Vincent D. Bowman v. Railroad Retirement Board

952 F.2d 207, 1991 U.S. App. LEXIS 30652, 1991 WL 271743
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 24, 1991
Docket91-1268
StatusPublished
Cited by11 cases

This text of 952 F.2d 207 (Vincent D. Bowman v. Railroad Retirement Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vincent D. Bowman v. Railroad Retirement Board, 952 F.2d 207, 1991 U.S. App. LEXIS 30652, 1991 WL 271743 (8th Cir. 1991).

Opinion

McMILLIAN, Circuit Judge.

Vincent D. Bowman (“petitioner”) appeals from a decision of the Railroad Retirement Board (“Board”) finding petitioner not disabled, as defined in 45 U.S.C. § 231a(a)(l)(v), and thus not eligible for a Railroad Retirement annuity. For reversal, petitioner argues that the Board’s decision is not supported by substantial evidence. Specifically, petitioner argues that the Board erroneously adopted the hearings officer’s findings that (1) his testimony and the reports of his consulting physician were noncredible and (2) the Board met its burden of proving he is able to perform jobs available in the national economy. After reviewing the record in its entirety, we hold that there is substantial evidence supporting the Board’s ruling and therefore deny the petition for review.

Background

On September 16, 1987, petitioner filed an application for an employee disability annuity under the Railroad Retirement Act. The Board’s Bureau of Retirement Claims denied the application. Petitioner requested a reconsideration and his request was denied. Petitioner then filed an appeal with the Board’s Bureau of Hearings and Appeals. A hearing was held on June 20, 1989, at which petitioner and a vocational expert testified. By written decision dated September 26, 1989, the hearings officer affirmed the denial of petitioner’s application for a disability annuity. On August 13, 1990, the Board affirmed and adopted the decision of the hearings officer. Bowman v. Railroad Retirement Board, No. A-492-40-6701 (Aug. 13, 1990). This petition for review followed.

Petitioner, age 49 at the time of the hearing, is a high school graduate who worked for the Burlington Northern Railroad as a trainman and conductor from July 1967 to 1978. From May 1979 to September 1987, petitioner had various non-railroad jobs, each involving some amount of manual labor. Since September 1987, petitioner has not been employed. During his employment with the railroad, petitioner sustained work-related injuries, including a back injury which led to disc surgery in 1977. Petitioner claims that these injuries, in part, have caused his disability.

At the June 1989 hearing, petitioner testified that he has pain in many parts of his body. He testified that he has pain in both knees, both shoulders, both elbows, his right ankle, his left hand, and his knuckles. He testified that he has a dull aching pain in his lower back, cramping in his legs, and a stiff neck. Petitioner also testified that *209 he has difficulty walking, bending, stooping, and lifting.

The record from the June 1989 hearing also contains medical evidence, from both treating and consulting physicians, dating back to the time of petitioner’s back surgery in October 1977. Included, for example, are correspondence and reports by Dr. Julio del Castillo, the physician who performed petitioner’s back surgery and was petitioner’s treating physician during subsequent hospitalizations in 1978 and 1980 for recurring back pain. Reports prepared by Dr. George Kerkemeyer, petitioner’s treating physician during and after a 1987 hospitalization for delirium and gastroenteritis (conditions apparently unrelated to the back injury), are in the record. Also included are a report by Dr. Udaya N. Dash, who examined petitioner in February 1988 at the request of the Board, and a report by Dr. Joseph Hanaway, who examined petitioner and reviewed his medical history in November 1988 at the request of petitioner’s attorney.

In letters written in 1977, Dr. del Castillo, petitioner’s treating physician at the time, reported that petitioner should be limited to doing “light work,” with restrictions on lifting, bending, pushing, and pulling. The Board’s consulting physician, Dr. Dash, concluded in his 1988 report that “[petitioner’s] disability is due to chronic low back syndrome, degenerative arthritis of the right knee and possible degenerative arthritis of both shoulders.” Dr. Dash further stated “[petitioner] is unable to manage any type of work that requires heavy lifting and constant stooping and bending.” Later that year, petitioner’s consulting physician, Dr. Hanaway, reported “[petitioner] is permanently disabled from any heavy work and would simply be an unreliable employee because of his multiple problems.”

Petitioner also testified at the June 1989 hearing regarding his daily activities. He testified that he takes a hot shower every morning for 30-45 minutes. He occasionally drives; for example, he will drive to the post office, to the store, or to visit friends. His other activities include watching television, tinkering with his car, gardening, riding a stationary bicycle for short periods once or twice a day, and occasionally deer hunting.

Discussion

Under the Railroad Retirement Act, individuals who have met the required number of years with a railroad are eligible for an annuity if they have a “permanent physical or mental condition ... such that they are unable to engage in any regular employment.” 45 U.S.C. § 231a(a)(l)(v). “The standard used to determine inability to engage in any regular employment [under 45 U.S.C. § 231a(a)(l)(v) ] is the same as that used to determine disability under the Social Security Act.” Romaker v. Railroad Retirement Board, 733 F.2d 639, 641 (8th Cir.1984) (citations omitted). “It is accepted practice to use Social Security cases as precedent for Railroad Retirement cases.” Pandil v. Railroad Retirement Board, 724 F.2d 705, 707 (8th Cir.1984) (Pandil).

Under the Social Security guidelines (“guidelines”), the hearings officer makes a disability determination by following a sequence of required findings. See Heckler v. Campbell, 461 U.S. 458, 460-61, 103 S.Ct. 1952, 1953-54, 76 L.Ed.2d 66 (1983); McCoy v. Schweiker, 683 F.2d 1138, 1141 (8th Cir.1982). In making this determination, the hearings officer must first determine whether the claimant is engaged in substantial gainful activity; if so, the claimant is not disabled. If the claimant is not engaged in substantial gainful activity, the hearings officer must determine whether the claimant is suffering from a severe impairment such that the claimant cannot perform basic work-related functions. If the claimant has one of the severe impairments listed in Appendix 1 to subpart P of the guidelines, the claimant is conclusively disabled. 20 C.F.R. pt. 404, subpt. P, app. 1 (1990). If the claimant does not have one of the listed impairments, the next inquiry is whether the claimant can perform past relevant work; if so, the claimant is not disabled. If the claimant cannot perform past relevant work, the final question is whether there is any regular employment *210

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Bluebook (online)
952 F.2d 207, 1991 U.S. App. LEXIS 30652, 1991 WL 271743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-d-bowman-v-railroad-retirement-board-ca8-1991.