Charles R. Sexton, Petitioner, v. Director, Office of Workers' Compensation Programs, Respondent, 752 F.2d 213 (6th Cir. 1985)

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U.S. Court of Appeals for the Sixth Circuit - 752 F.2d 213 (6th Cir. 1985) Argued Dec. 6, 1984. Decided Jan. 11, 1985

Lewis Seiler, Cincinnati, Ohio, for petitioner.

Benefits Review Board, Ronald G. Ray (argued), J. Michael O'Neill, U.S. Dept. of Labor, Washington, D.C., for respondent.

Before EDWARDS and KENNEDY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.


Claimant Charles R. Sexton filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., on April 26, 1979. The ALJ, after a hearing, denied benefits on July 1, 1982, and the Board affirmed by Decision and Order December 5, 1983.

Claimant is now a 61-year old man. He has an eighth grade education. His work history includes employment at three different coal companies in Kentucky and Ohio. While his work history at coal mining is significantly less extensive than in most such cases, his description of his exposure which is undisputed in this record, bears repetition. As quoted in the transcript of the hearing in this case, it is as follows:

[Sexton]: The job was--I was a slate picker up in the tipple. There's about approximately 65, 70 feet up in the air where all the coal come off the barges, come up in the tipple. As it come into the tipple, there was just like this platform made here. There are three to four men sitting on each side of this big shaker that was in the back. It divided the dust, the lump and the slate as it come down this four foot belt, and it had two windows in it. That's all we had in that room.

The room was around, approximately 20 by 30, or something like that, your Honor, and we wore bandannas, red bandannas and blue bandannas over our noses and our eyes. We got them down like that to keep from sucking all that dust down into our stomach, and if you happen to eat a sandwich in there, a peanut butter sandwich or egg, if you take a bite of that sandwich and then if you happen to look down at the sandwich, there would be nothing but a big ring around where you took the bite. That's how much dust was in that one room.

Then, if you got too much dust in you, you push a red button and you go to the door and that guy--the foreman would send another man in and then you would go down on the railroad tracks and take a breather there, see. You throw the lumps of coal up in the boxcars. That went on like that.

* * *

* * *

Q. You indicated that you wore a bandanna over your face?

[Sexton]: Yes.

Q. What was the reason for that?

[Sexton]: Well, see, to keep the dust, you know, in your mouth--going down in your mouth and nose, and every once in a while you would step onto the outside and shake that bandanna out and come back in and put it back on your face.

* * *

* * *

Q. Did you ever [get] sick from the dust at all?

[Sexton]: Yes, sure. You had to go out.

Q. What kind of sickness would it be?

[Sexton]: Just spitting up that coal dust, you know, blowing your nose.

Q. Would it make you sick to your stomach? Would it make you feel nauseous?

[Sexton]: Oh, yes. You did get dizzy.

Q. Was that daily?

[Sexton]: Just about.

Tr. 8-12.

Claimant's testimony was that he worked for two years at Raymond City Coal Company in North Bend, Ohio, under this exposure. He had previously worked another year at Chevrolet Coal Mining Company in Harlan, Kentucky. He finally had to quit work at a non-coal related job in 1976 because of breathing problems.

The significant testimony in this case from the claimant's point of view is that of Dr. Robert Penman, Director of Pulmonary Medicine at Bethesda Hospital in Cincinnati, Ohio. Dr. Penman examined the claimant twice and wrote three reports which are as follows:

June 8, 1979

History:

* * *

* * *

He has been increasingly short of breath since 1946. He is now breathless on any exertion greater than walking on the level at a normal pace. He wheezes a lot and complains of pain in his chest at times. He has a cough productive of copious sputum. There is no previous history of chest illness or any other illness of note. He now smokes 2 or 3 cigarettes a day, used to smoke up to 1/2 pack of cigarettes daily until quite recently. He is receiving disability from the Veterans Authority for 23 years and is on Social Security Benefits since 1974.

