Reter v. Railroad Retirement Board , 465 F.3d 896 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4290
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Clark K. Reter, *
*
Petitioner, *
* On Petition for Review
v. * of a Decision of the
* Railroad Retirement Board.
Railroad Retirement Board, *
*
Respondent. *
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Submitted: June 13, 2006
Filed: October 23, 2006
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Before LOKEN and ARNOLD, Circuit Judges, and DOTY,1 District Judge.
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ARNOLD, Circuit Judge.
Clark Reter filed a claim under the Railroad Retirement Act (RRA) for
disability annuity benefits based on his diminished hearing capacity and pain in his
back, shoulders, legs, arms, and hands. See 45 U.S.C. § 231a(a)(1)(v). The Railroad
Retirement Board denied his claim. He appealed and we affirm.
Mr. Reter was employed by the railroad industry from 1977 until 1988, when
he stopped working after injuring his back. A few years later, Mr. Reter obtained an
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
associate's degree in commercial art. He then worked both as a graphic artist and as
a web designer until 2001, when he stopped working because of alleged pain in his
arms and hands. When Mr. Reter applied for a disability annuity under the RRA, his
initial request was denied, as was his request for reconsideration. After holding an
administrative hearing, a hearing officer sustained the denial of Mr. Reter's claim.
Mr. Reter then appealed to the Railroad Retirement Board, and a majority of the Board
"adopted" the hearing officer's decision, added a few additional comments, and denied
the claim.
I.
If service requirements are met, the RRA provides an annuity to former railroad
employees "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). Because the rules
for determining disability under the RRA are substantively identical to those under the
more frequently litigated Social Security Act, we use social security cases as
precedent for railroad retirement cases. Fountain v. Railroad Ret. Bd., 88 F.3d 528,
530 (8th Cir. 1996); Burleson v. Railroad Ret. Bd., 711 F.2d 861, 862 (8th Cir. 1983).
We will affirm the Board's denial of disability annuity payments if its decision "is
supported by substantial evidence, is not arbitrary, and has a reasonable basis in law."
Worms v. Railroad Ret. Bd., 255 F.3d 502, 505 (8th Cir. 2001).
To determine whether a claimant is entitled to disability annuity benefits, the
Railroad Retirement Board, and the hearing officer on behalf of the Board, asks a
series of questions derived from 20 C.F.R. § 220.100(b). Initially, the hearing officer
determined that Mr. Reter was not engaged in "substantial gainful" employment, see
20 C.F.R. § 220.100(b)(1), and concluded at the second step that Mr. Reter had a
"severe" hearing impairment, see 20 C.F.R. § 220.100(b)(2). Moving to the third step,
the hearing officer found that Mr. Reter did not have an impairment or combination
of impairments on a list appended to the regulations or medically equivalent to an
impairment on that list. (A claimant with a listed or equivalent impairment is
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generally deemed disabled.) See 20 C.F.R. § 220.100(b)(3). At step four, the hearing
officer determined that Mr. Reter could return to his "past relevant work" as a graphic
artist or web designer and therefore denied him benefits pursuant to 20 C.F.R.
§ 220.100(b)(4). Had the hearing officer concluded that Mr. Reter was unable to do
his prior work, the burden would have shifted to the government to show that he could
do other work in the economy. See 20 C.F.R. § 220.100(b)(5).
II.
Mr. Reter maintains that the hearing officer erred at the second step of the
inquiry by considering separately, rather than in combination, the effect of his hearing
impairment and his other impairments on his ability to perform basic work activities.
He maintains that this error carried over to step four, resulting in his being denied
disability benefits.
At the second step, Mr. Reter had to show that he had a medically severe
impairment, which is an impairment or combination of impairments that "significantly
limit[ed] his ... physical or mental ability to do basic work activities." 20 C.F.R.
§ 220.100(b)(2). Even an impairment that is not severe by itself must generally be
considered in combination with the claimant's other impairments, and "[i]f a medically
severe combination of impairments is found" at step two, "it will be considered
throughout the disability evaluation process." 20 C.F.R. § 220.104.
