20 CFR, Part 410, § 410.400ff.
(THIS RULING SUPERSEDES SSR 73-38)
W, 62 years old, completed the 10th grade and was employed for 32 years i the coal mines as a handloader, timberman and motorman. During the last 4 years of his work, he missed a considerable amount of time from his job because of his condition. However, his coal mine employment continued until he was forced to stop work 3 months prior to his filing for Black Lung Benefits. X-ray findings were negative for pneumoconiosis and ventilatory function tests showed an FEV1 of 2.7 L. and an MVV of 108 L/Min. Since W is 5'11", the table in section 410.490(b)(ii) of the Black Lung regulations is not met (the table specifies and FEV1 of 2.6 and an MVV of 105 L/Min. for a man of his height).
W submitted a report from his family physician which states that he has been treating the claimant for emphysema for the last 11 years. Visits for this condition have increased in frequency in the last 4 years as has the severity of W's symptoms. The physician recently advised the claimant to terminate his coal mine employment because of a worsening of his condition and W followed this advice. A recent clinical examination included complaints of sever episodes of coughing productive of phlegm, dyspnea on slight exertion and onset of marked fatigue with mile activity. Clinical observation found the claimant to be bothered by a persistent cough and evidencing some shortness of breath after undressing for the examination and getting onto the examining table. Auscultation and percussion of the chest revealed moist rales throughout the chest and breath sounds to be distant. A slight cyanotic appearance was additionally noted. In concluding his report, the physician diagnosed the claimant's impairment as chronic pulmonary emphysema "long-standing in duration and totally disabling in severity." W's wife said he had "a real bad cough for years."
The issue to be resolved is whether the evidence submitted in connection with W's Black Lung claim establishes that, due to a chronic respiratory impairment, which, under the law, may be presumed to be due to pneumoconiosis, he is totally disabled within the context of the Black Lung regulations.
In enacting the Black Lung Benefits Act of 1972, the Congress noted that adjudication of the large backlog of claims generated by the earlier law could not await the establishment of facilities and development of medical tests not presently available to evaluate disability due to pneumoconiosis, and that such claims must be handled under present circumstances in the light of limited medical resources and techniques. Accordingly, the Congress stated its expectancy that the Secretary would adopt such interim evidentiary rules and disability evaluation criteria as would permit prompt and vigorous processing of the large backlog of claims; and that such rules and criteria would provide for full consideration of the combined employment handicap of disease and age, and medical evidence other than physical performance tests when it is not feasible to provide such tests. Sen. Rep. No. 92-743, 92d Cong., 2d. Sess., pages 18 and 19.
In response to the stated expectancy of the Congress, such interim rules are provided in section 410.490 of Social Security Administration Regulations No. 10. There is a rebuttable presumption of total disability where the existence of pneumoconiosis is established by X-ray, biopsy, or autopsy findings or, under certain conditions, where ventilatory tests show a level of lung function equivalent to or less than the applicable values specified in the table in this section. These criteria were designed to be more liberal than the permanent criteria to take into account claimants who might have impaired ability of their lungs to transfer oxygen to the bloodstream for the reason that objective testing (i.e., exercise pulmonary function tests) to determine this may be either generally unavailable or medically contraindicated and the large backlog of such claims disallowed under the more rigorous criteria of the predecessor "Black Lung" law could not await the development and availability of more sophisticated testing.
The regulations (section 410.490(e)) further provide that where a miner does not establish total disability under the interim guides, he may establish total disability under the rules set out in sections 410.412 to 410.462.
Section 410.412 of Regulations No. 10 defines "total disability." It states that a miner shall be considered totally disabled if 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 coal mine or mines in which he previously engaged with regularity and over a substantial period of time, provided his impairment can be expected to result in death, or has laster or can be expected to last for a continuous period of not less than 12 months. Section 410.418 provides for an irrebuttable presumption of total disability due to pneumoconiosis where so-called "complicated pneumoconiosis" is diagnosed by chest roentgenogram (X-ray), biopsy or autopsy. In section 410.424, provision is made for finding total disability on the basis of medical criteria along when the miner's impairment is listed in the Appendix to Subpart D of Regulations No. 10 or is the medical equivalent of such a listed impairment.
