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LLOYD v. MATHEWS

April 27, 1976

Mabel LLOYD
v.
David MATHEWS, Secretary of Health, Education & Welfare



The opinion of the court was delivered by: FULLAM

 FULLAM, District Judge.

 This is an appeal from a final decision by the Secretary of HEW denying a widow's claim for black lung survivor benefits under the Federal Coal Mine Health & Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972. 30 U.S.C. § 901 et seq. Following the usual practice in such cases, the parties have filed cross-motions for summary judgment, and the plaintiff has moved in the alternative to remand for further consideration. As required by law, the Secretary has attached to his Answer a certified transcript of the record below which includes all testimony, exhibits, and other evidence upon which his decision was based.

 My review of these materials persuades me that the Secretary's decision is not supported by substantial evidence. *fn1" Accordingly, the plaintiff's motion for remand will be granted, and the cross-motions for summary judgment will be denied.

 The success of the plaintiff's claim hinges on strictly lay proof of the physical condition of a man who died more than thirty years ago. Her late husband, Edward Phillips, was a coal miner for many years who died in a hit-and-run automobile accident in 1941 at the age of 44. No medical evidence has survived which might corroborate the family's contention that at the time of his death this man was suffering from an advanced and deliberated case of black lung disease. *fn3"

 The burden is on the plaintiff to prove that her late husband, at the time of his death, was totally disabled by black lung disease (or, considering his length of employment in the coal mines, by a chronic or severe lung ailment which the Secretary may presume to have been black lung). 20 C.F.R. § 410.210(e)(2). *fn4" Under the statute and implementing regulations this may be done in three ways.

 The first route is to qualify, if possible, under the Secretary's interim adjudicatory rules, 20 C.F.R. § 410.490. These establish a rebuttable presumption that a deceased miner was totally disabled by pneumoconiosis at the time of his death, if there is medical evidence, in the form of a chest x-ray, biopsy, or autopsy report, which confirms the existence of simple pneumoconiosis in the miner's body. Alternatively, where the miner was employed in the coal mines for at least fifteen years, a claimant may proceed under the presumption if she produces ventilatory studies which verify the presence of a "chronic respiratory or pulmonary disease" meeting certain durational requirements. The burden then shifts to the Secretary to rebut the presumption with evidence that the miner was not totally disabled at the time of his death, i.e., was performing (or was physically capable of performing) his "usual mine work or comparable and gainful work." 20 C.F.R. § 410.490(c)(1), (2).

 The interim rules' presumption is generous, but it does not arise in the absence of specified medical evidence, which the plaintiff here has been unable to produce. Lay testimony about the miner's physical condition will not suffice to invoke the presumption. McConville v. Weinberger, 394 F. Supp. 1194 (W.D.Pa.1975), affd., 530 F.2d 964 (3d Cir. 1976).

 Likewise, Mrs. Lloyd cannot qualify for the irrebuttable presumption of total disability due to pneumoconiosis which is set forth in the statute at 30 U.S.C. § 921(c)(3) and in the Secretary's permanent rules at 20 C.F.R. §§ 410.418 and 410.458. This presumption arises only upon medical proof -- stricter than that demanded by the interim rules -- that the deceased miner was afflicted by severe, or "complicated" pneumoconiosis. Obviously a claimant who is unable to furnish medical evidence even of simple pneumoconiosis cannot proceed under § 921(c)(3) and its counterpart provisions in the permanent rules. Zirkle v. Weinberger, 401 F. Supp. 945 (N.D.W.Va.1975).

 The plaintiff's final alternative is to prove by whatever evidence she can muster, including lay testimony, that (1) her late husband, at the time of his death, suffered from black lung disease or, at the very least, a "severe lung impairment" (20 C.F.R. § 410.414[b][4]) or "chronic respiratory or pulmonary impairment" (§ 410.414[c]), which (2) rendered him totally disabled within the meaning of the Act. 30 U.S.C. § 923(b); 20 C.F.R. §§ 410.414, 410.422, 410.426, 410.454. *fn5" On this track of the statute, where the claimant is forced to proceed without the benefit of any favorable presumption on the issue of total disability, the Secretary must consider all the facts of the case and "other relevant evidence" besides medical or physical performance data. Lay testimony from the widow and other persons with knowledge of the deceased minor's physical condition is of crucial importance here and must be given due weight by the finder of fact.

 When the plaintiff married Edward Phillips in 1921, he was already working as a coal miner, having served a stint in the Army. He had very little formal education and no specialized job training; all his working life he was a miner. The employment records are sketchy, but they do indicate that Mr. Phillips worked as a miner for the East Bear Ridge Coal Company from 1924 to 1939. *fn6" Mrs. Lloyd's present recollection is that her husband worked at the East Bear Ridge Colliery until mid-1941. (The Administrative Law Judge assumed, as I will, that Phillips did work full-time for a mining company, either East Bear Ridge or another, through part of 1941). Shortly before his death, Phillips either quit or was laid off from his mining job, because, according to the plaintiff, he was no longer physically able to do his work. From there he went briefly to work in an independent, or "bootleg", mine with several other men, thinking "maybe it would be easier on him but it wasn't" (Tr. 48). Two or three weeks later, Phillips left the bootleg hole, unable to keep up. He went with his family to seek a "little light job" in Philadelphia, where they had relatives (Tr. 50). On the way back from this trip, which was unsuccessful, he was struck and killed by a hit-and-run car.

 At the hearing the plaintiff and her sister testified about Edward Phillips' physical condition during the last few years of his life. According to them, he exhibited the classic symptoms of what is known to its victims and their families as "miner's asthma." He "coughed a lot and he spit up black" (Tr. 37). He could not climb stairs, and slept on the first floor of his house, propped up with pillows. His lips and nails turned blue, and he lost weight (Tr. 37, 38, 44). He "changed from a young man to an old man" (Tr. 63). He could not walk more than half a block without having to stop for five or ten minutes to catch his breath (Tr. 43-44). He often complained of chest pain (Tr. 55), and went once a week to a doctor who prescribed medicine for his breathing problem and advised him to "get out of the mines" (Tr. 48). He gave up hunting, driving, and all physical exercise and recreation, and could not work full-time. Where once he had worked six days a week in the mines, he was forced to stay home several days a week towards the end of his life (Tr. 51-53). On the job, he was unable to do his share of the work and relied on his friends to help him get by (Tr. 48). The plaintiff and her sister testified that they each were personally familiar with the ravages of black lung disease; their brothers were coal miners and died of ...


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