Padavich v. Mathews

• Decision Date: 24 August 1977
• Docket Number: No. 76-2061,76-2061
• Citation: 561 F.2d 142
• Parties: Joseph PADAVICH, Plaintiff-Appellant, v. David MATHEWS, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 142

561 F.2d 142

Joseph PADAVICH, Plaintiff-Appellant, v. David MATHEWS, Secretary of Health, Education and Welfare,

Defendant-Appellee.

No. 76-2061.

United States Court of Appeals,

Eighth Circuit.

Submitted June 17, 1977.

Decided Aug. 24, 1977.

Paul F. Christoffers, Chariton, Iowa, for plaintiff-appellant.

Joseph S. Friedman, Atty., Office of Gen. Counsel, Dept. of H.E.W., Baltimore, Md. (argued), and Barbara Allen Babcock, Acting Asst. Atty. Gen., Washington, D.C., Paul A. Zoss, U.S. Atty., John M. Fitzgibbons and William D. Scherle, Asst. U.S. Attys., Des Moines, Iowa, and Joseph S. Friedman, Chariton, Iowa, on brief, for defendant-appellee.

Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and MILLER, Judge. ^*

MATTHES, Senior Circuit Judge.

Appellant, Joseph Padavich, was a coal worker for over thirty years, leaving the mines permanently in 1957. On November 29, 1972, he filed an application for black lung (pneumoconiosis) ¹ compensation benefits under the Federal Coal Mine Health & Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, § 401, 30 U.S.C. § 901 et seq. (1970 & Supp. V 1975). His claim was denied at every administrative level. Following the final decision of the Secretary of Health, Education & Welfare, appellant brought this action in the United States District Court for the Southern District of Iowa seeking judicial review of the administrative determination, as provided for in 30 U.S.C. § 923(b) (1970 & Supp. V 1975).

Cross motions for summary judgment were filed in the district court. Upon consideration of the full administrative record, the court granted the Secretary's motion. We affirm.

The Federal Coal Mine Health & Safety Act, as amended, directs the Secretary of Health, Education & Welfare to compensate any miner who can sustain the burden of proving (1) that he was totally disabled on or before June 30, 1973, ² and (2) that the disability was due to pneumoconiosis. 30 U.S.C. § 921 et seq. (1970 & Supp. V 1975); see Humphreville v. Mathews, 560 F.2d 347 (8th Cir. 1977); Bozwich v. Mathews, supra. Congress has provided various statutory presumptions to aid a claimant in establishing that his disability is the result of pneumoconiosis, ³ but without a showing of timely and total disability there can be no compensation.

A miner is totally disabled within the meaning of the amended Act if he is prevented "from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time." 30 U.S.C. § 902(f) (Supp. V 1975), quoted in Usery v. Turner Elkhorn Mining Co., supra at 10, 96 S.Ct. at 2890. This basic test has been comprehensively delineated in the regulations promulgated by the Secretary. 20 C.F.R. §§ 410.401-410.490. Total disability may be shown by clinical or other medical evidence, subject to rebuttal by evidence that a claimant is able to be gainfully and comparably employed.

In the present case, the Secretary determined that appellant had not shown that he was totally disabled prior to the date when HEW's jurisdiction terminated. Thus, appellant was denied benefits. That decision must be upheld if supported by substantial evidence. ⁴ 42 U.S.C. § 405(g), incorporated by reference in 30 U.S.C. § 923(b) (1970 & Supp. V 1975); Felthager v. Weinberger, 529 F.2d 130, 131 (10th Cir. 1976). Mindful of the limited scope of our review, we turn to an examination of the facts.

The medical evidence is contradictory and inconclusive. Chest x-rays of appellant were taken in 1969 and 1972. The first set was negative. The second set was initially interpreted to indicate pneumoconiosis, but subsequent readings by two different radiologists refuted that finding.

Appellant was examined by two physicians in 1973 who diagnosed pneumoconiosis, but they performed no tests, basing their opinions solely on observations of appellant in light of his medical history. Both doctors concluded that appellant was unable to work in a coal mine environment.

Appellant also underwent two pulmonary function tests. ⁵ The first, taken in December of 1972, recorded claimant's height as 71 inches, his forced expiratory volume in one second (FEV 1) as 2.7 liters, and his maximum breathing capacity (MBC) as 75 liters per minute. These values together do not meet even the liberal interim criteria for total disability established by the Secretary's regulations. 20 C.F.R. § 410.490(b)(1)(ii). In the second test, ⁶ taken in November of 1974, appellant recorded values of 1.8 liters (FEV 1) and 59 liters per minute (MVV). These values meet both the interim criteria and the stricter permanent criteria set forth in 20 C.F.R. § 410.424. Pneumoconiosis is a progressive illness, but it is far from clear whether the appellant could have met the Secretary's disability criteria as of the crucial cut-off date, June 30, 1973. In any event, pulmonary function test results do not conclusively establish total disability. A claimant's work record may rebut the clinical evidence. 20 C.F.R. §§ 410.412(a)(1), 410.426, and 410.490(c)(1).

