William A. Pemberton v. RRRB ( 1997 )

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No. 96-1911
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William A. Pemberton, *
*
Petitioner, *
* Appeal from the Railroad
v. * Retirement Board
*
Railroad Retirement Board, *
*
*
Respondent. *
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Submitted: November 21, 1996
Filed: March 7, 1997
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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge and SACHS,*
District Judge.
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SACHS, District Judge.
William Pemberton appeals the decision of the Railroad Retirement
Board denying his application for a disability annuity under the Railroad
Retirement Act. Because substantial evidence on the record as a whole
supports the Board's decision, we affirm.
*The Honorable Howard F. Sachs, United States District
Judge for the Western District of Missouri, sitting by
designation.
I. Background
Pemberton, who was born in 1947, worked for The Chicago and
Northwestern Railroad as a brakeman/conductor and switchman from March 1971
until he suffered an on-the-job injury to his back in August 1981. A
lumbar laminectomy and discectomy was performed in February 1982. Recovery
was complicated by a disc space staph infection at the surgical site which
required re-hospitalization in 1982 for intravenous antibiotics treatment.
Pemberton never returned to work for the railroad,1 nor has he sought other
employment except for a brief period of part-time work at a baby furniture
factory in the mid-1980s.
Pemberton applied for an annuity on August 3, 1993, alleging a
disability onset date of August 1981 as a result of work-related injuries
in 1979 and 1981 and consequent surgery.2 The claim was denied initially
and on reconsideration. Upon appeal to the Board's Bureau of Hearings and
Appeals, a hearing was held in August 1995.
The medical evidence presented includes reports from both treating
and consultative physicians. Orthopaedic surgeon John Pazell began
treating Pemberton in January 1983 for recurring post-operative low back
pain. Treatment consisted of prescribed anti-inflammatory and pain
medication and physical therapy. By April of 1983, physical therapy was
discontinued. Pemberton has consistently complained of constant low back
pain exacerbated by weather changes or increased activity, differentiating
the levels of pain in terms of "good" and "bad" days. On bad days he
purportedly has
1
Pemberton settled a lawsuit brought against the railroad
arising from the 1981 injury in July 1987 and resigned from the
railroad as required by the settlement agreement.
2
Pemberton had previously filed an application for an annuity
in February 1988, alleging disability based on the 1981 back injury
and post-operative complications. He did not appeal the denial of
his claim.
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excruciating, totally disabling pain. About half his days are said to be
bad days. Dr. Pazell has continually opined that Pemberton suffers from
a post-laminectomy smoldering disc space staph infection. Periodic
evaluations through mid-1989 showed Pemberton's condition unchanged;
thereafter, Dr. Pazell conducted annual evaluations for three years. In
July 1993, Dr. Pazell concluded that Pemberton was permanently disabled
from all possible jobs, noting his condition had been stable for a number
of years. Pemberton's visits to Dr. Pazell increased after his annuity
application. In December 1994, Dr. Pazell reported that Pemberton suffers
from limited range of motion, muscle spasm, adhesive arachnoiditis coupled
with spinal stenosis and a smoldering disc space infection.3 He further
reported a worsening of Pemberton's condition as exhibited by an inability
to tolerate any type of prolonged activity.
The record from the hearing also contains medical records of Dr.
Richard Curnow, the surgeon who performed the 1982 back surgery and treated
the disc space infection. Dr. Curnow's medical findings upon re-evaluation
in January 1985 were consistent with a diagnosis of chronic low back pain.
Dr. Curnow recommended no further operative treatment.
Dr. Harry Overesch, a consultative orthopaedic surgeon, examined
Pemberton in 1985 and 1988. In 1985, Dr. Overesch indicated Pemberton had
reached maximum recovery with limited range of motion of the back and no
signs of disc space infection. In 1988, Dr. Overesch found Pemberton's
condition somewhat better. Dr. Overesch concluded that although Pemberton
would be unable to
3
Adhesive arachnoiditis is the thickening of the fibrous
membrane within the vertebral canal. Spinal stenosis involves the
narrowing of the vertebral canal, nerve root canals, or interverte-
bral passages caused by encroachment of bone upon space. Dorland's
Illustrated Medical Dictionary 111, 1576 (28th ed. 1994).
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do heavy work, he was employable in jobs not requiring repeated bending,
stooping or heavy lifting.
In October 1993, Pemberton underwent a consultative examination by
Dr. Thomas-Richards. X-rays indicated degenerative lumbar disc disease
with almost complete obliteration of the disc space, secondary to
4
osteomyelitic involvement. Dr. Thomas-Richards found Pemberton to have
restricted range of motion with chronic low back pain aggravated by
exertion. He concluded Pemberton should be restricted from activities
requiring prolonged walking and standing; lifting and carrying heavy
weights; frequent to continuous bending, stooping, squatting, kneeling or
crawling; and frequent to continuous twisting motions of the spine.
