Burchett v. Mathews, 76-2667

• Decision Date: 23 May 1978
• Docket Number: No. 76-2667,76-2667
• Citation: 575 F.2d 1189
• Parties: Leven BURCHETT, Plaintiff-Appellant, v. F. David MATHEWS, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1189

575 F.2d 1189

Leven BURCHETT, Plaintiff-Appellant, v. F. David MATHEWS, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 76-2667.

United States Court of Appeals Sixth Circuit.

Argued April 12, 1978.

Decided May 23, 1978.

Albert A. Burchett, Burchett, Burchett & Burchett, Prestonsburg, Ky., for plaintiff-appellant.

Eldon L. Webb, U. S. Atty., Richard E. Duerr, Jr., William M. Brown, Asst. U. S. Attys., Lexington, Ky., for defendant-appellee.

Before WEICK, EDWARDS and LIVELY, Circuit Judges.

PER CURIAM.

Claimant Burchett appeals from denial of black lung disability benefits claimed under 30 U.S.C. §§ 901 et seq. (Supp. V 1975). His claim was rejected by the Administrative Law Judge, who held that in spite of undisputed testimony that claimant had worked 40 years as a miner, had left work in the mines in 1963 due to shortness of breath, and in 1975 at the time of the hearing, was 69 years old, plaintiff was not entitled to any presumption of total disability due to silicosis under 30 U.S.C. § 921(c)(4) (Supp. V 1975) and 20 C.F.R. §§ 410.490(b)(1)(i)-(ii)(3) (1977).

The facts as found by the Administrative Law Judge, as distinguished from his evaluation of the evidence, are stated in full as follows:

SUMMARY OF THE EVIDENCE

The claimant testified that he is 69 years of age and worked for about 40 years as a miner. Most of his work was done inside the mines in a dusty environment. He last worked in the mines in 1963 when he became short of breath and was unable to get a job in the mines. He stated that he coughs, smothers, gets short of breath, and has trouble walking and sleeping because of his condition. A copy of the miner's pension card has been included in the record to establish that he worked as a coal miner for at least 20 years. Evidence of record shows that he has not worked since 1967.

A chest x-ray made on September 2, 1970, has been interpreted by Dr. Arthur E. Levy, a Board-certified radiologist with a subspecialty in therapeutic radiology and a certified reader of coal miner's chest x-rays, as showing pneumoconiosis 1/1 § or t (Exhibit 11). This x-ray was reread twice by Dr. Paul S. Wheeler, a Board-certified specialist in radiology and a certified "B" reader of coal miner's chest x-rays. On January 5, 1973, Dr. Wheeler reread the film as showing pneumoconiosis type 0/1 p with probable old tuberculosis (Exhibit 13); and on September 16, 1973, he interpreted this film as being completely negative (Exhibit 17). Dr. Myron Moskowitz, a Board-certified specialist in radiology and a certified "B" reader of coal miner's chest x-rays interpreted this film as showing opacities suggestive of active clinically significant tuberculosis and pneumoconiosis 0/0 (Exhibit 15). In 1974 this same chest x-ray was reread by both Dr. Maria A. Strong and Dr. Joseph G. Rosenstein. Dr. Strong, a Board-certified specialist in radiology and a certified "B" reader of coal miner's chest x-rays, interpreted the film as being completely negative (Exhibit 18). Dr. Rosenstein, a specialist in radiology and a certified "B" reader of coal miner's chest x-rays, interpreted the film as being negative for pneumoconiosis but as showing opacities suggestive of active clinically significant tuberculosis (Exhibit 20).

The claimant performed a ventilatory function study on October 4, 1970, and the results were interpreted by Dr. Richard P. O'Neill, a specialist in pulmonary diseases as being a normal study. The values recorded showed the claimant to be 66.5 inches tall with an FEV-1 value of 3.07 liters and an MBC (MVV) value of 101.42 liters per minute (Exhibit 23).

On March 29, 1971, the claimant was examined by Dr. Lowell D. Martin, a Board-certified specialist in family practice and a certified...