dissenting:
I agree with the majority’s statement of the law and its statement of the facts. Because the majority does not correctly apply that law to those facts, however, I must dissent.
The majority properly concludes that Ms. Estes is eligible for the disabled child’s annuity only if she was under a disability at the time of her twenty-second birthday. On or before that date, she must have been prevented by her condition from regularly engaging in substantial gainful activity. Based on the record as a whole, however, there is substantial evidence to support the RRB’s finding that Estes was not in fact disabled on or before reaching age twenty-two. Because the finding is supported by substantial evidence, we should not disturb it, even if we might reach a different conclusion looking at the question afresh. See Atkins v. Railroad Retirement Board, 721 F.2d 652, 653 (9th Cir.1983).
According to the facts as recited by the majority, Estes was diagnosed as suffering from multiple sclerosis in 1976. Before her twenty-second birthday in 1977, she had experienced foot-drop, visual problems, sensory defects in the lower extremities, and abnormal fatigue. Although she worked and went to school during this time, the fatigue forced her to take afternoon classes only and, she testified, severely hindered her work as a clerk in a car dealership. This is the full extent of the evidence in the record on Estes’ pre-age 22 condition; the conclusion that she was disabled before that age must therefore be based solely on this evidence. Any subsequent deterioration in her condition is immaterial.
The majority states that the referee in this case “relied on the petitioner’s employment in finding that the disease had not prevented substantial gainful activity,” ante, and notes that employment is not necessarily substantial evidence of substantial gainful activity. Ante (quoting Parish ). Nevertheless, employment also obviously can be substantial evidence of substantial gainful activity. See, e.g., Harmon v. Finch, 460 F.2d 1229, 1231 (9th Cir.) cert. denied, 409 U.S. 1063, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972); 20 C.F.R. § 404.1574(b)(2) (1985) (listing earning levels that will ordinarily show that a person has engaged in substantial gainful activity). Here, the referee considered the type and duration of the job Estes held, her uncorroborated statement that her work was inadequate and was accomplished only through the kindness of a coemployee, and her statement to a doctor that she left the job for reasons other than her multiple sclerosis. In addition, Estes’ earnings for her work at the car dealership averaged *1440approximately $408 per month, well above the $230 and $240 per month averages that create a presumption of substantial gainful activity for 1976 and 1977. 20 C.F.R. § 404.1574(b)(2)(ii) & (iii) (1985). Although we might reach a different conclusion, the referee’s finding that Estes’ employment constituted substantial gainful activity is clearly supported by substantial evidence.
Furthermore, the referee did not, as the majority apparently assumes, rely solely on Estes’ employment in finding that she was not disabled before her twenty-second birthday. The referee also compared Estes’ condition to those conditions found in the Social Security regulations defining what symptoms and levels of advancement of various diseases constitute “disability” for the purpose of Social Security benefits.1 The listing for multiple sclerosis is found at 20 C.F.R. Part 404, Subpart P, Appendix I § 11.09 (1985). That regulation specifies particular disabilities, including significant and persistent disorganization of the motor function in two extremities that results in sustained disturbance of gross and dextrous movements, or gait and station; severe impairment of central visual acuity; and other physical and mental functions. Evaluation of these criteria includes consideration of the frequency and length of ex-acerbations, length of remissions, and permanent residual effects. Id. at § 11.00(D). Based on the symptoms listed by the majority, the appeals referee found:
[DJuring these years, (1976-1979) her symptoms and findings were not so severe as to meet the level of severity as indicated in the Social Security Listing 11.09.
The majority overturns this finding, but it does not point out why. Instead, the majority relies on the simple existence of multiple sclerosis to arrive at its finding of disability. The existence of the disease alone, however, does not constitute a “disability” unless it prevents substantial gainful activity, Dunlap v. Harris, 649 F.2d 637, 638-39 (8th Cir.1981), and the majority does not explain how the symptoms it describes so operate.
Nor, despite the majority’s assertions, is reversal here justified by the remission/relapse nature of multiple sclerosis. Both the Parish court, 642 F.2d at 193, and the majority here correctly note that a brief period of remission in an otherwise progressively debilitating disease does not disqualify an otherwise eligible applicant. Indeed, this is the only equitable result; to hold otherwise would defeat the purpose of the disabled child annuity and leave an applicant’s eligibility to the fortuity of her twenty-second birthday falling in a period of relapse instead of remission. In Estes’ case, however, the question is not whether Estes’ work as a clerk fell within a period of remission, but whether her condition, even before that remission, ever reached a disabling level. Based on the symptoms described by the majority, the RRB could reasonably conclude it did not.
The petitioner is now severely disabled. She presents a claim which makes a strong appeal to our sympathies. And yet, in such hard cases, we must be especially alert to avoid making bad law.
Here, there can be little doubt that the finding of no disability on Ms. Estes’ 22nd birthday was supported by substantial evidence. That is all we must decide. The understandable concern of this Court, and of society, for the long-term care of disabled persons is not at issue here. What is at issue is our adherence to settled principles for the review of factual determinations by the Railroad Retirement Board. With all respect, I believe the majority has disregarded those principles. I therefore dissent.
. As the majority points out, the RRB and the courts use the SSA regulations in determining disability under the RRA.