Petition for Writ of Certiorari — McCole v. Railroad Retirement Board
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011026 JAN - 9 2008
No. OFFICE «
In the
Supreme Court of the United States
GERALD MCCOLE,
Petitioner,
v.
RAILROAD RETIREMENT BOARD,
Respondent.
PETITION FOR A Writ OF CERTIORARI TO
THE Uni*ep States Court OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
KALEN LIPE MaRINA TRAMONTOZZI
LIPE LAW OFFICE Counsel of Record
811 River Avenue c/o CURRY & TAYLOR
P.O. Box 551 Suite 520
Iron Mountain, MI 49801 1112 16™ Street, N.W.
(906)779-1044 Washington, D.C. 20036
(202)393-4141
Attorneys for Petitioner
i
QUESTIONS PRESENTED
Must the Court of Appeals enlarge the record or
grant a remand, where it is apparent that the
Railroad Retirement Board failed to pursue and
consider all relevant issues?
Did the Sixth Circuit err in denying enlargement of
the record and remand and in determining that the
Railroad Retirement Board decision was
supported by substantial evidence?
ul
TABLE OF CONTENTS
QUESTIONS PRESENTED.......cecsccervecsvvseovssssensesessnseesscnvoccocesoeceree
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BASIS POR FURIII TION gsscsocssrassoscecncssnnmvesecssvansinatioconsecsnsesoese
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED......
SEASIIIINT OP THE CAE acs ecsnsccccencoccernsiseccciminnsiqgoesnsscnetacousneves
I
THE SIXTH CIRCUIT DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW THAT HAS NOT BEEN
BUT SHOULD BE SETTLED BY THIS COURT: MUST
THE COURT OF APPEALS ENLARGE THE RECORD
OR GRANT A REMAND, WHERE IT IS APPARENT
THAT THE RAILROAD RETIREMENT BOARD FAILED
TO PURSUE AND CONSIDER ALL RELEVANT ISSUES?
THE COURT OF APPEALS MUST ENLARGE THE
RECORD OR GRANT A REMAND WHERE IT IS
APPARENT THAT THE RAILROAD RETIREMENT
BOARD FAILED TO PURSUE AND CONSIDER ALL
THE SIXTH CIRCUIT ERRED AND MISAPPLIED THE
LAW IN DENYING ENLARGEMENT OF THE RECORD
AND REMAND, AND IN FINDING THAT SUBSTANTIAL
EVIDENCE EXISTED FOR THE RAILROAD
RETIREMENT BOARD DECISION...........scsccscescesseeceeseneeee
CONCLUSION
CO OSOSE TEESE SOS E TESTES ESET ETESESE OES ESEEED
POCO SE ESE SETEEESEHE SET EEE SESE ESSE EESESSE SESE SEO EESESESESES ESSE EEETESESEOS ES
APPENDIX
CIRCUIT COURT ORDER (10/12/2001) ..ssssssseseertnensesesn la
CIRCUTT COURT OPINION (08/17/2001)...sssststseenenenesete 2a
CIRCUIT COURT ORDER (08/23/2000)....+ssssseesessssseeeesernnnseees 8a
RAILROAD RETIREMENT BOARD DECISION (7/12/2000)......10a
HEARINGS OFFICER DECISION (3/15/2000) ......--2cererereeereees 12a
iv
TABLE OF AUTHORITIES
CASES
BASTIEN V. CALIFANO, 572 F.2D 908 (2D CIR. 1978)............. 21, 24
COKER V. GIELOW, 806 F.2D 689 (6TH CIR. 1986), CERT.
DEN., 482 U.S. 906 (1987), REH. DEN., 483 U.S. 1040
EER REC eee 19
CONSOLIDATED EDISON Co. V. NLRB, 305 U.S. 197
RRR th SEEING A let EEO oe EC 19
COULTER V. WEINBERGER, 527 F.2D 224 (3D Cir. 1975).. passim
DRAY V. RRB, 10 F.3D 1306 (7TH CIR. 1993) ...cscsccsssccsscsessssssee 20
HESS V. SECRETARY OF HEALTH, EDUCATION AND
WELFARE, 497 F.2D 837 (BD CIR. 1974) sescsesssssssssssssseeeese 12, 14
JACQUES V. UNITED STATES RAILROAD RETIREMENT
BOARD, 736 F.2D 34 (2D CIR. 1984) ..scscssssssssssssccssecssseesssseees ll
JONES V. RRB, 614 F.2D 151 (8TH CIR. 1980) .....scccsssscsssessseeeee 15
KEPHART V. RICHARDSON, 505 F.2D 1085 (3D Cir. 1974). passim
RICHARDSON V. PERALES, 402 U.S. 389, 410, 91 S.CT.
SEBO, BE LBD SD BEG. CIITE) issececceosevccneesscnecreesnsoscvnevones 12, 19
SCIAROTTA V. BOWEN, 735 F.SUPP. 148 (D.N.J. 1989).........21, 24
SQUIRES V. RRB, 161 F.2D 182 (5TH CIR. 1947).........ses-.00e++- 20, 24
STATUTES
SB UGC, Dain WN cc ccsicccesaicss 8, 21
I Di iii iia as 1
GB UB De IY secs inichcnscoscrcnsatianssnachisnies 23
MB UGG, DeMia OIG ace cesccessscicieercsees 2, 8, 10, 16, 21
GE Rhee: HIE TD einsicisininsninstcessispsnitadeiiemisteneiinilensiinaiciaitasiicins 12
Fe, , aN STORE TN Lo 2,8
42 U.S.C. Section 426(D)........ccsscessseseeesseees fasinichcantnibenhninijnepaiely 2,8
42 U.S.C. Gecthon S7BI .cccescscveecessscscescocsseveccovevcoscccsscvesocssovessesoessess
45 U.B.C. Sections ZBICO) .ccorovscveececesseccseccsoorcoccscssoossseveccoceseversees
45 U.S.C. Section 231a(a)(1)(iv)
45 U.S.C. Section ZB1(a UNV) .cosecssosecccscorseroccsesescescecoecessvesesseesees
45 U.S.C. Section 23lal 1 (iv)....rccccccrsrrccccecsscssceccsseseersereereees A
4B UT S.C,, BCU TBE ccsiccccctecncccecteesesscsrsseetinecinscenvesesonntetcscnssoieioee
45 U.S.C. Section BBD NT) .cccccsssccosesincsevcevcovecoescosscsereese
A UBC. Bate BI vccssevcscecwrsesscnrcencesvecovsescersessevsevinesewnasiers
45 U.S.C. Section 231g ....cccsresecscressosceserserserecsorsccecevesoosrssssrssoeseess
4B U.S.C. Section BEGCL).....ccccsscccvccsessoeqesresvosvercecseceses
US. CONT. Ammetnth ¥ .cccrsescceccssercnssrrsececsscoessessossosgnensssses
20 C.F.R. Section 216.13(b)
20 C.F.R. Section 216.13b
BE CF, DORR BU OO siericcnreriesssncicccscecesnessnsinscesesnticntisinommeneive
20 C.F.R. Section 216.16(b)
BO C.F. Becthets BOG GET vnceccceccsscvsneesesececinctecnasotecnevtavivorescceneses
20 C.F.R. Section 404. 101GD .....ccccccccscccsescosecversocsscossoroescers
20 C.F.R. Section 406.1025 ...ccccsercssscoseesessorsnsescsoresoccsesssrssee
20 C.F.R. Section 404.1028
20 C.F.R. Section 1028
SOCOSOO ESTEE EEEE EEE EESETESHEHEOEHEEEEEEEHESEEED
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1
OPINIONS BELOW
The order of the United States Court of Appeals for
the Sixth Circuit in Gerald McCole v. Railroad Retirement
Board, No. 00-3751 denying the petition for rehearing
unreported and set forth in the Appendix hereto (App. 1a).
The opinion of the United States Court of Appeals for
the Sixth Circuit in Gerald McCole v. Railroad Retirement
Board, No. 00-3751 is unreported and set forth in the
Appendix hereto (App. 2a-7a).
