Elam v. Railroad Retirement Bd.
Decision Date | 22 January 1991 |
Docket Number | No. 89-3634,89-3634 |
Citation | 921 F.2d 1210 |
Parties | Louis E. ELAM, Petitioner-Appellant, v. RAILROAD RETIREMENT BOARD, Respondent-Appellee. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Michael J. Babboni, St. Petersburg, Fla., for petitioner-appellant.
Michael Moran, U.S. Railroad Retirement Bd., Tampa, Fla., Edward S. Hintzke, Steven A. Bartholow, Board Members of U.S. Railroad Retirement Bd., Chicago, Ill., for respondent-appellee.
Petition for Review of An Order of the Railroad Retirement Board.
Before KRAVITCH and ANDERSON, Circuit Judges, and GODBOLD, Senior Circuit Judge.
Louis Elam appeals from the Railroad Retirement Board's denial of disability benefits. He contends that the Board improperly discounted evidence that his injuries cause him pain sufficient to establish disability. He further asserts that the Board erred by not applying the correct legal standard to his testimony concerning pain and by giving insufficient reason for discrediting the opinions of two doctors who found him to be disabled. We reverse and remand to the Board with directions to enter a finding of total disability.
Louis Elam worked as a railroad brakeman until he was injured in November 1984 when the train in which he was riding stopped suddenly and he was thrown to the floor and landed on his back. Since the accident he has complained of severe pain in his back and right leg and of swelling in that leg. The pain in his back began soon after the accident. He visited two hospital emergency rooms on the day of the accident and returned to the second three days later. He was later hospitalized for one week in late 1984 because of lumbosacral strain. Dr. Edwin Season treated Elam while he was hospitalized.
Elam continued to complain of persistent lower back pain after he left the hospital. Dr. Season x-rayed Elam's spinal column when he was again hospitalized in March 1985. The spinal x-ray revealed no abnormalities, and Dr. Season concluded that Elam's prospects for recovery were good. In May Elam underwent an x-ray of the veins in his right leg. Dr. Richard Frazier found no abnormalities and stated that he believed that the swelling Elam had experienced in his leg was a normal result of the trauma caused by the accident.
In July Dr. Blair Vermilion examined Elam and found no evidence of significant vascular disease. In August the continued swelling in the leg caused Dr. Vermillion to suspect that a mild venous insufficiency existed that might prevent Elam from sitting or walking for long periods. Later that month the railroad informed Elam that he was medically unqualified for his previous job because of his continuing lower back and leg symptoms.
Dr. John McDonough examined Elam in October and found no sign of serious venous abnormalities in his leg. Dr. Michael Kramer performed a neurological examination a month later and found no significant abnormalities relating to either Elam's back or leg. In January 1986 Dr. Vasken Tenekjian examined the leg, found it to be swollen, and concluded that Elam was probably suffering from chronic venous insufficiency. The doctor believed that the impairment would prevent Elam from performing work that required substantial standing or walking but not sedentary work.
During January Elam's treating physician, Dr. Bernard Bacevich, submitted office notes to Elam's attorney that indicated he might be suffering from a back sprain and venous insufficiency. Dr. Bacevich stated that the back condition would prevent Elam from returning to his former job and that the swelling in the his right leg would prevent him from doing even sedentary work.
Elam filed an application for a total and permanent disability annuity with the Board on March 18, 1986. In April the Board ordered Elam to undergo an orthopedic examination by Dr. Hassan Vaziri. Dr. Vaziri concluded that Elam could not return to the brakeman job but that he could engage in light or sedentary work. Dr. David McCollum examined Elam in July. He recorded Elam's complaints of lower back and leg pain that made it difficult for him to walk more than two blocks. Dr. McCollum was unable to find the cause of the pain.
Dr. Bacevich was deposed in October 1986. He testified that he had diagnosed Elam's back injury as lumbosacral strain and that this diagnosis was based primarily on Elam's complaints of pain. Dr. Bacevich also testified that Elam could not do sedentary work because prolonged sitting would aggravate the pain in his back and leg.
