Andrews v. Railroad Retirement Bd.
| Decision Date | 26 June 1978 |
| Docket Number | No. 76-1916,76-1916 |
| Citation | 595 F.2d 676 |
| Parties | William B. ANDREWS, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John R. Sarnowski, Jr., Gen. Atty., Railroad Retirement Bd., Chicago, Ill., with whom Dale G. Zimmerman, Gen. Counsel, and Edward S. Hintzke, Asst. Gen. Counsel, Railroad Retirement Bd., Chicago, Ill., were on brief, for respondent.
Before ROBINSON and MacKINNON, Circuit Judges, and HOWARD T. MARKEY, * Chief Judge, United States Court of Customs and Patent Appeals.
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
We are called upon to review a decision of the Railroad Retirement Board denying petitioner a disability annuity under the Railroad Retirement Act of 1937. 1 By the terms of the Act, petitioner is entitled to the annuity only if he has a "permanent physical or mental condition . . . such that (he is) unable to engage in any regular employment." 2
An implementing regulation of the Board defines "permanent physical or mental condition" as an "impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months." 3 Another regulation provides:
An individual shall be deemed to be permanently disabled for work in any regular employment if he has a permanent physical or mental condition . . . and he is because of such condition unable to perform regularly, in the usual and customary manner, the substantial and material duties of any regular and gainful employment which is substantial and not trifling, with any employer, whether or not subject to the act. 4
The question we are to resolve is whether there is substantial evidence to support the administrative conclusion that petitioner is not permanently disabled within the contemplation of the Act and the Board's regulations. Our examination of the record leads us to answer in the negative.
Petitioner was employed in the railroad industry between November 18, 1942 and January 9, 1959. 5 He then worked as a parcel post truck driver for the United States Postal Service from January 23, 1959, until April 13, 1973, when the Civil Service Commission approved a disability retirement. 6 On April 16, 1973, he applied for the disability annuity at stake in this litigation. 7 Since the issue is the adequacy of support for the administrative decision thereon, we recount the relevant evidence in some detail.
With his application petitioner submitted two medical reports. One was by Dr. Saul Holtzman, who had treated petitioner in 1969 for a neck injury sustained in an automobile accident; the other was by Dr. Herbert M. Wechsler, who had conducted an examination in connection with petitioner's disability retirement from the Postal Service. 8 Dr. Holtzman stated that in 1969 petitioner "complained of headache, neck pain radiating in both arms, backache (and) nausea," 9 and gave a diagnosis of
(w)hiplash injury of the neck, traumatic in origin, severe (s)prain of the midthoracic and lumbosacral spine, traumatic in origin, moderately severe. Post-traumatic headaches. Osteoarthritis of the cervical and thoracic spine. 10
Dr. Holtzman noted that petitioner had improved during the course of treatment but that "further time is necessary to determine whether the present symptoms will further subside or continue on a protracted or chronic basis due to the soft tissue injuries and the activation of the arthritis in the cervical spine." 11
Dr. Wechsler's report of February 28, 1973, listed
(Blood pressure is) 170/100. Tenderness and discomfort on motion of neck Slight dyspena on exertion Protuberant abdomen. Pains on bending.
