
USCA1 Opinion

	




          November 2, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1491                                 RICHARD T. GRANFIELD,                                     Petitioner,                                          v.                              RAILROAD RETIREMENT BOARD,                                     Respondent.                                 ____________________                         ON PETITION TO REVIEW A DECISION OF                          THE U.S. RAILROAD RETIREMENT BOARD                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Adam H. Becker and Martin E. Mason on brief for petitioner.            ______________     _______________            Catherine C.  Cook, General Counsel,  Thomas W. Sadler,  Assistant            __________________                    ________________        General  Counsel,  Michael C.  Litt, General  Attorney, and  Steven A.                           ________________                          _________        Bartholow, Deputy General Counsel, on brief for respondent.        _________                                 ____________________                                 ____________________                      Per  Curiam.   Petitioner,  Richard  T.  Granfield,                      ___________            appeals from  the decision  of the Railroad  Retirement Board            finding him  not disabled  and therefore  not eligible  for a            disability  annuity  under the  Railroad  Retirement Act,  45            U.S.C.    231a(a)(1)(v).   Petitioner  has been  diagnosed as            having fibrositis (an inflammation of the muscles and fibrous            tissues of the  locomotor system) and, as a result, allegedly            suffers  from  the  following  symptoms:    (1) pain  in  his            shoulders,  lower back,  neck,  hands, feet  and elbows;  (2)            swelling and cramping  of the hands,  feet and other  joints;            and  (3) fatigue.    He also  has  been diagnosed  as  having            essential nonfamilial  tremor of  the hands.   Petitioner had            worked as  a locomotive fireman and  locomotive engineer from            July 1972 to December 1987.   At the time he stopped working,            petitioner  was 33 years old;  he has a  high school diploma.            There is no dispute that petitioner cannot return to his past            work.  The basic issue for review,  then, is whether there is            substantial evidence to support the Board's decision to adopt            the  findings   of  the  hearing  officer  that  petitioner's            ailments do not prevent him from performing light work.                      The Railroad  Retirement Act provides  that persons            with  the  required  number  of  years  with  a  railroad are            entitled  to an annuity if they have a "permanent physical or            mental condition . . . such that they are unable to engage in            any regular  employment."   45 U.S.C.    231a(a)(1)(v).   The            standard for determining whether  an individual can engage in            regular employment is  the same  as the one  used to  analyze            claims for disability  under the Social Security  Act.  E.g.,                                                                    ____            Bowman v.  Railroad Retirement Board, 952 F.2d  207, 209 (8th            ______     _________________________            Cir. 1991);  Peppers v.  Railroad Retirement Board,  728 F.2d                         _______     _________________________            404,  406 (7th  Cir. 1984)  (per curiam).   Thus,  the Social            Security regulations and cases  interpreting them may be used            in reviewing  decisions of  the Board under    231a(a)(1)(v).            Bowman, 952  F.2d at 209 (collecting cases); Aspros v. United            ______                                       ______    ______            States Railroad Retirement Board, 904 F.2d 384, 386 (7th Cir.            ________________________________            1990) (regulations); Elzy  v. Railroad Retirement  Board, 782                                 ____     __________________________            F.2d  1223, 1224  (5th  Cir. 1986)  (use  of same  sequential            evaluation process).  Because  petitioner could not return to            his former employment, the burden is on the Board to show the            existence  of  other  jobs   in  the  national  economy  that            petitioner can perform.  See Ortiz v. Secretary of Health and                                     ___ _____    _______________________            Human  Services,  890  F.2d  520, 524  (1st  Cir.  1989) (per            _______________            curiam).                      Petitioner argues that in  determining that he  had            the ability to do  light work, the hearing officer  relied on            only  minimal  portions  of  his  and  his  wife's  testimony            concerning petitioner's daily  activities and,  in so  doing,            took these statements  out of  context.  In  a related  vein,            petitioner also asserts that the hearing officer  erroneously            disregarded petitioner's subjective  complaints of pain.   He                                         -3-            maintains that objective medical evidence exists to support a            finding that his pain is completely disabling.                      At the hearing, petitioner stated that the pain and            cramping in his  hands is always  present.  The more  he uses            his  hands the  worse  the cramping  becomes.   Due  to  this            condition, petitioner has trouble  gripping, using hand tools            and  eating  utensils,  holding  a cup,  and  performing  any            activity on  a  repetitive basis.   Petitioner  has had  some            improvement concerning the tremors  in his hands with Inderal            (which petitioner had been  taking for only one month  at the            time  of the  hearing).   Petitioner  also testified  that he            experiences constant  pain in  his wrists and  elbows, again,            aggravated by use.  