Verna M. Collins v. F. David Mathews, Secretary of Health, Education and Welfare
547 F.2d 795
4th Cir.
1976
Check Treatment

*2 WINTER, HALL, Before CRAVEN and This was established by cumulative reports Judges. and interpretations. The Appeals Council Richardson, 773, See ployment Blalock 483 F.2d in a mine or mines in which the previously engaged regularity with some period over of time. disability” 2. “Total is defined in terms of the 902(f). U.S.C. § given meaning regulations of the Sec- retary HEW, except the Coal Mine 3. “Pneumoconiosis” is defined as a chronic Safety Health Act of as amended lung arising dust disease employ- of the out of Lung Black Benefits Act mandates 902(b). ment in a coal mine. 30 U.S.C. § regulations provide that such shall that a miner when, shall be considered as a fully qualified 4. The claimant otherwise for pneumoconiosis, result of he is en- unable to widow’s benefits. 20 CFR 410.210. gage employment requiring the skills and abilities to those of necessity Health, willingness economic Education Department for able, management sympa- felt finding as that work adopted and Welfare the deceased and denying thy provided light for for The basis Secretary. him, her even could not for benefits labor application widow’s regularly. The record further her husband reflects showing that failure *3 miner pre- great pain the deceased suffered pneumoconiosis, to due totally working or comparable During not. the last engaging in whether from venting him life, only $1,243. his he earnings record of earned six months The work. gainful and low, considerably miner, pov- was held amount below the although This deceased erty to a level.6 warrant sufficiently consistent to gainfully he had been declaration a substan- regularity over with some

ployed II. Even Collins time.5 period of tial THE BELOW RULINGS to work much of sick work, was too he testimony ground were denied on the Benefits uncontradicted The the time. show that only one-third failed to at the time work the widow could that he was death, life, he he was year husband’s dis- last of her time. able, pneumoconiosis. was and With he due to the de- work when abled just “would having at a time established the two weeks miner exist- ceased maybe sometimes a simple pneumoconiosis, that he couldn’t rebuttable be down ence he’d shots arises widow is enti- get he’d presumption . two or benefits. 30 to work to the U.S.C. be able tled maybe he’d and affirmed, The deceased In his decision which was next week.” 921. days the three work- Law as “sometimes held that a the Administrative described He part of his life. rebutted evidence presumption latter during the er” doing when he could his usual mines the miner in the to work tried work, children to wife and four and had a mine he because way 410.490(c); no he knew other 20 CFR 30 because work. and support, a 902(f). had no more than living. He make a to education, military experi- no grade seventh training. When it

