Poole v. Railroad Retirement Bd., 504

• Decision Date: 08 June 1990
• Docket Number: No. 504,D,504
• Citation: 905 F.2d 654
• Parties: David L. POOLE, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent. ocket 89-4069.
• Court: U.S. Court of Appeals — Second Circuit

Page 654

905 F.2d 654

David L. POOLE, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.

No. 504, Docket 89-4069.

United States Court of Appeals Second Circuit.

Argued Dec. 20, 1989.

Decided June 8, 1990.

William C. Bernhardi, Buffalo, N.Y., for petitioner.

Marguerite Dadabo, Office of Gen. Counsel, RR. Retirement Bd., Chicago, Ill. (Steven A. Bartholow, Edward S. Hintzke, of counsel), for respondent.

Before OAKES, Chief Judge, PRATT, Circuit Judge, and SAND, District Judge. ¹

OAKES, Chief Judge:

This is a petition for review of a determination of the United States Railroad Retirement Board ("the Board") denying the application of a railroad car man for a total and permanent disability annuity under section 2(a)(1)(v) of the Railroad Retirement Act, 45 U.S.C. Sec. 231a(a)(1)(v) (1982). The petitioner, David Poole, has not worked since August 31, 1986, due to an injury to his back and groin incurred from a fall from a ladder at work on August 22, 1985. The Board, in a 2-1 decision, upheld the decision of a Board referee made on August 17, 1988, after a hearing at which Poole was the only witness, denying his application for a total and permanent disability annuity. Applying to that determination the same test we use in Social Security Act cases, namely, whether the findings are supported by substantial evidence on the record as a whole, see Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988), we reverse the Board with directions that follow.

FACTS

Poole was born on March 15, 1952, and left high school in the eleventh grade. After brief stints unloading trucks part-time with his father and driving ambulances in the early 1970s, he worked for fifteen years with the railroad as a car inspector, work that frequently involved welding, climbing ladders, and heavy lifting of couplers weighing 150 to 200 pounds. He had On August 22, 1985, Poole was climbing a ladder at work to get out of a gondola car when apparently the feet of the ladder fell out, and he fell six to eight feet to the floor of the car. As Poole described it, he "clotheslined" himself on a rung of the ladder as he fell, catching himself in the groin and becoming entangled within the ladder when he landed. He was taken to Our Lady of Victory Hospital, where he received treatment for a contusion to the right scrotum and groin. X-rays of his right pelvis and hip showed no fracture or other abnormality. His sacroiliac and hip joints appeared normal.

injured his back several times prior to August 1985, but returned to work after each of these occasions.

At the urging of his employer, Poole returned to work the next day on "light duty," having no responsibilities other than signing in at the beginning of the day and signing out at the end. In February 1986 he resumed his usual job description, but in a very light job station given to employees who are about to retire, working only one to one-and-a-half hours a day, with minimal physical effort. By August 1986 Poole was unable to perform basic sanitary functions and required physical therapy and large doses of analgesics simply to report to work. His last day of work was August 31, 1986.

Poole's medical history following the accident reveals a long and unfortunately unsuccessful course of what Poole has estimated to be approximately two or three hundred visits to between six and eight doctors, all while his condition progressively deteriorated. Shortly after the accident, Poole saw his chiropractor, Dr. Denecke, on September 13, 1985, with a complaint of low back pain radiating to the right buttock and right leg. Although the chiropractic treatments brought temporary partial relief, Poole did not see Dr. Denecke from February 1986 until September 3, 1986, after he left work permanently. During that time his condition had so worsened that as of September 3, 1986, Dr. Denecke deemed Poole totally disabled for all work.

In the meantime, we believe in early 1986, Poole saw Dr. Perese, a neurosurgeon. Following a CT (computerized tomography) scan and complete bone scan, Dr. Perese recommended that Poole undergo spinal surgery and a myelogram. A myelogram is a process not without risk which involves the injection of a radio-opaque substance into the spinal column and, as a consequence, generally is recommended solely in connection with intended surgery. Poole, fearing that his family history, obesity, and high blood pressure rendered him a high risk for surgical complications, and desiring to avoid anesthesia, declined to have Dr. Perese perform the surgery or the myelogram. He did, however, attempt to complete the noninvasive diagnostic procedure known as MRI (magnetic resonance imaging), but was unable to fit into the machine on three separate visits because of his weight.

