Whitehead v. Califano

• Decision Date: 09 April 1979
• Docket Number: Nos. 78-3230,78-3231 and 78-3329,s. 78-3230
• Citation: 596 F.2d 1315
• Parties: John WHITEHEAD, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Tom GRAY, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Monette LAY, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1315

596 F.2d 1315

John WHITEHEAD, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant.

Tom GRAY, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant.

Monette LAY, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant.

Nos. 78-3230, 78-3231 and 78-3329.

United States Court of Appeals Sixth Circuit.

Argued Oct. 20, 1978.

Decided April 9, 1979.

Patrick H. Molloy, U. S. Atty., William M. Brown, Lexington, Ky., for appellant in all cases.

William Kanter, Patricia Reeves, Dept. of Justice, App. Section, Civ. Div., Washington, D. C., for appellant in Nos. 78-3230 and 78-3231.

Grant F. Knuckles, Pineville, Ky., for appellee in No. 78-3230.

Dale B. Mitchell, Mitchell & Gillum, Somerset, Ky., Bruce W. Singleton, for appellee in No. 78-3231.

Stephen C. Cawood, Pineville, Ky., for appellee in No. 78-3329.

Before EDWARDS, Chief Judge, ENGEL, Circuit Judge, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

These appeals are from orders of remand to the Secretary by Magistrate David R. Irvin, to whom the petitions of the plaintiffs were assigned by Judge Moynahan of the United States District Court for the Eastern District of Kentucky.

John Whitehead made application for social security disability benefits, Tom Gray applied for black lung benefits and Monette Lay made application for disabled widow's insurance benefits. In each case the claim was denied by a hearing examiner and the denial was affirmed by the Appeals Council. The claimants then each brought an action in the District Court for the Eastern District of Kentucky to review the decisions of the Secretary of Health, Education and Welfare.

Under the general order of the court, the clerk referred these cases to the Magistrate. The court's order of reference is as follows:

ORDER

"In accordance with Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), it is hereby ordered that the Clerk of the Court refer all actions appearing on the Frankfort, Lexington and London dockets of this Court which seek judicial review of a denial of a claim for benefits under the Social Security Act, 42 U.S.C. § 405(g), and under Part B of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, which are assigned to the undersigned Judge to the United States Magistrate at Lexington, Kentucky, for preliminary review.

"The United States Magistrate is authorized to enter such orders as are necessary to facilitate his review of said actions, including, but not limited to, orders allowing litigation in forma pauperis; orders placing parties on terms for the filing of pleadings, motions and memoranda; and orders allowing the filing of tendered pleadings, motions and memoranda. The Magistrate shall enter no order having the effect of a final determination on the merits of any such action.

"Upon completion of his review of each action referred to him under this Order, the Magistrate shall prepare and file with the Clerk of the Court a written Report and Recommendation on the issues presented so as to facilitate the decision of the Court. Upon the filing of said Report and Recommendation, the parties shall within ten (10) days thereafter file with the Clerk of the Court their particularized objections to the same and for oral argument, if desired. At the expiration of the ten (10) day period, the Clerk shall forward the entire record in the action, including the Magistrate's Report and Recommendation and all objections thereto, to the undersigned Judge for final consideration and determination on the merits.

"This 2nd day of February, 1977.

" (signature)

"Bernard T. Moynahan, Jr.,

Chief Judge"

Whitehead's complaint in the district court was filed on May 21, 1976, and, in response thereto, the Secretary filed an answer on August 24, 1976, together with a transcript of administrative proceedings before the hearing examiner. Thereafter, Whitehead filed a motion for summary judgment in February, 1977. The Secretary filed a similar motion in March, 1977.

Subsequently, Whitehead suffered a myocardial infarction and moved for permission to file a June 6, 1977 report of his treating physician, Dr. Emanuel Rader. In addition, he filed a motion for remand of his case to the Secretary for consideration of new evidence. Magistrate Irvin entered an order allowing the Secretary twenty days in which to respond to Whitehead's motion for report and remand. Whitehead amended his motion and sought to attach a January 10, 1978 report of Dr. Rader.

