Smith v. Califano

• Decision Date: 01 July 1982
• Docket Number: No. 81-5313,81-5313
• Citation: 682 F.2d 583
• Parties: Larkin SMITH, Plaintiff-Appellant, v. Joseph A. CALIFANO, Secretary, Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 583

682 F.2d 583

Larkin SMITH, Plaintiff-Appellant, v. Joseph A. CALIFANO, Secretary, Health, Education and Welfare, Defendant-Appellee.

No. 81-5313.

United States Court of Appeals Sixth Circuit.

Argued May 4, 1982.

Decided July 1, 1982.

Robert Hempson, Barbourville, Ky., for plaintiff-appellant.

Patrick H. Molloy, U. S. Atty., Eldon L. Webb, Formerly U. S. Atty., Miles H. Franklin, Asst. U. S. Atty., Lexington, Ky., for defendant-appellee.

Before LIVELY and KEITH, Circuit Judges, and GILMORE, ^* District Judge.

LIVELY, Circuit Judge.

This is an appeal from a judgment of the district court affirming an administrative denial of benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, (the Act), 30 U.S.C. § 901 et seq. Since the application was filed prior to December 31, 1972, it came under Part B of Subchapter IV of the Act, as amended by the Black Lung Benefits Act of 1972, 30 U.S.C. § 921 et seq. (1970 Ed., Supp. II).

I.

A.

Larkin Smith, a former miner, filed an application for black lung benefits on June 20, 1972. The application showed that Smith was born in 1911, completed the eighth grade in school and had worked as a tipple operator for a coal mining company in Eastern Kentucky from 1955 to 1970. He described his disability as "short of breath." Smith's claim was denied on September 5, 1972, and he filed a request for reconsideration on September 17, 1972. Four medical reports were submitted with the request for reconsideration. Three of the reports were from physicians who had examined Smith and had made a diagnosis that he suffered from pneumoconiosis. X-ray films were submitted with the reports. On June 6, 1973 Smith was advised that the Social Security Administration, after reconsideration, still found him ineligible for benefits. A transmittal sheet which accompanied the Notice of Reconsidered Determination identified the following bases for the determination: that X-rays had been reread as negative for pneumoconiosis, that ventilatory functions studies exceeded interim table values and that the clinical evidence from doctors did not demonstrate a chronic lung disease or pulmonary impairment which is considered totally disabling. A space on this sheet for indicating the number of years in occupation was filled in "unkn."

Smith then obtained a de novo hearing before an administrative law judge (ALJ). The hearing was held on June 24, 1975, and the ALJ issued his decision on August 6, 1975, holding that Smith was not entitled to black lung benefits. When the Appeals Council affirmed the decision of the ALJ this became the final decision of the Secretary of Health, Education and Welfare (the Secretary). A complaint was then filed in district court and was submitted for decision on cross-motions for summary judgment. The district court found a conflict in the evidence, but concluded there was substantial evidence to support the decision of the Secretary.

B.

At the hearing before the ALJ, Smith testified that he worked at the tipple of underground coal mines from 1955 until 1970. After earning approximately $1300 as a self-employed farmer in 1971, Smith returned to work at a tipple in 1972 but was laid off after six weeks because he was "too short of wind to hold the job." Smith's statement of earnings as recorded by the Social Security Administration showed non-continuous employment by Lewis Coal Co. of Manchester, Kentucky between 1955 and 1970. Wages were paid to Smith by Lewis Coal Co. in more than 30 quarters during the period and by at least one other coal company in 1956, a year in which there was no record of payments by Lewis. He was also paid in two quarters in 1971 by Mountain Clay, Inc. It is evident from the record that this is the coal tipple work which he testified took place in 1972.

Smith testified that it was very dirty around the tipple and that people working there were covered with coal dust. He described his symptoms as persistent coughing which produced sputum sometimes containing blood, plus chest pains and smothering sensations while lying down, all of which he was still experiencing at the time of the hearing. During his last mining job he had not had the strength to "catch the brakes and hold onto a car" at the tipple. At the time of the hearing he could not do chores such as mowing the lawn or tending the garden because of his shortness of breath. Smith stated that he could not climb steps or hills and was required to stop for rest if he walked as much as 200 or 300 yards. He related all his restrictions and impairments to a shortness of breath.

