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LISEFSKI v. WEINBERGER

November 10, 1975

MRS. ANNA LISEFSKI
v.
CASPAR WEINBERGER, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: GORBEY

 GORBEY, J.

 This is a suit to review the final decision of the Secretary of Health, Education and Welfare, which had denied the plaintiff's claim as the widow of a miner for "black lung" benefits pursuant to §§ 411(a) and 412(a)(2) of the Act, 30 U.S.C.A. § 921(a) and § 922(a)(2). The court has jurisdiction exclusively pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) as incorporated by reference through § 413(b) of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 923(b).

 Section 205(g) provides, inter alia, that:

 
" As part of his answer, the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based."

 And that:

 
" The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for a rehearing."

 It further provides that:

 
" The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .".

 The only issue before the court is whether the final decision of the Secretary is supported by substantial evidence. The deceased miner was born March 13, 1929, and he died on February 21, 1956. The marriage of the deceased miner and the plaintiff occurred on July 2, 1950. Her testimony, along with the decedent's tax and Social Security records establish that her husband had been employed in the anthracite coal stripping industry for approximately eight years. (Tr. 24-28, 36-37, 65-78) While the plaintiff testified that her husband had driven a truck around the mines beginning at age sixteen which would be after March 13, 1945, such testimony was not supported by the exhibits which indicate that the first earnings of the deceased were in the year of 1947; this would indicate a work period of no more than eight years. Thus, the exhibits support the finding of the Administrative Law Judge that the deceased miner was employed in excess of five years in the nation's coal mines.

 With this factual situation, it is clearly shown in pages 5 to 9 in the brief in support of defendant's motion for summary judgment, plaintiff cannot invoke the presumptions afforded by 20 C.F.R. 410.456 and 20 C.F.R. 410.462. Accordingly, the burden was upon the plaintiff to prove that her husband was totally disabled due to pneumoconiosis at the time of his death.

 A search of the record indicates that the only evidence in support of the claim that the miner had pneumoconiosis or any other respiratory ailment is that of the plaintiff herself. There is no x-ray, biopsy, or autopsy evidence, no results of other medical tests, no evidence of co-workers, friends or neighbors or physicians who might have had knowledge of his physical condition. None of the doctors who are alleged to have treated the deceased were living at the time of the hearing, although Dr. Moyer, who plaintiff testified had been treating her husband for asthma, was still living on June 27, 1973. (Tr. 81-82). Neither the hospital reports nor the death certificate refer to the alleged breathing difficulties. The decedent's medical report indicates that he had entered Locust Mountain Hospital complaining of severe abdominal pains. (Tr. 87) The death certificate as indicated by Exhibit No. 18 lists "acute hemorrhagic pancreatitis" as the direct cause of death.


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