Dobbins v. Schweiker, 78-3100

• Decision Date: 20 April 1981
• Docket Number: No. 78-3100,78-3100
• Parties: Lauretta L. DOBBINS, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1354

641 F.2d 1354

Lauretta L. DOBBINS, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 78-3100.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 1980.

Decided April 20, 1981.

Frances L. Hancock, Hancock, Anthenien & Compton, San Francisco, Cal., for plaintiff-appellant.

Alan M. Grochal, Baltimore, Md., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ELY and GOODWIN, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge:

The sole question before this Court is whether the Secretary's decision denying benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972 (Act), 30 U.S.C. § 901 et seq., was supported by substantial evidence that Dobbins failed to marshal sufficient evidence to establish the existence of a total disability. ¹ We find that it was not and reversed.

Elbert Dobbins was a northern Alabama coal miner. He married the plaintiff-appellant in 1917. One morning in June, 1926, he was killed at the mine. He had been seated on tracks upon which loaded coal hoppers traveled, and was crushed when he could not scramble to safety from an onrushing coal car. Mrs. Dobbins, a seventy-nine year old widow who has never remarried, now seeks widow's benefits under the Act. §§ 411(a) and 412(a)(2) of the Act, 30 U.S.C. §§ 921(a) and 922(a)(2). Mrs. Dobbins would be eligible for benefits if at the time of her husband's death, he was "totally disabled," as defined by the Act, from pneumoconiosis. Pneumoconiosis, known to laymen as black lung, is a chronic dust-caused malady which ultimately creates a totally disabling respiratory or pulmonary impairment. § 402(b) of the Act, 30 U.S.C. § 902(b), 20 C.F.R. § 410.110(o).

Our inquiry focuses upon whether plaintiff met her burden of proof in establishing that Mr. Dobbins was totally disabled. Alternatively stated, is the Secretary's finding that she did not meet her burden supported by substantial evidence?

Mrs. Dobbins filed an application under the Act in July, 1971. There is no doubt from the factual record in this case that Mr. Dobbins was suffering to some degree from black lung when he died, but at the first hearing before an administrative law judge (ALJ), the claim was denied. The ALJ determined that Mrs. Dobbins failed to prove that her husband was totally disabled by the disease when he was killed. After the Act was first amended in 1972, ² Mrs. Dobbins reapplied, and the claim was again rebuffed. At a third administrative hearing in 1975, the ALJ affirmed this decision with a written opinion which was upheld by the Appeals Council. This constituted the final decision of the Secretary of Health, Education and Welfare, the officer charged with administering the program.

Mrs. Dobbins sought judicial review of this decision in the district court. In July, 1977, the district court remanded the case for the Secretary to obtain and review additional evidence on the total disability issue. This new hearing was held in October, 1977. Again the ALJ recommended that the claim be denied. The Appeals Council upheld that decision on April 11, 1978. The district court upheld this decision via summary judgment in favor of the Secretary, and this appeal followed. ³ In effect, this claim has been in the administrative-judicial system for nine years.

Despite the numerous hearings held, the evidence in favor of a finding of total disability is, as should be expected, sparse. Mr. Dobbins died 55 years ago. The physician Mrs. Dobbins unrefuted testimony, if believed, solidly supports a finding of total disability. Mrs. Dobbins testified that her husband had been treated for miner's asthma and severe shortness of breath. She stated he spit up mouthfuls of coal and was being treated by a doctor for these conditions, including coughing which became progressively worse. She testified that in the last two years prior to his death, her husband would return from work choked and exhausted, unable to do anything but lay down and cough. She testified that his earnings had fallen off as his illness grew, but that he continued to work in the mines because he had no alternative. She stated that he was unable to complete his work in the mines without continuous assistance from fellow miners, and there were days when he could not work at all. He was unable to complete his farm chores.

who treated him died long ago and left no medical records. Vandals destroyed the dispensary records pertaining to this victim. For these reasons, Mrs. Dobbins was forced to rely upon lay testimony, including her own, to establish her entitlement.

