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PUTSAKULISH v. CALIFANO

March 31, 1978

FRANK PUTSAKULISH Plaintiff
v.
Joseph A. Califano, Secretary of Health, Education and Welfare , Defendant



The opinion of the court was delivered by: SNYDER, JR.

 The Plaintiff, Frank Putsakulish, has appealed a final decision of the Secretary of Health, Education and Welfare denying his claim for black lung benefits. Under Section 205(g) of the Social Security Act (42 U.S.C. § 405(g)), this Court may enter judgment based on the pleadings affirming, modifying, or reversing the decision of the Secretary. The Secretary, however, must be affirmed so long as his decision is supported by "substantial evidence" in the record, for if so supported the Secretary's findings are here conclusive. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Baerga v. Richardson, 500 F.2d 309 (3rd Cir. 1974), cert. den. 420 U.S. 931, 43 L. Ed. 2d 403, 95 S. Ct. 1133 (1975); Hess v. Secretary, 497 F.2d 837 (3rd Cir. 1974). Inasmuch as we find there is no substantial evidence to support the Secretary's denial, we will refuse the Secretary's Motion for Summary Judgment and enter judgment for the Plaintiff.

 I.

 At the hearings, Plaintiff testified he was 58 years old, a high school graduate, married and with two dependent children. During the period covering 1935 to 1973, he worked for three years as an underground miner and for the balance of time he worked as a coal processor. He testified that he became short of wind after very little exertion, a condition which he had experienced for four or five years prior to stopping work. He told of going to his family physician, Dr. Martin, who x-rayed him and advised "get away from the mines if you want to save what health you have." On January 1, 1973, Mr. Putsakulish became a Monitor for District 2 of the United Mine Workers and, in July of 1973, he was elected President of the Local. Since that time, he has occupied a desk position.

 On September 24, 1974, at the request of his counsel, Mr. Putsakulish was examined by Dr. Robert F. Klemens, a Board Certified Internist, *fn1" who found "he has a sizeable degree of Coal Worker's Pneumoconiosis and this condition he has acquired during his many years of work in the coal mines has reached the point that he must be considered totally and permanently disabled from performing any type of useful work of the type noted above." Dr. Klemens took his own x-rays and found: "The lung fields contain both rounded and irregular densities, the most classifying feature is that of a rounded density 1 m.m. in diameter present in all 6 lung zones and these densities partly obscure the normal lung markings. The overall chest x-ray is compatible with Coal Worker's Pneumoconiosis, type p, profusion 2/2 involving 6 zones." We must note in passing that Dr. Klemens is also a Medical Examiner for the United States Department of Labor, Social Security Administration, and the Pennsylvania Occupational Disease Division.

 Dr. Klemens' x-ray film was subsequently submitted to two radiologists, certified as "B" Readers of Coal Miners' X-rays by the National Institute of Occupational Safety and Health, Public Health Service. *fn2" Dr. Leonard J. Bristol found the films to be of very poor quality, commenting that it was "grossly underexposed and of very poor diagnostic quality." He, nevertheless, interpreted the film as being negative of Pneumoconiosis. Dr. Benjamin Felson found the film to be "unreadable", but probably normal.

 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.

 II.

 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 ...


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