                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SAMUEL P. STEPHENS, JR.,             No. 11-70649
                Petitioner,
                                       RRB No.
             v.                       10-AP-0049

U. S. RAILROAD RETIREMENT
BOARD ,                                OPINION
                Respondent.


       On Petition for Review of an Order of the
              Railroad Retirement Board

                Argued and Submitted
         July 12, 2012—Seattle, Washington

               Filed November 21, 2012

    Before: Mary M. Schroeder, Stephen Reinhardt,
       and Milan D. Smith, Jr., Circuit Judges.

             Opinion by Judge Schroeder;
              Dissent by Judge M. Smith
2    STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

                           SUMMARY*


                    Railroad Retirement Act

    The panel reversed a decision of the United States
Railroad Retirement Board that denied an application for
benefits under the Railroad Retirement Act, and remanded for
further proceedings.

    The Railroad Retirement Act provides an annuity for
disabled children of railroad workers, and the Board ruled
that claimant did not qualify for benefits because during three
out of the 30 years preceding his application, he worked at
three menial jobs which constituted gainful employment that
disqualified him from eligibility. The panel held that short
periods of temporary employment, inadequately performed,
do not constitute substantial gainful employment that would
disqualify a claimant for benefits. The panel further held that
when considering the Railroad Retirement Act’s requirement
of continuous disability, the court must look to the history of
the claimant’s disability and the claimant’s success or lack
thereof in sustaining meaningful employment. The panel
concluded that claimant was entitled to benefits.

    Judge M. Smith dissented. Judge Smith wrote that
because the Board’s decision is supported by substantial
evidence, is not arbitrary, and has a reasonable basis in law,
it must be upheld.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD                3

                          COUNSEL

David E. Chawes, Seattle, Washington, for petitioner Samuel
P. Stephens, Jr.

Michele L. Bopp, Chicago, Illinois, for respondent U.S.
Railroad Retirement Board.


                          OPINION

SCHROEDER, Circuit Judge:

    This is a relatively rare petition to review a decision of the
United States Railroad Retirement Board denying an
application for benefits under the Railroad Retirement Act
(“RRA”). 45 U.S.C. § 231 et seq. The RRA provides an
annuity for disabled children of railroad workers. To qualify
for benefits, the child must have been disabled prior to the
age of 22 and have remained continuously disabled through
the time of application for benefits. 45 U.S.C. § 231a; 20
C.F.R. § 216.71(d)(2)(i).

     The Board ruled the petitioner, Samuel Stephens, did not
qualify because during three out of the 30 years preceding his
application, he worked at three menial jobs. Even though he
was fired from each, the Board ruled that the work constituted
gainful employment that disqualified him from eligibility.
The Board majority looked solely to the Board’s regulations,
which set forth guidelines for the amounts of average
monthly earnings that generally indicate substantial gainful
activity. Because Stephens’s earnings exceeded that average
between 1986 and 1989, the Board majority concluded he had
not been continuously disabled. The Board did not, as the
4    STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

dissent contends, affirm or adopt the totality of the decision
of the hearings officer. The hearings officer had also
concluded that Stephens was not disabled before he was 22
by relying solely on a purported lack of medical records, even
though psychiatric evaluations dating to age 14 demonstrated
severe psychiatric problems that prevented him from
successfully completing even special education. The Board
did not discuss that issue. It relied exclusively on Stephens’s
limited work experience after age 22, citing “evidence
showing that Mr. Stephens performed substantial gainful
activity in the years 1987-1989,” when Stephens was in his
mid-20’s, to conclude that he had not been continuously
disabled.

     The dissenting Board member would not have viewed
such earnings in isolation and would have granted benefits,
looking to Stephens’s long history of mental and physical
problems and unsuccessful attempts to work. The record
amply documents that long history of mental, emotional and
physical problems. The petitioner, the son of a deceased
railroad worker, was diagnosed at the age of 14 by a medical
doctor as having severe mental and emotional problems. The
doctor found that Stephens was “at the low end of the
borderline range” intellectually. When Stephens was 15, a
psychologist recommended he be taken out of public school
and enrolled in a special school for children with emotional
problems. The psychologist noted that Stephens had “only a
tenuous grasp on reality” and was “unable [to] differentiate
reality from fantasy decisively.” Although the doctors
suggested that Stephens might have greater mental abilities
than shown by the test scores, he dropped out of the special
school in the ninth grade in about 1982 after repeating two
grades and failing many classes. He did not complete any
further education.
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD            5

