United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1424
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Robert A. Foster, *
*
Petitioner, *
* On Petition for Review from the
v. * Railroad Retirement Board.
*
Railroad Retirement Board, * [UNPUBLISHED]
*
Respondent. *
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Submitted: August 20, 2002
Filed: August 27, 2002
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Before HANSEN, Chief Judge, FAGG and BYE, Circuit Judges.
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PER CURIAM.
Robert A. Foster sought disability benefits under the Railroad Retirement Act,
claiming he was permanently disabled as the result of a 1998 back injury. The
hearing officer concluded Foster was not physically able to perform his previous job,
but that he could perform other, more sedentary work. Foster appealed to the
Railroad Retirement Board (the Board), which affirmed the hearing officer’s decision.
Foster now asks us to review the Board’s decision. In doing so, we must determine
whether the Board’s decision “is supported by substantial evidence, is not arbitrary,
and has a reasonable basis in law.” Worms v. R.R. Ret. Bd., 255 F.3d 502, 505 (8th
Cir. 2001).
First, Foster contends the Board’s decision is based on an error of law because
the Board failed to consider the factors listed in Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984), when it made factual findings about Foster’s claims of pain and
fatigue. See Fountain v. R.R. Ret. Bd., 88 F.3d 528, 531 (8th Cir. 1996) (applying the
Polaski standard in a railroad benefits case). Although the Board did not cite Polaski,
it did consider the Polaski factors: it reviewed Foster’s medical history, summarized
his present physical activities–including walking two miles on a daily basis, and
occasional hunting and fishing–and also observed that he could manage the pain he
complained of with Tylenol. Having reviewed the medical evidence in the record as
well as the hearing officer’s determinations, the Board concluded: “Mr. Foster’s
allegations of disabling pain are also inconsistent with his daily routine and
activities.” Robert A. Foster, No. A-501-70-2810, slip op. at 2 (RR. Ret. Bd. Mar. 20,
2001). We conclude this was an appropriate application of the Polaski factors, and
we reject Foster’s contention that the Board’s evaluation was flawed as a matter of
law.
Second, Foster claims the Board’s decision is not supported by substantial
evidence for three reasons. Foster argues the Board did not sufficiently consider his
mental impairment; however, the Board considered professional evaluations of
Foster’s mental impairment, his academic and professional achievements, and his
daily activities as well as his conduct. The Board then concluded that “although Mr.
Foster’s reading and writing skills may be limited, he is literate and does not suffer
from a mental impairment that would preclude him from performing a wide range of
sedentary work.” Id. at 3. Next, Foster claims the Board placed too much weight on
the testimony of a vocational expert that Foster could perform occupations that exist
in significant numbers in the national economy. Foster’s physical limitations were
made clear to the expert, but Foster claims the expert’s answer did not account for his
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need to rest or his mental limitations. Because the question to the expert was based
on the impairments the Board found Foster possessed, the expert’s testimony is
reliable. See Teague v. R.R. Ret. Bd., 982 F.2d 303, 304 (8th Cir. 1992). Finally,
Foster argues the Board did not properly consider his claims of pain and fatigue. As
stated above, however, the Board thoroughly reviewed these claims by applying the
Polaski factors. See id. We hold the Board’s conclusion that Foster can perform
sedentary work is supported by substantial evidence.
We thus affirm the Board’s decision.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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