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November 11, 1977


The opinion of the court was delivered by: GREEN

 This matter is currently before the Court on defendant's motion for judgment affirming the Secretary's decision to deny plaintiff's claim for benefits under Part B, Title IV of the Federal Coal Mine & Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq., and plaintiff's motion for summary judgment and reversal of the Secretary's decision. *fn1" The Act provides for the payment of benefits to living miners who are totally disabled due to pneumoconiosis, *fn2" and to the dependents of miners who died due to pneumoconiosis, or who were totally disabled because of the disease at the time of their death. It must be established that the pneumoconiosis arose out of employment in the Nation's coal mines.

 A brief review of the facts shows that plaintiff is the widow of Eliseo Pennoni who was born in Italy in June 1899. He died February 26, 1973.

 It is unclear as to how long Mr. Pennoni worked as a miner. *fn3" However, even viewed in the light most favorable to plaintiff, he worked a maximum of six years back in the 1920's. At the time of his death, he was not entitled to black lung benefits under the Act.

 On September 23 and again on September 26, 1973, the miner's treating physician in Italy reported that he had been treating Mr. Pennoni for years because of chronic asthmatic bronchitis from pulmonary silicosis contracted during his work in the mines and that he was disabled from performing any type of work. The same physician also signed the death certificate where he listed the causes of death as chronic bronchitis from pneumoconiosis and cardiocirculatory collapse.

 On July 5, 1972, Mr. Pennoni had a physical examination performed by another Italian doctor, and a chest x-ray was taken. The relevant portions of the diagnosis revealed arterial hypertension and bronchial catarrh (inflammation of mucous membranes. The x-ray was reviewed by an internist certified by the National Institute of Occupational Safety & Health (NIOSH) who found it to be completely negative of evidence of pneumoconiosis. It was subsequently classified as 0/0, negative, by a NIOSH-certified internist specializing in pulmonary diseases.

 On the same date, yet another doctor performed pulmonary function studies on plaintiff's husband. His cooperation and effort during the test were not reported. Upon review by a different physician, it was reported that the values shown in the studies could not be confirmed since the studies were inadequately labelled. Nonetheless, this reviewing doctor concluded that the values as stated were atypical for pneumoconiosis.

 Plaintiff has written several letters citing pneumoconiosis contracted in the Nation's mines as the cause of her husband's death. Also, statements from several people, including the deceased miner's brother, have been submitted as evidence of his mine employment. These statements vary in the details of said employment. No mine records exist.

 The administrative proceedings, which began when plaintiff filed her application for benefits on April 2, 1973, have been lengthy and the Court need not trace them here. Defendant does not dispute that plaintiff has met four of the five eligibility requirements for widows' benefits; namely, that she is a widow of a miner, that she has not remarried, that she was dependent on the miner at the time of his death, and that she has comported with the provisions of the Act in filing her claim for benefits, 20 C.F.R. § 410.210. What is disputed is whether plaintiff has met the final criterion; namely, that her husband's death be due to pneumoconiosis, or that he be totally disabled due to the disease at the time of his death.

 The Court's sole function is to determine whether the Secretary's decision denying plaintiff's claim for benefits is supported by substantial evidence; i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bernardi v. Weinberger, 412 F. Supp. 629 (E.D. Okla. 1975). This standard is the same as that applicable to Social Security Act cases since Section 413(b) of the Mine & Safety Act, 30 U.S.C. § 923(b), incorporates Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), by reference. *fn4" Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Felthager v. Weinberger, 529 F.2d 130 (10th Cir. 1976).

 Where there is a conflict in the evidence, it is the Secretary's duty to resolve it, and even though the evidence might support an alternative finding, the Secretary's conclusion should be affirmed if supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972). Plaintiff has the burden of proof with regard to whether she has met the required conditions of eligibility to make her claim. England v. Weinberger, 387 F. Supp. 343 (S.D. W.Va. 1974).

 The Court has carefully reviewed and studied all of the pleadings and the transcript of the administrative record, including that pertaining to the Appeals Council's decision on remand from this Court. *fn5" In so doing, it has been especially careful to scrutinize all medical reports, letters, statements from co-workers of the deceased miner and other such pertinent documents contained in the record. Although the Court is sympathetic to plaintiff's claim, it cannot say that the Secretary's conclusion was without substantial evidence either under the tests for entitlement provided by the applicable interim adjudicatory rules or under the permanent rules. 20 C.F.R. § 410.401 et seq.

 Both the interim and permanent rules provide four alternative tests under which plaintiff can attempt to prove her claim. The first test, the interim adjudicatory rule, provides for a rebuttable presumption of death or total disability due to work in the mines which arises where (a) an x-ray, biopsy, or autopsy confirms the existence of pneumoconiosis, or (b) the miner worked more than 10 years in the mines and ventilatory function studies establish the presence of a chronic respiratory or pulmonary disease. 20 C.F.R. § 410.490. Under the permanent rules, a second option establishes an irrebuttable presumption of death or total disability at the time of death due to pneumoconiosis if the evidence demonstrates the existence of "complicated" pneumoconiosis by x-ray, biopsy, autopsy or other acceptable means. 20 C.F.R. §§ 410.418, 410.458; 30 U.S.C. § 921(c)(3). The third test creates a rebuttable presumption of death due to pneumoconiosis if the miner worked for more than 10 years in the Nation's mines and died from a respirable disease. 20 C.F.R. §§ 410.456, 410.462; 30 U.S.C. § 921(c)(1) and (2). Finally, a rebuttable presumption is created if the miner worked for a substantial number of years (10) in the mines and "other evidence" demonstrates the existence of a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §§ 410.414, 410.422, 410.426, 410.454; 30 U.S.C. § 921(c)(4).

 Under the first test, the only chest x-ray submitted was read as negative for pneumoconiosis. No biopsy or autopsy report was available. Accordingly, plaintiff cannot prove her claim under this prong of the interim rule. The values recorded for Mr. Pennoni pursuant to the ventilatory function studies performed did fall within the listed tabular values for a person of his height. However, they were subsequently reviewed by a specialist in internal medicine who concluded that the studies were conducted and the values recorded in such a manner as to render them unacceptable for purposes of plaintiff's claim. *fn6" He nonetheless found that the values as stated were atypical of pneumoconiosis. This factor, added to the requirements that the miner must have ...

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