UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 24, 1975
SECRETARY OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES OF AMERICA
The opinion of the court was delivered by: TROUTMAN
MEMORANDUM AND ORDER
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 self-employed she says.
MR. BASHORE: No, she does not mean -- (interrupted)
ADMINISTRATIVE LAW JUDGE: That's what she says. Will you listen to me, then, counselor, please, I'll give you a chance to examine her thoroughly later as to what she means when she says he was self-employed. Right now she told me self-employed, I know what that means. All right, please.
MR. BASHORE: May I interrupt, your honor?
ADMINISTRATIVE LAW JUDGE: I don't want your opinion now, I want hers." (pp. 44 and 45)
The judge refused to look at certain records produced by counsel suggesting that they be submitted later (pp. 46 and 47). He incorrectly read those figures which he took the time to read.
"ADMINISTRATIVE LAW JUDGE: All right, it covers the year 1929. It says amount due $100.00, what does that $100 mean?
MRS. GRAVER: I think you'll find that that's one dollar dues." (p. 47)
He then criticized the evidence as having no probative value (p. 48). When the plaintiff produced certain additional papers, resulting from his questions, he refused to look at them but suggested that they be submitted to counsel and later submitted within "two weeks" (p. 49). He refused to entertain comments or questions by counsel, but ultimately asked the plaintiff, a widow and layman, or layperson, "Tell me why you feel that you are entitled to black lung benefits?" (p. 51) When she answered him, as best she could, he argued with her (p. 52). When finally, counsel was given the opportunity to examine, he was cautioned not to be "repetitive" of the already repetitious and sometimes irrelevant and argumentative examination by the law judge (p. 52). Counsel asked exactly three questions when he was interrupted by the judge and accused of leading the witness (p. 53). Those questions were preliminary in nature and hardly justified the immediate charge that the attorney was putting his "finger in her mouth" (p. 53). Counsel was then permitted to ask exactly 40 questions (pp. 53-58) when he was interrupted (p. 58). These interruptions continued, sometimes in an obvious and most conclusionary manner, as follows in connection with counsel's efforts to examine the plaintiff:
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