United States Court of Appeals For the First Circuit

No. 22-1169

STEPHEN R. CROCKETT,

Petitioner,

v.

UNITED STATES RAILROAD RETIREMENT BOARD,

Respondent.

PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES RAILROAD RETIREMENT BOARD

Before

Barron, Chief Judge, Howard and Kayatta, Circuit Judges.

Riley L. Fenner for petitioner. Eunice Kirk, Office of General Counsel, United States Railroad Retirement Board, with whom Ana M. Kocur, General Counsel, Marguerite P. Dadabo, Assistant General Counsel, and Tamra J. Smith, General Attorney, were on brief, for respondent.

February 28, 2023 HOWARD, Circuit Judge. This petition for review

requires us to determine whether substantial evidence supported

the findings that underpinned the U.S. Railroad Retirement Board's

("Board" or "RRB") decision to deny petitioner Stephen R. Crockett

a disabled child's annuity under the Railroad Retirement Act

("RRA"), 45 U.S.C. § 231a(d)(1)(iii). While we may have weighed

the evidence before the agency differently had we been in a

position to do so, we nevertheless recognize that the substantial

evidence standard under which we review the agency's findings is

"highly deferential." Loja-Tene v. Barr,

(1st

Cir. 2020) (quoting Lopez de Hincapie v. Gonzales,

(1st Cir. 2007)). Mindful of that maxim, we deny Crockett's

petition.

I.

We briefly review the procedural history and factual

background of this appeal. Crockett, the son of a railroad worker,

applied in July 2015 for a disabled child's annuity under 45 U.S.C.

§ 231a(d)(1)(iii). As relevant here, that provision of the RRA

entitles unmarried children of certain deceased railroad employees

to an annuity if they (among other requirements) have developed a

disability before the age of 22. The petition for review

implicates two of the Board's findings concerning Crockett's

application: (1) that there was inadequate evidence under the

agency's regulations to support a finding that Crockett had a

- 2 - physical or mental impairment prior to age 22; and (2) that

Crockett's provision of in-home care services for his mother from

January 2001 to March 2006 constituted substantial gainful

activity and undercut his disability claim. As further discussed

below, we ultimately conclude that the first finding was supported

by substantial evidence, and tailor our discussion accordingly.1

A.

Crockett was born in 1954 and turned 22 in 1976.

Crockett stated in his annuity application that his activities

have been severely affected by an "emotional [and] psychological

disorder" beginning in March 1964, at the age of 10, and continuing

since then. He indicated that he had undergone psychiatric

treatment in March 1967 and again from 2011 through the date of

his application. Crockett also later stated before a Board

hearings officer that he underwent treatment from 1967 through

1971 and then again during the 1980s. He recalled Dr. Carlyle

Voss, the psychiatrist who treated him in the late 1960s and early

1970s, diagnosing him with schizophrenia.

When Crockett asked Voss to confirm this treatment in

2015, Voss initially did not recall having him as a patient. He

noted that any relevant treatment records had been destroyed in

1 As alluded to at oral argument, since our conclusion that the Board's first finding was supported by substantial evidence suffices to uphold its decision, and we find no error of law, we decline to address the substantial gainful activity finding.

- 3 - the decades since and that he "treated hundreds of

patients . . . over a span of 17 years." However, Voss noted that

"[i]t is probable that [he] did treat Mr. Crockett for mental

health issues in the early/mid [1970s]." Two years after this

initial letter, Voss wrote to the Board in a second letter that he

did, in fact, remember both treating Crockett "primarily to manage

Thorazine, [Crockett's] medication for a severe psychotic

disorder," and diagnosing him with schizophrenia. The letter also

indicated that Voss spoke with Crockett's "current provider" about

Crockett's condition prior to writing this second letter. In any

case, the diagnosis that Voss recalled would be consistent with

that of his current treating psychiatrist, Dr. Leora Rabin, who

also concluded over the course of her treatment of Crockett that

he suffers from schizophrenia.

Also relevant to this appeal is Crockett's application

to the Social Security Administration ("SSA") for disability

benefits in September 2010. Crockett amended his disability onset

date before the SSA, but at no point did he argue that he was

disabled before the age of 22. An Administrative Law Judge ("ALJ")

ultimately granted Crockett's Social Security disability

application, finding him "disabled as of July 14, 2010 because of

schizotypal personality disorder so severe that it meets the

requirements of one of the impairments listed in [SSA guidance]."

- 4 - B.

