926 F.2d 1482

Juanita PATRICH, Widow of Andy Patrich, Deceased, Petitioner,
v.
OLD BEN COAL CO. and Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.
OLD BEN COAL COMPANY, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United
States Department of Labor and Esther Falletti,
(Widow of Joseph Falletti, Deceased), Respondents.

Nos. 88-3427, 89-1776.

United States Court of Appeals,
Seventh Circuit.

Submitted Aug. 2, 1990*.
Decided March 8, 1991.

Harold B. Culley, Jr., Raleigh, Ill.

Samuel L. Perkins, Lexington, Ky., Steven L. Crow, Cleveland, Ohio, for Old Ben Coal Co.

Michael J. Denney, Irene B. Wozny, Steven D. Breeskin, Nicholas J. Levintow, Dept. of Labor, Office of the Sol., Carla Chapman, Ann McLaughlin, Benefits Review Bd., Dept. of Labor, Jeffrey J. Bernstein, Sol. Gen., Office of the Sol., Washington, D.C., for Office of Workers' Compensation Programs.

Harold B. Culley, Jr., Raleigh, Ill., for Esther Falletti, (Widow of Joseph Falletti, Deceased).

Before BAUER, Chief Judge, CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

1

This appeal involves two claims for benefits under the Black Lung Benefits Reform Act. The cases have been consolidated for decision because they raise issues regarding the scope and viability of rebuttal under 20 C.F.R. Sec. 727.203(b) in light of 30 U.S.C. Sec. 902(f)(2).

I. FACTS

A. Facts in Patrich

2

Coal miner Andy E. Patrich filed a claim for black lung benefits on April 1, 1976. He had recently stopped work after twenty-five years of coal mine employment. Mr. Patrich died on November 10 of the same year and his widow pursued his claim for benefits. The immediate cause of his death was cancer of the colon. After a hearing on March 9, 1983, an administrative law judge (an ALJ) found that Patrich1 had successfully invoked the presumption of total disability due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a)(1) by an x-ray reading positive for black lung and by an autopsy showing mild pneumoconiosis. The ALJ found that the presumption was not rebutted. In so finding, the ALJ specifically discounted the report of Dr. Joseph J. Renn, III, who based his opinion on a review of Patrich's medical records. Dr. Renn's report stated, "He did have very minimal simple coal workers' pneumoconiosis but he did not suffer from same." The ALJ found that Dr. Renn could not possibly determine how much of Patrich's disability stemmed from pneumoconiosis and how much from the cancer. Because the presumption was not rebutted, the ALJ granted benefits.

3

The Benefits Review Board (the BRB) reversed. It held that the ALJ should have considered Dr. Renn's report. The BRB further held that Dr. Renn did have sufficient information to conclude that Patrich's disability was not caused by pneumoconiosis, and remanded to the ALJ for a redetermination whether the employer had successfully rebutted the presumption of total disability caused by coal mine employment. On remand, the ALJ relied on Dr. Renn's report to conclude that the presumption was rebutted under 20 C.F.R. Sec. 727.203(b)(3) (i.e., that the disability did not arise out of coal mine employment) because the miner's disability was not caused by pneumoconiosis. The ALJ went on to state that, even under the former regulations of 20 C.F.R. Sec. 410, the presumption had been rebutted. Benefits were therefore denied. The BRB affirmed the denial, noting that eligibility under 20 C.F.R. Sec. 718 had not been established either. The BRB then denied Patrich's motion for reconsideration and Patrich filed a timely petition for review in this Court. She argued that the ALJ's decision was not supported by substantial evidence.

B. Facts in Falletti

4

Esther Falletti is the widow of Joseph Falletti,2 who worked as an underground coal miner for Old Ben Coal for twenty-seven years. At the age of fifty, Joseph Falletti underwent two operations for his stomach ulcers and died from complications following the second surgery.

