Ramey v. Kentland Elkhorn Coal Corp.

NATHANIEL R. JONES, Circuit Judge,

concurring in part and dissenting in part.

The appellant miners, Ramey and Lewis, have been denied benefits available through the Black Lung Benefits Reform Act. In considering each miner’s application for benefits, the administrative law judges (AUs) invoked the presumption of total disability due to pneumoconiosis in favor of the miner. 20 C.F.R. § 727.203 (a). Our review concerns the AUs’ determinations that the miners’ employers rebutted the presumption of total disability. Ramey was found to be able to do his usual coal mine work. 20 C.F.R. § 727.203 (b)(2). Lewis was found to be disabled by heart disease which did not stem, in whole or in part, from his coal mine work. 20 C.F.R. § 727.203 (b)(3).

20 C.F.R. § 727.203 (b)(2) allows an employer to rebut the presumption of total disability by demonstrating that the miner either “is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title).” This provision establishes a two-step analysis. If the employer demonstrates that the miner is able to do his usual coal mine work, there is no need to consider his ability to do comparable and gainful work. If the employer fails to demonstrate that the miner is able to do his usual coal mine work, the inquiry shifts to whether the miner can perform comparable and gainful work. Resolution of this second issue necessarily involves proof that, in light of the physical and vocational capacity of the miner, he can perform comparable and gainful work which is available to him in the immediate area of his residence. Shamrock Coal Co. v. Lee, 751 F.2d 187 (6th Cir.1985).

The Court today rules that the inquiry under the first clause of section 727.-203(b)(2), concerning whether the miner is able to do his usual coal mine work, is solely a question of physical capacity. Thus, vocational evidence is irrelevant and the presumption of disability can be rebutted by medical evidence alone. I recognize that the Eleventh, Fourth, a,nd Third Cir- *493 euits have adopted this interpretation; as a matter of judicial discipline, I concur in application of this rule in the Sixth Circuit. I write separately on this issue, however, because I believe that these precedents are incorrect. 1

In order to remedy the inadequate or nonexistent workers’ compensation coverage of miners under state law, Congress established a national compensation program which provides benefits to miners who have become disabled by pneumoconio-sis or to their survivors. Underhill v. Peabody Coal Co., 687 F.2d 217, 218-19 (7th Cir.1982). Congress first established this program in 1969, then amended it in 1972, and again in 1977. Initially, the Social Security Administration administered the program (Part B Claims). Claims filed on or after July 1, 1973 are the responsibility of the Department of Labor (DOL) (Part C claims). Under the authority of the 1977 amendments, the DOL promulgated Interim Regulations, including 20 C.F.R. § 727 .-203(b)(2). These regulations govern claims, such as those of Ramey and Lewis, which were filed on or after July 1, 1973 and before March 1, 1980. Id. at 219-20 .

Congress amended the black lung benefits program in 1972 and again in 1977 for one simple reason: to benefit more miners by expanding coverage and liberalizing eligibility restrictions. Id. at 220 . Not only did Congress in 1977 broaden the definition of pneumoconiosis, id.; see 30 U.S.C. § 902 (b), it also required the DOL to promulgate medical and evidentiary criteria for determining total disability which “shall not be more restrictive” than the medical and evidentiary criteria applied to Part B claims. Underhill, 687 F.2d at 220 ; see 30 U.S.C. § 902 (f)(2). We must interpret 20 C.F.R. § 727.203 (b)(2) in light of this statutorily-expressed Congressional intent.

The regulation that defined total disability for the purpose of Part B claims was 20 C.F.R. § 410.412 (a). This Court has construed vocational evidence to be highly relevant to a disability determination under that provision:

A claimant is totally disabled if his pneu-moconiosis prevents him from obtaining work as a coal miner in the immediate area of his residence on July 1, 1973____

The Secretary cannot rebut the presumption of total disability unless he demonstrates that the claimant is not vocationally disabled in the immediate area around his home.

Haywood v. Secretary of Health & Human Services, 699 F.2d 277, 285 (6th Cir. 1983) (emphasis added). Given Congress’s express intent to liberalize eligibility criteria in the black lung benefits program and the recent precedent holding that vocational evidence is essential to rebuttal of presumed disability of a Part B claimant, one would expect only compelling authority to lead this Court to restrict to medical evidence alone the relevant proof that a presumably disabled Part C claimant is “able to do his usual coal mine work.”