The order of the United States Court of Appeals for
the Sixth Circuit in Gerald McCole v. Railroad Retirement
Board, No. 00-3751 denying the motion to enlarge the record
is unreported and set forth in the Appendix hereto (App. 8a-
Ya).
The decision of the Railroad Retirement Board in
Appeal of Gerald McCole, R.R.B. No. A-368-38-8393, Claims
Appeal Docket No. 98-AP-0097 is unreported and set forth in
the Appendix hereto (App. 10a-11a).
The decision of the Hearings Officer on the claim of
Gerald A. McCole, Decision No. 98-680, Appeal No. 97-0625,
RRB No. A-368-38-8393 is unreported and set forth in the
Appendix hereto (App. 12a-16a).
BASIS FOR JURISDICTION
The final judgment of the United States Court of
Appeals for the Sixth Circuit affirming the decision of the
Railroad Retirement Board was entered on August 17, 2001.
(App. 2a-7a). The order denying the timely-filed petition for
rehearing was entered on October 12, 2001. (App. 1a). This
petition for writ of certiorari is filed within ninety (90) days
from that date. SUP. CT. R. 13.
The jurisdiction of this Court is invoked pursuant to
the provisions of 28 U.S.C. Section 1254(1).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
U.S. CONST. amend. V
No person shall...be deprived of life, liberty,
or property, without due process of law...
42 U.S.C. Section 418
The Commissioner of Social Security shall, at
the request of any State, enter into an
agreement with such State for the purposes of
extending the insurance system established by
this subchapter to services performed by
individuals as employees of such State or any
political subdivision thereof...
42 U.S.C. Section 423(c)(1)
An individual shall be insured for disability
insurance benefits in any month if—(A) he
would have been a fully insured individual (as
defined in section 214) had he attained age 62
and filed application for benefits under section
202(a) on the first day of such month, and
(B)(i) he had not less than 20 quarters of
coverage during the 40-quarter period which
ends with the quarter in which such month
occurred...
42 U.S.C. Section 426(b)
Every individual who—(1) has not attained
age 65, and (2)...(B) is, and has been for not
less than 24 months, a disabled qualified
railroad retirement beneficiary within the
meaning of section 7(d) of the Railroad
Retirement Act of 1974...shall be entitled to
hospital insurance benefits under part A of
3
title XVIII for each month beginning. ..the
twenty-fifth month of his entitlement of status
as a qualified railroad retirement beneficiary... -
45 U.S.C. Section 231(0)~
An individzal shall be deemed to have a
“current connection with the railroad
industry” at the time an annuity begins to
accrue to him and at death if, in any thirty
consecutive calendar months before the
month in which an annuity under this Act
begins to accrue to him, or the month in which
he dies if that first occurs, he will have been in
service as an employee in not less than twelve
calendar months and, if such thirty calendar
months do not immediately precede such
month, he will not have been engaged in any
regular employment other than employment
for [a railroad]...in the period before such
month and after the end of such thirty
months...
45 U.S.C. Section 231a(a)(1)(iv)
The following-described individuals, if they
shall have completed ten years of service and
shall have filed application for annuities,
shall...be entitled to annuities. ..individuals
who have a current connection with the
railroad industry, whose permanent physical
or mental condition is such as to be disabling
for work in their regular occupation, and who
(A) have completed twenty years of service or
(B) have attained the age of sixty...
EE
45 U.S.C. Section 231f(b)(7)
...the Secretary of Health and Human Services
shall furnish the Board certified reports of
wages...Such certified reports shall be
conclusive in adjudication as to the matters
covered therein: Provided, however, That if
the Board or the Secretary of Health and
Human Services receives evidence
inconsistent with a certified report and the
application involved is still in course of
adjudication or otherwise open for such
evidence such recertification of such report
shall be made as, in the judgment of the Board
or the Secretary of Health and Human
Services, whichever made the original
certification, the evidence warrants.
45 U.S.C. Section 231f(d)
...@very person who...has not attained age 65
and (A) has been entitled to an annuity under
section 2 of this Act...for not less than 24
months and (B) could have been entitled for
24 calendar months, and could currently be
entitled, to monthly insurance benefits under
section 223 of the Social Security Act...on the
basis of disability if service as an
employee...had been included in the term
“employment” as defined in that Act and if an
application for disability benefits had been
filed, shall be certified to the Secretary of
Health, Education, and Welfare as a qualified
railroad retirement beneficiary under section
226 of the Social Security Act.
45 U.S.C. Section 355(f)
Upon the filing of such petition the court shall
have exclusive jurisdiction of the proceeding
and of the question determined therein. It
shall have power to enter a decree affirming,
modifying, or reversing the di -ision of the
Board, with or without remanding the cause
for rehearing. The findings of the Board as to
the facts, if supported by evidence and in the
absence of fraud, shall be conclusive. No
additional evidence shall be received by the
court but the court may order additional
evidence to be taken before the Board, and the
Board may, after hearing such additional
evidence, modify its findings of fact and
conclusions and file such additional or
modified finings and conclusions with the
court, and the Board shall file with the court
the additional record.
20 C.F.R. Section 216.13(b)
An employee has a current connection with
the railroad industry if he or she meets one of
the following requirements...(b) The
employee has creditable railroad service in at
least 12 months in a period of 30 consecutive
months and does not work in any regular non-
railroad employment in the interval between
the month the 30-month period ends and the
earlier of (1) The month his or her annuity
20 C.F.R. Section 216.16(b)
Regular non-railroad employment does not
include any of the following:...(2) Temporary
work provided as relief by an agency ofa
Federal, State, or local government...
20 C.F.R. Section 404.1018b
The work of a Federal, State or local
government employee not otherwise subject
to Social Security coverage may constitute
Medicare qualified government employment.
Medicare qualified government employment
means any service which in all ways meets the
definition of “employment” for title II
purposes of the Social Security Act, except for
the fact that the service was performed by a
Federal, State or local government employee.
This employment is used solely in determining
eligibility for protection under part A of title
XVIII of the Social Security Act (Hospital
Insurance)...
20 C.F.R. Section 404.1025
Work done after 1983 by an employee in the employ
of a religious, charitable, educational, or other
organization described in section 501(c)(3) of the
Code which is exempt from income tax under section
501(a) of the Code is covered as employment...
20 C.F.R. Section 404.1028
(b) For purposes of this section, a school,
college, or university has its usual accepted
meaning. It does not, however, include any
school, college, or university that is an
instrumentality or integral part of a State or a
political subdivision of a State for which work
can only be covered by an agreement under
section 218 of the Act....(b) If you are a
student, any work you do as an employee of a
school, college, or university is excluded from
employment, if you are enrolled in and
regularly attending classes at that school,
college, or university...
7
STATEMENT OF THE CASE
From February, 1959 through May, 1986, Gerald
McCole (“McCole”) accrued over 26 years of creditable
service while employed with railroads. Following his railroad
employment, McCole was a part-time employee with Bay de
Noc Community College (“Bay de Noc”) in Escanaba,
Michigan while he was a full-time student, both under the
federal work-study program from August, 1989 to August,
1991, and outside the program from September 1991 to
March, 1993. (App. 4a, 13a). In addition, McCole had other
part-time non-railroad employment in July and August, 1993.
McCole became disabled as of September 1, 1993
(App. 12a), and applied for an occupational disability annuity
under the Railroad Retirement Act (“RRA”) and for disability
Medicare coverage under the Social Security Act (“SSA”) on
October 30, 1995.
In order to qualify for an occupational disability
annuity pursuant to 45 U.S.C. Section 231la(a)(1)(iv), McCole
must have a “current connection” with the railroad industry.
45 U.S.C. Section 231(0). “Regular non-railroad employment”
breaks the current connection. 20 C.F.R. Section 216.13b.
Excluded from “regular non-railroad employment” is
“Temporary work provided as relief by an agency of a
Federal, State, or local government.” 20 C.F.R. Section
216.16(b). McCole’s work for Bay de Noc, both under the
work-study program and after, falls within this exception and
thus does not break the current connection. Work-study is
government financial aid provided on a need basis. 42 U.S.C.
