# Director, Office of Workers' Compensation Programs, United States Department of Labor v. Georgia Congleton

> Court of Appeals for the Sixth Circuit · September 13, 1984 · 743 F.2d 428

URL: https://www.frixlaw.com/law-library/cases/9472595

## Case

- **Full name:** DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. Georgia CONGLETON, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 13, 1984
- **Citations:** 743 F.2d 428; 1984 U.S. App. LEXIS 18631
- **Precedential status:** Published
- **Opinion:** Dissent by Weick
- **Judges:** Weick, Krupansky, Wellford
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472595

## How later opinions describe it (automated extraction)

- recognizing that the reviewing court need not defer to the ALJ’s determination when “the evidence presented was simply too vague and conflicting to support the decision” as explained by the ALJ

## Opinion text

WEICK, Senior Circuit Judge,
dissenting.
Georgia Congleton, widow of the deceased underground coal miner, Thomas Congleton, filed her claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., on October 15, 1971. The petitioner, who is the Director, Office of Workers’ Compensation, United States Department of Labor, in accordance with the Act and applicable regulations, referred the case to the Office of Administrative Law Judges for a formal hearing. The Administrative Law Judge (AU), Thomas G. Egan, conducted an evidentiary hearing, taking the testimony of witnesses and admitting exhibits. The AU rendered his Decision And Order — Award of Benefits on November 13, 1980. It reads as follows:
This proceeding arises from a claim for benefits under the Black Lung Benefits Act, U.S.C. 901 et seq. In accordance with the Act, and the regulations issued thereunder, this case was referred to the Office of Administrative Law Judges by the Director, Office of Workers’ Compensation Programs for a formal hearing.
*432 Benefits under the Act are provided to persons who are totally disabled within the meaning of the Act due to pneumoco-niosis, which arose out of coal mine employment, or to the survivors of persons who were totally disabled at the time of their death or whose deaths were caused by pneumoconiosis. Pneumoconiosis is a dust disease of the lungs arising from coal mine employment and is commonly known as black lung.
A formal hearing was held in London, Kentucky, on July 9, 1980, at which all parties were afforded full opportunity to present evidence and argument, as provided in the Act and the regulations issued thereunder, found in Title 20 Code of Federal Regulations. New Parts 725 and 727 were added to Title 20 on August 18, 1978, and were published in the Federal Register on that date ( 43 F.R. 36772 et seq.). Regulation section numbers mentioned in this Decision and Order refer to sections of Title 20.
Background
. . The claimant, Georgia Congleton, testified that when she married Thomas Con-gleton in 1927, he was a ^ working coal miner. She creditably testified that with the exception of a short period of time in the late twenties and two years during World War II, his main occupation was that of an underground coal miner. She further testified that her husband left coal mine work in 1958.
Mrs. Alma Fay Watkins, claimant’s daughter, testified that she can remember that when she was four years of age (1933), her father-was working as a coal miner. Mrs. Watkins’ testimony was essentially the same as her mother’s testimony regarding the decedent’s coal mine employment.
The record contains mine [sic] statements of co-workers, neighbors and coal company pay roll clerks (C-1A thru CIE) (D-5-9-11). The unchallenged statements support the claimant’s testimony. Exhibits C-1A thru C-1E indicate that the claimant started coal mining in 1922 or 1923. Based on the foregoing it is concluded that the claimant’s husband worked as a coal miner well over 25 years.
This matter involves a claim by the widow of a coal miner who had, prior to his death on January 17, 1969, completed a work record in excess of 25 years in the mines. Squarely at issue, then, is the application of Section 411(c)(5) of the Act. The pertinent section reads, in part, the case of a miner who dies on or before the date of the enactment of the Black Lung Benefits Reform Act of 1977 wbo was employed for 25 years or more in one or more coal mines before June 30, 1971< e%ible survivors of such miner sha11 be entitled to the payment of bene--®s •_ • • un^ess it is established that at tbe tbne b's or ber death such miner was not Partially or totally disabled due to Pneumoconiosis/’ (section 411(c)(5)).
Under this provision, all a widow of a miner who died before March 1, 1978, need show is a work record by her spouse totaling 25 years or more of coal mine employment before June 30, 1971. Mrs. Congleton, having carried the burden of proof on this issu6) ÍS) as a matter 0f ]aWj entitled to benefits unless, at the time of death, the miner was neither totally nor partially disabled due to pneu-moconiosis. The burden of demonstrat-jng the absence of totally or partially disabling pneumoconiosis rests with the Director.
