Plaintiff's counsel then submitted an additional report from Dr. Klemens in which he stated that the chest x-ray was definitely compatible with Pneumoconiosis. The Administrative Law Judge in his determination assigned particular weight to the interpretations of Drs. Bristol and Felson and found that the evidence did not establish that the Plaintiff here was affected by Pneumoconiosis on or before June 30, 1973.
The testimony of Dr. Klemens explained an x-ray technique he uses which employs 120 to 125 thousand volts compared to the usual 60 to 80 thousand volts employed for chest x-rays in hospital x-ray departments. He said he used normal x-ray machines, but employs a special grid and a special fixed beam length, designed by him for the specific purpose of diagnosing dust diseases. Neither Dr. Bristol nor Dr. Felson were apprised of the difference in the x-ray techniques used by Dr. Klemens, nor were they asked to comment in any way upon the testimony given by Dr. Klemens.
In ventilatory testing on November 27, 1973, Plaintiff registered a forced expiratory volume at 1-second (FEV1) of 2.9 liters and a maximum voluntary ventilation (MVV) of 75 liters per minute. On September 24, 1974, the FEV1 measurement of Plaintiff was 3.3 liters and the MVV was 96 liters per minute. Mr. Putsakulish is 70 inches tall, and under the interim adjudicatory rule to qualify for an irrebuttable presumption of total disability, a miner of that height would have to record an FEV1 measurement of 2.5 liters or less and an MVV of 100 liters or less per minute. A later pulmonary study done by Dr. Klemens on November 23, 1976 was found to be normal. Accordingly, Mr. Putsakulish does not qualify for an irrebuttable presumption of total disability.
The Federal Coal Mine Health and Safety Act of 1969 prescribes several presumptions for use in determining disability. Section 921(c)(3) allows an irrebuttable presumption of disability if a chronic dust disease of the lung is diagnosed by chest roentgenogram (x-ray) or other medical tests which could reasonably be expected to yield the same results. The Secretary has determined that the plaintiff failed to submit a positive x-ray from which a diagnosis of a chronic dust disease could be made. Since this decision is supported by substantial evidence, it must be affirmed.
Under Section 921(c)(4) of the Act, a rebuttable presumption arises if a miner was employed for 15 years or more in underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner's claim, and it is interpreted as negative with respect to the requirements of Subsection (c)(3), and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment. This subsection allows the Secretary to rebut such presumption only by establishing that (A) such miner does not, or did not, have Pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.
The specific issue before the Court is whether Plaintiff here is entitled, on the basis of the evidence of record, to a rebuttable presumption of total disability such as to shift the burden to the Secretary to show that the disability is the result of some cause other than Pneumoconiosis. If so, we must determine whether the Secretary has met that burden.
The Regulations provide that "other relevant evidence" to be considered in establishing a rebuttable presumption of total disability includes physical performance tests, medical tests, pulmonary function studies, any medical history, and evidence submitted by the miner's physician, as well as the miner's age, education and work experience. 20 C.F.R. §§ 410.414(c), 410.422(c). The foregoing list is not exclusive however, as the Secretary has directed that whether or not the Pneumoconiosis in a particular case renders a miner totally disabled is to be determined from all the facts of the case. 20 C.F.R. §§ 410.414(b)(1), 410.422(c). Our Circuit has recognized the purpose of these presumptions to be enabling claimants to obtain benefits despite absence of a clinical diagnosis of Pneumoconiosis as the exact cause of total disability, Smakula v. Casper Weinberger, Sec. of HEW, 572 f.2d 127, slip op. at 3 (3rd Cir. 1978), and that they clearly contemplate that lay evidence of a miner's chronic respiratory impairment may support a presumption of disability due to Pneumoconiosis.
Id.. slip op. at 5; see Bozwich v. Mathews, 558 F.2d 475 (8th Cir. 1977).
Plaintiff in the present case has offered substantial medical and lay testimony indicating the presence of a disabling respiratory or pulmonary impairment which has prevented him from continuing in his employment, and entitling him to a rebuttable presumption of Pneumoconiosis. The record does not indicate that the Administrative Law Judge considered this presumption.
When a rebuttable presumption of disability applies under Section 921(c)(4), the burden shifts to the Secretary to show that the claimant's disability is not caused by Pneumoconiosis. 30 U.S.C. § 921(c)(4)(A); Ansel v. Weinberger, 529 F.2d 304 (6th Cir. 1976); Henson v. Weinberger, 548 F.2d 695 (7th Cir. 1977); Bozwich v. Mathews, supra; Prokes v. Mathews, 559 F.2d 1057 (6th Cir. 1977); Pannell v. Califano, 568 F.2d 773 (4th Cir. 1978); Smakula v. Weinberger, supra. Such a presumption may not be rebutted solely on the basis of a negative chest x-ray. 20 C.F.R. § 410.414(c); Henson v. Weinberger, supra; Bozwich v. Mathews, supra; Prokes v. Mathews, supra; Pannell v. Califano, supra; Litwak v. Sec. of HEW, 430 F. Supp. 586 (E.D.Pa. 1977); cf. Smakula v. Weinberger, supra. Furthermore, where a ventilatory study does not establish that the miner is totally disabled, total disability may nevertheless be found if the other relevant evidence (§ 410.414(c)) establishes that the miner has a chronic respiratory or pulmonary impairment. Id., 410.426(d).
The Courts have upheld the intent of the Regulations that negative x-rays and ventilatory tests not be relied upon to rebut the presumption of 30 U.S.C. § 921(c)(4). In Ansel v. Weinberger, supra, the Sixth Circuit reasoned:
"The Secretary contends that the presumption was rebutted by evidence which established that Claude Ansel did not have pneumoconiosis. He relies on the negative findings of three radiologists who examined x-rays and the pulmonary studies. It is obvious that the negative x-rays may not be relied upon to rebut the presumption of section 921(c)(4). If he had been able to produce a positive x-ray, there would have been no need to invoke the presumption. The very existence of a negative x-ray is a prerequisite to reliance upon the presumption of pneumoconiosis as established by other evidence. Furthermore, under the 1972 amendment, negative x-ray evidence may not be the sole basis for a denial of benefits. 30 U.S.C. § 923(b). Nor do we believe the presumption of Section 921(c)(4) can be rebutted by showing that pneumoconiosis was not established by pulmonary function studies. The regulation which establishes the levels required for a finding of disabling pneumoconiosis on the basis of a ventilatory study does not purport to provide proof of the nonexistence of pneumoconiosis. Once Claude Ansel produced evidence which entitled him to the presumption of Section 921(c)(4), that presumption could be rebutted only by establishing that he did not have pneumoconiosis, there being no contention that his impairment did not arise out of employment in the mines . . . . [it] appears that the Secretary would have been required at least to produce a medical opinion that Mr. Ansel did not have pneumoconiosis in order to rebut the presumption." 529 F.2d at 309-10.