ence, no vocational III. so, to he worked possible do physically AND DISCUSSION REASONS strong will of his mines because the coal REVERSAL FOR physical accept He refused do so. to. to living totally be forced into are certain limited circum and thus There defeat Up can, until Col- through which miner benefits. under welfare stances from determination, loader”, requir- joba continue to work a “coal as sheer worked lins After disabled. In effort. 1964 order qualify still strenuous category this narrow of “working Collins was within unfortunate fit up until disabled”, necessary operating ma- for claimant to tasks such as lighter given that the miner’s work attendance was jobs. odd Because doing other show chines Earnings Security Administration Year of the Social Records 2,453.50 miner’s the deceased reveal 1964 years be as follows: 3,224.04 of his life to last 9'/a months) 1,243.00 (6 Earnings According United Bureau of to the States $3,169.94 Statistics, poverty statistics for West Labor 2,998.12 poverty Virginia the maximum show 2,265.92 $4,135 family this size to an for a level 2,448.85 area, $2,900 ain rural area. Based urban 2,995.63 record, family fit in would 2,502.54 Collins on the 3,544.88 category. the rural performance congenital had poor, sporadic, his and his marked curvature of the marginal.7 spine, Dellosa and could Weinberger, not stoop, lift, bend or (E.D.Pa.1974), presents F.Supp. pain suffered he sat for more than 10 to the instant case. situation similar constantly minutes and while standing. Dellosa, coal miner a deceased had worked The fact that he chose to work daily as a and suffered at in coal mines for family support dishwasher did not He was simple pneumoconiosis. from disability least bar his entitlement benefits. During the last killed in a mine accident. Although eight Leftwich was at work for hours, actually life, only he could work he worked year days of his two four to five week, day. unsatisfactorily per and then hours This without Court refused to pun- year co-workers. simply assistance from be- ish the claimant because sought he died, $2,744.46, fore he high- earned support his family, despite physical prob- *4 10 past years. est sum in the The Adminis- Further, doing so. lems in Wilson v. Judge trative Law nevertheless found Richardson, that (4th 455 F.2d 304 1972), Cir. the gainfully employed, the miner giving Court that the 1967 noted amendments to weight earnings to his record. Relying Security Act legislatively the Social modi- Security upon Ruling 73-36, Social the Dis- holding However, fied the Leftwich. if a trict Court remanded because the Adminis- worker disabled demonstrates his inability to fully substantially trative Law failed gainfully consider to be employed, such may testimony regarding the the still deceased min- claimant be entitled to disability inability perform to adequately by Wilson, er’s As evidenced his benefits. supra, work, misinterpretation of a and because may true even hold the claim- earnings record. the average earns in excess of the monthly ant set out the Secretary. maximum recognized have that a cases Other employed, yet have been totally Gardner, In Adkins v. 392 (4th pneumoconiosis job due to if disabled his 1968), Cir. this Court held that a claimant was “make-work”.8 who worked in a coal mine could neverthe- Adkins, less disabled. 902(f) 30 U.S.C. mandates that reg- claimant had worked Virginia West regarding lung ulations benefits for 35 mines was substantially illiter- provide “shall not more restrictive criteria ate, and suffered serious health maladies. applicable than those under 423(d) section worked, Although he he was physically able (Social Security Act).” of Title 42 There- to do one-third of his share. This fore, disability” if the “total test is met Court held that claimant incapaci- criteria, security under the social then total perform tated to gainful substantial disability due to black is also estab- ployment. lished. Specifically, we find that the Court disability The total criteria for one ascribing below erred in controlling signifi working were still examined in Leftwich v. cance of the deceased earnings miner’s Gardner, says record. The statute miner is a 52-year-old There we held that manual pneumoconiosis due to it pre totally and permanently laborer was dis him from engaging vents em abled, and to disability entitled benefits un ployment in a mine or mines in which he Security claimant, der the Social Act. The previously engaged with regularity Leftwich, spondylolisthesis, suffered from period over of time. It ger, Security F.Supp. (W.D.Va.1975); Ruling See Social 73-36. and Rowe Weinberger, F.Supp. (W.D.Va.1975). Felthager Weinberger, See 529 F.2d erring Lawson v. Weinber protect although the deceased miner entitlement to black lung benefits. argued worker, the min- We find law was not a “sometimes” intended to called construed, had indicates be so and is contrary public record earnings er’s same level policy. When disabled coal consistently worked miner chooses work, submits to make a heroic effort to throughout his life. even when so, physically one of unable he or provides family record to do deprived continu- objective of Collins’ should not be which measures benefits most employed, and gainfully Congress intended. ability to be wages a decrease in be- there not 1966. We find that tween IV. con- weight undue on the Secretary placed throughout the miner earnings of sistent CONCLUSION out, points As the claimant lifetime. The claimant is entitled to widow’s black notice,9 judicial during we take to this lung benefits. of the deceased miner’s years last 10 par- increased. This was life, wages most REVERSED. ticularly the coal fields of West Vir- so in Yet, his the miner worked.10 where ginia WINTER, Circuit Judge (dissenting): year year not rise from record, my analysis From I can Thus, real his co-workers. *5 those of neither conclude that the Secretary’s find- earnings, a in rate reflects decrease wage ing that decedent was not dis- to the record as whole according pneumoconiosis abled from time the miner’s lack of regular- reflects likewise is not supported death substantial Congress specifically requires ity in work. evidence, only nor that the substantial evi- able work “with requires dence the converse I re- finding. coal miner regularity”, which deceased spectfully dissent. able to do. wasn’t principal support evidence to the Sec- that, argues The Secretary rather than retary’s finding is the record of lung problem that became serious proving It deceased. shows that for the full worse, proffered by evidence progressively eight years prior to his her hus- the claimant indicated deceased remained relatively constant. is The record capacity to work. is able This band’s silent as to the average hourly wage in the shown, submits, because Virginia throughout fields West planning to take off work for his crucial period and this is not matter of just any regular vacation scheduled judicial which I feel free to take knowledge. groundless. argument This It ployee. mind, To my the majority’s inference knowledge the coal fields that common only Collins worked because “management vacation” comes in the mid- when “miner’s felt sympathy provided . and light summer, every the mines close for dle labor for him” is unwarranted. His earn- regardless This two weeks. occurs ings shows record that he divers worked for you well, regularly whether are sick or employers. One could infer from that fact employed or not. very it was unlikely per- that Collins Certainly formed By denying benefits where evidence dem- “make-work.” Secretary was “totally required miner to be disabled” not draw the onstrates inference; statutory meaning, majority’s coal miners he could well draw within quit suggested order would motivated me. judicial pay 10. notice of a matter of rate of Mine

9. This Court took increase United Celebrezze, knowledge in v. Workers of Cooke America from to 1966 common Labor, Dept. Bureau of Statistics 34.25%. 9-14, 1799, (1973), Wage Chronology, 17. Bull. Overall, Deas, Joseph Jr., I do not doubt that at the time of appellant pro se. engaged “in his death Collins Potts, Jack appellee pro se. employment requiring skills and abili- to those of employment ties RUSSELL, Before Circuit Judge, FIELD, a mine or mines in which previously [he] Judge, Senior WIDENER, Cir- engaged with some regularity and over a Judge. cuit period of time.” 30 U.S.C. 902(f). It finding follows that the that he PER CURIAM: not disabled should be unassailable. Deas, Jr.,

Joseph seeks to sue under 42 1983 the attorney whom he re- represent tained to him in a criminal mat- alleges ter. He representation op- deprive erated to him of his constitutionally guaranteed to the effective assistance ri£ht and, counsel, further, that the defendant Joseph DEAS, Jr., Appellant, $1,000 failed to return to Deas after he was discharged. The complaint seeks recovery $1,000 of this as well as additional amounts Attorney POTTS, Appellee. Jack compensatory and punitive damages. No. 76-2390.* private A attorney who is retained to United States Appeals, Court of represent a criminal defendant is not acting Fourth Circuit. law, under color of state and therefore is not amenable to suit under § 1983. Nelson 1, Submitted Oct. Stratton, 14, Decided Dec. denied, cert. U.S. 93 S.Ct. (1973); Szijarto

L.Ed.2d v. Legeman, *6 Cir. 1972); Shelton v. Randolph, 373 F.Supp. 448 (W.D.Va.1974). Deas he so desires—attack his con —if viction on the basis of represen ineffective tation of counsel filing pursuant to 28 petition U.S.C. 2254 a for writ of habeas corpus.

Accordingly, leave proceed in forma pauperis granted and the judgment of the district court affirmed. * Formerly 76-8258.