USCA1 Opinion
November 2, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1491
RICHARD T. GRANFIELD,
Petitioner,
v.
RAILROAD RETIREMENT BOARD,
Respondent.
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ON PETITION TO REVIEW A DECISION OF
THE U.S. RAILROAD RETIREMENT BOARD
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Adam H. Becker and Martin E. Mason on brief for petitioner.
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Catherine C. Cook, General Counsel, Thomas W. Sadler, Assistant
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General Counsel, Michael C. Litt, General Attorney, and Steven A.
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Bartholow, Deputy General Counsel, on brief for respondent.
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Per Curiam. Petitioner, Richard T. Granfield,
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appeals from the decision of the Railroad Retirement Board
finding him not disabled and therefore not eligible for a
disability annuity under the Railroad Retirement Act, 45
U.S.C. 231a(a)(1)(v). Petitioner has been diagnosed as
having fibrositis (an inflammation of the muscles and fibrous
tissues of the locomotor system) and, as a result, allegedly
suffers from the following symptoms: (1) pain in his
shoulders, lower back, neck, hands, feet and elbows; (2)
swelling and cramping of the hands, feet and other joints;
and (3) fatigue. He also has been diagnosed as having
essential nonfamilial tremor of the hands. Petitioner had
worked as a locomotive fireman and locomotive engineer from
July 1972 to December 1987. At the time he stopped working,
petitioner was 33 years old; he has a high school diploma.
There is no dispute that petitioner cannot return to his past
work. The basic issue for review, then, is whether there is
substantial evidence to support the Board's decision to adopt
the findings of the hearing officer that petitioner's
ailments do not prevent him from performing light work.
The Railroad Retirement Act provides that persons
with the required number of years with a railroad are
entitled to 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)(1)(v). The
standard for determining whether an individual can engage in
regular employment is the same as the one used to analyze
claims for disability under the Social Security Act. E.g.,
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Bowman v. Railroad Retirement Board, 952 F.2d 207, 209 (8th
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Cir. 1991); Peppers v. Railroad Retirement Board, 728 F.2d
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404, 406 (7th Cir. 1984) (per curiam). Thus, the Social
Security regulations and cases interpreting them may be used
in reviewing decisions of the Board under 231a(a)(1)(v).
Bowman, 952 F.2d at 209 (collecting cases); Aspros v. United
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States Railroad Retirement Board, 904 F.2d 384, 386 (7th Cir.
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1990) (regulations); Elzy v. Railroad Retirement Board, 782
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F.2d 1223, 1224 (5th Cir. 1986) (use of same sequential
evaluation process). Because petitioner could not return to
his former employment, the burden is on the Board to show the
existence of other jobs in the national economy that
petitioner can perform. See Ortiz v. Secretary of Health and
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Human Services, 890 F.2d 520, 524 (1st Cir. 1989) (per
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curiam).
Petitioner argues that in determining that he had
the ability to do light work, the hearing officer relied on
only minimal portions of his and his wife's testimony
concerning petitioner's daily activities and, in so doing,
took these statements out of context. In a related vein,
petitioner also asserts that the hearing officer erroneously
disregarded petitioner's subjective complaints of pain. He
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maintains that objective medical evidence exists to support a
finding that his pain is completely disabling.
At the hearing, petitioner stated that the pain and
cramping in his hands is always present. The more he uses
his hands the worse the cramping becomes. Due to this
condition, petitioner has trouble gripping, using hand tools
and eating utensils, holding a cup, and performing any
activity on a repetitive basis. Petitioner has had some
improvement concerning the tremors in his hands with Inderal
(which petitioner had been taking for only one month at the
time of the hearing). Petitioner also testified that he
experiences constant pain in his wrists and elbows, again,
aggravated by use. Similarly, the pain in petitioner's neck
and shoulder joints is persistent and prevents him from
raising his arms whether or not he is trying to lift an
object. As for his lower back and hips, petitioner stated
that he has ongoing spasms and stabbing, sharp pains.
