Lisee v. Railroad Retirement Bd.
Decision Date | 15 November 1993 |
Docket Number | No. 92-4323,92-4323 |
Citation | 12 F.3d 213 |
Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. John L. LISEE, Petitioner-Appellant, v. RAILROAD RETIREMENT BOARD, Respondent-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
On Appeal from the Railroad Retirement Board; No. 3929.
R.R. Retirement Bd.
AFFIRMED.
Before: KEITH, NELSON, AND RYAN, Circuit Judges.
Petitioner, John L. Lisee, appeals the Railroad Retirement Board's ("Board") denial of a disability annuity under Sec. 2(a)(1)(v) of the Railroad Retirement Act of 1974 ("Act"). 45 U.S.C. Sec. 231 et seq. Petitioner argues the Board's decision was not supported by substantial evidence and was based on errors of law. Specifically, Lisee claims he lacks the capacity to perform a full range of sedentary work. For the reasons stated below, we AFFIRM the Board's decision adopting the findings of the hearings officer.
John L. Lisee was born in 1944. He finished high school and later worked for the Port Huron and Detroit Railroad ("Railroad") from 1970 to 1984. In the fall of 1982, Lisee fell into a hole while working and injured his back. After his injury, he returned to work for around twenty days until the pain became too severe. In June 1983, to alleviate his pain, Lisee underwent a lumbar laminectomy to remove a herniated lumbosacral disc. After the surgery and an eight month recovery period, Lisee returned to work. After one week, Lisee found he could not perform his brakeman/conductor job because it involved heavy lifting and frequent bending. He has not worked for a railroad nor engaged in substantial gainful activity since July 1984.
In 1986, the Petitioner first applied for a disability annuity under the Act alleging he was injured while working as a railroad brakeman, continued to work for some time, and ultimately underwent laminectomy for the pain in his back, legs and buttocks. Lisee alleged he last worked regularly May 15, 1984 and became disabled May 16, 1984. The Bureau of Retirement Claims, the Board's initial adjudicating unit, denied Lisee's application finding that he was not precluded from all regular employment. Lisee did not appeal and this judgment became final.
There is no medical evidence from October 1986 to March 1989. In March 1989 Lisee visited Dr. S. Hossain complaining of numbness and a burning sensation in his lower extremities, particularly on his left side. Dr. Hossain referred Lisee to Dr. Mostafa S. Sadry, a neurologist. In 1989, Dr. Sadry examined Lisee and found he exhibited no muscle weakness, displayed a positive straight leg test of 85 degrees, showed a loss of sensation in his left lower back, and did not show a reflex in his left ankle. Sadry recommended X-rays of the spine. The X-rays showed "moderate degenerative disc space narrowing at L4-L5 and also L5-S1" with minimal arthritic changes at these levels. Dr. Sadry diagnosed lumbrosarcal radiculopathy. Later EMG and Nerve conduction studies were both positive and magnetic resonance imaging (MRI) indicated two herniated discs. One year later, based upon his previous examination, Dr. Sadry evaluated Lisee's residual functional capacity. Dr. Sadry found Lisee could not perform, even at a sedentary capacity, on the basis of eight hours a day, five days a week. Dr. Sadry recommended Lisee return to Dr. Kreis, his original orthopedic surgeon, but Lisee did not pursue this option.
On May 10, 1989, Lisee filed his second application for a disability annuity at which time the Board arranged for two consulting physician examinations. Dr. John Hughes and Dr. Bernard Krakauer later examined Lisee and filed reports with the Board.
Dr. Hughes found Lisee performed the straight leg raising test to 70 degrees with his left leg, noted range of motion abnormalities such as: Lisee could bend forward only 20 degrees and laterally 10 degrees on each side. Reflex, sensory and motor abnormalities included no reflex in his left ankle, diminished sensation in his left leg and foot, and weakness in his left foot muscles. Dr. Hughes also noted no tenderness in Lisee's back muscles, and he did not mention muscle spasms. Dr. Hughes stated that Lisee was not able to return to his former employment but gave no opinion as to sedentary work.
