Duncan v. Railroad Retirement Board

• Decision Date: 30 March 1967
• Docket Number: No. 10676.,10676.
• Citation: 375 F.2d 915
• Parties: Russell H. DUNCAN, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

375 F.2d 915 (1967)

Russell H. DUNCAN, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.

No. 10676.

United States Court of Appeals Fourth Circuit.

Argued December 8, 1966.

Decided March 30, 1967.

Lawrence L. Koontz, Jr., Roanoke, Va. (B. Purnell Eggleston and Eggleston, Holton, Butler & Glenn, Roanoke, Va., on brief), for petitioner.

Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, Chicago, Ill., (David B. Schreiber, Associate Gen. Counsel, Edward E. Reilly and David M. Goldman, Railroad Retirement Board, Chicago, Ill., on brief), for respondent.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.

SOBELOFF, Circuit Judge:

The Railroad Retirement Board denied Russell H. Duncan's application for a total disability annuity under 45 U.S.C.A. § 228b(a) (5) (1954) on the ground that, while the medical testimony established that he was disabled from returning to his former occupation, he was not physically or mentally disqualified from engaging in "any regular employment."¹ Duncan contends that the Board did not fulfill its duty under the statute by merely determining that he was not medically incapacitated from pursuing other gainful employment. His position is that once it was established to the Board's satisfaction that he was disabled from returning to his former occupation,² it became the Board's duty to make the additional determination whether there was a reasonable opportunity for persons with his residual capacities to secure employment of the type postulated by the Board. The appeal thus raises the threshold question whether the Board applied the proper legal standard in determining total disability.

In essence, Duncan argues that the standard required by section 228b(a) (5) is substantially similar to that prevailing under the Social Security Act to determine a claimant's right to disability benefits.³ The issue is sharply delineated by the Board's frank concession that under that Act the administrator is required "to ascertain what employment opportunities there are for the particular claimant, in his general area, with his residual capacity, age, education, etc.," while the standard the Board avowedly employs "does not take into account actual employment opportunities for a person with the claimant's residual capacities * * *."

While the basis of the Board's holding is not entirely clear, as will be discussed, we agree with the appellant that the decision must be set aside.

I

Duncan's application, filed in June, 1964, was denied by the Bureau of Retirement Claims, the initial adjudicating body. The Bureau's adverse decision was sustained by the agency Appeals Council. On appeal to the Board, and after review of the applicant's background, prior work experience, and the medical evaluations submitted by six physicians, it was concluded that Duncan's disabilities, taken either singly or in combination, did not render him unfit from a purely physical or mental standpoint to engage in some regular employment other than his former occupation.⁴ Considering his age and education, the Board suggested that he had the requisite physical and mental capacity to work at a variety of indoor occupations for which no special skill or experience was necessary, listing as possibilities employment as a cashier, ticket agent, or "similar occupations."

The question remains, however, whether standing alone mere physical capacity to perform the duties of these alternative callings is sufficient to warrant denial of Duncan's application. No reason suggests itself for adopting a different standard under the Railroad Retirement Act from that which the decisions have elaborated under the Social Security Act, which requires but a common-sense evaluation of a claimant's actual employability. While the language of the two statutes is not identical, both are aimed at the common underlying problem of providing for persons who, while not without some remaining physical capacity to undertake gainful employment, are nevertheless without practical employment opportunities by reason of their impairments. It would be illogical to predicate a different result on the Retirement Act's phraseology of "any regular employment," as contrasted with the Social Security Act's "any substantial gainful activity."⁵ The Board's own regulations paraphrase the disability criterion in terms resembling the Social Security Act:

An individual is permanently disabled from engaging in any regular employment whenever his physical or mental condition is such that he is 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 * * *. 20 C.F.R. § 208.17 (1966).

