Joseph D. Arnold, Appellant, v. Secretary of Health, Education and Welfare, Appellee, 567 F.2d 258 (4th Cir. 1977)

This appeal involves the duty of the Secretary of Health, Education and Welfare to consider, in a claim for Black Lung benefits under 30 U.S.C. §§ 921-925, evidence of pneumoconiosis, which evidence accumulated after June 30, 1973.¹  Joseph Arnold, who worked in the nation's mines for more than twenty years, appeals from a judgment of the district court which found that the final decision of the Secretary denying black lung benefits to appellant was supported by substantial evidence. We vacate and remand.

As recited by the district court, there was considerable conflicting evidence in the case. Much of the earlier medical evidence was either non-conclusive or indicated the absence of pneumoconiosis.²  However, later medical evidence was probative of the existence at the time of the later findings of disabling pneumoconiosis. The difficulty with the Secretary's position is that he did not explain the weight which he attributed to this evidence, if, in fact, he considered the evidence at all.

Most significant of the later evidence was the result of an examination performed by Dr. Frank Varney. His tests, dated April 25, 1975, consisted of blood gas studies, chest x-rays, and ventilatory studies. While the blood gas study results included a PCO 2 of 33.6 mm Hg. and a PO 2 of 62.4 mm Hg., the x-ray report was interpreted as showing pneumoconiosis, category 1/1 p., and the ventilatory studies showed an FEV 1 of I.0 L. and an MVV of 23.4 L./Min.³ 

In Talley v. Mathews, supra, we considered the issue of the probative value of evidence obtained after June 30, 1973 to prove the existence of pneumoconiosis before that date. Until our decision in Talley, the Secretary had taken the position that, because his jurisdiction was limited to cases filed before June 30, 1973, he would not consider evidence accumulated after that date. We disagreed, saying the state of a miner's health after June 30 was relevant to show whether or not he suffered from black lung disease before that date. Talley, p. 917; Begley v. Mathews, 544 F.2d 1345 (6th Cir. 1976); Collins v. Weinberger, 401 F. Supp. 377 (W.D. Va. 1975) (vacated on other grounds in 550 F.2d 911 (4 Cir.)). Proof that a miner had pneumoconiosis in 1975 is probative of the fact that the miner may have had the disease before June 30, 1973, but it is not conclusive. Talley, p. 917, n. 14a. Pneumoconiosis does not appear suddenly, and one may infer the presence of the disease in 1973 from the fact that a miner had pneumoconiosis in 1975. See Collins, supra.

The Secretary has the duty to hear all relevant evidence in order to determine whether an applicant is entitled to black lung benefits. That determination will not be overturned if supported by substantial evidence. 30 U.S.C. § 923(b); Oppenheim v. Finch, 495 F.2d 396 (4th Cir. 1974). The courts, however, face a difficult task in applying the substantial evidence test when the Secretary has not considered all relevant evidence. Unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's "duty to scrutinize the record as a whole to determine whether the conclusions reached are rational." Oppenheim, at p. 397.

Thus, we hold that the Secretary, in determining an applicant's entitlement to black lung benefits, must consider all relevant evidence, including that accumulated after June 30, 1973, and must indicate explicitly that such evidence has been weighed and its weight. See Thorn v. Weinberger,530 F.2d 580 (4th Cir. 1976); Cutler v. Weinberger, 516 F.2d 1282, p. 1285 (2nd Cir. 1975).

We believe that the Secretary did not meet that standard in this case. While he claims that he considered all of the evidence, including the post-1973 medical findings, the opinion of the administrative law judge gives no indication of the weight afforded the later reports; rather, that matter is discussed in what amounts to no more than a bare recital that he considered the evidence.⁴  In view of the Secretary's past refusal to consider post-1973 evidence, he considered it irrelevant, see Collins at p. 381, there is some reason to believe that little, if any, consideration was given to Dr. Varney's findings.⁵  Therefore,the Secretary must reveal how he treated such evidence in his rejection of the applicant's contentions.

We express no opinion as to the conclusions that should be drawn from this evidence. However, the post July 1, 1973 evidence was obviously probative, including the 1975 findings of Dr. Varney, and Arnold was entitled to have that evidence properly considered and to have the Secretary explain how he treated it in arriving at his conclusion.

As we are unable to determine whether the Secretary's position at the administrative level in this case followed the erroneous conclusion which the courts attempted to remedy in Talley, Begley, and Collins, we believe the judgment for the Secretary should be vacated.

On remand, both parties should be afforded the opportunity to submit further evidence. Accordingly, we remand the case to the district court with instructions to remand it to the Secretary for further taking of evidence should either party be so advised, and then reconsidered by the Secretary in the light of the record and this opinion.

Since the Secretary must reconsider the case, we do not express an opinion on the remaining points raised on appeal.

VACATED and REMANDED.