Dr. Krakauer found lumbar "stiffness," weakness in Lisee's left ankle and foot, slightly decreased muscle circumference of the left leg, and a "moderately positive" straight leg raising test. He did not perform lumbar or range of motion studies and did not mention muscle spasms. Dr. Krakauer found Lisee was permanently disabled in terms of his prior work activities as a brakeman and opined he had a "limited capacity to do sedentary work."
The Director of Retirement Claims denied Lisee's application first on August 24, 1989, and again, upon reconsideration, in February 1990. Lisee appealed this decision to the agency's Bureau of Hearings and Appeals in March. Three months later, Lisee received a hearing before hearings officer Franklin H. Streitfeld where Lisee was represented by counsel.
At the hearing, Lisee testified that prescriptions did not help his pain sufficiently to justify their use. Instead, Lisee testified that he takes over-the-counter pain medication three times a week, alternating between Tylenol, Advil, and aspirin. According to Lisee, he experiences muscle spasms, severe pain and other symptoms such as burning daily. Lisee further stated he spends approximately five hours each day lying on the floor to escape his pain. He explained that he did not return to his orthopedic surgeon, Dr. Kreis, because his earlier unsuccessful back surgery made him apprehensive of any further surgery.
At the time of the hearing, Lisee's activities included occasionally performing light housework, driving his wife one half mile to work each day, and walking two blocks a couple times a week. He rode 65 miles to attend the hearing.
On October 31, 1990, the hearings officer affirmed the denial of Lisee's claim. Hearings officer Streitfeld declined to consider any medical evidence from 1982-1986. Streitfeld stated that the earlier finding of not disabled rendered all evidence relied upon irrelevant to the new application because the denial was final and could not be reopened. Specifically, Streitfeld found Lisee was not disabled and retained the ability to perform a full range of sedentary work. He stated
Mr. Lisee's testimony about his subjective complaints and alleged restrictions is very greatly out of proportion to the medical evidence. There is a paucity of objective findings referable [sic] to the back, in particular, and no evidence of any abnormalities that could reasonably be expected to cause the extraordinary limitation of physical activity he claims.
Lisee appealed this decision to the three-member Railroad Retirement Board in December 1990 and on December 26, 1991, the Board unanimously affirmed the denial and adopted the findings of the hearings officer. Specifically, the Board found that Lisee did not have an impairment or combination of impairments preventing him from performing any regular employment, that his subjective allegations of pain were not credible, and that he could perform a full range of sedentary work. On December 17, 1992, Lisee filed a timely Petition for review by this Court.
Lisee argues the Board erred in finding him not disabled and denying a disability annuity. Specifically, he contends no substantial evidence supports the hearings officer's finding that he could perform a full range of sedentary work. First, Lisee makes two arguments that he meets the requirements of Appendix 1 and should have been found not disabled based on the medical evidence alone. In support of this contention, Lisee argues that the hearings officer should have considered medical evidence from 1982-1986, and that the evidence considered by the hearings officer established a finding of disabled under Appendix 1. Second, Lisee argues the hearings officer incorrectly discounted the opinions of his treating physicians and his allegations of disabling pain in finding he could perform a full range of sedentary work and, therefore, no substantial evidence supports this finding. We disagree and discuss each allegation of error below.
A.
First we address whether the Board correctly found Lisee was not disabled based on the medical evidence alone. This Circuit considers the Railroad Retirement Act's standards and rules analogous to the disability provisions of the Social Security Act ("SSA"). Chandler v. U.S. Railroad Retirement Board, 713 F.2d 188, 190 (6th Cir.1983); Crenshaw v. U.S. Railroad Retirement Board, 815 F.2d 1066, 1067 (6th Cir.1987) () Accordingly, in disability cases the Board recognizes and uses SSA disability regulations, found at 20 CFR 404.1501-404.1598.
The claimant has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. Sec. 223(d)(1)(a). The standard for disability under the Act is "an inability to engage in any substantial, gainful activity." SSA regulations provide a five step process to determine disability. (1) If the claimant is working, benefits are automatically denied. 20 C.F.R. Sec. 404.1520(b). (2) If the claimant is not found to have an impairment that significantly limits the ability to work (a severe impairment), then the claimant is determined "not disabled" based on the medical evidence alone. 20 C.F.R. Sec. 404.1520(c). (3) If a claimant is not working and suffers from a severe impairment, the impairment must meet or equal a "listed"...
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