# SSR 73-38: SSR 73-38: Rescinded 1979

> Federal · Rulings · Rescinded

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_73_38

## Section

- **Citation:** SSR 73-38
- **Heading:** SSR 73-38: Rescinded 1979
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** Rescinded
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / DI / Black Lung Benefits / SSR 73-38

## Text

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.

## Nearby sections

- [SSR 71-30 SSR 71-30: SECTIONS 413(a), 413(b), AND 422(d), FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969; SECTIONS 223(a), 223(b), and 224(a), SOCIAL SECURITY ACT -- DISABILITY INSURANCE BENEFITS -- BLACK LUNG BENEFITS -- MONTHLY PAYMENT PERIOD](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_71_30.md)
- [SSR 72-8 SSR 72-8: SECTIONS 413(a), 414(a) and (c). -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 -- CLAIM FOR BLACK LUNG BENEFITS -- FILING AS PREREQUISITE FOR ENTITLEMENT -- PROTECTIVE FILING DATE](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_72_8.md)
- [SSR 72-41 SSR 72-41: FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 -- SECTION 412(b), (30 U.S.C. 922(b)) -- DISABILITY BENEFITS PAID UNDER STATE WORKMEN'S COMPENSATION LAW AFTER MINER'S DEATH -- PENNSYLVANIA](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_72_41.md)
- [SSR 72-42 SSR 72-42: FEDERAL COAL MINE HEALTH AND SAFETY ACT -- SECTION 413(c) -- (30 U.S.C. 923(c)). -- FUTILITY OF FILING STATE WORKMEN'S COMPENSATION CLAIM WHERE BENEFITS ARE RECEIVED UNDER RAILROAD RETIREMENT ACT OR FEDERAL EMPLOYERS LIABILITY ACT](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_72_42.md)
- [SSR 72-65 SSR 72-65: FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- SECTION 412(b) (30 U.S.C. 922(b)). -- BLACK LUNG BENEFITS -- STATE WORKMEN'S COMPENSATION PAYMENT ON ACCOUNT OF MINER'S DEATH -- REDUCTION INAPPLICABLE](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_72_65.md)
- [SSR 72-66 SSR 72-66: FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- SECTION 412(b) (30 U.S.C. 922(b)) -- REDUCTIONS -- STATE WORKMEN'S COMPENSATION DEATH BENEFITS -- KENTUCKY](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_72_66.md)
- [SSR 73-24 SSR 73-24: FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- SECTIONS 402(d) AND 411(c) (30 U.S.C. 901) -- CLAIM FOR BLACK LUNG BENEFITS -- SERVICES AS "EMPLOYEE" A PREREQUISITE TO ELIGIBILITY FOR MINER'S BENEFITS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_73_24.md)
- [SSR 73-36 SSR 73-36: SECTION 402(f) (30 USC 901) -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 AS AMENDED -- MINER'S DEATH RESULTING FROM COAL MINE ACCIDENT WHILE REGULARLY AND GAINFULLY EMPLOYED -- ESTABLISHMENT OF WIDOW'S ENTITLEMENT TO BLACK LUNG BENEFITS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_73_36.md)
- [SSR 73-37 SSR 73-37: Rescinded 1979](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_73_37.md)
- [SSR 73-38 SSR 73-38: Rescinded 1979](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_73_38.md)
- [SSR 74-32 SSR 74-32: SECTIONS 414(a) and 415(a) (30 U.S.C. 924(a) and 925(a), et seq.) -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 AS AMENDED -- SOCIAL SECURITY ADMINISTRATION JURISDICTION FOR PAYMENT OF PART B MINERS' BLACK LUNG BENEFITS -- WHEN REQUIREMENTS FOR ENTITLEMENT MUST BE MET](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_74_32.md)
- [SSR 74-33 SSR 74-33: SECTION 412(a)(5) (30 U.S.C 901) -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- BLACK LUNG BENEFITS -- CONDITIONS FOR ENTITLEMENT FOR SIBLING](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_74_33.md)
- [SSR 75-5 SSR 75-5: SECTIONS 411(b) and 413(b) (30 U.S.C. 921(b) and 923(b)) -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- CLAIM FOR BLACK LUNG BENEFITS -- EVALUATION OF CHEST ROENTGENOGRAPHIC (X-RAY) EVIDENCE](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_75_5.md)
- [SSR 75-10 SSR 75-10: FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- SECTION 414(d) (30 U.S.C. 924(d)). -- EFFECT OF BLACK LUNG "MAINTENANCE OF EFFORT" PROVISION-REDUCTION OF STATE WORKMEN'S COMPENSATION BENEFITS DUE TO RECEIPT OF PERIODIC DISABILITY INSURANCE BENEFITS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_75_10.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_DI_SSR_73_38. Check the current official text before relying on it. Not legal advice.