Poe v. Weinberger, Civ. A. No. 74-160-E.

• Decision Date: 16 October 1975
• Docket Number: Civ. A. No. 74-160-E.
• Parties: Mary A. POE, Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of West Virginia

403 F. Supp. 312

Mary A. POE, Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 74-160-E.

United States District Court N. D. West Virginia, Elkins Division.

October 16, 1975.

Larry V. Starcher, Morgantown, W. Va., for plaintiff.

James F. Companion, U. S. Atty., Wheeling, W. Va., for defendant.

MEMORANDUM ORDER

MAXWELL, Chief Judge.

This is an action brought to obtain judicial review of the final decision of the Secretary of Health, Education and Welfare denying plaintiff's claim as the widow of a miner for "black lung" benefits pursuant to the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. Jurisdiction is founded on § 413(b) of the Act, 30 U.S.C. § 923(b), which incorporates § 205(g) and (h) of the Social Security Act, 42 U.S.C. § 405(g) and (h), by reference.

Plaintiff filed her application for benefits under the Act on June 16, 1971. The claim was denied initially and on reconsideration, and plaintiff submitted a request for a hearing on October 9, 1971. Before a hearing could be scheduled, the 1972 amendments to the Act were enacted into law, and the claim was reexamined in accordance with the amendments. The claim was again denied, and a hearing was scheduled and conducted on December 14, 1973, at Clarksburg, West Virginia. Plaintiff was not represented at the hearing, at which she and three other witnesses testified. The administrative law judge issued his hearing decision denying plaintiff's claim on April 1, 1974. This became the Secretary's final decision when the Appeals Council approved the hearing decision on May 16, 1974. Plaintiff then obtained legal counsel, and after an extension of time to commence a civil action was granted, this action was instituted on August 16, 1974. The matter is now before the Court on cross-motions for summary judgment.

The only issue before the Court is whether the Secretary's final decision is supported by substantial evidence.

The facts, as determined from the record, may be briefly summarized as follows: Plaintiff is the widow of Dewey C. Poe, a miner who had worked in underground coal mines for more than 30 years, and who died on October 31, 1966. Plaintiff was living with and dependent upon her husband at the time of his death and has not remarried. The death certificate shows that Mr. Poe died suddenly, due to "natural causes." No autopsy was performed, and there is no medical evidence indicating that the miner had pneumoconiosis at the time of his death, although the testimony of the widow, a son, a nephew and another relative at the hearing indicated that he was short-winded, lacked energy and had chest pains.

As earlier indicated, the findings of the Secretary as to any fact, if supported by substantial evidence, are conclusive, 42 U.S.C. § 405(g), and it is well settled that the burden of proof rests upon one who files a claim with an administrative agency to establish that the requirements for eligibility have been met. This rule has been invariably applied to claims under Title II of the Social Security Act, Ragan v. Finch, 435 F.2d 239 (6th Cir. 1970), cert. den., 402 U.S. 986, 91 S.Ct. 1685, 29 L.Ed.2d 152 (1971), and is likewise applicable to claims brought under Part B, Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended. 30 U.S. C. § 923(b); Roberts v. Weinberger, 383 F.Supp. 230 (E.D.Tenn.1974); Baker v. Weinberger, 383 F.Supp. 1095 (W.D.Va.1974).

In order to qualify for benefits, plaintiff must first establish that she is the widow of a miner, was dependent upon him at the time of his death, has not remarried, and has filed a proper application for benefits. 20 C.F.R. § 410.210. The Secretary acknowledges that plaintiff has satisfied these requirements. However, plaintiff is then required to establish either that the deceased miner was entitled to benefits at the time of his death, or that he died before January 1, 1974, and was totally disabled due to pneumoconiosis at the time of his death, or that his death was due to pneumoconiosis. 30 U.S.C. § 921(a); 20 C.F.R. § 410.210. Since the miner's death antedated the Act, he was not entitled to benefits at the time of his death, and the Secretary's final decision constitutes a finding that plaintiff has failed to establish that her husband was totally disabled due to pneumoconiosis at the time of his death or that his death was due to pneumoconiosis.

Pneumoconiosis is defined in the Act as a chronic dust disease of the lung arising out of employment in a coal mine, 30 U.S.C. § 902(b), and includes the diseases and conditions designated in 20 C.F.R. § 410.110(o). Total disability is defined in § 402(f) of the Act, 30 U.S.C. § 902(f), and in the regulations prescribed by the Secretary. See 20 C.F.R. § 410.412 and other regulations referred to therein. The Secretary, pursuant to the mandate of § 411(b) of the Act, 30 U.S.C. § 921(b), has promulgated regulations which, together with the statutory standards and presumptions, establish the alternative tests for entitlement. 20 C.F.R. § 410.401 et seq.

The first alternative for determining entitlement is under the interim adjudicatory rules, 20 C.F.R. § 410.490. Under these rules, there is a rebuttable presumption of total disability or death due to pneumoconiosis where (1) an x-ray, biopsy or autopsy establishes the existence of simple pneumoconiosis, or (2) in the case of a coal miner who worked 15 years or more in underground or comparable coal mine employment, ventilatory studies establish the presence of a chronic respiratory or pulmonary disease as demonstrated by values equal to or less than those set forth in the table in the regulation. Here, the only x-ray evidence of record is a report from the Myers Clinic, Philippi, West Virginia, of a chest x-ray taken December 9, 1955, which was negative, and a reference in the report of Dr. Franklin Murphy, a general practitioner in Philippi, indicating a negative chest x-ray in September, 1957. No lung biopsy or autopsy was performed, and the miner never underwent pulmonary function studies. Accordingly, the plaintiff has failed to establish entitlement under the interim adjudicatory rules.

The second alternative test is that set forth in § 411(c)(3) of the Act, 30 U.S. C. § 921(c)(3), which is adopted almost verbatim in 20 C.F.R. §§ 410.418 and 410.58. This is a strict test which requires plaintiff to establish the existence of complicated pneumoconiosis through specified x-ray, biopsy or autopsy reports, and which, if satisfied, creates an irrebuttable presumption of total disability or death due to pneumoconiosis. Here plaintiff has not submitted or alleged the existence of medical evidence which meets the requirements under the alternative.

The next alternative for establishing entitlement relates solely to the issue of death due to pneumoconiosis arising out of coal mine employment. If a miner worked for 10 or more years in the nation's coal mines and died from a respirable disease, there is a rebuttable presumption that his death was due to pneumoconiosis arising out of such employment, 30 U.S.C. § 921(a) and (b); 20 C.F.R. §§ 410.456 and 410.462. Here, the death certificate indicates that the miner died of "natural causes" and notes that he had been in good health, had not seen a doctor for over a year, had chest pains prior to death, and died suddenly. The only other evidence in the record...