Section 2751, et seq. In addition, the non-work-study
employment also qualifies as “temporary relief” since McCole
was employed to pay for living expenses while attending
college, was only receiving minimal income and was living
under the poverty level. McCole meets the disability
requirement (App. 14a) and meets all other requirements for
an occupational disability annuity. McCole’s other part-time,
non-railroad employment in July and August of 1993 does not
8
break the current connection due to the minimal amount
involved, which is not disputed.
In order to qualify for disability Medicare coverage
pursuant to 42 U.S.C. Section 426(b), McCole must have 20
quarters of coverage during the 40-quarter period from the 4”
quarter of 1983 through the 3” quarter of 1993. (App. 15a). 42
U.S.C. Section 423(c)(1). McCole earned at least 14 quarters
of coverage during this time period from his railroad
employment. (App. 15a) In order to have sufficient quarters
of coverage, his employment with Bay de Noc must be
included.
Although work done by students at their own school
is generally excluded from employment and mandatory
coverage for Social Security purposes, several exceptions
apply which require inclusion of McCole’s earnings from Bay
de Noc in his covered earnings. (1) There is an exception for
“any school, college, or university that is an instrumentality
or integral part of a State or a political subdivision of a State
for which work can only be covered by an agreement under
U.S.C. 42 section 218 of the Act.” 20 C.F.R. Section 404.1028.
McCole has learned that Bay de Noc apparently has a Section
218 agreement (42 U.S.C. Section 418) for Social Security
coverage, and thus McCole’s work for Bay de Noc should
have been included in his quarters of coverage. The work-
study also may be considered work not for the school, but for
the government and thus the exclusion from employment
would not apply. (2) 20 C.F.R. Section 404.1025 provides that
work performed by an employee in the employ of an
educational organization exempt pursuant to Section
501(c)(3) of the Internal Revenue Code (26 U.S.C. Section
501(c)(3)) is covered as employment. (3) If McCole’s
employment with Bay de Noc is considered to be
employment with the Federal, State or local government by
virtue of the work-study program or the relationship of Bay
de Noc to the government, and is thus not otherwise subject
to Social Security coverage, the employment still counts for
Medicare purposes. 20 C.F.R. Section 404.1018b.
9
Under each of these exceptions, McCole’s
employment with Bay de Noc should be included in his
quarters of coverage, thus giving him sufficient quarters of
coverage for disability Medicare. McCole meets the disability
requirement (App. 14a) and all other requirements for
disability Medicare coverage.
The Railroad Retirement Board (“RRB”) has subject
matter jurisdiction over McCole’s claims pursuant to 45
U.S.C. Section 231f.
McCole’s application was denied by the RRB, and
McCole perfected his appeal within the RRB procedures.
McCole had a hearing on March 13, 1998, at which he
appeared without representation by counsel. (App. 5a). The
RRB had before it McCole’s Social Security earnings record
and W-2’s from the years 1989-1993. The earnings record
reflected no earnings during 1989-1992 (App. 5a-6a), and the
W-2’s reflected McCole’s earnings from Bay de Noc in 1989
through 1993 (App. 3a). Before any evidence was taken, the
Hearings Officer summarily concluded that, based on the
Social Security earnings record, McCole did not have
sufficient quarters of coverage. (App. 14a, R. 294-295).
McCole was clearly surprised by the Medicare issue. (R. 296-
298).
The Hearings Officer found in the decision dated -
March 31, 1998 (1) that McCole does not have a current
connection with the railroad industry and is thus not eligible
for consideration for an occupational disability annuity under
the RRA (45 U.S.C. Section 231a(1)(iv)), (2) is disabled for all
regular employment and is entitled to a disability annuity
under the RRA (45 U.S.C. Section 231(a)(1)(v)) beginning
October 1, 1994, and (3) although McCole meets the disability
criteria for a period of disability under the SSA he does not
have sufficient quarters of coverage. (App. 12a-16a).
In its decision dated August 18, 1998, the 3-member
panel of the RRB denied McCole’s appeal and affirmed the
decision of the Hearings Officer. (App. 10a-11a).
10
The Sixth Circuit had subject matter jurisdiction over
the appeal pursuant to 45 U.S.C. Section 231g and 45 U.S.C.
Section 355(f). McCole timely filed a petition for review in
the Sixth Circuit. (App. 2a-3a).
McCole filed a motion to enlarge the record in the
Sixth Circuit, in which he sought to have the record enlarged
to include information about the relationship of Bay de Noc
to the State or a political subdivision or the Federal or local
government, the Section 218 (42 U.S.C. Section 418)
agreement with the Administration, Bay de Noc’s status as a
tax-exempt organization, the effect that the federal work-
study program had on Bay de Noc’s relationship with the
government, and whether McCole authorized Bay de Noc’s
failure to withhold FICA. The motion to enlarge was denied
on August 23, 2000. (App. 8a-9a).
The opinion of the Sixth Circuit was filed on August
17, 2001, and affirmed the decision of the RRB. The Sixth
Circuit found that there was substantial evidence for the RRB
determinations that McCole’s current connection was broken
and that he had insufficient quarters of coverage. (App. 2a-
7a).
McCole timely filed a petition for rehearing in the
Sixth Circuit, which was denied on October 12, 2001. (App.
la).
McCole has timely filed this petition for writ of
certiorari within ninety days of the order denying the petition
for rehearing. SUP. CT. R. 13.
11
REASONS FOR GRANTING THE WRIT
I. The Sixth Circuit decided an important question of
federal law that has not been but should be settled by this
Court: Must the Court of Appeals enlarge the record or grant
a remand, where it is apparent that the Railroad Retirement
Board failed to pursue and consider all relevant issues? The
Court of Appeals must enlarge the record or grant a remand,
where it is apparent that the Railroad Retirement Board
failed to pursue and consider all relevant issues.
A. ENLARGEMENT/REMAND
45 U.S.C. Section 355(f) states that:
The findings of the [RRB] as to the facts, if
supported by evidence and in the absence of
fraud, shall be conclusive. No additional _
evidence shall be received by the court but the
court may order additional evidence to be
taken before the [RRB], and the [RRB] may,
after hearing such additional evidence, modify
its findings of fact and conclusions and file
such additional or modified findings and
conclusions with the court, and the [RRB]
shall file with the court the additional record.
This indicates a procedure where there is a remand for
further factfinding before the RRB, and then enlargement of
the record. In addition, 45 U.S.C. Section 355(f) provides that
“(The court of appeals] shall have power to enter a decree
affirming, modifying, or reversing the decision of the Board,
with or without remanding the cause for rehearing.”
There is additional authority for a remand in Jacques
v. United States Railroad Retirement Board, 736 F.2d 34 (2d
Cir. 1984), especially where a motion to enlarge the record
was filed as it was by both McCole and Jacques.
12
B. COULTER V. WEINBERGER
In Coulter v. Weinberger, 527 F.2d 224 (3d Cir. 1975),
the Third Circuit stated that:
We conclude that [the claimant] has not been
given a full and complete hearing on the issues
of past disability and eligibility for coverage
under the [Social Security] Act. Accordingly,
we vacate a denial of benefits and remand
because of a record which reveals a failure to
review relevant rulings and regulations.
Like McCole, the claimant was not represented by counsel.
The issues were whether the claimant was ever given
the full hearing to which he was entitled under the SSA and
whether there was a correct computation of the 20/40
quarters of coverage requirement of Section 223(c) of the SSA
(42 U.S.C. Section 423(c)). The Third Circuit noted that “the
process is not based on adversarial concepts.” The Third
Circuit determined that the record revealed error that would
require reopening of the claim, since the hearing officers
failed to consider all of the applicable regulations and
overlooked other relevant factors.
The Third Circuit found that “the facile solution of
relying almost entirely upon earnings during part of 1962
does not give the claimant the full and complete hearing to
which he is entitled”, and noted that: ~
A social security judge acts as an examiner
charged with developing the facts, Richardson
v. Perales, 402 U.S. 389, 410, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971), and is under an affirmative
duty to inquire into all the matters at issue. 20
C.F.R. s 404.927. As we said in Hess v.
Secretary of Health, Education and Welfare,
497 F.2d 837, 840 (3d Cir. 1974):
13
“Although the burden is upon the claimant to
prove his disability, due regard for the
beneficent purposes of the legislation require
that a more tolerant standard be used in this
administrative proceeding than is applicable in
a typical suit in a court of record where the
adversary system prevails.”