Petitioner then described his daily activities and
physical limitations. He stated that he could sit for 20 to
25 minutes at a time, stand for 15 to 20 minutes and walk for
10 to 15 minutes before experiencing pain. He avoids any
lifting, bending, stooping or climbing. During a typical
day, petitioner might do some light vacuuming, load the
dishwasher, clean the windows, pick up around the house, do
the laundry or mow the lawn on a riding mower; petitioner can
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perform these activities, however, for only very short
periods of time. Petitioner's recreational activities are
fishing, hunting and woodworking. The night before the
hearing, petitioner stated that he had fished for one-half
hour -- the most he could handle at a time. He had gone on a
hunting trip during the previous week for two days; however,
he was limited to one to two hours of actual hunting. He
stated that he had done some woodworking in the last month,
but experienced trouble handling small pieces of wood.
Petitioner's wife also testified. She stated that
she had to fill the coal bucket, make the meals and, on
occasion, cut up petitioner's food for him. Petitioner could
not sit for any period of time, had trouble concentrating and
was frustrated by his inability to finish tasks. In a
written statement, she added that petitioner had difficulty
with writing and that petitioner dictated all of his
correspondence to her. Petitioner's hands shake so much that
he could not tie a knot or hold a cup of coffee. This
statement was dated December 1989, before petitioner started
taking Inderal for the tremors.
Even though the hearing officer did not allude to
the limits petitioner described, there is evidence in the
record that petitioner was not as incapacitated as he
claimed. In contrast to petitioner's testimony are the
reports and evaluations of the physicians who treated
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petitioner -- Dr. Philip Weinstein and Dr. John Guttell. Dr.
Weinstein, who began seeing petitioner in October 1988,
reported "significant improvement" in petitioner's fibrositis
with the use of Elavil and Naprosyn. Petitioner's symptoms
of stiffness and pain in his joints worsened with "excessive"
work. However, in March 1989, petitioner's condition
improved. Finally, an examination in June 1989 revealed no
swelling in the joints and no trigger point tenderness -- a
particular symptom of fibrositis.
Dr. Guttell also noted, in April 1989, that
treatment with Elavil and Naprosyn had improved petitioner's
condition to the point where he could do more with his hands,
although they got stiff by the end of the day. Dr. Guttell
stated that petitioner's prognosis was fair and opined that
he did not think that the disease would progress. However,
because fibrositis is a chronic condition, periodic
exacerbations could occur. In October 1990, Dr. Guttell
completed a Board Report of Physical Condition. At this
time, petitioner was experiencing intermittent left shoulder
and neck pain. Dr. Guttell concluded that petitioner's
condition had "markedly improved" since 1989, but that
petitioner still became uncomfortable with increased
activities.
An April 1990 treatment note revealed that
petitioner had "very little in the way of trigger points" and
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no inflammatory changes. In October 1990, petitioner
reported occasional pain in the back of his neck on the left
side and in his left shoulder if he "overdoes it." However,
if petitioner worked "within reason," he had no problems.
His wrists and elbows were fine. In February 1991, Dr.
Guttell referred petitioner to a neurologist because of
tremors in petitioner's hands. Petitioner reported having
trouble with writing and stated that he was not able to hold
a full cup of liquid. The neurologist diagnosed essential
nonfamilial tremor -- a "[f]ine, rapid action tremor
involving both upper extremities." He prescribed Inderal.
In March 1991, petitioner reported experiencing "intermittent
flares of pain" in the posterior cervical and medial scapula
areas.