5

At the hearing, the ALJ heard testimony from Esther Falletti describing Joseph's deteriorating respiratory condition and his increased need to take unauthorized breaks at work. In addition, Joseph's treating physician, Dr. Barkdull, stated that he treated Joseph for ten years for pneumoconiosis, and that Joseph was totally disabled from pneumoconiosis for at least three months before his death. On the other hand, Dr. Thompson, who performed the autopsy, declared that Joseph had minimal pneumoconiosis which would not have been disabling. Moreover, Grogan, a mine superintendent, stated that Joseph never complained and that he noticed no decline in Joseph's work at the mine.

6

The ALJ found that the autopsy determination of pneumoconiosis established invocation under Sec. 727.203(a)(1), and that Dr. Barkdull's report was sufficient to invoke the presumption under Sec. 727.203(a)(4). Those provisions entitled claimant to a presumption that at the time of his death Joseph Falletti was totally disabled due to pneumoconiosis arising out of his coal mine employment. 20 C.F.R. Sec. 727.203(a). The propriety of invocation under Sec. 727.203(a)(1) is not challenged on appeal.3

7

The ALJ further found that the evidence was insufficient to establish rebuttal. Specifically, the ALJ credited Dr. Barkdull's opinion regarding disability over Dr. Thompson's opinion. The ALJ further held that Grogan's testimony was offset to some extent by Esther Falletti's statements, and that it was insufficient to rebut the presumption under Sec. 727.203(b)(1) and (b)(2). With respect to Sec. 727.203(b)(3) and (b)(4), the ALJ declared that nothing in the record challenged the existence of pneumoconiosis or attributed the disability to a cause other than coal mine employment. Old Ben Coal appealed to the BRB, challenging the finding of invocation and also contesting the ALJ's determination that rebuttal had not been met under Sec. 727.203(b)(1), (2) and (3). The BRB affirmed the ALJ's award of benefits, and Old Ben Coal appealed the decision to this court.

II. ANALYSIS

8

A miner must establish three elements to make out a successful claim for black lung benefits: (a) total disability, (b) that was caused at least in part by pneumoconiosis and (c) that arose out of coal mine employment. 30 U.S.C. Sec. 901(a); Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141, 108 S. Ct. 427, 431, 98 L. Ed. 2d 450 (1987). All three elements are presumed if the miner has ten years of qualifying coal mine experience and meets one of the criteria in 20 C.F.R. Sec. 727.203(a)(1)-(5). Under Sec. 727.203(a)(1), a claimant can invoke a presumption of entitlement to benefits through x-ray, autopsy or biopsy evidence establishing pneumoconiosis.4 In both Patrich and Falletti, invocation was established in that manner.

9

Rebuttal of that presumption can be accomplished under Sec. 727.203(b) if the evidence establishes that: (1) the miner is in fact doing his usual coal mine work or comparable work; (2) the miner is able to do such work; (3) the total disability or death did not arise in whole or in part from coal mine employment; or (4) the miner does not in fact have pneumoconiosis. 20 C.F.R. Sec. 727.203(b)(1)-(4). The central issue before the court in this consolidated case is the scope and applicability of those rebuttal provisions in light of 30 U.S.C. Sec. 902(f)(2).

10

Section 902(f)(2) provides that "[c]riteria applied by the Secretary of Labor [under Sec. 727.203] ... shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973 [under Sec. 410.490]."5 The Supreme Court in Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S. Ct. 414, 102 L. Ed. 2d 408 (1988), held that under Sec. 902(f)(2) the Labor rules for invoking the presumption may be no more restrictive (more adverse to miners) than the earlier HEW regulations (Sec. 410.490) with respect both to medical criteria and to other considerations. 488 U.S. at 116-17, 109 S.Ct. at 421-22. The Court refused, however, to decide whether Sec. 902(f)(2) extended that limitation to criteria on rebuttal or to criteria unrelated to the disability determination. 488 U.S. at 114, 119, 109 S. Ct. at 420, 422. In Taylor v. Peabody Coal, 892 F.2d 503 (7th Cir.1989), we held that Sec. 902(f)(2) did apply to criteria on rebuttal, and therefore that the rebuttal provisions in Sec. 727.203 could be no more restrictive (in this context, less adverse to employers) than the comparable provisions under Sec. 410.490. 892 F.2d at 506.

