Petition for Review an Order of the Benefits Review Board.
Before WOOD, JR. and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Arthur Cook applied for disability benefits from his employer under the Black Lung Benefits Reform Act of 1977, 30 U.S.C. §§ 901 et seq. An administrative law judge of the Department of Labor held that Cook was not entitled to benefits and the Department's Benefits Review Board affirmed. We must consider the following question, which has divided the circuits: In deciding whether a claimant is entitled to an "interim presumption" of totally disabling black-lung disease (pneumoconiosis) due to prolonged employment in coal mining, may the administrative law judge weigh conflicting X-ray evidence of pneumoconiosis, or must he invoke the presumption if one X-ray is read once as positive for pneumoconiosis, regardless of the presence of other X-ray evidence that suggests the claimant does not have the disease? The other evidence might be negative readings of other X-rays, or a negative rereading (or rereadings) of the X-ray submitted by the claimant. Both types of evidence are involved in this case.
A regulation of the Department of Labor, the validity of which is not contested, provides (so far as relevant to this case) that "a miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis . . . if one of the following medical requirements is met: (1) A chest roentgenogram (X-ray) . . . establishes the existence of pneumoconiosis." 20 C.F.R. § 727.203(a). If this "interim presumption" of pneumoconiosis is established, the employer can rebut by showing that the claimant is not disabled, or that his disability "did not arise in whole or in part out of coal mine employment," or that "the evidence establishes that the miner does not . . . have pneumoconiosis." 20 C.F.R. § 727.203(b).
The regulation is not easy to understand without understanding the structure of the black-lung compensation program, on which see Black Lung Symposium, 83 W. Va. L. Rev. 721 (1981). The program has two major parts, one ("Part B," see 30 U.S.C. §§ 921-925) being a program of public benefits, administered by the Department of Health and Human Services, the other ("Part C," see 30 U.S.C. §§ 931-945) a program of private benefits (i.e., paid by the miner's employer), administered by the Department of Labor. The Department of Labor's "interim presumption," quoted above, is modeled on an interim presumption applicable to the Department of Health and Human Services (and its predecessor, HEW). They are called "interim" presumptions because they are meant to speed the processing of claims till more accurate methods of diagnosing black-lung disease become available.
The main difference between the two interim presumptions is that while the HEW-HHS presumption cannot be rebutted by medical evidence as such (that is, evidence addressed to whether the miner really has black-lung disease), but only by showing that the miner's disease either is not work-related or is not disabling, there is no similar limitation in the Labor presumption. See Solomons, A Critical Analysis of the Legislative History Surrounding the Black Lung Interim Presumption and a Survey of Its Unresolved Issues, 83 W. Va. L. Rev. 869, 884-902 (1981). Since this case involves the Labor presumption (because the claimant is seeking benefits from his employer), which can be rebutted by medical evidence, and since the employer put in its own X-ray evidence, it may seem to make little or even no difference whether negative X-ray evidence is admissible to prevent the interim presumption from arising or just to rebut it once it has arisen. If the presumption merely shifts the burden of production to the employer, it would indeed have no effect in a case such as the present where the employer has introduced its own X-ray evidence. If, however, the presumption affects the burden of persuasion, it could make a difference (though probably not in this case, as we shall see); for then if the presumption was established and the administrative law judge after weighing all the evidence could not decide whether the claimant had black-lung disease, the claimant would win. Attesting to the confusion endemic in many areas of American law, none of the parties to this case, including the Department of Labor, has been able to tell us what effect the presumption has. This court has held, though without extended discussion, that the presumption merely shifts the burden of production. Underhill v. Peabody Coal Co., 687 F.2d 217, 222 (7th Cir. 1982). If this is correct, the presumption would have no force in a case such as this, where the employer satisfied its burden of production by putting in some evidence that the claimant does not have black-lung disease. Other courts, however, have held that the presumption shifts the burden of persuasion and not just of production, see Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511, 1514 (11th Cir. 1984); United States Steel Corp. v. Gray, 588 F.2d 1022, 1027-28 (5th Cir. 1979), and that could be outcome-determining in a close case. We shall not try to determine the force of the presumption in this case.
Cook, who is now 73 years old, worked in the mines for 33 years. The record before the administrative law judge, so far as need concern us, consists of 12 readings -- all by doctors who are specialists in reading X-rays for signs of black-lung disease -- of four X-rays, taken in June 1977, May 1979, August 1979, and August 1980, respectively. Only three of the 12 readings are positive -- one of the readings of the May 1979 X-ray, the only reading of the August 1979 X-ray, and one of the readings of the August 1980 X-ray. The administrative law judge concluded that the X-ray evidence considered as a whole, with special emphasis on the most recent (1980) X-ray, did not support a finding of black-lung disease. He therefore denied the interim presumption and dismissed the claim for benefits. The Benefits Review Board affirmed.
