SSR 73-37: Rescinded 1979
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Social Security Rulings › DI › Black Lung Benefits › SSR 73-37
Text
20 CFR, Part 410,§ 410.400 ff.
SSR 73-37
Where X-ray or ventilatory function test results submitted by a claimant
for black lung benefits fail to establish total disability under interim
regulatory criteria in Regulations No. 10, sections 410.490 ff., held , there is an inference that the miner is not totally disabled. Further held , where other relevant evidence is submitted, total
disability may be determined to exist only when the evidence in file
establishes the level of severity contemplated in §410.426.
J, 59 years old, and a high school graduate, was employed for 18 years in
the mines as a loader, cutter machine operator and foreman. More recently,
he was an asphalt paving machine operator, but was laid off in December, a
month before he applied for black lung benefits. The X-ray findings were
negative for pneumoconiosis and the ventilatory tests disclose that J is
5'9" and his FEV 1 was 3.1 L. and MVV was 124 L/Min.-above an
FEV 1 of 2.4 L. and an MVV of 96 L/Min., the values specified
for a man of the miner's height in the interim table listed in section
410.490 of the Social Security Administration Regulations No. 10, the
"black lung" regulations (20 CFR 410.490).
J submitted a report of a recent clinical examination from his family
physician which states that he had been treated periodically for asthma.
The report shows that the claimant's asthmatic episodes have been frequent
although not severe and that medication had been prescribed. The report
further states that the claimant complains of shortness of breath and has
a rasping cough. The physical examination showed no other significant
physical findings.
amily
physician which states that he had been treated periodically for asthma.
The report shows that the claimant's asthmatic episodes have been frequent
although not severe and that medication had been prescribed. The report
further states that the claimant complains of shortness of breath and has
a rasping cough. The physical examination showed no other significant
physical findings.
The report concludes that based on the claimant's symptoms, his age and
the results of his most recent examination, the physician would consider J
to be totally disabled for work as a coal miner. J also submitted
statements from his wife and several neighbors who had known him for a
long time that he has a "lot of trouble breathing and he coughs a good
deal."
The issue to be resolved in this case is whether the evidence submitted in
connection with J's black lung claim establishes that, due to a chronic
respiratory or pulmonary impairment which, under the law, may be presumed
to be due to pneumoconiosis, he is totally disabled, within the context of
the black lung regulations.
In enacting the Black Lung Benefits of 1972, the Congress noted that
adjudication of the large backlog of claims generated by the earlier law
could not await the establishment of facilities and development of medical
tests not presently available to evaluate disability due to
pneumoconiosis, and that such claims must be handled under present
circumstances in light of limited medical resources and techniques.
Accordingly, the Congress stated its expectancy that the Secretary would
adopt such interim evidentiary rules and disability evaluation criteria as
would permit prompt and vigorous processing of the large backlog of
claims; and that such rules and criteria would provide for full
consideration of the combined employment handicap of disease and age, and
medical evidence other than physical performance tests, when it is not
feasible to provide such tests. Sen. Rep. No
such interim evidentiary rules and disability evaluation criteria as
would permit prompt and vigorous processing of the large backlog of
claims; and that such rules and criteria would provide for full
consideration of the combined employment handicap of disease and age, and
medical evidence other than physical performance tests, when it is not
feasible to provide such tests. Sen. Rep. No. 92-743, 92nd Cong., 2d
Sess., pages 18 and 19.
In response to the stated expectancy of the Congress, such interim rules
are provided in section 410.490 of Regulations No. 10. There is a
rebuttable presumption of total disability where the existence of
pneumoconiosis is established by X-ray, biopsy or autopsy findings or,
under certain conditions, where ventilatory tests show a level of lung
function equivalent to or less than the applicable values specified in the
table in this section. These criteria were designed to be more liberal
than the permanent criteria to take into account claimants who might have
impaired ability of their lungs to transfer oxygen to the bloodstream for
the reason that objective testing (i.e., exercise pulmonary function test)
to determine this may be either generally unavailable or medically
contraindicated and the large backlog of such claims disallowed under the
more rigorous criteria of the predecessor "black lung" law could not await
the development and availability of more sophisticated testing.
The regulations (section 410.490(e) ) further provide that where a miner
does not establish total disability under the interim guides, he may
establish total disability under the rules set out in sections 410.412 to
410.462.
aims disallowed under the
more rigorous criteria of the predecessor "black lung" law could not await
the development and availability of more sophisticated testing.