These statements were fully corroborated by the testimony of other persons of the deceased's generation who answered written interrogatories. They described Mr. Dobbins' health in the same manner. They mentioned his apparent black lung condition, coughing, his inability to complete his work, and the progressively debilitating nature of his illness. No contrary evidence was put forward. The ALJ did not indicate any doubts as to the veracity or memory of these witnesses.

STANDARDS OF REVIEW

Initially, the burden of proof rests with the person who files a claim with an administrative agency to show that the required conditions of eligibility are met. 20 C.F.R. § 410.410(b).

In Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972), the standard of review ⁴ to be applied was stated:

On appeal to this court, the findings of the Secretary are conclusive if supported by substantial evidence looking to the record as a whole. Harvey v. Richardson, 451 F.2d 589 (9th Cir. 1971), Rhinehart v. Finch, 438 F.2d 920 (9th Cir. 1971). Likewise, the statutory restriction upon our review applies to the inferences drawn from such facts, if they have a substantial basis in the record. Mark v. Celebrezze, 348 F.2d 289 (9th Cir. 1965).

The Supreme Court has held that "substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

At the outset it should be noted, however, that Mrs. Dobbins' claim was not decided on the basis of weighing contradictory or conflicting evidence as was the case in both Perales and Beane. There is no conflicting evidence in this case, only the information the plaintiff has brought forward. In all previous proceedings, judicial officers have merely weighed the information brought forward to decide whether the plaintiff had met her burden. In Perales, a government physician was vehemently opposed to the payment of benefits, classifying the respondent as a malingerer and phony. In this case no similar credibility determination was made to discredit the evidence put forward. The only question is whether the evidence presented was sufficient.

Section 411(b) of the Act, 30 U.S.C. § 921(b) delegates to the Secretary the authority to promulgate legal standards governing a finding that a miner suffered from pneumoconiosis. 20 C.F.R. § 410.414(b). See also 20 C.F.R. § 410.454(a). There are several methods by which the existence of the disease can be proven. It can be done by providing an x-ray, or the results of a biopsy or autopsy that medically proves the existence of the disease. 20 C.F.R. § 410.414(a). See also 20 C.F.R. § 454(a). It can be proven by showing that the deceased perished from a respiratory disease after working at least ten years in the mines. 20 C.F.R. § 410.462(a). It can also be proven by a combination of medical data and lay opinion when the miner died from pneumoconiosis, not an accident. 20 C.F.R. § 410.454(c). None of these methods can be applied here.

Recognizing that hard medical evidence would often be lacking, particularly where the miner had died some time ago, the Secretary created several presumptions of impairment which would entitle a claimant to recover benefits. One such presumption arises when it is shown that the miner has worked the requisite number of years in the mines, 20 C.F.R. § 410.414(b)(3) and (4), and proof is shown that the miner suffered from a totally disabling chronic respiratory impairment. 20 C.F.R. § 410.414(b)(1).

Mrs. Dobbins was able to establish that her husband satisfied the requirement of time in service to satisfy the first portion of this presumption. 20 C.F.R. § 410.414(b)(3) requires fifteen years' service in the mines. The ALJ apparently had some doubt as to whether this fifteen year provision was satisfied. A statement of the U. S. Steel Corporation disclosed that the deceased miner had worked at least 11 years in its mines. This was supplemented by the written affidavits already discussed. These affidavits indicate Mr. Dobbins began work in the mines at age thirteen or fifteen, and worked there until his death approximately twenty-five years later, albeit sporadically near the end of his life. The ALJ presented no further findings as to whether these affidavits were accepted or refuted. Reading the record as a whole, the Appeals Council conceded this longevity issue in its decision. ⁵

The Senate Report on the Black Lung Benefits Act of 1972 summarized the problems of the original legislation and stated:

The Black Lung Benefits Act of 1972 is intended to be a remedial law to improve upon the 1969 provisions so that the cases which should be compensated, will be compensated. In the absence of definitive medical conclusions there is a clear need to resolve doubts in favor of the disabled miner or his survivors.

U.S. Code Cong. & Adm. News 2305, 2315 (1972) (emphasis added). The spirit of the legislation requires us to resolve doubts in...