ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (C.A. No. 75-130).
Adams, Weis and Garth, Circuit Judges.
The present appeal had its origin on December 30, 1971, when Andrew Zielinski filed a claim for disability benefits under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. The claim was denied in March of 1972. After passage of the Black Lung Benefits Act of 1972, the claim was reconsidered in light of the new statutory standards. It was again denied on October 4, 1973.
A de novo hearing was thereafter requested by Zielinski, and it was held on April 11, 1974. It consisted of the admission of documents relating to Zielinski's medical history, and of an inquiry into his employment experience. Zielinski stated that, at the time of the hearing, he was employed as a handyman at a trailer park, and prior to that had worked in a maintenance capacity at the Pittston Hospital.*fn1 His mine-related employment spanned the period from 1948 to the mid-1960's, during which time he worked as a laborer for a number of different coal companies. Zielinski described the conditions of his work in the mines as including extremely dusty air and fumes. He also related that he often had experienced a burning sensation in his lungs precipitated by blasting in the mines.
On October 1, 1974, the administrative law judge decided that the claimant was not entitled to benefits for disability under the Black Lung Benefits Act of 1972. He found that "the preponderance of medical and other evidence" failed to demonstrate "the presence of pneumoconiosis or any totally disabling chronic respiratory or pulmonary impairment, which could be presumed to be pneumoconiosis." In particular, the ALJ recounted that an x-ray taken on February 2, 1972, had been interpreted by one physician as showing the presence of anthracosilicosis. However, the ALJ pointed out that this same x-ray was re-read by two other doctors -- in December of 1972 and August of 1973, respectively -- who determined that it was "completely negative for pneumoconiosis." Further, an x-ray taken on April 6, 1974, was interpreted by the radiologist as "failing to show any evidence of pulmonary pathology or heart disease."
Hospital records received subsequent to the hearing showed that the claimant had been admitted to the Pittston Hospital for nineteen days in January of 1973; at the time of admission to the hospital, he exhibited edema of the face and hands as well as a markedly enlarged liver. Progress, though very slow, did ensue, and the final diagnosis of his medical condition was of "acute cirrhosis of the liver with jaundice."
The ALJ concluded that there was no basis for saying that claimant suffered from pneumoconiosis -- which, had it been demonstrated, would have led to a presumption of total disability under the Act. Rather, the ALJ stressed that the 1972 x-ray had been read on two occasions as showing no presence of pneumoconiosis. He also noted that ventilatory studies of the claimant did not meet the requirements for presumptive disability.*fn2
Additionally, the ALJ declared that the evidence did not indicate that claimant had a totally disabling and chronic respiratory or pulmonary impairment, whether or not specifically demonstrated to be pneumoconiosis. He wrote:
The decision of the ALJ denying the claim for benefits was approved by the Appeals Council in November of 1974, and thus became the final decision of the Secretary of Health, Education and Welfare. Zielinski brought an action in district court, pursuant to 42 U.S.C. § 405(g), for a review of the Secretary's determination.
Judge Muir, in an order dated June 30, 1976, granted a motion for summary judgment on behalf of the Secretary. The district judge observed, first, that "there is no question that the record contains 'substantial evidence' to support the Secretary's finding" that claimant did not suffer from pneumoconiosis or any totally disabling and chronic respiratory or pulmonary impairment that may be presumed to be pneumoconiosis. Cf. Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Additionally, the court asserted that to remand the case for further proceedings in light of evidence from examinations made after the Secretary's decision would not be in order, for "there is no evidence that these findings relate to Zielinski's condition on June 30, 1973, the last date on which the Social Security Administration had jurisdiction to consider such evidence . . ." As of July 1, 1973, jurisdiction over claims for black lung benefits was transferred from the Social Security Administration in the Department of Health, Education and Welfare to the Benefits Review Board in the Department of Labor. See 30 U.S.C. § 925.
On October 24, 1977, Zielinski died. A summary of his death certificate*fn3 indicates that the immediate cause of death was "Laennec's Cirrhosis," and that other significant conditions contributing to death but not related to the immediate cause included "anthracosilicosis." In appellant's brief, as well as at oral argument, it was asserted -- ...