On January 8, 1987, Dr. Denecke gave the petitioner another chiropractic treatment in connection with his left sacroiliac joint and referred him to Dr. James J. White, Jr., an orthopedic surgeon. Between the time of the referral and Dr. White's first examination, the petitioner also saw Dr. Paul Giordano, a psychiatrist on referral from an insurance company, who found Poole as of February 3, 1987, to be essentially normal with a mild level of anxiety and no depression, "with insight and judgment ... intact, but superficial." As to Poole's complaint of back pain, Dr. Giordano said, "[H]is complaints regarding back spasms appear to be valid[,] with no evidence of malingering. This does not appear to be psychogenic in origin."

Dr. White then examined Poole on February 27, 1987. As part of his examination, Dr. White read the original film of the CT lumbar spine scan done eleven months before at the behest of Dr. Perese, seeing in it the possibility of an L5, S1 mid-line disc herniation. At the examination Poole reported to Dr. White that four days after his accident he began having pain radiating to the right large toe in addition to the back pain, and that his leg pain persisted and was greater than the back pain. His pain was increased by sitting or standing for Dr. White examined Poole again on April 3, 1987, at which time, according to the doctor's letter report of April 5, Poole's leg pain continued to be worse than the back pain. Poole's forward spinal flexion was limited to seventy degrees, and his straight-leg raising was positive at sixty degrees in the right with pain radiating to the right big toe. Dr. White again found right leg weakness without reflex abnormalities. The doctor confirmed his impression of right L5 radiculopathy and said that

about fifteen minutes to half an hour and by lifting and sitting. It was decreased by lying down. Dr. White found that Poole had a normal heel-toe gait, but suffered from weakness in the right calf on repetitive tiptoeing and weakness in the right leg without reflex abnormality or sensory loss. The straight-leg raising test was positive on the right at sixty degrees. Dr. White's diagnosis was radiculopathy (nerve root disease) in the right L5 nerve root, suggesting L4-5 disc herniation. He believed that there had been no improvement since Poole had first injured himself and that there would be none without surgery.

I don't feel that further conservative care is going to be of any benefit. I have told the patient this in the past. He would not like anything done of a surgical nature and for this reason I don't think there is any reason for me to continue to see him.

According to Poole, however, Dr. White's April 5 letter is an incomplete account of the consultation. Poole contends that Dr. White, notwithstanding his "on-the-record" remarks recommending surgery, informed Poole "off the record" that he should avoid surgery as long as possible.

Three weeks later, on April 24, 1987, Poole filed the application under review here, stating in the medical summary form that he could not work because he could not bend, climb, sit, or stand for very long, could not do any lifting or reaching, and, because of high blood pressure, could not strain himself. Poole attested to very frequent muscle spasms in his back radiating to his lungs and pain radiating from his back to his feet. He said that as of September 1986, Dr. Denecke and Dr. Perese would not allow him to work, and that he was taking prescription medication for pain. He described his daily activities as being limited. He could walk only 500 feet due to pain. He had to shower because he was unable to sit in the bathtub. He had difficulty dressing and on some days needed help from his wife in tying his shoes. He could drive only short distances and had no access to public transportation. Mostly, he sat around the house reading the newspaper or watching television and trying to take short walks. He had had to give up his hobbies of photography and doing improvements to his house.

Following a meeting with Poole, the Railroad Retirement Board claims representative reported that Poole had difficulty remaining seated or standing in any one position for longer than ten to fifteen minutes due to pain and that Poole got off his chair only with great effort, using both hands on a desk, grimacing while walking slowly and carefully, and wobbling as he walked. To the claims representative, Poole seemed depressed upon explaining his transformation from having led a very active life to virtual inactivity.

On May 12, 1987, Dr. Denecke, the chiropractor, examined Poole again and sent a report to the Board. Dr. Denecke noted Poole's complaints of steady pain in his lower right hip with several periods of pain radiating into the left leg, difficulty getting out of bed due to pain, and difficulty walking at times. Dr. Denecke reported total fixation of the right sacroiliac joint, as well as sciatic parasthesia (insensitivity to pain) of the right leg, slight weakness of the right extensor halicus longus muscle (the muscle which extends or straightens the great toe and flexes the ankle joint and which is activated by the...