# Arthur Wesley Cook v. Director, Office of Workers' Compensation Programs, United States Department of Labor > Court of Appeals for the Seventh Circuit · April 13, 1987 · 816 F.2d 1182 URL: https://www.frixlaw.com/law-library/cases/9476081 ## Case - **Full name:** Arthur Wesley COOK, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** April 13, 1987 - **Citations:** 816 F.2d 1182 - **Precedential status:** Published - **Opinion:** Concurrence by Eschbach - **Judges:** Wood, Posner, Eschbach - **Cited by:** 16 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/9476081 ## How later opinions describe it (automated extraction) - discussing differences between the compensation programs of Parts B and C ## Opinion text ESCHBACH, Senior Circuit Judge, concurring in the judgment. Although I agree with portions of the reasoning set forth in the majority opinion, *1188 I cannot join the opinion because it sweeps more broadly than is necessary to decide the case, pays insufficient heed to the past decisions of this court, and, ultimately, is unfaithful both to the regulatory language it purports to apply and the purposes of the legislative scheme as a whole. I. Initially, I must state those points on which the majority and I agree. The majority opinion states, rightly in my view, that “[ujnder the regulation it is not the reading, but the X-ray, that establishes the presumption. Ante at 1185. Furthermore, the majority is absolutely correct that “the administrative law judge is entitled to weigh negative with positive readings of the same x-ray” to determine whether that X-ray establishes pneumoconiosis. However, the majority fails to recognize that this is precisely such a case. Although none of the parties attaches any significance to it (indeed none of the parties even recognized the critical distinction between an X-ray and an interpretation of an X-ray — a distinction upon which this case turns), the record indicates that all of the X-ray films, including the August 1979 film, were read as negative by at least one interpreting physician. That X-ray was read not only by Dr. Green, but also by a Radiologist named Scott, who concluded that “the heart and lungs are normal.” Director’s Ex. 20. Thus, without relying on the other X-rays in any fashion, the AU was entitled to conclude that the August 1979 X-ray did not show pneumoconiosis. I do not understand why the majority goes further to decide — wrongly in my view — a case which is not presented, i.e. where one X-ray is read only as positive, and other X-rays are read in a conflicting fashion by the coal company’s and claimant’s experts. I disagree with the majority that the fact that the AU did not expressly rely on the negative reading of the August 1979 X-ray precludes us from considering it. It is true that we may not supply a different rationale for an administrative decision. See Memorial Hospital of Carbondale v. Heckler, 760 F.2d 771 (7th Cir.1985). However, our task in this case is to view the record to see whether substantial evidence supports the administrative conclusion. That conclusion was that Cook did not satisfy the requisites for the interim presumption because he did not show that an X-ray established pneumoconiosis. We cannot assume that the AU rejected evidence that supported that conclusion merely because he did not expressly detail it. The majority seeks to support the conclusion on the basis of the other X-rays — of course, the AU did not rely on the fact that the other X-rays did not show pneumoconiosis to “infer” that the August, 1979 X-ray must not have done so. It seems infinitely more preferable to me to rest the decision on the less radical ground that AU weighed conflicting interpretations of the same X-ray. On the other hand, if the AU did not conclude that the August 1979 X-ray failed to establish pneumoconiosis, then we must grant the petition, vacate the administrative decision, and remand. The AU did not expressly engage in either the evidentiary analysis suggested in the majority opinion or that which I suggest. Thus, if I accepted the wooden approach to the binding effect of the agency’s “rationale” that the majority seems to embrace, I would be forced to conclude that its result is unsupportable, and in fact is inconsistent with its stated desire to avoid supplying a different rationale. II. The parties and the court address the case solely in terms of whether Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir.1986) (en banc), cert. granted sub nom Mullins Coal Co. v. Director, — U.S. -, 107 S.Ct. 871 , 93 L.Ed.2d 826 (1987) should be followed by this court. I believe that the prior decisions of this court have adopted Stapleton. See, e.g., Amax Coal