                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                September 11, 2007
                              FO R TH E TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    K A SA U ND RA PEA CO CK ,

                Petitioner,

    v.                                                  No. 07-9510
                                                     (No. 06-AP-0058)
    R AILR OA D RETIR EM EN T B OARD,               (Petition for Review)

                Respondent.



                              OR D ER AND JUDGM ENT *


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




         Kasaundra Peacock appeals a decision of the Railroad Retirement Board

denying her application for a disabled widow’s annuity under the Railroad

Retirement Act of 1974, 45 U.S.C. § 231a(d)(1)(i), and consequent early

M edicare coverage under the Social Security Act. W e have jurisdiction under

45 U.S.C. § 231g, and we REVERSE and REM AND for further proceedings.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I.

      Under certain circumstances, a railroad employee’s widow who is “under a

disability” is eligible for the payment of an annuity under the Railroad Retirement

Act. 45 U.S.C. § 231a(d)(1)(i). Under the Act, “a widow . . . shall be under a

disability if her . . . permanent physical or mental condition is such that she . . . is

unable to engage in any regular employment.” Id. § 231a(d)(3).

      M s. Peacock filed for benefits on July 20, 2004, alleging she was disabled

as of April 1, 2004, due to right radial tunnel syndrome. She reported that any

use of her right hand or arm caused her pain. She received a hearing on M arch

23, 2006. In his decision dated June 19, 2006, the hearing officer acknowledged

that M s. Peacock suffered from chronic posterior interosseus nerve syndrome and

that she experienced some pain from using her right arm, but he did “not find it

credible that the level and extent of her pain is such that it precludes all work.”

Admin. R. at 30. He found that M s. Peacock retained the residual functional

capacity (RFC) to perform a reduced range of light and sedentary work, so long as

she was not exposed to upper body vibration or unprotected heights and would not

have to perform repetitive push/pull functions w ith her right arm or operate

moving or dangerous machinery.

      M s. Peacock appealed to the Railroad Retirement Board. On August 22,

2006, she had magnetic resonance imaging (M RIs) of the hips, the lumbosacral

spine, and the cervical spine performed, and she subm itted the reports of these

                                           -2-
procedures to the Board as new evidence to support her claims of disability. In a

decision dated November 16, 2006, a majority of the Railroad Retirement Board

denied her appeal. The Board also refused to consider her new evidence because

“[t]he reports submitted did not even exist until after the hearings officer’s

decision was issued.” Admin. R. at 4. M s. Peacock appeals.

                                          II.

      Our review of decisions of the Railroad Retirement Board is limited. “The

findings of the Board as to the facts, if supported by evidence and in the absence

of fraud, shall be conclusive.” 45 U.S.C. § 355(f) (incorporated into the Railroad

Retirement Act by 45 U.S.C. § 231g). “O nce we determine that the Board’s

factual findings are supported by substantial evidence and its decision is not

based on an error of law, our task is complete.” Gatewood v. R.R. Ret. Bd.,

88 F.3d 886, 888 (10th Cir. 1996).

      M s. Peacock first contends that the Board erred in refusing to consider her

new evidence. W e agree that the Board’s stated reason for declining to consider

the new M RI reports was inconsistent with the governing regulation, 20 C.F.R.

§ 260.9(e), which provides in pertinent part:

      Upon final appeal to the Board, the appellant shall not have right to
      submit additional evidence. How ever, the Board may grant a request
      to submit new evidence where new and material evidence is available
      that, despite due diligence, was not available before the decision of
      the hearings officer was issued.




                                          -3-
Thus, by the plain language of the regulation, to merit potential consideration of

new evidence, the claimant must show that the evidence (1) is new, (2) is

material, and (3) was not available before the hearing officer’s decision despite

appellant’s due diligence. Even upon such a showing, whether to accept the

evidence is a matter of the Board’s discretion.

      Because the ultimate decision at issue is committed to the B oard’s

discretion, our review is for abuse of discretion. A legal error constitutes an

abuse of discretion. See Koon v. United States, 518 U.S. 81, 100 (1996). The

Board’s expressed reason for declining to consider M s. Peacock’s new evidence –

that the reports were created after the date of the hearing officer’s decision –

constitutes a legal error. Section 260.9(e) does not specify that new evidence

must have been created before the date of the hearing officer’s decision to be

eligible for consideration.

      The next question, then, concerns the effect of the Board’s failure to

consider M s. Peacock’s new evidence. W e review de novo to determine whether

new evidence satisfies regulatory conditions for consideration. Chambers v.

Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004). 1 If new evidence does not



1
       Although Chambers is a Social Security case, not a Railroad Retirement
B oard case, given the similarities and overlapping authority between the two
statutes, courts have held “it is the accepted practice to use social security cases
as precedent for railroad retirement cases.” Burleson v. R.R. Ret. Bd., 711 F.2d
861, 862 (8th Cir. 1983); see also Aspros v. United States R.R. Ret. Bd., 904 F.2d
384, 386 (7th Cir. 1990).

                                          -4-
qualify under the regulations, “it plays no further role in judicial review ,” but if

the evidence does qualify but the agency did not consider it, “the case should be

remanded for further proceedings.” Id. Evidence is new “if it is not duplicative

or cumulative.” Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003)

(quotation omitted). It is material “if there is a reasonable possibility that it

would have changed the outcome.” Id. (quotation and alteration omitted).

      W e conclude that at least one of the M RI reports satisfies the requirements

of § 260.9(e). The reports were not available to the hearing officer and are not

duplicative or cumulative of other evidence in the record, and thus they satisfy

the first prong of the test. W hile the reports regarding the hips and the

lumbosacral spine probably would not have changed the outcome of the

proceeding, 2 the report regarding the cervical spine indicates M s. Peacock suffers

from “[d]egenerative disks at multiple levels in the cervical spine impacting the

neural elements,” including at least one “long-standing” degenerative disk.

Admin. R. at 17-18. This report constitutes objective medical support for

M s. Peacock’s claims of neck pain, and thus there is a reasonable possibility that

the outcome w ould have been different if the Railroad Retirement Board




2
      The hip report show ed some “mild degenerative changes” with otherwise
negative results. Admin. R. at 14. The lumbosacral spine report generally
concluded that degenerative disks had “no significant impact on the neural
elements” and was otherwise negative. Id. at 16.

                                           -5-
considered it. Finally, the reports were not in existence at the time of the hearing

officer’s decision, so they could not have been produced with due diligence.

      Because at least one of the M RI reports satisfied the mandates of

§ 260.9(e), the Railroad Retirement Board should have proceeded to determine

how to exercise its discretion with regard to considering one or more of the

reports. Rejecting the reports for a reason not supported by § 260.9(e) was an

abuse of discretion. Chambers counsels that the Board’s failure to consider how

to exercise its discretion under the terms of the rule requires a remand, and so we

need not consider M s. Peacock’s other arguments on appeal.

                                         III.

      The decision of the Railroad Retirement Board is REVERSED and

REM ANDED for further proceedings consistent with this order and judgment.


                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge




                                         -6-
