Peabody Coal Company and Old Republic Companies v. Director, Office of Workers' Compensation Programs, United States Department of Labor , 581 F.2d 121 ( 1978 )

PER CURIAM.

This is a petition to review an order of the Benefits Review Board directing petitioner Peabody Coal to pay black lung benefits to the claimant, Edward Lesicko, pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 901, et seq. Our jurisdiction is founded upon section 21(c) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 921(c).

Petitioner claims that no substantial evidence supports the decision of the Benefits Review Board, and that the Board violated its own regulations in erroneously approving an award of benefits. As we agree that there is no substantial evidence supporting the Board’s decision, we set aside the Board’s order and remand the case to the Board for denial of Lesicko’s claim.

I.

The facts adduced at the hearing held on Lesicko’s claim establish that he worked as an electrician in various coal mines for over 40 years. When Peabody’s mine at Free-burg, Illinois was closed down in December 1972, Lesicko was offered a transfer to another Peabody mine but elected to retire on a pension because “it was getting too hard for me to carry on the work.” He testified that his post-employment physical activities were limited because he became easily fatigued and short of breath upon exertion. He also said that he was subject to fits of coughing and spitting up phlegm upon awakening in the morning. The claimant’s own testimony was the only evidence offered by him or the Director in support of his claim at the hearing.

On cross-examination, Peabody established that Lesicko smoked a pack of cigarettes a day and had never been treated for any chest or lung condition prior to filing his claim. Peabody also offered medical evidence indicating an absence of pneumo-coniosis or any disabling pulmonary impairment. The medical evidence consisted of the reports of Dr. Martin Davis, a physician qualified in internal medicine and pulmonary diseases, who had twice examined Les-icko at the request of the Director of the Office of Workers’ Compensation. Dr. Davis’s reports showed that Lesicko’s pulmonary functions were within normal limits established by the Secretary’s regulations, and that x-rays of his chest were negative. His lung fields were “quite radiolucent” and “essentially clear” except a “moderate” ease of pulmonary emphysema. Dr. Davis concluded:

“Mr. Edward Lesicko shows evidence of moderate pulmonary emphysema. This condition is moderate in degree and, in my opinion, is not disabling. His pulmonary function studies are generally within the range of normal. He is able to do the activities of ordinary daily life without difficulty. He retired in January 1973. There is no evidence that he had to retire because of physical disability . There is no evidence of pneumoconiosis. There is no evidence of cancer. In my opinion he is able to work at the present time. I don’t believe that he has any permanent disability related to his occupation.”

Notwithstanding this medical evidence and opinion, the hearing officer found that Lesicko was “totally disabled” within the meaning of C.F.R. § 410.412(a)(1) on the basis of the claimant’s own testimony, his demeanor and appearance, and the evidence of a “moderate” respiratory impairment contained in Dr. Davis’s report. Having found the claimant “totally disabled,” the hearing officer then invoked the statutory presumption that his disability was due to pneumoconiosis. 30 U.S.C. § 921(c)(4) (Supp. V, 1975). Over a strong dissent that the hearing officer had misapplied the Secretary’s regulations setting out the applicable medical criteria governing findings of total disability due to pneumoconiosis, and that Peabody’s evidence was, in any event, sufficient to rebut the statutory presumption of pneumoconiosis, the Benefits Review Board affirmed the hearing officer’s determination.

II.

In reviewing an award of benefits by the Board, we are, of course, bound to uphold the Board’s determination if it is “supported by substantial evidence in the record considered as a whole.” 33 U.S.C. § 921(b)(3). In applying the “substantial evidence” test, however, we are duty bound to consider the record as a whole and to take into account the evidence that “fairly detracts” from the Board’s findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Having done so, it is apparent to us that the Board’s award of benefits must be set aside largely for the reasons noted by Member Hartman in his dissent to the Board majority’s decision, which is attached as an appendix to our opinion.

As even the Board’s brief in this court concedes, as it must, the evidence supportive of Lesicko’s claim “is not strongly persuasive.” We would go much further and say that it is completely unconvincing.

It is true, of course, that the mere fact that Lesicko’s x-rays were negative and his pulmonary function studies normal does not in itself establish that he was not suffering from pneumoconiosis. Indeed, the purpose underlying the statutory presumption of pneumoconiosis embodied in 30 U.S.C. § 921(c)(4) was to compensate for the fact that it is not always possible to determine whether pneumoconiosis is the principal cause of a disabling pulmonary disease from x-ra¡ys and pulmonary function studies alone. However, in order to invoke the statutory presumption, it must be established from medical evidence, and not lay testimony alone, that the claimant is suffering from a totally disabling pulmonary disease, which then may be presumed to be pneumoconiosis. 20 C.F.R. § 410.424(a). Moreover, in determining whether a claimant is totally disabled by a respiratory disease, primary consideration must be given to the medical severity of the disease. 20 C.F.R. § 410.422(c).

In this case, the hearing officer paid lip service to these requirements, but his efforts to marshall “medical” evidence in support of his finding of a total pulmonary disability by picking and choosing bits and pieces from Dr. Davis’s report bordered on the ridiculous. There is no doubt in our mind that the hearing officer either simply misunderstood or deliberately misrepresented the medical evidence, which, when considered as a whole, clearly established (1) that the claimant was not suffering from a disabling pulmonary disease, and (2) that the claimant was not suffering from pneu-moconiosis.

We. recognize, of course, that hearing officers are not bound by a physician’s opinion regarding the degree of disability resulting from a pulmonary disease. They are, however, bound to take a qualified medical opinion into account and cannot, absent countervailing clinical evidence, simply disregard a qualified physician’s medical conclusion regarding the severity of a pulmonary disease from which the claimant suffers. We hold, for the reasons noted in Member Hartman’s dissent as supplemented herein, that there is no substantial evidence in the record considered as a whole supportive of the hearing officer’s finding that Lesicko was suffering from a totally disabling pulmonary disease. Accordingly, the hearing officer was not entitled to invoke the statutory presumption of 30 U.S.C. § 921(c)(4). Moreover, we believe that Peabody’s medical evidence was sufficient to rebut any presumption that Lesicko was suffering from pneumoconiosis rather than a nondisabling, “moderate” case of emphysema, as Dr. Davis determined.

Accordingly, we set aside the Board’s order and remand this case to the Board for purposes of denying Lesicko’s current claim, which we find without sufficient support in this record.

SET ASIDE AND REMANDED.

APPENDIX