Stapleton v. Westmoreland Coal Co.

WIDENER, Circuit Judge,

concurring and dissenting:

I am in the unenviable position of agreeing in part with the result Judge Hall’s opinion would obtain and in part with the result which Judge Phillips would obtain. I agree with Judge Hall’s opinion as to when the presumption should be invoked under sections (a)(l)-(3), but disagree with its interpretation of the rebuttal section of the regulation. I concur with the Judge Phillips construction of rebuttal section (b). It is my position that the presumption under section (a)(4) should be invoked upon a single qualifying opinion of a physician, but, absent that, the “other medical evidence” should be weighed by customary standards as Judge Phillips’ opinion would decide. I concur in Part IIIB of Judge Hall’s opinion concerning the award of prejudgment interest.

Sections (a)(l)-(3):

I agree with Judge Hall that sections (a)(1) — (3) mean that a single qualifying X-ray or a single qualifying set of ventilatory or blood gas studies is sufficient to trigger the presumption. I am of the belief that Judge Phillips’ interpretation would make the rebuttal section of the regulation superfluous in the event there was only one kind of evidence (X-rays, blood gas, or ventilatory studies) since it would require the evaluation of that evidence by the preponderance of the evidence standard twice: first, in invoking the presumption, and, second, on rebuttal. While the preponderance of evidence standard may be the generally accepted rule for the evaluation of evidence to establish a presumption, see, e.g., 5 U.S.C. § 554 et seq., I agree with Judge Hall that the regulation as drafted supersedes this principle. See 5 U.S.C. § 559 .

I am persuaded in my opinion by the Congressional purpose in enacting the 1977 Amendments so thoroughly discussed by Judge Sprouse, i.e., to make it easier for a claimant to prove a claim, but more especially by the comments of the Secretary of Labor issued in connection with the final promulgation of the very regulations at issue here. They are published in the Federal Register of August 18, 1978. Comment * 2 of the Secretary, while addressing the standard on rebuttal, clearly implies that it was intended that one item of qualifying evidence would be sufficient to invoke the presumption:

[T]he Department cannot, as has been requested by some, look for the single item of evidence which would qualify a claimant on the basis of the interim presumption, and ignore other previously obtained evidence. This does not mean that the single item of evidence which establishes the presumption is overcome by a single item of evidence which rebuts the presumption.

Notice of Final Rulemaking under the Black Lung Benefits Reform Act of 1977, 43 Fed.Reg. 36826 (1978) (emphasis added). See generally 43 Fed.Reg. 36771-36831 (Aug. 18, 1978) (Notice of Final Rulemaking); 43 Fed.Reg. 17722-17773 (April 25, 1978) (Notice of Proposed Rulemaking). The Secretary’s intention in promulgating the regulations is thus made clear and is contrary to the position now expressed by the Director, i.e., that the presumption is triggered only if there is a preponderance of like-kind evidence. See Judge Hall’s opinion at 431; Judge Phillips’ opinion at 442.

This interpretation is particularly acceptable to me in light of the fact that an X-ray or blood gas or ventilatory tests must meet precise standards prescribed by the regulations to qualify to invoke the presumption. See, e.g., 20 C.F.R. §§ 410-426 (b); 410.428; 410.430; 718.102; 718.103; 718.105; Part 718, Appendices A, B, C; 727.206 (1985). These quality standards were carefully arrived at by the Secretary, see, e.g., 43 Fed.Reg. at 36826, and indicate a degree of reliability sufficient to satisfy the claimant’s initial burden to produce evidence to establish the presumption. The only human error they are subject to is the degree of skill in making and reading X-rays and in making and supervising the blood gas and ventilatory studies.

