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GRAVER v. SECRETARY OF HEALTH
November 24, 1975
SECRETARY OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES OF AMERICA
The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
This is a suit to review the final decision of the Secretary of Health, Education and Welfare who has denied the plaintiff's claim, as the widow of a miner, for "black lung" benefits pursuant to 30 U.S.C. § 902 et seq., and regulations promulgated pursuant thereto. The Court has jurisdiction 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:
" (a) 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."
" (t) 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:
" (t) The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *".
Cross-motions for summary judgment have been filed. We have reviewed the transcript consisting of 143 pages, including 62 pages of testimony taken on May 28, 1974, at which plaintiff was represented by able counsel.
Initially, the Administrative Law Judge devoted four pages of the transcript to introductory remarks attesting to an open and impartial hearing, to the relaxation of the rules of evidence, including hearsay, and then proceeded to examine the plaintiff herself, suggesting that counsel would thereafter be given an opportunity to also question the plaintiff (p. 34). Such examination proceeded without substantial interruption until (p. 38) a question arose as to the meaning of the term "independent mining" which the judge interpreted as "self-employment". Efforts by counsel to explain were interrupted on two consecutive occasions (p. 39). Subsequent efforts to clarify the situation, either on or off the record, were denied (p. 43). Counsel was denied the right to explain "except through her (the plaintiff's) lips" (p. 44). Counsel's further efforts were repeatedly and consistently frustrated.
"MR. BASHORE: I may have to get some affidavits of people because I can't -- I just want to point out independent mining simply means -- (interrupted)
ADMINISTRATIVE LAW JUDGE: Oh, I know what it means, sir. I want to know what she means. He was ...
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