# Alfonso Calderon v. United States Railroad Retirement Board

> Court of Appeals for the Ninth Circuit · January 15, 1986 · 780 F.2d 812

URL: https://www.frixlaw.com/law-library/cases/9474384

## Case

- **Full name:** Alfonso CALDERON, Petitioner, v. UNITED STATES RAILROAD RETIREMENT BOARD, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 15, 1986
- **Citations:** 780 F.2d 812; 1986 U.S. App. LEXIS 21757
- **Precedential status:** Published
- **Opinion:** Dissent by Pregerson
- **Judges:** Duniway, Anderson, Pregerson
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*815 PREGERSON, Circuit Judge,
dissenting.
I dissent.
Neither the Railroad Retirement Act (RRA) nor the regulations promulgated thereunder expressly provide for a “trial work period.” But the RRA does provide: “No annuity under subsection (a)(1) of [section 231a] ... shall be paid with respect to any month in which an individual in receipt of an annuity ... thereunder shall render compensated service to an employer____” 45 U.S.C. § 231a(e)(3). Thus, once an annuity begins, compensated service during a trial work period only suspends the disabled employee’s entitlement to the annuity for any month during which such service is rendered.
The Social Security Act (SSA), however, expressly provides for a period of trial work for disabled individuals. 42 U.S.C. § 1382c(a)(4)(A). 1 The underlying principle of the SSA’s “trial work period” is that services performed during that period are “deemed not to have been rendered for the purpose of determining whether the individual’s disability ceased.” Parish v. Cali-fano, 642 F.2d 188, 193 (6th Cir.1981).
42 U.S.C. § 1382c(a)(4)(A) of the SSA and 45 U.S.C. § 231a(e)(3) of the RRA are functionally parallel provisions because both deal with the effect of trial work upon entitlement to disability benefits. Because these parallel provisions are directed at the same underlying problem regarding suspension of disability payments during trial work periods, we should look to social security cases to guide us in determining Congress’s intent as it relates to the instant railroad retirement case. See Estes v. Railroad Retirement Board, 776 F.2d 1436, 1438 (9th Cir.1985); Burleson v. Railroad Retirement Board, 711 F.2d 861, 862 (8th Cir.1983).
The “trial work period” expressly provided by section 1382c(a)(4)(A) of the SSA allows for a trial work period of up to nine months after an application for disability is filed. See 20 C.F.R. § 404.1592 (e); Parish, 642 F.2d at 193 . In considering the rationale that underlies section 1382c(a)(4)(A), the Sixth Circuit in Parish held that “[i]t would be reasonable to apply the same principle to an attempt to work before filing an application for benefits.” Id. (Emphasis added.) Unsuccessful trial work before applying for social security benefits, therefore, is also deemed not to have been rendered for the purpose of determining when an individual is entitled to disability payments.
The reasoning of Parish is persuasive and should be applied in the instant case. Cf. Estes, 776 F.2d 1436, 1438-39 (following Parish in holding that employment of a multiple sclerosis victim during a remission period did not constitute “substantial gainful employment” under the RRA disability provisions). Like trial work, an individual’s compensated service rendered before applying for RRA benefits should not, under the Parish rationale, control whether the individual’s disability had in fact ceased. Consequently, Calderon’s three-day trial work period in June 1982 should indicate nothing about whether his disability had actually ceased at that time. To start Calderon’s annuity on June 19, 1982 because he rendered compensated service for three days would use the “compensated service” language of 45 U.S.C. § 231d(a)(iii) to determine, in effect, that Calderon’s disability had ceased before that date. Because the referee acknowledged that Calderon’s disability began in November 1981, to deny Calderon annuity payments from that time would treat “compensated service” during the trial work period as a determination that his disability had actually ceased before June 1982, whereas the contrary is in fact true. This, I submit, is not a reasonably legitimate construction of the operative statutory language.
The Board’s decision to start Calderon’s annuity on the day following his three days *816 of trial work in June 1982 is based on a technical reading of 45 U.S.C. § 231d(a)(iii), and is at odds with the case law developed under the analogous SSA provision. Moreover, the Board’s decision penalizes the conscientious employee who tries to handle his or her old job but is thwarted by disability. Finally, the Board’s decision frustrates federal policy of assisting the disabled. The Board’s decision should therefore be reversed. The annuity, after deducting proper set-offs, should be computed as of November 23, 1981, the date Calderon became disabled from further railroad service.
. This section provides:
For the purposes of this subchapter, any services rendered during a period of trial work [by a disabled person] shall be deemed not to have been rendered by such individual in determining whether his disability has ceased in a month during such period.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474384. Public record. Not legal advice.