Examination : Chest moves well with respiration. Breath sounds are normal but there are coarse rales at both lung bases. Cardiovascular examination shows no abnormality. Blood pressure, 140/85.

Chest X-ray : This shows fine nodulation in the lower and mid-zones of both lungs consistent with pneumoconiosis stage I (Cincinnati, 1/1 p).

Lung Function Tests : These show no abnormality. Vital capacity is normal (4.4 liters, predicted = 5.0 +/- 1.0). Expiratory flow is normal (FEV 1 = 3.3 liters = 75% of VC).

Conclusion : There is a history of exposure to coal mine dust and other dusts which maybe [sic] adequate for a diagnosis of pneumoconiosis. The X-ray is certainly suggestive of that diagnosis stage I. Lung function is not impaired. 2.

August 4, 1980

History:

* * *

* * *

He has been increasingly short of breath since 1946 and is now breathless on any exertion greater than walking on the level at a normal pace. He wheezes and complains of pain in his chest at times. He has a cough productive of copious sputum. There is no previous history of chest illness or any other illness of note. He has now quit smoking since June of 1979, previously two or three cigarettes a day, had smoked up to 1/2 pack of cigarettes daily for many years. He receives disability benefits from Veterans Authority and has Social Security Benefits.

Examination : Chest moves well with respiration. There are minor wheezes at both lung bases and some coarse rales. Cardiovascular examination is normal. Blood pressure, 125/85.

Chest X-ray : This shows fine nodulation in the lower and mid-zones of both lungs consistent with pneumoconiosis stage I (Cincinnati, 1/1 p).

Lung Function Tests : These show some airway obstruction. Vital capacity is bormal [sic] (5.2 liters, predicted = 4.8). Expiratory flow is reduced (FEV 1 = 3.2 liters = 62% of VC). Arterial blood gases show no abnormality. PO2 is 85. Exercise test was attempted but after one minute of walking on the treadmill at 2 miles an hour the patient complained of weakness and faintness and the test had to be terminated at that time.

Conclusion : Although the history of exposure to coal mine dust and other dust maybe [sic] adequate there is a definite abnormality on the chest X-ray consistent with pneumoconiosis stage I. Lung function is impaired.

January 5, 1981

United States Department of Labor

Employment Standards Administration

121 E. State Street

Columbus, Ohio 43215

Re: Charles Sexton

To Whom It May Concern

Mr. Sexton does in fact have black lung disease, and it has been caused at least in part by coal mining work, and because of the black lung disease Mr. Sexton is totally disabled.

Yours sincerely,

[s/ ] Robert W. Penman, M.D.

In addition to Dr. Penman's report, Dr. William Anderson examined claimant on November 12, 1979, and found that an x-ray indicated 1/1 pneumoconiosis.

The ALJ's denial of black lung benefits is founded upon a report by Dr. C.D. Smith, who is a Board-certified radiologist and B-reader1  but who did not examine claimant. As Congress has required in the Black Lung Benefits Act, the negative reading of an X-ray does not mean that the person to whom the X-ray applies does not have pneumoconiosis. 30 U.S.C. § 923(b).2 

We hold that the ALJ and the Board erred in giving greater weight to a non-examining doctor's negative reading of a single X-ray than to the results of examinations and X-ray readings by two qualified physicians. This is particularly true since one of the doctors finding pneumoconiosis, Dr. Penman, possesses qualifications which appear to equal or exceed those of any physician ever cited to this court as a witness on pulmonary diseases. See Appendix, infra.

As another panel of this court has recently recognized:

It is well-established that a single positive X-ray can trigger the presumption in favor of a claimant, and the Secretary cannot rebut that presumption merely by presenting the results of a negative reinterpretation of the same X-ray. See e.g., Haywood v. Secretary, 699 F.2d 277, 283 and 285 (6th Cir. 1983); Smith v. Califano, 682 F.2d 583, 587 (6th Cir. 1982); Lawson v. Secretary, 688 F.2d 436, 438 (6th Cir. 1982); Miniard v. Califano, 618 F.2d 405, 410 (6th Cir. 1980); Singleton v. Califano, 591 F.2d 383, 385 (6th Cir. 1979); Cunningham v. Califano, 590 F.2d 635 (6th Cir. 1978); Dickson v. Califano, 590 F.2d 616, 623 (6th Cir. 1978); Burchett v. Mathews, 575 F.2d 1189, 1191 (6th Cir. 1978); Ansel v. Weinberger, 529 F.2d 304, 309-310 (6th Cir. 1976).

