20 CFR 410.400ff
Long v. Weinberger, USDC, Pa., Civil Action No. 74-970 (3/25/75)
WEBER, District Judge
It is recommended that defendant's Motion for Summary Judgment be granted and that the decision of the Secretary of the Department of Health, Education and Welfare, denying plaintiff's application for benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, be affirmed.
Plaintiff's complaint was filed on October 11, 1974, appealing the Secretary's denial of his application for black lung benefits.
The plaintiff has been receiving Social Security disability benefits under the Social Security Act for a disability beginning on July 6, 1969, and there is no question that he is totally disabled. The critical question in the present action is whether plaintiff is totally disabled due to pneumoconiosis which he acquired as a result of his employment as a miner in the coal mines of the nation. While both the Social Security Act and the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, award benefits for disabled workers, the standards for determining disability under the two acts are quite different. Basically, the question in cases brought under the Social Security Act is whether the person is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." The critical question in actions brought under the Federal Coal Mine Health and Safety Act is whether the miner is prevented from continuing his gainful mining employment because of pneumoconiosis which arose out of, or in connection with, his work in a coal mine. The Senate report discusses the fact that the nation's miners suffered from several handicaps in sustaining their burden of proving their disabilities under the Social Security Act. The Federal Coal Mine Health and Safety Act of 1969 was intended to remedy this. However, just a few years after enactment of that law, Congress found that miners who were in fact disabled were still being denied benefits because of their unique problems in producing medical evidence in support of their physical impairments resulting from pneumoconiosis. One of these problems was that the chest x-ray or roentgenogram was an imperfect means of ascertaining the existence of pneumoconiosis. A negative x-ray was not positive proof of the absence of pneumoconiosis. Autopsies performed after chest x-rays had been read negative for pneumoconiosis indicated an error of 25 percent in diagnosis. There was strong evidence that emphysema could cloud an x-ray to such an extent that the x-ray showed no concentrations of coal dust. Further, the simple breathing test which measures only ventilatory capacity did not always adequately detect disabling respiratory or pulmonary impairment. Miners had difficulties securing complete medical records and other evidence of their disability, and they also encountered special problems in obtaining gainful employment outside of coal mining in Appalachia. Therefore, the Act as amended gives miners the benefit of certain presumptions as follow:
The question in the present case is not whether plaintiff can work -- he clearly cannot. The question is whether he suffers from a respiratory or pulmonary impairment which, without consideration of his other impairments, would prevent him from returning to his former work in the mines.
The plaintiff was unable to come to his first hearing on May 4, 1972, because of his physical condition but his attorney, Thomas A. Swope, was present and his wife, Sarah Long, and two of his former co-workers, Clarence Ritchey and Fred Stombaugh, testified in his behalf before Hearing Examiner Russell J. Blumenthal.
Mrs. Long testified that the plaintiff was born in 1907 and would be 65 on August 11, 1972 (Tr. 37). She did not know how far he had gone in school, although she knew he had not graduated (Tr. 38). He had worked as an underground coal miner and had also worked in the machine shop (Tr. 39). She thought he had worked underground about 15 or 16 years. She thought he had last worked underground around 1938 and had stopped working completely in 1969 because he was always short-winded and taking spells and he had a stroke (Tr. 40). When he came out of the mines because "he couldn't take it anymore" they sent him to school in Altoona for nine months so that he could work in the machine shop as a welder (Tr. 41). Toward the end of his work in the machine shop he had noticed that he was short-winded and could not even walk the length of the room. He could not go down the cellar steps without having to sit down on the steps and rest. Sometimes he couldn't make it to the garage (Tr. 42). He coughed and choked and spit up phlegm all the time. It was "white-looking" and he had not noticed any blood in it (Tr. 43). At night he had to sleep propped up with several pillows. During the time when he was working, before he had the stroke, he had on one occasion slumped at his machine. The only problem she had noticed before his stroke was his trouble with his lungs. They had moved from a two-story house to one floor, on the recommendation of Dr. Perkins, who was deceased at the time of the hearing (Tr. 44). The plaintiff had taken medication for his heart but she was not sure whether he had taken any for his breathing. He once had to be given oxygen (Tr. 45).
When the plaintiff was working in the machine shop he was sent home sometimes because he would start to pass out (Tr. 46). He would gag and choke and be unable to get his breath.
The plaintiff was hospitalized at Conemaugh Valley Hospital on four occasions, he was in the Weaver Hospital twice in 1960, and he was transferred from the Mercy Hospital in Pittsburgh to St. Mary's Hospital in Pittsburgh.
She testified that the plaintiff was unable to talk and that he coughs and chokes during the night. However, he could understand her sometimes (Tr. 48).
Another of plaintiff's witnesses was Clarence Ritchey, who testified he and the plaintiff had both worked in the C.A. Hughes Coal Company mine number two for six or eight years (Tr. 49). He did not know how long the plaintiff had continued to work there after he left in 1932. One of the plaintiff's jobs had been to take care of the generators. It was a very dusty job (Tr. 50).