The Board, in its brief and oral argument on appeal, also advances no linguistic or policy reason dictating rejection of employability in fact as an important consideration in determining eligibility for a total disability annuity. It mounts an argument for a restrictive interpretation of section 228b(a) (5) upon the basis of that section's legislative history.

Initially, the railroad retirement legislation provided an occupational disability annuity only, and formulated as the test of eligibility whether "the carrier has retired the employee because of physical or mental inability to continue in active service." 48 Stat. 1285(1934). This provision was deleted by the Railroad Retirement Act of 1937 and a total disability annuity was substituted, requiring that the claimant be "totally and permanently disabled for regular employment for hire." 50 Stat. 309(1937). Dissatisfaction with this more stringent standard motivated Congress in 1946 to amend the Act again by restoring the occupational disability annuity introduced in 1934 in supplement of the total disability annuity legislated in 1937. At the same time, Congress revised the language in which the total disability test was couched to read as it does today.

The House Report submitted in conjunction with the 1946 amendments indicates that this revision in language was intended solely to conform the phrasing of the total disability provision to that of the added occupational disability annuity and was not intended to alter the standard of eligibility for a total disability annuity.⁶ The Board has marshalled extensive quotations and references to the 1946 congressional debate in an attempt to show what Congress at that time understood as the eligibility standard. The substance of these sources is reflected in a supplemental report of the Senate Committee on Interstate Commerce, explaining the change which the addition of an occupational disability annuity would work in retirement benefits.

This paragraph introduces the occupational disability feature. Under present law the only disability that is recognized is total and permanent disability to do any kind of work. If he claimant is not so disabled, if he is only disabled for work in his regular occupation, he is considered able to work in some other occupation regardless of whether his training, age, and background are such as to hold out any reasonable prospect that he could get other work. S.Rep. No. 1710, Part 2, 79th Cong., 2d Sess. 12 (1946).

The Board contends that this passage in the report constitutes approval of a strict interpretation of eligibility for total disability benefits.

Our view is rather that construing section 228b(a) (5) to incorporate employability in fact as a material element in determining eligibility for such benefits is not at all inconsistent with this legislative history. It does not follow that by restoring the occupational disability annuity in 1946 instead of amending the total disability provision. Congress intended to approve the then existing administrative interpretation of section 228b(a) (5). The draftsmen may well have been thinking in terms of the presence of the occupational disability feature introduced in 1934 and may merely have been seeking to give effect to their solicitude for those who had been disadvantaged by its deletion in 1937. So viewed, the congressional purpose harmonizes with the notion that employability in fact should be considered in the administration of social welfare legislation. The germinal circuit court opinion is Judge Friendly's in a Social Security case, Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960).⁷ While the Board cites a number of circuits as approving administrative decisions based solely on a physical disability standard,⁸ only one of these cases was decided after Kerner,⁹ and neither that case nor any other that we have found presents a reasoned judicial rejection of the position here urged by Duncan.

The Board seeks to fortify its position upon the theory of congressional acceptance of its restrictive standards since 1946. True, long-standing administrative interpretation of a statute, acquiesced in by all interested parties, may form the basis for an inference that the administrative interpretation is correct. However, courts are properly chary of equating mere inaction with approval, in the absence of a solid foundation for the inference of conscious ratification. The case cited to us by the Board, Brotherhood of Maintenance of Way Employees v. United States, 366 U.S. 169, 81 S.Ct. 913, 6 L.Ed.2d 206, (1961), which displays the factual underpinnings missing in the instant case, weakens, rather than reinforces, the Board's position. There the question was whether revision of a pending bill was meant to attenuate the protections afforded railroad employees adversely affected by carrier mergers. As the Court noted, "all the signposts of congressional intent, to the extent that they are ascertainable, indicate that the administrative interpretation is correct." 366 U.S. at 179, 81 S.Ct. at 918. In that case, language guaranteeing the protections urged by railroad employees was first specifically incorporated and then deleted from the ultimate bill, and words of a more general...