the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee under the usual common-law rules.

(2) Whether the relationship of employer and employee exists under the usual common-law rules will in doubtful cases be determined upon an examination of the particular facts of each case.

(n) The "Social Security Act" means the Social Security Act (49 Stat. 620) as amended from time to time.

(o) "Pneumoconiosis” means a chronic dust disease of the lung arising out of employment in the Nation's under ground coal mines, and includes anthracosis, silicosis, or anthracosilicosis arising out of such employment.

(p) A "workmen's compensation law" means a law providing for payment of compensation to an employee (and his dependents) for injury (including occupational disease) or death suffered in connection with his employment. (q) Masculine gender includes the feminine, and the singular includes the plural.

SUBPART D-TOTAL DISABILITY OR DEATH DUE TO PNEUMOCONIOSIS

§ 410.401 Basis for total disability standards.

This subpart establishes the standards for determining whether a coal miner is totally disabled due to, or died from, pneumoconiosis, as defined in § 410.110 (0) of this part. The standards prescribed herein for total disability are, so far as applicable, the same as or closely comparable to those applied to determine the existence and continuance of a disability for purposes of title II of the Social Security Act, which are contained in Subpart P of Part 404 of this chapter.

§ 410.402 Total disability defined.

A miner is under a total disability due to pneumoconiosis if:

(a) He is suffering or suffered from a chronic dust disease of the lung which: (1) When diagnosed by chest roentgenogram, yields one or more large opacities (greater than one centimeter in diameter) and which would be classified in Category A, B, or C in the International Classification of Radiographs of the Pneumoconioses by the International Labor Organization,

or

(2) When diagnosed by biopsy or autopsy, yields massive lesions in the lung, that is, shows the existence of progressive massive fibrosis; or

(3) When established by diagnosis by means other than those specified in subparagraphs (1) and (2) of this paragraph, would be a condition which could reasonably be expected to yield the results described in subparagraph (1) or (2) of this paragraph had diagnosis been made as therein prescribed: Provided, however, That any diagnosis made under this clause shall be in accordance with generally accepted medical procedures for diagnosing pneumoconiosis.

(b) (1) He is unable to engage in any substantial gainful activity by reason of pneumoconiosis which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

(2) Where the requirements of paragraph (a) of this section are met, the finding that a miner is under a total disability is established by irrebuttable presumption.

§ 410.403 Evaluating total disability under § 410.402(b).

(a) Total disability may not be found for purposes of this part unless pneumoconiosis is the impairment involved. Whether or not pneumoconiois in a particular case constitutes a disability, as defined in § 410.402 (b), is determined from all the facts of that case. Primarily consideration is given to the severity of the individual's pneumoconiosis. Consideration is also given to such other factors as the individual's age, education, and work experience. Medical considerations alone can, except where other evidence rebuts a finding of "disability," e.g., the individual is actually engaging in substantial gainful activity, justify a finding that the individual is under a disability where his impairment is one that meets the duration requirement in § 410.402(b), and is listed in the appendix to this subpart or the Secretary determines his impairment to be medically the equivalent of a listed impairment (see §410.405).

(b) Pneumoconiosis which constitutes neither a listed impairment nor the medical equivalent thereof likewise may be found disabling if it does, in fact,

prevent the individual from engaging in any substantial gainful activity. Such an individual, however, shall be determined to be under a disabilty only if his pneumoconiosis is the primary reason for his inability to engage in substantial gainful activity. In any such case it must be established that the individual has a respiratory impairment because of pneumoconiosis, demonstrated on the basis of an MVV and an FEV1 which are equal to or less than the values specified in the following table or by a medicaly equivalent test (see § 410.405):

It must be further established that, because of such impairment, he is not only unable to do his previous work or work commensurate with his previous work in amount of earnings and utilization of capacities but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For the purposes of the preceding sentence, work "exists in the national economy" with respect to any individual, when such work exists in signficant numbers either in the region where such individual lives or in several regions of the country. Thus, isolated jobs of a type that exist only in very limited number or in relatively few geographic locations shall not be considered to be "work which exists in the national economy" for purposes of determining whether an individual is under a disability; an individual is not denied benefits on the basis of the existence of such jobs. Accordingly, where an individual remains unemployed for a reason or reasons not due to his impairment but because he is unsuccessful in obtaining work he could do; or because of the hiring practices of employers, technological changes in the industry in which he has worked, or cyclical economic conditions; or because there are no job openings for him or he would not actually be hired to do work he could otherwise perform, he individual may not be considered under the disability as defined in § 410.402(b).