Smith was the only witness at the hearing. The ALJ considered a large number of medical reports which were entered on the record by stipulation. Five of these reports were from physicians who had examined Smith. Dr. B. H. Wells, a general practitioner, examined Smith and took chest X-rays on March 5, 1973. He concluded that Smith had pneumoconiosis and pulmonary emphysema. Dr. T. H. Biggs, the medical director of a state tuberculosis hospital, examined and X-rayed Smith as an out-patient on March 9, 1973. He concluded that Smith had coal worker's pneumoconiosis and stated in his report, "From the medical standpoint, this patient is disabled for further work in coal mines." Dr. Boyce E. Jones, a general practitioner with a sub-specialty in pulmonary diseases, who was a "certified reader" of X-rays, examined and X-rayed Smith on March 22, 1973. His diagnosis was pneumoconiosis, and he advised Smith to "avoid further contact to irritating dusts." Dr. Harold L. Bushey, an internist, examined Smith and read X-rays taken on March 27, 1973. His diagnosis was "chronic lung disease with pulmonary fibrosis compatible with coalminer's pneumoconiosis 2/2S." Dr. William H. Anderson, an internist with a sub-specialty in pulmonary diseases who was a member of the faculty of the University of Louisville School of Medicine, gave Smith a complete physical examination including X-rays. In his report he diagnosed hypertensive cardiovascular disease and category 1 pneumoconiosis.

The record also contained a spirometry report from a Lexington cardiopulmonary laboratory which was read as "normal" by Dr. Paul Van Lith, an internist with a subspecialty in pulmonary diseases, a report from Dr. James B. Dukes, a Knoxville, Tennessee radiologist and certified reader, who found no radiographic evidence of pneumoconiosis in an X-ray made on February 15, 1973 and the report of Dr. Joseph M. Straughan, a Wise, Virginia radiologist who interpreted a February 28, 1973 X-ray as containing small rounded densities, "evidently ... fibrosis, approximately 2/2p? (sic)" Neither Dr. Van Lith, Dr. Dukes nor Dr. Straughan recorded a physical examination of Smith. In addition there were reports from six certified readers to whom the various X-rays previously listed were sent by the Secretary. None of these physicians ever saw or examined Smith. All of the X-rays were reread as negative for pneumoconiosis and most of the films were found to be of poor quality.

The ALJ stated in his decision that he had carefully considered all of the evidence. Yet the only items of medical evidence which he referred to specifically were normal pulmonary function studies and the negative X-ray readings. The decision did not mention the evidence of the five examining physicians, and it summarized Smith's testimony concerning his symptoms and impairments in two typewritten lines.

II.

A.

The ALJ based his decision on a series of findings: (A) that the evidence failed to establish the existence of "complicated pneumoconiosis," which would give rise to an irrebuttable presumption of disability due to pneumoconiosis under 20 C.F.R. § 410.418 and 30 U.S.C. § 921(c)(3); (B) that the evidence failed to show that Smith was entitled to a rebuttable presumption of disability due to pneumoconiosis based on 10 years employment and application of the "interim criteria" contained in 20 C.F.R. § 410.490; (C) that the evidence did not disclose an impairment which met the duration requirement and was an impairment listed in an appendix to 20 C.F.R. § 410.424, or the medical equivalent of a listed impairment; (D) that the evidence did not establish an impairment which met the level of severity required to find pneumoconiosis disabling by reference to a table in 20 C.F.R. § 410.426(b) or by a physical performance test described in § 410.426(c); (E) that "other relevant evidence" did not establish the presence of a condition which qualified Smith for benefits under the alternative provisions of 20 C.F.R. § 410.426(d).

Neither the ALJ, the Appeals Council nor the district court referred to 30 U.S.C. § 921(c)(4) ¹ which was added to the Act by the 1972 amendments and applied to Smith's claim. This subsection created a new rebuttable presumption that a person with 15 or more years of employment in underground mines who submits a chest...