ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD.
Gibbons and Hunter, Circuit Judges and Pollak, District Judge.*fn*
United States Steel Corporation (U.S.S.) petitions pursuant to 30 U.S.C. § 932(a) for review of an order of the Benefits Review Board granting payments of black lung benefits to Mrs. Josephine Oravetz, widow of Michael Oravetz, pursuant to Title IV of the Federal Coal Mine, Health and Safety Act, 30 U.S.C. § 901 et seq. (1976).
U.S.S. makes two contentions: first, that the Benefits Review Board (BRB) erred in concluding that substantial evidence supported the administrative law judge's finding that Josephine Oravetz was entitled to black lung benefits; second, that the presumption of entitlement to black lung benefits in section 411(c) (5), 30 U.S.C. § 921 (c) (5), violates the due process clause of the Fifth Amendment. We conclude that the Administrative Law Judge's finding is supported by substantial evidence, and that the presumption in section 411(c) (5) is constitutional.
I. Evidentiary Support for the Finding of Disability
Michael Oravetz, a coal miner, died of heart failure on December 22, 1975 after working in United States Steel's coal mines for over thirty-four years. On January 2, 1976, his widow filed a claim for black lung benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. Section 411(c) (5) of the Act, 30 U.S.C. 921(c) (5), provides in relevant part, that:
In the case of a miner who dies on or before March 1, 1978, who was employed for 25 years or more in one or more coal mines before June 30, 1971, the eligible survivors of such miner shall be entitled to the payment of benefits, at the rate applicable under section 922(a) (2) of this title, unless it is established that at the time of his or her death such miner was not partially or totally disabled due to pneumoconiosis.
The adjudicatory rules*fn1 for Section 411(c) (5) provide that "in order to rebut this presumption the evidence must demonstrate that the miner's ability to perform his or her usual and customary work . . . was not reduced at the time of his or her death. . . ." 20 C.F.R. 727.204 (1979).
A deputy commissioner of the Office of Workers' Compensation Programs, U.S. Department of Labor, pursuant to Section 422(a), 30 U.S.C. § 932(a), determined that Josephine Oravetz was entitled to benefits. After U.S.S. controverted the claim, a formal hearing was held before an Administrative Law Judge (ALJ). In July, 1980, the ALJ found that the presumption at section 411(c) (5) of the Act had been invoked, and that U.S.S. had failed to rebut the presumption by establishing that Michael Oravetz was not partially or totally disabled by pneumoconiosis at the time of his death. U.S.S. appealed to the BRB which, in November 1981, affirmed the ALJ's award of benefits on the ground that the Order was supported by substantial evidence and in accordance with law. This petition for review followed.
In reviewing an award of benefits by the BRB, the Court of Appeals must view the record as a whole and decide whether there is substantial evidence to support the ALJ's findings. 33 U.S.C. § 921(b) (3). See also Walker v. Universal Terminal and Stevedoring Corp., 645 F.2d 170, 172-73 (3d Cir. 1981); Sun Shipbuilding and Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979).
It is uncontroverted that Josephine Oravetz established the facts necessary to invoke the presumption of entitlement for survivors contained in section 411(c) (5), for Michael Oravetz died before March 1, 1978 and was employed for more than twenty-five years in the coal mines prior to June 30, 1971. Our review, therefore, must focus on the substantiality of the evidence for the finding that U.S.S. did not rebut the statutory presumption.
U.S.S. contends it established that the miner was not partially disabled due to black lung at the time of his death by introducing a deposition of its medical expert, Dr. Rodman, and by establishing both that Mr. Oravetz was working at the mine on the day he died, and that his wages had not been reduced prior to that day. Dr. Rodman's report stated that Mr. Oravetz ' black lung had no role in his death, and would not have caused disability in his lifetime.
A review of the record discloses, however, that the ALJ had conflicting medical evidence before him. The report of Dr. Ayres, a pathologist who performed an autopsy, found that the deceased suffered from severe coal worker's pneumoconiosis. While Dr. Ayres listed calcific aortic stenosis, cardiac hypertrophy and cardiac arrest as the first three causes of death, severe coal miners' pneumoconiosis was listed as the fourth and cor pulmonale as the fifth causes of death. The claimant argued that the fact that Mr. Oravetz had cor pulmonale, ...