United States Court of Appeals For the First Circuit
No. 22-1169
STEPHEN R. CROCKETT,
Petitioner,
v.
UNITED STATES RAILROAD RETIREMENT BOARD,
Respondent.
PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES RAILROAD RETIREMENT BOARD
Before
Barron, Chief Judge, Howard and Kayatta, Circuit Judges.
Riley L. Fenner for petitioner. Eunice Kirk, Office of General Counsel, United States Railroad Retirement Board, with whom Ana M. Kocur, General Counsel, Marguerite P. Dadabo, Assistant General Counsel, and Tamra J. Smith, General Attorney, were on brief, for respondent.
February 28, 2023 HOWARD, Circuit Judge. This petition for review
requires us to determine whether substantial evidence supported
the findings that underpinned the U.S. Railroad Retirement Board's
("Board" or "RRB") decision to deny petitioner Stephen R. Crockett
a disabled child's annuity under the Railroad Retirement Act
("RRA"), 45 U.S.C. § 231a(d)(1)(iii). While we may have weighed
the evidence before the agency differently had we been in a
position to do so, we nevertheless recognize that the substantial
evidence standard under which we review the agency's findings is
"highly deferential." Loja-Tene v. Barr, 975 F.3d 58, 62 (1st
Cir. 2020) (quoting Lopez de Hincapie v. Gonzales, 494 F.3d 213,
218 (1st Cir. 2007)). Mindful of that maxim, we deny Crockett's
petition.
I.
We briefly review the procedural history and factual
background of this appeal. Crockett, the son of a railroad worker,
applied in July 2015 for a disabled child's annuity under 45 U.S.C.
§ 231a(d)(1)(iii). As relevant here, that provision of the RRA
entitles unmarried children of certain deceased railroad employees
to an annuity if they (among other requirements) have developed a
disability before the age of 22. The petition for review
implicates two of the Board's findings concerning Crockett's
application: (1) that there was inadequate evidence under the
agency's regulations to support a finding that Crockett had a
- 2 - physical or mental impairment prior to age 22; and (2) that
Crockett's provision of in-home care services for his mother from
January 2001 to March 2006 constituted substantial gainful
activity and undercut his disability claim. As further discussed
below, we ultimately conclude that the first finding was supported
by substantial evidence, and tailor our discussion accordingly.1
A.
Crockett was born in 1954 and turned 22 in 1976.
Crockett stated in his annuity application that his activities
have been severely affected by an "emotional [and] psychological
disorder" beginning in March 1964, at the age of 10, and continuing
since then. He indicated that he had undergone psychiatric
treatment in March 1967 and again from 2011 through the date of
his application. Crockett also later stated before a Board
hearings officer that he underwent treatment from 1967 through
1971 and then again during the 1980s. He recalled Dr. Carlyle
Voss, the psychiatrist who treated him in the late 1960s and early
1970s, diagnosing him with schizophrenia.
When Crockett asked Voss to confirm this treatment in
2015, Voss initially did not recall having him as a patient. He
noted that any relevant treatment records had been destroyed in
1 As alluded to at oral argument, since our conclusion that the Board's first finding was supported by substantial evidence suffices to uphold its decision, and we find no error of law, we decline to address the substantial gainful activity finding.
- 3 - the decades since and that he "treated hundreds of
patients . . . over a span of 17 years." However, Voss noted that
"[i]t is probable that [he] did treat Mr. Crockett for mental
health issues in the early/mid [1970s]." Two years after this
initial letter, Voss wrote to the Board in a second letter that he
did, in fact, remember both treating Crockett "primarily to manage
Thorazine, [Crockett's] medication for a severe psychotic
disorder," and diagnosing him with schizophrenia. The letter also
indicated that Voss spoke with Crockett's "current provider" about
Crockett's condition prior to writing this second letter. In any
case, the diagnosis that Voss recalled would be consistent with
that of his current treating psychiatrist, Dr. Leora Rabin, who
also concluded over the course of her treatment of Crockett that
he suffers from schizophrenia.
Also relevant to this appeal is Crockett's application
to the Social Security Administration ("SSA") for disability
benefits in September 2010. Crockett amended his disability onset
date before the SSA, but at no point did he argue that he was
disabled before the age of 22. An Administrative Law Judge ("ALJ")
ultimately granted Crockett's Social Security disability
application, finding him "disabled as of July 14, 2010 because of
schizotypal personality disorder so severe that it meets the
requirements of one of the impairments listed in [SSA guidance]."
- 4 - B.
Crockett has had his claims reviewed four times by the
agency since he submitted his annuity application in 2015, as he
is entitled to under the Board's regulations. See 20 C.F.R.
