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[NOT FOR PUBLICATION]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, Assist
__________________
________________

General

Counsel,

Michael C. Litt, General Attorney, and

________________
Bartholow, Deputy General Counsel, on brief for respondent.
_________

Steven
______

____________________
____________________

Per Curiam.
___________
appeals from

the decision

finding him
disability
U.S.C.

Petitioner,

not disabled
annuity

of the Railroad
and therefore

under the

231a(a)(1)(v).

Richard

Railroad

Petitioner

T.

Granfield,

Retirement Board

not eligible

for a

Retirement Act,

has been

45

diagnosed as

having fibrositis (an inflammation of the muscles and fibrous

tissues of the
suffers

from

shoulders,

locomotor system) and, as a result, allegedly

the

following

lower back,

swelling and cramping

and

(3) fatigue.

neck,

symptoms:
hands, feet

of the hands,
He also

has

(1) pain

in

his

and elbows;

(2)

feet and other

been diagnosed

as

joints;
having

essential nonfamilial
worked as

tremor of

the hands.

a locomotive fireman and

July 1972 to December 1987.

petitioner

Petitioner had

locomotive engineer from

At the time he stopped working,

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
with

the

entitled

required

Retirement Act provides

number

of

years

with

that persons
railroad are

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.

standard for determining whether

231a(a)(1)(v).

The

an individual can engage in

regular employment is

the same

as the one

used to

claims for disability

under the Social Security

Act.

analyze
E.g.,
____

Bowman v.
______

Railroad Retirement Board, 952 F.2d

_________________________

Cir. 1991);
404,

Peppers v.
_______

406 (7th

Railroad Retirement Board,

_________________________

Cir. 1984)

(per curiam).

Security regulations and cases

in reviewing
Bowman, 952
______

207, 209 (8th

decisions of

Thus,

728 F.2d
the Social

interpreting them may be used

the Board under

231a(a)(1)(v).

F.2d at 209 (collecting cases); Aspros v. United

______
______

States Railroad Retirement Board, 904 F.2d 384, 386 (7th Cir.
________________________________
1990) (regulations); Elzy
____
F.2d

1223, 1224

(5th

evaluation process).

v. Railroad Retirement Board, 782

__________________________

Cir. 1986)
Because

(use

of same

sequential

petitioner could not return to

his former employment, the burden is on the Board to show the

existence

of

other

jobs

petitioner can perform.

Human Services,
_______________

890

in

the

national

economy

that

See Ortiz v. Secretary of Health and

___ _____
_______________________
F.2d

520, 524

(1st

Cir.

1989) (per

curiam).
Petitioner argues that in
the ability to do
only

minimal

determining that he

light work, the hearing officer

portions

of

his

and

his

wife's

concerning petitioner's daily

activities and,

took these statements

context.

out of

In

disregarded petitioner's subjective

-3-

relied on
testimony

in so

doing,

a related

petitioner also asserts that the hearing officer

had

vein,

erroneously

complaints of pain.

He

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
his

hands the

hands is always
worse

present.

the cramping

condition, petitioner has trouble

and

eating

activity on

utensils,
a

holding

becomes.

a cup,

improvement concerning the tremors

time

of the

hearing).

experiences constant
aggravated by use.
and

shoulder

raising his
object.

Due

he uses
to

and

performing

any

has had

some

Petitioner

in his hands with Inderal

taking for only one month

Petitioner

pain in

this

gripping, using hand tools

repetitive basis.

(which petitioner had been

The more

also testified

his wrists and

at the
that he

elbows, again,

Similarly, the pain in petitioner's

joints is
arms whether

As for his

persistent
or

not he

lower back and

and

prevents him

is trying

to lift

neck
from
an

hips, petitioner stated

that he has ongoing spasms and stabbing, sharp pains.

Petitioner then described
physical limitations.

He

his daily activities and

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

lifting,

bending, stooping

day,

petitioner

dishwasher,

experiencing pain.

might do

or climbing.
some

light

clean the windows, pick up

He avoids
During

any

a typical

vacuuming, load

the

around the house, do

the laundry or mow the lawn on a riding mower; petitioner can

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perform

these

activities,

periods

of time.

fishing,

hunting

however,

for

only

Petitioner's recreational
and woodworking.

hearing, petitioner

stated that

The

stated that he had

activities are

he had fished

hunting trip during the previous week for two

to one to

two hours of

short

night before

hour -- the most he could handle at a time.

he was limited

very

the

for one-half

He had gone on a
days; however,

actual hunting.

done some woodworking in the

He

last month,

but experienced trouble handling small pieces of wood.

Petitioner's wife also testified.
she

had to

fill the

coal bucket,

make the

occasion, cut up petitioner's food for him.

She stated
meals and,

that
on

Petitioner could

not sit for any period of time, had trouble concentrating and

was

frustrated by

his

inability to

written statement, she

with

writing

and

not tie

that

statement was

tasks.

added that petitioner had

correspondence to her.
he could

finish

petitioner

dictated

In

difficulty
all

of

his

Petitioner's hands shake so much that

knot or

hold a

cup of

coffee.

This

dated December 1989, before petitioner started

taking Inderal for the tremors.

