James Freels v. United States Railroad Retirement Board

879 F.2d 335, 1989 WL 73920

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 3, 1989
• Docket: 88-2038
• Status: Published

Opinions

MAGILL, Circuit Judge.

James William Freels appeals from the Railroad Retirement Board’s¹ denial of his application for an occupational disability annuity under section 2(a)(l)(iv)² of the Railroad Retirement Act of 1974.³ 45 U.S. C. § 231a(a)(l)(iv) (1976). Freels claimed, that he became disabled for work in his regular occupation after his employer, the Norfolk & Western Railroad (N & W), caused him to be exposed to toxic chemicals. The Board affirmed and adopted the findings of the appeals referee, Rachel L. Simmons, who concluded that because Freels’ description of his impairment and resulting disability was not fully credible or supported by substantial evidence in the record, he was not entitled to an occupational disability annuity. We hold that the Board’s decision was based on substantial evidence and, accordingly, we affirm.

I.

James Freels, a 53-year-old ex-employee of N & W, worked for eighteen years (1964-1982) as a railroad welder’s assistant and as a full-fledged railroad welder. His job included lifting heavy equipment and a variety of other strenuous motions. Freels claims that in January 1979, he was exposed to the chemicals phenol and dioxin when N & W assigned him to participate in the cleanup of a chemical spill at Sturgeon, Missouri. Two to three years after the cleanup, Freels stopped working for the railroad. He contends that his twenty-four-day exposure to the chemicals caused him to suffer headaches, fatigue, shortness of breath, muscle pain and other symptoms that, in aggregation, rendered him unable to work.

On May 10, 1984, Freels applied to the Railroad Retirement Board for disability benefits. The Board’s Bureau of Retirement Claims, after considering various medical reports describing Freels’ state of health, denied his application. He then requested reconsideration, and once again his application was denied. On April 8, 1985, Freels filed an appeal. Prior to the appeal hearing, Freels reached a settlement with the railroad for $395,932.40. Pursuant to the settlement, Freels was credited with twenty years of railroad service. This period of time was sufficient to make Freels eligible for an occupational disability annuity under § 2(a)(l)(iv) of the Railroad Recovery Act, 45 U.S.C. § 231a(a)(l)(iv) (1976).⁴

Freels’ appeal hearing took place on May 14, 1987 in Kansas City. Freels testified concerning the work he performed for N & W and the ailments that allegedly forced his retirement. The appeals referee, finding that Freels’ allegations concerning his physical condition and its impact on his ability to work were not credible, affirmed the Bureau of Retirement Claims’ denial of Freels’ application. One month later, a majority of the three-member Railroad Retirement Board affirmed and adopted the appeals referee’s decision.

II.

On appeal, Freels contends that the Board’s decision not to grant him an occupational disability annuity is not supported by substantial evidence. Specifically, he claims that the appeals referee underestimated (1) the importance of his medical experts’ testimony, and (2) erroneously refused to give adequate weight to his subjective, nonclinical evidence of mental impairment caused by his anxiety about the alleged physical effects of his lengthy exposure to the chemicals. The Board counters that the appeals referee correctly concluded that there is not adequate proof in the record indicating that Freels was disabled for work in his regular occupation under § 2(a)(l)(iv).

Section 2(a)(l)(iv) of the Railroad Retirement Act provides, in pertinent part, that in order to qualify for an occupational disability annuity, an individual must “have a current connection with the railroad industry, [a] permanent physical or mental condition * * * such as to be disabling for work in [his] regular occupation * * *, have completed twenty years of service, or * * * have attained the age of sixty.” 45 U.S.C. § 231a(a)(1)(iv) (emphasis added). A decision by the Board as to an individual’s eligibility for annuities is not to be set aside so long as it is “supported by substantia] evidence, is not arbitrary, and has a reasonable basis in law * * Williams v. U.S. Railroad Retirement Board, 585 F.2d 341, 343 (8th Cir.1978). See also Peterson v. R.R. Retirement Board, 780 F.2d at 1364; Costello v. U.S.R.R. Retirement Board, 780 F.2d 1352 (8th Cir.1985). The Peterson court emphasized that

[w]hile we are not free when reviewing an agency decision under this standard simply to substitute our decision for that of the agency, we must set aside the decision if we ‘cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of the evidence opposed to the [agency’s] view.’