Co. v. Director, 801 F.2d 958, 962 (7th Cir.1986); Kuehner v. Ziegler Coal Co., 788 F.2d 439, 440 (7th Cir.1986). I realize that the language in those opinions is cast in the permissive; all the court needed to hold in those cases was that an AU “may” *1189 invoke the interim presumption with only a single qualifying X-ray, since in those cases the AU in fact had done so. Of course, the cases did not — as they could not — hold that the presumption must be invoked when the conditions in the regulation are met. Nonetheless, those decisions seem to me to have clearly indicated that the Stapleton approach represented the law of this circuit, and today’s opinion seems to be an unwarranted about face. Even more importantly though, it seems to me that Stapleton was correct in terms of both the regulatory language and the purposes of the Congressional scheme it is supposed to implement. Congress enacted the Black Lung Benefits Act in 1969 as a remedial statute, designed to compensate those who had sacrificed their health through years of service in the nation's coal mines. Thus it provided, under certain circumstances, that a miner afflicted with pneumoconiosis (commonly referred to as "black lung”) could recover benefits from the government, and later, from the “responsible operator” of the mine where he contracted the disease. Equally important, however, Congress recognized that black lung is a progressive disease that, all too often, eludes diagnosis. In particular, it recognized that “X-ray testing that fails to disclose pneumoconiosis cannot be depended upon as a trustworthy indicator of the absence of the disease,” but positive X-rays are not untrustworthy indicators of the presence of the disease. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 , 32 & n. 33, 96 S.Ct. 2882 , 2900 & n. 33, 49 L.Ed.2d 752 (1976). When Congress amended and broadened the act in 1977, it authorized the Secretary of Labor to promulgate regulations no more restrictive than had previously been applied by the Social Security Administration. 30 U.S.C. § 902 (f) (1982); see also Underhill v. Peabody Coal Co., 687 F.2d 217, 219-20 (7th Cir.1982). The result was 20 C.F.R. § 727.203 , which governs the instant case, and which provides, in pertinent part: (a) Establishing interim presumption. A miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis ... if one of the following medical requirements is met: (1) A chest roentgengram (X-ray), biopsy or autopsy establishes the existence of pneumoconiosis____ 20 C.F.R. § 727.203 (a)(1) (1982) (emphasis added). While the language in our previous eases involving the regulation was permissive (no more was necessary to the decisions), the regulation is cast in mandatory terms, and the use of the singular could not be plainer. The regulation defines the task for the AU in unambiguous terms. It does not refer to “the X-ray evidence as a whole” — the inquiry undertaken by the AU in this case — but rather to an X-ray. Thus, if the AU finds that an X-ray establishes the existence of the disease, the claimant “will be presumed to be totally disabled due to pneumoconiosis,” i.e., the AU must invoke the presumption. Conversely, if he finds that none of the X-rays submitted establishes the disease, he may not (at least under (a)(1)). The majority’s opinion rests on the somewhat tenuous conclusion that, because none of the other X-rays “established” pneumoconiosis, the August, 1979 X-ray must not have done so either. The Majority holds that “Since the disease is progressive, the fact that a later X-ray was negative suggests that if the August 1979 X-ray, like the other three X-rays in the record, had been reread, probably it too would have been found to be on balance negative rather than positive.” Ante at 1187. Such a conclusion can only be reached through sheer speculation — in which even the AU did not indulge. Furthermore, this rationale totally vitiates the regulatory language. If the AU is entitled to consider other X-rays in determining whether a particular X-ray establishes the disease, then a single positive X-ray, even if interpreted as positive by all who read it, would not necessarily trigger the presumption. As stated above, I believe that this is clearly contrary to the express wording of the regulation. While the majority is correct that the Secretary’s interpretation of *1190 his own regulations is entitled to some weight, it is not entitled to so much weight that he can, in effect, rewrite the regulation via an interpretation which conflicts with the express language of the rule. I also believe that allowing a positive X-ray to be defeated by negative readings of other X-rays is inconsistent with the Congressional intent underlying the