NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0175n.06
Filed: April 1, 2008
No. 07-3608
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHAWN E. HOWARD, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW FROM THE
) RAILROAD RETIREMENT BOARD
UNITED STATES RAILROAD )
RETIREMENT BOARD, )
)
Respondent. )
Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Shawn E. Howard petitions this Court for review of the United
States Railroad Retirement Board’s denial of his application for a disability annuity under the
Railroad Retirement Act of 1974, 45 U.S.C. §§ 231 et seq. We have jurisdiction to review Howard’s
petition under 45 U.S.C. § 231g, which incorporates by reference 45 U.S.C. § 355(f). Because the
Board’s decision is supported by substantial evidence and not based on an error of law, we affirm.
I
Howard began working in the railroad industry in March 1995. He left his railroad job in
February 2004 and filed an application for a disability annuity in September 2004, claiming total
disability from various maladies, including back injury and associated pain. After denying Howard’s
initial application, the Board again denied it at three separate stages of appeal.
No. 07-3608
Howard v. U.S. R.R. Ret. Bd.
II
When reviewing a decision of the Railroad Retirement Board, we must affirm if the Board’s
decision is supported by substantial evidence and not based on an error of law. 45 U.S.C. § 355(f);
Crenshaw v. United States, 815 F.2d 1066, 1067 (6th Cir. 1987). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler
v. U.S. R.R. Ret. Bd., 713 F.2d 188, 189 (6th Cir. 1983) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). If the record supports the Board’s decision, we must accept it without
independently evaluating the evidence, Crenshaw, 815 F.2d at 1067, because the substantial
evidence standard
presupposes that there is a zone of choice within which the decision makers can go
either way, without interference by the courts. An administrative decision is not
subject to reversal merely because the substantial evidence would have supported an
opposite decision,
Rowe v. R.R. Ret. Bd., 114 F. App’x 189, 191 (6th Cir. 2004) (quoting Blankenship v. Bowen, 874
F.2d 1116, 1120 (6th Cir. 1989).
III
Howard argues that two aspects of the Board’s decision warrant its reversal. Howard first
argues that the Board’s decision is not supported by substantial evidence because in determining
Howard’s Residual Functioning Capacity (“RFC”), the Board relied on the assessment of a non-
examining physician that contradicted the assessments of one treating and one examining physician.
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No. 07-3608
Howard v. U.S. R.R. Ret. Bd.
Second, Howard argues that in rejecting his claim of disabling pain, the Board’s decision is not
supported by substantial evidence and is based on an error of law. Finding these arguments
unpersuasive, we affirm.
A
Howard challenges as unsupported by substantial evidence the Board’s conclusion that he
can perform certain light and sedentary work because the Board favored the RFC assessment of Dr.
Uy, a physician who did not examine Howard but only reviewed his case file, over the RFC
assessments of Dr. Hardin, a treating physician, and Dr. Apgar, an examining physician. Howard
pursues this argument via two routes.
He first contends that in evaluating the record evidence the Board was required to accord
substantial deference to the medical opinion of his treating physician; however, the Board must
afford a treating physician’s medical opinion substantial deference only if the opinion is supported
by sufficient medical data. See Duffy v. R.R. Ret. Bd., 1991 U.S. App. LEXIS 18833, at *8 (6th Cir.
1991) (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)). In rejecting the opinion of
Howard’s treating physician, the Board found that Dr. Hardin’s medical findings of “lumbar spine
sprain” and “cervical spine sprain” did not support the level of impairment indicated by his RFC
assessment. Moreover, even if we were to find that Dr. Hardin’s opinion was entitled to substantial
deference, the record as a whole supports the Board’s contrary finding by substantial evidence.
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Howard further argues that regardless of whether the Board accorded Dr. Hardin’s opinion
sufficient deference, the Board’s RFC determination is not supported by substantial evidence because
the Board favored Dr. Uy’s assessment over the assessments of Dr. Hardin and Dr. Apgar. Although
contrary to the opinions of Dr. Hardin and Dr. Apgar, the Board’s decision finds support by
substantial evidence in the opinions of other examining physicians. In particular, Dr. Travis
indicated that Howard’s purported pain level had no identifiable origin. Dr. Tibbs reported that
Howard’s most recent MRI read “normal” and found no medical explanation for Howard’s reported
residual symptoms. In favoring Dr. Uy’s assessment, the Board did not rely solely on the opinion
of a physician who never examined Howard; rather, it resolved a conflict of opinions among
examining physicians. In cases such as this one, we will not second-guess the Board’s decision
when it is supported by substantial evidence. Rowe, 114 F. App’x at 191; Crenshaw, 815 F.2d at
1067.
B
Howard next contends that in rejecting his claim of disabling pain, the Board’s decision is
not supported by substantial evidence and is based on an error of law. Howard argues that several
factors justify reversing the Board’s decision: (1) evidence of Howard’s muscle spasms; (2) Dr.
Boykin’s opinion that Howard’s back pain caused urinary retention problems; (3) Howard’s chronic
use of pain medication; and (4) his demeanor at the hearing.
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Howard v. U.S. R.R. Ret. Bd.
We do not agree. The record is replete with evidence that contravenes Howard’s contentions
of disabling pain, including doctors’ opinions that objective medical findings do not support
Howard’s medication level and that Howard expressed more interest in medication than in treatment
for his symptoms.1 Reviewing these medical opinions in the context of the entire record, we are
satisfied that the Board’s decision is supported by substantial evidence.
Relying on Lambert v. Railroad Retirement Board, 929 F.2d 1197, 1201 (7th Cir. 1991), and
Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989), Howard further argues that the Board
committed an error of law because “if medical evidence establishes an objective basis of some
degree of the symptoms and no evidence affirmatively suggests the claimant is malingering, the
[Board’s] failure to consider a claimant’s subjective complaints of pain must be supported by ‘clear
and convincing evidence.’” Petr.’s Br. 24. Howard’s argument is unpersuasive. No Sixth Circuit
opinion cites either of these cases or sets forth that rule, and even under such a rule, Howard’s
argument would still fail. First, record evidence undercuts Howard’s pain claims. Dr. Briggs
explicitly noted that Howard was not interested in treatment, and Dr. Granacher suggested that
Howard showed signs of symptom magnification. Second, contrary to Howard’s assertion, the Board
clearly considered Howard’s subjective complaints of pain. In weighing these complaints against
1
Specifically, Dr. Travis reported that he was “appalled by the amount of narcotics [Howard]
is taking . . . in the absence of objective findings” that would support his medication level. Dr.
Granacher reported that Howard exhibited signs of symptom magnification and doctor-shopping for
pain medication. Dr. Freimark noted that Howard declined to proceed with treatment and testing
options and that, based on a physical exam and MRI, “he is not a candidate to be maintained on
narcotics at this time.”
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the extensive record evidence and Howard’s demeanor at his hearing, however, the Board
determined that Howard does not suffer from disabling pain.
IV
The petition is denied, and the decision of the Board is affirmed.
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