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MARKOSKY v. MATHEWS

August 24, 1977

JOSEPH F. MARKOSKY
v.
DAVID MATHEWS, as Secretary of Health, Education, and Welfare



The opinion of the court was delivered by: LUONGO

 In this black lung case, on January 12, 1976, I approved the first Report and Recommendation of the United States Magistrate and ordered that the action be remanded to the Secretary for further findings. After making the requested additional findings, the Secretary denied plaintiff black lung benefits under Part B, Subchapter IV, of the Federal Coal Mine Health and Safety Act of 1969 (the Act) as amended in 1972, 30 U.S.C. §§ 901-41 (Supp. V 1975).

  Before me now for consideration is the second Report and Recommendation *fn1" of the Magistrate recommending that the Secretary's motion for summary judgment be denied and recommending that summary judgment be granted in favor of the plaintiff, declaring his entitlement to benefits. Contrary to the Magistrate's recommendation, I conclude that the Secretary's findings and conclusions are supported by substantial evidence and applicable legal principles, and therefore may not be disturbed. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Litwak v. Secretary of Health, Education & Welfare, 430 F. Supp. 586 (E.D. Pa. 1977).

 FACTS

 Plaintiff filed his application for benefits under the Act in 1970 and again in 1972. His claim was first denied in February 1971 and again on reconsideration on July 19, 1973 by the Bureau of Disability Insurance of the Social Security Administration. In September 1973 plaintiff requested, and was granted, a hearing before an Administrative Law Judge (ALJ). The hearing was held in August 1974, at which time plaintiff was represented by an attorney and the case was considered de novo.

 Plaintiff Markosky testified at the hearing that he was 50 years old. He was employed as a laborer in the coal mines for a three-year period from 1950 to 1953. Prior to that time, from 1939 to 1950, and subsequent to that time, from 1954 to 1963, he was self-employed as a mine operator. His mining work involved digging, shoring, and timbering. From 1964 to 1968 plaintiff worked as a laborer in construction work. Plaintiff testified that he was unable to do construction work after 1968 because of the dust and he "don't got the wind."

 As to plaintiff's recent physical condition, he testified that he has coughing spells in the mornings and that he expectorates a whitish phlegm. He gets pains across his chest, but he has never been hospitalized for his afflictions, and has no heart disease or hypertension. Plaintiff smoked regularly until 1973 when his family doctor told him to stop smoking. He restricts his living quarters to the first floor of his home, and never ventures up the stairs to the second floor.

 At the hearing before the ALJ, plaintiff submitted reports from two doctors and a series of x-rays. The medical evidence indicated that he was afflicted to some degree with pneumoconiosis. When the x-rays submitted by plaintiff were re-read by three other physicians at the request of the Secretary, however, each of the three doctors found them negative for pneumoconiosis. The ALJ concluded that while there was evidence that the plaintiff has a chronic respiratory pulmonary impairment, "[the] preponderance of medical and other evidence does not demonstrate the presence of totally disabling pneumoconiosis." The ALJ, therefore, denied plaintiff benefits under the Act.

 The plaintiff appealed the Secretary's decision by filing suit in district court pursuant to 30 U.S.C. § 923(b) (Supp. V 1975). On cross motions for summary judgment, the Magistrate concluded that the Secretary's finding that plaintiff does not have "totally disabling pneumoconiosis" was ambiguous and unspecific. The finding could be interpreted, the Magistrate concluded, to mean that plaintiff has some degree of pneumoconiosis. The Magistrate further concluded that no finding had been made as to whether the plaintiff has a degree of respiratory impairment such that he can no longer engage in "comparable gainful employment," given that he can no longer work in the mines. If the plaintiff's respiratory function is impaired to a degree that he cannot work in the mines and cannot engage in comparable gainful work, and if any form of pneumoconiosis resulting from employment in the mines is the primary reason for his inability to engage in work, the plaintiff would be entitled to disability benefits. Thus, my order approving the Magistrate's Report and Recommendation denied the motions for summary judgment and remanded the action to the Secretary for further findings as to whether (1) the plaintiff is unable to engage in "comparable gainful work" (2) as a result of some form of pneumoconiosis arising from his employment in the mines.

