Gober v. Matthews, 77-1499
| Decision Date | 17 March 1978 |
| Docket Number | No. 77-1499,77-1499 |
| Citation | 574 F.2d 772 |
| Parties | Anthony GOBER, Appellant, v. David MATTHEWS, as Secretary of Health, Education and Welfare. |
| Court | U.S. Court of Appeals — Third Circuit |
Nicholas Panco, Saint Clair, Anthony J. Miernicki, Shenandoah, Pa., for appellant.
David W. Marston, U. S. Atty., Walter S. Batty, Jr., William J. McGettigan, Asst. U. S. Attys., Philadelphia, Pa., for appellee; Stephanie W. Naidoff, Regional Atty., Fred J. Marinucci, Asst. Regional Atty., Roberta Hess, Legal Asst., Dept. of Health, Ed. and Welfare, Philadelphia, Pa., of counsel.
Before ADAMS, BIGGS and WEIS, Circuit Judges.
This appeal challenges the failure to award black lung benefits to a sixty-five year old former coal miner. Because it is not clear whether the administrative law judge properly based his decision on substantial evidence, we remand the case for a redetermination regarding eligibility.
Anthony Gober, born on December 3, 1912, began work in a coal mine in 1928. From that time until 1955, except for twenty-two months of military service, he was employed as a miner. In 1955, Gober began work with the Aluminum Company of America as a press helper. He testified that one of the reasons he left the mines was that he experienced difficulty in breathing.
In April 1972, Gober was hospitalized with a myocardial infarction and, on physicians' orders, did not return to work. Based on an application filed in August of 1972, Gober was awarded Social Security disability benefits in January of 1973 for his heart condition.
Also, in August of 1972, Gober filed a claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, 1 alleging that he was disabled because of pneumoconiosis. His application was subsequently supported by the opinion of Dr. William Dzurek, his physician. On May 10, 1973, Gober's claim was denied by the Secretary of Health, Education and Welfare. Six days later, a workman's compensation referee of the Commonwealth of Pennsylvania adjudicated Gober totally and permanently disabled because of anthracosilicosis resulting from his prior employment in coal mines.
On December 17, 1975, after a hearing, an administrative law judge assigned to the Department of Health, Education and Welfare, affirmed the denial of Gober's claim, stating that Gober's disability did not arise from pulmonary difficulties, but from heart disease. The decision by the administrative law judge was upheld, successively, by the Appeals Council and by the District Court for the Eastern District of Pennsylvania. An appeal from the affirmance by the district court is before us.
Under the Black Lung Benefits Act of 1972, 2 benefits are to be available to miners who are totally disabled by pneumoconiosis or an associated lung disease. Such benefits may be attained, under current regulations, in one of three ways. The first, and most direct of these routes, allows a claimant to prove his entitlement by:
(a) submitting X-rays which can be diagnosed as disclosing complicated pneumoconiosis, 3 a totally disabling disease; or
(b) submitting X-rays which "establish" the existence of pneumoconiosis, 4 which, if the claim was originally asserted before July 1, 1973, raises the rebuttable presumption that the miner was totally disabled due to pneumoconiosis. 5
The second option, if a claimant has worked for more than fifteen years in coal mines and has filed his claim by July 1, 1973, is to establish the existence of a "totally disabling respiratory disease" by way of ventilatory studies. 6 If the "forced expiration volume" (FEV) and "maximum voluntary ventilation" (MVV) values fall below standards stated in the regulations, the miner is presumed to be totally disabled and therefore entitled to benefits, if the presumption is not rebutted.
A third possibility, if the ventilatory test results are not sufficiently low and X-rays are negative, permits a miner who has worked fifteen years in the mines to "nevertheless" establish entitlement to benefits 7 by proving the existence of a "totally disabling chronic respiratory ailment" presumed to be pneumoconiosis. 8 Such proof may be adduced by the submission of "other relevant evidence," "establishing" that the claimant was subject to a chronic respiratory or pulmonary ailment, the severity of which prevented him from engaging in gainful employment comparable to that which he performed in the mines. 9 Upon such a showing, the miner is presumed to be totally disabled because of pneumoconiosis a presumption which may be rebutted only by a demonstration that the miner does not have pneumoconiosis. 10
Gober sought to utilize each of the three courses prescribed by the regulations.
