Samuel Stephens, Jr. v. U.S. Railroad Retirement Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL P. STEPHENS, JR., No. 11-70649

Petitioner,

RRB No.

v. 10-AP-0049

U. S. RAILROAD RETIREMENT

BOARD , OPINION

Respondent.

On Petition for Review of an Order of the

Railroad Retirement Board

Argued and Submitted

July 12, 2012—Seattle, Washington

Filed November 21, 2012

Before: Mary M. Schroeder, Stephen Reinhardt,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Schroeder;

Dissent by Judge M. Smith

2 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

SUMMARY*

Railroad Retirement Act

The panel reversed a decision of the United States

Railroad Retirement Board that denied an application for

benefits under the Railroad Retirement Act, and remanded for

further proceedings.

The Railroad Retirement Act provides an annuity for

disabled children of railroad workers, and the Board ruled

that claimant did not qualify for benefits because during three

out of the 30 years preceding his application, he worked at

three menial jobs which constituted gainful employment that

disqualified him from eligibility. The panel held that short

periods of temporary employment, inadequately performed,

do not constitute substantial gainful employment that would

disqualify a claimant for benefits. The panel further held that

when considering the Railroad Retirement Act’s requirement

of continuous disability, the court must look to the history of

the claimant’s disability and the claimant’s success or lack

thereof in sustaining meaningful employment. The panel

concluded that claimant was entitled to benefits.

Judge M. Smith dissented. Judge Smith wrote that

because the Board’s decision is supported by substantial

evidence, is not arbitrary, and has a reasonable basis in law,

it must be upheld.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 3

COUNSEL

David E. Chawes, Seattle, Washington, for petitioner Samuel

P. Stephens, Jr.

Michele L. Bopp, Chicago, Illinois, for respondent U.S.

Railroad Retirement Board.

OPINION

SCHROEDER, Circuit Judge:

This is a relatively rare petition to review a decision of the

United States Railroad Retirement Board denying an

application for benefits under the Railroad Retirement Act

(“RRA”). 45 U.S.C. § 231 et seq. The RRA provides an

annuity for disabled children of railroad workers. To qualify

for benefits, the child must have been disabled prior to the

age of 22 and have remained continuously disabled through

the time of application for benefits. 45 U.S.C. § 231a; 20

C.F.R. § 216.71(d)(2)(i).

The Board ruled the petitioner, Samuel Stephens, did not

qualify because during three out of the 30 years preceding his

application, he worked at three menial jobs. Even though he

was fired from each, the Board ruled that the work constituted

gainful employment that disqualified him from eligibility.

The Board majority looked solely to the Board’s regulations,

which set forth guidelines for the amounts of average

monthly earnings that generally indicate substantial gainful

activity. Because Stephens’s earnings exceeded that average

between 1986 and 1989, the Board majority concluded he had

not been continuously disabled. The Board did not, as the

4 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

dissent contends, affirm or adopt the totality of the decision

of the hearings officer. The hearings officer had also

concluded that Stephens was not disabled before he was 22

by relying solely on a purported lack of medical records, even

though psychiatric evaluations dating to age 14 demonstrated

severe psychiatric problems that prevented him from

successfully completing even special education. The Board

did not discuss that issue. It relied exclusively on Stephens’s

limited work experience after age 22, citing “evidence

showing that Mr. Stephens performed substantial gainful

activity in the years 1987-1989,” when Stephens was in his

mid-20’s, to conclude that he had not been continuously

disabled.

The dissenting Board member would not have viewed

such earnings in isolation and would have granted benefits,

looking to Stephens’s long history of mental and physical

problems and unsuccessful attempts to work. The record

amply documents that long history of mental, emotional and

physical problems. The petitioner, the son of a deceased

railroad worker, was diagnosed at the age of 14 by a medical

doctor as having severe mental and emotional problems. The

doctor found that Stephens was “at the low end of the

borderline range” intellectually. When Stephens was 15, a

psychologist recommended he be taken out of public school

and enrolled in a special school for children with emotional

problems. The psychologist noted that Stephens had “only a

tenuous grasp on reality” and was “unable [to] differentiate

reality from fantasy decisively.” Although the doctors

suggested that Stephens might have greater mental abilities

than shown by the test scores, he dropped out of the special

school in the ninth grade in about 1982 after repeating two

grades and failing many classes. He did not complete any

further education.