11

A. Effect of Sec. 902(f)(2) on Use of Medical Evidence to

12

Rebut Disability Under Sec. 727.203(b)(1) & (2)

13

The Taylor court concluded that the Labor rebuttal rule found in Sec. 727.203(b)(2) was more restrictive (less adverse to employers) than the HEW rebuttal rules in Sec. 410.490 because it allowed for the consideration of medical evidence. 892 F.2d at 506-07. Taylor did not address the availability of medical evidence to support rebuttal under Sec. 727.203(b)(3).6 On a petition for rehearing, however, we clarified the holding in Taylor. We stated that Labor regulations were only invalid to the extent that they allowed rebuttal when HEW rules would not. 892 F.2d at 508. Moreover, we emphasized that Taylor did not foreclose the possibility that medical evidence could be used in rebuttal under the HEW rules (Sec. 410.490), and therefore could be properly considered in rebuttal under the Labor rules (Sec. 727.203) as well. In other words, Taylor holds that the rebuttal rules under Sec. 727.203 may be no more adverse to the miner than the rebuttal rules under Sec. 410.490, and that an employer may use medical evidence on rebuttal under Sec. 727.203 only if that evidence would have been allowed on rebuttal under Sec. 410.490. We did not decide the circumstances under which medical evidence is permitted for rebuttal under Sec. 410.490.

14

In fact, medical evidence is regularly used by employers to rebut disability under Sec. 410.490(c)(2), a regulation which corresponds to the disability provision in Sec. 727.203(b)(2).7 The language of the regulation itself indicates that medical evidence may be introduced in rebuttal. Subsections 410.490(c)(1) and (c)(2) refer to Sec. 410.412(a)(1) with respect to appropriate rebuttal of disability; the latter provision in turn references Sec. 410.424 and Sec. 410.426. Those provisions state that factors relevant to the disability determination include medical evidence, age, education and work experience. Therefore, because an employer may properly introduce medical evidence on rebuttal of the disability determination under Sec. 410.490, the parallel prerogative under Sec. 727.203(b) does not violate Sec. 902(f)(2).8 In reviewing cases in which the employer attempts to rebut under Sec. 727.203(b)(1) or (2), we may properly consider both medical and non-medical evidence introduced under those rebuttal provisions provided that the evidence is relevant.

15

B. Effect of Sec. 902(f)(2) on Rebuttal of Causation (under

Sec. 727.203(b)(3))

16

Taylor did not discuss the other question left open by the Supreme Court in Pittston Coal, whether Sec. 902(f)(2) has any application to elements other than total disability (to which rebuttal provisions Sec. 727.203(b)(1) and (b)(2) relate). Thus, Pittston Coal does not resolve whether Sec. 902(f)(2) requires that rebuttal provisions relating to causation (Sec. 727.203(b)(3)) and the existence of pneumoconiosis (Sec. 727.203(b)(4)) be no more restrictive than the Sec. 410.490 regulations. Only the causation element of Sec. 727.203(b)(3) is at issue in this consolidated case. We need not determine the scope of Sec. 902(f)(2) here today because, under these facts, we believe that Sec. 727.203(b)(3) does not establish criteria more restrictive than the criteria of Sec. 410.490.

17

Section 410.490(b)(1) (the interim HEW invocation regulation) creates a presumption of total disability due to pneumoconiosis if (i) an X-ray, a biopsy or an autopsy shows pneumoconiosis, or (ii) a miner with 15 years experience meets certain specified criteria for ventilatory studies. Once that step is completed, the miner must show that the impairment arose out of coal mine employment (Sec. 410.490(b)(2)) except that, in the case of a miner with 10 years of coal mine experience who showed the existence of pneumoconiosis by means of ventilatory studies,9 it will be presumed without further proof that the impairment was totally disabling and arose out of coal mine employment (Sec. 410.490(b)(3)).

18

Once these criteria are met, the burden shifts to the employer to rebut. There are fewer methods of rebuttal under Sec. 410.490 than under Sec. 727.203(b), and this is the root of the problem. Under Sec. 410.490(c) read literally there are only two ways to undermine a miner's showing: (1) proof that the miner is in fact doing his coal mine work or similar gainful work, or (2) proof (by way of physical performance tests or other evidence) that the miner could do such work. The BRB has interpreted Sec. 410.490 in just such a manner. Britten v. Florence Mining Co., 13 Black L.Rep. 1-31 (1989).

