Moore v. Califano

• Decision Date: 27 October 1980
• Docket Number: No. 77-3537,77-3537
• Citation: 633 F.2d 727
• Parties: Golden L. MOORE, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 727

633 F.2d 727

Golden L. MOORE, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.

No. 77-3537.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 12, 1979.

Decided Oct. 27, 1980.

Byron Lee Hobgood, Richard E. Hibbs, Franklin, Gordon & Hobgood, Madisonville, Ky., for appellant.

George J. Long, U. S. Atty., James H. Barr, Michael Tilley, Louisville, Ky., Dwight L. Thomas, Asst. Regional Atty., Atlanta, Ga., for appellee.

CORNELIA G. KENNEDY, Circuit Judge.

Golden Moore, a 65-year old former coal miner, appeals from a judgment of the District Court affirming the denial of black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901, et seq. Claimant retired in November 1970 after working as a mechanic in coal mines approximately 25 years. He applied for black lung benefits in January 1971, thus falling under Part B of the Black Lung Benefit Act, 30 U.S.C. § 921, et seq. At that time he also filed an application for disability benefits under the Social Security Act based upon arteriosclerotic cardiovascular disease. Social Security disability benefits were awarded in 1973. Following an administrative hearing in 1975, claimant was denied black lung benefits. The Administrative Law Judge's decision was approved by the Appeals Council and became the final decision of the Secretary of Health, Education and Welfare. The District Court found that the Secretary's decision denying black lung benefits was supported by substantial evidence. We agree with the District Court's conclusion and affirm.

Mr. Moore has an extensive medical history. He was hospitalized on more than one occasion for his heart problem. Most of his medical care was received from various doctors at the Trover Clinic in Madisonville, Kentucky. He has had numerous chest x-rays. A 1968 chest x-ray by Dr. Selby Coffman, a radiologist, at the Trover Clinic and an "A" reader of coal miner's chest x-rays certified by the National Institute of Occupational Safety and Health was said to be normal. The report of the 1968 x-ray stated that there was no change since a 1966 x-ray. An April 3, 1969 x-ray by Dr. William Rogers, a radiologist, also at the Trover Clinic, revealed infiltrate in the right lung compatible with bronchopneumonia. An April 7, 1969 x-ray, also read by Dr. Rogers, stated that Mr. Moore's condition was unchanged from the April 3 x-ray. An October 10, 1969 x-ray was stated to contain no evidence of active pulmonary or pleural disease by Dr. R. E. Yadon, another radiologist with the Trover Clinic. A March 8, 1971 x-ray taken by Dr. Coffman was interpreted by him as positive for simple pneumoconiosis, category 2/1q. That x-ray was submitted for review to a certified "B" reader, Dr. Dinuris Ciklai Adler, who reported it negative for pneumoconiosis. Two other "B" readers, Drs. Dennis and Rosenstein, examined the March 8, 1971 x-ray, and also interpreted it as negative for pneumoconiosis. Finally, x-rays were taken June 5, 1974 by Dr. Neil Calhoun, a specialist in general practice. Dr. Calhoun interpreted these x-rays as showing a pulmonary fibrotic process extending outward from the hilar areas in all lung fields. The lateral view was described as showing thickening typical of emphysema. Dr. Calhoun concluded that the x-rays were typical of coal miner's pneumoconiosis, category 1, sub-classification R. These x-rays were reread by Dr. Robert M. Coleman, a radiologist, as showing pulmonary fibrosis with pneumoconiosis not ruled out. "B" readers Dennis and Rosenstein interpreted the June 5, 1974 x-rays as negative for pneumoconiosis. The Administrative Law Judge concluded that the x-ray evidence did not establish pneumoconiosis.

Claimant had pulmonary function studies February 10, 1970, August 25, 1971, August 9, 1973, and June 5, 1974. A medical consultant to the Bureau of Hearing and Appeals reviewed these studies and reported that the June 5, 1974 tests were unsatisfactory. No tracings were provided for the February 10, 1970 studies as required by the regulations. Nor did a cooperation statement accompany them. The August 25, 1971 and August 9, 1973 studies did not meet the interim criteria of 20 C.F.R. § 410.490 under which total disability due to pulmonary disease may be presumed. The June 5, 1974 studies did meet the table of values; however, this was one year after the statutory jurisdictional cutoff date and the Administrative Law Judge relied on the 1973 tests which were closer to the cutoff date as more persuasive of plaintiff's condition at that time. The pulmonary function studies did not therefore establish the presence of a chronic respiratory or pulmonary impairment.