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 5

Stephens testified that he attempted to work between 1983

and 1986, but failed, and the Social Security records show

that he earned no money. Between 1986 and 1989, Stephens

managed to hold on to three minimum-wage jobs for only

limited periods before being fired from each. For parts of

1986 and 1987, he worked at Harston Hall Nursing Home,

mopping floors, folding towels, and carrying bags of laundry

up and down the stairs. He was closely supervised and given

reduced responsibilities, but even so he missed many days of

work, was often sent home early, and was ultimately fired.

During 1987 and 1988, he worked at a parking garage as a

janitor and errand runner. Again, he was closely supervised

and often missed work. He was fired after stealing $400 that

he had been told to deposit at a bank. In 1989, he worked

briefly at a Days Inn hotel. There, in addition to being

closely supervised, he was given about a third of the

workload of other employees. Nevertheless, he often missed

work and was eventually fired.

After being fired from the Days Inn, Stephens was

homeless. According to his Social Security records he made

about eleven work attempts between 1990 and 1997, but his

tenure at each job was short lived, and his earnings were

inconsequential. He has received Social Security disability

benefits since 1995.

The critical issue in the case is the significance of

Stephens’s earnings prior to his application for RRA benefits.

The Board majority viewed these earnings as dispositive of

the issue of continuous disability. In doing so, the Board

committed legal error. The regulations, particularly when

read in the light of our case law, are not so rigid.

6 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

The regulations provide, at best, a presumption that one

who earns more than the prescribed amount per month has

been gainfully employed. They provide that, as a “guide,”

monthly earnings averages over a certain amount will

“ordinarily show that the claimant has engaged in substantial

gainful activity.” 20 C.F.R. § 220.143 (emphasis added). For

the years 1980-1989, the average earnings amount that would

trigger the presumption is $300 per month. Id. The

regulation’s plain language forecloses the Board’s

interpretation of it to deem Stephens’s earnings dispositive.

This reading of the regulation, therefore, is not entitled to

deference under Auer v. Robbins, 519 U.S. 452, 461 (1997).

The regulations focus on the amount of earnings that

would presumptively, but not conclusively, establish gainful

activity when the claimant received them. The case law

therefore requires the Board to consider not only the amount

an applicant has earned, but also the context in which those

earnings were received. The Board did not do so here. It

ignored our precedent holding that temporary, unsuccessful

attempts at employment do not foreclose a disability claim.

Our circuit’s leading case is Estes v. Railroad Retirement

Board, 776 F.2d 1436 (9th Cir. 1985). The issue was whether

the applicant’s multiple sclerosis caused her to be disabled

before she was 22. Looking to the nature of her disease, a

progressively disabling condition with periods of remission,

we held that work accomplished during a period of remission

was not substantial gainful activity that would disqualify her

from benefits, id. at 1439, even though, as the dissent noted,

she earned more than the regulations’ presumptive amount,

see id. at 1440 (Wiggins, C.J., dissenting). The majority in

Estes relied on a Sixth Circuit decision, Parish v. Califano,

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 7

642 F.2d 188 (6th Cir. 1981), that also held that temporary

employment was not sufficient to defeat a disability claim.

The facts in Estes were similar to this case in that Estes

was not able successfully to perform the work she did

attempt, and a supervisor had to reduce her work load. We

said “[t]he fact that a disabled multiple sclerosis victim was

employed during a remission period, especially where the

victim’s performance was inadequate, does not establish

substantial gainful employment.” Estes, 776 F.2d at 1439.

Short periods of temporary employment, inadequately

performed, thus do not constitute substantial gainful

employment that would disqualify a claimant for benefits.

Our decision in Estes also relied upon a leading Fifth

Circuit case, Goodwin v. Railroad Retirement Board,

546 F.2d 1169 (5th Cir. 1977), in which a claimant managed

to work for six years, but his shortcomings and need for

assistance from others caused the court to hold that the

employment was not substantial gainful activity that would

prevent his eligibility for benefits. The Fifth Circuit rejected

the Board’s contention that a period of employment

automatically disqualified the petitioner for benefits,

reasoning that “the evidence taken as a whole clearly shows

the petitioner’s lack of fitness for substantial regular

employment.” Id. at 1171. The court held that, despite his

period of employment, “petitioner’s disability began before

age 22 and he is disabled today,” and concluded that “[i]t

would be carrying the statute to an absurdity to deny him his

benefits because of his short periods of temporary

improvement.” Id. at 1172. Here the claimant never

experienced even short periods of temporary improvement.

