WILLIAM A. PEMBERTON v RRRB
___________
No. 96-1911
___________
William A. Pemberton, *
*
Petitioner, *
* Appeal from the Railroad
v. * Retirement Board
*
Railroad Retirement Board, *
*
*
Respondent. *
___________
Submitted: November 21, 1996
Filed: March 7, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge and
SACHS,(*) District Judge.
___________
SACHS, District Judge.
William Pemberton appeals the decision of the Railroad
Retirement Board denying his application for a disability annuity
under the Railroad Retirement Act. Because substantial evidence on
the record as a whole supports the Board's decision, we affirm.
I. Background
Pemberton, who was born in 1947, worked for The Chicago and
Northwestern Railroad as a brakeman/conductor and switchman from
March 1971 until he suffered an on-the-job injury to his back in
August 1981. A lumbar laminectomy and discectomy was performed in
February 1982. Recovery was complicated by a disc space staph
infection at the surgical site which required re-hospitalization in
1982 for intravenous antibiotics treatment. Pemberton never
returned to work for the railroad,(1) nor has he sought other
employment except for a brief period of part-time work at a baby
furniture factory in the mid-1980s.
Pemberton applied for an annuity on August 3, 1993, alleging
a disability onset date of August 1981 as a result of work-related
injuries in 1979 and 1981 and consequent surgery.(2) The claim was
denied initially and on reconsideration. Upon appeal to the
Board's Bureau of Hearings and Appeals, a hearing was held in
August 1995.
The medical evidence presented includes reports from both
treating and consultative physicians. Orthopaedic surgeon John
Pazell began treating Pemberton in January 1983 for recurring post-
operative low back pain. Treatment consisted of prescribed anti-
inflammatory and pain medication and physical therapy. By April of
1983, physical therapy was discontinued. Pemberton has consistent-
ly complained of constant low back pain exacerbated by weather
changes or increased activity, differentiating the levels of pain
in terms of "good" and "bad" days. On bad days he purportedly has
excruciating, totally disabling pain. About half his days are said
to be bad days. Dr. Pazell has continually opined that Pemberton
suffers from a post-laminectomy smoldering disc space staph
infection. Periodic evaluations through mid-1989 showed Pember-
ton's condition un-changed; thereafter, Dr. Pazell conducted annual
evaluations for three years. In July 1993, Dr. Pazell concluded
that Pemberton was permanently disabled from all possible jobs,
noting his condition had been stable for a number of years.
Pemberton's visits to Dr. Pazell increased after his annuity
application. In December 1994, Dr. Pazell reported that Pemberton
suffers from limited range of motion, muscle spasm, adhesive
arachnoiditis coupl-ed with spinal stenosis and a smolder-ing disc
space infec-tion.(3) He further reported a worsening of Pemberton's
condition as exhibited by an inability to tolerate any type of
prolonged activity.
The record from the hearing also contains medical records of
Dr. Richard Curnow, the surgeon who performed the 1982 back surgery
and treated the disc space infection. Dr. Curnow's medical
findings upon re-evaluation in January 1985 were consistent with a
diagnosis of chronic low back pain. Dr. Curnow recommended no
further operative treatment.
Dr. Harry Overesch, a consultative orthopaedic surgeon,
examined Pemberton in 1985 and 1988. In 1985, Dr. Overesch
indicated Pemberton had reached maximum recovery with limited range
of motion of the back and no signs of disc space infection. In
1988, Dr. Overesch found Pemberton's condition somewhat better.
Dr. Overesch concluded that although Pemberton would be unable to
do heavy work, he was employable in jobs not requiring repeated
bending, stooping or heavy lifting.
In October 1993, Pemberton underwent a consultative examina-
tion by Dr. Thomas-Richards. X-rays indicated degenerative lumbar
disc disease with almost complete obliteration of the disc space,
secondary to osteomyelitic involvement.(4) Dr. Thomas-Richards found
Pemberton to have restricted range of motion with chronic low back
pain aggravated by exertion. He concluded Pemberton should be
restricted from activities requiring prolonged walking and
standing; lifting and carrying heavy weights; frequent to continu-
ous bending, stooping, squatting, kneeling or crawling; and
frequent to continuous twisting motions of the spine.
Pemberton, his fiancee Donna Buerge, and a vocational expert
testified at the August 1995 hearing. Pemberton stated that since
the 1982 surgery, he has a constant dull ache in his low back which
radiates out to his hips. Although his condition had improved and
leveled off by 1985, he characterizes his condition since then as
"down-hill" with less tolerance for prolonged sitting and standing.
He testified to numbness in his legs upon prolonged sitting which
is eased by walking. He also complained of sharp jabbing back
pains upon sitting or standing too long. On good days he is able
to sit for 30 minutes, stand for 15-20 minutes, and lift up to 20
pounds; however, on bad days, he does nothing. He attributed his
bad days to either a flare up of the infection or overexertion. He
stated he is having more bad days, particularly noting a two-week
period of severe pain following a recent back-wrenching fall.
Pemberton takes long showers, hot baths, massages and
prescribed medications for pain relief.(5) He also routinely lies
on the floor and does stretching exercises each morning, afternoon
and evening. He does not use a back brace or cane. In 1984 he
began course work for a two-year degree from a community college
which he completed in 1987. He occasionally needs help tying his
shoes, but otherwise functions independently during the day at
home. His daily activities on good days include watching televi-
sion, taping music and movies, doing the laundry, cutting the grass
with a self-propelled mower, doing errands and visiting relatives
and friends. He drives to the mall, grocery store, and the homes
of his and his fiancee's parents. He reports annual mileage of
7500 to his insurer. Pemberton indicated that Dr. Pazell encour-
aged him in 1993 to reapply for a disability determination.(6)
Pemberton's fiancee testified that his pain had increased during
the three and one-half years she has known him. She stated
Pemberton used to dance with her slowly when they met, but they no
longer dance.
Testimony was solicited from a vocational consultant as to the
functional limitations which the hearings officer found credible.
In response to one hypothetical assuming Pemberton could stand or
walk a total of six hours daily, could lift no more than 20 pounds,
and could not perform work which required bending, climbing or
walking on uneven surfaces, the vocational consultant stated
Pemberton could perform 50% of the available unskilled light jobs
and all of the sedentary jobs. A second hypothetical further
restricting Pemberton to jobs permitting alternate sitting and
standing every 15 minutes reduced from 50 to 20 the percentage of
light jobs he could perform.
The hearings officer affirmed the denial of benefits, finding
that although Pemberton suffers from some degree of low back pain
radiating into his left hip and leg, he is not disabled for all
regular employment and thus not eligible for an annuity. His
principal conclusions may be summarized. There was no verification
of active or "flaring" disc space infection, which had not been
found by the consulting physicians and is only supported by
claimant's attribution of "bad days" to such flaring, while his
doctor's view is that an infection is "smoldering." The unex-
plained absence of treatment by antibiotics for "the last dozen or
more years," together with the infrequency of medical consultations
prior to filing the claim tends to rebut the theory that there are
episodes of active disc space infection. There is conflict between
claimant's testimony that walking relieves pain and his doctor's
note that walking causes pain.(7) The purportedly routine need to
lie down for stretching exercise is not tied to the degree of pain
claimant feels, because afternoon exercising occurs on both "good"
and "bad" days. Claimant's daily activities are "not consistent
with what the hearings officer would expect of an individual who is
in such pronounced pain that he has to lie down during the day."
There was no credible showing that claimant would need work with a
stand/sit option, but even if this were true, there are sufficient
jobs that he could perform. There is no credible showing that
lying down for an hour during an eight hour work day is physically
required or that claimant's physical condition would cause him to
miss work 25% of the time because of the frequency of "bad days."
The Board affirmed and adopted the decision of the hearings
officer. This appeal followed.
II. Discussion
The Railroad Retirement Act provides annuities for "individu-
als whose permanent physical or mental condition is such that they
are unable to engage in any regular employment." 45 U.S.C.
SS 231a(a)(1)(v). Disability annuity decisions are evaluated
compatibly with social security case law. See Fountain v. Railroad
Retirement Bd., 88 F.3d 528, 530 (8th Cir. 1996) (noting disability
provisions of Railroad Retirement Act and Social Security Act are
analogous and the pertinent governing regulations are substantively
identical).
We must uphold a decision to deny disability annuity payments
if the decision is supported by substantial evidence on the record
as a whole. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir.
1996); see also Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984) (Commissioner has "zone of choice" within which to operate
without judicial interference). Evidence both supporting and
detracting from the Board's decision will be considered (Johnston
v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994)), but the decision
will not be reversed simply because substantial evidence may
support the opposite conclusion. Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995).
The hearings officer made the appropriate sequential determi-
nation as required by the railroad retirement guidelines in
evaluating whether Pemberton was disabled in 1992. Fountain v.
Railroad Retirement Bd., 88 F.3d 528, 530 (8th Cir. 1996); see also
20 C.F.R. SSSS 218.9, 220.100. He first determined that Pemberton
did not have impairments conclusively establishing qualification
for benefits. See 20 C.F.R. pt. 220, app. 1. Upon finding
Pemberton could not perform his past relevant work with the
railroad, the hearings officer focused on whether Pemberton could
perform other available work. While acknowledging that Pemberton
has some degree of chronic pain, the hearings officer determined
that the central issue was whether the pain was so severe Pemberton
could not perform any regular work. See Soger v. Railroad
Retirement Bd., 974 F.2d 90, 93 (8th Cir. 1992). For the reasons
previously stated, he found no disabling pain. Pemberton argues
that the hearings officer improperly discredit-ed his subjective
complaints, disregarded the osteomyelitic involvement found by both
current doctors, and denied his claim without substantial evidence.
In addition to considering objective medical evidence, it is
of course true that subjective descriptions of disabling pain must
also be considered in light of such things as testimony about
functional restrictions, observations of third parties regarding
the claimant's daily activities, levels of pain, the dosage and
effects of medication, and precipitating and aggravating factors.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (per
curiam).
In the present case, the hearings officer reviewed Pemberton's
activities and concluded they were not consistent with complaints
of constant pronounced pain. The hearings officer noted that
Pemberton takes care of his personal needs without assistance, does
the laundry, cuts the grass, drives a car to run errands and to
visit his fiancee's parents 20 minutes away, and socializes with
relatives and friends.
Credibility determinations of a claimant's subjective
testimony lie within the responsibility particularly given to the
hearings officer and the Board. See Benski v. Bowen, 830 F.2d 878,
882 (8th Cir. 1987); see also Dixon v. Sullivan, 905 F.2d 237, 238
(8th Cir. 1990) ("If an ALJ explicitly discredits a claimant's
testimony and gives a good reason for doing so, we will normally
defer to that judg-ment.").
The major issue on appeal is whether Pemberton's testimony
attributing his inability to hold steady employment to frequent,
incapacitating "bad days" can reasonably be considered incredible
or at least exaggerated. A second issue relates to a claimed need
to lie down and exercise for an extended period in the afternoon.
Neither his fiancee nor any other third party familiar with
Pemberton's conduct testified to periodic days of such distress
that he was forced to cancel his usual routine or a scheduled
activity. The "bad days" apparently did not cause him to lose days
in school in 1987, at a time when his condition had purportedly
stabilized. Pemberton asserts that his condition has deteriorated
since 1987.(8) His testimony is not verified by increased visits to
a doctor, any increase or material usage of antibiotics, or taking
the prescribed dosage of pain medication, see supra note 5.
Pemberton's fiancee claimed that his condition has worsened during
the three and one-half years of her experience, which began when he
was able to dance. There is, however, no showing of a sudden
worsening in Pemberton's condition in the period 1992-3, when the
claim was filed.
A causation defect also exists with respect to evaluating the
"bad days" testimony. Pemberton acknowledges that his bad days are
sometimes traceable to overexertion rather than a strictly medical
condition.(9) His theory that some of his "bad days" are caused by
a flaring infection is a layman's concept unsupported by acceptable
proof such as test results,(10) and is weakened by the absence of any
material evidence of treatment or even consultation with doctors
about treatment short of surgery.
Pemberton also challenges the hearings officer's rejection of
Dr. Pazell's opinion that he is totally disabled from any employ-
ment. A treating physician's opinion is generally accorded great
weight, but an opinion as to whether a patient is able to perform
gainful employment is not a medical determination within the
competence of a physician, but a legal determination which must be
made by the Board. See Nelson v. Sullivan, 946 F.2d 1314, 1316-17
(8th Cir. 1991) (per curiam). As we have observed, moreover, there
are signs of advocacy in Dr. Pazell's approach to this controversy,
and the hearings officer noted several concerns about the reliabil-
ity of certain findings and comments.
In evaluating the objective evidence available, the hearings
officer reviewed the 1985 and 1988 reports of consulting examina-
tions by Dr. Overesch. Although Dr. Overesch restricted Pemberton
from heavy work, his clinical findings do not support a total
disability ruling. The more recent 1993 consultative report by Dr.
Thomas-Richards also imposed certain work restrictions on Pemberton
based on the chronic low back pain aggravated by exertional
activity.
The contention that Dr. Thomas-Richards is supportive of Dr.
Pazell because he found osteomyelitic "affectation" and "involve-
ment" does not deal with the pertinent question, whether there has
been recent active disc space infection. Even Dr. Pazell's
reference to a "smolder-ing" condition does not go so far as
claimant's theory of "flar-ing."(11)
Pemberton's contention that "flaring" spinal disc infection
causes such frequent "bad days" that he could not work at a regular
job could properly be ruled insufficient. There is no adequate
showing of an active infection; any special periods of suffering
could be explained by his having exceeded his limits through
unusual straining and overexer-tion; and there is no third-party
support for claimant's contention that he frequently is forced to
limit his activities for days at a time.
As to the need to exercise and stretch for as much as an hour
in the afternoon, the conduct is quite consistent with a routine of
resting or exercising that an unemployed person might adopt
voluntarily, particularly when, as here, he suffers from some
degree of pain. Claims of fatigue and pain requiring periods of
napping and lying down during usual working hours are familiar in
disability cases. See e.g., Aborn v. Sullivan, 959 F.2d 111, 112
(8th Cir. 1992). Aborn holds they are subject to Polaski analysis,
and can be rejected in a case, like the present one, where there
are credibility issues resolved against a claimant. In this case,
as the hearings officer pointed out, the asserted need to lie on
the floor for an extended period in the afternoon is not correlated
with severe pain. The claim of overpowering necessity for
exercising at a particular time each day was reasonably rejected,
considering the record as a whole.
For the reasons stated, and for the reasons advanced by the
hearings officer, we conclude that the decision of the Railroad
Retire-ment Board is within the "zone of choice" available to the
trier of fact, and it is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
**FOOTNOTES**
(*)
The Honorable Howard F. Sachs, United States District
Judge for the Western District of Missouri, sitting by
designation.
(1)
Pemberton settled a lawsuit brought against the railroad
arising from the 1981 injury in July 1987 and resigned from the
railroad as required by the settlement agreement.
(2)
Pemberton had previously filed an application for an annuity
in February 1988, alleging disability based on the 1981 back injury
and post-operative complications. He did not appeal the denial of
his claim.
(3)
Adhesive arachnoiditis is the thickening of the fibrous
membrane within the vertebral canal. Spinal stenosis involves the
narrowing of the vertebral canal, nerve root canals, or intervertebral passages caused by encroachment of bone upon space. Dorland's
Illustrated Medical Dictionary 111, 1576 (28th ed. 1994).
(4)
Osteomyelitis is the inflammation of a bone caused by
infection with bacteria or other micro-organisms. Dorland's
Medical Dictionary, supra, note 3, 1201. We note that under
specified conditions osteomyelitis with persistent or recent acute
"activity," established by "laboratory findings," was previously
classified as a disabling impairment. 20 C.F.R. pt. 220, app. 1,
part A, SS1.08(a). Osteomyelitis has been considered to be a
verifier of claims of pain. Moules v. Heckler, 600 F.Supp. 37, 40
(N.D. Cal. 1984). It has not, where there is conduct to the
contrary, necessarily assured a finding of disabling pain. E.g.,
Gendreau v. Finch, 298 F.Supp. 548 (D. Minn. 1969). See also, Odle
v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (claimant had a
"'fair response' with antibiotics to his rib condition").
(6)
Pemberton's prescription medications at the time of the
hearing included Darvocet 100 mg., every 4 to 6 hours for pain,
although he takes only one tablet per day at bedtime; Flexoril 10
mg. (or its generic counterpart Cyclobenzaprine Hydrochloride),
twice daily for muscle spasms; and Xanax .5 mg., once a day for
anxiety, which he takes each afternoon.
(7)
At the suggestion of Dr. Pazell, Social Security disability
benefits have also been claimed, but the record does not show final
disposition.
(7)
It is clear that the hearings officer found this unreliable
assertion by Dr. Pazell as an indicator, along with others, that he
had become something of an advocate for Pemberton. On the walking
point, Dr. Pazell reported a recent decline in walking ability from
one hour to "10 minutes or so." R.414.
(8)
There is, however, some conflict between his claim of a
"downhill slide," supported by Ms. Buerge, and other testimony that
his condition has not changed a great deal for over ten years. His
opening brief on appeal asserts, surprisingly, that "Pemberton
never alleged that his condition has become worse in the last few
years." Pet. Br. 34. If his acknowledgment of a stable condition
since the mid-1980s is accurate, additional credibility issues are
raised concerning the Pemberton and Buerge testimony, and adverse
evidence like the successful educational experience and the
Overesch evaluation becomes more significant.
(9)
Dr. Pazell records a statement that when Pemberton does not
exceed his physical limits "he can live a reasonably normal life."
R.422.
(10)
In a December1994 report, Dr. Pazell refers to "laboratory
findings" that have "documented the presence of infection."
Petitioner acknowledges that x-rays in April 1993 were evaluated as
showing "evidence of previous infection." R.393 (emphasis
added). While it is undisputed that there was an active staph
infection some 15 years ago, and x-rays, laboratory studies or bone
scans can apparently identify active or acute infection of this
nature, the record does not reflect confirmation of such a
condition in recent years. On the contrary, Pemberton has declined
to have testing done, stating that he is uninsured and does not
have the money to spare for such testing.
He did receive a substantial sum from the settlement of his
claim against the railroad and bought a $200,000 house, but the
record reflects that when his income from investments is pooled
with the income of Ms. Buerge, the couple is in rather modest
circumstances. Nevertheless, the failure to seek confirmation of
a "flaring" or otherwise active infectious condition does reduce
the credibility of the claim.
(11)
The terminology of Dr. Pazell seems to be rarely used, but
does not in itself connote an active or flaring infection. See
e.g., Sprague v. Director, Office of Worker's Compensation
Programs, 688 F.2d 862, 866 n.9 (1st Cir. 1982). From the
context, it appears to be Dr. Pazell's hypothesis that there is a
mildly active infection periodically creating great pain (rather
than an existing condition in remission), but the record does not
contain proof of an active infection.