Ernest Pannell v. Joseph A. Califano, Jr., Secretary of Health, Education & Welfare

614 F.2d 391, 1980 U.S. App. LEXIS 20709
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 7, 1980
Docket78-1082
StatusPublished
Cited by4 cases

This text of 614 F.2d 391 (Ernest Pannell v. Joseph A. Califano, Jr., Secretary of Health, Education & 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
Ernest Pannell v. Joseph A. Califano, Jr., Secretary of Health, Education & Welfare, 614 F.2d 391, 1980 U.S. App. LEXIS 20709 (4th Cir. 1980).

Opinions

JAMES DICKSON PHILLIPS, Circuit Judge:

Ernest Pannell appeals from an order of the district court affirming a decision of the Secretary of Health, Education and Welfare that he was not entitled to “black lung” benefits sought pursuant to the regulations enacted under Part B, Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901, et seq. The district court evaluated all of the claimant’s evidence and the provisions under which he might be entitled to benefits, and concluded that the Secretary’s finding and decision not to award benefits were supported by “substantial evidence.” 30 U.S.C. § 923(b), incorporating by reference § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). We agree with that conclusion and affirm. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).

In order for the claimant to be held entitled to benefits under Part B of Title IV, he must establish that he was a miner, that he has properly filed a claim for benefits, that he suffers from pneumoconiosis arising from coal mine employment, and that this disease disabled him before June 30, 1973, when jurisdiction to adjudicate claims passed to the Department of Labor. The Secretary acknowledged that Pannell was a miner and had filed a proper application, but found that he had failed to establish that he was totally disabled from pneumoconiosis on or before the jurisdictional cutoff date.

Pursuant to the Congressional directive in § 411(b) of the Act, 30 U.S.C. § 921(b), the Secretary has promulgated regulations prescribing the standards for determining whether a miner is totally disabled due to pneumoconiosis. Pannell had two alternative routes for claiming entitlement: through the interim adjudicatory rules of 20 CFR 410.490, or through the means set out in the permanent rules at 20 CFR 410.410-410.430. We shall examine the claimant’s evidence under each of the applicable provisions.

Under the interim rules, a rebuttable presumption of total disability due to pneumoconiosis arises if (1) an x-ray, autopsy or biopsy establishes the existence of simple pneumoconiosis, or (2) in the case of a miner who worked ten years in underground or comparable coal mine employment, ventilatory function studies establish the presence of a chronic respiratory or pulmonary disease. The x-ray evidence presented by this claimant consisted of nine films taken between March 5, 1971 and March 8, 1974. Six of these x-rays were found by one or more readers to be either negative for pneumoconiosis or of too poor a quality to permit interpretation. Of the remaining three, one film dated August 11, 1973 was initially interpreted as positive, category 1/lp, by an “A” reader. Upon review of the film, however, one “B” reader found that it was negative, and a second “B” reader pronounced it unreadable. An eighth film, dated August 27, 1971, was found to be unreadable by an “A” and a “B” reader, but on a rereading Dr. Navani, a “B” reader who reviewed three films at the claimant’s request, interpreted the film as showing pneumoconiosis, category 1/0. The final film, dated March 8, 1974, was interpreted by an “A” reader as suggestive of pneumoconiosis, category p2/3, by a “B” reader as unreadable, and by Dr. Navani as revealing more or less the same findings as the x-ray of August 27, 1971, or positive, category 1/0. But at a deposition by the claimant’s attorney on November 21, 1975, Dr. Navani stated that the August 27, 1971 x-ray showed “scattered modules of maybe Q0/1,” or negative. When asked if he could find category 1/0 in the March 8, 1974 x-ray, Dr. Navani stated that he could not read the film. On April 20, 1977, when Dr. Navani was again deposed by the claimant’s attorney, he was asked if “the disease process of 1/0” shown in his initial report on the [393]*393March 8, 1974 x-ray existed on or about May 1970. Dr. Navani stated that, “most probably,” it did.

The claimant has the burden of proving his entitlement to the presumption under the regulations by a preponderance of the evidence. Sharpless v. Califano, 585 F.2d 664, 667 (4th Cir. 1978). Any conflict in the evidence is to be resolved by the Secretary, and his resolution must stand if supported by substantial evidence. Id.; see also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976). We think the Secretary’s decision that the x-rays failed to establish the presence of pneumoconiosis has substantial support, given that each film read once as positive was also read as negative or unreadable by a “B” reader, and that the evidence of Dr. Navani, upon which claimant relies, is itself in conflict.

The Secretary was also entitled to decide that Panned had not met the criteria for establishing the presence of a chronic respiratory or pulmonary disease, which in conjunction with his long years of work in the mines would give rise to a presumption of total disability due to pneumoconiosis. The presence of such a disease may be established through ventilatory function studies performed in accordance with the regulations. Section 410.430 (20 CFR) of the regulations specifies that the studies must include a statement from the physician concerning the claimant’s degree of cooperation during the test. Because ventilatory function tests measure breathing capacity, the results depend in part upon the effort and cooperation of the individual undergoing the tests. Ventilatory function studies were performed on this claimant on four occasions, and for three of the tests the results fed within the values required for entitlement. But for one such test claimant’s cooperation was noted as “moderate,” for a second, “poor,” and on the third no notation of cooperation was made. The only test for which claimant’s cooperation was “good” yielded values in excess of the maximum allowing entitlement. We think the Secretary was justified in discounting those tests not performed in accordance with the regulations and in concluding that Panned had therefore not met his burden under this provision.

Having failed to qualify under either part of the interim rules, Panned must turn to the alternative means of entitlement set out in the permanent rules. One provision under these rules, at 20 CFR 410.418(a), supplies an irrebuttable presumption of total disablement due to pneumoconiosis to a miner who establishes the presence of complicated pneumoconiosis through x-rays or biopsies. Since no reader found complicated pneumoconiosis in any of Panned’s x-rays, he is clearly not entitled to the irrebuttable presumption.

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Bluebook (online)
614 F.2d 391, 1980 U.S. App. LEXIS 20709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ernest-pannell-v-joseph-a-califano-jr-secretary-of-health-education-ca4-1980.