Yauk v. Director, OWCP, U.S. Dept. of Labor

• Decision Date: 29 June 1989
• Docket Number: No. 87-2683,87-2683
• Citation: 912 F.2d 192
• Parties: Betty YAUK, Widow of Steve Yauk, Petitioner, v. DIRECTOR, OWCP, U.S. DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 192

912 F.2d 192

Betty YAUK, Widow of Steve Yauk, Petitioner, v. DIRECTOR, OWCP, U.S. DEPARTMENT OF LABOR, Respondent.

No. 87-2683.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1988.

Decided June 29, 1989.

I. John Rossi, Des Moines, Iowa, for appellant.

George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., Barbara J. Johnson, Sylvia T. Kaser and Michelle S. Gerdano, all attys. for OWCP, Washington, D.C., for appellee.

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

Betty Yauk petitions for review of a final decision of the United States Department of Labor Benefits Review Board (board) denying her claim for survivor's black lung benefits. For reversal, petitioner argues the administrative law judge (ALJ) incorrectly determined her husband's period of coal mine employment and erroneously refused to accept certain medical evidence. For the reasons discussed below, we reverse and remand this case with directions to award benefits.

Petitioner is the widow of Steve Yauk. In May 1973 Yauk filed a claim for black lung benefits with the Social Security Administration. For a history of the black lung benefits program, see Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S.Ct. 414, 417-19, 102 L.Ed.2d 408 (1988). In order to establish the number of years that he had been employed in the coal mines, Yauk presented an itemized statement of earnings for the years 1937-1951 from the Social Security Administration, statements from several co-workers corroborating his claims of coal mine employment at various times between 1926 and 1951, and his own statement listing his periods of employment in various coal mines from 1926 through 1951. His claim was denied in September 1973.

In 1978 Yauk died, and in January 1979 petitioner filed an application for survivor's benefits with the Department of Labor. Yauk's claim was forwarded to the Department of Labor for review. Both claims were administratively denied on December 18, 1980, and, following reconsideration, on May 7, 1981. Petitioner requested a formal hearing on her survivor's claim. The hearing was held in June 1984.

The ALJ determined that, for purposes of eligibility under the black lung benefits program, Yauk had less than five years of coal mine employment and was thus not entitled to the interim presumption under 20 C.F.R. Sec. 727.203(a) (1988). In re Yauk, No. 82-BLA-2845, slip op. at 2 (Dep't Labor Aug. 21, 1984). The ALJ then analyzed petitioner's claim under 20 C.F.R. Part 410 and denied petitioner benefits because she had failed to establish by a preponderance of the evidence that Yauk had pneumoconiosis (black lung disease) or that he had been totally disabled by a respiratory impairment caused by his employment in the coal mines at the time of his death. Slip op. at 3-4.

The Board affirmed the decision of the ALJ. Yauk v. Director, No. 84-2092-BLA (Ben.Rev.Bd. Oct. 21, 1987). This appeal followed.

"The scope of review of an ALJ's decision is limited. If adequately supported by substantial evidence and not inconsistent with the law, the ALJ's determination is conclusive and it is immaterial that the facts permit the drawing of diverse inferences." Logsdon v. Director, 853 F.2d 613, 615 (8th Cir.1988) (per curiam) (citations omitted).

On appeal, the [Board] is limited to reviewing the ALJ's decision for prejudicial errors of law and to determining whether the factual findings are supported by substantial evidence in the record as a whole; the [Board] is not empowered to engage in a de novo review or to substitute its views for the ALJ.

Hudson v. United States Department of Labor, 851 F.2d 215, 217 (8th Cir.1988) (Hudson). "This court's role is to assure that the [Board] properly adhered to its standard of review which requires this court to examine the ALJ's factual determinations and the record." Campbell v. Director, 846 F.2d 502, 507 (8th Cir.1988) (Campbell ) (footnote and citation omitted).

The threshold issue in this case is the number of years Yauk was employed in the coal mines. To be entitled to black lung benefits, petitioner must establish that Yauk was totally disabled due to pneumoconiosis at the time of his death. Because it is often very difficult to prove the existence of pneumoconiosis by clinical evidence, see, e.g., Bozwich v. Mathews, 558 F.2d 475, 479 (8th Cir.1977), the regulations established certain presumptions to be used in determining eligibility for benefits. Under the interim regulations applicable here, a miner with at least ten years of coal mine employment who can satisfy one of several "medical requirements," such as specific results in ventilatory studies, will be presumed to be totally disabled due to pneumoconiosis arising out of coal mine employment. See 20 C.F.R. Sec. 727.203(a)(2); see, e.g., Hudson, 851 F.2d at 217; Campbell, 846 F.2d at 503-07 & nn. 3, 5. The crucial precondition for application of this presumption is ten years of coal mine employment.

As noted above, the ALJ concluded that Yauk had less than five years of coal mine employment and thus was not entitled to the presumption under 20 C.F.R. Sec. 727.203(a). Yauk's Social Security records and the statements of his co-workers covered sporadic periods at numerous places of employment, including many coal mine operations. The ALJ regarded the Social Security records as the most reliable and on the basis of these records credited Yauk with one and one-half years of coal mine employment during 1937-1941 and one month of coal mine employment during 1950-51. The ALJ also accepted the statements of Yauk's co-workers about his coal mine employment during 1926-1927 and 1932-1936, but noted that Yauk had not been employed continuously in the coal mines and had often been unemployed or employed in non-coal mine work. The Board concluded that the ALJ's method of computation was reasonable and that the ALJ reasonably relied upon the Social Security records and the statements of Yauk's co-workers.

Petitioner argues the ALJ should have applied the "125-day rule" set forth in 20 C.F.R. Sec. 718.301(b) (1988) and credited her husband with one full calendar year of coal mine employment for each year he worked at least 125 days in a coal mine. The government agrees that the 125-day rule is a reasonable method of computation but argues that, even using the 125-day rule, petitioner cannot establish the requisite ten years of coal mine employment because petitioner failed to establish that Yauk had worked at least 125 days in the coal mines during any of the years in question. The government argues that the record showed that Yauk had been only seasonally employed in the coal mines, usually between October and March, and that even assuming he worked during the first and last quarters of each year, Yauk could be credited with no more than seven years of coal mine employment. The government's brief does not explain how this figure was calculated. Brief for Respondent at 14.

Our research has discovered no reported case in which the 125-day rule has been used to compute coal mine employment. The 125-day rule is the converse of 20 C.F.R. Sec. 718.301(b) which provides in part:

If an operator or other employer proves that the miner was not employed in or around a coal mine for a period of at least 125 working days during a year,...