1975); Lloyd v. Mathews, 413 F. Supp. 1161, 1162 n.1 (E.D. Pa. 1976) (Fullam, J.).
The Act and the implementing regulations provide several alternative routes by which a widow can satisfy her burden of proof and establish a right to black lung benefits: (1) by meeting the requirements interim adjudicatory rules appearing in 20 C.F.R. § 410.490 (creating a rebuttable presumption of total disability due to pneumoconiosis at the time of death); (2) by establishing through chest x-rays, biopsies, autopsies or similar diagnostic techniques, the existence of complicated pneumoconiosis in accordance with 20 C.F.R. § 410.418 (thereby creating an irrebuttable presumption of total disability due to pneumoconiosis at the time of death);
(3) by satisfying the general criteria for determining total disability appearing in 20 C.F.R. §§ 410.414, 410.426, 410.454, 410.456, 410.462.
In this case the deceased miner never underwent either a ventilatory function study or a biopsy. No autopsy was ever performed. Consequently, the only way in which the plaintiff could qualify for benefits under the interim adjudicatory rules is through production of a chest x-ray which established the existence of pneumoconiosis; lay testimony on the deceased miner's symptomatology would not satisfy the requirements of this particular regulation. McConville v. Weinberger, 394 F. Supp. 1194 (W.D. Pa. 1975), aff'd, 530 F.2d 964 (3d Cir. Feb. 12, 1976).
Plaintiff regards Dr. Fink's interpretation of the deceased miner's 1970 chest x-ray (pneumoconiosis subcategory 0/1), as sufficient to establish the presence of totally disabling pneumoconiosis. However, the regulations promulgated by the Secretary specifically provide that a chest x-ray classified under either subcategory 0/1 or 0/0 (the latter being Dr. Furnary's reading of Mr. Romanot's 1970 chest x-ray) is not accepted as evidence of pneumoconiosis. 20 C.F.R. § 410.428.
If a deceased miner was employed in the coal mines for a period of 10 years or more, and died of a respirable disease, a rebuttable presumption arises under the permanent rules that the miner's death was a result of pneumoconiosis. 30 U.S.C. § 921(c)(2)(2) (app. 10a); 20 C.F.R. 410.462(a). A widow of a deceased miner only has to prove that her husband died of a respirable disease.
In this case, the medical evidence indicates that death was due, not to a chronic dust disease or another chronic disease of the lung, but rather the result of a cerebral thrombosis. Although the death certificate was completed by a coroner without medical training, that fact does not preclude a finding by the Administrative Law Judge that the cause of death was that stated therein. See Cusatis v. Mathews, 405 F. Supp. 619 (E.D. Pa. 1976) slip op. at 2 (Troutman, J.). Unlike the factual situation in Cusatis v. Mathews, here the cause of death appearing on the death certificate was verified by the deceased miner's physician, Dr. Mika. Although Dr. Mika's testimony and earlier-submitted medical report vary in emphasis, both ultimately confirm that cerebral thrombosis was the cause of death (Tr. 55-56). Despite a statement to the effect that a lung or pulmonary condition may have played a "significant role" in causing Mr. Romanot's death, the doctor finally concluded that the cause of death was cerebral thrombosis and not pneumoconiosis or any lung disease (Tr. 55-56).