C. KEPHART V. RICHARDSON
In Kephart v. Richardson, 505 F.2d 1085 (3d Cir.
1974), the Third Circuit noted that:
While silence may be golden in the adage,
silence in the Social Security records of
employment may have quite a contrary effect
on a claimant for disability benefits who must
establish a wage earning history. In this
appeal from a denial of benefits, we conclude
that, while the absence of earnings entries is
statutorily denominated evidence of
nonemployment, it may be outweighed by
credible testimony of the claimant which fills
the void. Because the administrative process
failed to properly consider the positive
evidence which might have eliminated the
negative, we remand for further proceedings.
The claimant’s benefits were denied due to a finding
that he did not have enough quarters of coverage, and the
denial was primarily because the Social Security records did
not show any payment of wages for a certain period of time.
The claimant produced evidence that he had been employed
during this period, in the form of a detailed affidavit signed by
himself and others that he worked as a farmhand, as well as
his testimony to the same. There was also evidence from
employers confirming the employment. The Administration
determined that the evidence of employment was insufficient
to rebut the presumption of validity of the Social Security
records.
4
The Third Circuit stated that:
The issue in this case is a very narrow one and
is focused on the determinations to be made
when a claimant alleges that he did in fact
work during a given period of time for which
the government’s records are silent. We
conclude that a claimant is entitled to
substantiate his position and that this
evidence must be given consideration by the
Social Security Administration.
The Third Circuit noted that the Social Security
earnings records are not “entitled to the deference usually
extended to matters covered by the presumption of
administrative regularity.”
Noting that upon undertaking an investigation of the
claimant’s earnings, in fairness the government should have
obtained further explanation, the Third Circuit quoted its
decision in Hess v. Secretary of Health, Education and
Welfare, 497 F.2d 837, 840 (3d Cir. 1974):
Although the burden is upon the claimant to
prove his disability, due regard for the
beneficent purposes of the legislation requires
that a more tolerant standard be used in this
administrative proceeding than is applicable in
a typical suit in a court of record where the
adversary system prevails ... We do not say
that an administrative law judge must search
out all the relevant evidence which might be
available, since that would in effect shift the
burden of proof to the government. But, these
proceedings are extremely important to the
claimants, who are in real need in most
instances and who claim not charity but that
which is rightfully due as provided for in
Chapter 7, Subchapter II, of the Social Security
Act.
15
The Third Circuit found that:
The hearing examiner applied an improper
standard in weighing the evidence dealing
with Kephart’s employment and that there was
not a full development of other evidence on
this point, the judgment of the district court
will be vacated and the matter remanded to
the district court with directions for remand to
the Social Security Administration for further
proceedings consistent with this opinion.
D. CURRENT CONNECTION
The issue is whether McCole’s employment with Bay
de Noc is “regular non-railroad employment” which breaks
his current connection.
McCole, unrepresented by counsel, raised the
“temporary work” exception at the hearing as well as he
could and pointed out that some of the Bay de Noc
employment was work-study. It was also evident that Bay de
Noc Community College is a public institution. However, the
Hearings Officer failed to further develop the issues or elicit
evidence necessary to make the determinations, despite
assuring McCole that she would do so. Enlargement of the
record or remand was necessary to provide McCole with a
full and fair hearing. Jones v. RRB, 614 F.2d 151 (8" Cir.
1980). The RRB’s failure to develop and adequately consider
the issues regarding the work-study program and the
relationship of Bay de Noc to the federal, state or local
government and the Sixth Circuit’s failure to remedy the
situation by enlarging the record or granting remand, resulted
in a violation of McCole’s Fifth Amendment (U.S. Const.
Amend. V) right to due process. The RRB’s interpretation of
the “temporary work” exception also violated the purpose of
the RRA to provide benefits for claimants so entitled.
16
E. QUARTERS OF COVERAGE
The issue is whether McCole’s employment with Bay
de Noc should be included in his quarters of coverage.
The Hearings Officer’s summary conclusion that
McCole had not met the earnings requirement was based
solely on the Social Security earnings record, a document
prepared by the Administration without input from McCole.
The Hearings Officer made this conclusion at the beginning of
the hearing and received no further evidence on the matter,
despite her assurances that if further evidence was needed,
she would request it and would add it to the record. McCole,
unrepresented by counsel, was surprised by and clearly did
not understand this issue which he noted was “brand new.”
The exceptions to the exclusion from covered
earnings were apparent to the Hearings Officer from
McCole’s employment as a student with Bay de Noc, and the
fact that this employment was included in his W-2 earnings
and not in his Social Security earnings.
No evidence regarding the relationship of Bay de Noc
to the federal, state or local government, no evidence of
whether there was an agreement for coverage under Section
218, (42 U.S.C. Section 418) only minimal evidence regarding
the work-study program and no evidence regarding Bay de
Noc’s income tax-exempt status was elicited by the Hearings
Officer. This evidence was essential to the determination of
whether McCole’s employment with Bay de Noc fell within
any of the exceptions to the exclusion and thus that he had
the required quarters of coverage. Enlargement of the record
or remand to the RRB was necessary to obtain a full and fair
hearing. Coulter v. Weinberger, 527 F.2d 224 (3d Cir. 1975)
The RRB further failed to consider whether McCole’s
employment with Bay de Noc was Medicare qualified
government employment and thus counted among his
quarters of coverage for the purpose of determining his
eligibility for Medicare.
Ae ST NT Te
17
Although 45 U.S.C. Section 231f(b)(7) states that a
certified report from the Administration “shall be conclusive
in adjudication as to the matters covered therein,” that
provision is qualified:
Provided, however, That if the [Railroad \
Retirement] Board or the . . . [Secretary of
Health and Human Services] receives evidence
inconsistent with a certified report and the
application involved is still in the course of
adjudication or otherwise open for such
evidence such recertification of such report
shall be made as, in the judgment of the
[Railroad Retirement} Board or the...
[Secretary of Health and Human Services]
whichever made the original certification, the
evidence warrants.
The fact that there are no Social Security earnings recorded
for the period of employment at Bay de Noc is not dispositive
of the issue. Kephart v. Richardson, 505 F.2d 1085 (3d Cir.
1974). The issue of McCole’s quarters of coverage and
qualification for disability Medicare coverage should not have
been summarily determined by the Hearings Officer, but
should have been given a full and fair hearing.
Instead of relying on the Social Security earnings
record, the Hearings Officer should have recognized McCole’s
need to obtain a redetermination of his covered earnings,
since the RRB was well aware from the Social Security
earnings record, the W-2’s and McCole’s testimony that
McCole’s employment history included work which was not
included in the Social Security earnings record. While 45
U.S.C. Section 231f(b)(7) anticipates evidence being received
by the RRB as to Social Security covered earnings, that
section does not specify how the matter of recertification is
brought before the Administration. Since the Sixth Circuit
did not allow enlargement of the record, this matter should
have been remanded to the RRB with instructions to hold the
case open to allow McCole to petition the Administration for
18
redetermination of his covered earnings, and then for the
RRB to determine the issue of McCole’s entitlement to
disability Medicare coverage.
If the RRB had the authority to recertify McCole’s
earnings record, it would have been much more likely that
the Sixth Circuit would have granted the remand. McCole
specifically requested that the Sixth Circuit remand the case
to the RRB for the purpose of allowing him to petition the
Administration for recertification, asserting the relevant
exceptions. Due to this inequity created by the inter-related
but separate RRB and Social Security systems, it is important
for this Court to instruct the RRB at the agency level as to
when its failure to pursue relevant issues will result in
reversal in the Court of Appeals, and to instruct the Court of
Appeals as to when it should grant a remand.
As noted in Coulter, the claimant is denied a full and
complete hearing where the hearings officer fails to review
relevant regulations. Likewise, reliance on “facile” solutions
such as the earnings record denies a full and complete
hearing. In the non-adversarial system, the hearings officer is
charged with the duty of developing facts and has an
affirmative duty to inquire into all matters at issue. The
beneficent purpose of the SSA and the RRA requires a
standard more tolerant to the claimant. The agency’s failure
to meet these standards requires remand by the Court of
Appeals.
