### *T he Honorable Howard F. Sachs, United States Distric t

Judge for the Western District of Missouri, sitting b y designation. ___________ 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.

Willi amPemberton appeals the decision of the Railroad Retiremen t Board denying his app lication for a disability annuity under the Railroad Retir ement Act. Because substantial evidence on the record as a whol e supports the Board's decision, we affirm.

### Pemberton settled a lawsuit brought against the railroa d 1 

### arisi ng from the 1981 injury in July 1987 and resigned from th e railroad as required by the settlement agreement.
Pemberton h ad previously filed an application for an annuity 2 

### in February 1988, alleging disability based on the 1981 back injury and post-operative complicatio ns. He did not appeal the denial of his claim.
-2- I. Background Pembert on, who was born in 1947, worked for The Chicago an d Northwestern Railroad as a brakeman/conductor and switchman from March 197 1 until he suffered an on-the-job injury to his back in August 1981. A lumbar laminectomy and discectomy was performed in February 1982. Recover y was complicated by a disc space staph infection at the surgical site which required re-hospitalization in 1982 for intraven ous antibiotics treatment. Pemberton never returned to work for the railroad, nor has he sought other 1 employment except for a brief period of part-tim e work at a baby furniture factory in the mid-1980s.

Pember ton 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 an d 1981 and consequent surgery. The claim was denied initially 2 and on reconsideration. Upon appeal to the Boar d's Bureau of Hearings and Appeals, a hearing was held in August 1995.

Th e medical evidence presented includes reports from both treatin g and c onsultative physicians. Orthopaedic surgeon John Pazell bega n treating Pemberton in January 1983 for recurring post-operative low back pain. Treatment consisted of prescribed anti-inflammatory and pai n medication and physical therapy. By April of 1983, physical therapy was discontinued. Pember ton has consistently complained of constant low back pain exacerbated by weather changes or increasedactivity, differentiating the levels o f pain in terms of "good" and "bad" days. On bad days h e purportedly has

### Adhesive arachnoiditis is the thickening of the fibrou s 3 

### membrane within the vertebral canal. Spinal stenosis involves the narrowing of the vertebral canal, nerve root canals, or inte rvertebral passages caused by encroachment of bone upon space. Do rland's Illustrated Medical Dictionary 111, 1576 (28th ed. 1994).
-3- excruciating, totally disabling pain. About half his days are said to be bad days. Dr. Pazell has continually opined that Pemberton suffers from

a pos t-laminectomy smoldering disc space staph infection. Periodi c evaluations through mid-1989 showed Pemberton's condition unchanged ; thereafter, Dr. Pazell conducted annual evaluations for three years. In July 1 993, Dr. Pazell concluded that Pemberton was permanently disable d from all possible job s, noting his condition had been stable for a number of years. Pemberton's visits to Dr. Pazell increased after his annuit y application. In December 1994, Dr. Pazell repor ted that Pemberton suffers from limited range of motion, muscle spasm, adhe sive arachnoiditis coupled with s pinal stenosis and a smoldering disc space infection. He furthe r 3 reported a worsening of Pemberton's condition as exhibited by an inability to tolerate any type of prolonged activity.

Th e record from the hearing also contains medical records of Dr

. Richard Curnow, the surgeon who performed the 1982 back surgery and treate d the disc space infection. Dr. Curnow's medical findings upon re-evaluatio n 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, examine d Pemberton in 1985 and 1988. In 1985, Dr. Overes ch 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 conclud ed that although Pemberton would be unable to

### Ost eomyelitis is the inflammation of a bone caused b y 4 

### inf ection with bacteria or other micro-organisms. Dorland' s Medical Dictionary, supra , note 3, 1201. We note that unde r specified conditions osteomyel itis with persistent or recent acute "activity," established by "laboratory findings," was previousl y classified as a disabling impairment. 20 C.F.R. pt. 220, app. 1, part A, § 1.08(a). Osteomyelitis has been considered to be a verifier of claims of pain. M oules v. Heckler , 600 F.Supp. 37, 40 (N.D. Cal. 1984). It has not, where there is conduct to th e contrary, necessarily assured a finding of disabling pain. E.g. , Gendreau v. Finch , 298 F.Supp. 548 (D. Minn. 1969). See als o , Odle v. Heckler , 707 F.2d 439, 440 (9th Cir. 1983) (claimant had a "'fair response' with antibiotics to his rib condition").
-4- do heavy work, he was employable in jobs not requiring repeated bending, stooping or heavy lifting.

In October 1993, Pemberton underwent a consultative examination b y Dr. Thomas-Richards. X-rays indicated degenerative lumbar disc diseas e with a lmost complete obliteration of the disc space, secondary t o osteomyelitic involvement. Dr. Thomas-Richards found Pemberton to hav e 4 restricted range of motion with chronic low back pain aggravated b y exerti on. He concluded Pemberton should be restricted from activitie s
re quiring prolonged walking and standing; lifting and carrying heav y weights; frequent to continuous bending, stooping, squatting, kneeling or crawling; and frequent to continuous twisting motions of the spine.

