Smakula v. Weinberger, 77-1396

• Decision Date: 01 March 1978
• Docket Number: No. 77-1396,77-1396
• Citation: 572 F.2d 127
• Parties: Mary SMAKULA, Appellant, v. Caspar WEINBERGER, Secretary of the Department of Health, Education & Welfare.
• Court: U.S. Court of Appeals — Third Circuit

Page 127

572 F.2d 127

Mary SMAKULA, Appellant, v. Caspar WEINBERGER, Secretary of the Department of Health Education & Welfare.

No. 77-1396.

United States Court of Appeals Third Circuit.

Argued Dec. 2, 1977.

Decided March 1, 1978.

Anthony J. Piazza, Jr., Lenahan, Dempsey & Murphy, Scranton, Pa., for appellant.

S. John Cottone, U. S. Atty., Laurence M. Kelley, Asst. U. S. Atty., Scranton, Pa. and Stephanie W. Naidoff, Regional Atty., Joan E. Kaehne, Asst. Regional Attorney, Dept. of Health, Ed. and Welfare, Philadelphia, Pa., for appellee.

Before GIBBONS and VAN DUSEN, Circuit Judges, and GERRY, District Judge. ^*

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Samuel Smakula, a coal miner for nearly 40 years, collapsed and died suddenly in the colliery wash house on May 20, 1957. His widow, Mary Smakula, filed a claim with the Social Security Administration on September 8, 1970, for "widow's black lung benefits" under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901 et seq. (1970). After protracted proceedings, including three de novo administrative hearings, an administrative law judge (ALJ) awarded Mrs. Smakula black lung benefits in a decision of December 23, 1975 ¹ (Tr. 130-40; App. 27a-37a). The Appeals Council, acting for the Secretary, reversed the ALJ's decision and denied Mrs. Smakula's claim for benefits (Decision of Jan. 15, 1976, Tr. 125-28; App. 39a-42a). The District Court for the Middle District of Pennsylvania entered summary judgment for the defendant and against the plaintiff (App. 55a) (Civ. No. 74-802, opinion filed Jan. 11, 1977, App. 56a-58a). On appeal to this court, we have determined that (a) the Secretary's final decision was not supported by substantial evidence, (b) the district court judgment should be reversed, and (c) the case should be remanded with directions to award widow's black lung benefits to Mrs. Smakula.

Section 411(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 921(a) (Supp. V, 1975), provides:

"(a) The Secretary shall, in accordance with the provisions of this part, and the regulations promulgated by him under this part, make payments of benefits in respect of total disability of any miner due to pneumoconiosis, and in respect of the death of any miner whose death was due to pneumoconiosis or who at the time of his death was totally disabled by pneumoconiosis." ²

The duly adopted regulations establish a set of evidentiary presumptions which facilitate survivors' proof that deceased miners' disability or death was due to pneumoconiosis. These presumptions enable claimants to obtain benefits despite the absence of a clinical diagnosis of pneumoconiosis as the exact cause of total disability or death.

The regulations governing determination of pneumoconiosis disability claims are set forth in 20 C.F.R. §§ 410.410-410.430 (1977). A miner is deemed to have been totally disabled if "at the time of death . . . pneumoconiosis prevented him from engaging in gainful work" requiring comparable skills. 20 C.F.R. § 410.412. However, the fact that a miner persisted in attempting to work up to the date of his death does not automatically preclude a determination of total disability. The Social Security Administration and several courts of appeals have considered a working miner to be totally disabled if his employment immediately prior to death was characterized by "sporadic work, poor performance and marginal earnings." Social Security Ruling 73-36 (1973); Felthager v. Weinberger, 529 F.2d 130 (10th Cir. 1976); Farmer v. Weinberger, 519 F.2d 627 (6th Cir. 1975).

In addition to proving that the deceased miner was totally disabled at the time of his death, the survivor must causally relate the disability to mine-related pneumoconiosis. The existence of pneumoconiosis may be conclusively proven by various clinical tests, see 20 C.F.R. §§ 410.414(a), 410.428, or by resort to presumptions which require evidence only of "a totally disabling chronic respiratory or pulmonary impairment," see id. §§ 410.414(b), (c). Such a chronic lung impairment may be evidenced by medical tests, medical history, personal physician's statements, spouse's affidavits, and "in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the individual's physical condition, and other supportive materials." Id. § 410.414(c). The presumption may be rebutted by specific evidence that a lung impairment was not pneumoconiosis. Id. § 410.414(b)(2). ³