As noted in Kephart, the absence of an earnings
record is not conclusive, and the claimant is entitled to
substantiate his position. The Social Security earnings record
is not entitled to deference. Like in Cowlter, the beneficent
purpose of the SSA and the RRA requires a more tolerant
standard. When the agency fails to consider relevant
evidence, remand is required.
The non-adversarial RRB claims system places a
burden on the agency to pursue relevant exceptions. The
substantial evidence standard is an onerous burden on the
19
claimant which creates inequity where the RRB fails to
pursue and consider relevant issues. This denial of a full and
complete hearing violates McCole’s Fifth Amendment (U.S.
Const. Amend. V) right to due process. Where, as in McCole’s
case, it is apparent that the RRB failed to pursue and consider
relevant issues, the Court of Appeals must allow enlargement
of the record or remand.
The principles set forth in Coulter and Kephart should
be adopted by this Court in the RRB context due to the inter-
relation of the two agencies and the RRB’s role in
administering the SSA. The systems share a beneficent
purpose of providing benefits to claimants who are entitled,
as well as a non-adversarial process.
Il. The Sixth Circuit erred and misapplied the law in
denying enlargement of the record and remand, and in finding
that substantial evidence existed for the Railroad Retirement
Board decision.
A. SUBSTANTIAL EVIDENCE
45 U.S.C. Section 355(f) provides the basis for the
“substantial evidence” standard of review: “The findings of
the [RRB] as to the facts, if supported by evidence and in the
absence of fraud, shall be conclusive.” The Sixth Circuit has
held that decisions of the RRB regarding entitlement to
benefits are not to be reversed if supported by substantial
evidence and not based on a legal error. Coker v. Gielow, 806
F.2d 689 (6" Cir. 1986), cert. den., 482 U.S. 906 (1987), reh.
den,, 483 U.S. 1040 (1987). This Court considered the
meaning of “substantial evidence” in Richardson v. Perales,
402 U.S. 389 (1971), a Social Security case. In Richardson,
This Court quoted Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938), a “similar context{]”, in which it held
that “substantial evidence” was “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” This Court
noted in Richardson that it had “adhered to that definition in
varying statutory situations.” This definition of “substantial
20
evidence” was applied in the RRB context by the Seventh
Circuit in Dray v. RRB, 10 F.3d 1306 (7" Cir. 1993).
1. CURRENT CONNECTION
The Sixth Circuit found in McCole’s case that it was
proper for the hearings officer to avoid deciding the issue of
whether McCole’s work-study at Bay de Noc broke the
current connection since it found that McCole’s earnings
records for 1991, 1992 and 1993, showing part-time work for
the college, provided substantial evidence that the current
connection was broken. McCole argued that the employment
in 1991, 1992 and 1993 qualified as “temporary work provided
as relief by the Federal, State or local government” (20 C.F.R.
Section 216.16(b)) and thus that it did not break the current
connection. Unrepresented by counsel, McCole offered no
evidence at the hearing regarding Bay de Noc’s relationship
to the government.
Although Coulter and Kephart were Social Security
cases, the principles of less than strict adherence to rules
which disfavor the claimant, not allowing “facile” solutions
when to do so-would deprive the claimant of a full and
complete hearing, recognizing the examiner's affirmative duty
to inquire into all matters at issue, and more tolerance toward
the claimant apply to this determination under the RRA as
well. Both the SSA and the RRA have the “beneficent”
purpose, whether stated or not, of providing benefits to
~Claimants who are so entitled. Both systems are non-
adversarial. McCole was not given a full and complete
hearing as to whether the “temporary work” exception
applied to prevent a break in his current connection.
The Sixth Circuit erred in finding that there was
substantial evidence supporting the RRB decision that the
current connection was broken. The Fifth Circuit has held
that the RRB must show a meticulous concern that the
petitoner’s case be fully presented and fairly tried. Squires v.
RRB, 161 F.2d 182 (5" Cir. 1947). The denial of a full and
complete hearing is grounds for vacating a decision denying
21
benefits and remanding the claim to the agency. The primary
purpose behind the disability provisions of the SSA is to
provide workers with protection against hardships created by
loss of earnings due to illness or old age. Sciarotta v. Bowen,
735 F.Supp. 148 (D.N.J. 1989). The statutes providing for
disability benefits are remedial in nature and are to be
broadly construed and liberally applied. Bastien v. Califano,
572 F.2d 908 (2d Cir. 1978).
The W-2’s and McCole’s testimony are not, under the
circumstances and the law, substantial evidence that McCole
broke his current connection with the railroad industry with
his employment with Bay de Noc.
2. QUARTERS OF COVERAGE
McCole argued on appeal that the exceptions applied
to require inclusion of his earnings from Bay de Noc in his
quarters of coverage. (1) There is an exception for “any
school, college, or university that is an instrumentality or
integral part of a State or a political subdivision of a State for
which work can only be covered by an agreement under
section 218 of the Act.” 20 C.F.R. Section 404.1028. McCole
has learned that Bay de Noc apparently has a Section 218 (42
U.S.C. Section 418) agreement for Social Security coverage,
and thus McCole’s work for Bay de Noc should have been
included in his quarters of coverage. The work-study also
may be considered work not for the school, but for the
government and thus the exclusion from employment would
not apply. (2) 20 C.F.R. Section 404.1025 provides that work
performed by an employee in the employ of an educational
organization exempt pursuant to Section 501(c)(3) of the
Internal Revenue Code (26 U.S.C. Section 501 (c)(3)) is
covered as employment. (3) If McCole’s employment with
Bay de Noc is considered to be employment with the Federal,
State or local government by virtue of the work-study
program or the relationship of Bay de Noc to the government,
and is thus not otherwise subject to Social Security coverage,
the employment still counts for Medicare purposes. 20 C.F.R.
Section 404.1018b.
22
The Sixth Circuit held that the RRB’s determination
that McCole’s earnings from Bay de Noc was not counted in
calculating his quarters of coverage was supported by
substantial evidence in the form of the Social Security
earnings records. The Sixth Circuit determined that Kephart
did not apply because the claimant there placed
contradictory, positive evidence in the record, the claimant
sought a recertification from the Administration and the
statute there provided that the absence of an entry in the
earnings record was presumptive but not conclusive.
However, McCole was prevented by the Hearings Officer’s
summary conclusion that he did not have enough quarters of
coverage from offering any evidence of the exceptions.
McCole was surprised by this issue. He requested remand
from the Sixth Circuit with instructions for the RRB to hold
the case open to allow him to seek recertification from the
Administration, asserting the relevant exceptions. The Sixth
Circuit denied this relief.
The principles set forth in Kephart as well as in
Coulter apply to McCole’s case. The principles of less than
strict adherence to rules which disfavor the claimant, not
allowing “facile” solutions when to do so would deprive the
claimant of a full and complete hearing, recognizing the
examiner's affirmative duty to inquire into all matters at
issue, and more tolerance toward the claimant, all apply here.
Both the SSA and the RRA have the “beneficent”
purpose, whether stated or not, of providing benefits to
claimants who are so entitled. Both systems are non-
adversarial. McCole was not given a full and complete
hearing as to whether the exceptions applied to require
inclusion of his earning with Bay de Noc.
McCole argued that his work for Bay de Noc should
have been included in his earnings record due to enumerated
exceptions and requested that the Sixth Circuit remand his
case to the RRB, with instructions to hold the case open to
allow him to correct the earnings record with the
Administration. In that setting, the statute set forth in
23
Kephart, 42 U.S.C. Section 405(c)(4)(B), applies. Section
405(c)(4)(B) provides that:
The absence of an entry in the Commissioner’s
records as to the wages alleged to have been
paid by an employer to an individual during
any period in such year shall be presumptive
evidence for the purposes of this subchapter
that no such alleged wages were paid to such
individual in such period .. .