Pemberton, his fiancee Donna Buerge, and a vocational expert
testified at the August 1995 hearing. Pemberton stated that since the 1982
surgery, he has a constant dull ache in his low back which radiates out to
his hips. Although his condition had improved and leveled off by 1985, he
characterizes his condition since then as "downhill" with less tolerance
for prolonged sitting and standing. He testified to numbness in his legs
upon prolonged sitting which is eased by walking. He also complained of
sharp jabbing back pains upon sitting or standing too long. On good days
he is able to sit for 30 minutes, stand for 15-20 minutes, and lift up to
20 pounds; however, on bad days, he does nothing. He attributed his
4
Osteomyelitis is the inflammation of a bone caused by
infection with bacteria or other micro-organisms. Dorland's
Medical Dictionary, supra, note 3, 1201. We note that under
specified conditions osteomyelitis with persistent or recent acute
"activity," established by "laboratory findings," was previously
classified as a disabling impairment. 20 C.F.R. pt. 220, app. 1,
part A, § 1.08(a). Osteomyelitis has been considered to be a
verifier of claims of pain. Moules v. Heckler, 600 F.Supp. 37, 40
(N.D. Cal. 1984). It has not, where there is conduct to the
contrary, necessarily assured a finding of disabling pain. E.g.,
Gendreau v. Finch, 298 F.Supp. 548 (D. Minn. 1969). See also, Odle
v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (claimant had a
"'fair response' with antibiotics to his rib condition").
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bad days to either a flare up of the infection or overexertion. He stated
he is having more bad days, particularly noting a two-week period of severe
pain following a recent back-wrenching fall.
Pemberton takes long showers, hot baths, massages and prescribed
medications for pain relief.5 He also routinely lies on the floor and
does stretching exercises each morning, afternoon and evening. He does not
use a back brace or cane. In 1984 he began course work for a two-year
degree from a community college which he completed in 1987. He occasion-
ally needs help tying his shoes, but otherwise functions independently
during the day at home. His daily activities on good days include watching
television, taping music and movies, doing the laundry, cutting the grass
with a self-propelled mower, doing errands and visiting relatives and
friends. He drives to the mall, grocery store, and the homes of his and
his fiancee's parents. He reports annual mileage of 7500 to his insurer.
Pemberton indicated that Dr. Pazell encouraged him in 1993 to reapply for
a disability determination.6 Pemberton's fiancee testified that his pain
had increased during the three and one-half years she has known him. She
stated Pemberton used to dance with her slowly when they met, but they no
longer dance.
Testimony was solicited from a vocational consultant as to the
functional limitations which the hearings officer found credible. In
response to one hypothetical assuming Pemberton could stand or walk a total
of six hours daily, could lift no more than 20 pounds,
5
Pemberton's prescription medications at the time of the
hearing included Darvocet 100 mg., every 4 to 6 hours for pain,
although he takes only one tablet per day at bedtime; Flexoril 10
mg. (or its generic counterpart Cyclobenzaprine Hydrochloride),
twice daily for muscle spasms; and Xanax .5 mg., once a day for
anxiety, which he takes each afternoon.
6
At the suggestion of Dr. Pazell, Social Security disability
benefits have also been claimed, but the record does not show final
disposition.
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and could not perform work which required bending, climbing or walking on
uneven surfaces, the vocational consultant stated Pemberton could perform
50% of the available unskilled light jobs and all of the sedentary jobs.
A second hypothetical further restricting Pemberton to jobs permitting
alternate sitting and standing every 15 minutes reduced from 50 to 20 the
percentage of light jobs he could perform.
The hearings officer affirmed the denial of benefits, finding that
although Pemberton suffers from some degree of low back pain radiating into
his left hip and leg, he is not disabled for all regular employment and
thus not eligible for an annuity. His principal conclusions may be
summarized. There was no verification of active or "flaring" disc space
infection, which had not been found by the consulting physicians and is
only supported by claimant's attribution of "bad days" to such flaring,
while his doctor's view is that an infection is "smoldering." The unex-
plained absence of treatment by antibiotics for "the last dozen or more
years," together with the infrequency of medical consultations prior to
filing the claim tends to rebut the theory that there are episodes of
active disc space infection. There is conflict between claimant's
testimony that walking relieves pain and his doctor's note that walking
causes pain.7 The purportedly routine need to lie down for stretching
exercise is not tied to the degree of pain claimant feels, because
afternoon exercising occurs on both "good" and "bad" days. Claimant's
daily activities are "not consistent with what the hearings officer would
expect of an individual who is in such pronounced pain that he has to lie
down during the day." There was no credible showing that claimant would
need work with a stand/sit option, but even if this were true, there are
sufficient
7
It is clear that the hearings officer found this unreliable
assertion by Dr. Pazell as an indicator, along with others, that he
had become something of an advocate for Pemberton. On the walking
point, Dr. Pazell reported a recent decline in walking ability from
one hour to "10 minutes or so." R. 414.
