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SEVER v. MATHEWS

May 26, 1977

Frank A. SEVER
v.
David MATHEWS



The opinion of the court was delivered by: GREEN

 CLIFFORD SCOTT GREEN, District Judge.

 This case is before the Court on cross-motions for summary judgment following plaintiff's appeal from a final decision of the Secretary of Health, Education and Welfare (hereinafter referred to as "Secretary") denying plaintiff "black lung" disease benefits under Part B, Subchapter IV of the Federal Coal Mine Health and Safety Act of 1969 (hereinafter referred to as "Act") as amended in 1972, 30 U.S.C. § 901 et seq.

 We are limited in our review to the determination of whether the Secretary's decision is supported by substantial evidence. Judicial review of decisions of the Secretary in Federal Coal Mine Health and Safety Act cases is governed by the statutory standard provided for in § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), which provides, inter alia, "[the] findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . .." *fn1" (citations omitted) Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971).

 Plaintiff filed a claim for benefits under the Act on January 29, 1970. The application was administratively denied, and plaintiff requested a hearing before the Bureau of Hearings and Appeals. The hearing was held on January 21, 1975. On May 7, 1975, the Administrative Law Judge (hereinafter referred to as "Judge") denied the benefits to claimant. This decision was affirmed by the Bureau of Hearings and Appeals, and plaintiff filed this civil action seeking reconsideration of the Judge's decision.

 Resolution of conflicts in the evidence is for the Secretary. We are mindful that the Secretary's findings of fact are conclusive if supported by substantial evidence. Richardson v. Perales, supra. After a careful review of the entire record and legal memoranda filed by counsel we are convinced that there is substantial evidence to support the findings of the Secretary and that the law has been properly applied to the facts. Accordingly, we must deny plaintiff's motion for summary judgment and grant defendant's motion for summary judgment because there is no genuine issue as to any material fact, and defendant is entitled to judgment as a matter of law.

 The Administrative Law Judge (Judge) made, inter alia, the following findings. *fn2"

 
3. That the claimant does not suffer from simple or complicated pneumoconiosis.
 
4. That the claimant does not suffer from a chronic pulmonary or respiratory impairment presumed to be pneumoconiosis.

 On the basis of these findings, the Judge decided that Mr. Sever is not entitled to benefits under the Act.

 In attacking the aforesaid findings, plaintiff contends that there is not substantial evidence of record to support them. A review of the record to support them. A review of the record discloses that even when considered in the light most favorable to plaintiff, evidence concerning the establishment of disability by way of x-ray evidence is conflicting. Of course, the resolution of the conflict is for the Secretary. The evidence favorable to plaintiff is a reading of a September 28, 1970 x-ray by William Dzurek, M.D. as disclosing "first degree anthracosilicosis, with segmental emphysema". *fn3" We note also that plaintiff relies upon an x-ray interpretation by Joseph C. Furnary, M.D. of an x-ray taken June 9, 1972 which is described as not completely negative. *fn4" However, the great preponderance of the evidence concerning x-rays supports the Administrative Law Judge's decision that plaintiff did not establish his entitlement to benefits under the Act. This contrary evidence is that a March 23, 1972 x-ray was interpreted as completely negative for pneumoconiosis by Bob W. Gayler, M.D. a "B" reader of x-rays. *fn5" The x-ray of June 9, 1972 read by "B" reader Joseph C. Furnary, M.D. as "not completely negative" cannot be interpreted as evidencing pneumoconiosis in claimant. We note also that Mordecai Halpern, M.D., a "B" reader, reread the June 9, 1972 film as completely negative for pneumoconiosis. *fn6" All of the x-rays referred to above, that is the September 28, 1970, March 23, 1972 and June 9, 1972 x-rays, were reread in series on June 24, 1974 by Leonard J. Bristol, M.D., a "B" reader, who determined that the films showed no sign of pneumoconiosis. *fn7" It is clear that the Secretary's determination that plaintiff had not established his entitlement by x-ray evidence is clearly supported by substantial evidence.

 It is also clear that there is substantial evidence to support the Administrative Law Judge's determination that plaintiff did not establish entitlement by way of pulmonary function studies. A study performed on October 15, 1970 at the Pottsville Hospital produced a one-second forced expiratory volume (FEV 1) 2.98L and maximum voluntary ventilation (MVV) of 77 L/min. *fn8" At the time of the studies plaintiff's height was listed as 69 1/2 inches, but at the hearing he testified that in fact he was 6 feet 6 inch or 78 inch. The MVV value is less than that shown by the appropriate table whether plaintiff's height is taken as 69 1/2 inches or as 78 inches. *fn9" However, regulations require that both the FEV 1 and the MVV be equal to or less than the value shown in the table. The FEV 1 of 2.98L clearly exceeds the 2.7L permitted for a person more than 72 inches in height. *fn10" Thus plaintiff failed to demonstrate through pulmonary function tests and ventilatory function studies the presence of a chronic respiratory or pulmonary disease which could be presumed to be pneumoconiosis.

 Other evidence which supports the finding of the Administrative Law Judge is that arterial blood gas studies performed on December 18, 1970 by Leo J. Corazza, M.D. were within normal limits. *fn11" There is substantial evidence to support the Secretary's findings that the plaintiff has not established entitlement under 20 C.F.R. 410.490(b)(1)(i) by establishing pneumoconiosis by x-ray. Plaintiff has also failed to establish by ventilatory studies the presence of a chronic respiratory or pulmonary disease entitling him to a presumption of disability due to pneumoconiosis under the interim rule 20 C.F.R. 410.490(b)(1)(ii). Plaintiff has not demonstrated the existence of complicated pneumoconiosis under 20 C.F.R. 410.418 because he has not demonstrated the existence of this disease by the required x-ray or biopsy reports. Plaintiff relies most heavily on the establishment of entitlement under 20 C.F.R. 410.424, arguing that all the facts of the case, giving primary consideration to the medical evidence, establishes that he is totally disabled due to pneumoconiosis arising out of employment in the nation's coal mines. The other facts in this case are the plaintiff's testimony to a persistent hacking cough, a persistent irritated throat and a regular spit up of bloody phlegm together with short windedness and pain in his lungs which render him incapable of walking up hills. Plaintiff also testified that he frequently finds it necessary to sleep sitting up in the chair when he can sleep at all. He testified that his personal physician, Dr. Charles Delp, has treated him for the condition since 1964. *fn12" It is clear that ...


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