“Neither Dr. Rolston nor any other physician said that Caraway did not have pneumoconiosis. Therefore, neither Dr. Rolston’s report nor the other evidence rebuts the presumption [of § 921(c)(4) ].”
How later courts described this case
- “Neither Dr. Rolston nor any other physician said that Caraway did not have pneumoconiosis. Therefore, neither Dr. Rolston’s report nor the other evidence rebuts the presumption [of § 921(c)(4) ].”
Written by the judges who cited it.
The opinion
CORNELIA G. KENNEDY, Circuit Judge,
dissenting.
Because I am of the opinion that the District Judge correctly held that the administrative record contains substantial evidence to support the Appeals Council’s holding that appellant is ineligible for Black Lung Benefits, I dissent. As the majority notes, since appellant cannot meet the x-ray or ventilatory study standards, he must rely on the rebuttable presumption provision, 30 U.S.C. § 921 (c)(4). The threshold requirements for this section are that he be employed 15 years or more in the mines (which appellant meets) and evidence (other than x-ray) which “demonstrates the existence of a totally disabling respiratory or pulmonary impairment.” The Appeals Council specifically found that the evidence “does not demonstrate a significantly impaired lung function as a result of chronic respiratory or pulmonary disease” or “totally disabling chronic respiratory pulmonary impairment.” The majority opinion describes at length portions of the record which could support the opposite conclusion. However, the record also contains other substantial evidence which supports the Administrative Law Judge and the Appeals Council. For example, in July 1973, very close to the June 30, 1973 cutoff date, when appellant was hospitalized for multiple pulmonary emboli, the treating physician, Dr. Rolston, reported that no clinical findings relating to the em-boli could be detected and that appellant’s physical examination remained essentially normal. (Exhibits 36, 40 and 43). The record of the examination at the hospital on July 23, 1973 (Exhibit 36) contains the following:
“CHEST: The respirations are unlabored.
“LUNGS: Are clear. I hear no rales, rubs nor rhonchi, no wheezes.”
Further, the record does not disclose any complication from the emboli which cleared rapidly. Dr. Rolston’s report of August 28, 1973 (Exhibit 43) states that there was no evidence of symptoms of pulmonary emphysema and recent examinations were described as completely unremarkable. No pulmonary findings relative to the pulmonary em-boli could be detected clinically. Dr. Rol-ston’s reports provide substantial evidence for the Appeals Council’s conclusion that there was no significant impairment of pul *13 monary function before June 30, 1973. That we may have reached a different conclusion on the same evidence is not controlling. The decision of the Appeals Council must be upheld if supported by substantial evidence. Adkins v. Weinberger, 536 F.2d 113, 117 (6th Cir. 1976).
The Appeals Council did not, as the majority states, “discredi[t] the physical examinations and rel[y] instead on the negative x-rays in the record.” Rather, it relied, as it was entitled to, on Dr. Rolston’s reports and the hospital reports of July and August, 1973. Dr. Rolston’s statement that appellant’s “breath sounds are very poor at the right base” quoted in the majority opinion is not inconsistent with his other reports. The statement quoted by the majority is preceded by the sentence “LUNGS: Are entirely clear.” (Exhibit 40). Appellant was then in the acute stage of his pulmonary infarct. Indeed, the diagnosis of appellant’s condition at that time was “Recent pulmonary embolus.” In accepting the July-August reports of appellant’s treating internist, Dr. Rolston, and rejecting reports from doctors who saw appellant later, the Appeals Council noted that although the reporting doctors concluded appellant was disabled, objective tests, such as the 1974 pulmonary function studies, were negative for pulmonary disease.