    Stephens testified that he attempted to work between 1983
and 1986, but failed, and the Social Security records show
that he earned no money. Between 1986 and 1989, Stephens
managed to hold on to three minimum-wage jobs for only
limited periods before being fired from each. For parts of
1986 and 1987, he worked at Harston Hall Nursing Home,
mopping floors, folding towels, and carrying bags of laundry
up and down the stairs. He was closely supervised and given
reduced responsibilities, but even so he missed many days of
work, was often sent home early, and was ultimately fired.
During 1987 and 1988, he worked at a parking garage as a
janitor and errand runner. Again, he was closely supervised
and often missed work. He was fired after stealing $400 that
he had been told to deposit at a bank. In 1989, he worked
briefly at a Days Inn hotel. There, in addition to being
closely supervised, he was given about a third of the
workload of other employees. Nevertheless, he often missed
work and was eventually fired.

    After being fired from the Days Inn, Stephens was
homeless. According to his Social Security records he made
about eleven work attempts between 1990 and 1997, but his
tenure at each job was short lived, and his earnings were
inconsequential. He has received Social Security disability
benefits since 1995.

    The critical issue in the case is the significance of
Stephens’s earnings prior to his application for RRA benefits.
The Board majority viewed these earnings as dispositive of
the issue of continuous disability. In doing so, the Board
committed legal error. The regulations, particularly when
read in the light of our case law, are not so rigid.
6    STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

    The regulations provide, at best, a presumption that one
who earns more than the prescribed amount per month has
been gainfully employed. They provide that, as a “guide,”
monthly earnings averages over a certain amount will
“ordinarily show that the claimant has engaged in substantial
gainful activity.” 20 C.F.R. § 220.143 (emphasis added). For
the years 1980-1989, the average earnings amount that would
trigger the presumption is $300 per month. Id. The
regulation’s plain language forecloses the Board’s
interpretation of it to deem Stephens’s earnings dispositive.
This reading of the regulation, therefore, is not entitled to
deference under Auer v. Robbins, 519 U.S. 452, 461 (1997).

    The regulations focus on the amount of earnings that
would presumptively, but not conclusively, establish gainful
activity when the claimant received them. The case law
therefore requires the Board to consider not only the amount
an applicant has earned, but also the context in which those
earnings were received. The Board did not do so here. It
ignored our precedent holding that temporary, unsuccessful
attempts at employment do not foreclose a disability claim.

    Our circuit’s leading case is Estes v. Railroad Retirement
Board, 776 F.2d 1436 (9th Cir. 1985). The issue was whether
the applicant’s multiple sclerosis caused her to be disabled
before she was 22. Looking to the nature of her disease, a
progressively disabling condition with periods of remission,
we held that work accomplished during a period of remission
was not substantial gainful activity that would disqualify her
from benefits, id. at 1439, even though, as the dissent noted,
she earned more than the regulations’ presumptive amount,
see id. at 1440 (Wiggins, C.J., dissenting). The majority in
Estes relied on a Sixth Circuit decision, Parish v. Califano,
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD              7

642 F.2d 188 (6th Cir. 1981), that also held that temporary
employment was not sufficient to defeat a disability claim.

    The facts in Estes were similar to this case in that Estes
was not able successfully to perform the work she did
attempt, and a supervisor had to reduce her work load. We
said “[t]he fact that a disabled multiple sclerosis victim was
employed during a remission period, especially where the
victim’s performance was inadequate, does not establish
substantial gainful employment.” Estes, 776 F.2d at 1439.
Short periods of temporary employment, inadequately
performed, thus do not constitute substantial gainful
employment that would disqualify a claimant for benefits.

    Our decision in Estes also relied upon a leading Fifth
Circuit case, Goodwin v. Railroad Retirement Board,
546 F.2d 1169 (5th Cir. 1977), in which a claimant managed
to work for six years, but his shortcomings and need for
assistance from others caused the court to hold that the
employment was not substantial gainful activity that would
prevent his eligibility for benefits. The Fifth Circuit rejected
the Board’s contention that a period of employment
automatically disqualified the petitioner for benefits,
reasoning that “the evidence taken as a whole clearly shows
the petitioner’s lack of fitness for substantial regular
employment.” Id. at 1171. The court held that, despite his
period of employment, “petitioner’s disability began before
age 22 and he is disabled today,” and concluded that “[i]t
would be carrying the statute to an absurdity to deny him his
benefits because of his short periods of temporary
improvement.” Id. at 1172. Here the claimant never
experienced even short periods of temporary improvement.
8    STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