The Sixth Circuit points out that the statute in this case, 45
U.S.C. Section 231f(b)(7), does not make a distinction
between presumptive and conclusive evidence of
employment. However, 45 U.S.C. Section 231f(b)(7)
recognizes that:
Such certified records shall be conclusive in
adjudication as to the matters covered therein:
Provided, however, that if the Board or the
Secretary of Health and Human Services
receives evidence inconsistent with a certified
report and the application involved is still in
course of adjudication or otherwise open for
such evidence such recertification of such
report shall be made as, in the judgment of the
Board or the Secretary of Health and Human
Services, whichever made the original
certification, the evidence warrants.
Here, the RRB did not give McCole an opportunity to
offer any evidence of why his employment at Bay de Noc
should be included in his Social Security earnings or to
address any regulation justifying inclusion of his work, and
instead summarily concluded before any evidence was taken
that he had insufficient quarters of coverage based on the
Social Security earnings record. -
The Sixth Circuit erred in finding that there was
‘substantial evidence supporting the RRB decision that
24
McCole had insufficient quarters of coverage. The Fifth
Circuit has held that the RRB must show a meticulous
concern that the petitoner’s case be fully presented and fairly
tried. Squires v. RRB, 161 F.2d 182 (5" Cir. 1947). The denial
of a full and complete hearing is grounds for vacating a
decision denying benefits and remanding the claim to the
agency. The primary purpose behind the disability provisions
of the SSA is to provide workers with protection against
hardships created by loss of earnings due to illness or old
age. Sciarotta v. Bowen, 735 F.Supp. 148 (D.N.J. 1989). The
statutes providing for disability benefits are remedial in
nature and are to be broadly construed and liberally applied.
Bastien v. Califano, 572 F.2d 908 (2d Cir. 1978).
The Social Security earnings records are not, under
the circumstances and the law, substantial evidence that
McCole did not have sufficient quarters of coverage due to
the exclusion of his employment for Bay de Noc.
B. ENLARGEMENT/REMAND
The RRB did not make any determination as to
whether McCole’s employment through the work-study
program broke the current connection.
Further, all of McCole’s employment for Bay de Noc is
“Temporary work provided as relief by an agency of the
Federal, State, or local government” due to the fact that
McCole was so employed to pay for living expenses while
attending college, was only receiving minimal income and
was living under poverty level. 20 C.F.R. Section 216.16. Bay
de Noc is likely funded by the federal, state and/or local
government, if not an instrumentality of the state or local
government. Further information regarding the nature of
work-study, other than McCole’s layman’s knowledge of the
subject, and any information regarding the relationship of
Bay de Noc to the federal, state or local government was not
contained in the record. The RRB did not adequately
consider the issue of whether McCole’s employment with Bay
de Noc falls under the “temporary work” exception because
25
of Bay de Noc’s relationship to the government, since this
issue was not considered at all by the RRB. The failure of the
RRB to develop and adequately consider these issues resulted
in the need to reverse and remand the case to the RRB for
further proceedings.
It is inequitable to allow the RRB to deny McCole’s
claim with only a nod to the “temporary work” exception,
without considering at all the crucial issue therein of Bay de
Noc’s relationship to the government and with only cursory
consideration of the nature of the work-study program.
In addition, the Hearings Officer failed to pursue and
consider the exceptions to the exclusion from Social Security
covered earnings for the purpose of determining quarters of
coverage, which should have been apparent due to the
information before her. McCole was unrepresented by
counsel and was clearly surprised by the disability Medicare
coverage issue. Instead of relying on the Social Security
earnings record, the Hearings Officer should have recognized
McCole’s need to obtain a redetermination of his covered
earnings, since the RRB was well aware that McCole’s
employment history included work which was not included in
the Social Security earnings record. This matter should have
been remanded to the RRB with instructions to hold the case
open to allow McCole to petition the Administration for
redetermination of his covered earnings, and then for the
RRB to determine the issue of McCole’s entitlement to
disability Medicare coverage. Remand to the RRB was
necessary to provide McCole with a full and fair hearing, and
the Sixth Circuit erred in denying remand. Coulter v.
Weinberger, 527 F.2d 224 (3d Cir. 1975).
The Sixth Circuit erred in denying enlargement of the
record and remand, since remand was necessary to provide a
full and complete hearing and to prevent violation of the Fifth
Amendment (U.S. Const. Amend. V) right to due process.
26
CONCLUSION
At his RRB hearing, McCole raised the “temporary
work” exception to “regular non-railroad employment” which
breaks the “current connection” as well as he was able
without counsel. The Hearings Officer should have
recognized the need for more information regarding the
work-study program and Bay de Noc’s relationship with the
government. The Hearings Officer, however, failed to follow
up on this identified exception which would have applied to
preserve McCole’s current connection and his eligibility for
an occupational disability annuity under the RRA.
At the hearing, McCole was surprised by the disability
Medicare/quarters of coverage issue. This issue was
summarily disposed of against his favor, even though the
Hearings Officer was aware of circumstances which raised
issues of whether exceptions to the exclusion from covered
earnings applied. The exceptions required inclusion of
McCole’s earnings from Bay de Noc and thus would have
given him sufficient quarters of coverage to qualify for
disability Medicare coverage.
McCole sought enlargement of the record and remand
from the Sixth Circuit to have information regarding the
exceptions considered by the RRB and the Administration.
McCole specifically sought remand with instructions to the
RRB to hold the case open to allow him to seek
recertification of his earnings record from the
Administration. The Sixth Circuit’s denial of enlargement of
the record and remand and finding of substantial evidence
supporting the RRB decision were all reversible error.
Further, the resulting inequity to McCole and other claimants
like him where the RRB fails to pursue and consider relevant
issues such as exceptions to regular non-railroad
employment and exclusion from covered earnings, coupled
with the onerous substantial evidence standard on review,
calls for this Court’s direction to the RRB and the Court of
Appeals that remand is required in these situations where the
claimant is denied a full and complete hearing.
27
For the reasons identifed herein, a writ of certiorari
should issue to review the decision of the United States Court
of Appeals for the Sixth Circuit and ultimately to vacate and
reverse the decision below and remand the matter to the RRB
for further hearing, with instructions to hold the case open to
allow recertification of McCole’s earnings record by the
Administration.
Respectfully submitted,
KALEN LIPE MARINA TRAMONTOZZI
LIPE LAW OFFICE Counsel of Record
811 River Avenue c/o CURRY & TAYLOR
P.O. Box 551 Suite 520
Iron Mountain, MI 49801 1112 16” Street, N.W.
(906)779-1044 _ Washington, D.C. 20036
(202)393-4141
la
(Any footnotes trail end of each document)
Case No: 00-3751
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
FILED
OCTOBER 12 2001 :
LEONARD GREEN, Clerk
GERALD MCCOLE
Petitioner
Vv.
RAILROAD RETIREMENT BOARD
Respondent
BEFORE: CLAY, GILMAN, AND WALLACE*, Circuit Judges.
Upon consideration of the petition for rehearing filed
by the petitioner,
It is ORDERED that the petition for rehearing be, and
it hereby is, DENIED.
ENTERED BY ORDER OF THE COURT
—>_—_——-
/s/Leonard Green, Clerk
Leonard Green, Clerk
*The Hon. J. Clifford Wallace, Senior Circuit Judge for the
United States Court of Appeals for the Ninth Circuit, sitting
by designation.
2a
NOT RECOMMEND FOR FULL-TEXT PUBLICATION
Case No. 00-3751
UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
FILED
AUG 17 2001
LEONARD GREEN, Clerk
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Sixth Circuit Rule 28(g) limits citation to specific situations.
Please see Rule 28(g) before citing in a proceeding in a court
in the Sixth Circuit. If cited, a copy must be served on other
parties and the Court.
This notice is to be prominently displayed if this decision is
reproduced.
GERALD MCCOLE,
Petitioner,
v. PETITION FOR
REVIEW OF
RAILROAD RETIREMENT RAILROAD
BOARD, RETIREMENT
BOARD DECISION
Respondent. DENYING ANNUITY
AND DISABILITY
MEDICARE
BEFORE: CLAY, GILMAN, and WALLACE*, Circuit Judges.
J. Clifford Wallace, Senior Circuit Judge. McCole
petitions for review of a decision by the Railroad Retirement
Board (Board) which denied his claim for an occupational
disability annuity and for disability Medicare coverage. The
Board had jurisdiction pursuant to 45 U.S.C. Section 231f. We
have jurisdiction of this timely filed appeal pursuant to 45
3a
U.S.C. Section 231g (incorporating by reference 45 U.S.C.
