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SACCO v. MATHEWS

November 9, 1976

NICKLAS SACCO
v.
DAVID MATHEWS, AS SECRETARY OF HEALTH, EDUCATION AND WELFARE



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 This is a so-called "Black Lung" case arising under Part B, Title IV of the Federal Coal Mine Health and Safety Act, 30 U.S.C. 901 et seq. Said Act establishes a program for the payment of benefits to living miners who are totally disabled due to pneumoconiosis arising out of coal mine employment and to the dependents of miners who die due to pneumoconiosis, or who were totally disabled due to pneumoconiosis at the time of their death.

 The Administrative Law Judge (ALJ) has made, inter alia, the following findings:

 
"(2) The claimant is not now, nor was he heretofore, an employee in a coal mine.
 
* * *
 
(4) The claimant has no history of coal mining employment."

 Benefits were accordingly denied.

 Judicial review is normally limited to determining whether the findings of the Secretary are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Here, however, the crucial finding; i.e., that the plaintiff was not a miner, is based upon the failure of the plaintiff to meet his burden of proof.

 The basis for the ALJ's findings is best stated by him in his evaluation of the evidence from which we quote as follows:

 
"Section 410.110(j) of Regulations No. 10 of the Social Security Administration, as amended September 30, 1972 (20 CFR 410.110(j)) provides:
 
'"Miner" or "coal miner" means any individual who is working or has worked as an employee in a coal mine, performing functions in extracting the coal or preparing the coal so extracted.'
 
"Section 410.110(m) of Regulations No. 10 of the Social Security Administration (20 CFR 410.110(m) provides in part:
 
"By his application (Exhibit 1), claimant indicated he was employed at Locust Mountain Coal Company from 1926 until 1931, and thereafter, at three facilities of Pennsylvania and Reading Coal and Iron Company from 1931 until 1941. As of December 2, 1971, it was determined by the Social Security Administration that the claimant was disabled from hypertensive vascular disease and angina pectoris (Exhibit 6) and that he had been the operator of a bar and restaurant for the twenty-four years prior thereto. Certification of court record (Exhibit 7) shows that marriage license application of August, 1935 listed claimant's occupation as 'shoemaker'. He first applied for Social Security account number, as a self-employed person, in May, 1941 (Exhibit 8). Report of contact indicated that claimant was not listed as an employee on the records of Pennsylvania and Reading Coal and Iron Company, which maintained excellent records of employees after 1934 (Exhibit 11). Further report of contact (Exhibit 12) indicates vagueness and evasiveness as cause of suspicion of his alleged coal mine employment, noting he admitted he 'had trucked and hauled coal for several years', could not give dates or places of work for a coal mine operator, and was unsure if he had belonged to a union or which union. Claimant was held to be disabled by anthracosilicosis on June 6, 1972, after fifteen years' mining employment, by the Workmen's Compensation Board of Pennsylvania (Exhibit 14). It is noted that claimant and one physician were the sole witnesses. Disability interview of 1971 (Exhibit 15) indicates difficulty in eliciting data from claimant, with, 'I am very forgetful'. History given Dr. Platt (Exhibit 20) by claimant indicates he spent approximately ten to twelve years in the mines; * * *.
 
* * *
 
"After testifying to employment at those places indicated upon the supporting statements mentioned and in the application, for the period 1926 until 1941, claimant was examined further by the administrative law judge. He did not know if he had paid tax on coal mine earnings; he did not remember about taxes; he did not know whether Pennsylvania and Reading Coal and Iron Company had paid taxes for itself or taxes for him. Faced with the fact that this corporation, which operates West Shenandoah Colliery, Kehley Run Colliery, and Maple Hill Colliery, maintains employment records and pays into Social Security those taxes withheld from employees, claimant said that he had never worked for the company. Instead, he had worked for one Barney Shoestock, an employee of that company, and a shoemaker. According to claimant, Barney Shoestock was an employee of the company, engaged in loading coal by hand."
 
(R. 10, 11, 12)

 He understandably concluded as follows:

 
"It is the conclusion of the administrative law judge that claimant has presented a case based entirely upon falsehood as to his work history. There is no persuasive evidence that he has ever been engaged as an employee in a coal mine. Those statements which support his claim of such employment are generally specific as to times and places which he now admits to be not fact. The administrative law judge therefore finds such exhibits to be without persuasive force."
 
(R. 12)

 The testimony with which we are primarily concerned is that of the plaintiff, first, on examination by his counsel, and then by the ALJ. We quote from the record the relevant testimony pertaining to the plaintiff's alleged employment as a miner:

 
"Q. After coming here did you eventually gain your citizenship?
 
A. Yes, I was a citizen before I came here.
 
Q. You were a citizen before you came here?
 
Q. All right. Now, when you came over in 1926, who did you come over with?
 
A. I come over with my mother.
 
Q. Did you work when you got here?
 
A. Yes.
 
Q. Where did you work?
 
A. Locust Coal Company.
 
Q. All right, and where was Locust Coal Company located?
 
A. On West Coal Street, all the way down to the end.
 
Q. All right, when did you begin to work for them?
 
A. 1926 I -- until about 1931, it was.
 
Q. All right.
 
A. I don't remember exactly.
 
Q. That was with Locust Mountain Coal Company in 1926 to about 1931?
 
A. That's right.
 
Q. What was your job with them?
 
A. Pick and slate breaker, was very dusty.
 
Q. Was that your job the entire time you were there picking slate?
 
A. Yes.
 
* * *
 
Q. Where did you work after that?
 
A. West Shenandoah Coal Company.
 
Q. Was that a P and R, C and I ...

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