Abbott Hubbard v. Joseph A. Califano, Secretary of Health, Education and Welfare

582 F.2d 319, 1978 U.S. App. LEXIS 9369
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 24, 1978
Docket77-1718
StatusPublished
Cited by29 cases

This text of 582 F.2d 319 (Abbott Hubbard v. Joseph A. Califano, Secretary of Health, Education and Welfare) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott Hubbard v. Joseph A. Califano, Secretary of Health, Education and Welfare, 582 F.2d 319, 1978 U.S. App. LEXIS 9369 (4th Cir. 1978).

Opinions

K. K. HALL, Circuit Judge.

I.

BASIC ENTITLEMENT

The court adopts and incorporates its discussion of basic entitlement found in Part I of Petry v. Califano, 577 F.2d 860 (4th Cir. 1978). Claimant here relies on the presumption found in 20 C.F.R. § 410.414(b), as did the claimant in Petry, and here also, the Secretary does not challenge the facts that claimant is or was a coal miner, that pneumoconiosis, if found to exist, arose out of the claimant’s coal mine employment,1 and [321]*321that for the purposes of the § 410.414(b) presumption, claimant meets the fifteen-year requirement.

II.

THE § 410.414(b) PRESUMPTION The court further adopts and incorporates its discussion of the 20 C.F.R. § 410.-414(b) presumption found in Part II of Retry.

III.

THIS APPEAL

Although acknowledging that plaintiff meets the fifteen year requirement of the presumption, the Secretary denies that claimant is totally disabled due to a chronic respiratory impairment. A review of the evidence, in light of our analysis of the presumption as found in Petry, is necessary to determine if the Secretary’s decision was based on substantial evidence.2

1. X-rays

The Act and regulations prohibit the denial of a claim for benefits solely on the basis of negative X-rays. 30 U.S.C. § 923(b); 20 C.F.R. § 410.414(c). Furthermore, it is through the presentation of evidence other than X-rays, biopsies or autopsies that the presumption of § 410.414(b) is raised, and it is likewise by a finding that the other evidence does not demonstrate a totally disabling chronic respiratory impairment that the existence of the presumption is defeated. Therefore, inconclusive or contradictory results of the X-rays inure to the benefit of neither party.

2. Pulmonary function studies

The record reveals that five pulmonary function studies were performed, four of which apparently were found credible by the Secretary.3 Under the interim regulations, 20 C.F.R. § 410.490(b), a claimant with at least fifteen years of coal mine employment will be presumed totally disabled due to pneumoconiosis if pulmonary function studies reveal the presence of a chronic respiratory or pulmonary disease, as demonstrated by values specified in the regulations.4 Plaintiff does not rely on the presumption created in the interim regulations, but merely uses a comparison of his pulmonary function study values with those in the table as persuasive evidence of his total disability. The height of the claimant [322]*322and results of the tests administered to the claimant were as follows:

Height of Claimant FEVx MW
1. Oct. 5, 1970 71% 2.575, 50
2. Oct. 22, 1971 71% 4.2 166
3. May 16, 1972 72 3.05 100
4. Feb. 20, 1973 72 2.83 97

The values in the first test apparently come within the table values,5 but as noted above, plaintiff does not rely on the results of this test for recovery; however, these results, along with the examining physician’s findings of a mild restrictive defect and a disproportionately low MW are relevant other evidence of total disability under § 410.414(c). The other three tests were interpreted by claimant’s physicians as either normal, or indicative of minimally restrictive ventilatory insufficiency. Although this evidence does not compel an award of benefits, the undisputed testimony of claimant’s physicians is relevant in proving a totally disabling chronic respiratory impairment.6

3. Blood-gas tests

The record reveals that blood-gas tests were performed in 1972 and 1974. The 1972 tests produced values demonstrating normal to minimal ventilatory insufficiency before exercise, and abnormal ventilatory response with exercise. A consultant to the Secretary reviewed this test as totally negative. The 1974 tests resulted in values extremely close to those provided in the regulations which would entitle a claimant with pneumoconiosis to a presumption of total disability,7 and the physician who administered this test concluded that claimant had a marked disturbance in the ventilation to profusion relationship, indicating pneumoconiosis. The Secretary does not directly rebut the results of this later blood-gas test, or the physician’s diagnosis resulting therefrom, except to say that this doctor’s findings are inconsistent with other diagnostic reports.

4. Physical examination

In addition to or in conjunction with the tests outlined above, claimant was examined personally on several occasions by five doctors, one having been his personal physician for several years. Four of the five doctors found claimant had black lung and two expressly found claimant disabled. Although basing their conclusions in part on the disputed tests outlined above, they also had the benefit of examining personally the claimant and evaluating his condition. After performing an exercise test for one physician, whose testimony the Secretary excluded for no apparent reason, claimant was noted to be pale, sweating and wheezing. The same physician also found the existence of rales and other subjective symptoms of a respiratory impairment, the absence of which the Secretary relied on in his denial of an award to claimant.

Most importantly, the claimant’s treating physician, after observing claimant personally during a week of hospitalization, after conducting several tests, and after reviewing the entire record, concluded that claimant had a marked disturbance in the [323]*323ventilation to perfusion relationship, as demonstrated by the 1974 blood-gas test and his general observation of the claimant. This court places great reliance on a claimant’s treating physician, Martin v. Secretary, 492 F.2d 905 (4th Cir. 1974), especially where the Secretary neither has the claimant examined nor medically rebuts the tests upon which claimant’s physicians rely.

5. Claimant’s own testimony

Although “primary consideration is given to the medical severity of the individual’s pneumoconiosis,” 20 C.F.R. § 410.422, the testimony of the claimant is relevant in proving a totally disabling respiratory impairment, and it was not rebutted by the Secretary.

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Cite This Page — Counsel Stack

Bluebook (online)
582 F.2d 319, 1978 U.S. App. LEXIS 9369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-hubbard-v-joseph-a-califano-secretary-of-health-education-and-ca4-1978.