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jobs that he could perform. There is no credible showing that lying down
for an hour during an eight hour work day is physically required or that
claimant's physical condition would cause him to miss work 25% of the time
because of the frequency of "bad days."
The Board affirmed and adopted the decision of the hearings officer.
This appeal followed.
II. Discussion
The Railroad Retirement Act provides annuities for "individuals
whose permanent physical or mental condition is such that they are unable
to engage in any regular employment." 45 U.S.C. § 231a(a)(1)(v).
Disability annuity decisions are evaluated compatibly with social security
case law. See Fountain v. Railroad Retirement Bd., 88 F.3d 528, 530 (8th
Cir. 1996) (noting disability provisions of Railroad Retirement Act and
Social Security Act are analogous and the pertinent governing regulations
are substantively identical).
We must uphold a decision to deny disability annuity payments if the
decision is supported by substantial evidence on the record as a whole.
See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996); see also Baker
v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984) (Commissioner has "zone of
choice" within which to operate without judicial interference). Evidence
both supporting and detracting from the Board's decision will be considered
(Johnston v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994)), but the decision
will not be reversed simply because substantial evidence may support the
opposite conclusion. Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995).
The hearings officer made the appropriate sequential determination
as required by the railroad retirement guidelines in evaluating whether
Pemberton was disabled in 1992. Fountain v. Railroad Retirement Bd., 88
F.3d 528, 530 (8th Cir. 1996); see also
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20 C.F.R. §§ 218.9, 220.100. He first determined that Pemberton did not
have impairments conclusively establishing qualification for benefits. See
20 C.F.R. pt. 220, app. 1. Upon finding Pemberton could not perform his
past relevant work with the railroad, the hearings officer focused on
whether Pemberton could perform other available work. While acknowledging
that Pemberton has some degree of chronic pain, the hearings officer
determined that the central issue was whether the pain was so severe
Pemberton could not perform any regular work. See Soger v. Railroad
Retirement Bd., 974 F.2d 90, 93 (8th Cir. 1992). For the reasons
previously stated, he found no disabling pain. Pemberton argues that the
hearings officer improperly discredited his subjective complaints,
disregarded the osteomyelitic involvement found by both current doctors,
and denied his claim without substantial evidence.
In addition to considering objective medical evidence, it is of
course true that subjective descriptions of disabling pain must also be
considered in light of such things as testimony about functional restric-
tions, observations of third parties regarding the claimant's daily
activities, levels of pain, the dosage and effects of medication, and
precipitating and aggravating factors. Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984) (per curiam).
In the present case, the hearings officer reviewed Pemberton's
activities and concluded they were not consistent with complaints of
constant pronounced pain. The hearings officer noted that Pemberton takes
care of his personal needs without assistance, does the laundry, cuts the
grass, drives a car to run errands and to visit his fiancee's parents 20
minutes away, and socializes with relatives and friends.
Credibility determinations of a claimant's subjective testimony lie
within the responsibility particularly given to the hearings officer and
the Board. See Benski v. Bowen, 830 F.2d 878,
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882 (8th Cir. 1987); see also Dixon v. Sullivan, 905 F.2d 237, 238 (8th
Cir. 1990) ("If an ALJ explicitly discredits a claimant's testimony and
gives a good reason for doing so, we will normally defer to that judg-
ment.").
The major issue on appeal is whether Pemberton's testimony attribut-
ing his inability to hold steady employment to frequent, incapacitating
"bad days" can reasonably be considered incredible or at least exaggerated.
A second issue relates to a claimed need to lie down and exercise for an
extended period in the afternoon.
Neither his fiancee nor any other third party familiar with
Pemberton's conduct testified to periodic days of such distress that he was
forced to cancel his usual routine or a scheduled activity. The "bad days"
apparently did not cause him to lose days in school in 1987, at a time when
his condition had purportedly stabilized. Pemberton asserts that his
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condition has deteriorated since 1987. His testimony is not verified by
increased visits to a doctor, any increase or material usage of antibiot-
ics, or taking the prescribed dosage of pain medication, see supra note 5.
Pemberton's fiancee claimed that his condition has worsened during the
three and one-half years of her experience, which began when he was able
to dance. There is, however, no showing of a sudden worsening in
Pemberton's condition in the period 1992-3, when the claim was filed.
8
There is, however, some conflict between his claim of a
"downhill slide," supported by Ms. Buerge, and other testimony that
his condition has not changed a great deal for over ten years. His
opening brief on appeal asserts, surprisingly, that "Pemberton
never alleged that his condition has become worse in the last few
years." Pet. Br. 34. If his acknowledgment of a stable condition
since the mid-1980s is accurate, additional credibility issues are
raised concerning the Pemberton and Buerge testimony, and adverse
evidence like the successful educational experience and the
Overesch evaluation becomes more significant.
