APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before Hunter and Weis, Circuit Judges, and Layton,*fn* District Judge.
In this case Thaddeus Kane, a former coal miner, appeals an order of the district court granting summary judgment for the Secretary of Health, Education and Welfare denying Kane benefits under the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 801, Et seq. Because the trial judge did not address adequately Kane's request to remand the case to the Secretary, we remand to the district court for further proceedings.
Kane was born in 1905, and according to his testimony and the affidavits of several co-workers, worked in the mines from 1920 to 1942. In the mines, Kane held a number of jobs, including that of mine electrician and mine hoist engineer.
After service in the army from 1942 to 1945, the claimant worked at a number of non-mining jobs until 1953, when he took a position as an electrician at the Tobyhanna Army Depot. He worked at Tobyhanna from 1953 until December 28, 1973.
During the last years of Kane's employment at Tobyhanna, he suffered from deep coughing spells and shortness of breath. The coughing spells brought on a hernia, which recurred even after hospitalization. The shortness of breath and the coughing were such that Kane testified that he "could feel his heart pound" when he attempted to climb a ladder. Kane attempted to stay on the job until 1975, since at that time he could qualify for a larger pension on reaching age seventy. However, by the end of 1973, his shortness of breath was such that he could not continue his work.
In October 1970, Kane filed a claim for benefits under the Federal Coal Mine Health and Safety Act of 1969, stating that he was disabled as a result of pneumoconiosis. His application was denied initially in February 1971, and after reconsideration in June 1973. Kane then requested a hearing before an administrative law judge, which was held in March 1975.
The ALJ determined that Kane was not entitled to benefits as of June 30, 1973, the date at which the Secretary of Health Education and Welfare ceased to have jurisdiction over claims arising under the Act. See 30 U.S.C. § 925. He determined that although the claimant did not present evidence in the nature of x-rays or pulmonary function studies that would entitle him to a rebuttable presumption of total disability due to pneumoconiosis, Kane nevertheless presented sufficient other relevant evidence that At the time of the hearing he suffered from a totally disabling chronic respiratory or pulmonary impairment. See 20 C.F.R. § 410.414(b)(1). Because of Kane's employment in the mines, the ALJ noted that under the regulations, the impairment was presumed to be pneumoconiosis and to have arisen out of Kane's employment in the mines. See id. §§ 410.414(b)(1) & 410.416(a). The ALJ determined, however, that as of June 30, 1973 Kane's lung condition was not totally disabling within the meaning of the Act.
The ALJ stated that the work performed by the claimant throughout 1973 was closely related to his employment as an electrician in the mines. Further, since Kane had worked full time during the year, at a rate of pay of $4.96 per hour, the ALJ determined that Kane had been engaged in " "comparable' and "gainful' employment . . . until at least December 28, 1973, utilizing skills and abilities similar to those utilized in coal mine employment." See 20 C.F.R. §§ 410.412(a) & 410.426. Thus he held that the Secretary was without jurisdiction to award benefits to Kane.
The Appeals Council affirmed the decision of the ALJ. Kane then instituted suit in the district court for the Middle District of Pennsylvania, pursuant to 42 U.S.C. § 405(g), for review of the Secretary's decision. The Secretary moved for summary judgment.
Kane, represented by counsel for the first time in the district court, submitted affidavits in opposition to the Secretary's motion. These affidavits, provided by Kane himself and by James Benton, Kane's supervisor at Tobyhanna, involved the nature of the work Kane was performing during the last years of his employment.
The district court granted summary judgment for the Secretary. The court agreed with the decision of the Secretary that Kane was not totally disabled as a result of pneumoconiosis as of June 30, 1973. The court, however, based its decision by comparing Kane's work at Tobyhanna during the first part of 1973 with his work in the mines as a mine hoist engineer, and did not rely on the ALJ's determination that the claimant's work as a mine electrician was comparable to his work at Tobyhanna.
Concerning the basis for the ALJ's determination that Kane was engaged in comparable and gainful work as of June 30, ...