McLane v. Califano
| Decision Date | 08 July 1977 |
| Docket Number | Civ. A. No. 75-269-N. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | William R. McLANE, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant. |
S. Strother Smith, Abingdon, Va., for plaintiff.
Michael A. Rhine, Asst. U.S. Atty., Norfolk, Va., for defendant.
This case arises under Part B, Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended. 30 U.S.C. §§ 901, et seq. The Act establishes a program for the payment of benefits to living miners who are totally disabled due to pneumoconiosis arising out of coal mine employment and to the dependents of miners who died due to pneumoconiosis, or who were totally disabled due to pneumoconiosis at the time of their death. The Department of Health, Education and Welfare is empowered to promulgate regulations for the administration and determination of disability under this Act and to adjudicate claims and pay lifetime benefits to miners who were disabled by pneumoconiosis on or before June 30, 1973, and to the dependents of miners who died from pneumoconiosis on or before that date.
Plaintiff applied for benefits without aid of counsel on December 22, 1972. After two administrative denials, he was afforded a hearing on August 30, 1974, at which time the Administrative Law Judge found that the claimant was not totally disabled within the meaning of the Act. Thereafter plaintiff secured the services of an attorney who collected evidence from additional medical examinations and tests and submitted it with notice of appeal to the Appeals Council. The Appeals Council upheld the decision of the Administrative Law Judge without appearing to have considered the additional evidence submitted by plaintiff's counsel. Plaintiff then appealed the decision of the Appeals Council to this Court, which by its Order of December 3, 1975, remanded the case to the Secretary of Health, Education and Welfare for further consideration in light of the additional submitted evidence and any other evidence the Department might deem proper to collect.
The case went back to the Administrative Law Judge for a de novo hearing on September 7, 1976, where the additional evidence was considered together with new testimony and further medical evidence. The Administrative Law Judge made a recommended decision that plaintiff was not entitled to benefits under the Act on February 3, 1977, and the Appeals Council affirmed and adopted this decision on March 24, 1977.
The case is once more before this Court for review of this final decision of the Secretary of Health, Education and Welfare denying the plaintiff's claim as a miner for Black Lung benefits under the Coal Mine Health and Safety Act. 30 U.S.C. § 923(b) incorporates by reference sections of the Social Security Act, 42 U.S.C. § 405(g)-(h), which provide that the Court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for a rehearing, and that the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.
For the reasons given hereinafter, this Court finds that the Secretary's findings were made in compliance with his regulations and are supported by substantial evidence and, therefore, affirms the decision of the Secretary denying plaintiff's claim for benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended.
Plaintiff was born on October 4, 1901, and was first employed in the coal mines when he was sixteen or seventeen years old. He continued this employment sporadically for a total number of eighteen years until 1948 at which time he began to work primarily as a plumber. In 1964, plaintiff went on medication for shortness of breath and continued to work as a plumber until his retirement at age 70 in 1971. There was some evidence that plaintiff smoked a pipe for twenty years until he was forced to quit by his breathing difficulties in 1964. He testified that due to his shortness of breath problems he has restricted his activities and avoids most exertion including extensive driving, heavy lifting, walking short distances or climbing stairs.
The medical evidence of plaintiff's condition considered by the Secretary includes the following:
X-Rays
1973 — read as showing no evidence of pneumoconiosis
by two "B" readers
1974 — read as showing positive evidence of
pneumoconiosis by a "B" reader. Reread
in 1976 by a "B" reader for the
Government and a "B" reader for
plaintiff as showing no evidence of
the disease
Ventilatory Test Reports
1973 — March FEV1 2.72; MVV 95
May FEV1 2.92; MVV 93
Summarized by two physicians (Dr
Mann TR 89, 199; Dr. Ray TR 173) as
being within normal limits for a person
of plaintiff's age
1974 — FEV1 1.46; MVV 55.44
PCO234 & PO261 (blood gas studies)
1976 — FEV1 1.19; MVV 50
FEV1 1.57; MVV 53 after use of an
aerosol bronchodilator
There are three different sets of criteria set up as permanent guidelines for determining whether a claimant is totally disabled due to pneumoconiosis contracted due to work in coal mines. 20 CFR § 410.418; 20 CFR §§ 410.422 to 410.426; 20 CFR § 410.414(b). In addition, a less stringent set of guidelines called Interim Adjudicatory Rules were promulgated by the Secretary at the behest of Congress to allow the vigorous and prompt processing of the large backlog of claims generated by the Act of 1969. 20 CFR § 410.490. Plaintiff makes his claim of entitlement solely under these less stringent guidelines provided for claims filed before July 1, 1973.
20 CFR § 410.490 provides that a miner of plaintiff's height may be presumed to be totally disabled due to pneumoconiosis and therefore entitled to benefits if (1) an x-ray establishes the existence of pneumoconiosis, or (2) the miner has at least ten years of coal mine employment and a FEV1 reading of 2.6 or less and an MVV reading of 104 or less. An appendix to the section substitutes blood gas study figures in the event no FEV1 and MVV readings are available. Relevant to this case are the figures PCO2 34 and PO2 61 from which a presumption of disability arises.
As seen by the medical evidence above, there was only one x-ray reading out of five that indicated the existence of pneumoconiosis in plaintiff's lungs. This was the first reading made of the 1974 x-ray. Plaintiff claims that this reading which was performed by a "B" reader was conclusive and by law should have been final. Puckett v. Mathews, 420 F.Supp. 364, 365 (W.D.Va. 1976); Stewart v. Mathews, 412 F.Supp. 235 (W.D.Va.1975); 42 CFR 37.52. However, this Court notes that when there is conflicting evidence, it is up to the Secretary to resolve the conflicts by procuring additional evidence. Welsh v. Weinberger, 407 F.Supp. 1043 (D.Md.1975); 10 CFR § 410.240(a). In this case, the 1973 x-ray and tests showed no evidence of pneumoconiosis. This evidence clearly contradicted the first reading of the 1974 x-ray and justified the Secretary in seeking another reading of the 1974 x-ray by a "B" reader. Plaintiff, too, had the 1974 x-ray reread by a "B" reader. The result was that both rereadings found no positive evidence of pneumoconiosis.
With regard to the second alternative or ventilatory testing standards of the Interim Adjudicatory Rules, it is admitted that plaintiff worked in the mines more than ten years, but plaintiff's FEV1 and MVV readings for 1973, the year in which plaintiff must prove his total disability, do not fall within the testing criteria. The criteria require a FEV1 reading of 2.6 or less and an MVV reading of 104 or less. Plaintiff's 1973 FEV1 reading...
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McLane v. Califano
...615 598 F.2d 615 McLane v. Califano No. 77-2122 United States Court of Appeals, Fourth Circuit 5/10/79 E.D.Va., 435 F.Supp. 120 ...