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HERTZ v. SECRETARY OF HEALTH

January 27, 1977

EVA HERTZ
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES



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 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 901 et seq., after her claim was heard and denied by an administrative law judge (ALJ) and by the Appeals Council of the Social Security Administration.

 The plaintiff's decedent, John W. Hertz, committed suicide on July 8, 1971, by hanging. The easy and almost irresistible conclusion suggested by such fact, namely, that death was self-imposed and unrelated to "black lung" is one reached by the ALJ and the Appeals Council, but without careful analysis of the record.

 The decedent's employment as a "miner" was, in the language of the ALJ, "at least twenty years or more" (R. 10). During all of that time he was subjected to the precise conditions adversely affecting health contemplated by the Act under which this claim was filed. The decedent's long years of employment in the mines, more than twenty years, entitles the plaintiff to all the presumptions available under the Act and the ALJ so stated:

 
"Now, Counsel, let me state that the exhibits that have been entered into the evidence and made a part of it, to me amply demonstrate coal mine employment of sufficient length to give claimant the benefit of any presumptions that the law allows. And for that reason, I think testimony as to the length of the employment is superfluous. * * *" (R. 38)

 The plaintiff lived with the decedent and was dependent upon him throughout their entire marriage, commencing May 20, 1934 (R. 39). He did nothing, during his entire life time, other than mining (R. 41). He ceased working about the middle of June, prior to his death in July, 1971 (R. 41). This resulted from his inability to breathe and walk described as "short-winded" (R. 42) a classic symptom of pneumoconiosis resulting from extended employment as a miner. Over the years, as his condition worsened he worked less than a full week, sometimes "two or three days". This situation had prevailed for about 10 years prior to his death (R. 43). The employer's statement that his "absenteeism was minimal" (R. 132) does not, contrary to the ALJ's conclusion, disprove the plaintiff's assertions because two or three day work weeks were not unusual in the anthracite industry. The ALJ's reliance on the employer's statement (R. 11) was misplaced. It was neither credible nor substantial in the light of plaintiff's uncontradicted and subsequently corroborated testimony:

 
"Q. Now, the last mine he worked for was for the Philadelphia and Reading Coal and Iron, is that correct?
 
A. Right.
 
Q. In the last year prior to the time he stopped working entirely in mid-June of 1971, how frequent -- how frequently would he miss work?
 
A. Oh, it was often. Every week he would miss some work. It was a day or two days, sometimes three days a week. Just about --
 
Q. When you say a day or two or sometimes three days a week, is that the number that he worked or the number that he was out?
 
A. That he was out.
 
Q. So he missed as much as three days a week in the last years?
 
A. Right, right.
 
Q. And what was the reason why he missed the last years of his life with such frequency?
 
A. Well, he was really weak. And coughing. Wasn't able to walk or walk steps.
 
Q. Did he complain of this to you?
 
A. Oh, yes, he did."
 
(R. 44)

 As his condition worsened his depression became evident to other members of the family. He was described as "a terribly depressed man" (R. 59), whose condition was becoming "progressively worse" (R. 60), and who sometimes expressed "dismay" over his condition (R. 60).

 It is this testimony which has been rejected by the ALJ based upon the limited report submitted by the employer, unsupported by actual work records and unsupported by live testimony. We believe that the evidence relied upon by the ALJ in rejecting the testimony above discussed was insubstantial. This observation necessarily leads us to a discussion of the medical evidence, portions of which may also have been relied upon by the ALJ in rejecting so completely the testimony of the plaintiff and her witnesses.

 Dr. Leroy Purcell, the decedent's attending physician, testified that he treated the decedent for pneumoconiosis commencing about 4 years prior to his death and continuing until the date of death.

 
"Q. When did he first display the symptoms of pneumoconiosis to you?
 
A. I'd say approximately four years before he died.
 
Q. I see. And did you treat him for pneumoconiosis from that time ...

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