SSR 73-38: Rescinded 1979

20 CFR, Part 410. §410.400 ff.

SSR 73-38

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 Social Security Administration Regulations No. 10,

sections 410.490 ff., there is an inference that the claimant is not

totally disabled. Held , where, however, other relevant evidence is

submitted and includes clinical findings (or medical findings such as

those produced by an exercise pulmonary function test) which establish the

presence of a functional impairment of a level of severity contemplated in

section 410.426 of the Regulations, a finding of total disability would be

warranted unless otherwise rebutted by claimant's actual work in a coal

mine or other comparable and gainful work.

W, 62 years old, completed the 10th grade and was employed for 32 years in

the coal mines as a handloader, timberman and motorman. During the last 4

years of his work, he missed a considerable amount of time from his job

because of his condition. However, his coal mine employment continued

until he was forced to stop work 3 months prior to his filing for black

lung benefits. X-ray findings were negative for pneumoconiosis and

ventilatory function tests showed an FEV 1 , of 2.7 L. and an MVV

of 108 L/Min. Since W is 5' 11", the table in section 410.490(b) (ii) of

the black lung regulations is not met (the table specifies an

FEV 1 , of 2.6 and an MVV of 104 L/Min. for a man of this

height).

d to stop work 3 months prior to his filing for black

lung benefits. X-ray findings were negative for pneumoconiosis and

ventilatory function tests showed an FEV 1 , of 2.7 L. and an MVV

of 108 L/Min. Since W is 5' 11", the table in section 410.490(b) (ii) of

the black lung regulations is not met (the table specifies an

FEV 1 , of 2.6 and an MVV of 104 L/Min. for a man of this

height).

W submitted a report from his family physician which states that he has

been treating the claimant for emphysema for the last 11 years. Visits for

this condition have increased in frequency in the last 4 years as has the

severity of W's symptoms. The physician recently advised the claimant to

terminate his coal mine employment because of a worsening of his condition

and W followed this advice. A recent clinical examination included

complaints of severe episodes of coughing productive of phlegm, dyspnea on

slight exertion and onset of marked fatigue with mild activity. Clinical

observation found the claimant to be bothered by a persistent cough and

evidencing some shortness of breath after undressing for the examination

and getting onto the examining table. Auscultation and percussion of the

chest revealed moist rales throughout the chest and breath sounds to be

distant. A slight cyanotic appearance was, additionally noted. In

concluding his report, the physician diagnosed the claimant's impairment

as chronic pulmonary emphysema "long-standing in duration and totally

disabling in severity." W's wife said he had "a real bad cough for

years."

The issue to be resolved is whether the evidence submitted in connection

with W's black lung claim establishes that, due to a chronic respiratory

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.

ion and totally

disabling in severity." W's wife said he had "a real bad cough for

years."

The issue to be resolved is whether the evidence submitted in connection

with W's black lung claim establishes that, due to a chronic respiratory

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 Act 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 the 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. 92-713. 92d 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 Social Security Administration

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

in section 410.490 of Social Security Administration

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 tests) 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 section 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

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 to 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 paragraph (b) and (c), must be proven by the "other

relevant evidence." Just as the finding of total disability under

paragraphs (b) and (c) must be based on medical evidence that demonstrates

that the requisite level of severity is met, so too must 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.

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.

Although the results of W's objective medical tests (X-ray and ventilatory

function studies) were insufficient to establish total disability under

the interim regulatory criteria and thus gave rise to an inference that he

was not so disabled, the clinical and other relevant evidence submitted in

connection with his claim reveal a history of extensive treatment for a

severe chronic respiratory condition. W's ventilatory values, while not

meeting the values specified in the interim table for a man of his height,

were only slightly above the interim table values. The evidence also

reveals that as a result of a worsening of his condition, W missed

considerable amounts of time from his job and finally was forced to stop

work and restrict his daily activities. The evidence further shows that

upon physical examination, he exhibited physical signs such as cyanosis,

persistent cough, moist rales, distant breath sounds and shortness of

breath on light exertion all of which in combination are indicative of a

respiratory impairment of a level of severity contemplated in Regulations

No. 10, section 410.426.

Accordingly, where all the evidence proffered by the claimant is evaluated

in light of the above-cited regulations, the inference, based on the

medical test results, that he was not totally disabled is overcome, and

clinical findings, consistent with the non-medical evidence, establish the

presence of a functional impairment of a level of severity contemplated in

section 410.426. The miner is, therefore, determined to be totally

disabled.