On Appeal from the United States District Court for the Eastern District of Pennsylvania C.A. No. 76-1822.
Adams, Biggs, and Weis, Circuit Judges.
This appeal challenges the failure to award black lung benefits to a sixty-five year old former coal miner. Because it is not clear whether the administrative law judge properly based his decision on substantial evidence, we remand the case for a redetermination regarding eligibility.
Anthony Gober, born on December 3, 1912, began work in a coal mine in 1928. From that time until 1955, except for twenty-two months of military service, he was employed as a miner. In 1955, Gober began work with the Aluminum Company of America as a press helper. He testified that one of the reasons he left the mines was that he experienced difficulty in breathing.
In April 1972, Gober was hospitalized with a myocardial infarction and, on physicians' orders, did not return to work. Based on an application filed in August of 1972, Gober was awarded Social Security disability benefits in January of 1973 for his heart condition.
Also, in August of 1972, Gober filed a claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969,*fn1 alleging that he was disabled because of pneumoconiosis. His application was subsequently supported by the opinion of Dr. William Dzurek, his physician. On May 10, 1973, Gober's claim was denied by the Secretary of Health, Education and Welfare. Six days later, a workman's compensation referee of the Commonwealth of Pennsylvania adjudicated Gober totally and permanently disabled because of anthracosilicosis resulting from his prior employment in coal mines.
On December 17, 1975, after a hearing, an administrative law judge, assigned to the Department of Health, Education and Welfare, affirmed the denial of Gober's claim, stating that Gober's disability did not arise from pulmonary difficulties, but from heart disease. The decision by the administrative law judge was upheld, successively, by the Appeals Council and by the District Court for the Eastern District of Pennsylvania. An appeal from the affirmance by the district court is before us.
Under the Black Lung Benefits Act of 1972,*fn2 benefits are to be available to miners who are totally disabled by pneumoconiosis or an associated lung disease. Such benefits may be attained, under current regulations, in one of three ways. The first, and most direct of these routes, allows a claimant to prove his entitlement by:
(a) submitting X-rays which can be diagnosed as disclosing complicated pneumoconiosis,*fn3 a totally disabling disease; or
(b) submitting X-rays which "establish" the existence of pneumoconiosis,*fn4 which, if the claim was originally asserted before July 1, 1973, raises the rebuttable presumption that the ...