Golden L. Moore v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare

633 F.2d 727, 1980 U.S. App. LEXIS 12821
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 27, 1980
Docket77-3537
StatusPublished
Cited by47 cases

This text of 633 F.2d 727 (Golden L. Moore v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Golden L. Moore v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, 633 F.2d 727, 1980 U.S. App. LEXIS 12821 (6th Cir. 1980).

Opinions

CORNELIA G. KENNEDY, Circuit Judge.

Golden Moore, a 65-year old former coal miner, appeals from a judgment of the District Court affirming the denial of black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901, et seq. Claimant retired in November 1970 after working as a mechanic in coal mines approximately 25 years. He applied for black lung benefits in January 1971, thus falling under Part B of the Black Lung Benefit Act, 30 U.S.C. § 921, et seq. At that time he also filed an application for disability benefits under the Social Security Act based upon arteriosclerotic cardiovascular disease. Social Security disability benefits were awarded in 1973. Following an administrative hearing in 1975, claimant was denied black lung benefits. The Administrative Law Judge’s decision was approved by the Appeals Council and became the final decision of the Secretary of Health, Education and Welfare. The District Court found that the Secretary’s decision denying black lung benefits was supported by substantial evidence. We agree with the.District Court’s conclusion and affirm.

Mr. Moore has an extensive medical history. He was hospitalized on more than one occasion for his heart problem. Most of his medical care was received from various doctors at the Trover Clinic in Madisonville, Kentucky. He has had numerous chest x-rays. A 1968 chest x-ray by Dr. Selby Coffman, a radiologist, at the Trover Clinic and an “A” reader of coal miner’s chest x-rays certified by the National Institute of Occupational Safety and Health was said to be normal. The report of the 1968 x-ray stated that there was no change since a 1966 x-ray. An April 3, 1969 x-ray by Dr. William Rogers, a radiologist, also at the Trover Clinic, revealed infiltrate in the right lung compatible with bronchopneumo-nia. An April 7, 1969 x-ray, also read by Dr. Rogers, stated that Mr. Moore’s condition was unchanged from the April 3 x-ray. An October 10, 1969 x-ray was stated to contain no evidence of active pulmonary or pleural disease by Dr. R. E. Yadon, another [729]*729radiologist with the Trover Clinic. A March 8, 1971 x-ray taken by Dr. Coffman was interpreted by him as positive for simple pneumoconiosis, category 2/lq. That x-ray was submitted for review to a certified “B” reader, Dr. Dinuris Ciklai Adler, who reported it negative for pneumoconio-sis. Two other “B” readers, Drs. Dennis and Rosenstein, examined the March 8,1971 x-ray, and also interpreted it as negative for pneumoconiosis. Finally, x-rays were taken June 5, 1974 by Dr. Neil Calhoun, a specialist in general practice. Dr. Calhoun interpreted these x-rays as showing a pulmonary fibrotic process extending outward from the hilar areas in all lung fields. The lateral view was described as showing thickening typical of emphysema. Dr. Calhoun concluded that the x-rays were typical of coal miner’s pneumoconiosis, category 1, sub-classification R. These x-rays were reread by Dr. Robert M. Coleman, a radiologist, as showing pulmonary fibrosis with pneumoconiosis not ruled out. “B” readers Dennis and Rosenstein interpreted the June 5,1974 x-rays as negative for pneumoconio-sis. The Administrative Law Judge concluded that the x-ray evidence did not establish pneumoconiosis.

Claimant had pulmonary function studies February 10, 1970, August 25, 1971, August 9, 1973, and June 5, 1974. A medical consultant to the Bureau of Hearing and Appeals reviewed these studies and reported that the June 5, 1974 tests were unsatisfactory. No tracings were provided for the February 10, 1970 studies as required by the regulations. Nor did a cooperation statement accompany them. The August 25, 1971 and August 9, 1973 studies did not meet the interim criteria of 20 C.F.R. § 410.490 under which total disability due to pulmonary disease may be presumed. The June 5, 1974 studies did meet the table of values; however, this was one year after the statutory jurisdictional cutoff date and the Administrative Law Judge relied on the 1973 tests which were closer to the cutoff date as more persuasive of plaintiff’s condition at that time. The pulmonary function studies did not therefore establish the presence of a chronic respiratory or pulmonary impairment.

The more difficult question is whether claimant produced such other evidence of totally disabling chronic lung disease that he was entitled to the rebuttable presumption provided by § 921(c)(4). That section provides that if a claimant has worked 15 years in the coal mines and has a totally disabling chronic respiratory or pulmonary impairment, it is presumed that he is totally disabled from pneumoconiosis. The presumption may be rebutted only if it is established that he does not have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of or in connection with employment in the coal mine. Negative x-rays and negative pulmonary studies may not be used to rebut the presumption. Ansel v. Weinberger, 529 F.2d 304, 309-10 (6th Cir. 1976). The burden is, however, on claimant to establish that he has the totally disabling chronic respiratory or pulmonary impairment.

The Administrative Law Judge found, after considering the medical evidence and Mr. Moore’s testimony, that he did not have significant pulmonary disfunction as of June 30, 1973 and that his symptoms are primarily associated with heart disease. That finding may not be set aside if it is based upon substantial evidence viewing the record as a whole, Carroll v. Califano, 619 F.2d 1157 (6th Cir. 1980); Le-Master v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976); Ross v. Richardson, 440 F.2d 690, 694 (6th Cir. 1971), even if we would have taken a different view of the evidence were we trier of the facts. Ross v. Richardson, supra, 440 F.2d at 694, King v. Celebrezze, 341 F.2d 108, 109 (6th Cir. 1968).

Medical reports submitted to the Secretary show that claimant was examined on August 25, 1971 by Dr. C. M. Van Hooser, an internist with the Trover Clinic. Moore complained of chest pain relieved by nitroglycerin. He denied having paroxysmal nocturnal dyspnea (periodic recurring labored or difficult breathing accompanied by pain). He stated he was short of breath after climbing stairs or walking a couple of [730]*730blocks. He had a cough productive of white sputum. Physical examination of his chest showed that his lungs were free of wheezes, rales, and rhonchi. Dr. Van Hooser’s diagnosis was arteriosclerotic heart disease with angina pectoris, class II. Dr. Van Hooser examined claimant August 9, 1973. His report of that examination states that Mr. Moore’s lungs were clear to auscultation and percussion, with no wheezes, rales, or rhonchi. Again, his diagnosis was arterio-sclerotic heart disease with angina pectoris. Dr. Van Hooser performed pulmonary function studies on August 9, 1973.

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Bluebook (online)
633 F.2d 727, 1980 U.S. App. LEXIS 12821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golden-l-moore-v-joseph-a-califano-jr-secretary-of-health-education-ca6-1980.