John P. McNunis v. Joseph A. Califano, Jr., Secretary of Health, Education & Welfare

605 F.2d 743, 1979 U.S. App. LEXIS 11779

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 17, 1979
• Docket: 77-2146
• Status: Published

Opinions

K. K. HALL, Circuit Judge:

John P. McNunis [claimant] appeals from a final order of the district court affirming the decision of the Secretary of Health, Education and Welfare that he was not entitled to disability benefits under the Social Security Act. 42 U.S.C. § 401 et seq. Claimant alleged disability due to a nervous disorder, high blood pressure, an orthopedic condition and pneumoconiosis. The administrative law judge [AU] found that claimant had not established his inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments. 42 U.S.C. §§ 416(i), 423 (d)(1)(A). The Appeals Council affirmed without comment.

Our scope of review is limited to determining whether the decision of the Secretary is supported by substantial evidence. If such support exists, we must affirm; if not, we must reverse. 42 U.S.C. § 405(g). See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Because the record shows conclusively that claimant has proved total disability due to pneumoconiosis, we reverse.

The social security regulations contain listings of physical and mental impairments which, if met, are conclusive on the issue of disability. 20 C.F.R. § 404.1506.

(a) The Listing of Impairments describes, for each of the major body systems, impairments which—

(1) Are of a level of severity deemed sufficient to preclude an individual from engaging in any gainful activity; and

(2) Are expected to result in death or to last for a continuous period of not less than 12 months.

Pneumoconiosis is one such impairment, 20 C.F.R. Subpart P, App. § 3.06, where (1) it is demonstrated by X-ray evidence, and (2) pulmonary studies meet one of the three alternative criteria for pulmonary fibrosis set out in 20 C.F.R. Subpart P, App. § 3.04.

In this case, claimant submitted oxygen saturation studies done by Dr. Jacob which showed 02 of 92 mm.Hg. and pC02 of 32.5 mm.Hg. The parties agree that these values meet the criteria specified in § 3.04(C). The Secretary contends, however, that claimant did not meet the threshold requirement of demonstrating pneumoconiosis by X-ray evidence.¹ We disagree.

Admittedly, the X-ray evidence is conflicting. But claimant has submitted two positive X-rays: one dated 12/19/72 was interpreted by the Fairmont Clinic as showing simple pneumoconiosis, and another dated 1/3/75 was interpreted by Dr. Nelson as showing pneumoconiosis l-2p. 20 C.F.R. Subpart P, App. § 3.06 requires only that pneumoconiosis be “demonstrated” by X-ray evidence, as a threshold to consideration of oxygenation studies under § 3.04. We need not define the exact parameters of the requirement; it suffices to note that the burden on the claimant is a lighter one than that imposed under the black lung regulations, which require that a claimant establish the existence of pneumoconiosis by X-ray evidence. 20 C.F.R. § 410.414(a).

We think the two positive X-rays of record amply satisfy the threshold requirement that pneumoconiosis be demonstrated by X-ray. As the parties agree that the oxygenation study meets the criteria of 20 C.F.R. Subpart P, App. § 3.04(C), it follows that claimant is entitled to an award of disability benefits. 20 C.F.R. § 404.1506.

The judgment of the district court is reversed, and the case remanded for the court to enter judgment for the claimant.

REVERSED WITH INSTRUCTIONS.

1 . This issue is considered for the first time on appeal, as neither the ALJ nor the Appeals Council evaluated or even mentioned the evidence of pneumoconiosis. In the usual case, we would order a remand for reconsideration under Arnold v. Secretary of H.E.W., 567 F.2d 258 (4th Cir. 1977). Anticipating the Arnold issue, counsel for the Secretary maintained at oral argument that, even had the X-ray evidence been properly considered, the ultimate decision could not have been different. See Lucas v. Finch, 322 F.Supp. 1209, 1213 (S.D.W.Va.1970), aff’d per curiam sub nom. Lucas v. Gardner, 453 F.2d 1255 (4th Cir. 1972).

As our opinion makes clear, we are unpersuaded by this argument. Further, in a case less clear than this one, the Lucas situation would be the rare exception to the necessity of an Arnold remand.