On Appeal from Benefits Review Board (BRB Docket No. 81-1899 BLA)
Before: SLOVITER and STAPLETON, Circuit Judges, and MENCER, District Judge.*fn*
Petitioner Ralph W. Bernardo filed a Petition for Review from the decision of the Benefits Review Board affirming the denial of benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. The petition, originally filed by Bernardo in the United States Court of Appeals for the Ninth Circuit, was transferred by that court to us after it declined jurisdiction, 772 F.2d 576.
According to Bernardo, he was born in 1909, worked in Pennsylvania coal mines for a total of 17 years, from 1928 to 1946, worked in a steel mill until 1960, worked as a night maintenance supervisor in a restaurant until 1974, and retired in 1974 at the age of 65. The Director does not deny these facts.
Bernardo first filed for benefits under the Black Lung Benefits Act on August 13, 1973. His claim was denied by the Department of Labor (DOL) in 1979, and, on his request, the matter was heard by an Administrative Law Judge in 1981. Two medical reports were introduced. One was the conclusory opinion of Dr. Arthur Nicolaysen that Bernardo "is unable to work in coal mines due to chronic obstructive pulmonary disease, mile angina, hypertension, and his age of seventy-one." The other opinion by Dr. James S. Otoshi included a series of studies, among them ventilatory function studies, and contained the following assessment:
The patient has a mild restrictive lung defect with minimal functional impairment. The etiology of the restrictive disease is unclear. Chest x-ray shows no clear evidence of coal workers pneumoconiosis. However, it is quite possible that he has some degree of interstitial fibrosis which is not present on the chest x-ray which might have been due to exposure to coal dust or silica in the coal mines. There is no other obvious cause for the mild restriction present.
The ventilatory function studies established the presence of chronic respiratory or pulmonary disease by values which were equal to or less than the values specified in the table of the applicable regulation, 20 C.F.R. § 727.203(a). Therefore, the ALJ held that Bernardo was entitled to the interim presumption of disability pursuant to that regulation.
The ALJ held, however, that the presumption of disability had been rebutted as provided in 20 C.F.R. § 727.203(b)(3). Section 727.203(b)(3) permits rebuttal when "[t]he evidence establishes that the total disability . . . of the miner did not arise in whole or in part out of coal mine employment." The ALJ applied a recent Benefits Review Board decision, Jones v. The New River Co., 3 Black Lung Rep. 1-199 (1981), that construed § 727.203(b)(3) as requiring a claimant to be totally disabled as a result of coal mine employment. The ALJ concluded that Bernardo's presumptive disability was rebutted "under Section 727.203(b)(3), as the evidence reflects that the total disability of the Claimant is not in and of itself the result of pneumoconiosis but rather is a combination of his age, hypertension, angina, and pulmonary disease." App. at 14 (emphasis added).
Bernardo appealed the ALJ's decision to the Benefits Review Board. The Board, without discussing the ALJ's interpretation of the regulation, found the ALJ's opinion was supported by substantial evidence because Dr. Nicolaysen's report, read in conjunction with Dr. Otoshi's report, allowed the ALJ to find that "claimant's respiratory disease is not in and of itself disabling." App. at 18. The Board continued, "while claimant does have some impairment due to restrictive lung disease . . . and while that impairment may be due to pneumoconiosis, the Director has nonetheless rebutted by showing that claimant's restrictive lung disease is not disabling." Id.
On appeal, the Director concedes that "the legal analysis of the applicable regulations in both the ALJ and Board decisions is flawed" but argues that this court should nonetheless affirm the denial of benefits for other reasons ...