19

In the present case, Patrich's eligibility for the Sec. 727.203(a) presumption was based on autopsy findings of pneumoconiosis. This is the equivalent of the first method of invocation under Sec. 410.490 (Sec. 410.490(b)(1)(i)). As a result, Patrich would not be eligible for the presumption accorded to miners with ten years' experience under Sec. 410.490(b)(3) even though he has had that much experience.10 Thus, Sec. 410.490(b)(2) would require Patrich to establish that the impairment was caused by coal mine employment under the rules set forth in Secs. 410.416 and 410.456 (the permanent HEW regulations applicable to living and deceased miners, respectively). Those sections allow a miner with ten years coal mine experience a presumption that his impairment arose from coal mine work in the absence of persuasive evidence to the contrary. In essence, the treatment of causation under Sec. 410.490 and Sec. 727.203 differs only in form, but not in substance.11 Accord Pittston Coal Group, 488 U.S. at 109, 109 S.Ct. at 417 (rebuttable presumption of causality under Secs. 410.416 and 410.456 for miners with 10 years of mining service); Taylor v. Clinchfield Coal Co., 895 F.2d 178, 183 (4th Cir.1990) (comparing Sec. 410.416 and Sec. 727.203(b)(3)). Under the former, the employer can prevent the presumption from arising by introducing persuasive evidence negating causation. On the other hand, under Sec. 727.203 the presumption first is invoked and then the employer has the opportunity to present persuasive evidence negating causation and thereby rebutting the presumption. In our opinion it is not more adverse to the miner to create a presumption of causation and thereafter allow the presumption to be rebutted with medical evidence (as in Sec. 727.203(b)(3)) than to create such a presumption only in the absence of evidence that would support rebuttal if rebuttal were contemplated (as in Secs. 410.416, 410.456).

20

Only fortuitously, however, do we avoid a decision about the more sweeping presumption granted by Sec. 410.490(b)(3) to long-term miners who establish their respiratory disorders by ventilatory tests. A miner who can show the presence of pneumoconiosis by a biopsy or X-ray could, in many cases, also meet the requirements imposed by the ventilatory tests. To allow an employer to present evidence challenging causation by coal mine employment if proof of impairment is made by one method but to disallow it if there is another method of proof borders on the irrational. In fact, at least one court has held that causation evidence may be admitted no matter which method of showing respiratory impairment under Sec. 410.490 is selected. Bethenergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295, 1302 (3d Cir.1989). And the Director of the Office of Workers' Compensation Programs has sided with the Third Circuit. See Director's Brief in No. 89-1776, Old Ben Coal Co. v. Falletti. The Director is the delegate of the Secretary of Labor, and the Department of Labor is the agency primarily responsible for administration of the Black Lung program. Accordingly, the Director's interpretation of the regulations is entitled to great deference from this Court. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984); this is in spite of the contrary interpretation reached by the BRB in Britten, supra, for we do not defer to the Benefits Review Board's legal interpretations. Zettler v. Director, OWCP, 886 F.2d 831, 834 (7th Cir.1989).

21

Therefore, we are inclined to view favorably the Director's reading of the Sec. 410.490 regulations. And we find his analysis persuasive. Both of the rebuttal provisions of Sec. 410.490(c) refer parenthetically to Sec. 410.412(a)(1). That section (a part of the earlier permanent HEW regulations) defines total disability and requires that a miner shall be considered totally disabled due to pneumoconiosis if he is prevented from engaging in gainful work by his pneumoconiosis. The inclusion of this standard in the Sec. 410.490 rebuttal provisions strongly supports the allowance of rebuttal by proof that the miner's disability is not caused by pneumoconiosis.