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A causation defect also exists with respect to evaluating the "bad
days" testimony. Pemberton acknowledges that his bad days are sometimes
traceable to overexertion rather than a strictly medical condition.9 His
theory that some of his "bad days" are caused by a flaring infection is a
layman's concept unsupported by acceptable proof such as test results,10
and is weakened by the absence of any material evidence of treatment or
even consultation with doctors about treatment short of surgery.
Pemberton also challenges the hearings officer's rejection of Dr.
Pazell's opinion that he is totally disabled from any employment. A
treating physician's opinion is generally accorded great weight, but an
opinion as to whether a patient is able to perform gainful employment is
not a medical determination within the competence of a physician, but a
legal determination which must be made by the Board. See Nelson v.
Sullivan, 946 F.2d 1314, 1316-17 (8th Cir. 1991) (per curiam). As we have
observed, moreover, there are signs of advocacy in Dr. Pazell's approach
to this controversy,
9
Dr. Pazell records a statement that when Pemberton does not
exceed his physical limits "he can live a reasonably normal life."
R. 422.
10
In a December 1994 report, Dr. Pazell refers to "laboratory
findings" that have "documented the presence of infection."
Petitioner acknowledges that x-rays in April 1993 were evaluated as
showing "evidence of previous infection." R. 393 (emphasis
added). While it is undisputed that there was an active staph
infection some 15 years ago, and x-rays, laboratory studies or bone
scans can apparently identify active or acute infection of this
nature, the record does not reflect confirmation of such a
condition in recent years. On the contrary, Pemberton has declined
to have testing done, stating that he is uninsured and does not
have the money to spare for such testing.
He did receive a substantial sum from the settlement of his
claim against the railroad and bought a $200,000 house, but the
record reflects that when his income from investments is pooled
with the income of Ms. Buerge, the couple is in rather modest
circumstances. Nevertheless, the failure to seek confirmation of
a "flaring" or otherwise active infectious condition does reduce
the credibility of the claim.
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and the hearings officer noted several concerns about the reliability of
certain findings and comments.
In evaluating the objective evidence available, the hearings officer
reviewed the 1985 and 1988 reports of consulting examinations by Dr.
Overesch. Although Dr. Overesch restricted Pemberton from heavy work, his
clinical findings do not support a total disability ruling. The more
recent 1993 consultative report by Dr. Thomas-Richards also imposed certain
work restrictions on Pemberton based on the chronic low back pain
aggravated by exertional activity.
The contention that Dr. Thomas-Richards is supportive of Dr. Pazell
because he found osteomyelitic "affectation" and "involvement" does not
deal with the pertinent question, whether there has been recent active disc
space infection. Even Dr. Pazell's reference to a "smoldering" condition
does not go so far as claimant's theory of "flaring."11
Pemberton's contention that "flaring" spinal disc infection causes
such frequent "bad days" that he could not work at a regular job could
properly be ruled insufficient. There is no adequate showing of an active
infection; any special periods of suffering could be explained by his
having exceeded his limits through unusual straining and overexertion; and
there is no third-party support for claimant's contention that he
frequently is forced to limit his activities for days at a time.
11
The terminology of Dr. Pazell seems to be rarely used, but
does not in itself connote an active or flaring infection. See
e.g., Sprague v. Director, Office of Worker's Compensation
Programs, 688 F.2d 862, 866 n. 9 (1st Cir. 1982). From the
context, it appears to be Dr. Pazell's hypothesis that there is a
mildly active infection periodically creating great pain (rather
than an existing condition in remission), but the record does not
contain proof of an active infection.
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As to the need to exercise and stretch for as much as an hour in the
afternoon, the conduct is quite consistent with a routine of resting or
exercising that an unemployed person might adopt voluntarily, particularly
when, as here, he suffers from some degree of pain. Claims of fatigue and
pain requiring periods of napping and lying down during usual working hours
are familiar in disability cases. See e.g., Aborn v. Sullivan, 959 F.2d
111, 112 (8th Cir. 1992). Aborn holds they are subject to Polaski
analysis, and can be rejected in a case, like the present one, where there
are credibility issues resolved against a claimant. In this case, as the
hearings officer pointed out, the asserted need to lie on the floor for an
extended period in the afternoon is not correlated with severe pain. The
claim of overpowering necessity for exercising at a particular time each
day was reasonably rejected, considering the record as a whole.
For the reasons stated, and for the reasons advanced by the hearings
officer, we conclude that the decision of the Railroad Retirement Board is
within the "zone of choice" available to the trier of fact, and it is
affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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