(c) Where an individual with a marginal education and long work experience (e.g., 35 to 40 years or more) limited to the performance of arduous unskilled physical labor is not working and is no longer able to perform such labor because of pneumoconiosis of the level of severity specified in paragraph (b) of this section and, considering his age, education, and vocational background is unable to engage in lighter work, such individual may be found to be under a disability. On the other hand, a different conclusion may be reached where it found that such individual is working or has worked despite his impairment (except where such work is sporadic or is medically contraindicated) depending upon all the facts in the case. In addition, an individual who was doing heavy physical work at the time he suffered such impairment might not be considered unable to engage in any substantial gainful activity if the evidence shows that he has the training or past working experience which qualifies him for substantial gainful work in another occupation consistent with his impairment, either on a full-time or a reasonably regular part-time basis.

(d) When used in this section for evaluating "total disability," the term "age" refers to chronological age and the extent to which it affects the individual's capacity to engage in work in competition with others. An individual un

employed primarily because of age, however, shall not be deemed unable to engage in substantial gainful activity by reason of medical impairment.

(e) When used in this section for evaluating "total disability," the term "education" is used in the following sense: Education and training are factors in determining the employment capacity of an individual. Lack of formal schooling, however, is not necessarily proof that the individual is an uneducated person. The kinds of responsibilities he carried when working may indicate ability to do more than unskilled work, even though his formal education has been limited. § 410.404 Evidence of pneumoconiosis.

(a) A finding of the existence of pneumoconiosis may not be made in the absence of:

(1) A chest rotengenogram showing the existence of pneumoconiosis classified as Category 1, 2, 3, A, B, or C, according to the International Labor Organization (1958), International Labor Organization (1968), or Union Internationale Contra Cancer/Cincinnati (1968) Classifications of the Pneumoconioses (if the chest rotengenogram is classified as Category Z, it should be reclassified as Category 0 or Category 1 and only the latter accepted as evidence of pneumoconiosis); or

(2) An autopsy showing the existence of pneumoconiosis, or

(3) A biopsy (other than a needle biopsy) showing the existence of pneumoconiosis. Such biopsy would not be expected to be performed for the sole purpose of diagnosing pneumoconiosis. Where a biopsy is performed for other purposes, however, (e.g., in connection with a lung resection), the report thereof will be considered in determining the existence of pneumoconiosis. (b) The rotengenogram, to conform to accepted medical standards, should represent a posterior-anterior view of the chest, and such other views as the Administration may require, taken at a distance of 6 feet between the X-ray tube and the X-ray film on a 14- by 17-inch X-ray film.

(c) A report of autopsy or biopsy shall include a detailed gross (macroscopic) and microscopic description of the lungs or visualized portions of the lungs. If an operative procedure has been performed to obtain a portion of a lung, the evidence should include a copy of the operative note and the pathology report of the gross and microscopic examination of the surgical specimen. If an autopsy has been performed, the evidence should include a complete copy of the autopsy report. § 410.405 Determining medical equivalence.

(a) An individual's impairment shall be determined to be medically the equivalent of an impairment listed in the appendix to this subpart only if the medical findings with respect thereto are at least equivalent in severity and duration to the listed findings of the listed impairment.

(b) Any decision made under §§ 410.403 (a) and 410.407(a) as to whether an individual's impairment is medically the equivalent of an impairment listed in the appendix to this subpart, shall be based on medical evidence demonstrated by medically acceptable clinical and laboratory diagnostic techniques, including a medical judgment furnished by one or more physicians designated by the Secretary, relative to the question of medical equivalence.

(c) Any decision as to whether a medical test is medically equivalent to the test described in § 410.403(b) shall be based on appropriate medical evidence, including a judgment furnished by one or more physicians designated by the Secretary, relative to the question of the medical equivalence of such test.

(d) A "physician designated by the Secretary" shall include a physician in the employ of or engaged for this purpose by the Administration, the Railroad Retirement Board, or a State agency authorized to make determinations of disability.

§ 410.406 Evidence of origin of pneumoconiosis.

