                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0175n.06
                             Filed: April 1, 2008

                                            No. 07-3608

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


SHAWN E. HOWARD,                                   )
                                                   )
       Petitioner,                                 )
                                                   )
v.                                                 )   ON PETITION FOR REVIEW FROM THE
                                                   )   RAILROAD RETIREMENT BOARD
UNITED STATES                  RAILROAD            )
RETIREMENT BOARD,                                  )
                                                   )
       Respondent.                                 )


       Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges.
       ROGERS, Circuit Judge. Shawn E. Howard petitions this Court for review of the United

States Railroad Retirement Board’s denial of his application for a disability annuity under the

Railroad Retirement Act of 1974, 45 U.S.C. §§ 231 et seq. We have jurisdiction to review Howard’s

petition under 45 U.S.C. § 231g, which incorporates by reference 45 U.S.C. § 355(f). Because the

Board’s decision is supported by substantial evidence and not based on an error of law, we affirm.


                                                  I


       Howard began working in the railroad industry in March 1995. He left his railroad job in

February 2004 and filed an application for a disability annuity in September 2004, claiming total

disability from various maladies, including back injury and associated pain. After denying Howard’s

initial application, the Board again denied it at three separate stages of appeal.
No. 07-3608
Howard v. U.S. R.R. Ret. Bd.

                                                II


       When reviewing a decision of the Railroad Retirement Board, we must affirm if the Board’s

decision is supported by substantial evidence and not based on an error of law. 45 U.S.C. § 355(f);

Crenshaw v. United States, 815 F.2d 1066, 1067 (6th Cir. 1987). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler

v. U.S. R.R. Ret. Bd., 713 F.2d 188, 189 (6th Cir. 1983) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)).    If the record supports the Board’s decision, we must accept it without

independently evaluating the evidence, Crenshaw, 815 F.2d at 1067, because the substantial

evidence standard


       presupposes that there is a zone of choice within which the decision makers can go
       either way, without interference by the courts. An administrative decision is not
       subject to reversal merely because the substantial evidence would have supported an
       opposite decision,


Rowe v. R.R. Ret. Bd., 114 F. App’x 189, 191 (6th Cir. 2004) (quoting Blankenship v. Bowen, 874

F.2d 1116, 1120 (6th Cir. 1989).


                                                III


       Howard argues that two aspects of the Board’s decision warrant its reversal. Howard first

argues that the Board’s decision is not supported by substantial evidence because in determining

Howard’s Residual Functioning Capacity (“RFC”), the Board relied on the assessment of a non-

examining physician that contradicted the assessments of one treating and one examining physician.

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No. 07-3608
Howard v. U.S. R.R. Ret. Bd.

Second, Howard argues that in rejecting his claim of disabling pain, the Board’s decision is not

supported by substantial evidence and is based on an error of law. Finding these arguments

unpersuasive, we affirm.


                                                 A


       Howard challenges as unsupported by substantial evidence the Board’s conclusion that he

can perform certain light and sedentary work because the Board favored the RFC assessment of Dr.

Uy, a physician who did not examine Howard but only reviewed his case file, over the RFC

assessments of Dr. Hardin, a treating physician, and Dr. Apgar, an examining physician. Howard

pursues this argument via two routes.


       He first contends that in evaluating the record evidence the Board was required to accord

substantial deference to the medical opinion of his treating physician; however, the Board must

afford a treating physician’s medical opinion substantial deference only if the opinion is supported

by sufficient medical data. See Duffy v. R.R. Ret. Bd., 1991 U.S. App. LEXIS 18833, at *8 (6th Cir.

1991) (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)). In rejecting the opinion of

Howard’s treating physician, the Board found that Dr. Hardin’s medical findings of “lumbar spine

sprain” and “cervical spine sprain” did not support the level of impairment indicated by his RFC

assessment. Moreover, even if we were to find that Dr. Hardin’s opinion was entitled to substantial

deference, the record as a whole supports the Board’s contrary finding by substantial evidence.




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Howard v. U.S. R.R. Ret. Bd.

        Howard further argues that regardless of whether the Board accorded Dr. Hardin’s opinion

sufficient deference, the Board’s RFC determination is not supported by substantial evidence because

the Board favored Dr. Uy’s assessment over the assessments of Dr. Hardin and Dr. Apgar. Although

contrary to the opinions of Dr. Hardin and Dr. Apgar, the Board’s decision finds support by

substantial evidence in the opinions of other examining physicians. In particular, Dr. Travis

indicated that Howard’s purported pain level had no identifiable origin. Dr. Tibbs reported that

Howard’s most recent MRI read “normal” and found no medical explanation for Howard’s reported

residual symptoms. In favoring Dr. Uy’s assessment, the Board did not rely solely on the opinion

of a physician who never examined Howard; rather, it resolved a conflict of opinions among

examining physicians. In cases such as this one, we will not second-guess the Board’s decision

when it is supported by substantial evidence. Rowe, 114 F. App’x at 191; Crenshaw, 815 F.2d at

1067.


                                                 B


        Howard next contends that in rejecting his claim of disabling pain, the Board’s decision is

not supported by substantial evidence and is based on an error of law. Howard argues that several

factors justify reversing the Board’s decision: (1) evidence of Howard’s muscle spasms; (2) Dr.

Boykin’s opinion that Howard’s back pain caused urinary retention problems; (3) Howard’s chronic

use of pain medication; and (4) his demeanor at the hearing.




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No. 07-3608
Howard v. U.S. R.R. Ret. Bd.

       We do not agree. The record is replete with evidence that contravenes Howard’s contentions

of disabling pain, including doctors’ opinions that objective medical findings do not support

Howard’s medication level and that Howard expressed more interest in medication than in treatment

for his symptoms.1 Reviewing these medical opinions in the context of the entire record, we are

satisfied that the Board’s decision is supported by substantial evidence.


       Relying on Lambert v. Railroad Retirement Board, 929 F.2d 1197, 1201 (7th Cir. 1991), and

Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989), Howard further argues that the Board

committed an error of law because “if medical evidence establishes an objective basis of some

degree of the symptoms and no evidence affirmatively suggests the claimant is malingering, the

[Board’s] failure to consider a claimant’s subjective complaints of pain must be supported by ‘clear

and convincing evidence.’” Petr.’s Br. 24. Howard’s argument is unpersuasive. No Sixth Circuit

opinion cites either of these cases or sets forth that rule, and even under such a rule, Howard’s

argument would still fail. First, record evidence undercuts Howard’s pain claims. Dr. Briggs

explicitly noted that Howard was not interested in treatment, and Dr. Granacher suggested that

Howard showed signs of symptom magnification. Second, contrary to Howard’s assertion, the Board

clearly considered Howard’s subjective complaints of pain. In weighing these complaints against




       1
         Specifically, Dr. Travis reported that he was “appalled by the amount of narcotics [Howard]
is taking . . . in the absence of objective findings” that would support his medication level. Dr.
Granacher reported that Howard exhibited signs of symptom magnification and doctor-shopping for
pain medication. Dr. Freimark noted that Howard declined to proceed with treatment and testing
options and that, based on a physical exam and MRI, “he is not a candidate to be maintained on
narcotics at this time.”
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No. 07-3608
Howard v. U.S. R.R. Ret. Bd.

the extensive record evidence and Howard’s demeanor at his hearing, however, the Board

determined that Howard does not suffer from disabling pain.


                                               IV


       The petition is denied, and the decision of the Board is affirmed.




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