Hatfield v. Secretary of Health and Human Services, 743 F.2d 1150, 1155 (6th Cir. 1984).

The judgment of the Benefits Review Board is reversed and the case is remanded for the award of black lung benefits.

APPENDIX

CURRICULUM VITAE

NAME:

Robert William Brown Penman

SEX:

Male

DATE OF BIRTH:

July 14, 1928

PLACE OF BIRTH:

Bihar, India

MARITAL STATUS:

Married

WIFE'S MAIDEN NAME:

Christina N. Blyth

CHILDREN:

Diana, Fiona, David, Susan

EDUCATION:

a) Undergraduate 1943-1945 George Watson's College, Edinburgh, Scotland

b) Medical School 1948-1954--Edinburgh University School of Medicine

Graduated M.B., Ch. B.

PRESENT ADDRESS:

Suite 209, Bethesda Professional Bldg., Oak Street, Cincinnati, Ohio 45206 Phone: 281-2698

GRADUATE TRAINING:

October 1954--March 1955--House Physician (Medical Intern) at Bangour Hospital, West Lothian, Scotland.

April 1955--September 1955--House Surgeon (Surgical Intern) at Chalmer's Hospital, Edinburgh, Scotland.

October 1955--March 1956--House Physician (Medical Intern) at Royal Infirmary (Cardiology Unit), Edinburgh.

April 1956--September 1956--Assistant in General Practice to Dr. Angus Walker, Edinburgh.

October 1956--October 1957--Junior Hospital Medical Officer (Junior Resident in Thoracic Surgery), Hawkmoor Hospital, Bovey Tracey, Devon, England.

November 1957--January 1959--Registrar (Resident) in Medicine, Royal Infirmary, Aberdeen, Scotland.

February 1959--January 1962--Senior Registrar (Senior Resident) in Medicine at the Royal Victoria Hospital, Belfast, N. Ireland and Senior Tutor (Instructor) in Therapeutics at Queen's University Belfast. Joint Appointment.

TEACHING APPOINTMENTS:

February 1959--January 1962--Senior Tutor (Instructor) in Therapeutics at Queen's University, Belfast, N. Ireland.

February 1962--August 1963--Lecturer (Assistant Professor) in Medicine at University of Sheffield, England.August 1964--August 1966--Senior Lecturer (Associate Professor) in Medicine at the University of Sheffield, England.

August 1966--June 1967--Assistant Professor in Medicine, University of Kentucky, Lexington, Kentucky.

July 1967--June 1970--Associate Professor in Medicine, and Director of the Pulmonary Division, Department of Medicine, University of Kentucky, Lexington, Kentucky.

July 1970--July 1976--Professor of Medicine and Director of the Pulmonary Division, Department of Medicine, University of Kentucky, Lexington, Kentucky

CONSULTING POSITIONS:

Senior Physician, University of Kentucky Medical Center. Visiting Consultant Veteran's Administration Hospital, Lexington, Kentucky.

Present Position (From 8/1/76) Director of Pulmonary Medicine, Bethesda Hospitals, Cincinnati, Ohio and Private Practice of Pulmonary Medicine, Cincinnati, Ohio.

CERTIFICATION BY BOARDS:

Member of Royal College of Physicians of Edinburgh 1957, Elected to Fellow 1969

Member of Royal College of Physicians of London, 1958, (Recognized as equivalent to American Board of Internal Medicine)

MILITARY SERVICE:

British Army--August 1946--September 1948

HONORS & AWARDS:

M.D. with honors, Edinburgh University (Postgraduate degree) 1961.

