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May 2, 1978

Charles Hoffman
Joseph A. Califano, Jr., Secretary of Health, Education, and Welfare

The opinion of the court was delivered by: BECKER


 I. Preliminary Statement

 This is an appeal from a final decision of the Secretary of Health, Education, and Welfare denying black lung benefits in which the principal issue is whether the plaintiff's evidence qualified to invoke the rebuttable presumption of pneumoconiosis found in 30 U.S.C. § 921(c)(4), 20 C.F.R. § 410.414(b). Plaintiff Charles Hoffman initially filed an application for Black Lung Benefits, 30 U.S.C. § 901 et seq., in June, 1972. After his application was denied, he filed for reconsideration in July, 1973, but reconsideration was denied. In March, 1974, he filed a request for a hearing. Nearly a year and a half later, a delay not accounted for in the record, plaintiff obtained the hearing, which resulted in a finding by the Administrative Law Judge (ALJ) in November, 1975, of totally disabling pneumoconiosis, hence entitlement to Black Lung benefits.

 However, in January, 1976, the Appeals Council of the Social Security Administration decided to review the ALJ's decision, which it reversed in an opinion filed September 24, 1976. Plaintiff appealed that decision to this Court by filing a complaint in November, 1976. The Government answered in May, 1977. The administrative record was filed in November, 1977. The Government moved for summary judgment in October, 1977. Plaintiff responded to the Government's motion by memorandum, and in January, 1978 filed a cross motion for summary judgment. In addition, both parties have filed supplemental memoranda at our request.

 Plaintiff was sixty-three years old when he first filed his claim for benefits; he is now sixty-nine. For reasons which will appear we find it necessary to vacate the Secretary's decision. Moreover, having reviewed the record evidence and having concluded that an award of benefits is the only decision which can be supported by substantial evidence, we will grant summary judgment to the plaintiff and order such an award.

 As we have noted, the prime issue in this case is whether the plaintiff's evidence qualified to invoke the rebuttable presumption of pneumoconiosis found in 30 U.S.C. § 921(c)(4), 20 C.F.R. § 410.414(b). To raise that presumption, plaintiff must "demonstrate" (by what kind and quantity of evidence we discuss in Section IV, infra) that he has been totally disabled by a pulmonary or respiratory disease. Section 921(c)(4) converts such a demonstration into a presumption of pneumoconiosis, shifting the burden to the Government to prove plaintiff's condition is not pneumoconiosis. The Appeals Council found that plaintiff had not demonstrated a totally disabling respiratory or pulmonary disease, and hence was not entitled to the presumption. We have reviewed this finding in light of the record evidence, and have determined:

 (a) that most of the record evidence supporting a finding of totally disabling respiratory or pulmonary disease was ignored or illogically discounted by the Appeals Council;

 (b) that under the emerging case law of the circuits which have addressed the issue, the record evidence in this case, properly considered, abundantly "demonstrates" the existence of a totally disabling respiratory or pulmonary disease; and

 Following this preliminary statement, we first describe the elements of the rebuttable presumption at issue (§ II). We then survey the record evidence (§ III). We next turn to the findings of the Administrative Law Judge and of the Appeals Council, surveying those findings in light of the mandated standard of review, that of there being "substantial evidence" to support the administrative decision (§ IV A-C). Finally, we review the record to determine whether all the elements entitling plaintiff to benefits have been proved, and especially whether evidence competent to rebut the presumption exists of record (§ IV D).

 II. The Statutory Presumption

 The statute at issue is 30 U.S.C. § 921(c)(4) (1977 Supp.):

(4) if a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner's, his widow's, his child's, his parent's, his brother's, his sister's, or his dependent's claim under this subchapter and it is interpreted as negative with respect to the requirements of paragraph (3) of this subsection, and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. In the case of a living miner, a wife's affidavit may not be used by itself to establish the presumption. The Secretary shall not apply all or a portion of the requirement of this paragraph that the miner work in an underground mine where he determines that conditions of a miner's employment in a coal mine other than an underground mine were substantially similar to conditions in an underground mine. The Secretary may 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.

 As noted previously, the regulatory counterpart is 20 C.F.R. § 410.414(b).

 To raise a statutory presumption of totally disabling pneumoconiosis, then, plaintiff Hoffman must demonstrate (1) that he was an underground coal miner for at least 15 years; (2) that x-rays, if any, are negative for pneumoconiosis; (3) that evidence other than that of x-rays shows a respiratory or pulmonary impairment to exist; and (4) that this impairment is totally disabling. "Totally disabling" has a special meaning in the context of Black Lung claims. To prove total disability, plaintiff has to show that:

(1) His pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time . . .; and
(2) His impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months.