In this case, the hearing officer determined at step two that Mr. Reter had a
severe hearing impairment. After discussing Mr. Reter's other alleged impairments
in detail, however, the hearing officer concluded that Mr. Reter had not presented
sufficient evidence to support those allegedly painful impairments. Neither the
hearing officer nor the Board in its separate comments specifically considered
Mr. Reter's hearing impairment "in combination" with his other alleged impairments
during the evaluation process. But no error occurred unless Mr. Reter met his burden
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of showing that he had another medically determinable impairment. See Fountain,
88 F.3d at 533; cf. Cruse v. Bowen, 867 F.2d 1183, 1187 (8th Cir.1989).
The hearing officer described the record supporting Mr. Reter's other
impairments as "extremely thin and equivocal at best." Mr. Reter was not treated for
these alleged impairments, and the hearing officer refused to "offer a speculative
diagnosis" or to base a finding of disability on alleged impairments for which there
was no medical diagnosis, treatment, or assessment of the efficacy of any treatment.
Virtually the only evidence that Mr. Reter offered to support the impairments was a
typewritten document in which he described his daily activities and complaints of
pain, and his own testimony essentially reiterating what he had said in that document.
The hearing officer found that Mr. Reter's "allegations of widespread, persistent pain"
were "vastly disproportionate to the evidence" and thus not credible. The Board
adopted the hearing officer's decision and did not question this credibility finding.
Because Mr. Reter relied so heavily on his own subjective complaints, we
believe that his credibility plays a particularly significant role in this case. Although
the Board may not disregard a claimant's subjective complaints based solely on the
lack of objective medical evidence, that is one of many relevant circumstances that
may be taken into account. See Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)
(relying on Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (per curiam
order)); see also Fountain, 88 F.3d at 531. Here the credibility finding had additional
support: As we have said, Mr. Reter was not being treated for his alleged pain and
there was no evidence of previous treatment. He testified that he was able to do little
around the house and that his wife and mother-in-law did tasks that his pain prevented
him from doing. But he did not offer their testimony or any other third-party
testimony about his daily activities, his limitation of movement, the "duration,
frequency, and intensity of [his] pain," or his "functional restrictions." See Siemers,
47 F.3d at 301. In addition, the hearing officer noted that Dr. Stanley Rabinowitz, a
consulting physician hired by the Board, examined Mr. Reter and found that he had
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no difficulty in ambulation or restrictions on his range of motion. In addition, the
hearing officer referred to Dr. Rabinowitz's findings that Mr. Reter's straight leg
raising, grip strength, digital dexterity, motor strength, and sensory examination was
negative for limitations and the doctor's conclusion that Mr. Reter could do work at
the medium, light, or sedentary levels of exertion. Dr. Rabinowitz also determined
that Mr. Reter was not limited in his ability to perform manipulative functions.
Although Dr. John Debush, another consulting physician hired by the Board,
concluded that Mr. Reter had some limitations not found by Dr. Rabinowitz, the
hearing officer determined that the findings of Dr. Debush were based on Mr. Reter's
subjective complaints, which were not credible. In any event, neither the hearing
officer nor the Board was required to accept Dr. Debush's findings, which differed
from those of another qualified physician. See Bowman v. Railroad Ret. Bd., 952 F.2d
207, 211 (8th Cir. 1991). We believe that the hearing officer's credibility finding was
adequately supported, and that the evidence provides ample support for his conclusion
that Mr. Reter's only medically determinable impairment was his hearing loss. We
therefore reject Mr. Reter's contention that the Board was required to consider his
hearing impairment "in combination" with other alleged impairments.
III.
Mr. Reter had the burden of showing that he had a medically severe impairment
or combination of impairments that prevented him from working as a web designer
or graphic artist. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). In concluding
that Mr. Reter had not met his burden, the hearing officer noted that Mr. Reter was
able to perform substantial work long after his hearing impairment was first diagnosed
in 1990. The hearing officer recognized that Mr. Reter's hearing capacity had
diminished since then, particularly in his left ear. But he observed that a new
audiogram that the Board ordered showed that the claimant had only a marginal
decrease in his hearing capacity in his right ear and that his speech discrimination in
that ear was excellent and could be further improved with appropriate assistance. The
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Board agreed with the hearing officer that Mr. Reter was able to work as a web
designer or graphic artist. Having carefully reviewed the record, we reject Mr. Reter's
remaining contentions that the Board's findings and decision were not supported by
substantial evidence, and we affirm.
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