22

We agree with the Director and with the Third Circuit that rebuttal similar to that allowed by Sec. 727.203(b)(3) is permitted under Sec. 410.490. As we have noted, as long as all the evidence is weighed before benefits are granted, there is no meaningful difference between a procedure which creates a presumption and then allows evidence to rebut it and one which denies the presumption in the first place if the same evidence is offered. Therefore Sec. 727.203(b)(3) does not establish criteria more adverse to the miner than those under Sec. 410.490 even if the miner's pulmonary disorder is established by ventilatory studies.

23

In fact, even if we were to accept an interpretation of Sec. 410.490 making it less restrictive than Sec. 727.203(b)(3), we would not find Sec. 727.203(b)(3) to be invalid for that reason--for a reading of Sec. 410.490 which prohibited the consideration of evidence relevant to causation by coal mine employment would be inconsistent with the Black Lung Benefits Act and the amendments to it. Benefits are to be awarded under the Act only to those whose respiratory impairments arose from employment in the Nation's coal mines. 30 U.S.C. Sec. 901(a). The statute requires the regulatory definition of total disability to "provide that a miner shall be considered totally disabled when pneumoconiosis prevents him or her from engaging in gainful employment." 30 U.S.C. Sec. 902(f)(1)(A); Wetherill v. Director, OWCP, 812 F.2d 376, 380 (7th Cir.1987). Title 30, U.S.C. Sec. 923(b), requires that "in determining the validity of claims under this part, all relevant evidence shall be considered...." The statute calls for a presumption in the miner's favor, allowing a ten-year miner a presumption that the pneumoconiosis arose from coal mine employment, 30 U.S.C. Sec. 921(c)(1), but that presumption is specifically made rebuttable. Thus any regulatory scheme which disallows consideration of evidence relevant to one of the statutory elements of entitlement to benefits is inconsistent with Congress' command.12

24

Congress simply does not provide for the award of benefits when the total disability is demonstrably not caused by pneumoconiosis (and it did not so provide at the time Sec. 410.490 was promulgated); a regulatory structure that allowed benefits when disability is demonstrably not caused by pneumoconiosis but by some other disorder (in Patrich's case cancer) is not consistent with the Black Lung statute. We have elsewhere attempted to reconcile the remedial purposes of the Act with the requirement that causation be shown. Shelton v. Director, OWCP, 899 F.2d 690 (7th Cir.1990) (interpreting the permanent Labor regulations of Sec. 718). Even with the simple "contributing cause" standard, it is still absolutely necessary that pneumoconiosis contribute in some way to the miner's disability. Unless the claimant is required to prove causation or the employer is allowed to disprove it, the requirement is improperly written out of the statute.

25

Therefore, Sec. 902(f)(2) does not alter the availability or scope of rebuttal under Sec. 727.203(b)(1), (2) and (3). Under those provisions, relevant evidence--medical or non-medical--may be introduced to rebut the presumption. We turn now to an analysis of the particular facts of Patrich and Falletti.

C. Application to Patrich

26

Patrich invoked the rebuttable presumption of total disability due to pneumoconiosis under Sec. 727.203(a)(1) by establishing the existence of the disease through an X-ray and an autopsy. The ALJ found that the presumption was rebutted because the employer established that "the total disability or death of the miner did not arise in whole or in part out of coal mine employment." 20 C.F.R. Sec. 727.203(b)(3). We have held that if the employer can establish that pneumoconiosis was not a contributing cause of the disability, it has established that disability did not arise out of coal mine employment. Wetherill v. Director, OWCP, 812 F.2d 376, 380 (7th Cir.1987); Pancake v. Amax Coal Co., 858 F.2d 1250 (7th Cir.1988).

27

There was substantial medical evidence to support the ALJ's finding that Patrich's total disability was caused entirely by cancer, and not at all by pneumoconiosis. Dr. Renn's report admitted that Patrich "did have very minimal simple coal workers' pneumoconiosis" but went on to find that "he did not suffer from same." The ALJ read this statement in the context of the whole report to mean that Dr. Renn found that, although Patrich had coal dust in the lungs, that coal dust had no effect whatever on Patrich's health. Other medical reports said that Patrich "suffered from a Very Mild, Very Focal Degree of Pulmonary Anthracosilicosis of a degree just sufficient to warrant the diagnosis of Coal Worker's Pneumoconiosis," and that Patrich's pneumoconiosis was of "minimal degree." On the record as a whole, there was thus enough medical evidence for the ALJ to conclude that Patrich's pneumoconiosis did not contribute to his disability. 20 C.F.R. Sec. 727.203(b)(3).