(a) If a miner was employed for 10 years or more in the Nation's underground coal mines and is suffering or has suffered from pneumoconiosis, it will be presumed, in the absence of evidence to the contrary, that the pneumoconiosis arose out of such employment.

(b) In any other case, a miner suffering or who has suffered from pneumoconiosis must submit the evidence necessary to establish that the pneumoconiosis arose out of employment in the Nation's underground coal mines.

§ 410.407. Cessation of disability.

(a) Where it has been determined that a miner is totally disabled under § 410.402 (b), such disability shall be found to have ceased in the month in which his impairment, as established by the medical evidence, is no longer of such severity as to prevent him from engaging in substantial gainful activity.

(b) Except where a finding is made as specified in paragraph (a) of this section which results in an earlier month of cessation, if a miner is requested to furnish necessary medical or other evidence or to present himself for a necessary medical examination by a date specified in the request and the miner fails to comply with such request, the disability will be found to have ceased in the month within which the date for compliance falls unless the Secretary determines that there is a good cause for such failure.

§ 410.415. Death due to pneumoconiosis.

(a) A miner's death will be determined to have been due to pneumoconiosis if the miner suffered from a chronic dust disease of the lung which meets the requirements of § 410.402(a); or

(b) If a deceased miner was employed for 10 years or more in the Nation's underground coal mines and died from a respirable disease, it will be presumed, in the absence of evidence to the contrary that his death was due to pneumoconiosis. Death will be found due to a respihable disease when death is ascribed to a chronic dust disease, or to another chronic disease of the lung. Death will not be found due to a respirable disease in those cases in which the disease reported does not suggest a reasonable possibility that death was, in fact, due to pneumoconiosis (e.g., cancer of the lung, disease due to trauma, pulmonary emboli); or (c) Under circumstances other than those in paragraphs (a) or (b) of this section, the claimant must submit the evidence necessary to establish that the miner's death was due to pneumoconiosis and that the pneumoconisosis arose out of employment in the Nation's underground coal mines.

§ 404.421. Provisions incorporated by reference.

The standards and procedures set out in sections 404.1501 (c), 404.1507, 404.1523, 404.1524, 404.1525, 404.1526, 404.1527, 404.1528, 404.1529, 404.1530, 404.1531, 404.1532, 404.1533, and 404.1534 of Part 404 of this chapter apply, so far as applicable, to claims for black lung benefits, except as otherwise provided in this subpart.

APPENDIX

A miner with pneumoconiosis, as evidenced in § 410.404 of this part, plus one of the following sets of medical specifications, may be found to be under a total disability, in the absence of evidence rebutting such finding:

(a) Airway obstruction demonstrated on spirogram by MVV and FEV1 equal to or less than the values specified in the following table:

(2) Total vital capacity equal to or less than the values specified in the following table:

V.C. equal to or less than (L.)

1.2

1.3

1.3

1.4

1.4

1.5

1.5

1.6

1.6

1.7

1.7

1.8

1.8

1.9

1.9

2.0

2.0

or

73 or more__.

(3) Diffusing capacity of the lungs for carbon monoxide less than 6 ml./mm. Hg./min. (steady-state methods) or less than 9 ml./mm. Hg./min. (single-breath methods) or less than 30 percent of predicted normal (all methods-actual value and predicted normal for the method used should be reported); or

(4) Arterial oxygen saturation at rest and simultaneously determined arterial p CO, equal to, or less than, the values specified in the following table:

(5) Cor pulmonale with right-sided congestive failure as evidenced by peripheral edema and liver enlargement, with:

(A) Right ventricular enlargement or outflow tract prominence on X-ray or fluoroscopy; or

(B) ECG showing QRS duration less than 0.12 second and R of 5 mm. or more in V1 and R/S of 1.0 or more in V1 and transition zone (decreasing R/S) left of V1; or

(6) Congestive heart failure with signs of vascular congestion such as hepatomegaly or peripheral or pulmonary edema, with:

(A) Cardio-thoracic ratio of 55 percent or greater, or equivalent enlargement of the transverse diameter of the heart, as shown on teleroentgenogram (6-foot film); or

(B) Extension of the cardiac shadow (left ventricle) to the vertebral column on lateral chest roentgenogram and total of S in V1 or V2 and R in Vs or Ve of 35 mm. or more on ECG.