In December the appeals referee requested that Dr. Larry Williams perform a vascular examination. Dr. Williams concluded that Elam could not do work that required him to sit or stand for prolonged periods. Like Dr. Bacevich, Dr. Williams based his conclusion largely on Elam's complaints of pain. He contended that a condition such as Elam's did not lend itself to objective interpretations.
At the hearing Elam testified that he had constant pain in his right leg. He also stated that the pain increased with walking and that as a result he could walk no more than three or four blocks. He asserted that he must elevate the leg to alleviate the pain, that the pain in his back became more severe in the evening, and that there was "no way" he could do a job that would require him to sit at a desk all day.
The appeals referee held that Elam remained able to engage in the full range of sedentary work and in a wide range of light work. He found "very little objective evidence" relating to the back injury to support a finding of total disability. He held that while there was some evidence of a back injury, there was "no objective neurological or orthopedic evidence of an impairment of such severity as to induce the level of pain alleged by appellant."
The referee also rejected Dr. Bacevich's and Dr. Williams' conclusion that Elam was totally disabled, although the former was the treating physician and the Board had designated the latter to examine Elam. While acknowledging the deference he owed to Dr. Bacevich as treating physician, the referee found that the doctors' conclusions were not supported by objective evidence. He instead accepted the conclusions of the other doctors who had examined Elam, stating that objective evidence supported their conclusion that Elam's back and leg impairments were of only minimal severity and that Elam was capable of light or sedentary work. He also found no evidence of severe, disabling pain. The Board affirmed on October 25, 1988.
We will not set aside the Board's determinations if they are supported by substantial evidence and are not based on an error of law. George v. Railroad Retirement Board, 738 F.2d 1233, 1235 (11th Cir.1983). Substantial evidence is more than a scintilla but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). But this standard of review applies only to findings of fact, and "no similar presumption of validity attaches to the [Board's] conclusions of law, including determination of the proper standards to be applied in reviewing claims." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986). The provisions of the Railroad Retirement Act are so closely analogous to those of the Social Security Act that regulations and cases interpreting the latter are applicable to the former. Goodwin v. Railroad Retirement Board, 546 F.2d 1169, 1172 (5th Cir.1977).
It was once the law of this circuit that a claimant could establish his or her disability by subjective pain testimony alone. See e.g. Boyd v. Heckler, 704 F.2d 1207, 1210-11 (11th Cir.1983); Simpson v. Schweiker, 691 F.2d 966, 970 (11th Cir.1982). When these cases were decided Congress had not yet addressed the issue of subjective pain testimony, and, although the Secretary had promulgated regulations in 1980 that adopted a more objective pain standard, Boyd and Simpson did not discuss the regulation or the standard that it set out. The regulation provides:
If you have a physical or mental impairment, you may have symptoms (like pain, shortness of breath, weakness or nervousness). We consider all your symptoms, including pain, and the extent to which signs and laboratory findings confirm these symptoms. The effects of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms.
20 CFR Secs. 404.1529 and 416.929 (1988) (emphasis added). Thus our decisions in Boyd and Simpson were inconsistent with the Secretary's regulations, because these decisions permitted a finding of disability based solely on subjective pain testimony, while the regulations clearly did not. See Bates v. Sullivan, 894 F.2d 1059, 1065 (9th Cir.1990) (concurring opinion) ( ).
The inconsistency was not unique to the Eleventh and Ninth Circuits, so that the regulations did not have the intended effect of establishing a new, uniform pain standard. Id. Congressional dissatisfaction with some courts' reluctance to adopt the new standard led Congress to amend the statute to explicitly provide that subjective pain testimony alone could not support a finding of disability. See S.Rep. No. 466, 98th Cong.2d Sess., 23-24 (1984) (); See generally Bates at...
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