SSR 76-6c: SECTIONS 402(f) and 411(b) (30 U.S.C. 902(b) and 921(b)) --
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 AS AMENDED -- TOTAL
DISABILITY DUE TO PNEUMOCONIOSIS -- APPLICABILITY OF INTERIM PRESUMPTION
OF TOTAL DISABILITY
20 CFR 410.412 and 410.490(b)(1)(ii) and (3)
GRACE v. WEINBERGER, U.S.D.C., W.D., VA., C74-113-(A) (12/18/74)
Where an individual alleging disability due to pneumoconiosis meets the
medical requirements established under the interim evidentiary rules and
criteria of Social Security Administration Regulations No. 10, section
410.490(b)(1)(ii), but fails to establish that he has at least ten years
of employment as a miner in the nation's coal mines as prescribed in
section 410.490(b)(3), held, he may not rely upon the presumption
of total disability due to pneumoconiosis arising under the interim
criteria set forth in section 410.490, and disability must be established
under the permanent criteria of sections 410.412-410.462.
TURK, District Judge:
Plaintiff has filed this action challenging the final decision of the
Secretary of Health, Education and Welfare denying his claim for "black
lung" benefits under the Federal Coal Mine Health and Safety Act of 1969,
as amended, 30 U.S.C. § 901 et seq. Jurisdiction is pursuant to §
413(b) of the Act, 30 U.S.C. § 923(b), which incorporates § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g). The sole issue to be decided by
this court is whether the Secretary's decision is supported by
"substantial evidence," and if it its, this court must affirm.
Plaintiff was born on February 8, 1906, and completed the sixth grade in
school. In his application, he alleges that he has pneumoconiosis and that
this condition arose out of his coal mine employment. Mr. Grace worked in
the mines in the late 20's and early 30's for a period of about five
years. He worked as a drillman under very dusty conditions. He thereafter
worked as an automobile mechanic until his retirement in 1973.
The earliest medical report in the record is dated October 21, 1968, and
is from Dr. George B. Setzler. He concluded that an x-ray of the plaintiff
showed pleural (sic) effusion and pneumonitis left lower lung field.
Next plaintiff was examined by Dr. Kinser on October 31, 1968. Dr. Kinser
interpreted an x-ray as showing questionable bronchitis, right lung root;
fibrosis and emphysema, bilaterally. However, there was no evidence of
pulmonary congestion or pulmonary edema.
Plaintiff was examined on December 3, 1971, by Dr. James W. Proffitt, a
radiologist. Dr. Proffitt reported that an x-ray showed small opacities,
Mr. Grace underwent pulmonary function studies on September 9, 1972, at
Norton Community Hospital. His 1 second timed vital capacity was 2.25
liters and his maximum breathing capacity was 75.87 liters per minute. His
height was listed as 67 inches and his cooperation was good.
Based on the results of the pulmonary function study, the Administrative
Law Judge concluded that plaintiff's pulmonary disorder had progressed to
such a level of severity that he was totally disabled as defined in the
Act and Regulations. Specifically, he relied on 20 C.F.R. § 410.490. Under
§ 410.490 there is a rebuttable presumption of total disability where the
ventilatory tests show a level of lung function equivalent to or less than
the applicable values specified in the table in this section. For a man of
plaintiff's height (67 ins) the values must be equal to or less than 2.3
and 92 liters FEV1 and MVV respectively. (Plaintiff's studies showed 2.25
and 75.87 liters).
While the interim rules of § 410.490 were designed to be more liberal
than the permanent criteria set forth in §§ 410.412-410.462, the do,
however, make this presumption of disability applicable only to
miners with at least 10 years of coal-mining employment. In the
present case, the evidence establishes that plaintiff worked only 5 years
in the nation's coal mines, and therefore, he is not entitled to rely on
the presumption in §
Instead, he must establish totally disabling pneumoconiosis under the
permanent criteria set out in §§ 410.412-410.462. If ventilatory studies
show a breathing impairment of the level of severity specified in the
table provided in § 410.426(b), pneumoconiosis will be found to be
disabling. In this case,
plaintiff's maximum voluntary ventilation (75.87 liters) and 1 second
forced expiratory volume (2.25 liters) exceed those values
specified in the aforementioned table (62 liters and 1.7 liters,
respectively); accordingly, plaintiff has not established pneumoconiosis
under this section. Likewise, plaintiff has failed to establish
pneumoconiosis under any of the other permanent criteria, §§
The court is accordingly constrained to conclude that the Secretary's
decision is supported by "substantial evidence" and must be affirmed.
Therefore, summary judgment is granted in favor of the defendant.
 The presumption referred to
is that found in § 410.490(b)(1)(ii) based on ventilatory study results.
There is a presumption of total disability based on X-ray, biopsy or
autopsy evidence of pneumoconiosis in § 410.490(b)(1)(i). While in either
subsection the impairment must be found causally related to coal miner
employment (see § 410.490(b)(2)), the presumption requiring at least 10
years of coal mine employment in § 410.490(b)(3) refers only to
ventilatory study results. [ED.]
 Entitlement to benefits
would not, of course, necessarily follow. The plaintiff would still have
to establish that the totally disabling pneumoconiosis arose from
employment in the Nation's coal mines in accordance with section 410.416.
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