    The RRA has borrowed many of its concepts from Social
Security law, and so cases decided under that statute can be
instructive. Estes, 776 F.2d at 1438. Our court confronted a
situation similar to Stephens’s in Gatliff v. Commissioner of
the Social Security Administration, 172 F.3d 690 (9th Cir.
1999). We characterized the issue as whether “a string of
sequential, short-term jobs constitute ‘substantial gainful
activity.’” Id. at 691. Concluding that it could not, we stated
that “substantial employment cannot be pieced together from
a collection of insubstantial attempts.” Id. That holding
applies here. The point is reinforced by Byington v. Chater,
76 F.3d 246, 251 (9th Cir. 1996), where an applicant was
denied benefits because his employment during the relevant
period had been so successful that he had received a
promotion. The dissent’s reliance on Byington is therefore
inappropriate.

    The medical evidence provides no support for the Board’s
denial. There is no medical evidence showing that Stephens
is able to work. Stephens’s treating physician states that
Stephens’s mental disabilities prevent him from working. His
education and work history demonstrate this has been the
case ever since he was a teenager.

    The Social Security Act “is remedial and its humanitarian
aims necessitate that it be construed broadly and applied
liberally.” Adams v. Weinberger, 521 F.2d 656, 659 (2d Cir.
1975). This court has held that a disability may be
continuous under the Social Security Act even if it is
punctuated by unsuccessful attempts to work. In such a case,
the petitioner’s attempts “demonstrate not his ability, but his
inability to engage in substantial gainful activity.” Gatliff,
172 F.3d at 694 (quoting Wilson v. Richardson, 455 F.2d 304,
307 (4th Cir. 1972)). So too, when considering the RRA’s
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD            9

requirement of continuous disability, we must look to the
history of the petitioner’s disability and the petitioner’s
success or lack thereof in sustaining meaningful employment.
Despite periods of unsuccessful employment, so long as the
claimant satisfies all the other requirements of the Act, as
Stephens undisputedly does here, the claimant is entitled to
benefits.

   The decision of the Board is REVERSED and the matter
REMANDED for further proceedings consistent with this
opinion.


M. SMITH, Circuit Judge, dissenting:

    The majority improperly reverses the United States
Railroad Retirement Board’s (the RRB) decision in this case
without giving appropriate weight to the deferential
substantial evidence standard under which the agency’s
decisions ought to be reviewed, or considering the claimant’s
burden of proving disability. Controlling case law provides
that the RRB’s decision will not be set aside “if it is
supported by substantial evidence, is not arbitrary, and has a
reasonable basis in law.” Akins v. U.S. R.R. Ret. Bd., 721
F.2d 652, 653 (9th Cir. 1983). Under binding precedent, our
review must be highly deferential, not de novo as the majority
appears to believe. See Metro. Stevedore Co. v. Rambo, 521
U.S. 121, 149 (1997) (O’Connor, J., dissenting) (“The
substantial evidence standard is extremely deferential to the
factfinder . . . . It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” (citation and quotes omitted)); Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999) (“Substantial evidence
is defined as ‘more than a mere scintilla but less than a
10 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

preponderance.’” (citation omitted)). Most significantly,
regardless of how sympathetic the situation of a petitioner
may be, “we may not substitute our judgment for that of the
Board.” Elzy v. R.R. Ret. Bd., 782 F.2d 1223, 1224 (5th Cir.
1986). Because the RRB’s decision is supported by
substantial evidence, is not arbitrary, and has a reasonable
basis in law, it must be upheld. See Akins, 721 F.2d at 653.
Accordingly, I respectfully dissent from the majority’s
reversal of the RRB’s decision in this case.

    Petitioner Samuel P. Stephens, Jr. (Stephens) is not
entitled to an annuity for two reasons: (1) he failed to carry
his burden of proving that, prior to age 22, he was disabled
such that he could not work, and (2) since he was employed
from 1986 to 1989, he cannot show a continuous disability
after age 22 that precluded substantial gainful activity.
Moreover, even if we believe that the issues are closely
divided, we must accord the RRB’s decision the benefit of the
doubt under our deferential standard of review. See id.

