*The Honorable Howard F. Sachs, United States District

Judge for the Western District of Missouri, sitting by

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.

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.
 Pemberton settled a lawsuit brought against the railroad

1

arising from the 1981 injury in July 1987 and resigned from the

railroad as required by the settlement agreement.

 Pemberton had previously filed an application for an annuity 2

in February 1988, alleging disability based on the 1981 back injury

and post-operative complications. He did not appeal the denial of

his claim.

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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, nor has he sought other 1

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. The claim was denied initially 2

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 consistently 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
 Adhesive arachnoiditis is the thickening of the fibrous

3

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).

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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 Pemberton's condition unchanged;

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 coupled

with spinal stenosis and a smoldering disc space infection. He further

3

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
 Osteomyelitis is the inflammation of a bone caused by

4

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, § 1.08(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").

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do heavy work, he was employable in jobs not requiring repeated bending,

stooping or heavy lifting.

In October 1993, Pemberton underwent a consultative examination by

Dr. Thomas-Richards. X-rays indicated degenerative lumbar disc disease

with almost complete obliteration of the disc space, secondary to

osteomyelitic involvement. Dr. Thomas-Richards found Pemberton to have

4

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 continuous 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 "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 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
 Pemberton's prescription medications at the time of the

5

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.

 At the suggestion of Dr. Pazell, Social Security disability 6

benefits have also been claimed, but the record does not show final

disposition.

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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. He also routinely lies on the floor and

5

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

television, 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 encouraged him in 1993 to reapply for

a disability 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 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,
 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 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.

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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 unexplained 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. The purportedly routine need to lie down for stretching

7

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
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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 "individuals

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).

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 determination

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
-8-

20 C.F.R. §§ 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 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 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,
 There is, however, some conflict between his claim of a

8

"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.

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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 judgment.").

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. 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 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.
 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 10

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.

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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. His 9

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 employment. 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,
 The terminology of Dr. Pazell seems to be rarely used, but

11

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.

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and the hearings officer noted several concerns about the reliability of

certain findings and comments.

In evaluating the objective evidence available, the hearings officer

reviewed the 1985 and 1988 reports of consulting examinations 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 "involvement" does not

deal with the pertinent question, whether there has been recent active disc

space infection. Even Dr. Pazell's reference to a "smoldering" condition

does not go so far as claimant's theory of "flaring."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 overexertion; 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.
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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 Retirement 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