Crockett has had his claims reviewed four times by the

agency since he submitted his annuity application in 2015, as he

is entitled to under the Board's regulations. See

(initial decisions); § 260.3 (requests for

reconsideration); § 260.5 (appeal from a reconsideration

decision); § 260.9 (appeal from a decision of a hearings officer

to the Board). Board staff initially denied his application on

the basis that "there [was] insufficient medical evidence"

establishing that he was disabled prior to age 22, and staff

reaffirmed this denial on the same basis several months later on

reconsideration. Crockett then appealed the reconsideration

decision to the Board's Bureau of Hearings and Appeals. A hearings

officer took Crockett's testimony by videoconference in November

2018; Crockett was represented at this hearing by his social

worker. The hearings officer found that Crockett was not disabled

for purposes of the disabled child's annuity both because there

was no medical evidence supporting a physical or mental impairment

prior to age 22, and because his home care work constituted

substantial gainful activity under Board regulations. The officer

concluded so on the basis of Crockett's testimony and several other

forms of evidence, ranging from Crockett's high school transcript

to SSA wage data. The three governing members of the Board then

- 5 - affirmed the hearings officer's decision on largely the same

grounds. This appeal followed.

II.

Section 8 of the RRA vests us with jurisdiction to review

the Board's eligibility determinations for statutorily derived

benefits. See 45 U.S.C. § 231g.2 We will affirm the Board's

determination as long as "substantial evidence exists to support

[its] findings[] and . . . there is no error of law." Sansone v.

U.S. R.R. Ret. Bd.,

(1st Cir. 2005).

"Substantial evidence is 'such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'"

(quoting Richardson v. Perales,

(1971)). To

that end, "[w]e may not weigh the evidence [anew] and decide the

ultimate question [of] whether a claimant is disabled." Dray v.

U.S. R.R. Ret. Bd.,

(7th Cir. 1993).

2 Because the Board issued its own decision on Crockett's claims, we review that decision pursuant to the judicial-review provisions of the RRA. See

(f) (incorporated by reference in 45 U.S.C. § 231g). Nevertheless, because the Board relied on the hearings officer's determinations in making its decision, we will also subject the sections of the hearings officer's decision on which the Board relied to our review. See Duncan v. U.S. R.R. Ret. Bd.,

(7th Cir. 2015) (adopting a similar approach when the Board affirmed and adopted a hearings officer's decision but also "added its own comments"); cf. Sansone v. U.S. R.R. Ret. Bd.,

, 211 n.1 (1st Cir. 2005) ("Because the Board affirmed and adopted the hearings officer's decision, on appeal we evaluate the judgment of the hearings officer." (citing Dray v. U.S. R.R. Ret. Bd.,

(7th Cir. 1993))).

- 6 - III.

A.

As previewed above, Crockett argues that the Board's

conclusion that -- as he characterized it -- "the record

established conclusively that [he] did not have any physical or

mental impairment prior to age 22 [is] not supported by substantial

evidence." In doing so, he appears to aim at the Board's

statements that "there was no medical evidence to support that Mr.

Crockett had a physical or mental impairment prior to age 22," and

more generally that the conclusion that "Crockett was not disabled

prior to age 22 . . . was reasonable and consistent with the

evidence of record."3

The Board's regulations mandate that "[a] physical or

mental impairment must result from anatomical, physiological, or

psychological abnormalities which can be shown by medically

acceptable clinical and laboratory diagnostic techniques."

. These impairments "must be established by medical

evidence consisting of signs, symptoms, and laboratory findings,

not only by the claimant's statement of symptoms."

Relevantly

to Crockett's petition, "[p]sychiatric signs are medically

demonstrable phenomena which indicate specific abnormalities of

3 Crockett also more specifically disputed the Board's "no medical evidence" finding in his reply brief. We address both of his contentions.

- 7 - behavior, affect, thought, memory, orientation[,] and contact with

reality. They must also be shown by observable facts that can be

medically described and evaluated."

(b).

The Board's regulations also provide detailed guidance

for assessing medical opinions. Medical opinions that the Board

considers conclusive are those that are "fully supported by

medically acceptable clinical and laboratory diagnostic techniques

and . . . not inconsistent with the other substantial medical

evidence of record."

(b). Nevertheless, the

regulations still obligate the Board to "make every reasonable

effort . . . to obtain from the claimant's treating source(s) the

relevant evidence that supports the medical opinion(s)" in the

event that the opinion is not "fully supported."

§ 220.112(c).

The Board also "must resolve" inconsistencies between medical

opinions and evidence in the record, including by "secur[ing]

additional independent evidence and/or further interpretation or

explanation from the treating source(s) and/or the consultative

physician or psychologist" if necessary. Id. § 220.112(d). The

Board makes its "determination . . . based on all the evidence in

the case record." Id.