Cook asks us to focus particularly on the August 1979 X-ray, the only one there is no negative reading of. Actually, the record does contain a brief notation that there was a negative reading, but the administrative law judge did not rely on it in his opinion, perhaps because of the absence of a full report from the reader. We cannot base our decision on evidence the agency rejected.
As is clear from the language of the regulation, a single X-ray, read by a single, qualified doctor who reports it positive for black-lung disease, establishes the interim presumption; and that would be the situation in this case if the only X-ray in the record were the one taken in August 1979 (for we cannot consider the negative reading of that X-ray). Less obvious, but to us equally clear as a matter of principle, if there are conflicting readings of the same X-ray the fact that one of them is positive does not necessarily establish the presumption even if the reader is qualified. Under the regulation it is not the reading, but the X-ray, that establishes the presumption. If one doctor interprets an X-ray as positive for black-lung disease but 100 equally qualified doctors interpret the same X-ray as negative for the disease, nothing in the regulation requires the administrative law judge to disregard the negative readings.
Dickson v. Califano, 590 F.2d 616, 622-23 (6th Cir. 1978), is not to the contrary. It merely held that "a negative X-ray reading by a nonexamining physician does not constitute substantial evidence to rebut positive evidence furnished by a positive X-ray reading by a qualified examining physician." Id. at 623 (emphasis added). Moreover, the Sixth Circuit later retracted this holding, nothing that whether a reader has examined the claimant is not important. Lawson v. Secretary of Health & Human Services, 688 F.2d 436, 438 (6th Cir. 1982). Lawson does state in a dictum (see id. at 438-49), repeated in Back v. Director, Office of Workers' Compensation Programs, 796 F.2d 169, 172 (6th Cir. 1986), that if the claimant submits a single positive reading of an X-ray uncontradicted by previous negative readings, the interim presumption is established and cannot be rebutted by a negative rereading of that X-ray. This dictum has two grounds, neither of which is available in the present case. First, Lawson like Dickson was decided under the HHS (then HEW) presumption, not the Labor presumption. The HHS presumption cannot be rebutted by medical evidence; so once the presumption arises, subsequent negative X-ray evidence is inadmissible. Back was a Labor presumption case but the court did not remark the difference between the two presumptions.
Second, the dictum in Lawson was based in part on a statute, 30 U.S.C. § 923(b), which requires the Secretary of HHS to "accept a board certified or board eligible radiologist's interpretation of a chest roentgenogram," if "there is other evidence that a miner has a pulmonary or respiratory impairment," as there was in Dickson. (Notice the difference in language between this statute and the regulation creating the interim presumption: "interpretation of a[n X-ray]" versus "X-ray.") Congress believed that if there was such other evidence, a negative rereading by a "panel of second-guessers" ought not defeat the miner's claim. S. Rep. No. 209, 95th Cong., 1st Sess. 11 (1977). Section 923(b) is in Part B, not Part C, under which the present case arises. It is true that section 902(f)(1) makes the "relevant provisions" of 923(b) applicable to Part C. But even assuming that a provision which requires the Secretary of HHS to accept certain evidence can be relevant to an application to the Secretary of Labor (and maybe it can be, see H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. 19-20 (1978)), it would not carry the day for Cook. Even if section 923(b) goes further than merely forbidding the Secretary to order a rereading, as distinct from the employer's rereading an X-ray submitted by the claimant, see Smith & Newman, The Basics of Federal Black Lung Litigation, 83 W. Va. L. Rev. 763, 768-69 (1981), no one doubts that the claimant himself can have an X-ray that was submitted by the employer reread by a physician retained by the claimant. Since in this case both the employer and Cook had the X-rays reread -- indeed, two of the three positive readings were rereadings -- the statute is inapplicable. The clincher is that although Cook did present some other evidence of lung disease besides X-ray evidence, he places no reliance on such evidence in this court. He treats this as a case where the only evidence is X-ray evidence. By its terms, the "rereadings" provision in section 923(b) does not apply to such a case.
It is true that another provision of section 923(b), one that has been held not to be limited to the Secretary of HHS, see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 12 n. 12, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1976), provides that "No claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram." All this means, however, is that if the claimant presents other evidence of black-lung disease, his claim cannot be denied merely because X-rays of his lungs are negative. The provision relates to the use of X-ray evidence to rebut other kinds of evidence, see 428 U.S. at 32; 20 C.F.R. § 727.204(d), and Cook relies on no other kinds of evidence.
Apart from the limitations that section 923(b) places on the use of negative rereadings in some cases and negative readings in others (i.e., in cases where the claimant has other evidence of black-lung disease), and the additional limitations, on that use because the HHS presumption cannot be rebutted by medical evidence that the claimant does not really have black-lung disease, the administrative law judge is entitled to weigh negative with positive readings of the same X-ray in deciding whether the claimant has established the interim presumption on the basis of an X-ray. He is ...