Hubbard v. Califano, 77-1718

• Decision Date: 24 August 1978
• Docket Number: No. 77-1718,77-1718
• Citation: 582 F.2d 319
• Parties: Abbott HUBBARD, Appellant, v. Joseph A. CALIFANO, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 319

582 F.2d 319

Abbott HUBBARD, Appellant, v. Joseph A. CALIFANO, Secretary of Health, Education and Welfare, Appellee.

No. 77-1718.

United States Court of Appeals Fourth Circuit.

Argued Feb. 7, 1978.

Decided Aug. 24, 1978.

Richard W. Crews, Beckley, W. Va. (E. Carl Meadows, Jr., Meadows & Crews, Beckley, W. Va., on brief), for appellant.

Phillip I. Morse, Special Asst. U. S. Atty., Baltimore, Md. (John A. Field, III, U. S. Atty., Charleston, W. Va., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, WIDENER and HALL, Circuit Judges.

K. K. HALL, Circuit Judge.

I. BASIC ENTITLEMENT

The court adopts and incorporates its discussion of basic entitlement found in Part I of Petry v. Califano, 577 F.2d 860 (4th Cir. 1978). Claimant here relies on the presumption found in 20 C.F.R. § 410.414(b), as did the claimant in Petry, and here also, the Secretary does not challenge the facts that claimant is or was a coal miner, that pneumoconiosis, if found to exist, arose out of the claimant's coal mine employment, ¹ and that for the purposes of the § 410.414(b) presumption, claimant meets the fifteen-year requirement.

II. THE § 410.414(b) PRESUMPTION

The court further adopts and incorporates its discussion of the 20 C.F.R. § 410.414(b) presumption found in Part II of Petry.

III. THIS APPEAL

Although acknowledging that plaintiff meets the fifteen year requirement of the presumption, the Secretary denies that claimant is totally disabled due to a chronic respiratory impairment. A review of the evidence, in light of our analysis of the presumption as found in Petry, is necessary to determine if the Secretary's decision was based on substantial evidence. ²

1. X-rays

The Act and regulations prohibit the denial of a claim for benefits solely on the basis of negative X-rays. 30 U.S.C. § 923(b); 20 C.F.R. § 410.414(c). Furthermore, it is through the presentation of evidence other than X-rays, biopsies or autopsies that the presumption of § 410.414(b) is raised, and it is likewise by a finding that the other evidence does not demonstrate a totally disabling chronic respiratory impairment that the existence of the presumption is defeated. Therefore, inconclusive or contradictory results of the X-rays inure to the benefit of neither party.

2. Pulmonary function studies

The record reveals that five pulmonary function studies were performed, four of which apparently were found credible by the Secretary. ³ Under the interim regulations, 20 C.F.R. § 410.490(b), a claimant with at least fifteen years of coal mine employment will be presumed totally disabled due to pneumoconiosis if pulmonary function studies reveal the presence of a chronic respiratory or pulmonary disease, as demonstrated by values specified in the regulations. ⁴ Plaintiff does not rely on the presumption created in the interim regulations, but merely uses a comparison of his pulmonary function study values with those in the table as persuasive evidence of his total disability. The height of the claimant and results of the tests administered to the claimant were as follows:

The values in the first test apparently come within the table values, ⁵ but as noted above, plaintiff does not rely on the results of this test for recovery; however, these results, along with the examining physician's findings of a mild restrictive defect and a disproportionately low MVV are relevant other evidence of total disability under § 410.414(c). The other three tests were interpreted by claimant's physicians as either normal, or indicative of minimally restrictive ventilatory insufficiency. Although this evidence does not compel an award of benefits, the undisputed testimony of claimant's physicians is relevant in proving a totally disabling chronic respiratory impairment. ⁶

3. Blood-gas tests

The record reveals that blood-gas tests were performed in 1972 and 1974. The 1972 tests produced values demonstrating normal to minimal ventilatory insufficiency before exercise, and abnormal ventilatory response with exercise. A consultant to the Secretary reviewed this test as totally negative. The 1974 tests resulted in values extremely close to those provided in the regulations which would entitle a claimant with pneumoconiosis to a presumption of total disability, ⁷ and the physician who administered this test concluded that claimant had a marked disturbance in the ventilation to profusion relationship, indicating pneumoconiosis. The Secretary does not directly rebut the results of this later blood-gas test, or the physician's diagnosis resulting therefrom, except to say that this doctor's findings are inconsistent with other diagnostic reports.

