1 United States Court of Appeals,

Fifth Circuit.

No. 95-60433

Summary Calendar.

Thomas M. SMITH, Petitioner,

v.

UNITED STATES RAILROAD RETIREMENT BOARD, Respondent.

June 14, 1996.

Petition for Review of an Order of the Railroad Retirement Board.

Before POLITZ, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit

Judges.

POLITZ, Chief Judge:

Thomas M. Smith petitions for review of the decision of the

Railroad Retirement Board affirming a hearing officer's finding

that Smith is not entitled to an annuity because he is not disabled

from all regular employment. For the reasons assigned we grant the

petition for review, reverse the Board's decision, and remand for

a setting of the proper annuity and such other relief as may be

appropriate.

Background

Smith worked for Southern Pacific Railroad as a railway car

inspector from June 1974 until October 1991, inspecting rail cars

and performing heavy maintenance. He left Southern Pacific's

employ in September 1991 after injuring himself while closing a

rail car door. He was diagnosed as suffering from ankylosing

spondylitis, a chronic progressive and debilitating disease which

fuses the spine and causes rigidity of the cervical, thoracic, and1 "Residual functional capacity is what the claimant can do

despite his or her limitations." 20 C.F.R. § 220.120(a)(1)

(1995).

2 lum bar vertebrae. He also suffered from hypertension and chest

pains.

In August 1992 Smith filed an application for a disability

annuity with the Railroad Retirement Board. His application was

denied and he appealed to the Board's Bureau of Hearings and

Appeals. At a hearing Smith testified about his work experience,

medical history, and daily activities. Medical reports were filed.

A vocation al expert testified that a significant number of jobs

existed in the national economy which could be performed by a

person whose residual functional capacity was described as

follows: 1

Walking or standing up to two hours in a work day, not more

t han 15 minutes at a time; sitting up to 6 hours in a

workday, not more than 25-30 minutes at a time, the person can

sit or stand at his option, lifting no more than 15 pounds;

weak grip so he can not use hand tools and reduced alertness

so as to preclude being around moving machinery.

In his written decision the hearing officer ostensibly found,

on the basis of the evidence presented at the hearing and

information included in the administrative record, that Smith was

not entitled to an annuity, even though he had a severe impairment,

because a significant number of jobs which he could perform existed

in the national economy.

On appeal the Railroad Retirement Board affirmed, adopting the

decision of the hearing officer. Smith timely petitioned for

review.2 45 U.S.C. § 231a(a)(1)(v).

3 20 C.F.R. § 220.28 (1995) provides: "Unless the claimant's

impairment is expected to result in death, it must have lasted or

must be expected to last for a continuous period of at least 12

months."

4 Work exists in the national economy when it exists in

significant numbers either in the region where the claimant lives

or in several other regions of the country. 20 C.F.R. § 220.131

(1995).

5 20 C.F.R. § 220.26 (1995). The regulations further set

forth the method by which the Board shall determine whether a

claimant is disabled for any regular employment. See 20 C.F.R. §

220.100 (1995).

6 Elzy v. Railroad Retirement Board, 782 F.2d 1223 (5th

Cir.1986).

3 Analysis

Section 2(a)(1)(v) of the Railroad Retirement Act of 1974

p rovides, in relevant part, that an individual who has completed

ten years of service shall be entitled to an annuity, upon

applicati on, if a permanent physical or mental condition renders

him unable to engage in any regular employment. 2

An employee ... is disabled for any regular employment if he

or she is unable to do any substantial gainful activity

because of a medically de terminable physical or mental

impairment which meets the duration requirement defined in §

220.28. 3

... To meet this definition of disability, a

claimant must have a severe impairment, which makes him or her

unable to do any previous work or other substantial gainful

activity which exists in the national economy. 4 To determine

whether a claimant is able to do any other work, the Board

considers a claimant's residual functional capacity, age, education and work experience. 5

We review findings of the Board to determine whether they are

supported by substantial evidence. 6 "Evidence is substantial if it

consists of "such relevant evidence as a reasonable mind might7 Id. at 1224 (quoting Richardson v. Perales, 402 U.S. 389,

401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).

4 accept as adequate to support a conclusion.' " 7

The hearing officer reviewed and relied on certain evidence,

set forth in his written decision, in making his findings and

reaching his conclusion. A December 1993 report by Smith's family

physician, Dr. James M. Caskey, informed that: (1) lifting and

carrying are not affected by the impairment but the maximum Smith

can lift or carry is one-third of an eight hour day; (2) standing

and walking are affected by the impairment and Smith can stand and

walk "on and off for twen ty minute periods" and he can stand and

walk without interruption for twenty minutes; and (3) sitting is

not affected by the impairment. The hearing officer's decision

then refers to a functional capacity assessment condu cted in

December 1993 and a report of a February 1994 examination in which

Smith complained of chest pains in addition to his back pain.

Finally, the decision discusses Dr. Caskey's report of March

1994. In the March report Dr. Caskey advises that: (1) lifting

and carrying are affected by the impairment, Smith can only lift

and carry ten pounds, and lifting and carrying can account only for

one-third of an eight-hour day; (2) standing and walking are

affected by the impairment and Smith can only stand and walk four

hours a day with only one hour uninterrupted; and (3) sitting is

affected by the impairment and Smith can sit only two hours a day,

limited to only one hour uninterrupted. In addition, Dr. Caskey's

opinion concerning the frequency with which Smith may climb,8 The hearing officer did not discuss in detail any other

evidence, notably including the letter from the Board's

consulting physician, Dr. J.S. Todd, who found Smith "totally and

permanently disabled from any gainful employment."

9 See Nelson v. Heckler, 712 F.2d 346 (8th Cir.1983). Nelson

is a Social Security disability benefits case. We often rely on

such cases in interpreting disability issues arising under the

Railroad Retirement Act. Harris v. Railroad Retirement Board, 3

F.3d 131 (5th Cir.1993). We find no indication that the hearing

officer relied on this report for it is not mentioned in his

decision.

5 balance, and kneel changed from the earlier report of

"occasionally" to "never." 8

We entertain no doubt that the decision of the Board which

adopted the hearing officer's dec ision must be reversed with

judgment rendered in favor of Smith and the matter must be remanded

for computation of the annuity to which Smith is entitled. The

critical finding for the Board's conclusion, the finding that Smith

may sit up to six hours in a workday of eight hours, is without

support in the record. The only reference to Smith's ability to

sit for six hours in a day comes from an April 1993 report from a

medical consultant who never examined Smith. That report lends

little to the essential assessment herein. 9 Dr. Caskey's March

1994 report states unequivocally that sit ting is affected by the

impairment and that Smith can sit for only two hours in an

eight-hour day. The record evidence abundantly establishes that

Smith is disabled and qualified to receive an annuity.

The petition for review is GRANTED, the decision of the Board

is REVERSED, and the matter is REMANDED to the Board for

computation and award of the proper annuity and such other relief6

as may be appropriate herein.