1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-4290

___________

Clark K. Reter, *

*

Petitioner, *

* On Petition for Review

v. * of a Decision of the 

* Railroad Retirement Board.

Railroad Retirement Board, *

*

Respondent. *

___________

Submitted: June 13, 2006

 Filed: October 23, 2006

___________

Before LOKEN and ARNOLD, Circuit Judges, and DOTY,1

 District Judge.

___________

ARNOLD, Circuit Judge.

Clark Reter filed a claim under the Railroad Retirement Act (RRA) for

disability annuity benefits based on his diminished hearing capacity and pain in his

back, shoulders, legs, arms, and hands. See 45 U.S.C. § 231a(a)(1)(v). The Railroad

Retirement Board denied his claim. He appealed and we affirm.

Mr. Reter was employed by the railroad industry from 1977 until 1988, when

he stopped working after injuring his back. A few years later, Mr. Reter obtained an
-2-

associate's degree in commercial art. He then worked both as a graphic artist and as

a web designer until 2001, when he stopped working because of alleged pain in his

arms and hands. When Mr. Reter applied for a disability annuity under the RRA, his

initial request was denied, as was his request for reconsideration. After holding an

administrative hearing, a hearing officer sustained the denial of Mr. Reter's claim.

Mr. Reter then appealed to the Railroad Retirement Board, and a majority of the Board

"adopted" the hearing officer's decision, added a few additional comments, and denied

the claim.

I.

If service requirements are met, the RRA provides an annuity to former railroad

employees "whose permanent physical or mental condition is such that they are unable

to engage in any regular employment." 45 U.S.C. § 231a(a)(1)(v). Because the rules

for determining disability under the RRA are substantively identical to those under the

more frequently litigated Social Security Act, we use social security cases as

precedent for railroad retirement cases. Fountain v. Railroad Ret. Bd., 88 F.3d 528,

530 (8th Cir. 1996); Burleson v. Railroad Ret. Bd., 711 F.2d 861, 862 (8th Cir. 1983).

We will affirm the Board's denial of disability annuity payments if its decision "is

supported by substantial evidence, is not arbitrary, and has a reasonable basis in law."

Worms v. Railroad Ret. Bd., 255 F.3d 502, 505 (8th Cir. 2001).

To determine whether a claimant is entitled to disability annuity benefits, the

Railroad Retirement Board, and the hearing officer on behalf of the Board, asks a

series of questions derived from 20 C.F.R. § 220.100(b). Initially, the hearing officer

determined that Mr. Reter was not engaged in "substantial gainful" employment, see

20 C.F.R. § 220.100(b)(1), and concluded at the second step that Mr. Reter had a

"severe" hearing impairment, see 20 C.F.R. § 220.100(b)(2). Moving to the third step,

the hearing officer found that Mr. Reter did not have an impairment or combination

of impairments on a list appended to the regulations or medically equivalent to an

impairment on that list. (A claimant with a listed or equivalent impairment is
-3-

generally deemed disabled.) See 20 C.F.R. § 220.100(b)(3). At step four, the hearing

officer determined that Mr. Reter could return to his "past relevant work" as a graphic

artist or web designer and therefore denied him benefits pursuant to 20 C.F.R.

§ 220.100(b)(4). Had the hearing officer concluded that Mr. Reter was unable to do

his prior work, the burden would have shifted to the government to show that he could

do other work in the economy. See 20 C.F.R. § 220.100(b)(5).

II.

Mr. Reter maintains that the hearing officer erred at the second step of the

inquiry by considering separately, rather than in combination, the effect of his hearing

impairment and his other impairments on his ability to perform basic work activities.

He maintains that this error carried over to step four, resulting in his being denied

disability benefits.

At the second step, Mr. Reter had to show that he had a medically severe

impairment, which is an impairment or combination of impairments that "significantly

limit[ed] his ... physical or mental ability to do basic work activities." 20 C.F.R.

§ 220.100(b)(2). Even an impairment that is not severe by itself must generally be

considered in combination with the claimant's other impairments, and "[i]f a medically

severe combination of impairments is found" at step two, "it will be considered

throughout the disability evaluation process." 20 C.F.R. § 220.104.

