Rudolph Combs v. Director, Office of Workers' Compensation Programs, United States Department of Labor

752 F.2d 203, 1985 U.S. App. LEXIS 27593

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 9, 1985
• Docket: 83-3865
• Status: Published

Opinions

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

Petitioner-appellant, Rudolph Combs, is an ex-coal miner who worked in deep mines over 10 years. He has a wife and two children. There is ample medical evidence that he has silicosis and as the Administrative Law Judge found, he is clearly entitled to the statutory presumption to that effect. He also has a back injury which does not prevent his taking advantage of the pneumoconiosis presumption which is statutorily available to him. In particular, it should be noted that he went back to work after his back injury. ' He had to quit work, however, as the ALT found “because he felt he no longer had the strength or breath to do the work.”

The medical evidence of record consists of two pulmonary function studies, three x-rays, a blood gas-study, and three medical reports. The AU, relying on the first pulmonary function study, found that Combs qualified for the interim presumption under 20 C.F.R. § 727.203(a). The AU went on to find, however, that the presumption had been rebutted by the three medical reports. None of the medical reports found Combs to be not disabled. Two of the reports, each based on separate x-rays, diagnosed Combs as suffering from “pneumoconiosis, simple, state I — II” and “Category I pneumoconiosis,” respectively. The third medical report, that from Dr. Becknell, who examined Combs at the request of the Director of the Department of Labor, found “minimal to no” pneumoconiosis while at the same time noting as to Combs: “If walks 25 ft, smothers; If climbs 1 flight of stairs get S.O.B. [short of breath]; If bends over and picks up 30 lbs. hurts back and get S.O.B.; If carries 30 lbs. 25 ft. smothers; Gradually began 7-8 years ago and has steadily worsened.”

On the record of this case, Combs is clearly entitled to the statutory presumption. No doctor testified that Combs did not have pneumoconiosis or was not disabled thereby.

We therefore follow the law of the Sixth Circuit as stated for a unanimous panel by Chief Judge Lively in Ansel v. Weinberger, 529 F.2d 304, 309-10 (6th Cir.1976):

The Secretary contends that the presumption was rebutted by evidence which established that Claude Ansel did not have pneumoconiosis. He relies on the negative findings of three radiologists who examined X-rays and the pulmonary studies. It is obvious that the negative X-rays may not be relied upon to rebut the presumption of Section 921(c)(4). If he had been able to produce a positive X-ray, there would have been no need to invoke the presumption. The very existence of a negative X-ray is a prerequisite to reliance upon the presumption of pneumoconiosis as established by other evidence. Furthermore, under the 1972 amendment, negative X-ray evidence may not be the sole basis for a denial of benefits. 30 U.S.C. § 923(b). Nor do we believe the presumption of Section 921(c)(4) can be rebutted by showing that pneumoconiosis was not established by pulmonary function studies. The regulation which establishes the levels required for a finding of disabling pneumoconiosis on the basis of a ventilatory study does not purport to provide proof of the nonexistence of pneumoconiosis. Once Claude Ansel produced evidence which entitled him to the presumption of Section 921(c)(4), that presumption could be rebutted only by establishing that he did not have pneumoconiosis, there being no contention that his impairment did not arise out of employment in the mines. In view of the unequivocal testimony of Dr. Bope, it appears that the Secretary would have been required at least to produce a medical opinion that Mr. Ansel did not have pneumoconiosis in order to rebut the presumption. No such testimony appears in this record. See Whitson v. Finch, 437 F.2d 728, 732 (6th Cir.1971).

Equally unavailing is the argument that the administrative law judge’s finding of no total disability rebuts the presumption. Once it has been established that an applicant is entitled to the presumption of Section 921(c)(4), that determination includes a finding of total disability, and arguments that the applicant was not totally disabled may not be the basis of rebutting the presumption.

We believe that the district court failed to distinguish between “true” statutory pneumoconiosis, which can be directly proven by X-ray and biopsy, and “presumed” pneumoconiosis which exists when an eligible applicant is totally disabled because of pulmonary or respiratory impairment but cannot prove “true” pneumoconiosis.* 1 To hold that presumed pneumoconiosis is rebutted by evidence which merely precluded a finding of true pneumoconiosis would render the presumption of Section 921(c)(4) a nullity.

The judgment of the district court is vacated and the case is remanded for entry of an award of disability benefits.

1 Quotation marks are being used because the Act awards benefits on the basis of legal, not technical medical definitions of pneumoconiosis.

For the reasons set forth above, we reverse and remand this case to the Director, Office of Workers’ Compensation Programs for the award of benefits.