Similarly, the pain in petitioner's  neck            and  shoulder  joints is  persistent  and  prevents him  from            raising his  arms whether  or  not he  is trying  to lift  an            object.   As for his  lower back and  hips, petitioner stated            that he has ongoing spasms and stabbing, sharp pains.                      Petitioner then described  his daily activities and            physical limitations.  He  stated that he could sit for 20 to            25 minutes at a time, stand for 15 to 20 minutes and walk for            10 to 15  minutes before  experiencing pain.   He avoids  any            lifting,  bending, stooping  or climbing.   During  a typical            day,  petitioner  might do  some  light  vacuuming, load  the            dishwasher,  clean the windows, pick up  around the house, do            the laundry or mow the lawn on a riding mower; petitioner can                                         -4-            perform  these  activities,  however,  for  only  very  short            periods  of time.   Petitioner's recreational  activities are            fishing,  hunting  and woodworking.    The  night before  the            hearing, petitioner  stated that  he had fished  for one-half            hour -- the most he could handle at a time.  He had gone on a            hunting trip during the previous week for two  days; however,            he was limited  to one to  two hours of  actual hunting.   He            stated that he had  done some woodworking in the  last month,            but experienced trouble handling small pieces of wood.                      Petitioner's wife also testified.  She stated  that            she  had to  fill the  coal bucket,  make the  meals and,  on            occasion, cut up petitioner's food for him.  Petitioner could            not sit for any period of time, had trouble concentrating and            was  frustrated by  his  inability to  finish  tasks.   In  a            written statement, she  added that petitioner had  difficulty            with  writing  and  that   petitioner  dictated  all  of  his            correspondence to her.  Petitioner's hands shake so much that            he could  not tie  a  knot or  hold a  cup of  coffee.   This            statement was  dated December 1989, before petitioner started            taking Inderal for the tremors.                      Even though  the hearing officer did  not allude to            the  limits petitioner  described, there  is evidence  in the            record  that  petitioner  was  not  as  incapacitated  as  he            claimed.    In contrast  to  petitioner's  testimony are  the            reports   and  evaluations  of  the  physicians  who  treated                                         -5-            petitioner -- Dr. Philip Weinstein and Dr. John Guttell.  Dr.            Weinstein,  who  began  seeing  petitioner  in October  1988,            reported "significant improvement" in petitioner's fibrositis            with the  use of Elavil and Naprosyn.   Petitioner's symptoms            of stiffness and pain in his joints worsened with "excessive"            work.    However,  in   March  1989,  petitioner's  condition            improved.   Finally, an examination  in June 1989 revealed no            swelling in the joints  and no trigger point tenderness  -- a            particular symptom of fibrositis.                      Dr.  Guttell  also  noted,  in  April  1989,   that            treatment  with Elavil and Naprosyn had improved petitioner's            condition to the point where he could do more with his hands,            although  they got stiff by the end  of the day.  Dr. Guttell            stated that  petitioner's prognosis was fair  and opined that            he did not think  that the disease would progress.   However,            because   fibrositis   is  a   chronic   condition,  periodic            exacerbations  could occur.    In October  1990, Dr.  Guttell            completed a  Board Report  of Physical  Condition.   At  this            time,  petitioner was experiencing intermittent left shoulder            and  neck  pain.   Dr.  Guttell  concluded that  petitioner's            condition  had  "markedly  improved"  since  1989,  but  that            petitioner   still   became   uncomfortable  with   increased            activities.                      An   April  1990   treatment  note   revealed  that            petitioner had "very little in the way of trigger points" and                                         -6-            no  inflammatory  changes.    In   October  1990,  petitioner            reported occasional  pain in the back of his neck on the left            side and in his left shoulder  if he "overdoes it."  However,            if  petitioner worked  "within reason,"  he had  no problems.            His  wrists  and elbows  were fine.    In February  1991, Dr.            Guttell  referred  petitioner  to a  neurologist  because  of            tremors in  petitioner's hands.   Petitioner  reported having            trouble with writing and  stated that he was not able to hold            a full  cup of liquid.   The neurologist  diagnosed essential            nonfamilial  tremor   --  a  "[f]ine,   rapid  action  tremor            involving  both upper  extremities."  He  prescribed Inderal.            In March 1991, petitioner reported experiencing "intermittent            flares of pain" in the posterior cervical and medial  scapula            areas.                      It  is  true   that  petitioner  described  drastic            limitations  in his  abilities to  do routine  chores  and to            engage in the physical  requirements of any type of  work; it            is  also true  that petitioner  has been diagnosed  as having            fibrositis -- a condition that reasonably  can be expected to            produce pain and stiffness in  joints such as the ones in  an            individual's hands.   See  Avery v.  Secretary of  Health and                                  ___  _____     ________________________            Human Services, 797 F.2d 19, 20-21  (1st Cir. 1986).  Yet the            ______________            hearing officer was warranted in discrediting the severity of            petitioner's allegations given the reports of Drs.  