The regulations (section 410.490(e) ) further provide that where a miner
does not establish total disability under the interim guides, he may
establish total disability under the rules set out in sections 410.412 to
410.462.
Section 410.412 of Regulations No. 10 defines "total disability." It
states that a miner shall be considered totally disabled if his
pneumoconiosis prevents him from engaging in gainful work in the immediate
area of his residence requiring the skills and abilities comparable to
those of any work in a coal mine or mines in which he previously engaged
with regularity and over a substantial period of time, provided his
impairment can be expected to result in death, or has lasted or can be
expected to last for a continuous period of not less than 12 months.
Section 410.418 provides for an irrebuttable presumption of total
disability due to pneumoconiosis where so-called "complicated
pneumoconiosis" is diagnosed by chest roentgenogram (X-ray), biopsy or
autopsy. In section 410.424, provision is made for finding total
disability on the basis of medical criteria alone when the miner's
impairment is listed in the Appendix of Subpart D of Regulations No. 10 or
is the medical equivalent of such a listed impairment.
bility due to pneumoconiosis where so-called "complicated
pneumoconiosis" is diagnosed by chest roentgenogram (X-ray), biopsy or
autopsy. In section 410.424, provision is made for finding total
disability on the basis of medical criteria alone when the miner's
impairment is listed in the Appendix of Subpart D of Regulations No. 10 or
is the medical equivalent of such a listed impairment.
Section 410.426(a) of Regulations No. 10 provides that even though total
disability is not established under section 410.424 (or 410.418),
pneumoconiosis may be found to be totally disabling if because of the
severity of such impairment the miner is not only unable to do his
previous coal mine work, but also cannot, considering his age, education
and work experience, engage in any other kind of comparable and gainful
work available to him in the immediate area of his residence. Thus, the
initial question to be resolved is whether pneumoconiosis has produced
functional limitations which render the applicant unable to meet the
physical demands of his previous coal mine work. If this requirement is
met, consideration is then given to age, education and work experience in
determining whether the applicant is able to engage in any other kind of
comparable and gainful work. Paragraphs (b), (c) and (d) of section
410.426 describe alternative evidentiary bases for establishing the
requisite level of impairment severity.
ical demands of his previous coal mine work. If this requirement is
met, consideration is then given to age, education and work experience in
determining whether the applicant is able to engage in any other kind of
comparable and gainful work. Paragraphs (b), (c) and (d) of section
410.426 describe alternative evidentiary bases for establishing the
requisite level of impairment severity.
Paragraph (b) provides that subject to the limitations of paragraph (a),
pneumoconiosis shall be found disabling if a ventilatory study shows a
breathing impairment of the level of severity specified in the table
provided therein. This table reflects a level of breathing impairment
which would normally prevent an individual of the specified height from
performing coal mine work on a regular basis. An individual whose
breathing capacity is greater than that specified in the table would,
normally, in the absence of any other functional limitation, have the
capacity to perform coal mine work.
If the values set out in the table in paragraph (b) are not met, paragraph
(c) provides that pneumoconiosis may nevertheless be found disabling if a
physical performance test establishes an impairment which is medically the
equivalent of the values specified in the table in paragraph (b), i.e.,
establishes that the applicant would normally not be expected to be able
to perform coal mine work.
Paragraph (d) of section 410.426 provides an additional alternative basis
for establishing total disability on the basis of other relevant evidence.
Other relevant evidence is defined in section 410.414(c) as follows:
equivalent of the values specified in the table in paragraph (b), i.e.,
establishes that the applicant would normally not be expected to be able
to perform coal mine work.
Paragraph (d) of section 410.426 provides an additional alternative basis
for establishing total disability on the basis of other relevant evidence.
Other relevant evidence is defined in section 410.414(c) as follows:
. . . As used in this paragraph, the term "other relevant evidence"
includes medical tests such as blood gas studies, electrocardiogram,
pulmonary function studies or physical performance tests, and any medical
history, evidence submitted by the miner's physician, his spouse's
affidavits, and in the case of a deceased miner, other appropriate
affidavits of persons with knowledge of the individual's physical
condition, and other supportive materials.
