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March 17, 1978

JOSEPH A. CALIFANO, JR., Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: CONNER



 This is an action brought under section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health, Education and Welfare (the "Secretary"), which denied plaintiff's application for "black lung" benefits pursuant to sections 411(a) and 412(a)(1) of the Federal Coal Mine Health and Safety Act of 1969 (the "Coal Mine Act"), 30 U.S.C. §§ 921(a) and 922(a)(1).

 Plaintiff filed a statement of intention to apply for black lung benefits on May 1, 1973, and an application for black lung benefits on October 4, 1973. The application was denied both initially and after reconsideration. Plaintiff requested a hearing which was held on August 11, 1976. The Administrative Law Judge, before whom plaintiff appeared without counsel, considered the case de novo, and on August 28, 1976 found that plaintiff was not eligible for black lung benefits because he had not shown that he was totally disabled due to pneumoconiosis. The decision of the Administrative Law Judge became the final decision of the Secretary when it was approved by the Appeals Council on November 24, 1976. This action followed.

 Plaintiff has moved for summary judgment on the ground that the record filed in this case does not contain substantial evidence to support the Secretary's final decision, or, in the alternative, for remand to the Secretary for further hearing on the ground that plaintiff was not represented by counsel at the administrative hearing, was not orally advised of his right to counsel, and was thus unable to develop fully the record before the administrative law judge. Defendant has cross-moved for summary judgment on the ground that the Secretary's decision was supported by substantial evidence and that plaintiff was not prejudiced at the hearing by the fact that he was not represented by counsel to such a degree that the matter should be remanded for a new administrative hearing.

 Plaintiff is a 62-year-old male with a tenth-grade education. He worked outside the mines, picking up slate and sorting coal from 1930 to 1934. He then spent 28 years as a deep-shaft miner, performing all the tasks of a miner. He alleges total disability due to pneumoconiosis as of May, 1973.

 At the administrative hearing on his claim held August 11, 1976, the following medical evidence was presented. A chest X-ray taken on January 25, 1973, and interpreted by the Social Security Administration on December 10, 1974, indicated that plaintiff's lungs had no large or small opacities, that his cardiac outline and diaphragm were not ill-defined, but that there was some pleural thickening in his right lung. Plaintiff's pleural calcification grade, however, was zero.

 On January 16, 1974, plaintiff's chest was X-rayed by Dr. A. A. Maglione, a radiologist, at Phelps Memorial Hospital. Dr. Maglione stated that there was no definite change in the appearance of plaintiff's chest since the examination of January 1973. He stated that the chest was emphysematous especially in the lower zones, that there were fibrotic strands in the left lower lobe, and that a calcific focus was seen in the periphery of the right base. There was no indication of recent pulmonary or pleural pathology.

 Also on January 16, 1974, plaintiff was given a pulmonary function test at the Phelps Memorial Hospital. The diagnosis was "pneumoconiosis," and coughing with dark sputum was noted. The pulmonary function test (the result of two tracings) indicated that plaintiff had a ventilation equivalent (FEV [1]) of 2.4, or 69%, of the predicted FEV [1] and a maximum breathing capacity (MVV) of 30, or 28% of the predicted MVV. The doctor's impression was of a "moderately severe obstructive lung disease."

 On June 13, 1974, Dr. H. Kessler, another radiologist at Phelps Memorial Hospital, re-examined plaintiff's chest. He stated that two small round opacities were seen in the right lower lung zone, one of which contained calcification and which (he stated) were present in a previous study of March 16, 1969. The lung fields were mildly hyperinflated with depression of the diaphragmatic leaflets. Linear bands of increased density were interpreted as representing pleural thickening, rather than lung fibrosis. There was no evidence of recent infiltration, consolidation, or pleural effusion in either lung field. There were mild hypertrophic and degenerative changes of plaintiff's dorsal spine. Dr. Kessler's conclusion was that there was a mild air-trapping disease of the lungs. The other radiographic findings were consistent with plaintiff's occupation (miner) and "most probably indicate minimal changes related to pneumoconiosis." A pulmonary function test was also taken on June 13, 1974 at the hospital. This test (the result of one tracing) indicated that plaintiff's FEV [1] was 79% of predicted, and that his MVV was 43, or 48% of predicted. "Pneumoconiosis" was again the diagnosis.

 The record also contains a letter from Dr. Albert Sheehy, dated December 12, 1975. Dr. Sheehy stated that plaintiff complained of severe shortness of breath after mild exertion, non-productive cough, and frequent respiratory infections. Plaintiff's chest was symmetrical and quite large in anterior-posterior diameter, and he used accessory muscles of respiration with moderate prominence. His breath sounds were distant and there were low fixed diaphragms, with no dullness to percussion and no rales. His heart was normal except for a 1/6 systolic murmur at the low sternal border. There was no clubbing, pallor, or edema, but there was early breaking of nails. A chest X-ray showed hyperinflation and low, felt diaphragms and signs of old pleural reactive changes in the left base and scattered rounded opaque densities in the right base. Pulmonary function tests showed a MVV 36% of predicted, and FEV [1] of 61% of predicted. An EKG was normal. Dr. Sheehy stated that subjective and objective evidence of moderate to severe lung disease was present, and that etiological factors (long-term smoking and long-term employment in the coal mine) were also relevant. He concluded that plaintiff was sufficiently disabled functionally by his pulmonary limitations effectively to prohibit his employment in work for which he was trained, experienced, and capable.

 Plaintiff testified at the hearing that, since he stopped working as a miner on his doctor's advice, he has worked 15-20 hours a week as a gasoline station attendant, pumping gas. He does no heavy labor at his present job. He stated that his life has changed considerably since his disease began seriously affecting him. He stated that he used to be terribly fit, performing work around the house that required heavy exertion. Presently, he can do no such work because he gets exhausted easily and begins spitting up a dark substance.

 Plaintiff's wife also testified at the hearing. She stated that plaintiff needs four pillows to sleep at night (a common symptom of breathing difficulties) and that he often coughed up "horrible black stuff."

 Subsequent to the administrative hearing, plaintiff wrote to HEW that he had found another medical report, dated August 16, 1976, from Dr. Alberti (plaintiff's physician at Phelps Memorial Hospital) which diagnosed plaintiff as then suffering from pneumoconiosis. Plaintiff's symptoms were chest pains, shortness of breath, a cough, and dark-colored sputum. ...

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