Weinstein            and Guttell.   Neither  physician described symptoms  such as                                         -7-            the ones that petitioner reported at the hearing nor did they            state  that petitioner  was so  limited that  he could  do no            work.  Moreover, we pay  especial attention to the evaluation            of the administrative official presiding at the hearing given            the subjective  nature of  such complaints.   See  Ortiz, 890                                                          ___  _____            F.2d  at  523;  Sherwin  v.  Secretary  of  Health and  Human                            _______      ________________________________            Services,  685 F.2d 1, 3  (1st Cir. 1982),  cert. denied, 461            ________                                    ____________            U.S. 958 (1983).                      Of particular  relevance  in this  context  is  Dr.            Guttell's  assessment  of  petitioner's  functional  capacity            contained  in his  letter  of March  1991.   He  stated  that            petitioner  could not  do any  "significant" lifting  of more            than 15 to 20 pounds on a regular basis due to upper back and            cervical spasms and because  such lifting would aggravate the            trigger points in his elbows.  Standing and walking were "not            particular  problems" so long  as petitioner could frequently            change position.   Similarly,  sitting would not  produce any            "significant impairment"  unless done for several  hours at a            time or done while bending over a desk.  Dr. Guttell ended by            stating that petitioner could  not crawl, stoop, kneel, climb            or crouch;  further, pushing, pulling, handling  and reaching            were  to be avoided because these activities would lead to an            aggravation of  the spasms  in petitioner's  back.   The only                                         -8-            reference  Dr. Guttell  made  to petitioner's  hands was  the            statement that petitioner wastaking Inderal for his tremors.1                      Light work involves "lifting no more than 20 pounds            at  a time  with  frequent  lifting  or carrying  of  objects            weighing up to 10 pounds."  20 C.F.R.   404.1567(b).  This is            consistent  with Dr.  Guttell's  assessment.   A job  also is            classified as light in  nature "when it requires a  good deal            of walking or standing,  or when it involves sitting  most of            the  time with  some  pushing  and  pulling  of  arm  or  leg            controls."   Id.    Again, Dr.  Guttell's opinion  concerning                         ___            petitioner's  capacity for sitting, walking and standing does            not contraindicate  such work.   As for pushing  and pulling,            petitioner did not describe significant, if any, restrictions            in these activities.                      Further, the  vocational expert (VE)  who testified            at petitioner's hearing stated that there were jobs available            to  petitioner under  the  following hypothetical:   (1)  the            ability to stand for a total of six hours in the work day but            up to only two hours at a time with the opportunity to change            positions every 15 minutes; (2) the ability to  lift up to 20            pounds  at a  time; and  (3) limitations  on the  capacity to                                            ____________________            1.  Also, a  residual functional capacity  analysis completed            by  a   non-examining  physician   in  1989  indicated   that            petitioner could frequently lift  and carry up to  25 pounds.            He could  sit, stand and  walk for up  to six hours  each per            work day.  He was limited in his ability to push and pull but            could frequently stoop, kneel, crouch and crawl.                                         -9-            engage  in  repetitive bending  and stooping.   The  VE first            noted  that the  bending and  stooping limits  would preclude            about  50  percent  of  the overall  light  jobs.    Assuming            petitioner  could bend  up to  15 degrees  (out of  90), jobs            existed as a packager, cleaner, insulator or assembler in the            electronics industry.  Such work involves standing at  a high            bench.  Other jobs included spray painting and soldering.  As            for  the two-hour limit  on how long  petitioner could stand,            the VE stated that the  above jobs only required a person  to            stand for one hour at a stretch.                      We  recognize   that   Dr.  Alan   Katz   described            petitioner  as being  "substantially  disabled"  and  Dr.  J.            Edward Connors concluded  that petitioner was  "unemployable"            due to his physical complaints.  However, "[c]onflicts in the            medical  evidence are to be resolved  by the hearing officer,            not  this court  on review."   Bowman,  952 F.2d at  211; cf.                                           ______                     ___            Rodriguez v. Secretary of Health and Human Services, 647 F.2d            _________    ______________________________________            218,  222  (1st  Cir.  1981)  (credibility  issues  and  what            inferences permissibly can  be drawn from  the facts are  for            the Secretary of Health and Human Services).  Because we find            that "a reasonable mind, reviewing the evidence in the record            as  a  whole, could  accept it  as  adequate to  support" the            Board's conclusion, see Rodriguez, 647 F.2d at 222, we do not                                ___ _________            perceive any  substantial question.  Thus,  we summarily deny                                                                     ____            the petition for review.  See Local Rule 27.1.                                      ___                                         -10-