8 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

The RRA has borrowed many of its concepts from Social

Security law, and so cases decided under that statute can be

instructive. Estes, 776 F.2d at 1438. Our court confronted a

situation similar to Stephens’s in Gatliff v. Commissioner of

the Social Security Administration, 172 F.3d 690 (9th Cir.

1999). We characterized the issue as whether “a string of

sequential, short-term jobs constitute ‘substantial gainful

activity.’” Id. at 691. Concluding that it could not, we stated

that “substantial employment cannot be pieced together from

a collection of insubstantial attempts.” Id. That holding

applies here. The point is reinforced by Byington v. Chater,

76 F.3d 246, 251 (9th Cir. 1996), where an applicant was

denied benefits because his employment during the relevant

period had been so successful that he had received a

promotion. The dissent’s reliance on Byington is therefore

inappropriate.

The medical evidence provides no support for the Board’s

denial. There is no medical evidence showing that Stephens

is able to work. Stephens’s treating physician states that

Stephens’s mental disabilities prevent him from working. His

education and work history demonstrate this has been the

case ever since he was a teenager.

The Social Security Act “is remedial and its humanitarian

aims necessitate that it be construed broadly and applied

liberally.” Adams v. Weinberger, 521 F.2d 656, 659 (2d Cir.

1975). This court has held that a disability may be

continuous under the Social Security Act even if it is

punctuated by unsuccessful attempts to work. In such a case,

the petitioner’s attempts “demonstrate not his ability, but his

inability to engage in substantial gainful activity.” Gatliff,

172 F.3d at 694 (quoting Wilson v. Richardson, 455 F.2d 304,

307 (4th Cir. 1972)). So too, when considering the RRA’s

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 9

requirement of continuous disability, we must look to the

history of the petitioner’s disability and the petitioner’s

success or lack thereof in sustaining meaningful employment.

Despite periods of unsuccessful employment, so long as the

claimant satisfies all the other requirements of the Act, as

Stephens undisputedly does here, the claimant is entitled to

benefits.

The decision of the Board is REVERSED and the matter

REMANDED for further proceedings consistent with this

opinion.

M. SMITH, Circuit Judge, dissenting:

The majority improperly reverses the United States

Railroad Retirement Board’s (the RRB) decision in this case

without giving appropriate weight to the deferential

substantial evidence standard under which the agency’s

decisions ought to be reviewed, or considering the claimant’s

burden of proving disability. Controlling case law provides

that the RRB’s decision will not be set aside “if it is

supported by substantial evidence, is not arbitrary, and has a

reasonable basis in law.” Akins v. U.S. R.R. Ret. Bd., 721

F.2d 652, 653 (9th Cir. 1983). Under binding precedent, our

review must be highly deferential, not de novo as the majority

appears to believe. See Metro. Stevedore Co. v. Rambo, 521

U.S. 121, 149 (1997) (O’Connor, J., dissenting) (“The

substantial evidence standard is extremely deferential to the

factfinder . . . . It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” (citation and quotes omitted)); Tackett v. Apfel,

180 F.3d 1094, 1098 (9th Cir. 1999) (“Substantial evidence

is defined as ‘more than a mere scintilla but less than a

10 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

preponderance.’” (citation omitted)). Most significantly,

regardless of how sympathetic the situation of a petitioner

may be, “we may not substitute our judgment for that of the

Board.” Elzy v. R.R. Ret. Bd., 782 F.2d 1223, 1224 (5th Cir.

1986). Because the RRB’s decision is supported by

substantial evidence, is not arbitrary, and has a reasonable

basis in law, it must be upheld. See Akins, 721 F.2d at 653.

Accordingly, I respectfully dissent from the majority’s

reversal of the RRB’s decision in this case.

Petitioner Samuel P. Stephens, Jr. (Stephens) is not

entitled to an annuity for two reasons: (1) he failed to carry

his burden of proving that, prior to age 22, he was disabled

such that he could not work, and (2) since he was employed

from 1986 to 1989, he cannot show a continuous disability

after age 22 that precluded substantial gainful activity.

Moreover, even if we believe that the issues are closely

divided, we must accord the RRB’s decision the benefit of the

doubt under our deferential standard of review. See id.

A child of a deceased railroad employee is entitled to an

annuity if he “will, without regard to his age, be under a

disability which began before he attained age twenty-two”

and “is unmarried and was dependent upon the employee at

the time of the employee’s death.” 45 U.S.C.