 20 C.F.R. § 410.412(a).

 Once raised, the presumption may be rebutted only by establishing that plaintiff does not have pneumoconiosis, or that, if he has it, coal mining was not its cause.

 In addition to these statutory requirements, in order to invoke the rebuttable presumption, plaintiff must meet several Department of H.E.W. jurisdictional requirements, namely that both his total disability and filing for benefits occurred before July 1, 1973. *fn1"

 Plaintiff introduced six kinds of evidence at his hearing. The first was a series of x-rays. Four x-rays were submitted which had been made in 1972 and 1973. Several were interpreted by certified "A" readers as showing pneumoconiosis, but "B" readers subsequently found the x-rays negative or unreadable. *fn2" After the hearing, the Appeals Council requested an additional x-ray, which was taken in 1976. Then the whole series of five x-rays was submitted to a "B" reader, who found four of the five to show no pneumoconiosis, and one to have been incorrectly taken.

 Two ventilatory studies had been administered, in March and July, 1973. The first showed a Maximum Ventilatory Volume (MVV) of 52.6 L./Min., the second an MVV of 31 L./Min. The first test showed a one-second Forced Expiration Volume (FEV1) of 3.06 L., the second an FEV1 of 2.6 L. The doctor administering the first test, who noted plaintiff's cooperation to be "excellent," found the MVV score to be only 38% of the expected value for a man of plaintiff's height. The doctor administering the second test, Dr. Leo Corazza, wrote that the results "show evidence of air trapping on the tracing. The air trapping is compatible with a diagnosis of some chronic pulmonary disease, obstructive in nature."

 Clinical evidence was introduced through testimony of an examining physician. Dr. Stish had testified on July 26, 1974 before the Pennsylvana Department of Labor, and because he was unavailable at the time of the federal hearing, that testimony was made part of the federal hearing. Dr. Stish found plaintiff totally disabled by anthracosilicosis and pulmonary emphysema during an examination on July 1, 1974. His finding of total disability was based on the following data: a "thorough physical examination and a history" of plaintiff which he performed on July 1, 1974; an exercise tolerance test which he administered on that date, on which plaintiff performed "very poorly"; an examination of the July, 1973 ventilatory study performed by Dr. Corazza, which Dr. Stish found to corroborate his clinical diagnosis; an examination of several x-rays, upon which Dr. Stish relied in testifying; and a consultation with plaintiff's previous physician, Dr. Feissner, who had treated plaintiff from at least 1952 to 1973 (when a heart attack forced the doctor to retire from practice) and who communicated to Dr. Stish a clinical judgment that plaintiff had been totally disabled by August, 1973.

 Plaintiff also submitted a finding and award of total disability due to anthracosilicosis by the Pennsylvania Bureau of Occupational Injury and Disease Compensation dated July, 1974. The factual finding was to the effect plaintiff became totally disabled from working because of anthracosilicosis by August, 1973.

 Plaintiff's final two sources of evidence were testimony by himself and his wife. Plaintiff testified he had worked twenty-six years in underground mining, from 1926 to 1952. His job had been to pull the coal-laden cars from the mines, first by mule, and subsequently by electric motor car on which he worked as engineer. "I used to pull maybe 100 cars and there was an awful lot of sand there." In 1952, he consulted two doctors because of repeated severe breathing problems. They both told him he had to "get out of the mines".

I was sickly a lot of times. I was short winded and I had to take time off from work and I didn't know what. And I went to the doctors and they told me you better get out of the mines. They told me time and again within this period. Maybe I was in there about 20 years or something like that, and they told me to get out of the mines.

 Record at 59.

 One of those two doctors was Dr. Feissner, who continued to treat plaintiff until 1973 when, as noted previously, a heart attack forced him to retire from practice. The other doctor had died many years before the federal black lung hearing.

 Heeding their advice, plaintiff in 1952 took a job at a steel plant which entailed light sweeping.

. . . it was a light job. I was sweeping, doing all light work, because I couldn't do heavy work because when I left the coal mines, I was short winded then. I had a breathing problem then.
Q. Did you use any tools in this job?
A. It was just a shovel and pushing around a broom, mostly. Sweeping the floors.
Q. Did you do that all the time?
A. No, then later on, I went to be a crane operator. And that wasn't a heavy job either, that was a light job.
Q. You sat on this job?
A. Yes, I sat.
Q. Did you do any walking in this job?
A. Just up to the crane and down.
Q. Did you do any lifting or carrying?
A. No, no.
Q. So it was United States Steel that was your ...

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