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]) 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.
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.
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 miner's asthma (Tr. 58, 64-65). Both affirmed that Edward Phillips was a victim of miner's asthma, and that his physical condition deteriorated significantly in the last two years of his life. In the following exchange with the Administrative Law Judge, the plaintiff's sister, Mrs. Ida Briggs, was asked to describe Edward Phillips' cough:
"Q Did you ever see him choke from his cough?
"A Well he would cough very hard but then I'd get up and walk out of the room because I, it was terrible.