Even though
the

the hearing officer did

limits petitioner

record

that

claimed.

petitioner
In contrast

reports

described, there

and

was
to

evaluations

not

as

is evidence
incapacitated

petitioner's
of

the

not allude to
in the
as

testimony are

physicians

who

he
the

treated

-5-

petitioner -- Dr. Philip Weinstein and Dr. John Guttell.

Weinstein,

who

began

seeing

petitioner

in October

Dr.
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

swelling in the joints

in June 1989 revealed no

and no trigger point tenderness

-- a

particular symptom of fibrositis.

Dr.
treatment

Guttell

also

noted,

in

April

1989,

that

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

stated that

petitioner's prognosis was fair

he did not think

because

completed a

and

Dr. Guttell

and opined that

that the disease would progress.

fibrositis

exacerbations

time,

of the day.

is

chronic

could occur.
Board Report

condition,

In October
of Physical

1990, Dr.

Condition.

However,
periodic
Guttell
At

this

petitioner was experiencing intermittent left shoulder

neck

pain.

condition

had

petitioner

Dr.

Guttell

"markedly

still

became

concluded that

improved"

since

uncomfortable

petitioner's

1989,

but

that

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.

reported occasional

In

His

petitioner worked
wrists

Guttell

tremors in

were fine.

petitioner

involving

tremor

The neurologist
--

both upper

no problems.

neurologist

Petitioner

However,

1991, Dr.
because

of

reported having

stated that he was not able to hold

cup of liquid.

nonfamilial

he had

In February

to a

petitioner's hands.

trouble with writing and

a full

petitioner

if he "overdoes it."

"within reason,"

and elbows

referred

1990,

pain in the back of his neck on the left

side and in his left shoulder

if

October

"[f]ine,

extremities."

diagnosed essential
rapid

He

action

tremor

prescribed Inderal.

In March 1991, petitioner reported experiencing "intermittent

flares of pain" in the posterior cervical and medial

scapula

areas.
It
limitations

is

true

in his

also true

petitioner

abilities to

engage in the physical

is

that

do routine

has been diagnosed

fibrositis -- a condition that reasonably

produce pain and stiffness in
See
___

drastic

chores

requirements of any type of

that petitioner

individual's hands.

described

and to
work; it

as having

can be expected to

joints such as the ones in

Avery v.
_____

Human Services, 797 F.2d 19, 20-21

______________

an

Secretary of Health and

________________________
(1st Cir. 1986).

Yet the

hearing officer was warranted in discrediting the severity of

petitioner's allegations given the reports of Drs.
and Guttell.

Neither

physician described symptoms

Weinstein
such as

-7-

the ones that petitioner reported at the hearing nor did they
state

that petitioner

work.

Moreover, we pay

was so

limited that

he could

do no

especial attention to the evaluation

of the administrative official presiding at the hearing given

the subjective

nature of

F.2d

Sherwin
_______

at

Services,
________

523;

such complaints.
v.

685 F.2d 1, 3

See
___

Ortiz, 890
_____

Secretary of Health and Human

________________________________

(1st Cir. 1982),

cert. denied, 461

____________

U.S. 958 (1983).

Of particular
Guttell's

assessment

contained

in his

petitioner

relevance
of

letter

could not

in this

petitioner's
of March

do any

context

functional

1991.

He

is

capacity

stated

"significant" lifting

Dr.

that

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

as petitioner could frequently

problems" so long

change position.

Similarly,

"significant impairment"

sitting would not

unless done for several

time or done while bending over a desk.

stating that petitioner could
or crouch;
were

produce any
hours at a

Dr. Guttell ended by

not crawl, stoop, kneel, climb

further, pushing, pulling, handling

and reaching

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

weighing up to 10 pounds."
consistent

with Dr.

some

of

objects

404.1567(b).

This is

assessment.

A job

nature "when it requires a

of walking or standing,
time with

or carrying

20 C.F.R.

Guttell's

classified as light in

the

lifting

or when it involves sitting

pushing

and

pulling

of

arm

also is
good deal
most of
or

leg

controls."

Id.
___

petitioner's

Again, Dr.

Guttell's opinion

concerning

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
pounds

at a

time; and

(3) limitations

on the

lift up to 20
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

about

50

bending and

percent

petitioner

of

stooping limits

the overall

could bend

up to

light

15 degrees

would preclude

jobs.

Assuming

(out of

90), jobs

existed as a packager, cleaner, insulator or assembler in the

electronics industry.
bench.
for

Such work involves standing at

a high

Other jobs included spray painting and soldering.

the two-hour limit

on how long

the VE stated that the

As

petitioner could stand,

above jobs only required a person

to

stand for one hour at a stretch.

We
petitioner

recognize
as being

that

Dr.

"substantially

Edward Connors concluded

not

disabled"

on review."

described
and

Dr.

J.

"unemployable"

However, "[c]onflicts in the

evidence are to be resolved

this court

Katz

that petitioner was

due to his physical complaints.

medical

Alan

by the hearing officer,

Bowman,
______

952 F.2d at

211; cf.
___

Rodriguez v. Secretary of Health and Human Services, 647 F.2d

_________
______________________________________
218,

222

(1st

Cir.

1981)

inferences permissibly can

(credibility
be drawn from

issues

and

the facts are

the Secretary of Health and Human Services).

what
for

Because we find

that "a reasonable mind, reviewing the evidence in the record

as

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.

the petition for review.

Thus,

we summarily deny
____

See Local Rule 27.1.

___

-10-