Paragraph (d) must be interpreted in the context of the full section,
including paragraph (a). Thus, while all relevant evidence must be
considered in every claim, a finding of total disability requires that
such evidence convincingly establish that the applicant has pneumoconiosis
of such severity that he is unable to meet the physical demands of coal
mine work or, considering his age, education and work experience, of any
other comparable and gainful work. This requirement may be met by evidence
which shows that the applicant is unable, because of the severity of his
impairment, to perform coal mine work.
nvincingly establish that the applicant has pneumoconiosis
of such severity that he is unable to meet the physical demands of coal
mine work or, considering his age, education and work experience, of any
other comparable and gainful work. This requirement may be met by evidence
which shows that the applicant is unable, because of the severity of his
impairment, to perform coal mine work.
The level of severity of impairment necessary for a finding of total
disability, if such disability is not established in accordance with the
requirements of paragraphs (b) and (c), must be proven by the "other
relevant evidence." Just as the finding of total disability under
paragraph (b) and (c) must be based on medical evidence that demonstrates
that the requisite level of severity is met, so too most such a finding
under paragraph (d) be based, where the evidence is conflicting, on
evaluation of all the available relevant evidence and the preponderance of
all such evidence must prove total disability. While the opinion of a
physician that a person is totally disabled is "relevant evidence" and
must be considered, such opinion, in itself, without the support of
clinical findings, will not be controlling. This is clearly pointed out in
section 410.471 which states:
. . . the function of deciding whether or not an individual is totally
disabled . . . is the responsibility of the Administration. A statement by
a physician that an individual is . . . totally and permanently disabled .
. . shall not be determinative of the question of whether or not an
individual is under a disability . . . .
his is clearly pointed out in
section 410.471 which states:
. . . the function of deciding whether or not an individual is totally
disabled . . . is the responsibility of the Administration. A statement by
a physician that an individual is . . . totally and permanently disabled .
. . shall not be determinative of the question of whether or not an
individual is under a disability . . . .
Where X-ray and ventilatory test findings do not demonstrate the presence
of pneumoconiosis or a chronic respiratory or pulmonary impairment,
respectively, in accordance with the interim criteria, there is an
inference that the claimant is not totally disabled due to such cause.
While ventilatory studies demonstrate the ability of the claimant to move
air in and out of his lungs, such studies do not necessarily describe the
ability of the claimant's lungs to transfer oxygen to his bloodstream.
Nevertheless, where the values in the interim table in section 410.490(b)
(ii) are exceeded, only in an unusual case will such an individual be
totally disabled due to a lung impairment. A finding of disability becomes
less likely as the ventilatory study values increase further above this
table.
Generally, symptoms of impaired lung function may include difficult
breathing or shortness of breath, fatigue, a chronic cough or chest
pains.
Physical signs such as rales, distant breath sounds, a barrel chest,
increased AP diameter of the chest, cyanosis and clubbing may also be
found. Limited chest expansion also occurs, but would be inconsistent with
ventilatory study values exceeding those in section 410.490(b) (ii).
Also relevant may be such factors as a long-standing history of a
significant chronic pulmonary or respiratory disease and treatment for
such disease; a history of adverse effect on continuous employment and
imposition of marked restrictions on the activities of daily living.
n also occurs, but would be inconsistent with
ventilatory study values exceeding those in section 410.490(b) (ii).
Also relevant may be such factors as a long-standing history of a
significant chronic pulmonary or respiratory disease and treatment for
such disease; a history of adverse effect on continuous employment and
imposition of marked restrictions on the activities of daily living.
On the basis of an evaluation of the medical evidence in J's claim,
considered in light of the above-cited black lung regulations, it would be
reasonable to find that he is totally disable due to pneumoconiosis.
Careful consideration must be, and was, given to the statements of his
wife and neighbors that he had trouble breathing and coughed a good deal.
However, while all relevant evidence must be considered in evaluating
total disability due to lung impairment, objective medical evidence
generally must be given greater weight than the subjective (including
opinion) evidence. In this case the medical evidence, including the
negative X-ray, the results of ventilatory tests which show the claimant
does not meet the interim criteria for total disability and the clinical
examination which showed no physical signs indicative of significant
impairment of lung function, outweigh the subjective evidence, including
that of observations and opinions. (In fact, J's ventilatory values exceed
the values specified in the interim table for a man of his height by a
substantial margin.) It must be concluded that the evidence does not
establish that has pneumoconiosis of a degree of severity which would
prevent him from doing his usual coal mine work.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.