28

The more recent Department of Labor permanent regulations contained in 20 C.F.R. Sec. 718 (promulgated in 1980) are incorporated by reference into Sec. 727.203. We must therefore consider Patrich's eligibility for benefits under those regulations in connection with our inquiry into the propriety of the ALJ's decision under the Sec. 727.203 regulations. The Benefits Review Board considered Patrich's possible entitlement under the Sec. 718 regulations even though the ALJ had made no reference to them. The Board wrote only that "on the facts of this case, the administrative law judge's finding that neither the miner's disability nor death was related to pneumoconiosis ... precludes entitlement under Part 718." If there is a prescribed sufficiency of medical evidence showing a severe case of pneumoconiosis, a coal miner with fifteen years or more of underground coal mine experience is irrebuttably presumed totally disabled by pneumoconiosis caused by coal mining. 20 C.F.R. Sec. 718.304. It is apparent that Patrich's pneumoconiosis was not so advanced that it would qualify for the irrebuttable presumption.

29

There is a rebuttable presumption in favor of a fifteen-year miner if there is medical evidence of less severe pneumoconiosis and there is evidence of a totally disabling respiratory or pulmonary impairment. This presumption "may be rebutted only by establishing that the miner does not or did not have pneumoconiosis, or that his or her respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine." 20 C.F.R. Sec. 718.305(a). We recently considered the contributing cause standard in connection with benefits under Sec. 718 in Shelton v. Director, OWCP, 899 F.2d 690 (7th Cir.1990), and we held that pneumoconiosis must be a necessary condition for a miner's total disability, even though it need not be a sufficient condition. This is, in effect, the same standard used in Wetherill for claims under Sec. 727. Because Patrich's claim could not meet the Sec. 727 standard, it also fails to meet the Sec. 718 standard.

D. Application to Falletti

30

Considering both the medical and non-medical evidence presented by Old Ben Coal to rebut under Sec. 727.203(b)(1) and (b)(3), we turn to a determination whether the ALJ's decision in Falletti was supported by substantial evidence. At the hearing, the ALJ heard testimony from Esther Falletti that for the last five years of Joseph's life, he experienced problems such as coughing, wheezing and shortness of breath. Esther Falletti further indicated that Joseph never smoked and that he had to take frequent unauthorized breaks at work to rest. The ALJ also reviewed letters from Dr. Barkdull, Joseph's treating physician, who stated that he treated Joseph for ten years for pneumoconiosis, pulmonary fibrosis and emphysema. Dr. Barkdull listed six factors which indicated that condition and declared that Joseph was totally disabled from pneumoconiosis and pulmonary fibrosis for at least three months prior to his death.13 In addition, the ALJ examined the report of an autopsy performed on Joseph by Dr. Thompson that revealed the presence of coal workers' pneumoconiosis. In response to Old Ben Coal's inquiry, Dr. Thompson submitted a letter in which he declared that the degree of coal workers' pneumoconiosis suffered by Joseph was not disabling. Finally, Grogan, a mine superintendent who worked with Joseph, testified that he never heard Joseph complain of shortness of breath and that he did not notice any decreased ability to work. He also stated, however, that he only observed Joseph for two or three hours in the ten hour workday, and that Joseph was very unlikely to complain about any illness. The ALJ found that the presumption was invoked under Sec. 727.203(a)(1) and (4), and rejected Old Ben Coal's attempt to rebut the presumption under Sec. 727.203(b).

