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BIRMINGHAM v. SECRETARY OF HEALTH

January 13, 1977

JOSEPH BIRMINGHAM
v.
THE SECRETARY OF HEALTH, EDUCATION AND WELFARE OF THE U.S.



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Before this Court are cross-motions for summary judgment filed by the plaintiff and the defendant respectively. Plaintiff instituted an action in this Court for benefits under the Federal Coal Mine Health and Safety Act, 30 U.S.C. ยง 921, et seq. after his claim was heard and denied by an Administrative Law Judge (ALJ) and by the Appeals Council of the Social Security Administration.

 A crucial and threshold issue is the number of years during which the plaintiff was employed in the anthracite mines. The Administrative Law Judge (ALJ) has found that such employment existed for a period not exceeding five years (R. 20). The issue is crucial for several reasons, not the least of which is the effect the period of employment has upon the presumptions available to the plaintiff. As the ALJ said:

 
"* * * Since the claimant had less than 10 years of coal mine employment, he does not have the advantage of the presumption period." (R. 16)

 The period of employment also affects the plaintiff's ability to meet the requirements as to "forced expiratory volume". The ALJ stated:

 
"The miner is shown to be 65 inches tall and under appropriate regulations (where the miner has less than 10 years of coal mine employment) it is required that he have a forced expiratory volume in one second (FEV (1)) equal to or less than 1.6 liters and a maximum voluntary ventilation (MVV) equal to or less than 60 liters per minute."
 
(R. 17, 18)

 The ALJ further stated:

 
"Even though there is some indication of a respiratory impairment, there is not sufficient evidence to establish that it was a direct result of his limited coal mine employment."
 
(R. 19)

 Thus, the importance of the duration of coal mine employment becomes self-evident. It affects the medical issues, it affects the factfinder's evaluation of the evidence and may well determine the ultimate outcome of the case. It is important to both parties and of utmost importance to the plaintiff.

 In reaching his conclusion that the plaintiff's employment in the mines did not exceed five years (see finding of fact #3, R. 20) the ALJ stated that his finding was based on the "best evidence":

 
"* * * Based on the best evidence it is the opinion of the Administrative Law Judge that the claimant was employed as a coal miner for a period not exceeding five years."
 
(R. 16)

 The "best evidence" relied upon by the ALJ was obviously the Social Security records alluded to in his prior discussion. (R. 15) This reliance and the result is both understandable and expected. The ALJ not being from the anthracite region and knowing nothing of its history could not possibly understand the plaintiff's contention of 18 years in the mines, only five of which are reflected on the Social Security records. Regrettably, he was given no opportunity to understand this possibility at the time of the hearing. Perhaps, he afforded himself no such opportunity. The ALJ himself conducted all the direct examination and he examined this rather dull and unresponsive plaintiff at length as to Social Security payments:

 
"Q. All right. Now was social security held out on you for, on each of these employers?
 
A. Ah, don't know what you mean, ah --
 
Q. Did they hold out social security, these men you worked for?
 
A. They paid social, in, some ...

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