It is true that petitioner described drastic
limitations in his abilities to do routine chores and to
engage in the physical requirements of any type of work; it
is also true that petitioner has been diagnosed as having
fibrositis -- a condition that reasonably can be expected to
produce pain and stiffness in joints such as the ones in an
individual's hands. See Avery v. Secretary of Health and
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Human Services, 797 F.2d 19, 20-21 (1st Cir. 1986). Yet the
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hearing officer was warranted in discrediting the severity of
petitioner's allegations given the reports of Drs. Weinstein
and Guttell. Neither physician described symptoms such as
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the ones that petitioner reported at the hearing nor did they
state that petitioner was so limited that he could do no
work. Moreover, we pay especial attention to the evaluation
of the administrative official presiding at the hearing given
the subjective nature of such complaints. See Ortiz, 890
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F.2d at 523; Sherwin v. Secretary of Health and Human
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Services, 685 F.2d 1, 3 (1st Cir. 1982), cert. denied, 461
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U.S. 958 (1983).
Of particular relevance in this context is Dr.
Guttell's assessment of petitioner's functional capacity
contained in his letter of March 1991. He stated that
petitioner could not do any "significant" lifting of more
than 15 to 20 pounds on a regular basis due to upper back and
cervical spasms and because such lifting would aggravate the
trigger points in his elbows. Standing and walking were "not
particular problems" so long as petitioner could frequently
change position. Similarly, sitting would not produce any
"significant impairment" unless done for several hours at a
time or done while bending over a desk. Dr. Guttell ended by
stating that petitioner could not crawl, stoop, kneel, climb
or crouch; further, pushing, pulling, handling and reaching
were to be avoided because these activities would lead to an
aggravation of the spasms in petitioner's back. The only
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reference Dr. Guttell made to petitioner's hands was the
statement that petitioner wastaking Inderal for his tremors.1
Light work involves "lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects
weighing up to 10 pounds." 20 C.F.R. 404.1567(b). This is
consistent with Dr. Guttell's assessment. A job also is
classified as light in nature "when it requires a good deal
of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg
controls." Id. Again, Dr. Guttell's opinion concerning
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petitioner's capacity for sitting, walking and standing does
not contraindicate such work. As for pushing and pulling,
petitioner did not describe significant, if any, restrictions
in these activities.
Further, the vocational expert (VE) who testified
at petitioner's hearing stated that there were jobs available
to petitioner under the following hypothetical: (1) the
ability to stand for a total of six hours in the work day but
up to only two hours at a time with the opportunity to change
positions every 15 minutes; (2) the ability to lift up to 20
pounds at a time; and (3) limitations on the capacity to
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1. Also, a residual functional capacity analysis completed
by a non-examining physician in 1989 indicated that
petitioner could frequently lift and carry up to 25 pounds.
He could sit, stand and walk for up to six hours each per
work day. He was limited in his ability to push and pull but
could frequently stoop, kneel, crouch and crawl.
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engage in repetitive bending and stooping. The VE first
noted that the bending and stooping limits would preclude
about 50 percent of the overall light jobs. Assuming
petitioner could bend up to 15 degrees (out of 90), jobs
existed as a packager, cleaner, insulator or assembler in the
electronics industry. Such work involves standing at a high
bench. Other jobs included spray painting and soldering. As
for the two-hour limit on how long petitioner could stand,
the VE stated that the above jobs only required a person to
stand for one hour at a stretch.
We recognize that Dr. Alan Katz described
petitioner as being "substantially disabled" and Dr. J.
Edward Connors concluded that petitioner was "unemployable"
due to his physical complaints. However, "[c]onflicts in the
medical evidence are to be resolved by the hearing officer,
not this court on review." Bowman, 952 F.2d at 211; cf.
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Rodriguez v. Secretary of Health and Human Services, 647 F.2d
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218, 222 (1st Cir. 1981) (credibility issues and what
inferences permissibly can be drawn from the facts are for
the Secretary of Health and Human Services). Because we find
that "a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adequate to support" the
Board's conclusion, see Rodriguez, 647 F.2d at 222, we do not
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perceive any substantial question. Thus, we summarily deny
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the petition for review. See Local Rule 27.1.
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