                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             DEC 5 1997
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RONALD M. RUSSELL,

                Petitioner,

    v.                                                   No. 97-9501
                                                     (Petition for Review)
    RAILROAD RETIREMENT BOARD,

                Respondent.




                              ORDER AND JUDGMENT *



Before KELLY, McKAY, and BRISCOE, Circuit Judges.




         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. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff filed an application for disability annuity with the Railroad

Retirement Board (Board), alleging disability since October 15, 1992. A Hearing

Officer found that plaintiff was entitled to an occupational disability, because he

could not perform his regular railroad occupation, but deferred a decision on the

application for a period of disability under the Social Security Act and consequent

qualification for early Medicare coverage, pending plaintiff’s decision as to

whether he would appeal the denial of a period of disability. Plaintiff did appeal,

and a Hearing Officer found that plaintiff could perform unskilled light work

available in the national economy and, therefore, that he was not entitled to a

period of disability and early Medicare coverage. Plaintiff appealed that decision

to the Board, and it affirmed and adopted the decision of the Hearing Officer

denying plaintiff’s application for a period of disability under the Social Security

Act.

       The affirmance by the Board is a final decision within the meaning of

45 U.S.C. § 355(f), and is therefore appealable to this court under 45 U.S.C.

§ 231g. We review the Board’s decision to determine whether it is supported

by substantial evidence and is free from arbitrary or capricious conduct. See

Gatewood v. Railroad Retirement Bd., 88 F.3d 886, 888 (10th Cir. 1996).

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




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absence of fraud, shall be conclusive.” 45 U.S.C. § 355(f). After reviewing the

record in light of these standards, we affirm. 1

      Plaintiff complains that he is disabled because of back problems and the

related pain. We agree with the Hearing Officer’s assessment that the plaintiff

retains the capacity to perform light work; the record contains substantial

evidence to that effect. Plaintiff argues that the Hearing Officer erred in not

relying solely on Dr. Sanchez’s opinion that plaintiff was disabled from all work.

The Hearing Officer was entirely within her province to decline to give

Dr. Sanchez’s opinion controlling weight, even though he was a treating

physician, because it was not “well supported by clinical and laboratory

diagnostic techniques” and it is “inconsistent with other substantial evidence in

the record.” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (quotation

omitted). The Hearing Officer carefully considered Dr. Sanchez’s opinion and

the evidence related to it, and she expressed specific and legitimate reasons for

rejecting his opinion. See Hamilton v. Secretary of Health & Human Servs.,

961 F.2d 1495, 1498 (10th Cir. 1992). Our review of the record supports

that decision.



1
      We note that, because of the similarity of the Social Security Act and the
Railroad Retirement Act, the same analysis can be applied to appeals from
decisions under both Acts. See Aspros v. Railroad Retirement Bd., 904 F.2d 384,
386 (7th Cir. 1990).

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      Plaintiff also argues that the Hearing Officer failed to properly develop the

record. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) (discussing

the ALJ’s duty to develop the record). Specifically, he complains that she did not

allow him to testify at the hearing, interrupting his testimony and substituting her

own testimony through leading questions. We have carefully reviewed the

hearing transcript, and we see no impropriety in the Hearing Officer’s conduct of

or participation in the hearing. She did not breach her duty to develop the record.

      Neither do we find merit in plaintiff’s claim that the Hearing Officer failed

to properly consider his subjective complaints of pain. The Hearing Officer

properly considered and analyzed plaintiff’s allegations of disabling pain, see

Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992), and she found

them credible only to the extent that plaintiff could not perform work above the

light level. Her finding was based on plaintiff’s sporadic use of prescription

medications, his intermittent use of over-the-counter pain medications, and his

limited participation in physical therapy. The record contains substantial

evidence supporting the Hearing Officer’s finding regarding plaintiff’s subjective

complaints of pain. Further, because the Hearing Officer credited plaintiff’s

allegations of pain only insofar as they prohibit him from performing work above

the light category, she did not err in relying on the grids in finding plaintiff not

disabled. See Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994).


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      In sum, the record contains substantial evidence in support of the Hearing

Officer’s finding that plaintiff retained the residual functional capacity to perform

a wide range of light work. The decision of the Railroad Retirement Board is

AFFIRMED.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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