Romaker v. Railroad Retirement Board, 83-1735

• Decision Date: 09 May 1984
• Docket Number: No. 83-1735,83-1735
• Citation: 733 F.2d 639
• Parties: Alvin E. ROMAKER, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 639

733 F.2d 639

Alvin E. ROMAKER, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.

No. 83-1735.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1983.

Decided May 9, 1984.

Berkemeyer & Barks by John B. Berkemeyer, Hermann, Mo., for petitioner.

Steven A. Bartholow, Deputy Gen. Counsel, Chicago, Ill., Railroad Retirement Bd., Chicago, Ill., for respondent; Edward S. Hintzke, Asst. Gen. Counsel, Arthur A. Arfa, General Atty., Railroad Retirement Bd., Chicago, Ill., of counsel.

Before ROSS, ARNOLD, Circuit Judges, and HARRIS, ^* Senior District Judge.

OREN HARRIS, Senior District Judge.

Alvin Romaker appeals from a final decision by the Railroad Retirement Board denying him a disability annuity. Romaker argues on appeal that the Board's decision is not supported by substantial evidence. We agree, reverse the decision of the Board and remand for further proceedings.

Romaker, born August 9, 1937, has an eighth grade education. Throughout his life, he has been employed in various capacities but each job required manual labor. He became a laboror for the Burlington-Northern Railroad on August 1, 1967. His last position required him to "boss" the section work crews, file reports, keep track of each man's time, give assignments and to generally supervise the men. In addition, he performed manual labor with his men.

Petitioner's last day with the railroad was January 25, 1980, when the physician for the railroad required him to be released due to high blood pressure and heart problems. Romaker filed a petition for disability benefits on May 20, 1980. On August 22, 1980, his claim for disability benefits was denied. An appeal was taken on July 28, 1981, to the Bureau of Retirement Claims. After a hearing on September 11, 1981, an opinion was issued by the Appeals Referee denying Romaker's disability claim. An appeal was taken to the Railroad Retirement Board which was denied on June 14, 1982.

Under 45 U.S.C. Sec. 231a(1) individuals are eligible for an annuity if they have a "permanent physical or mental condition ... such that they are unable to engage in any regular employment." The standard used to determine inability to engage in any regular employment is the same as that to determine disability under the Social Security Act. Waits v. United States Railroad Retirement Board, 729 F.2d 587 (8th Cir.1984); Abernathy v. Railroad Retirement Board, 716 F.2d 529, 530 (8th Cir.1983) Burleson v. Railroad Retirement Board, 711 F.2d 861, 862 (8th Cir.1983).

Once a petitioner demonstrates he is unable to return to his former job, the burden shifts to the Board to prove the petitioner could perform other regular employment. Jones v. Railroad Retirement Board, 614 F.2d 151, 154 n. 4 (8th Cir.1980). In this case the record does not reflect the Appeals Referee recognized this burden.

Romaker had double bypass surgery in February, 1980. The evidence introduced at the hearing in the form of coronary angiograms showed both grafts "to be quite patent and appear to be functioning." He occasionally has chest pain but it subsides after he takes his medication.

In addition, the treating physician stated he suffers from high blood pressure. Medication is prescribed for the high blood pressure, but it is extremely difficult to control and his dosages have been increased.

Further, the condition is made even more dangerous by the fact that Romaker does not always experience symptoms of dizziness or headaches when his blood pressure skyrockets. According to his treating physician, Romaker is unable to do any physical work; he opined "petiti...