4. Physical examination

In addition to or in conjunction with the tests outlined above, claimant was examined personally on several occasions by five doctors, one having been his personal physician for several years. Four of the five doctors found claimant had black lung and two expressly found claimant disabled. Although basing their conclusions in part on the disputed tests outlined above, they also had the benefit of examining personally the claimant and evaluating his condition. After performing an exercise test for one physician, whose testimony the Secretary excluded for no apparent reason, claimant was noted to be pale, sweating and wheezing. The same physician also found the existence of rales and other subjective symptoms of a respiratory impairment, the absence of which the Secretary relied on in his denial of an award to claimant.

Most importantly, the claimant's treating physician, after observing claimant personally during a week of hospitalization, after conducting several tests, and after reviewing the entire record, concluded that claimant had a marked disturbance in the ventilation to perfusion relationship, as demonstrated by the 1974 blood-gas test and his general observation of the claimant. This court places great reliance on a claimant's treating physician, Martin v. Secretary, 492 F.2d 905 (4th Cir. 1974), especially where the Secretary neither has the claimant examined nor medically rebuts the tests upon which claimant's physicians rely.

5. Claimant's own testimony

Although "primary consideration is given to the medical severity of the individual's pneumoconiosis," 20 C.F.R. § 410.422, the testimony of the claimant is relevant in proving a totally disabling respiratory impairment, and it was not rebutted by the Secretary. Claimant's own testimony revealed shortness of breath, low tolerance to any exertion, chest pains, disturbed sleeping, productive cough, and other similar occurrences. The physicians who examined plaintiff clinically verified most of these complaints and none disputed any of them.

The Secretary properly found that the claimant had at least twenty years of coal mining employment, and that he was entitled to the benefit of the presumptions arising therefrom. ⁸ Although claimant's length of employment in the mines does not create any presumption of disability, it is relevant in determining whether there is a totally disabling respiratory impairment. Phillips v. Mathews, 555 F.2d 1182, 1183 (4th Cir. 1977).

IV. CONCLUSION

This case reveals the same general weaknesses in the Secretary's denial as did Petry. Although many of the objective medical tests were disputed, other evidence, which the Secretary did not properly address, indicated the existence of a totally disabling chronic respiratory impairment. In this case, however, there were also results of pulmonary function tests and blood-gas tests which either came within the values found in the regulations, or came extremely close, indicating below-normal respiratory ability. The Secretary did not give proper weight to these test results which were in part the basis for the various findings of respiratory impairment and total disability by claimant's physicians.

Therefore, we hold that the Secretary's decision was not supported by substantial evidence and that the claimant did establish the existence of a totally disabling chronic respiratory impairment, giving rise to the § 410.414(b) presumption. We reverse the district court and direct it to remand the case to the Secretary. Furthermore, since this claim is nearly eight years old, we see no need for further consideration of the entitlement issue. Our review of the evidence, the briefs, and oral arguments, indicates that the Secretary would be unable to rebut the presumption by proof either that the claimant did not suffer from pneumoconiosis, or that his impairment did not arise from his working in the mines. ⁹ Negative or disputed X-rays alone cannot be the basis for denying a claim, 30 U.S.C. § 923(b); 20 C.F.R. § 410.414(c), and the other evidence in the record does not show the non-existence of pneumoconiosis. Therefore, the district court should enter an order instructing the Secretary to award benefits to the claimant.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent to the direction of the court to enter judgment in favor of the plaintiff. Rather, I think the case should be remanded to the Secretary to reconsider the case under the proper standards.

Although I agree with that part of the reasoning of the court set out in parts I and II of the opinion. I do not agree with much of the reasoning in part III of the opinion for the reasons which follow:

I

That part of the opinion of the panel denominated "(1) X-rays," on page 4 of the opinion, is copied verbatim from Petry v. Califano, 577 F.2d 860 (4th Cir. 1978). The last sentence of that paragraph is "Therefore, inconclusive or contradictory results of the X-rays inure to the benefit of neither party."

I do not quarrel with the application of that sentence in Petry, for it may very well have been true in that case. Here, however, the panel obviously would extend the paragraph I have referred to, and especially the sentence I have quoted, into an...