Pemb erton, his fiancee Donna Buerge, and a vocational exper t testified at the August 1995 hearing. Pemberton stated that since the 198 2 surgery, he has a constant dull ache in his low back which radiates out to his hips. Although his condition had improved a nd leveled off by 1985, he characterizes his condition since then as "downhill" 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 pa ins 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

### Pemberton's prescription medications at the time of th e 5 

### heari ng 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 fo r anxiety, which he takes each afternoon. At the suggestion of Dr. Pazell, Social Security disability 6 

### benefits have also been claimed, but the record does not sho w final disposition.
-5- bad days to either a flare up of the infection o r overexertion. He stated he is having more bad days, particularly noting a two-week period of sever e pain following a recent back-wrenching fall.

Pemberton takes long showers, hot baths, massages and prescribe d medic ations for pain relief. He also routinely lies on the floor an d 5 does stretching exercises each morning, afternoon and evening. He does no t
use a back brace or cane. In 1984 he began course work for a two-yea r degree from a communi ty college which he completed in 1987. He occasionally n eeds help tying his shoes, but otherwise functions independentl y during the day at home. His daily activities on good days include watchin g television, taping mu sic and movies, doing the laundry, cutting the grass with a self-propelled mower, doing errands and visiting relatives an d 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 t hat Dr. Pazell encouraged him in 1993 to reapply for a disabili ty determination. Pemberton's fiancee testified that his pain 6 had increased during the three and one-half years she has known him. She stated Pemberton usedto dance with her slowly when they met, but they no longer dance.
Testimonywas solicited from a vocational consultant as to th e functi onal limitations which the hearings officer found credible. I n response to one hypothetical assuming Pemberton could stand or walk a tota l of six hours daily, could lift no more than 20 pounds,

### It is clear that the hearings officer found this unreliable 7 

### assertion by Dr. Pazell as an indicator, along with others, that he had become something of an adv ocate for Pemberton. On the walking point, Dr. Pazell reported a recent decline in walking abili ty from one hour to "10 minutes or so." R. 414.
-6- 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 se cond hypothetical further restricting Pemberton to jobs permittin g alternate sitting andstanding 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 tha t although Pemberton suffers from some degree of low back pain radiating int o his lef t hip and leg, he is not disabled for all regular employment an d thus not eligible for an annuity. His principal conclusions may b e summarized. There was no verification of active or "flaring" disc space infection, which had not been found by the consulting physicians and i s onl ysupported by claimant's attribution of "bad days" to such flaring , while his doctor's view is that an infection is "smoldering." The unexplained absence of treatment by antibiotics for "the last dozen or mor e years, " together with the infrequency of medical consultations prior t o fil ing the claim tends to rebut the theory that there are episodes o f active disc space infection. There is conflict between claimant' s tes timonythat walking relieves pain and his doctor's note that walkin g
cause s pain. The purportedly routine need to lie down for stretchin g 7

exe rcise is not tied to the degree of pain claimant feels, becaus e 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 individu al 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

### -7-

jobs that he could pe rform. 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 d ecision of the hearings officer. This appeal followed.

II. Discussion The Railroad Retirement Act provides annuities for "individual s whose permanent physi cal or mental condition is such that they are unable to en gage in any regular employment." 45 U.S.C. § 231a(a)(1)(v)

. Disability annuity decisions are evaluated compa tibly with social security case law. See Founta in v. Railroad Retirement Bd. , 88 F.3d 528, 530 (8th Cir. 1 996) (noting disability provisions of Railroad Retirement Act an d Social Security Act a re analogous and the pertinent governing regulations are substantively identical).
We must uphold a decision to deny di sability annuity payments if the decision is supported by substantial evidence on the record as a whole

. See Ostronski v. Chat er , 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 considere d ( 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.3d484, 486 (8th Cir. 1995).

The hearings officer made the appropriate sequential determinatio n
as req uired by the railroad retirement guidelines in evaluating whethe r Pemberton was disabled in 1992. Fountain v. Railroad Retirement Bd. , 88 F.3d 528, 530 (8th Cir. 1996); see also

### -8-

20 C.F.R. §§ 218.9, 220.100. He first determined that Pemberton did not have impairments conclusively establishing qualification for benefits. Se e 20 C.F.R. pt. 220, app. 1. Upon finding Pemberton could not perform his past re levant work with the railroad, the hearings officer focused o n whether Pemberton could perform other available work. While acknowledging that Pemberton has some degree of chronic pain, the hearings office r dete rmined that the central issue was whether the pain was so sever e Pemb erton could not perform any regular work. See Soger v. Railroa d Ret irement Bd. , 974 F.2d 90, 93 (8th Cir. 1992). For the reason s previously stated, he found no disabling pain. Pemberton argues that the hearings officer improperly discredited 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 o f
cou rse true that subjective descriptions of disabling pain must also b e considered in light o f such things as testimony about functional restrictions , observations of third parties regarding the claimant's dail y activit ies, levels of pain, the dosage and effects of medication, an d 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 activi ties and concluded they were not consistent with complaints o f 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.

