Hatfield v. Secretary of Health and Human Services, 83-5283

• Decision Date: 06 September 1984
• Docket Number: No. 83-5283,83-5283
• Citation: 743 F.2d 1150
• Parties: Bernie HATFIELD, Plaintiff-Appellant, v. SECRETARY OF HEALTH and HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1150

743 F.2d 1150

Bernie HATFIELD, Plaintiff-Appellant, v. SECRETARY OF HEALTH and HUMAN SERVICES, Defendant-Appellee.

No. 83-5283.

United States Court of Appeals, Sixth Circuit.

Argued April 13, 1984.

Decided Sept. 6, 1984.

Albert A. Burchett, argued, Burchett, Burchett & Burchett, Prestonsburg, Ky., R. Roland Case, Pikeville, Ky., for plaintiff-appellant.

Louis De Falaise, U.S. Atty., Miles Franklin, Karl Anderson, argued, Asst. U.S. Attys., Lexington, Ky., for defendant-appellee.

Before MERRITT, MARTIN and KRUPANSKY, Circuit Judges.

KRUPANSKY, Circuit Judge.

Bernie Hatfield (Hatfield), a sixty-nine year old former coal miner, appealed the judgment entered by the United States District Court for the Eastern District of Kentucky affirming the denial of black lung benefits by the Secretary of Health and Human Services.

Hatfield filed his application for black lung benefits pursuant to the Federal Coal Mine Health and Safety Act, 30 U.S.C. Sec. 923(b) on December 14, 1971. This application was denied initially and upon reconsideration by the Secretary. Consequently, Hatfield was granted a de novo hearing before an Administrative Law Judge (A.L.J.). On September 5, 1975, the A.L.J. determined that Hatfield was not entitled to black lung benefits. The Appeals Council affirmed the A.L.J.'s decision on October 3, 1975.

Claimant's avenue of appeal lead him to the district court where the case was referred to a magistrate for review. The magistrate's report and recommendation deemed the medical evidence as conflicting and found the Secretary's conclusion that claimant did not suffer from pneumoconiosis reasonable. However, the magistrate noted that the A.L.J. considered the evidence only under the interim regulations (20 C.F.R. Sec. 410.490 et seq.) and failed to evaluate the data under the requisite permanent standards (20 C.F.R. Sec. 410.412 et seq.). The district court accepted the magistrate's suggestion that the case be remanded for consideration under the permanent standards and to specifically determine whether claimant's primary problem was a chronic respiratory condition or whether his breathing and other physical impairments were attributable solely to his obesity.

Subsequent to remand, additional evidence was obtained and the record reviewed in its entirety. The Secretary again concluded that claimant was ineligible for benefits. In pertinent part, the Council held:

... the Appeals Counsel (sic) can find no basis for finding that Claimant was disabled for coal mine employment on or before June 30, 1973, by virtue of a significant pulmonary or respiratory impairment. While the Council recognizes that the Claimant has experienced shortness of breath for several years, in addition to other seemingly minor breathing problems, it is apparent that much of his symptomatology is the result of his extreme obesity and heart disease rather than any significant lung disorder.

The district court upheld the Secretary's decision and the claimant appealed to this court.

In brief the record discloses that the claimant worked in the mines for at least twenty-three years after completing the eighth grade. His testimony before the A.L.J. reflected that in 1970 he could no longer perform his duties in the mines and "didn't have enough breath to get around." Claimant further stated that he was unable to climb stairs, or mow his lawn for many years, and felt as if he was smothering when attempting to sleep at night. He testified that he coughs frequently and continues to experience constant chest pains. Claimant's testimony also revealed that he is the recipient of a miner's pension, workers compensation and Social Security Disability Benefits.

The medical evidence accumulated in the record includes conflicting reports from thirteen physicians.

Dr. Arthur Levy, a Board certified radiologist ¹, submitted his interpretation of an X-ray taken on February 11, 1971 which concluded that "in the lower one-third of each lung there are a few irregular opacities of medium size indicating UICC classification of pneumoconiosis 1/lt." ² Dr. Levy also detected slight to moderate emphysema. A re-evaluation of this X-ray by Dr. Aaron Weinstein, also a Board certified radiologist, concluded that the film was negative for pneumoconiosis.

Dr. Evans, a Board certified internist, examined claimant on February 17, 1971. Claimant complained of chest discomfort and fluid retention. Dr. Evans' physical examination found the lungs clear and the breathing sounds not unduly faint considering the thickness of the thoracic wall. Ventilatory function studies disclosed a one second forced expired volume (FEV) of 2.2 and a maximum voluntary ventilation (MVV) of 66. Dr. Evans considered the MVV performance inconsistent and not suitable for clinical application. A chest X-ray was taken as part of the physical examination conducted by Dr. Evans. Dr. James Zimmerman, a radiologist, interpreted this X-ray and found the lungs to be clear. The final clinical diagnosis by Dr. Evans was (1) obesity, extreme, probably exogenous, with moderate restrictive pulmonary dysfunction; (2) bronchitis, chronic, aggravated by cigarettes, with mild, obstructive pulmonary dysfunction; and (3) osteoarthritis, mild to moderate, of lumbar spine and hips.

