Felthager v. Weinberger, No. 75--1183

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BREITENSTEIN, HILL and BARRETT; HILL
Citation529 F.2d 130
PartiesMarie L. FELTHAGER, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
Docket NumberNo. 75--1183
Decision Date20 February 1976

Page 130

529 F.2d 130
Marie L. FELTHAGER, Plaintiff-Appellant,
v.
Caspar W. WEINBERGER, Secretary of Health, Education and
Welfare, Defendant-Appellee.
No. 75--1183.
United States Court of Appeals,
Tenth Circuit.
Argued Nov. 10, 1975.
Decided Feb. 6, 1976.
Rehearing Denied Feb. 20, 1976.

Page 131

James R. Collins, Trinidad, Colo., for plaintiff-appellant.

Barbara L. Herwig, Washington, D.C. (Rex E. Lee, Asst. Atty. Gen., James L. Treece, U.S. Atty., Ronald R. Glancz and Larry R. O'Neal, Dept. of Justice, on the brief), for defendant-appellee.

Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.

HILL, Circuit Judge.

This is another of the many recent cases in which the survivor of a deceased coal miner has sought judicial review of the denial of 'Black Lung Benefits' provided in 30 U.S.C. § 901 et seq. Appellant, Marie L. Felthager, is the widow of Joseph Felthager who died in 1965 after working over 44 years in underground coal mines. A hearing before an administrative law judge resulted in a determination that appellant was entitled to benefits. On its own motion, the Appeals Council of the Social Security Administration reviewed the claim and denied benefits. This became the decision of the Secretary and appellant properly sought judicial review under 42 U.S.C. § 405(g). The district court found the Secretary's decision was supported by substantial evidence and granted summary judgment in favor of appellee.

Appellant meets all the personal eligibility requirements for a widow seeking benefits as stated in 20 C.F.R. § 410.210. The issues in this appeal concern whether she has proved the additional requirement that the deceased miner either (a) died of pneumoconiosis (black lung) or (b) was totally disabled due to pneumoconiosis at the time of his death. Benefits were denied on the grounds she had proved neither alternative. If the Secretary's decision is supported by substantial evidence, we must affirm the judgment. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Page 132

Proving death or total disability due to pneumoconiosis is not easy. To aid claimants with their difficult burden of proof, several presumptions have been included in the statutes and regulations. In this case, however, we are primarily concerned with only one of these presumptions. Appellant could not produce the medical evidence necessary to raise any of the presumptions contained in 20 C.F.R. §§ 410.418, 410.458, and 410.490. Neither could she establish the presumption of death due to pneumoconiosis under 20 C.F.R. § 410.462 because the miner's death was not 'medically ascribed' to a chronic lung disease. 1 If appellant is to prevail it must be under the standards of 20 C.F.R. § 410.414 or § 410.454.

Section 410.414(b) provides:

(1) Even though the existence of pneumoconiosis is not established as provided in paragraph (a) of this section (x-ray, biopsy or autopsy), if other evidence demonstrates the existence of a totally disabling chronic respiratory or pulmonary impairment . . ., it may be presumed, in the absence of evidence to the contrary . . ., that a miner is totally disabled due to pneumoconiosis at the time of his death.

Section 410.454(b) raises the same presumption relative to finding the miner's death was due to pneumoconiosis. 2 Both sections provide the presumption 'may be rebutted only if it is established that the miner did not have pneumoconiosis.'

The Secretary found the evidence established that the deceased did not have pneumoconiosis and that he did not have any totally disabling respiratory impairment. We doubt whether there is substantial evidence establishing that the deceased did not have pneumoconiosis. However, we must affirm the judgment on the basis of the evidence of total disability. Because appellant has not shown the deceased was totally disabled due to chronic respiratory impairment, the presumption that the impairment was pneumoconiosis does not arise.

Appellant's husband died on July 28, 1965, one day before his sixty-first birthday. While working at his job as an assistant foreman at the Allen Mine in Weston, Colorado, the deceased became so exhausted from shortness of breath that he had to sit down. He sat on the shuttle car tracks and was run over by the car. He died a few hours later. The death certificate listed the immediate cause of death as a compound fracture of the left leg, fractured pelvis, and pulmonary edema.

