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Duncan v. United States Railroad Retirement Board

United States Court of Appeals, Seventh Circuit

May 20, 2015

ADRIAN C. DUNCAN, SR., Petitioner,

Argued: January 8, 2015.

Page 401

Petition for Review of an Order of the Railroad Retirement Board. No. 12-AP-0047.

For Adrian C. Duncan, Sr., Petitioner: Meredith E. Marcus, Attorney, Daley Disability Law, Chicago, IL.

For United States Railroad Retirement Board, Respondent: Debra Chesnin, Attorney, Michele Neuendorf, Attorney, Bureau of Law, Chicago, IL.

Before BAUER, MANION, and ROVNER, Circuit Judges.


Page 402

Bauer, Circuit Judge.

In July 2010, plaintiff-appellant, Adrian C. Duncan, Sr., filed an application for a disability annuity under 45 U.S.C. § 231a(a)(1)(v) of the Railroad Retirement Act, claiming that he became disabled on October 28, 2007, due to severe back impairments. The United States Railroad Retirement Board denied his application in October 2010 and denied it again upon reconsideration in January 2011. Duncan appealed those decisions and was granted a hearing before Hearing Officer Anne Baca. Baca denied Duncan's application for benefits in April 2012. Duncan then appealed to the three-member Board in June 2013, which rendered its final decision by affirming and adopting Baca's decision. Duncan now appeals the Board's decision pursuant to 45 U.S.C. § 355(f). We conclude that substantial evidence supports the Board's decision and affirm.


After years of working as a locomotive engineer, and then more briefly as a limousine

Page 403

driver, Duncan applied for a disability annuity in 2010. His application alleged constant back pain stemming from a 2003 workplace injury in which he slipped on ice, hit his head, and injured his back. To begin our review, we will outline the medical evidence accrued in support of Duncan's application, followed by the evidence elicited during the related disability hearing.

A. Medical Records

The medical records in support of Duncan's application and relevant to this appeal begin in March 2004, when Duncan visited his regular treating physician, Dr. Janice Bilby. During the visit, Duncan complained of back pain, but Dr. Bilby only noted slight tenderness and spasm in his back after an otherwise normal examination. Duncan returned to Dr. Bilby's office four more times in 2004, each time complaining of back pain. Dr. Bilby prescribed muscle relaxers and recommended physical therapy. Duncan also underwent one MRI through Dr. Bilby's office, which showed a disc rupture at L5-S1, but was otherwise within normal limits.

At his employer's request, Duncan also visited Dr. George Schoedinger in 2004. Dr. Schoedinger observed decreased lumbar range of motion, a positive straight leg test, and tenderness to the touch at L5-S1. He opined that Duncan's symptoms were consistent with disc pathology as defined by the MRI and advised Duncan to remain off work. Duncan followed up with Dr. Schoedinger a month later. During that visit, Dr. Schoedinger noted that Duncan remained unable to perform the duties of a locomotive engineer.

Duncan continued to see Dr. Schoedinger for his back pain throughout 2005. At a January 2005 visit, Dr. Schoedinger opined that Duncan had reached maximum medical improvement and recommended residual functional capacity (" RFC" ) testing. Dr. Schoedinger conducted an RFC examination in February 2005, which showed that Duncan could safely work at a medium physical demand level. At this time, Dr. Schoedinger advised Duncan that he should be evaluated by a vocational counselor, as he felt Duncan could not pursue the unrestricted heavy industrial activity common to many railroad positions. There is no evidence in the record that Duncan ever sought that counseling.

In March 2005, Dr. Schoedinger advised Duncan that he did not think it would be safe for him to return to his job as a locomotive engineer given his use of pain-management narcotics. In April, seeing no material change in Duncan's status, Dr. Schoedinger advised weight loss to improve his condition. In July, Dr. Schoedinger told Duncan that he could attempt returning to work as a switchman. However, a month later Duncan reported that his symptoms had escalated in severity and, as a result, Dr. Schoedinger suggested Duncan perform medium work rather than the heavy work of a switchman. At a follow-up appointment in October, Duncan complained that throwing a switch months earlier had caused his low back pain to increase, which Dr. Schoedinger attributed ...

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