Two sources of authority support today’s ruling. First, three circuits have found that medical evidence alone may establish a miner’s ability to do his usual coal mine work. In Sherry v. Tesone Coal Co., 696 F.2d 985 (3d Cir.1982), the Third Circuit affirmed the Benefits Review Board in an unpublished opinion. The Fourth Circuit failed to consider the legislative history of the 1977 amendments and, therefore, incorrectly concluded that, because “no language in the regulations requir[es] vocational evidence as a necessary element of rebuttal,” vocational evidence is irrelevant. Director, Office of Workers’ Compensation Programs v. Beatrice Pocahontas Co., 698 F.2d 680, 682 (4th Cir.1983). The Eleventh Circuit followed Beatrice Pocahontas, primarily on the ground that black lung benefits “should not be a form of unemployment compensation.” Taft v. *494 Alabama By-Products Corp., 733 F.2d 1518, 1522 (11th Cir.1984). The rebuttal provisions of section 727.203(b), however, only apply once medical evidence alone has established the presumption of total disability. 20 C.F.R. § 727.203 (a). Consequently, black lung benefits will not become simply unemployment compensation. Most significantly, the decisions upon which this Court now relies have neither examined the legislative history of the 1977 amendments nor weighed the remedial purposes of the Black Lung Reform Act.

Secondly, today’s decision does examine legislative history, and places great reliance upon the Conference Committee Report which accompanied the 1977 amendments. The Conference Report provides that DOL regulations are not to impose more restrictive criteria than those applicable to Part B claims, “except that ... all relevant medical evidence shall be considered.” H.R.Rep. 864, 95th Cong.2d Sess. (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 308, 309. (Emphasis added). This Court interprets the above statement to require that only medical evidence shall be considered, and to demonstrate an altered congressional intent to exclude vocational evidence from consideration. After examination, I find nothing in the quoted legislative history that reveals to me a congressional intent to establish a medical test for rebuttal of presumed disability.

A former counsel to the Department of Labor has explicated the intent with which the Congressional conferees drafted the particular language on which this Court relies:

The conferees were most troubled by the allegation that the Social Security Administration treated its interim presumption as irrebuttable, thus engaging in only a perfunctory investigation of the claims. To ensure that the Secretary of Labor did not follow this practice, the conferees, after heated debate, agreed upon the following Report language:

With respect to a elaim filed or pending prior to the promulgation of such [new] regulations such regulations shall not provide more restrictive criteria than those applicable to a claim filed on June 30, 1973, except that in determining claims under such criteria all relevant medical claims evidence shall be considered in accordance with standards prescribed by the Secretary of Labor and published in the Federal Register.

By this statement the conferees alerted the Secretary of Labor that he was not to treat the interim presumption as irrebuttable.

Solomons, A Critical Analysis of the Legislative History Surrounding the Black Lung Interim Presumption and a Survey of Its Unresolved Issues, 83 W.Va.L.Rev. 869, 893 (1981) (footnotes omitted) (brackets in original). The Conference Committee intended to compel the DOL to consider, rather than continue to ignore, relevant medical evidence; the conferees did not intend thereby to exclude relevant vocational evidence from consideration.

Today’s opinion places a strained interpretation upon the Conference Committee Report, and then rejects without analysis the plain meaning of 30 U.S.C. § 902 (f)(2), through which Congress provided that DOL criteria applicable to Part C claims “shall not be more restrictive than the criteria applicable” to Part B claims. Congress intended both vocational and medical evidence to be relevant to the first clause of section 727.203(b)(2).

I dissent from the Court’s holding that Lewis’s claim was properly denied on the basis that he was disabled only by heart disease which did not stem, in whole or in part, from his coal mine work. 20 C.F.R. § 727.203 (b)(3). The majority properly states the standard articulated in Gibas v. Saginaw Mining Co., 748 F.2d 1112 (6th Cir.1984). To rebut the presumption of total disability under section 727.203(b)(3) the employer must “prove that pneumoco-niosis played no part in causing a miner’s disability.” Id. at 1120 . Lewis's employer, Left Beaver Coal Company, has not met its burden of rebuttal.

*495 Lewis is disabled by heart disease. Dr. Donald Wakefield, Lewis’s treating physician reported that Lewis suffers “cardiom-yopathy of undetermined etiology.” Dr. Richard P. O’Neill was similarly unable to establish the origin of Lewis’s heart condition. Dr. James Adams testified that Lewis’s pneumoconiosis would aggravate any underlying coronary artery disease. Despite the testimony of Dr. William H. Anderson that the general public is subject to the type of heart condition which Lewis suffers, the employer failed to “prove that pneumoconiosis played no part in causing” the miner’s disability. Lewis’s presumption of total “ity was not rebutted under section 727.203(b)(3); his application shouid be remanded for a grant of benefits This Courts refusal to direct a remand compels me to respectfully dissent.

. I concur without reservation in the determination that substantial evidence supports the ALJ's finding that Ramey was physically able to do his usual coal mine work; that determination should not end the matter. The presumption in favor of Lewis was not rebutted under § 727.-203(b)(2). A heart condition rendered Lewis physically incapable of doing his usual coal mine work. He was not shown to be able to do comparable and gainful work.