Section 410.426(a) of Regulations No. 10 provides that even though total disability is not established under section 410.424 (or 410.418), pneumoconiosis may be found to be totally disabling if because of the severity of such impairment the miner is not only unable to do his previous coal mine work, but also cannot, considering his age, education and work experience, engage in any other kind of comparable and gainful work available to him in the immediate area of his residence. Thus the initial question to be resolved is whether pneumoconiosis has produced functional limitations which render the applicant unable to meet the physical demands of his previous coal mine work. If this requirement is met, consideration is then given to age, education and work experience in determining whether the applicant is able to engage in any other kind of comparable and gainful work. Paragraphs (b), (c) and (d) of section 410.426 describe alternative evidentiary bases for establishing the requisite level of impairment severity
Paragraph (b) provides that subject to the limitations of paragraph (a), pneumoconiosis shall be found disabling if a ventilatory study shows a breathing impairment of the level of severity specified in the table provided therein. This table reflects a level of breathing impairment which would normally prevent an individual of the specified height from performing coal mine work on a regular basis. An individual whose breathing capacity is greater than that specified in the table would, normally, in the absence of any other functional limitation, have the capacity to perform coal mine work.
If the values set out in the table in paragraph (b) are not met, paragraph (c) provides that pneumoconiosis may nevertheless be found disabling if a physical performance test establishes an impairment which is medically the equivalent of the values specified in the table in paragraph (b), i.e., establishes that the applicant would normally not be expected to be able to perform coal mine work.
Paragraph (d) of section 410.426 provides an additional alternative basis for establishing total disability on the basis of other relevant evidence. Other relevant evidence is defined in section 410.414(c) as follows:
Paragraph (d) must be interpreted in the context of the full section, including paragraph (a). Thus, while all relevant evidence must be considered, in every claim, a finding of total disability requires that such evidence convincingly establish that the applicant has pneumoconiosis of such severity that he is unable to meet the physical demands of coal mine work or, considering his age, education and work experience, of any other comparable and gainful work. This requirement may be met by evidence which shows that the applicant is unable, because of the severity of his impairment, to perform coal mine work.
The level of severity of impairment necessary for a finding of total disability, if such disability is not established in accordance with the requirements of paragraph (b) and (c), must be proven by the "other relevant evidence." Just as the finding of total disability under paragraphs (b) and (c) must be based on medical evidence that demonstrates that the requisite level of severity is met, so too must such a finding under paragraph (d) be based, where the evidence is conflicting, on evaluation of all the available relevant evidence and the preponderance of all such evidence must prove total disability. While the opinion of a physician that a person is totally disabled is "relevant evidence" and must be considered, such opinion, in itself, without the support of clinical findings, will not be controlling. This is clearly pointed out in section 410.471 which states:
While ventilatory studies demonstrate the ability of the claimant to move air in and out of his lungs, such studies do not necessarily describe the ability of the claimant's lungs to transfer oxygen to his bloodstream. Nevertheless, where the values in the interim table in section 410.490(b)(ii) are exceeded, only in an unusual case will such an individual be totally disabled due to a lung impairment. A finding of disability becomes less likely as the ventilatory study values increase further above this table.
Generally, symptoms of impaired lung function may include difficult breathing or shortness of breath, fatigue, a chronic cough or chest pains. Physical signs such as rales, distant breath sounds, a barrel chest, increased AP diameter of the chest, cyanosis and clubbing may also be found. Limited chest expansion also occurs, but would be inconsistent with ventilatory study values exceeding those in section 410.490(b)(ii). Also relevant may be such factors as a long-standing history of a significant chronic pulmonary or respiratory disease and treatment for such disease; a history of adverse effect on continuous employment and imposition of marked restrictions on the activities of daily living.
Although the results of W's objective medical tests (X-ray and ventilatory function studies) were insufficient to establish total disability under the interim regulatory criteria, the clinical and other relevant evidence submitted in connection with his claim reveal a history of extensive treatment for a severe chronic respiratory condition. W's ventilatory values, while not meeting the values specified in the interim table for a man of his height, were only slightly above the interim table values. The evidence also reveals that as a result of a worsening of his condition, W missed considerable amounts of time from his job and finally was forced to sop work and restrict his daily activities. The evidence further shows that upon physical examination, he exhibited physical signs such as cyanosis, persistent cough, moist rales, distant breath sounds and shortness of breath on light exertion all of which in combination are indicative of a respiratory impairment of a level of severity contemplated in Regulations No. 10, section 410.426.
Accordingly, where all the evidence proffered by the claimant is evaluated in light of the above-cited regulations, and clinical findings, consistent with the non-medical evidence, establish the presence of a functional impairment of a level of severity contemplated in section 410.426, the miner is determined to be totally disabled.
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