In this case, the hearing officer determined at step two that Mr. Reter had a

severe hearing impairment. After discussing Mr. Reter's other alleged impairments

in detail, however, the hearing officer concluded that Mr. Reter had not presented

sufficient evidence to support those allegedly painful impairments. Neither the

hearing officer nor the Board in its separate comments specifically considered

Mr. Reter's hearing impairment "in combination" with his other alleged impairments

during the evaluation process. But no error occurred unless Mr. Reter met his burden
-4-

of showing that he had another medically determinable impairment. See Fountain,

88 F.3d at 533; cf. Cruse v. Bowen, 867 F.2d 1183, 1187 (8th Cir.1989).

The hearing officer described the record supporting Mr. Reter's other

impairments as "extremely thin and equivocal at best." Mr. Reter was not treated for

these alleged impairments, and the hearing officer refused to "offer a speculative

diagnosis" or to base a finding of disability on alleged impairments for which there

was no medical diagnosis, treatment, or assessment of the efficacy of any treatment.

Virtually the only evidence that Mr. Reter offered to support the impairments was a

typewritten document in which he described his daily activities and complaints of

pain, and his own testimony essentially reiterating what he had said in that document.

The hearing officer found that Mr. Reter's "allegations of widespread, persistent pain"

were "vastly disproportionate to the evidence" and thus not credible. The Board

adopted the hearing officer's decision and did not question this credibility finding.

Because Mr. Reter relied so heavily on his own subjective complaints, we

believe that his credibility plays a particularly significant role in this case. Although

the Board may not disregard a claimant's subjective complaints based solely on the

lack of objective medical evidence, that is one of many relevant circumstances that

may be taken into account. See Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)

(relying on Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (per curiam

order)); see also Fountain, 88 F.3d at 531. Here the credibility finding had additional

support: As we have said, Mr. Reter was not being treated for his alleged pain and

there was no evidence of previous treatment. He testified that he was able to do little

around the house and that his wife and mother-in-law did tasks that his pain prevented

him from doing. But he did not offer their testimony or any other third-party

testimony about his daily activities, his limitation of movement, the "duration,

frequency, and intensity of [his] pain," or his "functional restrictions." See Siemers,

47 F.3d at 301. In addition, the hearing officer noted that Dr. Stanley Rabinowitz, a

consulting physician hired by the Board, examined Mr. Reter and found that he had
-5-

no difficulty in ambulation or restrictions on his range of motion. In addition, the

hearing officer referred to Dr. Rabinowitz's findings that Mr. Reter's straight leg

raising, grip strength, digital dexterity, motor strength, and sensory examination was

negative for limitations and the doctor's conclusion that Mr. Reter could do work at

the medium, light, or sedentary levels of exertion. Dr. Rabinowitz also determined

that Mr. Reter was not limited in his ability to perform manipulative functions.

Although Dr. John Debush, another consulting physician hired by the Board,

concluded that Mr. Reter had some limitations not found by Dr. Rabinowitz, the

hearing officer determined that the findings of Dr. Debush were based on Mr. Reter's

subjective complaints, which were not credible. In any event, neither the hearing

officer nor the Board was required to accept Dr. Debush's findings, which differed

from those of another qualified physician. See Bowman v. Railroad Ret. Bd., 952 F.2d

207, 211 (8th Cir. 1991). We believe that the hearing officer's credibility finding was

adequately supported, and that the evidence provides ample support for his conclusion

that Mr. Reter's only medically determinable impairment was his hearing loss. We

therefore reject Mr. Reter's contention that the Board was required to consider his

hearing impairment "in combination" with other alleged impairments.

III.

Mr. Reter had the burden of showing that he had a medically severe impairment

or combination of impairments that prevented him from working as a web designer

or graphic artist. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). In concluding

that Mr. Reter had not met his burden, the hearing officer noted that Mr. Reter was

able to perform substantial work long after his hearing impairment was first diagnosed

in 1990. The hearing officer recognized that Mr. Reter's hearing capacity had

diminished since then, particularly in his left ear. But he observed that a new

audiogram that the Board ordered showed that the claimant had only a marginal

decrease in his hearing capacity in his right ear and that his speech discrimination in

that ear was excellent and could be further improved with appropriate assistance. The
-6-

Board agreed with the hearing officer that Mr. Reter was able to work as a web

designer or graphic artist. Having carefully reviewed the record, we reject Mr. Reter's

remaining contentions that the Board's findings and decision were not supported by

substantial evidence, and we affirm.

______________________________