Id. at 1364 (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Arp v. Railroad Retirement Board, 850 F.2d 466 (8th Cir.1988).

Since Freels’ connection with the railroad industry and length of service are not in dispute, our task is to assess the evidence supporting the Board’s conclusion that Freels was not permanently disabled for work in his regular occupation. As a railroad welder, Freels was involved primarily in track repairs. The appeals referee found that Freels’ “job was performed at the heavy exertional level * * *

He used a sledgehammer, small tools, oxygen and acetylene tanks, angle bars, saws, and drills. Some tools (such as the tanks) weighed up to 200 pounds and two people would be needed to carry it. Other tools (such as a hose) weighed about 50 pounds and one person could carry it. * * * Appellant * * * walked about one-third of the time, sat while he welded, constantly was bending, stooping, crouching, and reaching, and was lifting and carrying three or four times a day.

Decision of appeals referee, Appeal No. 17,078 at 4 (October 14, 1987).

The cleanup of toxic chemicals in which Freels participated took place in January 1979. In June 1981, Freels began to suffer physical symptoms that hindered his work performance. He then started a course of examinations that yielded a number of strikingly dissimilar evaluations of his condition and his ability to continue to work as a railroad welder. Freels was first examined in July 1981 by Dr. Bertram W. Car-now. Dr. Carnow, of Carnow & Associates, Ltd., Occupational and Environmental Health Consultants, concluded that because of his exposure to the chemicals, Freels had “developed multiple illnesses and diseases which have been progressive.” Exhibit 8. “He has other symptoms suggesting damage to his muscular and nervous system[.]” Exhibit 9. Dr. Carnow emphasized that because of Freels’ increasing fatigue and pain, he was unable to work for extended periods: “[the symptoms] have now reached a stage where it is impossible for him to function adequately to carry out his responsibilities with the railroad. Based on the nature of his problems and the progression of disease, I feel that it is necessary to recommend he remove himself from this activity.” Exhibit 8. During the next twelve months, Dr. Carnow examined Freels on “a number of occasions,” Exhibit 9, and concluded that the situation was worsening, making extended physical exertion impossible for Freels. A second doctor, Samuel Bernstein, a licensed psychologist and vocational expert, examined Freels in November 1981. He concluded that Freels was unable to perform a normal workday and was thus “totally unemployable.” Exhibit 10.

In September 1982, Freels was examined again at the request of the Board. This examination, by Dr. Max T. Gutensohn, a specialist in internal medicine/neurology, gave rise to a report indicating that Freels’ examination results were “all normal,” Exhibit 12, although a chest x-ray revealed that he suffered from chronic obstructive pulmonary disease and another test showed early indications of obstructive lung disease. Dr. Gutensohn’s two salient impressions were that (1) Freels had experienced “[ejxposure to innocuous chemical; and (2) [deterioration of health is evidenced by many organ systems involvement, however, none are very specific.” Id. Further examination by Dr. Gutensohn in 1983 revealed moderate working capacity and some “improvement of [Freels’] symptoms,” but Freels continued to insist that his working capacity was decreasing.

In April 1984, Freels was examined by Dr. James N. Hueser, an oncologist based at the Columbia Clinic of Columbia, Missouri. Dr. Hueser concluded that Freels was “disabled for a number of reasons, primary of which is marked fatigue secondary to exposure to toxic chemical[s] * * When Freels was hospitalized for surgery later that month, his condition was found not to be as alarming as Dr. Hueser had suggested. The tests indicated:

(1) pulmonary function — 87%;

(2) blood tests — normal;

(3) urinalysis — normal;

(4) EKG — normal.

In September 1984, Freels again had “normal” test results on a chest x-ray and EKG. Referring physician Dr. Norman Clarkson, of the Kirksville Osteopathic Health Center of Kirksville, Missouri, compiled a report based on the tests, emphasizing that Freels was a one- to two-pack a day smoker and that Freels was “in no acute distress * * * even though he does have evidence of obstructive pulmonary disease [, it] doesn’t seem at this time that it’s severe enough * * * to preclude his [carrying] out some form of gainful employment.” Exhibit 38.

