Gray v. Secretary of Health, Education & Welfare

• Decision Date: 30 September 1975
• Docket Number: No. 473012.,473012.
• Citation: 402 F. Supp. 1303
• Parties: William GRAY, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
• Court: U.S. District Court — Western District of Michigan

402 F. Supp. 1303

William GRAY, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

No. 473012.

United States District Court, E. D. Michigan, S. D.

September 30, 1975.

Alexander T. Ornstein, Pontiac, Mich., for plaintiff.

Ralph B. Guy, Jr., U. S. Atty., by Gwenn L. Carr, Asst. U. S. Atty., Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

KEITH, District Judge.

This is an action under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health, Education and Welfare denying the claimant-plaintiff's claim for "black lung" benefits under Title IV of the Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 921(a) and 922(a)(1).

The plaintiff, William Gray, was born in November 1914 and completed the ninth grade in school. He worked in the coal mines from 1937 until 1967 as a cutting machine operator, a loader, and a driller. At his hearing plaintiff testified that he left the coal mines in 1967 upon the advice of Dr. Herschel Bookhart (Tr. 7)¹ and from 1967 to 1969 he was employed finishing and cleaning machine parts. Thereafter he was employed as a machine operator and is currently employed as a drill press operator.

Plaintiff filed an application for benefits on June 26, 1972. The application was initially denied and on reconsideration by the Bureau of Disability Insurance of the Social Security Administration this denial was affirmed. Plaintiff requested a hearing on December 13, 1973. The administrative law judge, before whom plaintiff and a witness appeared, considered the case de novo and in an opinion dated May 17, 1974 found that plaintiff was not entitled to benefits. The administrative law judge's determination was approved by the Appeals Council on October 25, 1974 and thereby became the final decision of the Secretary of Health, Education and Welfare, hereinafter referred to as the Secretary. It is from this decision that plaintiff appeals.

The facts in this case are undisputed. The parties, however, disagree as to whether the Secretary's decision is supported by "substantial evidence" in compliance with 42 U.S.C. § 405(g). The plaintiff has moved for summary judgment reversing the Secretary's final order, and the Secretary has cross-moved for its affirmation. This court affirms.

Section 410.410(b) of the Social Security Administration Regulations

(hereinafter the Regulations) (20 CFR 410.410(b)) sets out the criteria plaintiff in the instant case must meet to receive benefits:

To establish entitlement to benefits on the basis of a coal miner's total disability due to pneumoconiosis, a claimant must submit the evidence necessary to establish: (1) That he is a coal miner, that he is totally disabled due to pneumoconiosis, and that his pneumoconiosis arose out of employment in the Nation's coal mines.

Pneumoconiosis is defined in 30 U.S.C. § 902(b) as a chronic dust disease of the lung arising out of employment in a coal mine.

In enacting the Black Lung Benefit Act of 1972 Congress provided that the Secretary, to permit prompt processing of the backlog of claims, would provide interim disability and evaluation criteria designed to be less stringent than the permanent criteria. Mr. Gray's claim was filed before July 1, 1973, thereby entitling him to the benefit of having his claim measured by the interim criteria as described in 20 CFR 410.490.

The interim criteria entitles a claimant to a rebuttable presumption of total disability due to pneumoconiosis if one of two medical requirements is met. The first requirement is that a chest roentgenogram (X-ray) or biopsy establishes the existence of simple pneumoconiosis.

No evidence of the results of a biopsy was submitted. The results of chest X-rays of the plaintiff were submitted. A chest X-ray taken October 31, 1972 was interpreted by Roger Crum, M.D. as being completely negative. A similar conclusion was reached by V. San Jose, M. D. The only contrary finding was by Richard Rideout, M.D. who read a chest X-ray taken on December 29, 1972 as revealing category "1/0" small opacity, positive for simple pneumoconiosis. However, this same chest X-ray was interpreted by Philip Whittlesey, M.D. as being "completely negative" and this interpretation was confirmed by Kenneth Kattan, M.D. Both Dr. Whittlesey and Dr. Kattan are certified as readers of coal miner's chest X-rays by the National Institute of Occupational Safety and Health, Public Health Service.

The second requirement of the interim criteria is applicable to a miner employed for at least 15 years in underground or comparable coal mine employment and prescribes that ventilatory function studies establish the presence of a chronic respiratory or pulmonary disease as demonstrated by values which are equal to or less than the values specified in a table contained in this section and which could be expected to result in death, or lasted or could be expected to last for at least 12 consecutive months. There was no specific finding by the administrative law judge that the claimant had been employed as a miner for at least 15 years. There was, however, testimony to that effect. This court shall assume, without finding, therefore, that the second requirement is applicable to the plaintiff here.

Medical examinations of Mr. Gray performed on November 30, 1972 and May 1, 1974 reported his height at 66 inches. For claimants whose height is 67 inches or less to become eligible for the statutory presumption of total disability Section 410.490 of the Regulations requires that their one second forced expiratory volume (FEV1) be equal to or less than 2.3 liters and that their maximum voluntary ventilation (MVV) be equal to or less than 92 liters per minute. Pulmonary function studies were performed on plaintiff November 30, 1972. The results reported plaintiff's FEV1 was 2.7 liters and his MVV was 80.0 liters per minute. Although claimant's MVV was within the statutory limits, his FEV1 was not. To be considered presumptively disabled both values must be equal to or less than the prescribed limits. The plaintiff thus does not qualify under either test set out by the interim adjudicatory regulations.

Plaintiff's counsel in his brief in support of his motion for summary judgment relies upon Mutter v. Weinberg, 391 F.Supp. 951 (W.D.Va.1975) in arguing that a finding of pneumoconiosis based on a reading of plaintiff's X-ray establishes a continuing presumption of pneumoconiosis. In Mutter, however, there was sufficient evidence to support a finding by the administrative law judge that the plaintiff in that case did have pneumoconiosis. The court in Mutter stated, at 954 that ". . . once pneumoconiosis is established the miner is entitled to the 410.490(b) presumption that he is totally disabled." It has not been established in this case that the plaintiff has pneumoconiosis. Mutter may, therefore, be distinguished.

Section 410.490 provides that where a miner does not establish total disability under the interim guidelines, he may establish total disability under the rules of the permanent criteria. We, therefore, turn to plaintiff's remaining alternatives.

Section 410.418 of the Regulations provides an irrebuttable presumption of total disability if a miner is suffering from a chronic dust disease of the lung which when diagnosed by chest roentgenogram yields one or more large opacities and would be classified as complicated pneumoconiosis. Plaintiff here, however, has not introduced evidence sufficient to support a finding of simple pneumoconiosis. A presumption of total disability based on a finding of complicated pneumoconiosis, thus, cannot arise.

Section 410.414 of the Regulations incorporates Sections 410.412, 410.422 and 410.426 and outlines various ways in which a claimant may prove the existence of pneumoconiosis....