Carroll v. Califano

• Decision Date: 22 April 1980
• Docket Number: No. 78-3022,78-3022
• Parties: Bertha CARROLL, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1157

619 F.2d 1157

Bertha CARROLL, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 78-3022.

United States Court of Appeals Sixth Circuit.

Submitted Feb. 6, 1980.

Decided April 22, 1980.

Frank J. Neff, Barkan, Barkan & Neff, Columbus, Ohio, William M. Culbert, Culbert & Adkins, Toledo, Ohio, for plaintiff-appellant.

William D. Beyer, U. S. Atty., Patrick J. Foley, Asst. U. S. Atty., Toledo, Ohio, Gabriel L. Imperato, Chicago, Ill., for defendant-appellee.

Before KEITH and JONES, Circuit Judges and PHILLIPS, Senior Circuit Judge.

KEITH, Circuit Judge.

Appellant Bertha Carroll appeals from the judgment of the District Court, Northern District of Ohio, the Honorable Nicholas J. Walinski, affirming the Secretary's denial of black lung benefits to claimant on account of her deceased miner husband's alleged black lung disability. After reviewing the evidence submitted by claimants ¹ in support of their application for benefits, the Secretary of Health, Education and Welfare concluded that Mr. Millard Carroll was not disabled due to pneumoconiosis and was therefore not entitled to benefits.

In addition to claiming that the Secretary's decision is not based on substantial evidence, appellant Carroll alleges that the district court erred in denying her motion to remand and in denying her an opportunity to argue the merits of her claim by dismissing her complaint on the Secretary's motion for summary judgment. The basis of appellant's motion in the district court to remand to the Secretary was the submission of additional authority in support of her claim. The additional authority was in the form of a letter from the physician who had conducted the pulmonary function studies on Mr. Carroll in December, 1974 stating that he considered the tests to be "valid tests run in a correct and competent manner." The significance of this statement by the treating physician is that it completes the requirements contained in 20 C.F.R. § 410.430, entitling claimant to a presumption of disabling pneumoconiosis upon a minimum showing of forced expiratory volume in one second (FEV 1 ) and maximum voluntary ventilation (MVV). ² Prior to the submission of this statement, it appears from the record that the results of the December, 1974 pulmonary function study were not considered in the determination of Mr. Carroll's disability. ³

I

On January 27, 1972, the original claimant, Millard Carroll, filed an application for black lung disability benefits under Title IV of the Federal Coal Mine Health & Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. In his application for black lung benefits, Mr. Carroll stated that he was born on September 5, 1905, completed the eighth grade in school, and had worked in coal mines for 44 years. He described his disability as "Tightness in lungs difficulty breathing shortwinded." His application further reflects that at that time, he was married, with a minor dependent child and had never made application for workmen's compensation benefits based on pneumoconiosis or other occupational disease.

At the hearing, Mr. Carroll testified that he began working in coal mines full time in July, 1926, and that his work continued until he retired on September 1, 1970. He described his last coal mining job as foreman, and indicated that he became unable to work because of difficulty in breathing, shortness of breath, and lack of endurance. Mr. Carroll further testified that his breathing had become progressively worse and that he had not done any work since leaving coal mining.

The Social Security Administration Bureau of Disability Insurance denied this application on April 2, 1973, and again upon reconsideration on December 14, 1973. The reason given for the denial was that the evidence submitted by Mr. Carroll failed to show that he had pneumoconiosis or a severely disabling chronic lung impairment that could be presumed to be due to pneumoconiosis.

Mr. Carroll then filed a request for a hearing on June 7, 1974, and on January 17, 1975 a de novo hearing was held before an Administrative Law Judge (ALJ) in Pikeville, Kentucky. Mr. Carroll appeared with counsel and gave testimony in support of his claim to supplement the medical evidence submitted. The medical evidence considered by the ALJ in his determination of claimant's disability, as indicated in his opinion, was the following:

and 1) Pulmonary function studies, conducted on September 19, 1972 and again on December 27, 1974. The conducting physician's impression of the 1972 study was "Restrictive pulmonary disease, moderate FEV 1 2.15 liters, slightly below table, MVV 102 liters, excess of table." The 1974 study indicated "both a restrictive and obstructive defect. The latter is more severe and is unaffected by bronchodilators." FEV 1 value 2.15 liters, MVV value 50.8 liters; ⁴

and 2) A statement by a physician who examined Millard Carroll on January 3, 1973 that Carroll "does not appear severely impaired;"

and 3) A chest x-ray, taken on February 19, 1972, read as negative for pneumoconiosis by three physicians, two of whom were certified "B" readers;

and 4) A chest x-ray, taken on June 25, 1973, and read by four physicians. Two physicians found simple pneumoconiosis and two certified "B" readers read the film negative for pneumoconiosis.

