May 12, 1976, the Appeals Council decided to review the Administrative Law Judge's decision (Tr. 72-86).

On August 23, 1979, the Appeals Council reversed the decision awarding benefits on the basis that Bohn did not have "complicated" pneumoconiosis and that his continued coal mine employment precluded a finding of total disability (Tr. 6-14). His administrative remedies exhausted, Bohn petitioned this court for a review of the Secretary's final determination. The parties have submitted briefs and presented oral argument, and the matter is now ripe for decision.

It is undisputed that...