Under Section 411(c)(5) of the Act and its implementing regulation 20 CFR § 727.204 , those who would contest the widow’s claim must establish that the miner was not partially disabled at the time of death.
The chest X-ray of April 14, 1964, (D-14) wherein there is no diagnoses of pneumoconiosis is not alone sufficient to rebut the presumption of entitlement, (727.204(d)(3)) The same is true of the death certificate which does not mention pneumoconiosis, § 725.204(d)(4).
The burden of proving partial disability is not upon the claimant nor does the claimant have the burden of proving that *433 partial disability is the result of pneumo-coniosis. The record through testimony and affidavits demonstrates that the decedent had a reduced ability due to a breathing difficulty to engage in coal mine or comparable work. The record also indicates that the decedent had a heart problem. In this case the party opposing the claim has the burden of demonstrating that the decedent did not have pneumoconiosis. That burden necessary to rebut the presumption has not been met (727.204(c)).
ORDER
It is ORDERED that the Black Lung Disability Trust Fund pay Georgia Con-gleton all benefits to which she is entitled as of January 1, 1974.
(App. at 4-7) (footnote omitted).
Petitioner appealed from the decision and order of the ALJ to the Benefits Review Board, which appeal was heard by the Board and affirmed in a per curiam opinion. (App. at 8-9). The Benefits Review Board held, after careful consideration of the arguments and the evidence in the record, “that the Decision and Order of the administrative law judge is supported by substantial evidence and is in accordance with law.” (App. at 9). Petitioner then filed a motion for reconsideration which the Board denied on April 12, 1983. The Director then filed his Petition For Review in this Court and was heard on briefs, appendix and oral argument.
I.
In my opinion, the approach taken by the majority in this case will severely undercut the intent of Congress in establishing a presumption of eligibility for black lung benefits based on 25 years or more service as a coal miner. The Court’s disposition of this case also fails to heed the proper standard of judicial review for administrative determinations.
With respect to his threshold finding of the required period of coal mine work to invoke the presumption of 30 U.S.C. § 921 (c)(5), the AU credited the testimony and affidavits of Thomas Congleton’s family, neighbors and co-workers, all of which supported a finding that Congleton was employed as a coal miner more or less continuously (with only seasonal layoffs and a few years of other employment) from 1922 through 1958, a period of 36 years. He therefore did not consider it necessary to identify the exact length of service in the mines since it was clearly in excess of 25 years.
Counsel for the petitioner argues that Mrs. Congleton’s testimony and the statements of the other affiants were too vague and not sufficiently consistent to permit a finding of 25 years service. Also, it is claimed that the Social Security earnings records for January 1937 through December 1969, introduced in evidence, only reflected nine and a half years of coal mining during that period. However, neither of these factors establish the lack of substantial evidence necessary to overturn the findings of an ALJ. See, e.g., Haywood v. Secretary of Health and Human Services, 699 F.2d 277, 285 (6th Cir.1983).
Although “[a] bald conclusion, unsupported by reasoning or evidence, is generally of no use to a reviewing court," Maxey v. Califano, 598 F.2d 874, 876 (4th Cir.1979), and a court should not have to speculate as to an AU’s reasoning process, Schaaf v. Mathews, 574 F.2d 157, 160 (3d Cir.1978), we ought not to be “disposed to overturn a sound decision if the agency’s path, although not ideally clear, may reasonably be discerned.” Benmar Transport & Leasing Corp. v. ICC, 623 F.2d 740 , 746 (2d Cir.1980). Here, one can readily see that AU Egan was persuaded by Mrs. Congleton’s evidence, the thrust of which showed that her late husband had spent most of his working life in Kentucky coal mines operating a cutting machine that churned up great amounts of coal and rock dust. It is likewise apparent that the AU did not find the Social Security records dispositive of the issue. We should agree with both of these findings.
