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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, and
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lumbar 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 vocational 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
than 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.
1"Residual functional capacity is what the claimant can do
despite his or her limitations." 20 C.F.R. � 220.120(a)(1)
(1995).
2

Analysis
Section 2(a)(1)(v) of the Railroad Retirement Act of 1974
provides, in relevant part, that an individual who has completed
ten years of service shall be entitled to an annuity, upon
application, 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 determinable 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 might
245 U.S.C. � 231a(a)(1)(v).
320 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."
4Work 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).
520 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).
6Elzy v. Railroad Retirement Board, 782 F.2d 1223 (5th
Cir.1986).
3

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 twenty 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 conducted 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,
7Id. at 1224 (quoting Richardson v. Perales, 402 U.S. 389,
401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).
4

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 decision 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 sitting 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 relief
8The 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."
9See 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