Plaintiff's last witness was Fred Stombaugh, who testified he had known the plaintiff when he had worked in both the coal mines and the machine shop (Tr. 51). He thought plaintiff had worked in the coal mines for 16 years or more. They had worked together in the machine shop for a year or more in 1959 or 1960. He had noticed that the plaintiff was short of breath and short-winded (Tr. 52). "He was in awful bad shape." He frequently had fainting spells. Sometimes they would take him home from work.
A second hearing was held on March 27, 1974, before Administrative Law Judge Michael W. Ganzhorn. Plaintiff was again unable to attend because he was paralyzed from a stroke and was unable to speak (Tr. 56). Plaintiff was again represented by his attorney, Mr. Swope, and his wife; a former neighbor, Virginia Ritchie, and Fred Stombaugh testified in his behalf.
Plaintiff's wife, Mrs. Sarah Long, stated that plaintiff's paralysis resulted from a stroke he had undergone on the operating table in Mercy Hospital, Pittsburgh, in 1969 (Tr. 56). She testified that a man from the union had said plaintiff had worked underground in the mines from 1927 until sometime past 1938 (Tr. 59). When he was working in the mine he loaded dust, dug coal, and worked on the generators inside the mines. However, he had to come out of the mines because he was choking all the time and couldn't breathe (Tr. 60). He then went to school for nine months where he learned electric welding. After completing the schooling he got a job working at a machine company in Portage, where he worked from 1940 up to 1969. She testified that he was sick and was in and out of the hospital through all those years. She testified that Dr. Grokely had treated the plaintiff for emphysema (Tr. 61). In 1962 he suffered a heart attack, followed by a stroke (Tr. 61-62). He went to the Rehabilitation Hospital for therapy but had to leave because he would get short of breath (Tr. 63). There was one occasion when the fire company had to bring oxygen into the home because of plaintiff's breathing. Mrs. Long testified that even when the plaintiff was working at Leeman Machine Shop she had noticed that when he would come home from work he would have to sit down on the porch before he could get in the house. Sometimes he would try to go down the cellar and she would have to bring him back (Tr. 64). Exhibit 9 (Tr. 85) was offered into evidence. It was a certificate by the Secretary of Local Union 935, dated September 4, 1970, and certified that Lester Long had worked in the mine as a coal loader from December 13, 1926, until the end of 1936, when he left the mines on account of poor health.
Under questioning by the Administrative Law Judge, Mrs. Long testified the plaintiff had smoked during the period he was working in the mines (Tr. 65). He had stopped working in the mines on December 31, 1936, because he was in poor health. He was working in the mines before they were married in 1931 or 1933 (Tr. 65).
Plaintiff's former neighbor, Mrs. Virginia Ritchie, testified that she lived about four blocks from the plaintiff and when she was at his house visiting she heard him coughing, choking, and spitting quite often (Tr. 68-69). She had been friends with plaintiff's daughter and she would frequently be at his house when he would come home from work. He would sit on the porch before coming into the house. After he came out of the mines he was very sickly. Mr. Fred Stombaugh testified that he had known plaintiff when he worked as a welder in the Leeman machine shop (Tr. 70). He had noticed that the plaintiff was short of breath and there were times when they would have to take him home. He thought that had occurred around 1956 and 1957. He had noticed that the plaintiff was short of breath and that it affected his work.
The review of the medical records in the present case is difficult because portions of some of them are illegible, although they are stamped "BEST COPY OBTAINABLE". The earliest record appears to be an x-ray from the Conemaugh Valley Memorial Hospital dated July 19, 1962. (Tr.111) This report concludes:
The next report is dated January 12, 1967, and gives the following conclusion from the chest x-ray (Tr. 110):
The discharge summary, apparently from Conemaugh Valley Memorial Hospital concerning plaintiff's stay from July 6, 1969, to July 17, 1969, gives the following final diagnosis (Tr. 89):
A chest x-ray on July 8, 1969, resulted in the following conclusion (Tr. 86):
The medical records from St. Francis General Hospital concerning plaintiff's stay from August 30, 1969, to September 16, 1969, are mostly illegible (Tr. 92) but the report of Dr. Zimmerman includes no reference to any pulmonary impairments (Tr. 93).
The record includes two reports from Dr. Burkett, dated April 11, 1969, (Tr. 98) and November 7, 1969 (Tr. 96). The latter report stated that plaintiff required constant management by either his wife or the community nurse because of a stroke he suffered on July 6, 1969. His condition since discharge from St. Francis Hospital had been downhill. His condition was poor and his prognosis was unfavorable. However, the report makes no reference to any pulmonary impairments.