*434 Given the inherent difficulties of proving an exact period of employment in an intermittent industry like coal mining (where layoffs are often brief but recurring), and the fact that much of the evidence of Thomas Congleton’s mining career — which began over 60 years ago — must come from the memories of simple, ordinary (and frequently elderly) people who were not likely to keep extensive records, it was not unreasonable for the AU to have accepted the statements of Mr. Congleton’s widow and former co-workers who remember, albeit imprecisely, that he had been a miner for at least 25 years of his life. In the absence of mine company records (which were apparently unavailable after all this time), such evidence is the only means of showing the decedent’s entire period of coal mine work. The earnings records provided by the Social Security Administration do not effectively detract from this evidence, in light of the fact that such records have only been kept since 1937, appear to be incomplete (no earnings — not even self-employment — are shown for the nearly five-year period between July 1945 and April 1950), and are consistent with the testimony of Mrs. Con-gleton and her daughter with respect to the decedent’s employment by Ford Motor Co. at times during the 1930’s and his work at a Maryland shipyard in 1942-43. The majority erroneously characterizes Congle-ton’s employment by International Harvester in 1940-41 as non-coal mine related, whereas his widow testified that he worked as a coal miner for that company in Ben-ham, Kentucky. (App. at 68).
However, regardless of whether or not the AU adequately explained the reasons for his finding that Thomas Congleton had worked in the mines over 25 years, the majority errs in holding that the Director has rebutted, as a matter of law, any presumption that Mr. Congleton was partially or totally disabled by pneumoconiosis at the time of his death in 1969. Such a holding, on the record of this case, effectively shifts back to the claimant the burden of proving that the miner in question suffered from black lung disease, and vitiates the entire purpose behind establishing a presumption of eligibility for benefits based solely on length of service in the mines.
In support of their finding that the medical evidence of record “unequivocally established” that Thomas Congleton did not suffer from pneumoconiosis at the time of his death, the majority points only to his death certificate (stating myocardial infarction as the cause of death) and the so-called “extensive medical records” covering the last five years of his life, neither of which make any reference to black lung or other respiratory impairment. The majority also mentions that Dr. F.W. Hare, Congleton’s treating physician during his hospitalization following a 1964 heart attack, found his patient’s lungs to be “clear as to auscultation and percussion.”
The significance of Dr. Hare’s findings is greatly overstated by the majority. As recently noted by Judge Martin of this Court:
[Pjneumoconiosis is a slow, progressive disease. Its characteristics and symptoms often do not manifest themselves in a way that promote immediate detection. In some cases the disease may take years before it is readily detectable.
Collins v. Secretary of Health and Human Services, 734 F.2d 1177, 1179-80 (6th Cir.1984). Here, one can hardly say that the results of a medical examination taken nearly five years before the patient’s death will be strongly probative of his condition immediately prior to his demise. Moreover, the fact that Congleton was being treated by Dr. Hare for a more immediate threat to his life (i.e., the heart condition) would logically explain the failure to explore or treat another, less critical malady, namely, pneumoconiosis, which the decedent unquestionably had. This is borne out by Dr. Carl Cooper, Congleton’s treating physician from 1964 until his death, who stated in 1980:
In reviewing the medical records of Mr. Thomas Congleton, I find that the primary treatment rendered in this office was for coronary artery disease and spe- *435 eifically angina pectoris and myocardial infarction. No specific mention was made of chronic lung disease.
In view of the seriousness of his coronary artery disease which he was being treated for at the time, it certainly would not preclude his having had trouble with chronic lung disease which certainly would have been secondary at that time.
(App. at 56).
In sum, there is no substantial evidence to support a finding that the presumption of entitlement to black lung benefits was rebutted, much less to require such a finding as a matter of law as the Court holds today. Even assuming the AU could have found sufficient rebuttal evidence in this record, a contrary conclusion was certainly not precluded. “The reviewing court may not set aside an inference because it finds the opposite one more reasonable, or because it questions its factual basis.” Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 802 (7th Cir.1977) (citing Car-dillo v. Liberty Mutual Insurance Co., 330 U.S. 469 , 67 S.Ct. 801 , 91 L.Ed. 1028 (1947)). This Court should not impose its own view of the evidence rather than follow the factual findings of an AU which are supported by substantial evidence. Moore v. Califano, 633 F.2d 727, 729 (6th Cir.1980). The only question in this case was whether there is such evidence in the record as a reasonable mind might accept as adequate to support the conclusion that the 25-year presumption was not rebutted. See Prater v. Harris, 620 F.2d 1074, 1084 (4th Cir.1980).
