Dray v. Railroad Retirement Bd.

• Decision Date: 01 December 1993
• Docket Number: No. 92-3115,92-3115
• Parties: Jon P. DRAY, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1306

10 F.3d 1306

Jon P. DRAY, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.

No. 92-3115.

United States Court of Appeals Seventh Circuit.

Argued March 2, 1993.

Decided Dec. 1, 1993.

Joseph W. Shull (argued), Fort Wayne, IN, for petitioner.

Karl T. Blank (argued), Catherine C. Cook, Railroad Retirement Bd., Bureau of Law, Chicago, IL, for respondent.

Before RIPPLE, KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Jon P. Dray petitions for review of a decision by the United States Railroad Retirement Board ("the Board") denying him a permanent disability annuity under 45 U.S.C. Sec. 231a(a)(1)(v). By a 2-1 majority, the Board affirmed and adopted the decision of the hearing officer, who herself sustained the rejection of Dray's claim by the Bureau of Retirement Claims ("the Bureau"). We deny the petition for review.

I.

On a winter day in 1985, Dray lost his footing while working on a telephone pole. He fell to the frozen ground twenty feet below, landing in a sitting position. Even though his lower back caused him some trouble after the accident, he remained on the job at Conrail. But when Dray went to lift a five-gallon can of gasoline in the summer of 1986, sudden pain shot through his back. After he consulted with a neurological surgeon several times in 1986 and 1987, the regional medical director of Conrail informed him that he was disqualified from his duties as signalman. Since then, in July 1987, Dray has not worked for any other employer.

A number of doctors have examined Dray or had him in their care. On the advice of Dr. Donald L. Myers, a neurological surgeon, Dray underwent a diskectomy ¹ in June 1988. Dr. Myers examined Dray once before surgery and twice after, on December 1, 1988, and April 20, 1989. Dr. Steven Mandel, a neurologist, saw Dray twice before surgery, and three times afterwards, on December 1, 1988, April 19, 1989, and January 29, 1990. Dr. Mandel also submitted for review three letters containing his findings (dated June 2, 1989, April 5, 1990, and June 15, 1990), including his responses to a Board form detailing Dray's physical limitations. In connection with Dray's application for a disability annuity, the Board sent him for an orthopaedic examination with Dr. Michael Arata on March 2, 1989.

Claiming total disability based on back injury and chronic pain, Dray filed for benefits in November 1988. The Bureau found on April 18, 1989, that although Dray had a back injury that caused some pain and muscle spasms, he was not totally and permanently disabled for all work. On reconsideration of Dray's claim, the Bureau determined that despite Dray's moderately severe condition, he could do medium work.

In July and December 1990 the hearing officer held hearings. At the first hearing Dray submitted a report from a vocational expert and testified about his work experience, medical history, and daily activities. Delana Dray, his wife, testified about her observations of Dray. During the second hearing, a vocational consultant presented expert testimony on jobs Dray could perform despite his impairments. The hearing officer found Dray to be not disabled and denied his application for an annuity.

Dray appealed from that decision to the three-member Board. He also supplemented the record with an examination report from Dr. Arthur C. Warr, an orthopaedic surgeon. The Board affirmed by a 2-1 margin, adopting the decision of the hearing officer.

II.

Appellate review of decisions by the Board closely emulates our approach in appeals concerning Social Security disability benefits. We will sustain a decision of the Board that is supported by substantial evidence and based on the proper legal criteria. Hayes v. Railroad Retirement Bd., 966 F.2d 298, 302 (7th Cir.1992); Aspros v. Railroad Retirement Bd., 904 F.2d 384, 386 (7th Cir.1990). Evidence is insubstantial if it offers only a "mere scintilla" of proof. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). If, however, the Board's finding rests on "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," id., we will affirm. We may not weigh the evidence a new and decide the ultimate question whether a claimant is disabled. Nor may the court supplant the judgment of the Board with its own reasoning, Lambert v. Railroad Retirement Bd., 929 F.2d 1197, 1200 (7th Cir.1991), even if some evidence in the record contradicts the Board's findings. Soger v. Railroad Retirement Bd., 974 F.2d 90, 92 (8th Cir.1992). Likewise, the court must do more than merely rubber stamp Board decisions. See Ehrhart v. Secretary of HHS, 969 F.2d 534, 538 (7th Cir.1992). When, as here, the Board adopts the hearing officer's opinion without issuing further findings, we evaluate the judgment of the hearing officer. Hayes, 966 F.2d at 302.

