condition existing subsequent to 1952, specifically as of 1973. As mentioned before, we find there to be abundant evidence to "demonstrate the existence of a totally disabling respiratory or pulmonary impairment" within the standards of Ansel, Henson, Bozwich, Morris, Prokes, and Smakula. Dr. Stish testified that plaintiff was totally disabled due to anthracosilicosis and pulmonary emphysema. This finding was based on medical history, tests conducted by Dr. Stish, tests conducted by other physicians which he had examined, and consultation with plaintiff's previous physician. Dr. Stish's testimony alone, when coupled with plaintiff's and plaintiff's wife's testimony would have been sufficient to invoke the presumption of § 921(c)(4) under Henson, Bozwich, and Ansel. But there was other evidence besides, namely a clinical finding by Dr. Corazza, who administered one of the ventilatory (pulmonary function) studies, a finding of total disability by a state board, and the ALJ's observation of his symptoms.
The above lengthy discourse has had one purpose: to determine whether the Appeals Council's conclusion, which was that total disability due to a respiratory or pulmonary impairment had not been "demonstrated," could be supported by "substantial evidence." The formulation, it will be remembered, requires that a reasonable mind find there is adequate evidence to support the conclusion. We determine that no reasonable mind could find adequate record evidence in this case to support the conclusion that the rebuttable presumption was not invoked (or, otherwise put, that the factual predicate for that presumption had not been "demonstrated," when the crucial word "demonstrate" in § 921(c)(4) is applied in its legally correct sense). Therefore, we find the Appeals Council's decision not to be supported by substantial evidence.
Conversely, we find that the decision of the Administrative Law Judge, involving as it did his finding of the existence of total disability due to a respiratory of pulmonary impairment, is "certainly supported by substantial evidence." Smakula, supra, at 133.
D. Remaining Elements Entitling Plaintiff to an Award of Benefits
At this point, we have simply determined that the ALJ's conclusion (that the factual predicate for invoking the rebuttable presumption had been demonstrated) is supported by substantial evidence, whereas the Appeals Council's conclusion (that it had not been demonstrated) is not so supported. As detailed in part II supra, plaintiff must prove a number of additional elements before he is entitled to an award of benefits. Specifically, those elements are: (1) that he mined for at least 15 years, making him eligible for the rebuttable presumption; (2) that he made a timely filing of his application; (3) that x-ray evidence is negative for pneumoconiosis, a precondition for invoking § 921(c)(4); (4) that total disability was proved as of the Secretary of H.E.W.'s jurisdictional cut-off date, June 30, 1973; and (5) that the presumption of § 921(c)(4), once raised, was not rebutted.
The first three are not in dispute in this suit, all having been found satisfied by the Administrative Law Judge and Appeals Council, and that finding being supported by substantial evidence. Neither of the remaining two elements was addressed by the ALJ or the Appeals Council. The former simply did not raise the question when total disability occurred, nor did he consider the question whether rebuttal evidence existed. The logic of the Appeals Council's opinion did not require it to address either issue; its finding of no factual predicate for invoking the presumption precluded it from further inquiry about the applicability of the rebuttable presumption.
At this point we could remand for an administrative determination of these two issues. We have decided not to do so. Instead, after carefully reviewing the record in this case, we have concluded that a finding of total disability as of June 30, 1973 is the only finding that could be supported by substantial evidence -- a contrary finding could not be so supported. Similarly, a finding that the record contains no competent rebuttal evidence is the only one which can be supported by substantial evidence. That being the case, we exercise our discretion not to remand, and instead order an award of benefits. Our reasons for so doing are as follows.
1. The Time of Total Disability
We now confront the question whether the evidence showed a totally disabling respiratory or pulmonary impairment on or before June 30, 1973, the H.E.W. jurisdictional cut-off date. A threshold matter is the time frame for considering evidence of total disability. It is rapidly becoming settled law that evidence after the jurisdictional cut-off date of July 1, 1973 may -- or must -- be considered, but that to be probative that evidence must tend to support an inference of total disability as of the cut-off date. Barnes v. Mathews, 562 F.2d 278 (4th Cir. 1977); Humphreville v. Mathews, 560 F.2d 347, 349 (8th Cir. 1977); Talley v. Mathews, 550 F.2d 911, 917 (4th Cir. 1977); Ingram v. Califano, 547 F.2d 904, 907 (5th Cir. 1977).
Dr. Stish testified on July 26, 1974 concerning a diagnosis and evaluation he performed on July 1, 1974, exactly a year after the cut-off date. However, Dr. Stish had examined, and relied upon for his finding of total disability, the ventilatory (pulmonary function) test conducted on July 20, 1973, less than three weeks after the cut-off date. To be sure, that ventilatory test did not in itself prove total disability; nevertheless, Dr. Stish found it supportive of his evaluation:
. . . the results were -- the vital capacity was 90%, the timed vital capacity, one second, was 89%, the three second capacity was 98%, the maximum breathing capacity was only 27%, and the air velocity index was point three (.3), which indicates the sum total of these tests indicates marked pulmonary obstructive disease.
Additionally, Dr. Stish consulted Dr. Feissner, plaintiff's long-time personal physician, and reported that in Dr. Feissner's judgment plaintiff was totally disabled by reason of "pulmonary impairment" on August 10, 1973. Dr. Stish, based on this consultation, his evaluation of the July 20, 1973 ventilatory study, and the various other tests he performed on July 1, 1974 came to the independent clinical judgment that plaintiff was totally disabled by reason of anthracosilicosis and pulmonary emphysema on August 10, 1973.
Q. Doctor, from your examination of this man, your clinical examination, your laboratory studies, your physical examination, do you have an opinion as to whether or not he would have been disabled on August 10, 1973?