SSR 73-37: Rescinded 1979

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.