In his testimony, Millard Carroll stated that he worked until the last working day in August of 1970, just prior to reaching his sixty-fifth birthday on September 5, 1970. He also testified that he could not work any longer because he was short-winded, that he had difficulty sleeping, and that he had not done any work since leaving the coal mine. The ALJ credited an examining physician's statement that Carroll ". . . has retired after 49 years in the mines and has no intention of performing any coal mine work."

After considering the foregoing evidence the ALJ concluded that Mr. Carroll's retirement was not the result of his being rendered wholly unable to do his coal mine work. Although the ALJ found evidence to indicate that Carroll may have experienced some breathing difficulties which "may have caused him some discomfort, reduced his efficiency, or interfer(ed) to some extent with the performance of his mining work," he concluded that such impairment was not sufficiently severe to prevent the continuance of his work. The ALJ correctly stated the applicable law:

"It is not only required that a miner should have been employed in coal mine work for a specified minimum number of years or for a long period of time, but also that the existence of a severe chronic respiratory or pulmonary disease must be established by competent and credible evidence.

It is clear from the Act and Regulations that benefits are to be awarded to only those miners whose chronic respiratory or pulmonary diseases are of such severity as to render them wholly unable to do their mine work or other comparable and gainful work. The mere existence of some impairment due to chronic respiratory or pulmonary disease is not sufficient.

Although the evidence establishes the miner's coal mining employment for at least 35 years, the existence of a chronic pulmonary or respiratory disease of the severity envisioned by the Act and the Regulations is not established. Therefore, this requisite factor not being established, the presumptions cannot be applied in this case."

On April 19, 1975, the claimant filed a request for review by the Appeals Council of the March 14, 1975 decision of the Administrative Law Judge. On May 9, 1975, subsequent to filing this request, claimant Millard Carroll died, and his wife, Bertha Carroll, pursued the claim on the deceased miner's behalf. The Appeals Council noted that while the evidence of record included results of the December 27, 1974 pulmonary function studies, the ALJ had not discussed these studies in his decision. The Appeals Council granted Carroll's request for review in order to consider the results of the 1972 and 1974 pulmonary function studies, as well as the additional evidence occasioned by Millard Carroll's death.

For an individual of Millard Carroll's height, 70 inches, who has at least 10 years of coal mine employment, the table contained in Section 410.490 of the Regulations requires values equal to or less than a FEV 1 (Forced Expiratory Volume in one second) of 2.5 liters and a MVV (Maximum Voluntary Ventilation) of 100 liters in order to establish the presumption of total disability on the basis of pulmonary function studies. The December 27, 1974 studies revealed an FEV 2 value of 2.086 liters and a MVV value of 50.8 liters for Mr. Carroll. While the Appeals Council noted that these values appeared to have met the regulatory criteria for entitlement, it found them unacceptable for establishing a presumption of pneumoconiosis for two reasons. First, the studies did not contain the necessary information specified in Section 410.430 of the Regulations, which requires a statement from the conducting physician concerning the miner's ability to understand the directions and the extent of his cooperation in performing the test. Secondly, the 1974 studies were performed nearly eighteen months after the date that the Social Security Administration last had jurisdiction of the black lung benefits program.

Additional evidence considered by the Appeals Council consisted of Mr. Carroll's death certificate and the autopsy report. The death certificate revealed that Mr. Carroll's death was due to generalized peritonitis and gangrene of the sigmoid colon. A secondary condition of pulmonary congestion was noted as well. The autopsy report revealed no pneumonic consolidations in the lungs, while areas of emphysema and atelectasis were noted. Significantly, the autopsy report did indicate bilateral pneumoconiosis.

Because of this positive indication, the Appeals Council submitted the autopsy slides for further examination by a...