The more difficult question is whether claimant produced such other evidence of totally disabling chronic lung disease that he was entitled to the rebuttable presumption provided by § 921(c)(4). That section provides that if a claimant has worked 15 years in the coal mines and has a totally disabling chronic respiratory or pulmonary impairment, it is presumed that he is totally disabled from pneumoconiosis. The presumption may be rebutted only if it is established that he does not have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of or in connection with employment in the coal mine. Negative x-rays and negative pulmonary studies may not be used to rebut the presumption. Ansel v. Weinberger, 529 F.2d 304, 309-10 (6th Cir. 1976). The burden is, however, on claimant to establish that he has the totally disabling chronic respiratory or pulmonary impairment.

The Administrative Law Judge found, after considering the medical evidence and Mr. Moore's testimony, that he did not have significant pulmonary disfunction as of June 30, 1973 and that his symptoms are primarily associated with heart disease. That finding may not be set aside if it is based upon substantial evidence viewing the record as a whole, Carroll v. Califano, 619 F.2d 1157 (6th Cir. 1980); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976); Ross v. Richardson, 440 F.2d 690, 694 (6th Cir. 1971), even if we would have taken a different view of the evidence were we trier of the facts. Ross v. Richardson, supra, 440 F.2d at 694, King v. Celebrezze, 341 F.2d 108, 109 (6th Cir. 1968).

Medical reports submitted to the Secretary show that claimant was examined on August 25, 1971 by Dr. C. M. Van Hooser, an internist with the Trover Clinic. Moore complained of chest pain relieved by nitroglycerin. He denied having paroxysmal nocturnal dyspnea (periodic recurring labored or difficult breathing accompanied by pain). He stated he was short of breath after climbing stairs or walking a couple of blocks. He had a cough productive of white sputum. Physical examination of his chest showed that his lungs were free of wheezes, rales, and rhonchi. Dr. Van Hooser's diagnosis was arteriosclerotic heart disease with angina pectoris, class II. Dr. Van Hooser examined claimant August 9, 1973. His report of that examination states that Mr. Moore's lungs were clear to auscultation and percussion, with no wheezes, rales, or rhonchi. Again, his diagnosis was arteriosclerotic heart disease with angina pectoris. Dr. Van Hooser performed pulmonary function studies on August 9, 1973. A chest x-ray was taken that day by Dr. Coffman who reported claimant's lungs were clear.

On October 15, 1973, claimant was examined by Dr. Charles R. Fisher, another internist at the Trover Clinic. He found inspiratory and expiratory wheezing with no rales. His disagnosis was arteriosclerotic heart disease-compensated; angina on exertion; chronic lung disease; chronic bronchitis; and pulmonary fibrosis. On June 4, 1974, claimant was examined by Dr. William G. West, a general practitioner. He reported that Mr. Moore's chest was clear to percussion and auscultation with diminished breath sounds bilaterally. He interpreted an x-ray taken that date as compatible with coal miner's pneumoconiosis and stated that Mr. Moore was disabled from coal mining due to pneumoconiosis. As stated above, the x-ray was later read by two "B" readers as negative for pneumoconiosis.

Dr. Neal Calhoun, a specialist in general practice, examined claimant on June 5, 1974. Breath sounds were stated to be low, distant, hard to hear, with fine moist rales with wheezes. His report states that these signs are characteristic of severe chronic pulmonary disease. Dr. Calhoun concluded that plaintiff had complicated pneumoconiosis as well as heart disease.

We agree with the District Court that there is substantial evidence to support the Secretary's finding that claimant did not suffer from "a totally disabling chronic respiratory or pulmonary impairment" prior to July 1, 1973. Substantial evidence is 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, 21 L.Ed.2d 842 (1971). Dr. Van Hooser's reports, which are completely negative with respect to any lung disease and ascribe a different cause for claimant's disability, supply adequate support for the Secretary's conclusion. Although Dr. Van Hooser was primarily concerned with claimant's heart problem, he was sufficiently interested in his lungs to order pulmonary function tests and chest x-rays.

Claimant argues that pneumoconiosis is a progressive disease and that the Secretary was required to give consideration to the results of examinations after the cutoff date. Begley v. Mathews, 544 F.2d 1345 (6th Cir. 1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1684, 52 L.Ed.2d 380 (1977). In Begley, we held that when ventilatory tests made reasonably proximate to the July 1, 1973 cutoff date establish entitlement to a presumption of disability, such evidence should be carefully weighed "to determine whether or not it establishes that his breathing capacity was below the standard set...