Here, Rabin's opinions and Voss's 2015 claim that he

"probabl[y]" treated Crockett "for mental health issues" prior to

his reaching the age of 22 do not appear to comport with these

regulatory requirements. Statements about his current

- 8 - schizophrenia diagnosis, previous treatment, and the likelihood

that Crockett developed schizophrenia in adolescence will not

suffice without further support that complies with the agency's

regulations. To that end, Voss's 2015 letter did not mention any

specific diagnosis and Rabin's opinions were not "fully supported

by medically acceptable clinical and laboratory diagnostic

techniques" under sections 220.112 and 220.27 for the purposes of

showing that Crockett developed a mental impairment prior to age

22 because they were not evidenced by "symptoms, signs, and

laboratory findings" of Crockett's presentation prior to age 22

under section 220.113. Section 220.113(a) explicitly mandates

that "[s]ymptoms," or "the claimant's own description of his or

her physical or mental impairment(s)," cannot alone establish an

impairment. And, as the Board noted, Rabin's "opinions do not

suggest how the medical signs and findings of 2014 and

2015 . . . may be presumed to be present at the same level in 1976

other than based on Mr. Crockett's reports of symptoms to them."4

4 To be sure, Rabin also noted that schizophrenia is "a lifelong illness that usually first appears in adolescence" and that "the time frame of onset of schizophrenia [is] completely consistent with [Crockett] becoming disabled in adolescence." But schizophrenia's population-wide characteristics would not appear to suffice as support for her opinion regarding Crockett's disability onset date under the Board's regulations. Such evidence would not constitute "signs," or "anatomical, physiological, or psychological abnormalities which can be observed, apart from the claimant's own statements[,]" on an individual claimant.

(b). And the regulation's mention of "medically acceptable laboratory diagnostic techniques . . . includ[ing]

- 9 - The hearings officer and Board were thus entitled to not

"consider[] [Rabin's and Voss's opinions] conclusive nor [to]

give[] [them] extra weight."

(e).5 And, in

the context of that conclusion, we cannot reweigh the evidence

that was before the Board and hearings officer. See Dray,

. The hearings officer and the Board considered 37 exhibits

in concluding that Crockett was not disabled under the Board's

regulations prior to age 22, including records that showed

inconsistencies between Crockett's statements to the SSA and to

the Board about his disability onset date and school records that

contradicted Crockett's statements that he struggled academically.

Crockett nevertheless contends that the Board and hearings officer

did not "adequately consider the written statements of [his] mother

and his high school art teacher," and he also challenges the

Board's determination that Voss's second letter recalling that

Crockett was diagnosed with schizophrenia was "uncorroborated

chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.) x-rays, and psychological tests,"

§ 220.113(c) -- all of which focus on individual people or objects -- also appears to indicate that "[l]aboratory findings" do not include population-wide evidence, as a matter of ejusdem generis. See Me. Forest Prods. Council v. Cormier,

(1st Cir. 2022) ("[T]he ejusdem generis canon . . . instructs that where 'a more general term follows more specific terms in a list, the general term is usually understood to embrace any object similar in nature to those objects enumerated by the preceding specific words.'" (quoting Epic Sys. Corp. v. Lewis,

(2018))). 5 Voss's 2017 letter is discussed in more detail below.

- 10 - [because it was written] 40 years after the fact, [was]

inconsistent with his statement of two years prior, and not

supported by the evidence." Crockett asserts that this conclusion

was unwarranted because Voss's recollection "had been adequately

refreshed," including through a conversation with Rabin. But

determining credibility and weighing conflicting pieces of

evidence are quintessential tasks for fact-finders, to whom we owe

great deference on substantial evidence review. Cf. Mashilingi v.

Garland,

(1st Cir. 2021) ("[A]s long as the

agency's credibility determination is supported by reasonable,

substantial, and probative evidence on the record considered as a

whole, we must accept it." (quoting Zaruma-Guaman v. Wilkinson,

(1st Cir. 2021))). Accordingly, and given the sum

total of the record, we are constrained to conclude that there was

"such relevant evidence as a reasonable mind might accept as

adequate to support [the RRB's conclusion]." Sansone,

(quoting Richardson,

).

B.