On January 24, 1978, the Secretary moved for an extension of time until February 23, 1978, within which to respond to Whitehead's motions. This motion was granted by the Magistrate in an order of February 2, 1978. However, by order of February 7, 1978, the Magistrate remanded the case to the Secretary for further administrative procedure. Thereupon, on March 21, 1978, the Secretary filed his notice of appeal from the order of the Magistrate.

In response to Gray's complaint in the district court filed August 6, 1975, the Secretary filed an answer together with a transcript of administrative proceedings before the hearing examiner. Thereafter, on March 22, 1976, the Secretary filed a motion for summary judgment. Gray then filed a motion for summary judgment on April 22, 1976.

Before any ruling on these motions Gray died and his attorney filed a motion for remand with suggestion of death. By order of October 12, 1977, the Magistrate allowed the Secretary twenty days in which to respond to the motion for remand. The Secretary filed no such response. On January 24, 1978, the Magistrate entered an order remanding the case to the Secretary for further administrative proceedings. The Secretary filed a notice of appeal from this decision on March 21, 1978.

On August 20, 1976, Monette Lay filed an action in the District Court for the Eastern District of Kentucky for a review of the decision of the Secretary denying her claim for disabled widow's insurance benefits under the Social Security Act. The Secretary filed an answer on August 20, 1976, together with a transcript of the administrative proceedings before the hearing examiner.

Thereafter, the Secretary filed a motion for summary judgment on April 13, 1977. In response, Lay filed a counter-motion for summary judgment and, in addition, she filed a motion for remand to the Secretary for the taking of further testimony. On May 11, 1977, the Magistrate entered an order allowing the Secretary twenty days within which to respond to Lay's motions. The Secretary filed a response on August 4, 1977, and, on March 22, 1978, the Magistrate issued an order remanding the case to the Secretary. This order is as follows:

"The plaintiff has filed a motion to remand this action to the Appeals Council of the Social Security Administration for additional consideration and review and in support thereof has filed the medical report of Dr. Robert B. Matheny which discloses the results of a May 25, 1976, physical examination of the plaintiff. The defendant has filed a response in opposition to the motion to remand.

"20 C.F.R. § 404.1506 states that the Listing of Impairments in the Appendix describes impairments which are of a severity level deemed disabling and are expected to result in death or to last for a period of not less than twelve months. Appendix § 3.02 lists specified values for forced expiration volume and maximum breathing capacity which will indicate the existence of chronic obstructive airway disease. For a person of the plaintiff's height these values are 1.2.L and 39.L/min. respectively. The medical report offered by the plaintiff indicates values of .65 L. and 39 L./min. respectively.

"While nothing in this opinion shall be construed as a determination on the merits of the plaintiff's application, it is the opinion of the Magistrate that the medical report is relevant and new evidence that could influence the Secretary's determination as to whether the plaintiff is disabled. For the foregoing reasons, it is now therefore ORDERED HEREIN AS FOLLOWS:

"(1) That the plaintiff's motion to remand be, and the same is hereby, sustained;

"(2) That this action be, and the same is hereby remanded to the Secretary of Health, Education and Welfare.

"This 22nd day of March, 1978.

"DAVID R. IRVIN

"David R. Irvin, U. S. Magistrate"

On May 19, 1978 the Secretary filed a notice of appeal from this order of the Magistrate.

The procedural posture of the Secretary's efforts to object to Judge Moynahan's order of reference and Magistrate Irvin's remands may be summarized as follows: The order contemplated that the Magistrate shall prepare and file with the clerk his findings and a written recommendation. The parties would then have ten days in which to file their objections to the report. No reports and no recommendations were filed by the Magistrate and no objections were made by the Secretary. In this status of the cases, the Secretary sought to perfect three direct appeals to this Court, one in each of the three case...