§ 231a(d)(1)(iii)(C). A child is considered “under a disability

if her or his permanent physical or mental condition is such

that she or he is unable to engage in any regular

employment.” Id. § 231a(d)(3). “The claimant for a

disability annuity is responsible for providing evidence of the

claimed disability and the effect of the disability on the

ability to work.” 20 C.F.R. § 220.45(a).

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 11

Under the relevant regulation, Stephens had to

demonstrate (1) that he was “disabled . . . before attaining age

22,” and (2) that “the disability . . . continue[d] through the

time of application for benefits.” Id. § 216.71(d)(2)(i). If he

was able to engage in substantial gainful activity, he was not

disabled for any regular employment under the Railroad

Retirement Act (RRA), 45 U.S.C. §§ 231 et seq. Id.

§ 220.140.

The RRB’s implementing regulation, 20 C.F.R.

§ 220.143, provides a guideline to determine whether a

person who was employed engaged in substantial gainful

activity. The regulation provides that evidence of a person

earning more than $300 per month on average while working

between 1980 and 1989 “will ordinarily show that the

claimant has engaged in substantial gainful activity.” Id.

§ 220.143(b)(2). In contrast, a person who earned less than

$190 per month on average presumably did not engage in

substantial gainful activity. See id. § 220.143(b)(3). If the

person earned between $191 and $299, the RRB will

generally consider other information before making a

decision. See id. § 220.143(b)(6)(i).

Here, the RRB found that “the evidence fails to show that

Mr. Stephens has been continuously disabled since before

attaining the age of twenty-two to the time of his application

for the annuity, due to evidence showing that Mr. Stephens

performed substantial gainful activity in the years

1987–1989.” The RRB thus appears to have denied Stephens

an annuity primarily because of evidence showing that

Stephens was gainfully employed during the 1980s, after he

reached age 22 but before he filed an application for benefits.

Moreover, the hearings officer had ruled, in the alternative,

that “[e]ven if the appellant was found not to be engaging in

12 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

substantial gainful activity the evidence does not support that

he has been continuously disabled since before age 22.” The

RRB expressly affirmed and adopted the decision of the

hearings officer, although it did so without independently

assessing whether the evidence supported finding that

Stephens was disabled before age 22. Where, as here, the

RRB adopts the hearings officer’s opinion without issuing

further findings, the court evaluates the judgment of the

hearings officer. See Dray v. R.R. Ret. Bd., 10 F.3d 1306,

1310 (7th Cir. 1993). Accordingly, the RRB’s decision may

be affirmed on two separate grounds: (1) Stephens’s lack of

evidence that he was continuously disabled before age 22,

and (2) Stephens’s work after age 22, constituting substantial

gainful employment. If either finding is supported by

substantial evidence, Stephens cannot prevail. See Akins,

721 F.2d at 653; 20 C.F.R. § 216.71(d)(2)(i).

I. Disability Before Age 22

The record contains medical evidence susceptible to

different reasonable interpretations about whether Stephens

had a continuous disability before turning 22 years old that

would preclude him from working. The weighing of

conflicting medical evidence is a fact-intensive inquiry

implicating the RRB’s expertise and requiring an ability to

discern sound from unsound medical conclusions that courts

may lack. Our deference to the RRB should be at its peak,

not its nadir, in reviewing such an agency determination. See

Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008)

(en banc). We are appellate judges, not physicians.

Dr. Diane Smityh (Dr. Smityh), who examined Stephens

in 1975 when he was 14 years old, indicated that Stephens

was emotionally troubled, but she did not discuss how long

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 13

his emotional problems would last. She also opined that

Stephens’s overall intellectual functioning and verbal and

performance scale scores were within “the borderline range,”

albeit “at the low end,” but noted that his range of verbal

scale scores was “strongly indicative of higher than measured

ability.”

Dr. Thomas S. Wright (Dr. Wright), the other doctor who

evaluated Stephens before he reached age 22, reported in

1976 when Stephens was 15 years old, that “there were no

signs of symptoms of psychosis, mental illness or severe

emotional pathology.” Although Dr. Wright recommended

that Stephens be enrolled in special education for the

1976–77 school year, he also concluded that Stephens “does

appear to have adequate intellectual abilities, does seem to

have personality strengths which could be maximized under

proper conditions.” Like Dr. Smityh, Dr. Wright never

opined on how long Stephens’s emotional problems would

last or whether Stephens would be capable of working

without improvement in his condition.