Credibili ty 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,

### There is, however, some conflict between his claim of a 8 

### "downhill slide," supported by Ms. Buerge, and other testimo ny that his condition has not changed a great deal for over ten year s. His openin g brief on appeal asserts, surprisingly, that "Pemberto n 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 accurat e, additional credibility issues are raised concerning the Pemberton and Buerge testimony, and adverse evide nce like the successful educational experience and th e Overesch evaluation becomes more significant.
-9- 882 (8t h Cir. 1987); see also Dixon v. Sullivan , 905 F.2d 237, 238 (8t h Cir

. 1990) ("If an ALJ explicitly discredits a claimant's testimony an d 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 hi s inability to hold steady employment to frequent, incapacitatin g "bad days" can reasonably be considered incredible or at least exaggerated

. Asecond 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 wit h Pemberton's conduct testified to periodic days of such distress that he wa s 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 whe n his co ndition had purportedly stabilized. Pemberton asserts that hi s condition has deteriorated since 1987. His testimony is not verified by 8 increased visits to a doctor, any increase or material usage of antibiotics, or taking the prescribed dosage of pain med ication, see supra note 5. Pember ton's fiancee claimed that his condition has worsened during th e 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 i n Pemberton's condition in the period 1992-3, when the claim was filed.

### Dr. Pazell records a statement that when Pemberton does not 9 

### exceed his physical limits "he can live a reasonably normal life." R. 422. In a December 1994 report, Dr. Pazell refers to "laboratory 1 0 

### findi ngs" that have "documented the presence of infection. " Petitioner acknowledges that x-rays in April 1993 were evalu ated as showin g "evidence of previous infection." R. 393 (emphasi s ad ded). While it is undisputed that there was an active stap h infection some 15 years ago, and x-rays, laboratory studies or bone scans can apparently identify active or acute infection of thi s nat ure, the record does not reflect confirmation of such a condition in recent years. On the contrary, Pemberton has d eclined to ha ve testing done, stating that he is uninsured and does no t have the money to spare for such testing. He did receive a substantial sum from the settlement of hi s claimagainst the railroad and bought a $200,000 house, but th e record reflects that when his income from investments is poole d with the i ncome of Ms. Buerge, the couple is in rather modes t circumstances. Nevertheless, the failure to seek confirmation of a "fla ring" or otherwise active infectious condition does reduc e the credibility of the claim.
-10- A causat ion defect also exists with respect to evaluating the "ba d days" testimony. Pemberton acknowledges that his bad days are sometimes traceable to overexertion rather than a strictly medical condition. His 9 theory that some of h is "bad days" are caused by a flaring infection is a layman's concept unsupported by acceptable proof such as test results, 10 and is we akened by the absence of any material evidence of treatment o r even consultation with doctors about treatment short of surgery.

Pembe rton also challenges the hearings officer's rejection of Dr

. Paze ll's opinion that he is totally disabled from any employment. A treati ng physician's opinion is generally accorded great weight, but a n 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 det ermination 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,

### T he terminology of Dr. Pazell seems to be rarely used, bu t 11 

### does not in itself connote an active or flaring infection. Se e e.g. , Sprague v. Director, Office of Worker's Compensatio n Programs , 688 F.2d 862, 866 n. 9 (1st Cir. 1982). From th e context, it appears to be Dr. Pazell's hypothesis that there is a mi ldlyactive infection periodically creating great pain (rathe r than an existing condition in remission), but the record does not contain proof of an active infection.
-11- and the hearings officer noted several concerns about the reliability of certain findings and comments.
In evaluating the objective evidence available, the hearings officer revi ewed the 1985 and 1988 reports of consulting examinations by Dr

. Overesch. Although Dr. Overesch restricted Pemb erton from heavy work, his clinical f indings do not support a total disability ruling. The mor e recent 1993 consultative report by Dr. Thomas-Richards also imposed certai n work restrictions on Pemberton based on the chronic low back pai n aggravated by exertional activity.

The conte ntion that Dr. Thomas-Richards is supportive of Dr. Pazell because he found osteomyelitic "affectation" and "involvement" does no t deal with the pertinent question, whether there has been recent active dis c space infection. Eve n Dr. Pazell's reference to a "smoldering" condition does not go so far as claimant's theory of "flaring." 11

Pemb erton's contention that "flaring" spinal disc infection cause s such fre quent "bad days" that he could not work at a regular job coul d properly be ruled insufficient. There is no ade quate showing of an active infecti on; any special periods of suffering could be explained by hi s having exceeded his limits through unusual strai ning and overexertion; and there is no third-party support for claimant's contention that h e frequently is forced to limit his activities for days at a time.

### -12- As to the need to exercise and stret ch for as much as an hour in the afternoon, the conduct is quite consistent with a routine of resting o r exercising that an unemployed person might adopt voluntarily, particularly when, as here, he suffers from some degree of pa in. Claims of fatigue and pain requiring periods of napping and lying down during usual working hour s
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 Polask i analysis, and can be rejected in a case, like th e present one, where there are credibility issue s 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 th e afternoon is not correlated with severe pain. The claimof 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 Ra ilroad Retirement Board is within th e "zone of choice" available to the trier of fact, and it i s affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT