CHARLES E. FOUNTAIN v RAILROAD RETIREMENT
___________
No. 95-3028
___________
Charles E. Fountain, *
*
Petitioner, *
* Petition for Review
v. * of an Order of the
* Railroad Retirement Board.
Railroad Retirement Board, *
*
Respondent. *
___________
Submitted: January 12, 1996
Filed: May 30, 1996
___________
Before BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
JONES,(*) District Judge.
___________
BEAM, Circuit Judge.
Charles Fountain appeals the Railroad Retirement Board's
denial of his application for a disability annuity under the
Railroad Retirement Act. He asserts that the Board's decision is
not supported by substantial evidence. We affirm.
I. BACKGROUND
Fountain was born in 1950. He has three years of college
education. He was employed by Union Pacific Railroad (the
Railroad) beginning in 1977 as a brakeman/switchman, a hostler,(1)
and later a locomotive engineer. In 1988, he injured his back
throwing a switch. He underwent surgery on his back in 1990.
After Fountain and the Railroad settled his claim for damages
arising out of his work-related injury, he was dismissed from the
Railroad.
Fountain applied for a disability annuity on January 24, 1992,
alleging disability based on his back injury and a liver disorder.
His application was denied initially and on reconsideration. He
then appealed to the Board's Bureau of Hearings and Appeals and was
granted a hearing.
At the hearing, Fountain testified that he wanted to return to
work as an engineer, but that the Railroad did not think he could
handle the physical demands of the work. He stated that he
believed he could return to work as an engineer if allowed to
alternate periods of sitting and standing. He also testified that
he was depressed because he was not able to return to work as an
engineer.(2) His daily activities include watching television and
reading. He is able to drive a car, although he does not drive
much. He testified that he is able to stand for about thirty
minutes before experiencing back pain and that sitting for long
periods causes him pain. A friend testified and corroborated
Fountain's testimony.
A vocational counselor testified that a person with Fountain's
limitations could perform the functions of a locomotive engineer,
which he characterized as light to medium in exertion, but not
those of a brakeman/switchman or a hostler, which he characterized
as heavy. He also testified that there were other light jobs in
the national economy that a person with Fountain's limitations
could perform.
The hearing officer affirmed the denial of benefits. He found
that Fountain retains the capacity for a broad range of light work
despite his limitations and, therefore, is not entitled to a
disability annuity. Fountain appealed that decision, but the Board
adopted and affirmed the decision of the hearing officer. This
appeal followed.
On appeal, Fountain contends that the decision of the hearing
officer is not supported by substantial evidence because the
hearing officer: 1) failed to make adequate credibility findings;
2) failed to complete a Psychiatric Review Technique Form; and 3)
failed to consider Fountain's impairments in combination.
II. DISCUSSION
Section 2(a)(1)(v) of the Railroad Retirement Act, 45 U.S.C.
SS 231a(a)(1)(v), provides for an annuity for "individuals whose
permanent physical or mental condition is such that they are unable
to engage in any regular employment." This provision is analogous
to the disability provisions of the Social Security Act, 42 U.S.C.
SS 301 et seq., and the Board's disability regulations are
substantively identical to the social security regulations. See 20
C.F.R. SS 220.1 et seq. Accordingly, we evaluate this case with
reference to social security case law. See Soger v. Railroad Ret.
Bd., 974 F.2d 90, 92 (8th Cir. 1992).
Our task on review is to determine if the Board's decision is
supported by substantial evidence, is not arbitrary, and has a
reasonable basis in law. Id. To do so, we must evaluate the
evidence in the record which supports the Board's decision as well
as that which detracts from it. Turley v. Sullivan, 939 F.2d 524,
528 (8th Cir. 1991). It is not our task to review the evidence and
make an independent decision. Nor is it our task to reverse the
holding of the hearing officer simply because there is evidence in
the record that contradicts the hearing officer's findings. The
test, we emphasize, is whether there is substantial evidence in the
record as a whole that supports the decision of the hearing
officer. In this case, substantial evidence supports the decision.
Under the social security and railroad retirement guidelines,
a hearing officer makes a sequential determination. Soger, 974
F.2d at 93. The hearing officer must first determine whether the
claimant is engaged in substantial work activity; if so, the
claimant is not disabled. Id. If the claimant is not engaged in
substantial gainful activity, the hearing officer must determine
whether the claimant is suffering from a medically determinable
impairment such that the claimant cannot perform basic work-related
functions. Id. If the claimant has one of the impairments listed
in Appendix 1 to Subpart P of the guidelines ("the listing"), the
claimant is conclusively disabled. If the claimant does not have a
listed impairment, the hearing officer must determine if the
claimant can return to his past relevant work. If so, the claimant
is not disabled. If not, the final determination is whether there
is any regular employment the claimant can perform, taking into
consideration: (1) the claimant's residual functional capacity
and his age, education and work experience; and (2) the
availability of jobs in the national economy that a person of the
claimant's limitations and qualifications can perform. Id.
Also, when the determination hinges on an evaluation of
subjective complaints (such as pain), the hearing officer must
evaluate the claimant's subjective complaints with reference to the
standards set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984).(3) Where there is evidence of a medically determinable
mental impairment, a hearing officer must follow special procedures
and is urged to complete a Psychiatric Review Technique Form.
Montgomery v. Shalala, 30 F.3d 98, 99-100 (8th Cir. 1994); see
generally, 20 C.F.R. SSSS 404.1520(a) and 416.920(a).
In this case, the hearing officer found that Fountain suffers
from a back impairment that significantly limits his ability to
engage in regular employment, but that the impairment does not meet
or equal the listing of (presumptively disabling) impairments. 20
C.F.R. SS 404.1525(a); 20 C.F.R. pt. 404 subpt. P, app. 1, pt. A.
He acknowledged that Fountain also suffers from obesity,
hypertension and liver disease, but found that these disorders
similarly do not meet the listings. Consequently, the hearing
officer found, based on the medical records, vocational testimony
and Fountain's own statements, that Fountain could return to his
former work as a locomotive engineer. The hearing officer
alternatively found that, even if Fountain could not return to his
former work, he could perform a wide range of light work. The
hearing officer concluded there were no grounds for a finding that
Fountain suffers from a disabling emotional impairment.
Fountain first argues that, in making this determination, the
hearing officer did not properly consider his subjective complaints
of pain. While there is little doubt that Fountain experiences
pain, the question we must address is whether the pain is so severe
that he cannot perform light or sedentary work. See Robinson v.
Sullivan, 956 F.2d 836, 839 (8th Cir. 1992).
The record shows that the hearing officer discounted
Fountain's complaints of severe pain partly because of Fountain's
equivocal statements. Fountain himself professed his ability to
return to his former engineer position. The record shows that
Fountain was offered a position as a security guard, but declined
it as a "step down." The record also contains evidence that
Fountain refused employment as a car salesman out of fear that he
would earn too much money to qualify for disability. The hearing
officer noted that Fountain has not consulted medical professionals
about his back pain since March 1991. Fountain testified that he
takes approximately seven Tylenol #4(4) capsules per week to control
his pain, but later stated that he takes only two capsules per week
and could easily stop taking the medication if he were working as
an engineer again. Under the circumstances, we find the hearing
officer's credibility determination is supported by substantial
evidence.
Fountain next asserts error in the hearing officer's failure
to complete a Psychological Review Technique Form (PRTF). Under
Social Security regulations, completion of that form is generally
required when evidence of a medically determinable mental
impairment has been presented.(5) See Pratt v. Sullivan, 956 F.2d
830, 834 n.8 (8th Cir. 1992). However, not all failures to
complete the form amount to reversible error. Id. This case fits
within that small category of cases in which the failure to
complete a PRTF is harmless error. If it is clear that a hearing
officer has correctly considered an allegation of a mental
impairment, the formality of completing a PRTF may not be required.
See, e.g., Hardy v. Chater, 64 F.3d 405, 408 (8th Cir. 1995)
(authorizing an ALJ to complete a PRTF without the assistance of a
mental health professional where there was no evidence that a
claimant was mentally impaired other than a history of controllable
alcohol abuse).
Here, there is no credible evidence that Fountain suffers from
a medically determinable mental impairment. Fountain did not
include any allegation of a mental impairment in his original
application for benefits. At the hearing, Fountain testified that
he was depressed. He stated that his depression was due to his
failure to obtain employment as a locomotive engineer. The record
shows that Fountain was examined by a psychologist in 1991 who
reported that Fountain "has low energy depression, secondary to his
situation" and that his "primary problem[] involves reactive
depression in an otherwise well adjusted person." The psychologist
concluded that "it is certainly hoped that he can return to his
previous employment" and that "some residential pain treatment may
be in order to assist this process." The same psychologist
diagnosed Fountain in 1993 as suffering from dysthymia,(6)
generalized anxiety and psychological factors affecting his
physical condition, but noted a reasonable prognosis for
rehabilitation. The consultative psychiatrist appointed by the
hearing officer to examine Fountain reported that the symptoms
noted by the psychologist in 1993 had abated. He stated, "[a]t
this point I see absolutely no evidence of a primary psychiatric
illness" and that although Fountain was "suffering from
difficulties in adjustment in his sedentary life, from a
psychological standpoint I see no reason to prevent him from
returning to work." Fountain's treating physician checked "no" to
the question, "[i]s there a past or present psychological problem
that might interfere with patient's ability to work?" on the
Attending Physician's Statement of Functional Capacity.
Moreover, Fountain was asked by the consulting psychiatrist to
return for further psychiatric testing, but he failed to do so. It
thus appears that any failure or inability of the psychiatrist to
complete the PRTF is of Fountain's own making. The Railroad
Retirement Board "may find that the claimant is not disabled if he
or she does not have good reason for failing or refusing to take
part in a consultative examination or test which was arranged by
the Board." 20 C.F.R. SS 220.52(a). Fountain has put forward no
excuse for his failure. Under the circumstances, we conclude that
the failure of the hearing officer to complete the PRTF is harmless
error. It is clear to us that the hearing officer properly
evaluated Fountain's mental condition. See Pratt, 956 F.2d at 834
n.8.
Fountain last contends that the hearing officer failed to
consider his impairments in combination. The record shows that the
hearing officer properly discounted the severity of Fountain's
emotional condition and therefore did not consider the impairment.
An ALJ need not consider in combination an impairment that is
factually unsupported. See, e.g., Cruse v. Bowen, 867 F.2d 1183,
1187 (8th Cir. 1989) (ALJ must include only those impairments
supported by reasonable and substantial evidence in a hypothetical
question posed to a vocational expert).
III. CONCLUSION
For the reasons stated, the decision of the Railroad
Retirement Board is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(*)
The HONORABLE JOHN B. JONES, United States District
Judge for the District of South Dakota, sitting by
designation.
(1)
A hostler is an employee who moves and services trains after
their regular runs or who does the maintenance work on large
machines. Random House Dictionary of the English Language,
Unabridged 925 (2nd ed. 1983).
(2)
Because Fountain had testified about depression and mental and
emotional problems, the hearing officer ordered a psychiatric
examination of Fountain. Fountain was examined by a psychiatrist,
but failed to report for the additional testing the psychiatrist
requested.
(3)
Specifically, the hearing officer must give full consideration
to all related evidence, including claimant's prior work record,
and observations by third parties and treating and examining
physicians relating to such matters as: (1) the claimant's daily
activities; (2) the duration, frequency and intensity of the pain;
(3)
precipitating and aggravating factors; (4) dosage, and side-
effects of medication; and (5) functional restrictions. Polaski,
739 F.2d at 1322.
(4)
Tylenol #4 is acetaminophen (a peripherally acting analgesic)
combined with codeine (a centrally acting analgesic). It is
prescribed for the relief of mild to moderately severe pain.
Physician's Desk Reference 1473-74 (49th ed. 1995).
(5)
Although the Board is not technically mandated to complete the
form under 20 C.F.R. SS220.101, the Board must nonetheless follow
the same special procedure and analysis to evaluate mental
disorders as set forth in the Social Security Regulations, 20
C.F.R. SS404.1520a(a)-(c). The Board must use the procedure to
"record pertinent findings and rate the degree of functional loss,"
20 C.F.R. SS220.101(b), and must "incorporate the pertinent
findings and conclusions based on this procedure in its decision
rationale" at all adjudicative levels. 20 C.F.R. SS220.101(c)(4).
The required completion of a form in the Social Security
regulations at 20 C.F.R. SS404.1520a(d) merely catalogs the
requirements set forth for analysis of mental disorders.
(6)
Dysthymia is a mood disorder characterized by feelings of
depression (sad, blue, low, down in the dumps) and loss of interest
or pleasure in one's usual activities and in which the associated
symptoms have persisted for more than two years but are not severe
enough to meet the criteria for major depression. Dorland's
Illustrated Medical Dictionary 519 (28th ed. 1994).