Fellowship of Royal College of Physicians of Edinburgh 1969

Fellow of American College of Physicians, 1969

Sir Henry Wellcome Travelling Fellow in Medicine (British Medical Research Council Award) is Johns Hopkins Medical School, 1963-1964

National Institutes of Health, Travelling Fellow at St. George's Hospital, London, England, 1973

MEMBERSHIPS & OFFICES IN PROFESSIONAL SOCIETIES:

Member of the American Physiological Society

Member of the American Thoracic Society

Member of the Central Society of Clinical Investigations

Member of the British Medical Research Society

Representative Counsellor of Kentucky Thoracic Society

COMMITTEE & ADMINISTRATIVE SERVICE:

Director of Pulmonary Division, Department of Medicine, University of Kentucky

Member of Laboratory Advisory and Transfusion Review Committee, University of Kentucky

Director of Post graduate Training Program in Pulmonary Medicine, University of Kentucky

COMMUNITY SERVICES:

Member of Board of Kentucky Lung Association

GRANTS:

Principal Investigator, National Heart Institute Training Grant, 1967-1972 (Pulmonary Physiology)

Principal Investigator, National Heart Institute Training Grant, 1967-1972 (Clinical Pulmonary)

Principal Investigator and Coordinator of Program--Project Grant, National Heart Institute, 1967-1971 (Chronic Lung Disease)

Principal Investigator, AMA--ERF Research Grant Effect of Smoking on Pulmonary Ventilation--perfusion relationships 1967-1969

Principal Investigator, University of Kentucky Tobacco and Health Research Institute "Effects of Cigarette smoke on Pulmonary Vagal Reflexes" 1973- to dateBIBLIOGRAPHY

PUBLICATIONS:

1. Penman, R.: Addison's disease in association with spastic paraplegia. Brit. Med. J., I, 402, 1960.

2. Burrows, D., and R. Penman: Prognosis of the eczema-asthma syndrome. Brit. Med. J., II, 835, 1960.

3. Penman, R.: Respiratory failure in pulmonary anoxemia. Thesis for degree of M.D. (Edinburgh University, 1961)

4. Penman, R.: The hypoxic drive in respiratory failure. Clin. Sci. 22, 155, 1962.

5. Penman, R.: Blood lactate and some acid-base changes in respiratory failure. Clin. Sci. 23, 5, 1962.

6. Penman, R.: Fusidic acid in bacterial endocarditis. Lancet, II, 1277, 1962.

7. Penman, R.: Hypoxia in respiratory failure. Geriatrics, 18, 807, 1963.

8. Fitzgerald, R., J.T. Zajtchuk, R. Penman and J.F. Perkins, Jr.: Ventilatory response to transient perfusion of carotid chemoreceptors. Amer. J. Physiol. 207, 1305, 1964.

9. Fitzgerald, R., R. Penman and R.L. Riley.: Ventilatory response to transient infusions into the carotid and vertebral arteries. The Physiologist, 7, 131, 1964.

10. Workman, J., R. Penman, B. Bromberger-Barnea, S. Permutt and R.L. Riley. Alveolar dead space, alveolar shunt and transpulmonary pressure. J. Appl. Physiol. 20, 816, 1966.

11. Penman, R. and P. Howard.: Distribution of pulmonary ventilation and blood flow in normal subjects and patients with chronic bronchitis. Clin. Sci. 30, 63, 1966.

12. Howard, P. and R. Penman.: The effect of breathing 30% oxygen on pulmonary ventilation-perfusion inequality in normal subjects and patients with chronic lung disease. Clin. Sci. 32, 127, 1967.

13. Astin, T. and R. Penman.: Airway obstruction due to hypoxemia in patients with chronic lung disease. Amer. Rev. Resp. Dis. 95, 567, 1967.