There is no doubt the deceased miner suffered from severe respiratory impairment, beginning about 15 years before his death and growing continuously worse, especially during the last five years of his life. There was evidence from the deceased's wife and 12 of his co-workers that he suffered extreme breathing difficulties and coughed a lot; occasionally he would cough up phlegm with black streaks in it. Four doctors who had examined the deceased during his life had all concluded he had severe respiratory impairment which was possibly black lung or pneumoconiosis. One of them stated the deceased had black lung 'without question.'

The evidence the deceased did not have pneumoconiosis came from two doctors who examined an apparently inconclusive autopsy and found 'there is no anatomic evidence of blacklung.' One of them added 'From this information,

Page 133

this patient did not have 'black lung' disease' (emphasis added). Neither doctor for the Secretary based his opinion on actual examination of the deceased. As we stated before, we do not decide the issue, but we doubt whether this could be considered substantial evidence establishing the nonexistence of pneumoconiosis. See Martin v. Secretary of Department of Health, Education & Welfare, 492 F.2d 905 (4th Cir. 1974); Landess v. Weinberger, 490 F.2d 1187 (8th Cir. 1974).

Concerning the issue of total disability the...

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15 practice notes
  • U.S. Pipe and Foundry Co. v. Webb, No. 77-2713
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 18, 1979
    ...459, 467, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968); United States Steel Corp. v. Bridges, 582 F.2d 7 (5th Cir. 1978); Felthager v. Weinberger, 529 F.2d 130 (10th Cir. 1976). U.S. Pipe contends that the hearing officer's decision and order are arbitrary, irrational, and not supported by substanti......
  • Bohn v. Harris, Civ. No. C 79-0574.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • June 6, 1980
    ...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. § 7......
  • Padavich v. Mathews, No. 76-2061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 24, 1977
    ...evidence. 4 42 U.S.C. § 405(g), incorporated by reference in 30 U.S.C. § 923(b) (1970 & Supp. V 1975); Felthager v. Weinberger, 529 F.2d 130, 131 (10th Cir. 1976). Mindful of the limited scope of our review, we turn to an examination of the The medical evidence is contradictory and inconclu......
  • Hanna v. Califano, No. 76-2141
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 30, 1978
    ...issue before us on appeal is whether the Secretary's decision is supported by substantial evidence. See Felthager v. Weinberger, 10 Cir., 529 F.2d 130, 131; Trujillo v. Richardson, 10 Cir., 429 F.2d 1149, 1150. Substantial evidence has been defined as "such relevant evidence as a reasonable......
  • Request a trial to view additional results
15 cases
  • U.S. Pipe and Foundry Co. v. Webb, No. 77-2713
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 18, 1979
    ...459, 467, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968); United States Steel Corp. v. Bridges, 582 F.2d 7 (5th Cir. 1978); Felthager v. Weinberger, 529 F.2d 130 (10th Cir. 1976). U.S. Pipe contends that the hearing officer's decision and order are arbitrary, irrational, and not supported by substanti......
  • Bohn v. Harris, Civ. No. C 79-0574.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • June 6, 1980
    ...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. § 7......
  • Padavich v. Mathews, No. 76-2061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 24, 1977
    ...evidence. 4 42 U.S.C. § 405(g), incorporated by reference in 30 U.S.C. § 923(b) (1970 & Supp. V 1975); Felthager v. Weinberger, 529 F.2d 130, 131 (10th Cir. 1976). Mindful of the limited scope of our review, we turn to an examination of the The medical evidence is contradictory and inco......
  • Hanna v. Califano, No. 76-2141
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 30, 1978
    ...issue before us on appeal is whether the Secretary's decision is supported by substantial evidence. See Felthager v. Weinberger, 10 Cir., 529 F.2d 130, 131; Trujillo v. Richardson, 10 Cir., 429 F.2d 1149, 1150. Substantial evidence has been defined as "such relevant evidence as a reaso......
  • Request a trial to view additional results

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