Although Gober submitted six X-rays which were construed to indicate pneumoconiosis, the administrative law judge chose to credit other readings of five of those films that indicated no pneumoconiosis. We have some reservations regarding the administrative law judge's decision to credit equivocal negative readings by Dr. Milton Friedlander instead of emphatic positive readings by Dr. Dzurek of X-rays taken by Dr. Dzurek in May 1973, and regarding the rejection of uncontradicted positive readings by Dr. Dzurek in August 1975. These reservations are augmented by our puzzlement at the reference by the administrative law judge to only "five X-rays" contained in the record 11 when actually six were entered into evidence. Nonetheless, we cannot overturn as unsupported by substantial evidence the determination by the administrative law judge that the X-rays failed to "establish" pneumoconiosis. 12
Similarly, Gober submitted three successive ventilatory studies that yielded progressively lower results. The first study contained readings that were close to the values from which disability could be presumed; the second two were substantially below such values. 13 The administrative law judge chose to credit the first ventilatory study, but to reject the other two, on the ground that the latter studies employed a "poor or unacceptable technique" in that they failed to comply with the procedures required by regulations. Again, we cannot say that the administrative law judge's decision was not within his discretion, or was unsupported by substantial evidence.
Gober also attempted to utilize the third route to benefits by tendering "other relevant evidence" to demonstrate that he was totally disabled as a result of a respiratory disease. Given his twenty-five years of work in coal mines, such a demonstration would have entitled him to a presumption that he qualified for benefits. Gober testified that he was chronically short of breath, subject to extended coughing spells, experienced severe chest congestion, had difficulty walking up grades or steps, and expectorated "dark grey" phlegm. He stated that he was unable to engage in activities such as repairing automobiles or gardening, which he formerly enjoyed. Gober also commented that he was unable to work after his heart attack "because of his lungs." Significantly, all of this evidence by Gober was unrebutted.
Counsel for Gober presented the testimony of Dr. Dzurek, a physician specializing in lung diseases of miners, who had examined Gober in May 1973, and August 1975. Dr. Dzurek stated that on both occasions, based on X-rays, ventilatory function studies, vital capacity studies and clinical observations, he had concluded that Gober suffered from pneumoconiosis and emphysema, and consequently was totally disabled. As a result of his clinical evaluation, Dr. Dzurek also testified that Gober had fully recovered from his earlier heart attack. Under questioning by the administrative law judge, Dr. Dzurek reiterated this last opinion and stated that he predicated it on blood-pressure readings before and after exercise by Gober which indicated a "well-functioning heart," as well as a general clinical examination.
The administrative law judge concluded that, while "some degree of lung disfunction is clearly evidenced," Gober's disability was attributable to his heart condition, and therefore not compensable under the Act. We have grave doubts whether such resolution of Gober's application was properly supported by substantial evidence.
Our task in reviewing the administrative law judge's determination is made more difficult by the fact that he did not follow the format which we suggested in Baerga v. Richardson. 14 Nonetheless, as the Fourth Circuit has noted, "unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's 'duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.' " 15 We must therefore explore the somewhat discursive opinion of the administrative law judge to ascertain his reasons for rejecting the conclusion of Dr. Dzurek, the sole examining physician to testify.
1. The first evaluation of evidence, on page 3 of the administrative law judge's opinion, 16 stresses a letter of Dr. Leo Corazza, who examined Gober in December of 1972. The letter stated that Gober was hospitalized in 1972 with heart disease, and that such disease continued. The administrative law judge also referred to the Health, Education and Welfare determination in January of 1973 that Gober was entitled to Social Security disability benefits on the basis of "arteriosclerotic heart disease, myocardial infarction and coronary insufficiency." These, the administrative law judge seemed to suggest, should be entitled to greater weight than the testimony of Gober and his physician, Dr. Dzurek, that the claimant was disabled because of pneumoconiosis.
There are several difficulties with this analysis. First, 20 C.F.R. § 410.470 explicitly declares that decisions...
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...work twelve months. Finally, the ALJ may reject a treating source opinion with an opinion from a non-treating source. Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978) ("an administrative law judge is free to...choose between properly submitted medical opinions, he is not free to set his ......
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