Dickson v. Califano
| Citation | 590 F.2d 616 |
| Decision Date | 15 February 1979 |
| Docket Number | No. 77-3054,77-3054 |
| Parties | Paul DICKSON, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Successor to David Mathews, Secretary of Health, Education and Welfare, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Lawrence H. Brenner, Toledo, Ohio, Charles R. Hollen, Tampa, Fla., Jones, Giha, Schell, Brenner, Toledo, Ohio, for plaintiff-appellant.
William D. Beyer, U. S. Atty., Patrick J. Foley, Asst. U. S. Atty., Toledo, Ohio, for defendant-appellee.
Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and PECK, Senior Circuit Judge.
Appellant Dickson appeals from denial of black lung disability benefits by the Secretary of Health, Education and Welfare, and affirmance of that denial by a United States District Judge who held it was supported by substantial evidence. These decisions have been entered in spite of the facts that 1) the Administrative Law Judge found that Dickson was suffering from a disabling, chronic lung condition, 2) government documentary evidence shows that he worked in the mines during each of 13 calendar years and 43 calendar quarters, thus apparently being entitled to the 10-year statutory presumption, 30 U.S.C. § 921(c)(1) (1976) and 20 C.F.R. § 410.490(b)(3) (1978), and 3) appellant had presented evidence from a Board certified physician who read X-rays as showing pneumoconiosis and found him totally disabled thereby.
We reverse for award of benefits.
The Administrative Law Judge, the Secretary and the District Judge all held in effect that appellant was not entitled to the presumption which Congress created for the benefit of miners who had worked 10 years in the mines, 30 U.S.C. § 921(c)(1) (1976) and 20 C.F.R. § 410.490(b)(3) (1978).
Our review of this record shows that this conclusion is not supported by substantial evidence.
Appellant, now 60 years old, testified that he had gone to work in the mines in 1936 and had been employed as a miner until 1953, when he developed breathing difficulty and his doctor advised him to leave the mines. He worked in nonmining employment until 1974 when, he testified, he could not work any more due to breathing trouble. This application was first filed May 17, 1971. Initial denial by the Secretary was vacated for reconsideration under the 1972 Black Lung Benefits Act.
Appellant testified that he was born October 6, 1918, "got thru the second grade in school" and started working in the mines at 18 in 1936 and worked until 1954. He testified that he worked "part time" in the early years due to frequent shutdowns of the "truck mines" which employed him:
Q. Before you started working full-time, did you have some other part-time job that you were doing?
A. Well, in them little old truck mines they'd run awhile and they'd shut down awhile. You'd work awhile around the mines, and then you'd go find another job, whatever you could find doing construction work, or timber work, or whatever you could find doing. Why, that's what you done.
Q. Could you give me an estimate, sir, of approximately how much time you spent in the coal mines and how much time in this other work that you did before that?
A. Well now, then, in the wintertime you'd get 5 or 6 months.
Q. Of coal mining?
A. Of coal mining. And then in the summertime, why, them little truck mines would be out.
Q. Would it be about half and half then, would you say?
A. A little around half and half.
He also testified that, starting in the 1940's, he worked full time for 11 or 12 years as a coal loader. He described his job as follows:
Q. Is that the only job you did?
A. Well, a coal loader He drilled coal. He drilled and shot his own coal, and he set his own timbers, he loaded his coal, and he laid the last 12 foot of the track.
