20 CFR 410.412 and 410.490(b)(1)(ii) and (3)

SSR 76-6c

GRACE v. WEINBERGER, U.S.D.C., W.D., VA., C74-113-(A) (12/18/74)

Where an individual alleging disability due to pneumoconiosis meets the medical requirements established under the interim evidentiary rules and criteria of Social Security Administration Regulations No. 10, section 410.490(b)(1)(ii), but fails to establish that he has at least ten years of employment as a miner in the nation's coal mines as prescribed in section 410.490(b)(3), held, he may not rely upon the presumption of total disability due to pneumoconiosis arising under the interim criteria set forth in section 410.490, and disability must be established under the permanent criteria of sections 410.412-410.462.

TURK, District Judge:

Plaintiff has filed this action challenging the final decision of the Secretary of Health, Education and Welfare denying his claim for "black lung" benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. Jurisdiction is pursuant to § 413(b) of the Act, 30 U.S.C. § 923(b), which incorporates § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The sole issue to be decided by this court is whether the Secretary's decision is supported by "substantial evidence," and if it its, this court must affirm.
Plaintiff was born on February 8, 1906, and completed the sixth grade in school. In his application, he alleges that he has pneumoconiosis and that this condition arose out of his coal mine employment. Mr. Grace worked in the mines in the late 20's and early 30's for a period of about five years. He worked as a drillman under very dusty conditions. He thereafter worked as an automobile mechanic until his retirement in 1973.
The earliest medical report in the record is dated October 21, 1968, and is from Dr. George B. Setzler. He concluded that an x-ray of the plaintiff showed pleural (sic) effusion and pneumonitis left lower lung field.
Next plaintiff was examined by Dr. Kinser on October 31, 1968. Dr. Kinser interpreted an x-ray as showing questionable bronchitis, right lung root; fibrosis and emphysema, bilaterally. However, there was no evidence of pulmonary congestion or pulmonary edema.
Plaintiff was examined on December 3, 1971, by Dr. James W. Proffitt, a radiologist. Dr. Proffitt reported that an x-ray showed small opacities, category 0/0.
Mr. Grace underwent pulmonary function studies on September 9, 1972, at Norton Community Hospital. His 1 second timed vital capacity was 2.25 liters and his maximum breathing capacity was 75.87 liters per minute. His height was listed as 67 inches and his cooperation was good.
Based on the results of the pulmonary function study, the Administrative Law Judge concluded that plaintiff's pulmonary disorder had progressed to such a level of severity that he was totally disabled as defined in the Act and Regulations. Specifically, he relied on 20 C.F.R. § 410.490. Under § 410.490 there is a rebuttable presumption of total disability where the ventilatory tests show a level of lung function equivalent to or less than the applicable values specified in the table in this section. For a man of plaintiff's height (67 ins) the values must be equal to or less than 2.3 and 92 liters FEV1 and MVV respectively. (Plaintiff's studies showed 2.25 and 75.87 liters).

While the interim rules of § 410.490 were designed to be more liberal than the permanent criteria set forth in §§ 410.412-410.462, the do, however, make this presumption of disability applicable only to miners with at least 10 years of coal-mining employment. In the present case, the evidence establishes that plaintiff worked only 5 years in the nation's coal mines, and therefore, he is not entitled to rely on the presumption in § 410.490.[1]

Instead, he must establish totally disabling pneumoconiosis under the permanent criteria set out in §§ 410.412-410.462. If ventilatory studies show a breathing impairment of the level of severity specified in the table provided in § 410.426(b), pneumoconiosis will be found to be disabling.[2] In this case, plaintiff's maximum voluntary ventilation (75.87 liters) and 1 second forced expiratory volume (2.25 liters) exceed those values specified in the aforementioned table (62 liters and 1.7 liters, respectively); accordingly, plaintiff has not established pneumoconiosis under this section. Likewise, plaintiff has failed to establish pneumoconiosis under any of the other permanent criteria, §§ 410.412-410.462.

The court is accordingly constrained to conclude that the Secretary's decision is supported by "substantial evidence" and must be affirmed. Therefore, summary judgment is granted in favor of the defendant.

[1] The presumption referred to is that found in § 410.490(b)(1)(ii) based on ventilatory study results. There is a presumption of total disability based on X-ray, biopsy or autopsy evidence of pneumoconiosis in § 410.490(b)(1)(i). While in either subsection the impairment must be found causally related to coal miner employment (see § 410.490(b)(2)), the presumption requiring at least 10 years of coal mine employment in § 410.490(b)(3) refers only to ventilatory study results. [ED.]

[2] Entitlement to benefits would not, of course, necessarily follow. The plaintiff would still have to establish that the totally disabling pneumoconiosis arose from employment in the Nation's coal mines in accordance with section 410.416. [ED.]

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