 Following the hearing on remand, the ALJ made these additional findings of fact:

 
"3. The claimant has three years of coal mine employment in the Nation's coal mines, and nineteen years of self-employment in the coal mines. (Exhibit 2 and testimony of claimant).
 
4. That the preponderance of the medical and vocational evidence of record establishes the presence of a respirable disease of sufficient severity to preclude the claimant from engaging in mining or other comparable, gainful employment. (Testimony of Dr. Blum, Dr. Mika and Dr. Szuhay).
 
5. That the claimant has submitted no evidence to establish that his disabling condition arose out of his three years of covered coal mine employment under the Act, as opposed to 19 years of self-employment.
 
6. The medical evidence of record indicates that the claimant's pulmonary impairment did not arise out of his three years of covered coal mine employment. (Testimony of Dr. Blum and Dr. Mika).
 
7. The claimant's disabling impairment arose out of his entire 22 years of exposure to the silica hazard as a self-employed miner and a mine employee. (Testimony of Dr. Mika and Dr. Blum)."

 Based on the additional findings of fact, the ALJ reached the following conclusion of law:

 
"Since the claimant in this matter offered no evidence to indicate that his disabling impairment arose out of his three year employment in the Nation's coal mines, rather than 19 years of self-employment, and there is medical evidence to indicate that his disabling condition arose out of his entire 22 year exposure as a self-employed miner and coal mine employee in the record; he does not meet the tests set forth in 20 CFR 410.410(b) and 20 CFR 410.414(b) and therefore is not entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended."

 For plaintiff to be entitled to benefits, it is necessary that the impairment "arose out of" the three years plaintiff worked as an employee. 20 C.F.R. § 410.410(b)(1) (1977); see infra. The ALJ concluded that plaintiff had not submitted evidence to establish that his respiratory impairment arose out of his three years of coal mine employment, rather than out of his nineteen years of self-employment. This decision was approved by the Appeals Council of the Social Security Administration on February 7, 1977, and thus became the final decision of the Secretary. The plaintiff has again appealed the ALJ's decision by filing suit in district court, and the Secretary has again filed a motion for summary judgment. The Magistrate recommends that I deny the Secretary's motion for summary judgment and instead enter summary judgment in favor of the plaintiff, thereby declaring his entitlement to benefits.

 The Magistrate reasons that plaintiff could not possibly establish that the disabling condition arose out of the three years of employment rather than out of the nineteen years of self-employment, that the plaintiff did establish that his three years of employment "cooperated and combined" with the other years of activity to cause his disabling condition, and that "where several causes stand on the same level as being substantial factors in causing the plaintiff's disability, each will be considered a concurrent proximate cause of the plaintiff's condition." Report and Recommendation at 5-6. The Magistrate concludes that the plaintiff is therefore entitled to benefits under the Act, and that the Secretary's decision should be reversed.

 DISCUSSION

 
"'Miner' or 'coal miner' means any individual who is working or has worked as an employee in a coal mine, performing functions in extracting the coal or preparing the coal so extracted." (emphasis supplied) 20 C.F.R. § 410.110(j) (1977).

 20 C.F.R. § 410.110(m) provides in part:

 
"'Employee' means an individual in a legal relationship (between the person for whom he performs services and himself) of employer and employee under the usual common law rules.
 
(1) . . . . In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee under the usual common law rules . . . ."

 Claimants for black lung benefits may establish the necessary causal relation between past coal mine employment and an existing lung condition under one of the two subsections 20 C.F.R. § 410.416, which provides:

 
"(a) If a miner was employed for 10 or more years in the Nation's coal mines, and is suffering or suffered from pneumoconiosis, it will be presumed, in the absence of persuasive evidence to the contrary, that the pneumoconiosis arose out of such employment.
 
(b) In any other case, a miner who is suffering or suffered from pneumoconiosis, must submit the evidence necessary to establish that the pneumoconiosis arose out ...

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