Section 355(f)). We deny the petition.
We will not set aside a decision of the Board
regarding entitlement to benefits under the Railroad
Retirement Act (Act) “if it is supported by substantial
evidence in the record and is not based on an error of law.”
Coker v. Gielow, 806 F.2d 689, 693 (6” Cir. 1986). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Chandler
v. United States R.R. Ret. Bd., 713 F.2d 188, 189 (6” Cir. 1983).
McCole first argues that the Board’s determination
that he lacks a current connection with the railroad industry
is not supported by substantial evidence and is tainted by
legal error. Under the Act and applicable regulation, McCole
has a current connection with the railroad industry only if he
did not engage in regular non-railroad employment between
the end of the last thirty-month period in which he had twelve
months of creditable railroad service and his claimed annuity
beginning date. Kleinberg v. R.R. Ret. Bd., 18 F.3d 1432, 1435
(8” Cir. 1994)(discussing 45 U.S.C. Sections 231la(a)(1) &
231(0)). The parties agree that McCole’s thirty-month period
ended November 1987 and that his claimed annuity beginning
date is October 1, 1994 [Blue 8-9, Red 18-19]. Because
McCole’s thirty-month period ended more than a year before
his claimed annuity beginning date, the current connection is
broken if (1) McCole had regular non-railroad employment
“in any 2 consecutive years wholly or partially” between
November 1987 and October 1, 1994; and (2) he earned at
least $1000 in such employment any year during that interval
of time “even if that year is not one of the 2 consecutive
years.” 20 C.F.R Section 216.17(b). “Regular non-railroad
employment” is defined as “full or part-time employment for
pay, “ but it does not include “[t]}emporary work provided as
relief by an agency of a Federal, State, or local government.”
20 C.F.R. Section 216.16.
Copies of McCole’s W-2 forms show the following
earnings for the relevant interval of time:
4a
1989 $1,035 Bay de Noc Community College
1990 $4,447 Bay de Noc Community College
1991 $8,200 Bay de Noc Community College
1992 $8,139 Bay de Noc Community College
1993 $3,573 ($2,630 Bay de Noc; $433 Pro Kleen;
$510 R.L. Polk)
McCole asserts that his work at Bay de Noc
Community College (College) from August 1989 through
August 1991 was through a government work/study program
that qualified as “[t)emporary work provided as relief by the
Federal, State or local government.” The hearings officer did
not, however, address this argument.
The hearings officer finds that it is not
necessary to make a determination on
whether Mr. McCole’s work/study earnings
would break a current connection. Even if the
hearings officer were to find that the
appellant’s work/study earnings did not break
his current connection, Mr. McCole had part
time employment other than work/study in
1991, 1992, and 1993 that broke his current
connection.
We agree that it was proper for the hearings officer to
avoid deciding this issue because McCole’s employment
record during 1991, 1992 and 1993 provides substantial
evidence for the lack of a current connection.
McCole asserts that his part-time employment with
the College other than through the work/study program also
qualified as “[t}emporary work provided as relief by the
Federal, State or local government” because (1) the College
might be funded by a governmental entity or be the
instrumentality of a governmental entity and (2) he “was
employed to pay for living expenses while attending college,
was only receiving minimal income and was living under
poverty level”. There is no evidence in the record, however,
regarding the College’s connection to any governmental
5a
entity. McCole argues that he hearings officer and the Board
should have asked for this evidence and that their failure to
do so denied McCole “a full and fair hearing,” particularly
because he was unrepresented by counsel. However, McCole
was asked whether he wished to be represented by counsel,
and he declined.
Further, even if there were evidence that the College
was an instrumentality of a state or local government, the
language of the regulation does not plainly establish that such
part-time, low-paying employment with a governmental entity
qualifies as “[t)emporary work provided as relief.” The
hearings officer explained, “the Board’s regulations allow few
exclusions from the definition of regular employment....Part
time employment by a student is not excluded”. The Board
agreed with the hearing officer that McCole’s part time work
for the College broke the current connection [JA 7]. See
Stinson v. United States, 508 U.S. 36, 45 (1993) (“[P]rovided
an agency’s interpretation of its own regulations does not
violate the Constitution or a federal statute, it must be given
‘controlling weight unless it is plainly erroneous or
inconsistent with the regulation.””).
McCole’s second argument on appeal is that the
Board’s determination that he lacks twenty quarters of
coverage during the forty-quarter period ending with the
quarter in which he became insured for disability insurance
benefits is not supported by substantial evidence and is based
on an error of law. McCole asserts that his work for the
College should be counted toward the required twenty
quarters. He explains that if the College is an instrumentality
or integral part of a State or State subdivision, his work there
may be counted if the College had an agreement under
section 218 of the Social Security Act. See 20 C.F.R. Section
404.1018b. There is, however, no record evidence regarding
the College’s relationship with any government agency or
entity.
The Board relied on the certification it received from
the Secretary of Health and Human Services (Secretary),
6a
which shows no social-security covered employment during
the period McCole worked at the College. 45 U.S.C. Section
231f(b)(7) provides,
Such certified reports shall be conclusive in an
adjudication as to the matters covered therein:
Provided, however, that if the Board or the
Secretary of Health and Human Services
receives evidence inconsistent with a certified
report...such recertification of such report
shall be made as, in the judgment of the Board
or the Secretary of Health and Human
Services, whichever made the original
certification, the evidence warrants.
(Emphasis added). The Board argues that under this
statute it did not have the ability to entertain a
challenge to the Secretary's certification. The plain
language of the statute supports that interpretation.
We have also explained that “the Board's
interpretation [of the Act] should be upheld if it is not
fundamentally inconsistent with the language and
purpose of the statute.” Coker, 806 F.2d at 693.
McCole argues that under Kephart v.
Richardson, 505 F.3d 1085 (3d Cir. 1974), the Board
was not entitled to rely on the certification and was
required to make further inquiry. However, that case
does not apply to McCole because (1) the claimant in
Kephart had placed contradictory, positive evidence
in the record, id. At 1087, whereas here McCole only
speculates; (2) the claimant in Kephart sued the
Secretary to change the Secretary’s certification, id.,
whereas McCole seeks to have the Board disregard
the Secretary's certification; and (3) Kephart involved
a statute providing that the absence of an entry was
presumptive, but not conclusive, evidence of the
absence of qualified employment, id. at 1089, whereas
the statute in this case, 45 U.S.C. Section 231f(b)(7),
draws no such distinction. McCole’s arguments that
7a
the certification is wrong because he may qualify as a
government employee or the College may be an
instrumentality or integral part of a government with
an agreement under section 218 of the Social Security
Act must be addressed to the Secretary, not the
Board. See Taylor v. Finch, 418 F.2d 1232, 1234 (8”
Cir. 1969)
We hold that the Board's position as to both
issues raised in McCole’s appeal is supported by
substantial evidence and is not tainted by an error in
law.
PETITION DENIED.
*The Hon. J. Clifford Wallace, Senior Circuit
Judge for the United States Cour of Appeals for the
Ninth Circuit, sitting by designation.
8a
~ No. 00-3751
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
FILED
AUG 23 2000
LEONARD GREEN, Clerk
GERALD MCCOLE,
Petitioner,
v. ORDER
RAILROAD RETIREMENT BOARD,
Respondent.
Before: MARTIN, Chief Judge
The petitioner seeks review of a decision of
the Railroad Retirement Board with respect to his
request for a disability annuity and early Medicare.
He has now filed a motion and a supplemental motion
to enlarge the administrative record to include
material that was not presented before the agency.
The Board opposes enlarging the record.