Although some evidence suggests that Stephens

experienced difficulties that limited his success in school

before age 22, a lack of academic success is not the

touchstone for proving a disability. For purposes of the

Railroad Retirement Act, a disability may only be shown by

proof that a person has a “permanent physical or mental

condition . . . such that she or he is unable to engage in any

regular employment.” 45 U.S.C. § 231a(d)(3); see also Estes

v. R.R. Ret. Bd., 776 F.2d 1436, 1437 (9th Cir. 1985) (“Under

the RRB regulations, a person is under a ‘disability’ if he or

she is unable to regularly perform ‘the substantial and

material duties of any regular and gainful employment.’ ”

(citation omitted)). Millions of Americans with physical or

14 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

mental limitations regularly participate in the workforce,

precluding them from satisfying the stringent definition of

“disabled” under the RRA.1

The evidence simply does not conclusively demonstrate

that Stephens, before age 22, was disabled such that he could

not work, as he was required to prove to receive an annuity

under the RRA. See 45 U.S.C. § 231a(d)(1)(iii)(C), (d)(3).

Specifically, Stephens failed to produce reliable evidence

discussing his mental health between the ages of 15 and 22

and whether his condition changed over time, or prevented

him from working. Even if Stephens’s testimony were

considered, it does not compel a finding that he was disabled

before the age of 22. Accordingly, I would hold that there is

substantial evidence in the record to find that Stephens did

not meet his burden of proving through medical evidence that

he was disabled prior to the age of 22. The majority elides

this part of the analysis, which independent of whether

Stephens could prove disability after 22, is sufficient to

affirm the RRB’s denial of benefits under the Railroad

Retirement Act.

II. Disability After Age 22

Stephens also cannot prevail because substantial evidence

supports the RRB’s finding that, because of his employment

from 1986 to 1989, he cannot show a continuous disability

1

The Census Bureau estimates that approximately 56.7 million people

(18.7% of the civilian non-institutionalized population) in the United

States had a disability in 2010. See Matthew W . Brault, United States

Census Bureau, Americans with Disabilities: 2010, at 4 (2012), available

at http://www.census.gov/prod/2012pubs/p70-131.pdf. Over 12 million

individuals with a disability between the ages of 21 and 64 were

employed. Id.

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 15

after turning 22 years old. Even if this were a close question,

the majority errs by refusing to defer to the RRB, and instead,

formulating its own unsupported hypothesis as to the severity

and duration of Stephens’s medical problems. To reiterate,

we are a court, not a blue-ribbon tribunal of leading

physicians. Our task is limited to determining whether the

RRB could have reasonably concluded that Stephens was not

continuously disabled. See Tackett, 180 F.3d at 1098; Akins,

721 F.2d at 653. Even if reasonable minds could disagree,

our deferential standard requires that the agency prevail. See

Tackett, 180 F.3d at 1098; Akins, 721 F.2d at 653.

Beginning in 1986, Stephens began working for Harston

Hall Nursing & Convalescent Home Inc. (Harston Hall). In

1987, Stephens earned $4,946.38 from Harston Hall, and

$1,186.88 from Park America Inc., for a total of $6,133.26.

Stephens also earned $4,263.56 in 1988 and $5,081.95 in

1989. These amounts are all well above the $300 per month

average for a calendar year in the 1980s that the RRB

ordinarily considers sufficient evidence to show that a

claimant engaged in substantial gainful activity. See 20

C.F.R. § 220.143(b)(2). On this basis alone, sufficient

evidence supports the RRB’s finding that Stephens engaged

in substantial gainful activity in the 1980s, thereby precluding

him from establishing a continuous disability between the age

of 22 and the time of his application for benefits. Based on

Stephens’s Social Security earnings record, he was also either

able to maintain a job for a significant period of time or to

earn far more than the minimum wage at the time for his

work. This evidence further supports the RRB’s finding that

Stephens engaged in substantial gainful activity before

applying for benefits. Thus, Stephens was not disabled for

purposes of the Railroad Retirement Act, and the RRB

16 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

properly denied him an annuity. See 45 U.S.C.

§ 231a(d)(1)(iii)(C); 20 C.F.R. §§ 216.71(d)(2)(i), 220.140.