The official records of Social Security payments show 43 separate Social Security employment tax payments by 32 different employers in 42 different quarters extending over 13 calendar years, as follows:
ANALYSIS OF PAUL DICKSON'S EARNINGS BASED ON
SOCIAL SECURITY ADMINISTRATION RECORDS
(R -- 67 through 74)
Total
Record Quarters Quarters
Year Company Page 1 2 3 4 for Year
-------------------------------------------------------------------------------
1941 Wise Coal 67 X 1
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1942 Burtons-Ford 67 X 1
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1943 Fraser-Brace 67 X
35-0603175 * 67 X X X 4
Std. Banner 67 X
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1944 Fraser-Brace 67 X X
Brooks 68 X 4
Myers X X
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1945 Brooks 68 X
Lay & Hall 68 X X
Richmond 68 X
Divina 68 X X 4
Mountain 69 X
54-1357535 * 69 X
54-1448333 * 69 X
54-1455390 * 69 X
-------------------------------------------------------------------------------
1946 Mountain 69 X X
54-1455390 * 69 X 4
54-0456822 * 69 X
Adkins & Kern 70 X
-------------------------------------------------------------------------------
1947 Adkins & Kern 70 X
Lattimore 70 X 4
Sproles 70 X
Mountain 69 X X X X
-------------------------------------------------------------------------------
1948 Mountain 69 X X X 4
Harry's 70 X
-------------------------------------------------------------------------------
1949 Mountain 69 X X 4
Dry Fork 70 X X
-------------------------------------------------------------------------------
1950 Mountain 69 X X 3
Barker 71 X
-------------------------------------------------------------------------------
1951 Sullivan 71 X
Moore & Son 71 X
Phillips 71 X
54-0545325 * 71 X 4
T.A. Jerry 70 X
Yates & Stallord 71 X X X
-------------------------------------------------------------------------------
1952 Hall & Son 70 X
Peery 70 X X 2
54-0548447 * 70 X
-------------------------------------------------------------------------------
1953 T.A. Hall 70 X X
Star 71 X 3
T.A. Perry 71 X
Stallord & Yates 71 X
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Total Quarters in which Income Received, Coal Employment 42
* The Records contain only the employer's number, not its name.1/5
We have likewise examined the more detailed Social Security earnings statements from individual employers which were introduced before the ALJ. As the District Judge noted, the ALJ clearly misconstrued these records by failing to observe that for a number of quarters, where only minimal earnings were shown by a particular employer, there were also earnings reported by one or more additional employers. It also appears to us that the ALJ and the District Judge failed to take into account the great difference in hourly wages paid in the mines in the early years of appellant's employment when compared to either the last years of his mining employment, or, of course, the present.
The 10-year presumption upon which appellant relies provides:
(3) With respect to a miner who meets the medical requirements in subparagraph (1)(ii) of this paragraph, he will be presumed to be totally disabled due to pneumoconiosis arising out of coal mine employment, or to have been totally disabled at the time of his death due to pneumoconiosis arising out of such employment, or his death will be presumed to be due to pneumoconiosis arising out of such employment, as the case may be, if he has at least 10 years of the requisite coal mine employment. 20 C.F.R. § 410.490(b)(3) (1978).
We also have available a detailed statement of legislative purpose applicable to the 15-year and 10-year presumptions created by the 1972 Act:
REBUTTABLE PRESUMPTION
The bill reported to the Senate, H.R. 9212 as amended, establishes a rebuttable presumption that a totally disabled coal miner who worked in an underground mine for 15 years or a surface miner who was...
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...277 (1983); Lawson v. Secretary of Health and Human Services, 688 F.2d 436 (1982); Miniard v. Califano, 618 F.2d 405 (1980); Dickson v. Califano, 590 F.2d 616 (1978). 28. The Court of Appeals also relied upon evidence that an early draft of the regulation contained a provision that "would h......
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Moore v. Califano
...on appeal to the courts, when the 1977 Reform Act was passed. This Circuit has answered the question inconsistently. In Dickson v. Califano, 590 F.2d 616 (6th Cir. 1978), this Court held the claimant was entitled to a ten-year statutory presumption under the 1977 Reform Act and that the 197......
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Back v. Califano
...the Black Lung Benefits Reform Act of 1977 and regulations promulgated thereunder, we need not reach this issue at this time. Dickson v. Califano, 590 F.2d 616 (6th Cir. 1978, after the majority in the present appeal had arrived at their decision) is inapposite. The Administrative Law Judge......