*466

Section (a)(4):

The Secretary’s comments in issuing this regulation imply that the same interpretation I give to sections (a)(l)-(3) applies to section (a)(4) so far as the “documented opinion of a physician” goes. In discussing (a)(4), the Secretary commented as follows:

Some of those who commented expressed the opinion that the word “documented” in paragraph (a)(4) is unclear and should be deleted. This paragraph extends the application of the interim presumption on the basis of a medical report alone. This could not be done with respect to a claim filed on June 30, 1973. In order to justify this extension, the Department believes it is necessary to require both a documented and reasoned report. It is not, however, intended that documentation should consist exclusively of objective medical tests. It is intended that the physician’s observation of the miner, personal knowledge of the miner’s condition and work history, and other similar matters would constitute documentation.

43 Fed.Reg. at 36826.

But I note an inherent problem in considering in each case all available medical evidence under section (a)(4) in determining whether or not to invoke the presumption. In a case where there is a qualifying opinion from a physician and where the only evidence available is (a)(4) evidence, i.e., there are no X-rays, ventilatory studies, or blood gas studies, and all such “other medical evidence” is considered and the presumption is invoked, the very invocation has essentially made that presumption irrebuttable so far as a totally disabling respiratory or pulmonary impairment is concerned. Any available conflicting evidence will already have been considered in the presumption’s invocation.

I am persuaded by the Secretary’s published comments which did not come to our attention in Sanati, 1 and have not been brought to our attention here, as well as by the reasoning above, that any conflicting evidence should not be weighed under (a)(4) until rebuttal in cases in which there is a qualifying physician’s opinion, and, instead, the presumption should be weighed on the basis of one qualifying opinion which meets the regulations. In cases, however, where there is no qualifying physician’s opinion but there is “other medical evidence” relevant to the existence or non-existence of total disability due to a respiratory or pulmonary impairment, including, for example, lung scans (see Petry v. Califano, 577 F.2d 860 (4th Cir.1978)), physical examinations, medical histories, nonqualifying opinions of physicians, etc., that evidence must be weighed under customary standards to determine if it establishes the presumption under (a)(4).

Section (b):

I concur in Judge Phillips’ interpretation of rebuttal section (b) and would, accordingly, overrule Whicker and, of course, its predecessor, Hampton. I am of opinion that 30 U.S.C. § 923 (b), which for rebuttal is untrammeled by any restrictive interpretation or regulation and provides that “[i]n determining the validity of claims under this part, all relevant evidence shall be considered requires consideration of all of the relevant evidence on rebuttal in determining the ultimate issue. The statutory language is so construed in subsection (b) requiring consideration on rebuttal of *467 “all relevant medical evidence.” “A more comprehensive word than ‘all’ cannot be found in the English language ...,” Moore v. Va. Fire & Marine Ins. Co., 28 Grat. (69 Va.) 508, 510 (1877), and no reason is presented to give the word other than its ordinary meaning. I see no reason to impose artificial restrictions, as Whicker and Hampton have done, on the evidence available in finally deciding a claim.

Again, I am supported by the comments of the Secretary in issuing this regulation:

2. The many comments which urge that all relevant evidence should not be considered in rebutting the interim presumption must also be rejected. The Conference Report accompanying the 1977 Reform Act provides, in connection with the interim criteria, “except that in determining claims under such criteria all relevant medical evidence shall be considered in accordance with standards prescribed by the Secretary of Labor and published in the Federal Register." (See also Act, section 413(b).) Moreover, the Social Security regulations, while less explicit, similarly do not limit the evidence which can be considered in rebutting the interim presumption. For these reasons, the rule is not more restrictive than the criteria applicable to a claim filed on June 30, 1973, and is otherwise fully in accordance with law. Some of the commentators felt that the “all relevant evidence” rule would cause claims adjudicators to ignore the presumption, and simply pick from all the evidence those items on which they wish to rely. This is certainly not authorized by the interim presumption. However, the Department believes that use of the presumption should be clarified.