A chest x-ray taken on December 9, 1970, resulted in the following conclusion (Tr. 101):
It is observed that under the regulations, Section 410.428(a)(1), the classification O is not accepted as evidence of pneumoconiosis.
A report of Dr. Plummer discloses that he saw the plaintiff in the Conemaugh Valley Memorial Hospital on January 23, 1971, after a fall at home with a fracture of the eighth rib. "Treatment consisted of pain medication and no strapping due to poor respiratory function." (Tr. 107)
Another x-ray report, dated August 12, 1972, resulted in a report identical to the one of December 9, 1970, except that the classification O was not mentioned (Tr. 112).
Plaintiff was readmitted to Conemaugh Valley Memorial Hospital on August 11, 1972, while complaints of right-sided weakness, nausea, vomiting, and headache (Tr. 131) and stayed until August 26, 1972 (Tr. 126). Dr. Bastow's impressions at the time of admission were (Tr. 128):
On February 27, 1973, plaintiff underwent ventilatory function tests (Tr. 116). However, the examiner reported that plaintiff did not understand the directions and failed to cooperate in performing the test. (Tr. 120) The evaluation of Dr. Harold I. Passes discloses that the studies depend in part on the cooperation and effort by the individual undergoing the tests and that at least three tests are required with no more than a 2 percent disagreement between the values from each test (Tr. 135). Since plaintiff had only one test, and since he was unable to understand the directions and to cooperate with the examiner, the test cannot be considered.
The report of Dr. Plummer, dated April 24, 1973, stated that his office had never treated plaintiff for respiratory impairment (Tr. 121).
A review of the evidence discloses that plaintiff worked in the underground coal mines in excess of ten years and that during the last few years of his work in the mines he had difficulty breathing, was short-winded, coughed and choked and spit up phlegm, had to sleep propped up with several pillows, and had fainting spells. The x-rays show that he suffered from mild interstitial fibrosis and pulmonary emphysema. He has not shown that he is entitled to any of the presumptions set forth in the Act and the regulations. While the record does indicate that he suffers from a pulmonary impairment, it cannot be said that it establishes that his pulmonary impairment prevents him from continuing his gainful mining employment. His severe impairment at the present time is his paralysis resulting from a stroke, for which he is receiving benefits under the Social Security Act.
A review of the evidence discloses there is substantial evidence to support the findings of the Secretary. Therefore, it is recommended that defendant's Motion for Summary Judgment be granted and that the decision of the Secretary, denying plaintiff's application for benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, be affirmed.
AND NOW March 25, 1975 the above matter having been referred to the Magistrate for a report and recommendation, and the report and recommendation of the Magistrate having been filed on March 12, 1975, and no exception to said report and recommendation having been received, the recommendation of the Magistrate is hereby approved and adopted by this court and the motion of the defendant for summary judgment is hereby GRANTED, and the decision of the Secretary of Health, Education and Welfare be and is hereby, AFFIRMED and the plaintiff's complaint be and hereby is DISMISSED.
 42 U.S.C. Sections 423 and 416(i).
 30 U.S.C. Section 921
 42 U.S.C. Section 423.
 30 U.S.C. Section 921.
 42 U.S.C. Section 423(d)(1)(A); 42 U.S.C. Section 416(i)(1)(A) (Emphasis added).
 See generally Senate Report, 1972 U.S. Code Cong. and Adm. News, 2305; and 30 U.S.C. Section 902(f).
 Id. at 2313.
 Id. at 2314, 2316.
 Id. at 2316.
 Id. at 2313, 2310.
 Id. at 2318.
 Id. at 2313.
 30 U.S.C. Section 921(c)(1).
 20 C.F.R. Section 410.414(a)(1).
 Id. at (2).
[*] Section 413(b) of the Act provides that claims under Part B of the Act shall not be denied solely on the basis of a negative chest X-ray. The general ending date for Part B claims is December 31, 1973. However, under section 414 of the Act, certain claims filed after December 31, 1973, are still claims under Part B. Thus, X-ray evidence in such claims is also subject to the limitation. [ED.]
 30 U.S.C. Section 921(c)(4).
 C.F.R. Section 410.414(b).
 The appendix following 20 C.F.R. 410.490 is incorporated in 20 C.F.R. 410.414(b) through Sections 410.422(c) and 410.424(a).
 20 C.F.R. 410.424(b).
 20 C.F.R. 410.426(b).
 20 C.F.R. 410.426(c).
 20 C.F.R. 410.414(c).
 20 C.F.R. Section 410.490.
 20 C.F.R. Section 410.490(b)(3).
 His wife testified he was paralyzed from a stroke (Tr. 43).
 The doctor's name is spelled phonetically in the transcript of the hearing and the record does not include any reports by him.
 Although the date and name of the hospital are illegible on the copy of the report, it appears to be one of the reports mentioned in Mr. Swope's letter of May 23, 1972, to Judge Blumenthal (Tr. 109).
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