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 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…

Opinion by Judge SCHROEDER; Dissent by Judge M. SMITH.

OPINION

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)®.

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…

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 , 117 S.Ct. 1953 , 138 L.Ed.2d 327 (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 preponderance.’ ” (citation omitted)). Most…