George T. King v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare
615 F.2d 1018
4th Cir.
1980
Check Treatment

George T. KING, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellee.

No. 77-1896.

United States Court of Appeals, Fourth Circuit.

Decided Feb. 22, 1980.

614 F.2d 1018

Argued June 7, 1979.

od prior to April 26, 1974 (April 26, 1973, if the violations were willful), are time-barred.54 Otherwise they are not. The claims of the unnamed job applicant are barred by limitations since he has never been named, and more than three years have elapsed since the filing of the complaint, to say nothing of the greater period of time which has passed since the December 1975 asserted act of discrimination.

The remaining back pay claims of the other 10 named employees55 are, on the theory which I espouse, time-barred even under the three year provisions of § 6 of the Portal-to-Portal Act applicable to willful violations.56

James H. Coleman, Malden, W. Va., for appellant.

James S. Arnold, Asst. U. S. Atty., Charleston, W. Va. (Robert B. King, U. S. Atty., and Phillip I. Morse, Sp. Asst. U. S. Atty., Charleston, W. Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

George King appeals from an order of the district court affirming a decision by the Secretary of HEW that he was not entitled to black lung benefits sought pursuant to the regulations enacted under Part B of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. While our scope of review is limited to determining whether the Secretary‘s denial is supported by substantial evidence, 30 U.S.C. § 923(b), incorporating by reference § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), because the Secretary failed to give proper consideration to certain evidence, we remand for further consideration.

King submitted X-ray studies which at least four physicians interpreted as demonstrating the existence of pneumoconiosis. Two physicians gave King physical examinations and concluded that he suffered from occupational pneumoconiosis. In addition, there was testimony that King had subjective symptoms of lung impairment (shortness of breath, coughing, fatigue).

The Secretary, in evaluating the evidence, stated that “[t]here is not one medical expert who has any official certification of his radiology specialty that has classified this claimant‘s film as pneumoconiosis.” The record shows that of the four physicians who interpreted King‘s X-rays as showing pneumoconiosis, three are in fact officially certified “A” readers. The Secretary had all the X-rays reread by one certified “B” reader who interpreted them all as either unreadable or negative for pneumoconiosis. The Secretary is entitled to weigh evidence and gave great weight to these negative findings, but his opinion does not indicate he took into consideration the rule in this circuit that contradictory X-rays benefit neither party.

.

The Secretary‘s decision does not give proper treatment to the findings of two physicians who gave King physical examinations and diagnosed pneumoconiosis. There is nothing in the record to support the Secretary‘s statement that Dr. Hamilton has a “penchant for making elaborate diagnoses based upon opaque X-ray films.” The record contradicts the Secretary‘s statement that Dr. Hresan‘s diagnosis “is based entirely upon an X-ray interpretation.” Dr. Hresan noted a fusion of the vertabrae, examined the heart, and found that “the resp. disease affects his breathing about 50%.” More importantly, Dr. Hresan‘s medical report, dated 3-27-73, gives the “Date of First Examination” as 1-4-69, the “Frequency of Visits” as “irreg“, and the “Date of Last Examination” as 3-26-73.

This court places great reliance on the conclusions of a claimant‘s examining physician, e. g.,

. The Secretary has, apparently, impermissibly limited his findings to those based on objective medical tests and weighing conflicting opinions on X-rays in contravention of his duty to consider all the evidence, as required by 30 U.S.C. § 923(b). On remand, the Secretary will state how he treats the evidence of Dr. Hamilton and Dr. Hresan.

The Secretary must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim.

. Even if legitimate reasons exist for rejecting or discounting certain evidence, the Secretary cannot do so for no reason or for the wrong reason. We therefore remand this case to the district court for the purpose of further remand to the Secretary with directions to give proper consideration to all the evidence. On remand, either party may introduce additional evidence if he be so advised.

VACATED AND REMANDED.

HAYNSWORTH, Chief Judge, dissenting:

I would affirm.

The statement that Dr. Hamilton has a “penchant for making elaborate diagnoses based upon opaque x-ray films” is unsupported on this record. It may be that the administrative law judge had encountered this elderly physician before. However, it is a shorthand means of stating why Dr. Hamilton‘s opinion is disregarded when derived from a film which highly qualified readers find so opaque as to be uninformative. Nor do I find Dr. Hresan‘s references to the heart and spine as showing reliance upon anything other than the x-ray film in reaching his conclusion about the patient‘s respiratory problem.

Since I find in the record support for the Secretary‘s conclusion, I would affirm.

Notes

54
I have not considered the possibility that the Secretary‘s interrogatories of April 12, 1976 might have tolled limitations. It is manifestly more difficult to assign such effect to a document which, while it named names, did not state that those named were the persons for whom back pay awards were sought. Since no terminations occurred between April 12, 1973 and April 26, 1973 (or between April 12, 1974 and April 26, 1974), the sole effect of a decision that limitations were tolled as of April 12, 1976, rather than as of April 26, 1976, would be a slight lengthening of the period to which the claims of John J. Robichaux, the one employee not terminated, might extend. If, at trial, it were to develop that he has claims of willful violation related to the period April 12, 1973 to April 26, 1973 (or claims of non-willful violation related to the period April 12, 1974 to April 26, 1974), on my theory the district judge would be expected to address the question of whether the interrogatories tolled limitations.
55
Termination Date
Tony Fiorito2/28/73
R. Mueller2/28/73
P. J. Sullivan2/28/73
Bernard T. Tetreault2/28/73
Eugene Tyburski2/28/73
James D. Whitlow2/28/73
Myron Follett3/1/73
Fred P. Logan3/1/73
Richard G. Nadeau4/1/73
A. L. Ragazzini4/1/73
56
The result should not be viewed as inimicable to the interests of the employees by restricting back pay relief. There really is no restriction, for the result for a § 17 action by the Secretary is exactly the same as it would be for an individual or collective employees’ suit under § 16(b). If we assume, nevertheless, that there would be a “restriction“, it must be emphasized that the “restriction” would derive from the concern of Congress that employers not be unduly adversely affected by long delays in identification of those employees who have claims, with the attendant probable dissipation of evidence. Indeed, when enacting the ADEA, Congress demonstrated heightened concern of this nature by including a requirement, not present in the FLSA, patterned on the Civil Rights Act of 1964, that individual employees, within much shorter periods, take steps by way of notification of the Secretary, who would, in turn, notify the employer. ADEA § 7(d) which so provides has been explained in terms of a design to insure prompt identification of claims for the employer. See
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