In May of the following year, Freels underwent detailed psychological examinations. His condition was first studied by Helen J. Roehlke, a licensed psychologist. Dr. Roehlke applied the Minnesota Multi-phasic Personality Inventory (MMPI) exam, which indicated that Freels suffered a “generalized anxiety disorder” and “adjustment disorder with mixed emotional features.” Exhibit 40. She ultimately concluded that Freels was precluded by his condition from being successfully employed in any ordinary work setting. Id. Freels was later studied by Blake T. Anderson, M.A., via the Wechsler Adult Intelligence Scale-Revised (WAIS-R) exam, which revealed no impairments or abnormalities in functioning whatsoever. Exhibit 41.

Finally, in October 1985, Dr. Don R. Whitener, a specialist in pulmonary diseases and a colleague of Dr. Hueser at the Columbia Clinic, performed another battery of tests on Freels. Having assessed the results of Freels’ pulmonary function tests, Dr. Whitener reported that Freels’ ability to lift/carry, stand/walk, sit, climb, balance, stoop, crouch, kneel, crawl, reach, handle, feel, push/pull, see and speak were not affected by his “mild obstructive defect.” Exhibit 42. Dr. Whitener concluded that Freels “does have mild obstructive airways disease which I think is related to his prior cigarette smoking but this is not significant enough to prevent him from working.” Id.

The conclusions reached by the doctors who examined Freels and assessed his working capacity are far from harmonious. Although none of the doctors crafted their conclusions in language similar to that in § 2(a)(l)(iv), four of the specialists who examined Freels (Gutensohn, Clarkson, Anderson, and Whitener) appear to have concluded that he was not disabléd for work in his regular occupation; four others (Camow, Bernstein, Hueser, and Roehlke) apparently asserted the contrary. Since the evidence in the record both supports and undercuts Freels’ claims, the Williams and Peterson cases (see supra p. 337) are particularly significant. They state unequivocally that we could not substitute our judgment for that of the Board even if we were so inclined. Although this is a close case, we hold that the record, viewed in its entirety, does contain substantial evidence supporting the Board’s denial of the annuity sought by Freels. The appeals referee’s decision was based on comprehensive testimonial and documentary evidence covering all of the physical and psychological dimensions of Freels’ alleged impairment. In the appeals reféree’s judgment, several of the medical reports apparently finding that Freels was disabled for work in his regular occupation were “concluso-ry” and “unsupported by clinical or laboratory findings.” Decision of appeals referee at 8. Conversely, she found that Freels’ complaints are “in part * * * disproved by specific clinical findings” (i.e., blood tests, urinalysis, EKG exams, etc., that had “essentially normal results”). Id. at 9.

III.

Having carefully reviewed the record, we are persuaded that the appeals referee’s decision that Freels is not disabled for work in his regular occupation and thus not entitled to an occupational disability annuity is supported by substantial evidence. The Board therefore was not unreasonable in its adoption of the appeals referee’s finding that Freels failed to prove that he suffered the disability and resulting inability to perform the duties of his regular occupation required by § 2(a)(l)(iv). We affirm.

1 . Jurisdiction in this court is based on the Railroad Recovery Act, 45 U.S.C. § 355(f), which provides for review in the courts of appeal from all final decisions of the Railroad Retirement Board.

2 . Freels originally applied for benefits under § 2(a)(l)(v) of the Act, but during the course of the application process, changed circumstances (see infra p. 337) enabled him to seek benefits under the more favorable terms contained in § 2(a)(l)(iv). For the terms of § 2(a)(l)(iv), see infra Section II.

3 .“The Railroad Retirement Act, like the Social Security Act, provides workers and their families with protection against hardships created by the loss of earnings due to illness or old age." Peterson v. United States R.R. Retirement Board, 780 F.2d 1361, 1363 (8th Cir.1985) (citing Mathews v. DeCastro, 429 U.S. 181, 185-86, 97 S.Ct. 431, 434-35, 50 L.Ed.2d 389 (1976)).

4 . See supra note 2.