    A child of a deceased railroad employee is entitled to an
annuity if he “will, without regard to his age, be under a
disability which began before he attained age twenty-two”
and “is unmarried and was dependent upon the employee at
the time of the employee’s death.”                 45 U.S.C.
§ 231a(d)(1)(iii)(C). A child is considered “under a disability
if her or his permanent physical or mental condition is such
that she or he is unable to engage in any regular
employment.” Id. § 231a(d)(3). “The claimant for a
disability annuity is responsible for providing evidence of the
claimed disability and the effect of the disability on the
ability to work.” 20 C.F.R. § 220.45(a).
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 11

    Under the relevant regulation, Stephens had to
demonstrate (1) that he was “disabled . . . before attaining age
22,” and (2) that “the disability . . . continue[d] through the
time of application for benefits.” Id. § 216.71(d)(2)(i). If he
was able to engage in substantial gainful activity, he was not
disabled for any regular employment under the Railroad
Retirement Act (RRA), 45 U.S.C. §§ 231 et seq. Id.
§ 220.140.

    The RRB’s implementing regulation, 20 C.F.R.
§ 220.143, provides a guideline to determine whether a
person who was employed engaged in substantial gainful
activity. The regulation provides that evidence of a person
earning more than $300 per month on average while working
between 1980 and 1989 “will ordinarily show that the
claimant has engaged in substantial gainful activity.” Id.
§ 220.143(b)(2). In contrast, a person who earned less than
$190 per month on average presumably did not engage in
substantial gainful activity. See id. § 220.143(b)(3). If the
person earned between $191 and $299, the RRB will
generally consider other information before making a
decision. See id. § 220.143(b)(6)(i).

    Here, the RRB found that “the evidence fails to show that
Mr. Stephens has been continuously disabled since before
attaining the age of twenty-two to the time of his application
for the annuity, due to evidence showing that Mr. Stephens
performed substantial gainful activity in the years
1987–1989.” The RRB thus appears to have denied Stephens
an annuity primarily because of evidence showing that
Stephens was gainfully employed during the 1980s, after he
reached age 22 but before he filed an application for benefits.
Moreover, the hearings officer had ruled, in the alternative,
that “[e]ven if the appellant was found not to be engaging in
12 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

substantial gainful activity the evidence does not support that
he has been continuously disabled since before age 22.” The
RRB expressly affirmed and adopted the decision of the
hearings officer, although it did so without independently
assessing whether the evidence supported finding that
Stephens was disabled before age 22. Where, as here, the
RRB adopts the hearings officer’s opinion without issuing
further findings, the court evaluates the judgment of the
hearings officer. See Dray v. R.R. Ret. Bd., 10 F.3d 1306,
1310 (7th Cir. 1993). Accordingly, the RRB’s decision may
be affirmed on two separate grounds: (1) Stephens’s lack of
evidence that he was continuously disabled before age 22,
and (2) Stephens’s work after age 22, constituting substantial
gainful employment. If either finding is supported by
substantial evidence, Stephens cannot prevail. See Akins,
721 F.2d at 653; 20 C.F.R. § 216.71(d)(2)(i).

   I. Disability Before Age 22

    The record contains medical evidence susceptible to
different reasonable interpretations about whether Stephens
had a continuous disability before turning 22 years old that
would preclude him from working. The weighing of
conflicting medical evidence is a fact-intensive inquiry
implicating the RRB’s expertise and requiring an ability to
discern sound from unsound medical conclusions that courts
may lack. Our deference to the RRB should be at its peak,
not its nadir, in reviewing such an agency determination. See
Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008)
(en banc). We are appellate judges, not physicians.

    Dr. Diane Smityh (Dr. Smityh), who examined Stephens
in 1975 when he was 14 years old, indicated that Stephens
was emotionally troubled, but she did not discuss how long
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 13

his emotional problems would last. She also opined that
Stephens’s overall intellectual functioning and verbal and
performance scale scores were within “the borderline range,”
albeit “at the low end,” but noted that his range of verbal
scale scores was “strongly indicative of higher than measured
ability.”

    Dr. Thomas S. Wright (Dr. Wright), the other doctor who
evaluated Stephens before he reached age 22, reported in
1976 when Stephens was 15 years old, that “there were no
signs of symptoms of psychosis, mental illness or severe
emotional pathology.” Although Dr. Wright recommended
that Stephens be enrolled in special education for the
1976–77 school year, he also concluded that Stephens “does
appear to have adequate intellectual abilities, does seem to
have personality strengths which could be maximized under
proper conditions.” Like Dr. Smityh, Dr. Wright never
opined on how long Stephens’s emotional problems would
last or whether Stephens would be capable of working
without improvement in his condition.