§ 260.1 (initial decisions); § 260.3 (requests for
reconsideration); § 260.5 (appeal from a reconsideration
decision); § 260.9 (appeal from a decision of a hearings officer
to the Board). Board staff initially denied his application on
the basis that "there [was] insufficient medical evidence"
establishing that he was disabled prior to age 22, and staff
reaffirmed this denial on the same basis several months later on
reconsideration. Crockett then appealed the reconsideration
decision to the Board's Bureau of Hearings and Appeals. A hearings
officer took Crockett's testimony by videoconference in November
2018; Crockett was represented at this hearing by his social
worker. The hearings officer found that Crockett was not disabled
for purposes of the disabled child's annuity both because there
was no medical evidence supporting a physical or mental impairment
prior to age 22, and because his home care work constituted
substantial gainful activity under Board regulations. The officer
concluded so on the basis of Crockett's testimony and several other
forms of evidence, ranging from Crockett's high school transcript
to SSA wage data. The three governing members of the Board then
- 5 - affirmed the hearings officer's decision on largely the same
grounds. This appeal followed.
II.
Section 8 of the RRA vests us with jurisdiction to review
the Board's eligibility determinations for statutorily derived
benefits. See 45 U.S.C. § 231g.2 We will affirm the Board's
determination as long as "substantial evidence exists to support
[its] findings[] and . . . there is no error of law." Sansone v.
U.S. R.R. Ret. Bd., 159 F. App'x 210, 211 (1st Cir. 2005).
"Substantial evidence is 'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Id.
(quoting Richardson v. Perales, 402 U.S. 389, 399 (1971)). To
that end, "[w]e may not weigh the evidence [anew] and decide the
ultimate question [of] whether a claimant is disabled." Dray v.
U.S. R.R. Ret. Bd., 10 F.3d 1306, 1310 (7th Cir. 1993).
2 Because the Board issued its own decision on Crockett's claims, we review that decision pursuant to the judicial-review provisions of the RRA. See 45 U.S.C. § 355(f) (incorporated by reference in 45 U.S.C. § 231g). Nevertheless, because the Board relied on the hearings officer's determinations in making its decision, we will also subject the sections of the hearings officer's decision on which the Board relied to our review. See Duncan v. U.S. R.R. Ret. Bd., 787 F.3d 400, 406-08 (7th Cir. 2015) (adopting a similar approach when the Board affirmed and adopted a hearings officer's decision but also "added its own comments"); cf. Sansone v. U.S. R.R. Ret. Bd., 159 F. App'x 210, 211 n.1 (1st Cir. 2005) ("Because the Board affirmed and adopted the hearings officer's decision, on appeal we evaluate the judgment of the hearings officer." (citing Dray v. U.S. R.R. Ret. Bd., 10 F.3d 1306, 1310 (7th Cir. 1993))).
- 6 - III.
As previewed above, Crockett argues that the Board's
conclusion that -- as he characterized it -- "the record
established conclusively that [he] did not have any physical or
mental impairment prior to age 22 [is] not supported by substantial
evidence." In doing so, he appears to aim at the Board's
statements that "there was no medical evidence to support that Mr.
Crockett had a physical or mental impairment prior to age 22," and
more generally that the conclusion that "Crockett was not disabled
prior to age 22 . . . was reasonable and consistent with the
evidence of record."3
The Board's regulations mandate that "[a] physical or
mental impairment must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques." 20
C.F.R. § 220.27. These impairments "must be established by medical
evidence consisting of signs, symptoms, and laboratory findings,
not only by the claimant's statement of symptoms." Id. Relevantly
to Crockett's petition, "[p]sychiatric signs are medically
demonstrable phenomena which indicate specific abnormalities of
3 Crockett also more specifically disputed the Board's "no medical evidence" finding in his reply brief. We address both of his contentions.
- 7 - behavior, affect, thought, memory, orientation[,] and contact with
reality. They must also be shown by observable facts that can be
medically described and evaluated." 20 C.F.R. § 220.113(b).
The Board's regulations also provide detailed guidance
for assessing medical opinions. Medical opinions that the Board
considers conclusive are those that are "fully supported by
medically acceptable clinical and laboratory diagnostic techniques
and . . . not inconsistent with the other substantial medical
evidence of record." 20 C.F.R. § 220.112(b). Nevertheless, the
regulations still obligate the Board to "make every reasonable
effort . . . to obtain from the claimant's treating source(s) the
relevant evidence that supports the medical opinion(s)" in the
event that the opinion is not "fully supported." Id. § 220.112(c).
The Board also "must resolve" inconsistencies between medical
opinions and evidence in the record, including by "secur[ing]
additional independent evidence and/or further interpretation or
explanation from the treating source(s) and/or the consultative
physician or psychologist" if necessary. Id. § 220.112(d). The
Board makes its "determination . . . based on all the evidence in
the case record." Id.