The interim presumption is, by statute, rebuttable and the Department has no authority to make it irrebuttable. Nor does the Department have authority to exclude any relevant evidence from consideration in connection with any case, or mandate a result which is contrary to the evidence in a case. However, the Department cannot, as has been requested by some, look for the single item of evidence which would qualify a claimant on the basis of the interim presumption, and ignore other . previously obtained evidence. This does not mean that the single item of evidence which establishes the presumption is overcome by a single item of evidence which rebuts the presumption. The Act embodies the principle that doubt is to be resolved in favor of the claimant, and that principle plays an important role in claims determinations both under the interim presumption and otherwise.

43 Fed.Reg. 36771, 36826 (1978) (emphasis added). The only restriction on rebuttal, then, pertinent here, is expressed directly by Congress: “no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram [X-ray].” 30 U.S.C. § 923 (b).

RESULTS

Gerald L. Stapleton:

The ALJ properly invoked the presumption on the basis of one positive qualifying X-ray. Therefore, the Benefits Review Board’s conclusion that the ALJ “erroneously invoked the presumption ... without weighing all of the X-ray evidence prior to invocation ...” is incorrect. I believe that the ALJ was correct in not invoking the (a)(4) presumption on the evidence in this case because the doctor’s report most favorable to the claimant does not qualify under the regulations. Dr. Paranthaman’s report states in explicit terms that: “His respiratory impairment appears to be moderate.” This, of course, does not meet (a)(4)’s requirement that the respiratory impairment must be “totally disabling.”

The ALJ properly considered all the relevant evidence on rebuttal, including negative and nonqualifying test results, and was supported by substantial evidence in his decision that the presumption was rebutted. I would affirm the denial of benefits.

*468

Luke R. Ray:

Because Ray presented two positive qualifying ventilatory studies (although there were also nonqualifying studies), he met his initial burden of establishing the presumption which should have been invoked under (a)(2). In addition, since the claimant has one positive physician’s opinion, documented within the regulations’ requirements in (a)(4), concluding that he is totally disabled due to his respiratory impairment, the AU should also have invoked the presumption under (a)(4). The five negative or inconclusive doctor’s opinions should have been considered on rebuttal as should the negative or nonqualifying test results and X-rays.

For these reasons, Ray’s case should be remanded for-reconsideration in view of the presumption which was improperly not invoked under (a)(2) and (a)(4) and a proper consideration of whether in the light of all relevant evidence the presumption was rebutted.

Glenn Cornett:

I would affirm the AU’s determination that the presumption was invoked under sections (a)(1), (2), and (3) since the claimant produced at least one positive qualifying test in each category. The AU should not, however, have weighed the positive test results against the negative ones in determining whether or not to invoke the presumption.

I am of the opinion that (a)(4) is not properly before us in this case and, therefore, express no opinion concerning the presumption’s invocation. Neither the AU nor the Board discussed section (a)(4) in this case. Also, the plaintiff did not raise this section in his claim or on appeal. Therefore, I suggest we exceed our warrant in deciding this claim on our own initiative. There is no case or controversy. United States Constitution, Article III.

I would affirm the finding that the presumption was not rebutted and the award of benefits.

For the reasons given by Judge Hall, I agree that the claim should be remanded for a calculation of interest in accordance with his opinion.

I am authorized to say that CHAPMAN and WILKINSON, JJ., join in this opinion.

. As I see this case, Sanati should not survive on its facts which included in the record a qualifying physician's opinion under (a)(4), which we held should not alone invoke the (a)(4) presumption, but should be weighed against other nonqualifying reports. Only its reasoning should survive as it applies to the (a)(4) presumption where there is not a qualifying opinion of a physician.

The fact that the key authority, the August 18, 1978 Federal Register, was not brought to our attention in Sanati, nor in this case, does little to minimize my feeling of embarrassment in not finding that authority in the Sanati case and announcing my withdrawal from my earlier position in Sanati. With Judge Boreman, the best I can do is to paraphrase Gandhi that it is better to be consistent with truth as it may present itself at a given moment than to be consistent with a previous statement I have made on a given question. See Shiflett v. Commonwealth, 447 F.2d 50, 62 (4th Cir.1971) (Judge Boreman, concurring).