Crockett also asserts that the hearings officer breached

her duty "to more fully develop the record regarding [his claim of

having a disability prior to age 22]." Citing to our decision in

Torres-Pagán v. Berryhill,

(1st Cir. 2018), he

argues that the hearings officer had a duty to do so because he

"was represented only by a non-attorney social worker at the

- 11 - hearing and because of his documented mental impairment." He also,

as further support for his view that the decision reached by the

agency was insufficiently supported, points to the relative

paucity of medical evidence from his adolescence and the fact that

the evidence cited by the hearings officer and the Board did not

"meaningfully contradict[] the statements of Mr. Crockett, his

treating physicians and other medical providers, or the statements

of his mother and his art teacher, regarding the observed or likely

onset of his disabling schizophrenia symptoms prior to age 22."

We cannot gainsay the importance of a full and fair

hearing for all claimants before the Board, and this rings

especially true in cases involving individuals with disabilities.

Indeed -- and as Crockett points out -- we recognized in Torres-

Pagán that

[p]ro se status, coupled with diagnosed mental deficiencies, is without question the type of situation where we believe an ALJ has a heightened responsibility to develop the record. . . . [I]ndividuals with psychiatric disorders are often some of the most vulnerable in society and unlike the standard pro se claimant at an [agency] hearing, those with alleged disabilities sounding in mental health may be particularly vulnerable when unrepresented by counsel.

. We nevertheless do not believe that the

hearings officer breached any such duty in this case.

Fundamentally, Torres-Pagán and Currier v. Secretary of Health,

- 12 - Education & Welfare,

(1st Cir. 1980) -- a

predecessor to Torres-Pagán -- both concerned scenarios in which

the officer in question made no attempt to obtain at least

reasonably readily available evidence. In Torres-Pagán, we

remanded after an ALJ's finding that the claimant was no longer

disabled, when the ALJ had made no attempt to obtain evidence of

contemporaneous psychiatric treatment, despite the fact that the

claimant had "provided the [a]gency with his doctor's name, the

medical facility[,] . . . his prescribed medications (with

dosages), [the facility's] address, [the facility's] phone number,

and reasons for visiting [the facility]."

.

Similarly, we remanded after an ALJ's decision in Currier, when

the ALJ had found that the claimant could "perform the same type

of work at another establishment and therefore [was] not entitled

to disability benefits" merely based on clinical notes that were

both contradicted by other evidence in the record and

"unaccompanied by any formal opinion and diagnosis explaining to

what degree and in what respect appellant may be impaired by his

mental illness and relating these deficiencies to the requirements

of his former job and other available jobs."

. We

explained that agency officials presiding over disability

claimants' hearings have a duty to "to see that the gaps [in the

record] are somewhat filled . . . by ordering easily obtained

- 13 - further or more complete reports or requesting further assistance

from a social worker or psychiatrist or key witness."

.

Here, by contrast, the record does not suggest any

readily available evidence that would meet the Board's regulatory

standards. Crockett suggests that the hearings officer could have

"obtain[ed] testimony or responses to written questions from Dr.

Rabin and/or Dr. Voss to more fully establish the basis for their

opinions that [Crockett] had been disabled due to schizophrenia

prior to age 22," given both his current diagnosis and the fact

that schizophrenia is "know[n] to commonly be of long duration[,]

beginning in adolescence or early adulthood." But it is not clear

to us that doing so would have aided in developing Crockett's case.

As noted above, the Board's regulations require that conclusive

medical opinions be "fully supported by medically acceptable

clinical and laboratory diagnostic techniques,"

(b); if they are not, the Board will endeavor "to obtain

from the claimant's treating source(s) the relevant evidence that

supports the medical opinion(s),"

§ 220.112(c).

Current testimony from Voss or Rabin likely would not

suffice under these regulations for much the same reasons that

their opinions do not. Rabin only treated Crockett decades after

he turned 22, and, even setting aside the fact that he initially

did not recall treating Crockett, Voss's 2015 letter did not

diagnose Crockett with schizophrenia, and the Board determined

- 14 - that his 2017 letter was not entitled to weight. Accordingly, we

see no obligation to develop the record, as neither Rabin nor Voss

can provide "relevant evidence that supports" a diagnosis of

schizophrenia before Crockett attained the age of 22. Id.

§ 220.112(c). Given those factors, Torres-Pagán's reasoning

concerning readily-available evidence does not apply to Crockett's

case. The hearings officer thus did not run afoul of any

obligation she had under that case.

IV.

As counsel for the Board acknowledged before us,

Crockett has advanced a sympathetic case. But we are bound to

apply the Board's valid regulations, and the substantial evidence

standard is a notoriously "high bar" for claimants to meet. Loja-

Tene,

. The petition for review is thus denied.

- 15 -