Here, Rabin's opinions and Voss's 2015 claim that he
"probabl[y]" treated Crockett "for mental health issues" prior to
his reaching the age of 22 do not appear to comport with these
regulatory requirements. Statements about his current
- 8 - schizophrenia diagnosis, previous treatment, and the likelihood
that Crockett developed schizophrenia in adolescence will not
suffice without further support that complies with the agency's
regulations. To that end, Voss's 2015 letter did not mention any
specific diagnosis and Rabin's opinions were not "fully supported
by medically acceptable clinical and laboratory diagnostic
techniques" under sections 220.112 and 220.27 for the purposes of
showing that Crockett developed a mental impairment prior to age
22 because they were not evidenced by "symptoms, signs, and
laboratory findings" of Crockett's presentation prior to age 22
under section 220.113. Section 220.113(a) explicitly mandates
that "[s]ymptoms," or "the claimant's own description of his or
her physical or mental impairment(s)," cannot alone establish an
impairment. And, as the Board noted, Rabin's "opinions do not
suggest how the medical signs and findings of 2014 and
2015 . . . may be presumed to be present at the same level in 1976
other than based on Mr. Crockett's reports of symptoms to them."4
4 To be sure, Rabin also noted that schizophrenia is "a lifelong illness that usually first appears in adolescence" and that "the time frame of onset of schizophrenia [is] completely consistent with [Crockett] becoming disabled in adolescence." But schizophrenia's population-wide characteristics would not appear to suffice as support for her opinion regarding Crockett's disability onset date under the Board's regulations. Such evidence would not constitute "signs," or "anatomical, physiological, or psychological abnormalities which can be observed, apart from the claimant's own statements[,]" on an individual claimant. 20 C.F.R. § 220.113(b). And the regulation's mention of "medically acceptable laboratory diagnostic techniques . . . includ[ing]
- 9 - The hearings officer and Board were thus entitled to not
"consider[] [Rabin's and Voss's opinions] conclusive nor [to]
give[] [them] extra weight." 20 C.F.R. § 220.112(e).5 And, in
the context of that conclusion, we cannot reweigh the evidence
that was before the Board and hearings officer. See Dray, 10 F.3d
at 1310. The hearings officer and the Board considered 37 exhibits
in concluding that Crockett was not disabled under the Board's
regulations prior to age 22, including records that showed
inconsistencies between Crockett's statements to the SSA and to
the Board about his disability onset date and school records that
contradicted Crockett's statements that he struggled academically.
Crockett nevertheless contends that the Board and hearings officer
did not "adequately consider the written statements of [his] mother
and his high school art teacher," and he also challenges the
Board's determination that Voss's second letter recalling that
Crockett was diagnosed with schizophrenia was "uncorroborated
chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.) x-rays, and psychological tests," id. § 220.113(c) -- all of which focus on individual people or objects -- also appears to indicate that "[l]aboratory findings" do not include population-wide evidence, as a matter of ejusdem generis. See Me. Forest Prods. Council v. Cormier, 51 F.4th 1, 10 (1st Cir. 2022) ("[T]he ejusdem generis canon . . . instructs that where 'a more general term follows more specific terms in a list, the general term is usually understood to embrace any object similar in nature to those objects enumerated by the preceding specific words.'" (quoting Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018))). 5 Voss's 2017 letter is discussed in more detail below.
- 10 - [because it was written] 40 years after the fact, [was]
inconsistent with his statement of two years prior, and not
supported by the evidence." Crockett asserts that this conclusion
was unwarranted because Voss's recollection "had been adequately
refreshed," including through a conversation with Rabin. But
determining credibility and weighing conflicting pieces of
evidence are quintessential tasks for fact-finders, to whom we owe
great deference on substantial evidence review. Cf. Mashilingi v.
Garland, 16 F.4th 971, 977 (1st Cir. 2021) ("[A]s long as the
agency's credibility determination is supported by reasonable,
substantial, and probative evidence on the record considered as a
whole, we must accept it." (quoting Zaruma-Guaman v. Wilkinson,
988 F.3d 1, 5 (1st Cir. 2021))). Accordingly, and given the sum
total of the record, we are constrained to conclude that there was
"such relevant evidence as a reasonable mind might accept as
adequate to support [the RRB's conclusion]." Sansone, 159 F. App'x
at 211 (quoting Richardson, 402 U.S. at 399).
B.