Congress, in amending the original Federal Coal Mine Health and Safety Act in 1972, intended the Act “to be liberally construed in favor of the miners to insure compensation in worthy cases despite the extreme difficulty of proving the existence of pneumoconiosis by clinically certain medical evidence.” Bozwich v. Mathews, 558 F.2d 475, 479 (8th Cir.1977). Five years later, the Act was again amended to further expand the means by which entitlement to benefits could be established, including a rebuttable presumption that a person who had worked as a coal miner for 25 or more years was partially or totally disabled due to black lung disease at the time of his death. Black Lung Benefits Reform Act of 1977, Pub.L. 95-239, § 3 (a)(3), 92 Stat. 96 (1978) (codified at 30 U.S.C. § 921 (c)(5) (1982)).
The legislative history of the 1977 Act explains the Congressional rationale behind such a broad presumption:
In recognition of the historically demonstrated and exceedingly high probability of total disability (80.89 percent), and out of concern for an equally probable risk of error in the remaining cases, an objective test was established to simply provide part B benefits payments to all claimants whose claims had been denied and who could demonstrate 30 or more years of underground coal mining experience [reduced to 25 or more years of employment before June 30, 1971, and restricted only to the eligible survivors of miners with such experience who died on or before March 1, 1978, in the final draft of the Act]. This assertedly rational and reasonable approach was elected over discretely restructuring the eligibility determination process in order to reach such legitimate and compelling cases; a restructuring, incidentally, which would have produced a complex, unmanageable, and enormously costly approach to ascertaining benefits entitlements.
H.R.Rep. No. 95-151, 95th Cong., 1st Sess. 5, reprinted in 1978 U.S.Code Cong. & Ad.News 237, 241. The majority, in concluding that the absence of sufficient medical evidence of pneumoconiosis in the record served to rebut Mrs. Congleton’s presumed entitlement to benefits, has transposed the evidentiary burdens intended by Congress, and negated the whole point of section 921(c)(5) — to relieve the survivors of coal miners who labored for 25 years or more of the difficult burden of proving partial or total disability due to black lung disease at the time of death, and to permit denial of benefits only if the *436 Government proves such disability did not exist.
The effect of the Court’s holding in this case, where the record is devoid of evidence which directly and persuasively shows that Thomas Congleton did not suffer from lung disease prior to his demise, is to require his widow to come forward with additional medical evidence to support her testimony, and that of his daughter and associates, which uniformly described how Mr. Congle-ton suffered greatly from respiratory difficulties in his final years. Manifestly, Congress did not intend to place such a burden in these cases where the mere fact of highly prolonged exposure to coal and rock dust almost certainly led to some form of pneu-moconiosis. Whatever disagreement the majority may have with respect to the wisdom of this policy should have been addressed to the legislators who enacted it, not inflicted on Mrs. Congleton who merely relied on it.
Over 13 years have elapsed since Mrs. Congleton filed her claim on October 15, 1971, and it has not yet been conclusively determined. Petitioner ought not to be proud of this record. I would affirm the decision of the AU, affirmed by the Benefits Review Board, awarding black lung survivor’s benefits to this claimant, and deny the petition for review filed by the petitioner who should have supported the decision. The petitioner should be bound by the decision of the AU affirmed by the three member Benefits Review Board, which allowed benefits to Mrs. Congleton. The Act grants no power to petitioner either to award or deny benefits, nor does the Act require petitioner either to approve or disapprove such benefits. There is a serious question whether petitioner even has standing to petition this Court for review of the decisions of the Benefits Review Board. It is most unusual and unprecedented for the director of an agency to petition for review of his own agency’s decisions. See I.T.O. Corp. of Baltimore v. Benefits Review Board, 542 F.2d 903 , 908 n. 5 (4th Cir.1976). This is a very important case, and respondent Georgia Congleton should petition this Court for rehearing in banc, or a judge of this Court should so move.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472595. Public record. Not legal advice.