statutory scheme. When Congress amended the Act in 1972, it added 30 U.S.C. § 923 (b), which, in addition to the “no re-readings” provision to which the majority adverts, provides, “no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram.” Despite the majority’s protestations, this provision is not limited by the language calling for “other evidence that the miner has a pulmonary or respiratory impairment.” The text of section 923(b) reads, in pertinent part: In carrying out the provisions of this part, the Secretary shall to the maximum extent feasible (and consistent with the provisions of this part) utilize the personnel and procedures he uses in determining entitlement to disability insurance benefits payments under section 223 of the Social Security Act, but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram____ In any case, other than that involving a claim filed on or after the effective date of the Black Lung Benefits Amendments of 1981, in which there is other evidence that a miner has a pulmonary or respiratory impairment, the Secretary shall accept a board certified or board eligible radiologist’s interpretation of a chest roentgenogram which is of a quality sufficient to demonstrate the presence of pneumoconiosis ____ (emphasis added). The structure of the section indicates that the prohibition on sole reliance upon negative X-ray evidence to deny a claim is not limited by the “other evidence” language. Nor is there any suggestion in Tumer-Elkhom Mining that such a limitation applies. 1 To the contrary, the Court states, in straightforward fashion, “The prohibition is only against sole reliance upon negative X-ray evidence in rejecting a claim.” 428 U.S. at 33 , 96 S.Ct. at 2900 . Nothing in the Court’s opinion suggests that this prohibition is inapplicable where the evidence supporting the claim is also X-ray evidence. Thus, under the provision, a chest X-ray can serve as the sole support for a claim for benefits, but cannot serve as the sole rebuttal. While at first blush this may seem somewhat unfair or irrational, it is neither, for it is perfectly consistent with the failings which Congress rightly perceived in X-ray evidence. The majority, by allowing the AU to refuse invocation on the ground that a majority of the X-ray readers did not find pneumoconiosis effectively circumvents the Congressional intent. My main concern with the majority’s approach is that, by allowing the AU to weigh all the X-ray evidence to decide whether to invoke the interim presumption in the first place, it deprives the presumption of its presumptive effect. 2 As I have already stated, I agree that the AU must *1191 make certain findings of fact before he invokes the presumption, including whether an X-ray establishes pneumoconiosis. However, I believe the majority’s opinion goes beyond this and requires the claimant to prove his case at the invocation stage. The majority seems to overlook that this case was decided at the invocation stage and characterizes the issue as whether the AU “must ignore negative X-rays.” Ante at 1185,1187. The simple answer is that he need not do so in finally deciding the case unless there is no other rebuttal evidence, a situation not present here. However, at the invocation stage, he must invoke the presumption if the conditions of the regulation (including a single positive X-ray) are met. . Indeed, the only "other evidence" even remotely referred to at the page of Tumer-Elkhom Mining the majority cites as support for this proposition is autopsy evidence, and that is referred to only by way of illustrating the unreliability of negative X-rays. The relevance of 20 C.F.R. § 727.204 , which sets forth a presumption (and places limits on permissible rebuttal) regarding miners who died on or before March 1, 1978, also cited by the majority as support, is not readily apparent. . The majority is properly cautious in eschewing any determination of the role of the presumption in this case (i.e. whether it shifts the burden of proof or merely production). While it is correct that a panel of this court has held that the presumption merely shifts the burden of production, Underhill v. Peabody Coal Co., 687 F.2d 217, 222 (7th Cir.1982), the authority of that case may be questionable in light of Amax Coal Co. v. Director, 772 F.2d 304, 305-06 (7th Cir.1985) which, while it interpreted a different presumption (that found in 30 U.S.C. § 921 (c)(5)), specifically relied on cases holding that the interim presumption in § 727.203 shifts the burden of proof, including Alabama By-Products v. Killingsworth, 733 F.2d 1511 , 1513—14 (11th Cir.1984). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476081. Public record. Not legal advice.