On September 30, 1971, claimant was X-rayed by Dr. A.H. Henderson, a Board certified family practitioner, who found pneumoconiosis category 2/2q. Dr. Henderson also indicated that claimant had severe heart disease aggravated by his pneumoconiosis which precluded any type of gainful employment.

Pulmonary function studies were performed on October 5, 1971, under the direction of Dr. B.E. Rowe, an anesthesiologist, who found an FEVI of 2.48 and an MVV of 160.9. Based on the foregoing medical evidence, a period of disability and disability insurance benefits were awarded claimant due to his obesity and moderate restrictive and obstructive pulmonary dysfunction.

Dr. Jesse D. Harris, a Board certified internist, reported examining claimant on February 3, 1972, and March 10, 1972 for complaints of malaise, chest pain, shortness of breath and a chronic cough. The physical examination reflected diminished breathing sounds without rales. A chest X-ray taken in conjunction with these examinations was reported by Dr. Harris as showing pneumoconiosis category 1/1p and minimal emphysema. Final diagnosis was pneumoconiosis category 1/1p.

Plaintiff was examined by Dr. P.L. Odom, a general practitioner, on April 8, 1972. Physical examination found plaintiff short of breath at rest. The breath sounds were coarse but no rales or rhonchi were detected. A chest X-ray taken on April 8 1972 was interpreted as showing fine, rounded opacities consistent with coal worker's pneumoconiosis category 2/2q. Dr. Odom considered claimant totally and permanently disabled due to coal worker's pneumoconiosis and hypertensive cardiovascular disease. In addition, Dr. Odom indicated that as a result of plaintiff's unusual breathlessness and marked fluid retention, cor pulmonale (heart strain resulting from disease affecting the lungs) should be considered in evaluating plaintiff's condition. The April 8, 1972 chest X-ray was reinterpreted by Dr. Philip Whittlesey, an internist with a subspecialty in pulmonary diseases, and Dr. M.W. Donner, a radiologist and gastroenterologist, both of whom found the film negative for pneumoconiosis.

Dr. Odom again examined plaintiff on June 5, 1973. Physical findings were as previously reported. A pulmonary function study disclosed a result of an FEV of 2.5 and an MVV of 68.8. The final diagnosis was (1) coal worker's pneumoconiosis category 2/2q, (2) possible cor pulmonale, (3) chronic bronchitis.

Additional pulmonary function studies were performed on April 7, 1973, under the direction of Dr. Thomas Jarboe, a Board certified internist with a subspecialty in pulmonary diseases. The reported results were an FEVI of 2.44 and an MBC (MVV) of 129.65. Plaintiff's height was shown as 73 inches. Dr. Jarboe's test results were reviewed by Dr. H. David Kerr, an internist with subspecialty in pulmonary diseases. Dr. Kerr evaluated the findings of April, 1973 with those of February, 1971. Dr. Kerr concluded that the 1971 test was unsatisfactory, but that the 1973 test showed an FEV of 2.44 and MVV of 130.

On June 26, 1978, Dr. Wilder P. Montgomery, a diplomat of the American Board of Internal Medicine with a subspecialty in pulmonary diseases and also a certified "A" reader ³, reviewed all the medical evidence submitted in this case. This evaluation was made in response to a request by the Appeals Council; however, Dr. Montgomery did not personally examine the claimant. He concluded that claimant suffered from mild restrictive and obstructive lung disease but that this impairment "does not contribute to a significant degree to claimant's disability."

The medical record also contains several reports by Dr. R.A. Salton, a general practitioner, who first examined claimant in August of 1970. Plaintiff complained of shortness of breath and swelling of the legs. His weight was 345 pounds. In a letter dated January 13, 1971, Dr. Salton reported that claimant had reduced his weight to about 300 pounds, but advised that claimant should continue to reduce to about 270 pounds. In a letter dated November 2, 1971, however, Dr. Salton noted that he had been unsuccessful in reducing the claimant's weight below 300 pounds. Dr. Salton made no determinations regarding plaintiff's disability or coal miner's pneumoconiosis.

Upon reviewing the medical evidence outlined above, the district court upheld the Secretary's determination that claimant did not meet the criteria for black lung disability and therefore was ineligible for benefits.

Hatfield's claim was filed prior to July 1, 1973, and is therefore subject to the interim adjudicatory rules and standards codified as 20 C.F.R. Sec. 410.490 et seq. Section 410.490 provides for a...