Crockett also asserts that the hearings officer breached
her duty "to more fully develop the record regarding [his claim of
having a disability prior to age 22]." Citing to our decision in
Torres-Pagán v. Berryhill, 899 F.3d 54, 59-60 (1st Cir. 2018), he
argues that the hearings officer had a duty to do so because he
"was represented only by a non-attorney social worker at the
- 11 - hearing and because of his documented mental impairment." He also,
as further support for his view that the decision reached by the
agency was insufficiently supported, points to the relative
paucity of medical evidence from his adolescence and the fact that
the evidence cited by the hearings officer and the Board did not
"meaningfully contradict[] the statements of Mr. Crockett, his
treating physicians and other medical providers, or the statements
of his mother and his art teacher, regarding the observed or likely
onset of his disabling schizophrenia symptoms prior to age 22."
We cannot gainsay the importance of a full and fair
hearing for all claimants before the Board, and this rings
especially true in cases involving individuals with disabilities.
Indeed -- and as Crockett points out -- we recognized in Torres-
Pagán that
[p]ro se status, coupled with diagnosed mental deficiencies, is without question the type of situation where we believe an ALJ has a heightened responsibility to develop the record. . . . [I]ndividuals with psychiatric disorders are often some of the most vulnerable in society and unlike the standard pro se claimant at an [agency] hearing, those with alleged disabilities sounding in mental health may be particularly vulnerable when unrepresented by counsel.
899 F.3d at 59-60. We nevertheless do not believe that the
hearings officer breached any such duty in this case.
Fundamentally, Torres-Pagán and Currier v. Secretary of Health,
- 12 - Education & Welfare, 612 F.2d 594, 597 (1st Cir. 1980) -- a
predecessor to Torres-Pagán -- both concerned scenarios in which
the officer in question made no attempt to obtain at least
reasonably readily available evidence. In Torres-Pagán, we
remanded after an ALJ's finding that the claimant was no longer
disabled, when the ALJ had made no attempt to obtain evidence of
contemporaneous psychiatric treatment, despite the fact that the
claimant had "provided the [a]gency with his doctor's name, the
medical facility[,] . . . his prescribed medications (with
dosages), [the facility's] address, [the facility's] phone number,
and reasons for visiting [the facility]." 899 F.3d at 59.
Similarly, we remanded after an ALJ's decision in Currier, when
the ALJ had found that the claimant could "perform the same type
of work at another establishment and therefore [was] not entitled
to disability benefits" merely based on clinical notes that were
both contradicted by other evidence in the record and
"unaccompanied by any formal opinion and diagnosis explaining to
what degree and in what respect appellant may be impaired by his
mental illness and relating these deficiencies to the requirements
of his former job and other available jobs." 612 F.2d at 597. We
explained that agency officials presiding over disability
claimants' hearings have a duty to "to see that the gaps [in the
record] are somewhat filled . . . by ordering easily obtained
- 13 - further or more complete reports or requesting further assistance
from a social worker or psychiatrist or key witness." Id. at 598.
Here, by contrast, the record does not suggest any
readily available evidence that would meet the Board's regulatory
standards. Crockett suggests that the hearings officer could have
"obtain[ed] testimony or responses to written questions from Dr.
Rabin and/or Dr. Voss to more fully establish the basis for their
opinions that [Crockett] had been disabled due to schizophrenia
prior to age 22," given both his current diagnosis and the fact
that schizophrenia is "know[n] to commonly be of long duration[,]
beginning in adolescence or early adulthood." But it is not clear
to us that doing so would have aided in developing Crockett's case.
As noted above, the Board's regulations require that conclusive
medical opinions be "fully supported by medically acceptable
clinical and laboratory diagnostic techniques," 20 C.F.R.
§ 220.112(b); if they are not, the Board will endeavor "to obtain
from the claimant's treating source(s) the relevant evidence that
supports the medical opinion(s)," id. § 220.112(c).
Current testimony from Voss or Rabin likely would not
suffice under these regulations for much the same reasons that
their opinions do not. Rabin only treated Crockett decades after
he turned 22, and, even setting aside the fact that he initially
did not recall treating Crockett, Voss's 2015 letter did not
diagnose Crockett with schizophrenia, and the Board determined
- 14 - that his 2017 letter was not entitled to weight. Accordingly, we
see no obligation to develop the record, as neither Rabin nor Voss
can provide "relevant evidence that supports" a diagnosis of
schizophrenia before Crockett attained the age of 22. Id.
§ 220.112(c). Given those factors, Torres-Pagán's reasoning
concerning readily-available evidence does not apply to Crockett's
case. The hearings officer thus did not run afoul of any
obligation she had under that case.
IV.
As counsel for the Board acknowledged before us,
Crockett has advanced a sympathetic case. But we are bound to
apply the Board's valid regulations, and the substantial evidence
standard is a notoriously "high bar" for claimants to meet. Loja-
Tene, 975 F.3d at 62. The petition for review is thus denied.
- 15 -