Since leaving the mines permanently in 1957, appellant has worked as a machine repairman, a welder, a millwright, and a carpenter. In these capacities, appellant often utilized skills gained in the mines. ⁷ At the time of his administrative hearing in early May of 1974, appellant was retired and receiving social security benefits. Concurrently, he was employed by a construction company. He indicated that his only real work limitation was a ceiling on outside income imposed as a requirement for social security benefits. Indeed, in the week preceding his hearing, appellant had worked forty-eight hours helping to operate an industrial machine. ⁸

Appellant's own evidence established his employment capacity. Considering his age, education, and work experience, the job held by appellant as late as the spring of 1974 was gainful and comparable to his work in the mines. 20 C.F.R. §§ 410.412(a)(1), 410.426, and 410.490(c)(1). Thus, he was not totally disabled within the meaning of the amended Act. Other courts have reached the same result where claimants engaged regularly in non-sedentary labor after leaving the mines. See, e.g., Brock v. Weinberger, 405 F.Supp. 1329 (W.D.Ark. 1975) (truck driver); Hunley v. Weinberger, 403 F.Supp. 374 (E.D.Tenn. 1975) (farmer and tavern operator).

It is appellant's admitted ability to work that distinguishes this case from our recent decisions in Bozwich v. Mathews, supra, ⁹ and Humphreville v. Mathews, supra. In Bozwich, total disability was established, albeit without the benefit of clinical evidence, on a showing that the claimant was completely unable to work. Thus, the court held that the statutory presumption of § 921(c)(4) was available. The statutory presumption was not available in the present case, however, because the Secretary found that the appellant was not totally disabled on or before the June 30, 1973 jurisdictional cut-off date. Unlike Humphreville, supra, where the record was unclear regarding the claimant's disability, id. at 350, in the present case there is sufficient, uncontroverted evidence that appellant was capable of and was pursuing gainful employment comparable to his work in the mines on June 30, 1973. In sum, we are satisfied that the record as a whole fully demonstrates the correctness of the district court's conclusion that there was substantial evidence to support the Secretary's decision.

Finally, appellant contends, for the first time in this court, that he was prejudiced by his failure to have counsel present at the administrative hearing. We disagree. Appellant was advised in the written notice of hearing, and was again informed orally by the administrative law judge at the outset of the hearing, of his right to be represented by an attorney. Appellant clearly recognized his right to counsel, but chose to represent himself with the aid of his son. The latter, a sales manager, was present at the hearing, as was appellant's wife. Although appellant is a man of limited formal education, the record demonstrates that he is intelligent, knowledgeable, and experienced. His waiver of the right to counsel was considered and deliberate. Mindful of appellant's position, the administrative law judge admitted all the evidence appellant submitted, and otherwise conducted a full and fair inquiry into the facts. Absent a clear showing of prejudice or unfairness which can be attributed to appellant's lack of counsel, a remand is unwarranted. Goodman v. Richardson, 448 F.2d 388, 389 (5th Cir. 1971); Cross v. Finch, 427 F.2d 406, 408-09 (5th Cir. 1970); Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir. 1969); Poe v. Weinberger, 403 F.Supp. 312, 315-16 (N.D.W.Va. 1975).

The record in the present case completely derogates the notion that appellant suffered any prejudice from lack of counsel at the administrative hearing. Moreover, appellant's attorney neglected to raise the issue before the district court. Consequently, the claim of prejudice must be and is rejected. The judgment of the district court is affirmed.

* The Honorable Jack R. Miller, Judge, U.S. Court of Customs and Patent Appeals, sitting by designation.

1 Coal workers' pneumoconiosis is a chronic respiratory ailment caused by the long-term inhalation of coal dust. See generally Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6-8, 96 S.Ct. 2882, 2888-89, 49 L.Ed.2d 752 (1976); Bozwich v. Mathews, 558 F.2d 475, 476 n. 2 (8th Cir. 1977); S.Rep.No.743, 92nd Cong., 2nd Sess. (1972), reprinted in (1972) U.S.Code Cong. & Admin.News pp. 2305, 2309-10.

2 This jurisdictional limitation results from a congressional division of responsibility for the adjudication and payment of black lung benefits. Claims filed between December 30, 1969 and June 30, 1973, come within the province of the Secretary of Health, Education & Welfare....