The regulations governing claims for death due to pneumoconiosis are set forth in 20 C.F.R. §§ 410.450-410.462. Basically, claimants must satisfy two requirements the existence of mine-related pneumoconiosis and pneumoconiosis as a cause of death. Pneumoconiosis may be conclusively evidenced by certain medical diagnostic techniques. See id. §§ 410.454(a), 410.428. Alternatively, pneumoconiosis may be presumed, in the absence of contrary evidence, from proof of the "existence of a chronic respiratory or pulmonary impairment from which the miner was totally disabled . . . prior to his death." Id. § 410.454(b) (1). ⁴ The existence of such an impairment may be adduced from medical tests, medical history, a spouse's affidavits, and "other appropriate affidavits of persons with knowledge of the individual's physical condition, and other supportive materials." Id. § (c). The regulations thus clearly contemplate that lay evidence of a miner's chronic respiratory impairment may support a presumption that he suffered from pneumoconiosis prior to his death.

The regulations also create presumptions regarding pneumoconiosis as a cause of death. 20 C.F.R. § 410.462(a) provides that:

"(I)f a deceased miner was employed for 10 years or more in the Nation's coal mines and died from a respirable disease, it will be presumed, in the absence of evidence to the contrary, that his death was due to pneumoconiosis arising out of employment in a coal mine."

To apply this cause of death presumption, 20 C.F.R. § 410.462(b) prescribes evidentiary rules for three distinct circumstances concerning the likelihood that death was due to a respirable disease. ⁵ First, if there is a "medical ascription" of the cause of death as due to a "chronic dust disease," death will be presumed due to a respirable disease. However, where the medically ascribed cause of death is not reasonably consistent with the possibility of pneumoconiosis as the cause of death, death will not be presumed due to a respirable disease. But in certain cases there may not be a dispositive medically ascribed cause of death. For this third type of situation, the regulations provide that if "all the evidence" suggests the decedent suffered from a respirable disease and that he died from indeterminate or multiple causes and if it is not medically feasible to separate the various possible causes of death, death will be presumed due to pneumoconiosis. ⁶

Mrs. Smakula contended that her husband was both totally disabled due to pneumoconiosis at the time of his death and that he died as a result of pneumoconiosis. In his December 23, 1975, decision, the ALJ concluded that on the basis of the complete administrative record Mr. Smakula had not been totally disabled at the time of his death within the meaning of 20 C.F.R. § 410.412 and Social Security Ruling 73-36. However, the ALJ also concluded that Mr. Smakula suffered from a respirable disease which "contributed significantly to his death" and that he satisfied the § 410.462(b) presumption of death due to pneumoconiosis (Tr. 136-39; App. 33a-36a). The Appeals Council affirmed the ALJ's finding that Mr. Smakula was not totally disabled at the time of his death. However, the Council disagreed with the ALJ's conclusion as to cause of death, finding instead that the only medically ascribed cause of death was a coronary occlusion and not a respirable disease. The Appeals Council's decision concluded, in denying benefits under the § 410.462(b) presumption:

"In the absence of specific medical findings to the contrary, the Appeals Council accepts the evidence of the death certificate that the miner died of a coronary occlusion."

(Tr. 126; App. 40a)

This court must affirm the decision of the Appeals Council as the final decision of the Secretary if it is supported by substantial evidence. 42 U.S.C. § 405(a) (1970); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

The Appeals Council's denial of disability benefits was based on its adoption of the ALJ's findings of fact. We have reviewed the ALJ's comprehensive survey of the evidence bearing on Mr. Smakula's work history at and immediately prior to his death and conclude that his determination that the deceased was not totally disabled was supported by substantial evidence.

There was uncontroverted testimony and documentary evidence that Mr. Smakula ceased work in the mines on doctor's orders for a two-year period between 1954 and 1956 (Tr. 117-18, 175-76). However, when the family's savings had been depleted, Mr. Smakula returned to the mines, where he worked continually from mid-1956 until his death in May 1957 (Tr. 182-83). While Mr. Smakula may have been totally disabled, within the meaning of the regulations, during his two-year period of unemployment, 20 C.F.R. § 410.412(b) requires that the miner have been totally disabled from gainful work at the time of death. The ALJ correctly focused on whether Mr. Smakula's work performance and earnings during his last year of employment were so sporadic as to characterize him as disabled. Although the claimant testified that her husband's respiratory ailments forced him to miss work regularly, the ALJ found the widow's recollection in this regard vague and uncorroborated (Tr. 134; App. 31a). In contrast, Mr. Smakula's earnings records revealed a steady income, reflective of continuous work and complete performance up until his death. Moreover, Mr. Smakula's supervisor...