This court has jurisdiction to review final
decisions of the Board under the provisions set forth
in 45 U.S.C. Section 355(f). 45 U.S.C. Section 231g; see
Gutierrez v Railroad Retirement Bd., 918 F.2d 5687,
570 (6" Cir. 1990) The court must determine whether
the Board’s decision is supported by substantial
evidence. “If the record supports the Board’s
decision, we must accept it without making an
independent evaluation of the evidence.” Crenshaw
v. U.S.R.R. Retirement Bd., 815 F.2d 1066, 1067 (6”
Cir. 1987). The statute provides that “[n]o additional
evidence shall be received by the court, but the court
may order additional evidence to be taken before the
9a
Board....”45 U.S.C. Section 355(f). The petitioner's
motions to enlarge the record before this court,
therefore, must be denied. The petitioner’s request
that the court remand the case to the Board to take
additional evidence should be addressed by the
parties in their appellate briefs and decided by the
panel assigned to consider the appeal on the merits.
The motions to enlarge the record are
DENIED. -
ENTERED BY ORDER OF THE COURT
ls/ Leonard Green
Clerk
10a
RAILROAD RETIREMENT BOARD
Appeal of
Gerald A. McCole Claims Appeal Docket
R.R.B. No. A-368-38-8393 No. 98-AP-0097
The Board has reviewed the record in the appeal of
Mr. Gerald A. McCole from the decision of the
hearings officer and has considered the argument and
evidence contained therein. Mr. McCole appeals the
March 31, 1998 decision of the hearings officer which
found him 1) not to have a current connection with
the railroad industry and therefore, not entitled to an
occupational disability annuity under section
2(a)(1)(iv) of the Railroad Retirement Act, 2) disabled
for all regular employment and therefore, entitled to a
disability annuity under section 2(a)(1)(v) of the
Railroad Retirement Act effective October 1, 1994,
and 3) not entitled to a period of disability and
Medicare coverage under the Social Security Act.
The hearings officer has adequately addressed all
issues raised by Mr. McCole on appeal. As the
hearings officer correctly found, Mr. McCole’s part-
time work as a custodian for the college he was
attending constituted regular employment which
would break a current connection. (Exhibit 6). The
hearings officer further found that Mr. McCole was
disabled for all regular employment due to angina
from September 1993. This results in an annuity
beginning date for Mr. McCole of October 12, 1994, 12
months before the date of his application for an
annuity and the earliest date permitted under section
5(a)(ii) of the Railroad Retirement Act. Finally,
although Mr. McCole’s employment after he left
railroad service broke his current connection, it was
not social security covered employment. ,
Consequently, Mr. McCole does not have sufficient
quarters of coverage to be eligible for early Medicare.
lla
The Board affirms and adopts the decision of the
hearings officer,
The appeal is denied
‘s/Cherryl T. Thomas
Cherryl T. Thomas
/s/V.M. Speakman, Jr.
V.M. Speakman, Jr.
‘s/Jerome F. Kever
Jerome F. Kever
12a
DECISION OF THE HEARINGS OFFICER
Mr. Gerald McCole _ Decision No. 98-680
319 West “E” Street Appeal No. 97-0625
Iron Mountain,R.R.B. No. A-368-38-8393
Michigan 49801
MAR 31 1998
ISSUES
There are three issues in the appellant's case: 1)
whether he has a current connection with the railroad
industry. If he has a current connection, he may be
considered for an occupational disability annuity
under the provisions of section 2(a)(1)(iv) of the
Railroad Retirement Act. 2) If he does not have a
current connection with the railroad industry and
therefore is not eligible to be considered for an
occupational disability annuity, the issue is whether
the appellant is disabled for all regular employment
and entitled to a disability annuity under the
provisions of section 2(a)(1)(v) of the railroad
Retirement Act. This section of the Act provides
disability annuities to railroad employees who have at
least ten years of railroad service and who are
disabled for all regular employment. 3) The last issue
is whether the appellant is entitled to a period of
disability and disability Medicare coverage under the
provisions of the Social Security Act.
FINDINGS
1). The hearings officer finds that the appellant does
not have a current connection with the railroad
industry.
Mr. McCole last worked in the railroad industry in
May 1986. He subsequently worked in a work/study
program in 1989, 1990, and 1991 while he was
attending college. The appellant maintains that the
13a
work he performed through the work/study program
is not regular employment within the meaning of the
Railroad Retirement Act and regulations, that it is a
form of relief provided by the federal and state
government. The Railroad Retirement Board
regulations provide that regular non-railroad
employment is “full or part-time employment for pay”
(20 C.F.R. 216.16) excluding “temporary work
provided as relief by an agency of a Federal, State, or
local government.”
The hearings officer finds that it is not necessary to
make a determination on whether Mr. McCole’s
work/study earnings would break a current
connection. Even if the hearings officer were to find
that the appellant’s work/study earnings did not break
his current connection, Mr. McCole had part time
employment other than work/study in 1991, 1992, and
1993 that broke his current connection. Although Mr.
McCole indicated at the hearing and in his statement
marked current connection submitted at the hearing
that all his work for the college was work/study, his
previous statements indicate that the work/study
program ended sometime in 1991 and that his work in
1992 and 1993 was part time employment. His letter
of December 1, 1996 (Exhibit 6) specifically states
that his work/study ended in August 1991. Beginning
September 1991 through April 1993, his statement
shows that he “worked as a part time custodian at
BaydeNoc Community College YMCA-employed by
the college while attending college full time.” This is
inconsistent with a previous letter from Mr. McCole
received in December 1995 that his work/study ended
in 1991. (exhibit A). The hearing officer finds that the
preponderance of the evidence shows that Mr.
McCole’s work/study program ended in 1991 and that
his subsequent earnings for the BaydeNoc Community
College was part-time employment that broke his
current connection. These earnings were not
reported to the Social Security Administration
14a
because they were earnings from a state or local
government not covered by the Social Security Act.
No FICA taxes for Medicare coverage were deducted
apparently due to the exclusion applicable to colleges
who employ students.
While the hearings officer understands Mr. McCole
believes none of his part-time employment which
helped to support him while he attended school
should be considered, the Board’s regulations allow
few exclusions from the definition of regular
employment that will break a current connection.
Part time employment by a student is not excluded.
Mr. McCole does not have a current connection with
the railroad industry. As a result, Mr. McCole is not
eligible for consideration for an occupational
disability annuity under the Railroad Retirement Act.
2). The hearings officer finds that the appellant's
impairments, considered in combination, are disabling
for all regular employment. The appellant claimed a
disability onset date of September 1, 1993 when he
filed his disability application with the Railroad
Retirement Board. The hearings officer finds that the
appellant has been disabled for all regular
employment from this date. The medical evidence
establishes that he has a combination of impairments
as of September 1993-coronary artery disease with
angina, chronic obstructive pulmonary disease,
diabetes mellitus that are disabling for all regular
employment. Although Mr. McCole acquired a college
degree in accounting that would provide him with
entry into semi-skilled jobs at an entry level, the
hearings officer finds that his medical condition is so
severe that even with the vocational advantage of his
college education he would not be able to perform
regular work on a consistent basis.
Mr. McCole is entitled to a disability annuity from
October 1, 1994. This date is the first day of the
15a
twelfth month before the month in which he filed his
application for a disability annuity. This is the earliest
date permitted by law.
3). The appellant is not entitled to a period of
disability under the provisions of the Social Security
Act.
The appellant’s application for a disability annuity is
also an application for a period of disability and
disability Medicare coverage under the provisions of
the Social Security Act. For entitlement to a period of
disability/disability Medicare coverage there are two
criteria which must be both met: 1) the disability
criteria; and 2) and earnings requirement. The
appellant meets the disability criteria for a period of
disability under the Social Security Act. He does not
meet, however, the earnings requirement. To meet
the earnings requirement the e claimant must have 20
quarters of covered earnings (earnings creditable
under either the Railroad Retirement Act or the Social
Security Act) in a 40 quarter period ending with the
quarter in which disability began. The appellant has
14 quarters of covered earnings in the 40 quarter
period preceding the third quarter of 1993, the quarter
in which his disability began. The last time the
appellant met the earnings requirement was
December 1991. He is not entitled to a period of
disability or disability Medicare coverage.
DECISION
It is the decision of the hearings officer that: Mr.
McCole does not have a current connection with the
railroad industry; he is entitled to a disability annuity
under section 2(a)(1)(v) of the Railroad Retirement
Act from October 1, 1994; and he is not entitled to a
period of disability and disability Medicare coverage.
/s/Grace Tock
l6a
Grace Tock
Hearings Officer
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.