The issue before the hearing officer was whether Dray had "a permanent physical or mental condition [such that he was] unable to engage in any regular employment." 45 U.S.C. Sec. 231a(a)(1)(v). She answered that question in the negative after following the five-step procedure for evaluating disabilities. 20 C.F.R. Sec. 220.100(b) (1991). At step four, the hearing officer found that Dray's impairments were neither listed nor "medically equal" to any on the Listing of Impairments. In addition, the hearing officer determined that Dray was unable to do his past relevant work. Dray does not appear to contest these findings.

The battle lines form instead at the fifth and final step of the disability analysis, where the burden shifts to the Board to show that the claimant can perform some other job. Campbell v. Shalala, 988 F.2d 741, 743 (7th Cir.1993). "If the claimant cannot do other work [i.e., besides his former work], the Board will find him or her disabled. If the claimant can do other work, the Board will find the claimant not disabled." 20 C.F.R. Sec. 220.100(b)(5)(i). The hearing officer found Dray fit for occupations outside of his prior experience at Conrail.

Dray contends that he is disabled and entitled to a total and permanent disability annuity from the date he claimed. First, he argues that the hearing officer improperly rejected the opinion of Dr. Mandel, whom he labels his "treating physician." We agree. Second, he argues that the hearing officer did not give proper consideration to his complaints of pain. We find this contention unpersuasive.

A. Treating physician

Dray argues that the opinion of a treating doctor normally is entitled to great weight. Petitioner's Brief at 19. This assertion ignores Amax Coal Co. v. Franklin, 957 F.2d 355 (7th Cir.1992), which questions "the traditional but unwarranted preference of some administrative law judges in disability cases" for the opinion of a treating physician over that of a nontreating specialist. Id. at 359. Certainly in some instances the conclusions of the treating physician might be more probative than a specialist's observations--for example, if the treating doctor learns something from having had the opportunity "to study the course of the developing disease." Id. But the treating doctor's knowledge matters only if the " 'ability to observe the claimant over an extended period of time is essential to understanding' his condition ... and [the] treating physician knows something about the disease in question." Id. (citations omitted); see also Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, 972 F.2d 880, 884 (7th Cir.1992); Micus v. Bowen, 979 F.2d 602, 607-09 (7th Cir.1992) (recognizing trier of fact's ability to consider not only the treating physician's possible bias, but also the doctor's opportunity to observe claimant over a long period of time). To summarize: In the case of dueling doctors, it remains the province of the hearing officer to decide whom to believe--a treating doctor whose experience and knowledge about the case may (or may not) be relevant to understanding the claimant's condition, or a consulting specialist who may bring expertise and knowledge about similar cases. At all events, "resolution of evidentiary conflicts lies within the exclusive domain of" the hearing officer, Ehrhart, 969 F.2d at 541, so long as those factual findings are supported by substantial evidence.

The hearing officer noted that Dr. Mandel found Dray incapable of any physical employment since April 19, 1989, and not capable of sedentary work as of January 1990 "due to a permanent neurological impairment referable to his lumbar spine." Decision of the Hearing Officer, No. 91-607, May 31, 1991, at 15. Apparently the hearing officer rejected Dr. Mandel's assessment of Dray's residual functional capacities for two reasons: (1) Dr. Mandel's conclusions conflicted with the opinions of Dr. Arata (the consulting orthopaedist) and Dr. Myers (the surgeon); (2) Dr. Mandel's opinion was not supported by objective medical evidence establishing the degree of limitations he attributed to Dray.

1. Dr. Mandel v. other doctors

In discounting Dr. Mandel's assessments, the hearing officer concluded that his findings were not consistent with the reports of other physicians. Decision of the Hearing Officer at 15. The hearing officer is by all means entitled to reconcile contradictory evidence in the record. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.1990); Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.1987). The existence of an evidentiary dispute is not a ground for reversing the hearing officer's decision to give credence to one version of the facts over another. See Herr, 912 F.2d at 181 n. 4; Reynolds v. Bowen, 844 F.2d 451, 454 (7th Cir.1988). Be that as it may, the hearing officer must not only offer some principled basis explaining why one account is worthier than another, but also explain with particularity the basis of the decision. Cf. Thomas v. Sullivan, 801 F.Supp. 65, 68 (N.D.Ill.1992). Within "[r]easonable limits, the reasons for rejecting evidence must...