In addition, the Administrative Law Judge, as the trier of fact, is entitled to weigh the evidence of record and to give more credence to some of Dr. Mika's statements as compared with others. Richardson v. Perales, supra, 402 U.S. at 399. Dr. Mika's earlier report of the deceased's physical problems, did not include any mention of black lung disease, but identified chronic brain syndrome secondary to cerebral arteriosclerosis as the predominant disabling disease. That report is consistent with Dr. Mika's final conclusion that the deceased died from cerebral thrombosis. Furthermore, while Dr. Mika testified that a respiratory ailment such as pneumoconiosis or emphysema may bear some relationship to cerebral thrombosis, he could not report that such a linkage was explored in the case of this deceased miner. Dr. Mika also was unable to report that "pneumoconiosis or emphysema causes high instance of cerebral thrombosis" (Tr. 55). This case is analogous to the fact situation in Perlinsky v. Weinberger, Civil No. 74-1583 (E.D. Pa. February 28, 1975) aff'd, No. 75-1464 (3d Cir. October 15, 1975). In Perlinsky a treating physician expressed his opinion that pneumoconiosis or anthracosilicosis played a significant factor in the miner's demise and that the respiratory illness "accelerated" the miner's death. The Court concluded:
Although it is conceivable that a fact finder could conclude from such testimony that decedent died from a respiratory disease, rather than the automobile accident, thus obtaining the benefit of the rebuttable presumption that death was caused by pneumoconiosis, there is certainly substantial evidence that the cause of death was the automobile accident, and not pneumoconiosis or anthracosilicosis. A reading of the record certainly confirms the Secretary's finding that "the evidence overwhelmingly establishes that the miner's death was . . . [due to] . . . an automobile accident."
Perlinsky v. Weinberger, supra, at 4. Similarly, although it is conceivable that a fact finder could conclude, after listening to plaintiff's testimony
about her husband's symptoms of pneumoconiosis from 1962 until his death, that death was caused by pneumoconiosis, a reading of the record overwhelmingly supports the Secretary's conclusion that death was the result of cerebral thrombosis. See also Bickelman v. Weinberger, Civil No. 74-2855 (E.D. Pa. July 3, 1975), at 4 (Fullam, J.). Lay testimony is "just one of several factors that must be weighed together with the medical evidence." Statzer v. Weinberger, 383 F. Supp. 1258, 1262 (E.D. KY. 1974). Furthermore, the Administrative Law Judge is not required to believe the testimony of an interested witness, even if not contradicted. Rennar v. Weinberger, 399 F. Supp. 1301, 1304 (E.D. Okla. 1975).
Even if Mr. Romanot's death was caused by multiple factors, i.e. by both pneumoconiosis and cerebral thrombosis, those diseases were separable. In other words, Dr. Mika was able to identify which disease caused death. There is no evidence that the decedent died of a cerebral thrombosis secondary to pneumoconiosis or some other chronic dust or lung disease. Therefore, plaintiff's attempt to satisfy her burden of proof in accordance with the regulation appearing in 20 C.F.R. § 410.462(b) is to no avail. White v. Weinberger, 399 F. Supp. 268, 270-271 (W.D. Va. 1975); See, Butliewicz v. Weinberger, 413 F. Supp. 520 (E.D. Pa. 1976) (Ditter, J.).
In denying survivor's benefits in this case, the Secretary was obviously persuaded by the following factual considerations: (1) there was no medical evidence to support a diagnosis of pneumoconiosis or other pulmonary or respiratory impairment, other than the varying testimony of Dr. Mika; (2) the physical and x-ray examinations of the deceased miner's chest, conducted in 1963, 1966 and 1970, revealed no significant abnormalities; and (3) the deceased miner was never treated by a doctor for his respiratory difficulties despite his numerous hospitalizations and intermittent contact with Dr. Mika over a seven year period.
Finally, it is evident from the administrative record that the deceased was totally disabled at the time of his death. However, as in Campbell v. Weinberger, 402 F. Supp. 1147, 1152 (Va. 1975), "a miner may be determined to be totally disabled due to pneumoconiosis only if that disease is the primary reason for his inability to engage in comparable gainful work. Medical impairments other than pneumoconiosis may not be considered." See 20 C.F.R. § 410.426. The overwhelming medical evidence in this case shows that the decedent was precluded from engaging in comparable gainful work by cerebral thrombosis, the disease that primarily concerned Dr. Mika, as well as the deceased miner's other treating physicians.
The plaintiff's motion for summary judgment is DENIED; the Secretary's motion for summary judgment is GRANTED.
BY THE COURT:
A. Leon Higginbotham, Jr.
AND NOW, this 2nd day of July, 1976, consistent with the foregoing memorandum opinion, it is hereby
ORDERED, ADJUDGED and DECREED that defendant's motion for summary judgment is GRANTED. Plaintiff's motion for summary judgment is DENIED.
BY THE COURT:
A. Leon Higginbotham, Jr.