X-rays (of) cervical and thoracic spine (show) marked arthritic changes . . . 12
and set forth this diagnosis:
Coronary artery disease
Hypertension essential
Diabetes mellitus
Hyperthrophic arthritis cervical and thoracic spine
Malrotation of the intestinal tract with recurrent pain
Anxiety reaction 13
Dr. Wechsler concluded that petitioner was unable to discharge the duties of the job he then had delivering parcels and that his disability, which began in May, 1969, was of indefinite duration. 14 In another statement dated April 24, 1973, Dr. Wechsler further advised that "(i)n 1962 (petitioner) had a nervous breakdown and was in Freedman (Sic ) Hospital, Washington, D.C., 30 days." 15
On November 12, 1973, at the Board's request, petitioner was examined by Dr. Stanley R. Rothschild, an orthopedic surgeon. Dr. Rothschild reported that petitioner "complain(ed) of pain in the neck" but on physical examination had "a full painless range of motion of his neck, except on full forward flexion," 16 and that x-rays showed "a moderate amount of cervical spondylosis" and "a little spur formation between C-4-5." 17 His diagnosis was "(c)ervical spondylosis C-5-6 and C-4-5- probably resulting from an old trauma." 18
The Bureau of Retirement Claims, the Board's initial adjudicating unit, notified petitioner on July 19, 1973, that the disability annuity was being denied on the ground that his physical condition was "not sufficiently severe to support (his) claim that (he was) permanently disabled for all regular employment." 19
Petitioner appealed to the Board's appeals referee, the intermediate appellate stage 20 and transmitted the report of Dr. Everett J. Gordon, 21 another orthopedic surgeon who examined petitioner on May 13, 1970, and again on January 7, 1974. Dr. Gordon stated that petitioner complained of problems with "his head, neck and shoulders" and of "a constant headache"; 22 and that examination revealed that petitioner's blood pressure was 170/100 and that he was "heavy and overweight similar to his condition in 1970." 23 Dr. Gordon noted some limitation of neck movement and x-ray disclosure of a 24 His diagnosis was 25 And, "(c)ombined with his other medical problems of hypertensive cardiovascular disease, diabetes mellitus and anxiety reaction," Dr. Gordon said, "I believe he can be considered totally disabled for work." 26 A Board-arranged examination by Dr. Edward W. Youngblood on March 8, 1974, yielded a diagnosis of "1) Osteoarthritic and radicular chest pain Esophagitis 2) Exogenous Obesity and liable Hypertension 3) Adult diabetes (by history)." 27
At a hearing on May 16, 1974, before the appeals referee, petitioner and Dr. Gordon were the only witnesses. 28 Petitioner testified that daily he experienced "severe chest pains" 29 and pain "in the back, (his) arms and (his) hands"; 30 "headaches . . . on a 24 hour basis"; 31 and "arthritis, stiffness of the neck (and) diabetes." 32 He avowed that he could no longer drive a car because of chest pains and that all he could do was "sit on the porch, read papers, magazines, books and that's about it." 33 He also adverted to anxiety problems, which he was unable to describe. 34
Dr. Gordon testified that x-rays of petitioner's neck "demonstrated . . . limited . . . motion consistent with the arthritis" 35 and that 1974 x-rays, in comparison with 1970 x-rays, "showed a definite increase in the arthritis, showing that it was becoming progressively worse." 36 He said that while the hypertension and arthritis could be controlled to some extent by medication, that would cause him to be "drowsy and lethargic and his reactions, reflexes (would) be diminished." 37
In response to questions concerning petitioner's ability to work on a regular basis, Dr. Gordon stated that in consequence of his "arthritis, high blood pressure, (and) anxiety reaction" and because "he gets nervous when he gets these difficulties, the blood pressure goes up, he gets very nervous", he "(could not) be classified as a regular employee." 38 Dr. Gordon explained that while petitioner might occasionally be able to work at a job involving sitting part of the day and moving around part of the day, 39 At most, said Dr. Gordon, appellant "might occasionally (be able to) do some sporadic type of work." 40
On September 25, 1974, the appeals referee sustained the ruling of the Bureau of Retirement Claims that petitioner was ineligible for a disability annuity. 41 After summarizing the medical evidence, the referee concluded that petitioner's condition was "not such as to be disabling for work in any regular employment within the meaning of the . . . Act." 42
Petitioner then appealed to the Board, 43 the last step afforded by the administrative scheme. The Board retained a vocational consultant, Dr. Reubin S. Horlick, to review the file on petitioner. 44 Dr. Horlick submitted a statement dated April 25, 1975 in which he observed that the
(r)eports from medical examiners indicate a history of asteoarthritis (Sic ), diabetes, headaches, heart condition, hypertension and cardiovascular disease but, according to the reports, the residual loss is not sufficiently disabling to permanently prevent (petitioner) from engaging in regular, substantial employment, although he claims inability to walk or stand for long periods of time. 45
Dr. Horlick believed petitioner, "taking into consideration his educational attainments, his training and experience," 46 could handle...
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