The opinion of the court was delivered by: NEWCOMER
Newcomer, District Judge.
In this black lung case, plaintiff seeks review of the final decision of the Secretary of the Department of Health, Education and Welfare that the plaintiff, Peter Petrock, is not entitled to benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, Black Lung Benefits Act of 1972, 30 U.S.C.A. § 901 et seq. (Supp. 1977). Both plaintiff and defendant have filed motions for summary judgment. As this Court finds that there is not substantial evidence to support the administrative determination of non-eligibility, plaintiff's motion for summary judgment will be granted.
Plaintiff filed an application for black lung benefits on April 27, 1973. The Bureau of Disability Insurance of the Social Security Administration denied the application both initially and on reconsideration. Plaintiff, on June 16, 1974, filed a request for a hearing; hearings were held on June 17, 1975 and on September 24, 1975. On December 24, 1975, the Administrative Law Judge (ALJ) found that the plaintiff was not entitled to benefits under the Act. After review of additional medical evidence, the decision of the ALJ was adopted as the final decision of the Secretary when the Appeals Council approved it on December 6, 1976.
The issue before this Court is whether the decision of the Secretary is supported by substantial evidence, for if it is this Court must allow the Secretary's determination to stand. 30 U.S.C.A. § 923(b) (Supp. 1977), incorporating by reference 42 U.S.C. § 405(g), (h) (1970). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lisefski v. Weinberger, 403 F. Supp. 1364 (E.D. Pa. 1975). The Black Lung Benefits Act and the regulations promulgated thereunder establish several avenues by which the plaintiff can establish his claim; in order to affirm the Secretary's denial of benefits, this Court must find that the Secretary's closing off of each avenue is supported by substantial evidence.
Coal miners who are totally disabled due to pneumoconiosis are entitled to benefits under the Black Lung Benefits Act. A miner is entitled to benefits if he or she can satisfy the interim criteria contained in 20 C.F.R. § 410.490 (1976) or the permanent criteria contained in 20 C.F.R. §§ 410.412-.462 (1976).
Under the interim criteria, if a miner files a claim for benefits before July 1, 1973, and a chest X-ray or biopsy establishes pneumoconiosis, or ventilatory studies show the existence of a chronic respiratory or pulmonary disease, the miner is rebuttably presumed to be totally disabled due to pneumoconiosis and therefore, in the absence of sufficient contradictory evidence, eligible for benefits. The Secretary found that the plaintiff did not satisfy the requirements of the interim regulations and this Court finds that there is substantial evidence to support that determination. Although several chest X-rays were taken of the plaintiff, only one X-ray taken prior to 1973 was read as positive and it was reread by NIOSH certified readers as completely negative. The overwhelming negative chest X-ray evidence allows this Court to find that there was substantial evidence to support the determination that the X-ray evidence did not establish pneumoconiosis. No biopsy evidence was introduced into the record. While the plaintiff underwent a ventilatory test, the ALJ found that he could not use the results from the test to make his determination under the interim regulations. Because 20 C.F.R. § 410.430 (1976) requires that the ventilatory study must show the results of three appropriately labelled spirometer tracings and the plaintiff's study fails to do so, the ALJ found that the results could not be deemed to conclusively establish the existence of a respiratory or pulmonary disease. As these studies do not meet the requirements of 20 C.F.R. § 410.430 (1976) there was substantial evidence for the Secretary's holding that the interim criteria were not met by the plaintiff.
Turning to the permanent criteria for establishing a claim under the Black Lung Benefits Act, there are various routes a claimant can take to establish a claim under the relevant regulations. First, under 20 C.F.R. § 410.418 (1976) an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis arises when evidence establishes that the miner has complicated pneumoconiosis; the ALJ found that the X-ray reports and the medical evidence did not demonstrate that the plaintiff suffered from complicated pneumoconiosis. In order to be entitled to 20 C.F.R. § 410.418's irrebuttable presumption of total disability, X-ray evidence, biopsy or other medical evidence indicating complicated pneumoconiosis must be introduced; as no such evidence was admitted, there is substantial evidence to support the finding of no complicated pneumoconiosis.
Two other sections of the regulations provide means by which the plaintiff could establish his claim. The regulations provide in 20 C.F.R. § 410.414 (1976) that even though a miner does not establish a claim pursuant to 20 C.F.R. § 410.414(a)(1976) it is still possible, by fulfilling either the requirements of 20 C.F.R. § 410.414(b) or (c) (1976) that he or she may be entitled to benefits under the Black Lung Benefits Act. The ALJ rendered a finding only as to 20 C.F.R. § 410.414(c); as this Court finds that there is not substantial evidence to support the ALJ's and Secretary's denial of benefits under 20 C.F.R. § 410.414(c), it will not be necessary to decide whether the plaintiff makes out a claim under 20 C.F.R. § 410.414(b).
20 C.F.R. § 410.414(c) provides that:
Even though the existence of pneumoconiosis is not established as provided in paragraph (a) or (b) of this section, a finding of total disability due to pneumoconiosis may be made if other relevant evidence establishes the existence of a totally disabling chronic respiratory or pulmonary impairment, and that such impairment arose out of employment in a coal mine. As used in this paragraph, the term "other relevant evidence" includes medical tests such as blood gas studies, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the miner's physician, his spouse's affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the individual's physical condition and other supportive materials. In any event, no claim for benefits under Part B of Title IV of the Act shall be denied solely on the basis of a negative chest roentgenogram (X-ray).
While the ALJ concluded that the evidence as a "whole [failed] to establish that the claimant [had] a respiratory or pulmonary impairment of the level of severity as to be totally disabling," (T.R. 34), the ALJ found the primary problem with the evidence to be its failure to show a pulmonary or respiratory impairment and not that it did not indicate that the plaintiff was totally disabled. The ALJ's finding that the plaintiff did not establish that he suffered from a respiratory or pulmonary impairment was based on the report of a physical examination conducted by one doctor and the negative X-rays of the plaintiff's chest; the Secretary adopted the ALJ's findings. However, this Court holds that the ...