    Although some evidence suggests that Stephens
experienced difficulties that limited his success in school
before age 22, a lack of academic success is not the
touchstone for proving a disability. For purposes of the
Railroad Retirement Act, a disability may only be shown by
proof that a person has a “permanent physical or mental
condition . . . such that she or he is unable to engage in any
regular employment.” 45 U.S.C. § 231a(d)(3); see also Estes
v. R.R. Ret. Bd., 776 F.2d 1436, 1437 (9th Cir. 1985) (“Under
the RRB regulations, a person is under a ‘disability’ if he or
she is unable to regularly perform ‘the substantial and
material duties of any regular and gainful employment.’ ”
(citation omitted)). Millions of Americans with physical or
14 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

mental limitations regularly participate in the workforce,
precluding them from satisfying the stringent definition of
“disabled” under the RRA.1

    The evidence simply does not conclusively demonstrate
that Stephens, before age 22, was disabled such that he could
not work, as he was required to prove to receive an annuity
under the RRA. See 45 U.S.C. § 231a(d)(1)(iii)(C), (d)(3).
Specifically, Stephens failed to produce reliable evidence
discussing his mental health between the ages of 15 and 22
and whether his condition changed over time, or prevented
him from working. Even if Stephens’s testimony were
considered, it does not compel a finding that he was disabled
before the age of 22. Accordingly, I would hold that there is
substantial evidence in the record to find that Stephens did
not meet his burden of proving through medical evidence that
he was disabled prior to the age of 22. The majority elides
this part of the analysis, which independent of whether
Stephens could prove disability after 22, is sufficient to
affirm the RRB’s denial of benefits under the Railroad
Retirement Act.

     II. Disability After Age 22

   Stephens also cannot prevail because substantial evidence
supports the RRB’s finding that, because of his employment
from 1986 to 1989, he cannot show a continuous disability

 1
    The Census Bureau estimates that approximately 56.7 million people
(18.7% of the civilian non-institutionalized population) in the United
States had a disability in 2010. See Matthew W . Brault, United States
Census Bureau, Americans with Disabilities: 2010, at 4 (2012), available
at http://www.census.gov/prod/2012pubs/p70-131.pdf. Over 12 million
individuals with a disability between the ages of 21 and 64 were
employed. Id.
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 15

after turning 22 years old. Even if this were a close question,
the majority errs by refusing to defer to the RRB, and instead,
formulating its own unsupported hypothesis as to the severity
and duration of Stephens’s medical problems. To reiterate,
we are a court, not a blue-ribbon tribunal of leading
physicians. Our task is limited to determining whether the
RRB could have reasonably concluded that Stephens was not
continuously disabled. See Tackett, 180 F.3d at 1098; Akins,
721 F.2d at 653. Even if reasonable minds could disagree,
our deferential standard requires that the agency prevail. See
Tackett, 180 F.3d at 1098; Akins, 721 F.2d at 653.

    Beginning in 1986, Stephens began working for Harston
Hall Nursing & Convalescent Home Inc. (Harston Hall). In
1987, Stephens earned $4,946.38 from Harston Hall, and
$1,186.88 from Park America Inc., for a total of $6,133.26.
Stephens also earned $4,263.56 in 1988 and $5,081.95 in
1989. These amounts are all well above the $300 per month
average for a calendar year in the 1980s that the RRB
ordinarily considers sufficient evidence to show that a
claimant engaged in substantial gainful activity. See 20
C.F.R. § 220.143(b)(2). On this basis alone, sufficient
evidence supports the RRB’s finding that Stephens engaged
in substantial gainful activity in the 1980s, thereby precluding
him from establishing a continuous disability between the age
of 22 and the time of his application for benefits. Based on
Stephens’s Social Security earnings record, he was also either
able to maintain a job for a significant period of time or to
earn far more than the minimum wage at the time for his
work. This evidence further supports the RRB’s finding that
Stephens engaged in substantial gainful activity before
applying for benefits. Thus, Stephens was not disabled for
purposes of the Railroad Retirement Act, and the RRB
16 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

properly denied him an annuity.            See 45 U.S.C.
§ 231a(d)(1)(iii)(C); 20 C.F.R. §§ 216.71(d)(2)(i), 220.140.

