Knudtson v. Benefits Review Bd. of U.S. Dept. of Labor, 84-2724

• Decision Date: 21 January 1986
• Docket Number: No. 84-2724,84-2724
• Citation: 782 F.2d 97
• Parties: Clyde D. KNUDTSON, Petitioner, v. BENEFITS REVIEW BOARD OF the UNITED STATES DEPARTMENT OF LABOR, Peabody Coal Company, and Old Republic Insurance Companies, Respondents, Director, Office of Workers' Compensation Programs of the United States Department of Labor, Party-In-Interest.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 97

782 F.2d 97

Clyde D. KNUDTSON, Petitioner, v. BENEFITS REVIEW BOARD OF the UNITED STATES DEPARTMENT OF LABOR, Peabody Coal Company, and Old Republic Insurance Companies, Respondents Director, Office of Workers' Compensation Programs of the United States Department of Labor, Party-In-Interest.

No. 84-2724.

United States Court of Appeals Seventh Circuit.

Argued May 28, 1985.

Decided Jan. 21, 1986.

Julian N. Henriques, Jr., Leg. Asst. Foundation, Chicago, Ill., for petitioner.

J. Michael O'Neill, Dept. of Labor, Mark E. Solomons, Kilcullen, Wilson & Kilcullen, Chartered, Washington, D.C., for respondents.

Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

WILLIAM J. CAMPBELL, Senior District Judge.

This is an appeal of a United States Department of Labor Benefits Review Board decision which affirmed the ruling of that department's administrative law judge (ALJ) denying claimant Clyde Knudtson black lung benefits pursuant to the regulations of the Black Lung Benefits Act, 30 U.S.C. 901, et seq. For reasons set forth below, we affirm the rulings of the lower tribunals.

Claimant Knudtson is approximately 64 years old. He worked for Respondent Peabody Coal Company from 1945 until his retirement in February, 1976. His job during this time period was as a welder repairing equipment used at the mines. Knudtson testified that during the majority of his time at Peabody he worked in a garage away from the regular exposure to coal dust experienced by ordinary miners. It is estimated only 20-30% of his time was spent working in the mines. The ALJ concluded that in his position as welder/repairman Knudtson's exposure to coal dust was neither as regular or intense as that of ordinary miners.

Knudtson's medical history of respiratory disease is somewhat unsettled due to conflicting testimony. Knudtson testified he began experiencing breathing problems in his mid-forties while playing sports, climbing heavy machinery and carrying heavy equipment. He claimed his respiratory problems worsened until he was stricken by a heart attack in March of 1975. At that point Knudtson missed work for eleven months and returned to work for a mere two days before the mines closed. Knudtson testified his current condition has deteriorated and he now gets short of breath walking and climbing stairs.

The ALJ found Knudtson's account of his breathing difficulties not credible. He noted Knudtson was never medically treated for breathing impairments prior to his heart attack in 1975. In fact, Knudtson's hospital records indicated he specifically denied breathing problems prior to his heart attack. The ALJ further noted physician reports which reveal Knudtson denied any dyspnea even after the heart attack.

Significantly, claimant has always been a heavy smoker of cigarettes. To what extent is in controversy. Claimant initially testified he was a pack-a-day smoker since age 21 and that he quit smoking for three years after his heart attack in 1975. He testified he currently smokes three cigarettes a day, one after each meal. Yet on cross-examination Knudtson claimed he did indeed smoke occasionally during the three-year period following his heart attack, as much as half a pack a day. The ALJ found Knudtson's account of his smoking history "totally lacking in credibility" and drew the conclusion he smoked two packs of cigarettes a day prior to his 1975 heart attack and one pack a day thereafter. The ALJ further concluded that despite all of the above Knudtson had failed to establish he had pneumoconiosis and that he does not have a totally disabling respiratory disease. Knudtson was consequently denied black lung benefits.