14. Penman, R.: Ventilation-perfusion inequality. Brit. J. Dis. of Chest. 61, 12, 1967.

15. Penman, R., P. Howard and N. Stentiford.: Respiratory gas exchange in cor pulmonale. Amer. J. Med. 44, 8, 1968.

16. O'Neill, R. and R. Penman.: Sarcoidosis complicated by nocardiosis. J. Irish Med. Assoc. 62, 287-289, 1969.

17. Penman, R.: A summary of the conclusions from an International Conference on Coal worker's Pneumoconiosis. Amer. Rev. Resp. Dis. 102, 243-247, 1970.

18. Penman, R., R. O'Neill and L. Begley.: Lung elastic recoil and airway resistance as factors in chronic airway obstruction. Amer. Rev. Resp. Dis. 101, 528-535, 1970.

19. Penman, R., R. O'Neill and L. Begley.: The progress of chronic airway obstruction in relation to measurements of airway resistance and lung elastic recoil. Amer. Rev. Resp. Dis. 101, 536-544, 1970.

20. O'Neill, R. and R. Penman. Aspergillosis: A review and case report. Southern Med. J. 64, 392-396, 1971.

21. O'Neill, R. and R. Penman.: Clinical Aspects of blastomycosis. Thorax, 25, 708-711, 1971.

22. Penman, R., R.G. Luke and T. Jarboe.: Respiratory effects of hypochloremic alkalosis and potassium depletion in the dog. J. Appl. Physiol. 33, 170-174, 1972.

23. Jarboe, T.M., R. Penman, and R. Luke.: Ventilatory failure due to metabolic alkalosis. Chest, 61, 615-635, 1972.

24. Hiser, W., Penman, R. and J.T. Reeves.: Preservation of hypoxic pulmonary pressor response in canine pneumococcal pneumonia. Amer. Rev. Resp. Dis., 102, 817-822, 1975.

25. Davies, A., M. Dixon, R. Penman, J.G. Widdicombe, and J.C.M. Wise.: Effect of Repeated Exposures to High Concentrations of Sulphur Dioxide on Respiratory Reflexes in Rabbits. Bull. Physiopath. Resp. (in press).

ABSTRACTS:

1. Penman, R. and S. Singh.: Effect of breathing mixtures of carbon dioxide on the ventilatory response to hypoxia. J. Physiol. 155, 16P, 1960.

2. Workman, J., R. Penman, B. Bromberger-Barnea, S. Permutt and R.C. Riley.: The effects of changes in trans pulmonary pressure on the distribution of pulmonary blood flow. Fed. Proc., 23, 418, 1964.

3. Penman, R., and P. Howard.: A new approach to the measurement of ventilation-perfusion inequality. Thorax, 20, 479, 1965.

4. Penman, R.: Measurement of regional ventilation perfusion inequality using a continuous infusion of xenon 133. Clin. Res. 16, 55, 1968.

5. Penman, R. and L. Begley.: Lung recoil, airway resistance and expiratory flow obstruction. Clin. Res. 17, 49, 1969.

6. Penman, R.: Intrapleural pressure gradients in relation to tidal volume. Fed. Proc. 28, 399, 1969.

7. Warner, W.A., L. Begley and R. Penman.: Effect of glucagon on pulmonary airflow resistance in dogs. Fed. Proc. 30, 2011, 1971.

8. Warner, W.A., R. Luke and R. Penman.: Respiratory failure due to Metabolic Alkalosis. Proceedings of the Central Society for Clin. Research, 43, 1970.

9. Penman, R., and Y.J. Fuh.: Potassium chloride supplements in chronic cor pulmonale. Clin. Res. 22, 653A, 1974.

10. Jay, S.J., Evans, N. and R. Penman: Effects of cigarette smoke on control of respiration in normal rabbits. Clin. Res. 23, 540A, 1975.

11. Jay, S.J., Evans, N. and R. Penman: Effects of SO2 tracheobronchitis on the control of breathing in rabbits. Fed. Proceedings, 1976 (in press).