    The majority opines that the RRB failed to consider not
only the amount a claimant has earned, but also the context in
which those earnings were received. In so doing, the majority
states that RRB committed legal error by ignoring our
precedent holding that temporary, unsuccessful attempts at
employment do not foreclose a disability claim. However,
the cases the majority relies on for this proposition are easily
distinguishable from the facts in this case. In Estes, the
claimant only worked “for several months,” and later, “briefly
held two part-time jobs.” 776 F.2d at 1437–38. Stephens, in
contrast, worked for several years. Moreover, there was no
dispute in Estes that the claimant suffered from multiple
sclerosis, beginning when she was younger than twenty-two
years old. See id. at 1438. In this case, the evidence about
Stephens’s medical condition is disputed. The claimant’s
medical condition in Estes was also known to be incurable,
progressively disabling, and characterized by periods of
remission and exacerbation. See id. In contrast, not only is
Stephens’s medical condition during the 1980s unknown, but
there is certainly no claim that his condition, whatever it may
have been, was an incurable, progressive disability with
periods of remission and exacerbation. Estes is inapposite.

    Goodwin v. Railroad Retirement Board, 546 F.2d 1169
(5th Cir. 1977) also misses the mark. In Goodwin, the
claimant had “short periods of temporary improvement,” and
his “employment situation was not that of a normal worker.”
Id. at 1171–72. He worked under the guidance of his aunt in
a hospital’s dietary department; several of his uncles and
neighbors were also employees of the dietary department at
the time; his schedule was arranged to avoid putting stress on
     STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 17

him; and the hospital’s president, a nun, noted that the sisters
in charge of the department in which he worked were
sympathetic toward him and overlooked many of his
shortcomings. Id. at 1171. “The sheltered environment and
special treatment he received at the hospital were not the type
of working conditions that can be duplicated outside [a]
family atmosphere.” Id. Here, as the RRB and hearings
officer concluded, Stephens’s employment cannot be
considered sheltered, and there is no evidence to corroborate
Stephens’s testimony that his employment was performed
under special conditions. Moreover, the record does not
demonstrate that Stephens’s work during the 1980s occurred
only because of a temporary improvement in his medical
condition.

    This is also not a case like Gatliff v. Commissioner of
Social Security Administration, 172 F.3d 690 (9th Cir. 1999),
where the claimant had 150 jobs, which generally lasted no
more than 2 months over the course of 25 years. 172 F.3d at
691. As the hearings officer concluded, there is no evidence
suggesting that Stephens’s employment between 1987 and
1989 consisted of merely unsuccessful, short-lived attempts
at working. Instead, the success Stephens enjoyed in
obtaining and keeping the jobs he held during this period
indicates that he was capable of substantial gainful
employment.

    The approach we applied in Byington v. Chater, 76 F.3d
246 (9th Cir. 1996) is more on point. In Byington, the
claimant worked as a school bus driver in 1992 and earned
wages in excess of $500 per month, thereby creating a
presumption of substantial gainful activity. See id. at 251.
We held that the claimant’s testimony did not adequately
rebut the presumption that he engaged in substantial gainful
18 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

activity in 1992, even though the claimant testified that he
was slower than other drivers in completing his route, had
concerns about his breathing condition, and occasionally
needed to stop the bus and stretch his legs by walking. See id.
Just as the claimant in Byington, Stephens testified that he
was slower than other workers and did not do a good job as
an employee. Thus, I believe we should follow Byington, and
hold that Stephens’s testimony—even if accepted at face
value—is not sufficient to rebut the presumption that his
work during the 1980s was substantial gainful activity,
thereby precluding him from showing a continuous disability.

   III.    Conclusion

    I would hold that Stephens cannot prevail because
substantial evidence supports the RRB’s conclusions that
Stephens did not establish a continuous disability either
before or after age 22. See 20 C.F.R. § 216.71(d)(2)(i). The
Railroad Retirement Act may be remedial and seek to
promote humanitarian aims, but we are bound by the text of
the statute and its implementing regulations. The majority
errs in reversing the RRB simply because some evidence,
including his testimony, suggests that Stephens was disabled.
See Pemberton v. R.R. Ret. Bd., 108 F.3d 189, 193 (8th Cir.
1997) (“[T]he [RRB’s] decision will not be reversed simply
because substantial evidence may support the opposite
conclusion.”). In a case such as this, the agency is entitled to
the benefit of the doubt. See Akins, 721 F.2d at 653.
Sympathy for Stephens should not trump the deference to
which the RRB is entitled under the law.

   I respectfully dissent.
