On Petition for Review from the Order of the Benefits Review Board dated April 12, 1984, BRB No. 80-1183 BLA.
Before: ADAMS and WEIS, Circuit Judges and POLLAK, District Judge.*fn*
This is an appeal from a decision of the Benefits Review Board of the Department of Labor dated April 12, 1984, affirming a decision of an administrative law judge denying benefits to petitioner under the Black Lung Benefits Act, 30 U.S.C. §§ 901 and 945 (1982). Petitioner challenges the decision of the Benefits Review Board on the following grounds: (1) the Director could not, during the course of the administrative review of petitioner's claim, take a position contrary to the deputy commissioner's initial finding of eligibility; and (2) the decision of the Benefits Review Board is not supported by substantial evidence. We find petitioner's first contention unpersuasive. However, we also find that the decisions of the Benefits Review Board and of the administrative law judge do not establish that the disability suffered by petitioner was not one of the impairments [impairments] covered by the Black Lung Benefits Act. Accordingly, the decision of the Benefits Review Board will be vacated and the case remanded for further consideration.
Petitioner, Armand Pavesi, was born on June 24, 1913. He retired in 1977 after more than 45 years of work as a coal miner. In June 1973 petitioner filed his first application for Black Lung benefits with the Social Security Administration. The final denial of that claim was filed on September 25, 1973. On August 1, 1977, Mr. Pavesi filed an application for Black Lung benefits with the Department of Labor. Pursuant to the 1977 Amendments to the Black Lung Benefits Act, Pub.L.No. 95-239, 86 Stat. 153 (1978), the previously denied application was reactivated for administrative review under the procedures of section 945. Upon petitioner's election, the two applications were consolidated and reviewed by the Department of Labor, 30 U.S.C. § 945(a)(1) (1982).
The first stage of review took place before the deputy commissioner, an official of the Office of Workers' Compensation Programs, Division of Coal Mine Workers' Compensation. On June 27, 1979, the deputy commissioner issued a notice of initial finding of eligibility. That letter stated that Harmer Coal Company, Mr. Pavesi's last employer, should commence payment of benefits within thirty days. If such payments were not made, the notice recited, the Black Lung Disability Trust Fund would pay benefits for which Harmer Coal Company would be ultimately liable should the initial finding of eligibility for benefits be sustained on further review.
Petitioner Pavesi's application was then referred to an administrative law judge ("ALJ") for a formal hearing. Petitioner and Harmer Coal Company took part in that hearing on June 2, 1980. Although, under the regulations, 20 C.F.R. § 725.360(a)(5) (1984), the Director, Office of Workers' Compensation Programs ("Director"), is a party to such proceedings, no appearance was entered for the Director at the time of the hearing.
The ALJ concluded that petitioner had established the interim presumption of eligibility under the applicable regulation since petitioner had been employed as a coal miner for more than ten years and ventilatory studies had produced results within the prescribed ranges. 20 C.F.R. § 727.203(a)(2) (1984).
The evidence before the ALJ included two reports of evaluations of a September 1977 chest x-ray. The first report, by Dr. Lester Freedman, stated that the x-ray was positive for pneumoconiosis. The ALJ also had before him the results of pulmonary function studies. A study performed on September 28, 1977 resulted in a finding of "mild restriction, possible mild airways obstruction." A later study by Dr. C. Vaughn Strimlan yielded results indicative of a "moderately severe restrictive ventilatory pattern." Dr. Strimlan noted, however, that the technician performing the pulmonary function study remarked that there was poor patient effort. Mr. Pavesi testified that he gave full cooperation on all tests.*fn1
Reports from three examining physicians were also provided to the ALJ. Dr. M. I. Levine concluded that the petitioner was "totally and permanently disabled due to pneumoconiosis due to coal dust." However, the ALJ found the Levine report to be conclusory and unsupported by objective tests. Dr. Julian Eligator diagnosed "coalworker's pneumoconiosis" based upon an October 1977 examination. The Eligator report was also disregarded by the ALJ who felt that its findings were based upon only a cursory examination. By contrast, a report prepared by Dr. C. Vaughn Strimlan which presented the "final clinical impression" that there "was no evidence for coal workers' pneumoconiosis" was found convincing by the ALJ because it was based upon a thorough examination and supporting laboratory studies.
Mr. Pavesi testified that he had suffered from shortness of breath during his last three or four years in the mines. He said that his respiratory problems had become markedly worse since his retirement: walking was so great an effort that sometimes he could go no more than 100 feet before he was required to stop and rest.
The ALJ concluded, in a decision and order dated September 15, 1980, that the employer had rebutted the presumption of disability. The ALJ found the report of Dr. Strimlan and the x-ray reading by Dr. Cole persuasive that Mr. Pavesi did not suffer from pneumoconiosis. Accordingly, the ALJ denied Mr. Pavesi's benefits claim.
Mr. Pavesi appealed this determination to the Benefits Review Board on October 6, 1980. While the claim was pending before the Board, Congress passed the 1981 Amendments to the Black Lung Benefits Act, Pub. L. No. 97-119, 95 Stat. 1635 (1981). Those amendments altered section 932 of the Black Lung Benefits Act to provide that the Black Lung Disability Trust Fund, not the employer, should be responsible for payment of benefits on a claim which had been denied prior to March 1, 1978 and which "is or has been approved in accordance with the provisions of section 945."*fn2
Because Mr. Pavesi's claim had been denied by the Social Security Administration prior to 1978 and had been consolidated with his later application to the Department of labor for section 945 administrative review, on March 18, 1982, the Benefits Review Board issued a show cause order inquiring whether the claim should be returned to the deputy commissioner's office for payment of benefits by the Black Lung Disability Trust Fund. Harmer Coal Company responded that it had no objections to a remand provided it would be released from responsibility for payment of benefits pursuant to the 1981 Amendments. The Director responded to the show cause order as well. The Director stated that it had no objection to the dismissal of the employer and the substitution of the Black Lung Disability Trust Fund as the party ultimately responsible for payment of any benefits due. But the Director did oppose a remand for payment of benefits. The Director stated that this opposition was based upon the fact that evidence presented to the ALJ which supported the denial of benefits was not presented to the ...