Statzer v. Weinberger, Civ. A. No. 1779.

• Decision Date: 05 April 1974
• Docket Number: Civ. A. No. 1779.
• Citation: 383 F. Supp. 1258
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: Malissa STATZER, Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

383 F. Supp. 1258

Malissa STATZER, Plaintiff, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 1779.

United States District Court, E. D. Kentucky, Pikeville Division.

April 5, 1974.

COPYRIGHT MATERIAL OMITTED

Cooper, Gullett & Combs, Hazard, Ky., for plaintiff.

Eugene E. Siler, Jr., U. S. Atty., Robert M. Murphy, Asst. U. S. Atty., Lexington, Ky., for defendant.

MEMORANDUM OPINION

HERMANSDORFER, District Judge.

This action seeks by Summary Judgment proceedings to review a final decision of the Secretary of Health, Education and Welfare. The plaintiff sought black lung benefits under the provisions of 30 U.S.C. §§ 921(a) and 922(a)(2) as a widow of a miner. Upon the denial of her claim at all administrative levels, Mrs. Statzer brought this action on September 11, 1973. Jurisdiction is found under the provisions of 30 U.S.C. § 923(b), which incorporates by reference the provisions of 42 U.S.C. § 405(g) and (h).

The plaintiff is the widow of Lyda Statzer, a coal miner who died on November 30, 1959 after working thirty (30) years in the mines.

In order to meet the eligibility requirements for widow's benefits, the plaintiff must prove that she is the widow of a miner; that she was dependent upon him at the time of his death and that she has not remarried. 20 C.F.R. § 410.210. The Secretary acknowledges that the plaintiff has satisfied this much of her burden of proof. He contends, however, that she has not established that at the time of his death her husband was entitled to benefits¹; or that he died prior to January 1, 1974 and that he was at the time totally disabled due to pneumoconiosis²; or that his death was attributable to pneumoconiosis. 20 C.F.R. § 410.210.

As the provisions of 42 U.S.C. § 405(g) are adopted by reference, the function of this Court is to ascertain whether the Secretary's decision was supported by substantial evidence, or whether there exists such 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, 28 L.Ed.2d 842 (1971); Maggard v. Weinberger, 364 F.Supp. 1229, 1230 (E.D.Ky.1973).

In view of the difficulty of establishing the presence of pneumoconiosis at the time of the death of a coal miner, the Secretary was required to prescribe by regulation the standards for determining whether the death of the miner was due to the disease or whether he was totally disabled by the same at that time. 30 U.S.C. § 921(b). The Secretary complied with the statutory mandate by promulgating various regulations, which in conjunction with statutory standards and presumptions, establish the alternate tests for entitlement. 20 C.F.R § 410.401 et seq.

The first alternative provision sets forth a rebuttable presumption that total disability or death due to pneumoconiosis may arise where an x-ray, biopsy or autopsy confirms the existence of simple pneumoconiosis or where ventilatory function studies establish the presence of a chronic respiratory or pulmonary disease that satisfies the standards contained in the table of values set out in the regulation. 20 C.F.R. § 410.490. In this instance neither of the above presumptions have been invoked due to the lack of medical proof. There are no x-ray, biopsy or autopsy reports submitted that indicate the presence of pneumoconiosis nor has the plaintiff submitted the results of any pulmonary function study. A report submitted by Dr. James S. Rich on September 24, 1952 contains a finding of a lack of any pulmonary disease (Tr. 104-105). In any event, the plaintiff's husband continued to work in the mines until his death (Tr. 26-27). That fact alone would serve to rebut either of the two presumptions stated above had they been invoked. 20 C.F.R. § 410.490(c).

The second alternative test was established by statute, 30 U.S.C. § 921(c)(3) and adopted almost verbatim by the Secretary in promulgating the required regulations. 20 C.F.R. §§ 410.418 and 410.458. However, those regulations require a demonstration by the plaintiff that her husband suffered from the presence of complicated pneumoconiosis, by use of an x-ray, biopsy, or autopsy reports. As stated above, no such reports were submitted by the plaintiff which would establish the conclusive presumption.

The third alternative relates solely to the issue of death due to pneumoconiosis arising out of employment in the coal mines. Where a miner worked in excess of ten (10) years in the mines and died of a respiratory disease, a rebuttable presumption that his death was due to pneumoconiosis is created. 30 U.S.C. § 921(a) and (b); 20 C.F.R. §§ 410.456 and 410.462. Thus, the plaintiff need only prove that her husband's death was due to a respiratory disease to satisfy her burden of proof. However, death will not be attributed to a respiratory disease where the cause of death reported does not bear any reasonable relationship to that type of disease. 20 C.F.R. § 410.462(b). In this particular instance, the death of the plaintiff's husband was reported to have been caused by a coronary occlusion (Tr. 116) and that report contains no reference to any pulmonary condition as the cause. It must be noted again that the plaintiff's deceased was not being treated for a respiratory condition and that he was working in the mines at the time of his death.

The fourth and final alternative the plaintiff may utilize to show that she qualifies for black lung benefits is found under the provisions of 20 C.F.R. §§ 410.414, 410.426 and 410.454. A two-step process must be followed. First, the existence of pneumoconiosis must be established. Second, the plaintiff must demonstrate that the severity of the disease caused the miner to be totally disabled within the meaning of the Act.³ If the plaintiff can establish that her husband suffered from...