1. Rebuttal under Sec. 727.203(b)(1)

31

The BRB held that Sec. 727.203(b)(1) was inapplicable because Joseph Falletti was not working at the time of his death. We decline to interpret Sec. 727.203(b)(1) so narrowly. Joseph Falletti was not working at the time of his death because he had left for his vacation and for scheduled surgery. He was expected to return to work following the surgery, and therefore the facts do not suggest any significant period of time away from his workplace. This determination does not mean that Sec. 727.203(b)(1) is automatically met. A miner is entitled to benefits even if he was employed at the time of his death if changed circumstances indicated that he was not able to do his usual work. See Farmer v. Rogers, 839 F.2d 269 (6th Cir.1988). Moreover, 20 C.F.R. Sec. 727.205(a) explicitly states that "[a] deceased miner's employment in a mine at the time of death shall not be used as conclusive evidence that the miner was not totally disabled." The necessary inquiry, then, is whether the additional evidence introduced by Old Ben Coal established that Joseph Falletti was in fact doing his usual coal mine work or comparable work.

32

Old Ben Coal relied on the statements by Dr. Barkdull that coal workers' pneumoconiosis would not have interfered with Joseph's normal activities, and Grogan's statement that there was no decline in Joseph's work at the mine. The ALJ, however, determined that those statements were in conflict with the testimony of Esther Falletti and the medical diagnosis of Dr. Barkdull. Although this is a close case, we find that the record supports the ALJ's determination that Sec. 727.203(b)(1) rebuttal was not met. The ALJ could properly credit the testimony of Esther Falletti over that of Grogan to the extent that there was a conflict. Moreover, Dr. Barkdull's opinion, as Joseph's treating physician, could properly be accorded more weight than a determination of disability based upon an autopsy. Therefore, because Old Ben Coal did not provide evidence sufficient to establish that Joseph was doing his usual coal mine work at the time of his death, rebuttal under Sec. 727.203(b)(1) was not met.

2. Rebuttal under Sec. 727.203(b)(3)

33

In addition to Sec. 727.203(b)(1), Old Ben Coal also attempted to rebut the presumption pursuant to Sec. 727.203(b)(3). Under that provision, rebuttal can be accomplished by showing that pneumoconiosis was not a contributing cause of the total disability. Wetherill v. Director, OWCP, 812 F.2d 376, 380 (7th Cir.1987). The evidence adduced at the hearing did not demonstrate that Joseph's total disability was caused entirely by an impairment other than pneumoconiosis. Dr. Thompson declared that the pneumoconiosis was not itself totally disabling, but he did not discuss the combined effect of pneumoconiosis and the other ailments. In fact, Old Ben Coal did not introduce any evidence that would wholly attribute Joseph's total disability to a cause other than pneumoconiosis. Because Old Ben Coal has failed to meet the standard set forth in Sec. 727.203(b)(3), the ALJ properly awarded benefits to Esther Falletti.

34

Accordingly, the decisions of the BRB in Patrich denying benefits and in Falletti granting benefits are

35

AFFIRMED.

*

After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). Several of the parties have filed such statements. Upon consideration of those statements, the briefs, and the record, the requests for oral argument are denied and the appeal is submitted on the briefs and record

1

The name "Patrich" will be used in this opinion to refer either to the miner or his widow as the context dictates

2

The name "Falletti" will be used in this opinion to refer either to the miner or to his widow as the context dictates

3

Old Ben Coal challenged the finding of Sec. 727.203(a)(4) invocation on appeal to the BRB, but the BRB did not consider that challenge because it found that invocation had been properly established under Sec. 727.203(a)(1). The parties on appeal rely exclusively on the (a)(1) determination, and therefore we will not address (a)(4)

4

Invocation can also be established through: ventilatory studies establishing the presence of a chronic pulmonary disease, Sec. 727.203(a)(2); blood gas studies demonstrating an impairment in the transfer of oxygen, Sec. 727.203(a)(3); other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishing the presence of a totally disabling respiratory impairment, Sec. 727.203(a)(4); or, in the case of a deceased miner where no medical evidence is available, by affidavit of the survivor or a person with knowledge, Sec. 727.203(a)(5)

5

Regulation 410.490 is the interim presumption applied by the Social Security Administration. For a history of the statutory provisions leading through the permanent regulations under 410.401 et seq., the 410.490 interim regulations, the 727.203 interim provisions, and the 718 permanent regulations, see Pittston Coal Group, 488 U.S. at 108-11, 109 S.Ct. at 417-19; Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987)