The majority opines that the RRB failed to consider not

only the amount a claimant has earned, but also the context in

which those earnings were received. In so doing, the majority

states that RRB committed legal error by ignoring our

precedent holding that temporary, unsuccessful attempts at

employment do not foreclose a disability claim. However,

the cases the majority relies on for this proposition are easily

distinguishable from the facts in this case. In Estes, the

claimant only worked “for several months,” and later, “briefly

held two part-time jobs.” 776 F.2d at 1437–38. Stephens, in

contrast, worked for several years. Moreover, there was no

dispute in Estes that the claimant suffered from multiple

sclerosis, beginning when she was younger than twenty-two

years old. See id. at 1438. In this case, the evidence about

Stephens’s medical condition is disputed. The claimant’s

medical condition in Estes was also known to be incurable,

progressively disabling, and characterized by periods of

remission and exacerbation. See id. In contrast, not only is

Stephens’s medical condition during the 1980s unknown, but

there is certainly no claim that his condition, whatever it may

have been, was an incurable, progressive disability with

periods of remission and exacerbation. Estes is inapposite.

Goodwin v. Railroad Retirement Board, 546 F.2d 1169

(5th Cir. 1977) also misses the mark. In Goodwin, the

claimant had “short periods of temporary improvement,” and

his “employment situation was not that of a normal worker.”

Id. at 1171–72. He worked under the guidance of his aunt in

a hospital’s dietary department; several of his uncles and

neighbors were also employees of the dietary department at

the time; his schedule was arranged to avoid putting stress on

STEPHENS V . U.S. RAILROAD RETIREMENT BOARD 17

him; and the hospital’s president, a nun, noted that the sisters

in charge of the department in which he worked were

sympathetic toward him and overlooked many of his

shortcomings. Id. at 1171. “The sheltered environment and

special treatment he received at the hospital were not the type

of working conditions that can be duplicated outside [a]

family atmosphere.” Id. Here, as the RRB and hearings

officer concluded, Stephens’s employment cannot be

considered sheltered, and there is no evidence to corroborate

Stephens’s testimony that his employment was performed

under special conditions. Moreover, the record does not

demonstrate that Stephens’s work during the 1980s occurred

only because of a temporary improvement in his medical

condition.

This is also not a case like Gatliff v. Commissioner of

Social Security Administration, 172 F.3d 690 (9th Cir. 1999),

where the claimant had 150 jobs, which generally lasted no

more than 2 months over the course of 25 years. 172 F.3d at

691. As the hearings officer concluded, there is no evidence

suggesting that Stephens’s employment between 1987 and

1989 consisted of merely unsuccessful, short-lived attempts

at working. Instead, the success Stephens enjoyed in

obtaining and keeping the jobs he held during this period

indicates that he was capable of substantial gainful

employment.

The approach we applied in Byington v. Chater, 76 F.3d

246 (9th Cir. 1996) is more on point. In Byington, the

claimant worked as a school bus driver in 1992 and earned

wages in excess of $500 per month, thereby creating a

presumption of substantial gainful activity. See id. at 251.

We held that the claimant’s testimony did not adequately

rebut the presumption that he engaged in substantial gainful

18 STEPHENS V . U.S. RAILROAD RETIREMENT BOARD

activity in 1992, even though the claimant testified that he

was slower than other drivers in completing his route, had

concerns about his breathing condition, and occasionally

needed to stop the bus and stretch his legs by walking. See id.

Just as the claimant in Byington, Stephens testified that he

was slower than other workers and did not do a good job as

an employee. Thus, I believe we should follow Byington, and

hold that Stephens’s testimony—even if accepted at face

value—is not sufficient to rebut the presumption that his

work during the 1980s was substantial gainful activity,

thereby precluding him from showing a continuous disability.

III. Conclusion

I would hold that Stephens cannot prevail because

substantial evidence supports the RRB’s conclusions that

Stephens did not establish a continuous disability either

before or after age 22. See 20 C.F.R. § 216.71(d)(2)(i). The

Railroad Retirement Act may be remedial and seek to

promote humanitarian aims, but we are bound by the text of

the statute and its implementing regulations. The majority

errs in reversing the RRB simply because some evidence,

including his testimony, suggests that Stephens was disabled.

See Pemberton v. R.R. Ret. Bd., 108 F.3d 189, 193 (8th Cir.

1997) (“[T]he [RRB’s] decision will not be reversed simply

because substantial evidence may support the opposite

conclusion.”). In a case such as this, the agency is entitled to

the benefit of the doubt. See Akins, 721 F.2d at 653.

Sympathy for Stephens should not trump the deference to

which the RRB is entitled under the law.

I respectfully dissent.