12. Jay, S.J., Evans, N., Donnely, G. and R. Penman: Effects of cigarette smoke on the control of breathing in rabbits with SO2 tracheobronchitis. Amer. Rev. Resp. Dis. (in press) (American Thoracic Society-Annual Meeting 1976).

BOOKS AND CHAPTERS IN BOOKS:

1. Astin, T. and R. Penman: Airway obstruction due to hypoxemia in patients with chronic lung disease. 1967-1968 Year Book of Medicine. D.E. Rogers, et al., Editors, pgs. 143-145.

2. Howard P. and R. Penman: The effect of breathing 30% oxygen on pulmonary ventilation-perfusion inequality. 1968-1969 Year Book of Medicine. D.E. Rogers, et al. Editors, pgs.

3. Penman, R.: Airway obstruction due to hypoxemia. 10th Aspen Conference on Research in Emphysema U.S.P.H.S. publication 1787, 145-159, 1967.

4. Penman. R.: Regional and overall ventilation-perfusion ratios in normal subjects and patients with chronic lung disease. 11th Aspen Conference on Research in Emphysema. U.S.P.H.S. 63-73, 1968.

5. Penman, R.: 'Complications'. Chapter 9, in Pulmonary Reactions to Coal Dust. A review of U.S. experience. Academic Press. New York, 1971.

6. Penman, R. and R. O'Neill: Recognition and management of complications of Coal-worker's pneumoconiosis in 'Coal Worker's Pneumoconiosis'. Annals of New York Academy of Science. 200, 643-647, 1972.

7. O'Neill, R., Penman, R., and A.J. Millett: Pulmonary Microembolism. Chapter 12, in Pulmonary Thromboembolism, Edited K. Mobin-Uddin. Publ. Charles C. Thomas, Springfield, Ill. 1975.

CORNELIA G. KENNEDY, Circuit Judge, dissenting.

I respectfully dissent.

Claimant worked only three years in the mines and accordingly is not entitled to any presumption. The ALJ found that claimant had not established that he suffers from pneumoconiosis or has a disabling respiratory or pulmonary complaint arising out of his brief period of coal mine employment in the early 1940's. He was engaged in other employment until 1974. The Benefits Review Board determined that the ALJ's decision is supported by substantial evidence. I agree.

The ALJ found that claimant did not establish pneumoconiosis by x-ray. The x-rays on which he relied, and upon which Dr. Penman relied for his diagnosis, were reread by a "B" reader and found completely negative for pneumoconiosis. The ALJ was entitled as the factfinder to accord more weight to the "B" reader. Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 802 (7th Cir. 1977).

The ALJ was also entitled to give little or no weight to Dr. Penman's conclusion that claimant is disabled from pneumoconiosis. Dr. Penman was not shown to be an attending physician. The record reflects only that he examined claimant on two occasions. Blood gas studies and pulmonary function studies were normal. The only objective findings he made were that claimant had minor wheezes at both lung bases and some coarse rales, and some airway obstruction. It was not until five months later, without examining claimant again, that Dr. Penman stated that he was totally disabled by black lung disease. The ALJ as the factfinder was entitled to find that Dr. Penman's reports were inconsistent.

Although I might as the factfinder have accepted Dr. Penman's opinion, I cannot say that the ALJ was compelled to accept it.

Accordingly, I would affirm the decision of the Benefits Review Board.

 1

A "B-reader" is one who has passed an examination testing his proficiency in detecting the presence of pneumoconiosis in chest x-rays. The test is administered by the Appalachian Laboratory for Occupational Safety and Health as provided in 42 C.F.R. Sec. 37.51

 2

"In carrying out the provisions of this part, the Secretary shall to the maximum extent feasible (and consistent with the provisions of this part) utilize the personnel and procedures he uses in determining entitlement to disability insurance benefit payments under section 223 of the Social Security Act, but no claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant's physician, or his wife's affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner's physical condition, and other supportive materials."

Black Lung Benefits Act of 1972, Sec. 4(f), 30 U.S.C. § 923(b) (1982) (emphasis added).