6

In Meyer v. Zeigler Coal Co., 894 F.2d 902, 905 n. 3 (7th Cir.1990) we stated that Taylor held Sec. 727.203(b)(3) to be invalid. This was a misstatement. Taylor concerned only Sec. 727.203(b)(2), and did not declare that provision to be completely invalid. Taylor held only that Sec. 727.203(b)(2) would be more adverse to the miner than the Sec. 410.490 regulations if medical evidence were considered. In the denial of the petitions for rehearing, we limited that holding. 892 F.2d at 508. We treat the continued vitality of Sec. 727.203(b)(3) in light of Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S. Ct. 414, 102 L. Ed. 2d 408 (1989) and 30 U.S.C. Sec. 902(f)(2) as an open question

7

In fact, the only debatable question under Sec. 410.490(c)(2) is whether the employer must provide vocational evidence as well as medical evidence in order to demonstrate that a miner is able to engage in "comparable and gainful work". See Ramey v. Kentland Elkhorn Coal Co., 755 F.2d 485 (6th Cir.1985); Taft v. Alabama By-Products Corp., 733 F.2d 1518 (11th Cir.1984)

8

The only issue, then, is whether the medical evidence is relevant

9

A chart presented in Sec. 410.490(b)(1)(ii) contains standards for one-second forced expiratory value and for maximum voluntary ventilation. If the miner's scores on these tests are less than or equal to the values contained in the chart, the miner is presumed to be suffering from a chronic respiratory or pulmonary disease

10

The anomaly of according a presumption to ten-year miners under Sec. 410.490(b)(3) only if it was first shown that they were fifteen-year miners under Sec. 410.490(b)(1)(ii) was noted by the Supreme Court in Pittston Coal Group, but the Court was unwilling to rewrite the regulations. 488 U.S. at 119-20, 128-29 (Stevens, J., dissenting). We, too, must take the regulations as we find them unless they are inconsistent with their authorizing statute

11

This parity applies only to miners with at least ten years of coal mine employment. For miners with less than ten years of coal employment, Secs. 410.490(b) and 410.416 provide that the miner must prove causation. Section 727.203 has no similar provision because invocation of the presumption, and therefore rebuttal, is available under Sec. 727.203 only for miners with at least ten years of coal employment. The Supreme Court in Pittston Coal has indicated that claims under Sec. 727.203 by miners with less than ten years of qualifying employment must be analyzed under the Sec. 410.490 invocation provisions which would include the requirement that the miner prove causation. The Sec. 727.203(b)(3) rebuttal provision is therefore inapplicable to claims involving miners with less than ten years of coal mine employment

12

As we have said, we do not need to finally decide the scope of 30 U.S.C. Sec. 902(f)(2) in this case. There is a very strong argument that 30 U.S.C. Sec. 902(f)(2) applies only to criteria dealing with the "total disability" element. The question of Sec. 902(f)'s scope was left open by Pittston Coal Group and by Taylor. Pittston Coal Group, 488 U.S. at 114, 109 S.Ct. at 420; Taylor, 892 F.2d at 505, 506 n. 3. Rebuttal under Sec. 727.203(b)(2), like rebuttal under Sec. 727.203(b)(1), is an attack on the presumption of total disability. By contrast, rebuttal under Sec. 727.203(b)(3) is an attack on the presumption that an admitted total disability was caused by coal mine employment. If 30 U.S.C. Sec. 902(f)(2) applies only to the element of total disability, there is no requirement that Sec. 727.203(b)(3) be no more restrictive than anything contained in Sec. 410. Section 902(f)(2) is part of the statutory definition of "total disability," and the Supreme Court in Pittston Coal Group stated that the argument that its strictures apply only to total disability questions "has considerable merit, though it is by no means free from doubt." 488 U.S. at 114, 109 S. Ct. at 420. Thus it is not certain that Sec. 727.203(b)(3) would be invalidated even if it did create criteria more restrictive than the criteria of Sec. 410.490

13

Dr. Barkdull supported his conclusion of total disability by stating that Joseph experienced shortness of breath from walking or from climbing six to eight steps, and that he could not lift over ten pounds