In reviewing the decisions of the lower tribunals in this matter we follow the standard of review enunciated in Consolidation Coal Co. v. Chubb, 741 F.2d 968, 971 (7th Cir.1984):

Our review of the Benefits Review Board decision is governed by the identical standards as is the Board when it reviews the ALJ's decision and order. We must therefore determine whether the ALJ's decision was supported by substantial evidence, was not irrational, and was in accord with the law. Bishop v. Peabody Coal Co., 690 F.2d 131, 135 (7th Cir.1982); Underhill v. Peabody Coal Co., 687 F.2d 217, 222 (7th Cir.1982); Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 799 (7th Cir.1977). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

We conclude the findings of the ALJ are supported by substantial evidence and are adequate to support his ruling denying claimant benefits.

20 CFR Sec. 727, et seq. sets forth the reviewing guidelines of pending and denied claims under the Black Lung Benefits Act. Under Sec. 727.203(a) of the regulations a miner engaged in coal mine employment for at least ten years is initially presumed to be totally disabled due to pneumoconiosis if one of four medical requirements is met. All parties admit claimant Knudtson is entitled to this Sec. 727.203(a) "interim presumption" (hereinafter the section (a) interim presumption) as a result of ventilatory studies performed on him which reached appropriate levels. However, under the regulations this interim presumption can be rebutted if one of four findings listed in Sec. 727.203(b) is made:

(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work; or

(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work; or

(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment; or

(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.

The ALJ found that respondent Peabody had successfully rebutted the interim presumption under sections (b)(2) and (4). We shall first discuss his finding pertaining to section (b)(4), which we believe is sound and reason for affirmance on its own.

During the ALJ hearing evidence concerning claimant's medical condition was submitted in one form or another by eight doctors. Only one of these doctors was willing to conclude claimant had any signs of pneumoconiosis. A Dr. Gordonson read an X-ray of claimant's chest and concluded it positive for category 1/o pneumoconiosis, one of the lowest levels possible. Significantly, two other doctors, Drs. Mintzer and Cugell, read the same X-ray and diagnosed a negative, pneumoconiosis-free chest. In contrast to the isolated diagnosis of Dr. Gordonson are the diagnoses of Drs. Cugell, Kamath, Nudelman, Mintzer, Hessl, Hickey and Fitzpatrick. These seven physicians all concluded claimant Knudtson's X-ray evidence was negative for pneumoconiosis. Even Dr. Hessl, whose report was written on behalf of claimant for purposes of this litigation, could only diagnose "possible coal worker's pneumoconiosis, not evident on chest X-ray." Possible pneumoconiosis is not equivalent to the existence of pneumoconiosis. In sum we agree with the ALJ's conclusion that the negative X-ray evidence is overwhelming. While we recognize negative X-rays alone are not always sufficient to rebut the presumption (see Underhill v. Peabody Coal Co., 687 F.2d 217 (7th Cir.1982); Ansel v. Weinberger, 529 F.2d 304, 310 (6th Cir.1976)) they assume significant probative value when they exist without any significant medical evidence to the contrary.

In the case sub judice, there is literally no medical evidence submitted to the contrary. Dr. Cugell concluded claimant had some chronic bronchitis and emphysema but that this was due to his history of cigarette smoking. Dr. Kamath read a 1976 X-ray of claimant as showing a normal chest. Dr. Nudelman read a 1979 chest X-ray as negative. Dr. Hessl, secured by claimant, examined claimant in September 1980 and concluded "coal worker's pneumoconiosis was not evident on chest X-ray." Dr. Mintzer read six different X-rays between 1975 and 1980, including the X-ray read as positive by Dr. Gordonson, and concluded claimant's chest was negative for pneumoconiosis. Dr. Hickey examined claimant in 1976 and found coronary artery disease but no respiratory or pulmonary disease or impairment. Dr. Fitzpatrick, who treated claimant for his heart attack in 1975, found no evidence of respiratory disease. Beyond this, claimant fails to produce any medical testimony or evidence (other than the Dr. Gordonson X-ray reading, which is contradicted by Drs. Cugell and Mintzer) which establishes he has pneumoconiosis. As we said in Underhill v. Peabody Coal Co., supra:

"... Peabody met its burden for rebuttal by introducing the uncontradicted medical opinion of Doctor Nay. Absent the support of a credible medical...