Adrian C. Duncan, Sr. v. United States Railroad Retirement Board

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2222
ADRIAN C. DUNCAN, SR.,
Petitioner,
v.
UNITED STATES RAILROAD
RETIREMENT BOARD,
Respondent.
Petition for Review of an Order
of the Railroad Retirement Board.
No. 12-AP-0047
ARGUED JANUARY 8, 2015 — DECIDED MAY 20, 2015
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. In July 2010, plaintiff-appellant,
Adrian C. Duncan, Sr., filed an application for a disability
annuity under 45 U.S.C. § 231a(a)(1)(v) of the Railroad Retire-
ment Act, claiming that he became disabled on October 28,
2007, due to severe back impairments. The United States
Railroad Retirement Board denied his application in October
2010 and denied it again upon reconsideration in January 2011.

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Duncan appealed those decisions and was granted a hearing
before Hearing Officer Anne Baca. Baca denied Duncan’s
application for benefits in April 2012. Duncan then appealed to
the three-member Board in June 2013, which rendered its final
decision by affirming and adopting Baca’s decision. Duncan
now appeals the Board’s decision pursuant to 45 U.S.C.
§ 355(f). We conclude that substantial evidence supports the
Board’s decision and affirm.
I. BACKGROUND
After years of working as a locomotive engineer, and then
more briefly as a limousine driver, Duncan applied for a
disability annuity in 2010. His application alleged constant
back pain stemming from a 2003 workplace injury in which he
slipped on ice, hit his head, and injured his back. To begin our
review, we will outline the medical evidence accrued in
support of Duncan’s application, followed by the evidence
elicited during the related disability hearing.
A. Medical Records
The medical records in support of Duncan’s application and
relevant to this appeal begin in March 2004, when Duncan
visited his regular treating physician, Dr. Janice Bilby. During
the visit, Duncan complained of back pain, but Dr. Bilby only
noted slight tenderness and spasm in his back after an other-
wise normal examination. Duncan returned to Dr. Bilby’s office
four more times in 2004, each time complaining of back pain.
Dr. Bilby prescribed muscle relaxers and recommended
physical therapy. Duncan also underwent one MRI through
Dr. Bilby’s office, which showed a disc rupture at L5-S1, but
was otherwise within normal limits.

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No. 14-2222 3
At his employer’s request, Duncan also visited Dr. George
Schoedinger in 2004. Dr. Schoedinger observed decreased
lumbar range of motion, a positive straight leg test, and
tenderness to the touch at L5-S1. He opined that Duncan’s
symptoms were consistent with disc pathology as defined by
the MRI and advised Duncan to remain off work. Duncan
followed up with Dr. Schoedinger a month later. During that
visit, Dr. Schoedinger noted that Duncan remained unable to
perform the duties of a locomotive engineer.
Duncan continued to see Dr. Schoedinger for his back pain
throughout 2005. At a January 2005 visit, Dr. Schoedinger
opined that Duncan had reached maximum medical improve-
ment and recommended residual functional capacity (“RFC”)
testing. Dr. Schoedinger conducted an RFC examination in
February 2005, which showed that Duncan could safely work
at a medium physical demand level. At this time,
Dr. Schoedinger advised Duncan that he should be evaluated
by a vocational counselor, as he felt Duncan could not pursue
the unrestricted heavy industrial activity common to many
railroad positions. There is no evidence in the record that
Duncan ever sought that counseling.
In March 2005, Dr. Schoedinger advised Duncan that he did
not think it would be safe for him to return to his job as a
locomotive engineer given his use of pain-management
narcotics. In April, seeing no material change in Duncan’s
status, Dr. Schoedinger advised weight loss to improve his
condition. In July, Dr. Schoedinger told Duncan that he could
attempt returning to work as a switchman. However, a month
later Duncan reported that his symptoms had escalated in
severity and, as a result, Dr. Schoedinger suggested Duncan

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perform medium work rather than the heavy work of a
switchman. At a follow-up appointment in October, Duncan
complained that throwing a switch months earlier had caused
his low back pain to increase, which Dr. Schoedinger attributed
to an aggravation of Duncan’s previously defined lumbar disc
rupture at L5-S1. Duncan returned to Dr. Schoedinger’s office
in December 2005, stating he could no longer tolerate his pain
symptoms.
Duncan also saw his regular treating physician, Dr. Bilby,
three times in 2005. Duncan did not report or reference back
pain at any of the visits.
In April 2006, Dr. Schoedinger performed an anterior
discectomy and instrumented interbody fusion at L5-S1. In
May 2006, X-ray testing revealed a satisfactory implant
position, and by June, CT scans showed solid fusion. During
both the May and June visits Dr. Schoedinger recommended
physical therapy and weight loss. By November,
Dr. Schoedinger felt Duncan had again reached maximum
medical improvement and recommended another round of
RFC testing, which established that Duncan was capable of
light physical work.
In 2007, Duncan resumed regular visits with Dr. Bilby. In
January, Duncan visited Dr. Bilby for a blood pressure check-
up. During the visit he explained he was taking Tylenol for his
back pain, which had initially improved after surgery but had
since worsened. Dr. Bilby recommended exercise to increase
Duncan’s range of motion. In February, Duncan reported pain
during his back exercises to Dr. Bilby. An examination revealed
a fifty percent range of motion for all planes and 5/5 motor

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No. 14-2222 5
strength. Dr. Bilby prescribed physical therapy and anti-
inflammatory medication for the pain. A month later, Duncan
returned to Dr. Bilby’s office due to neck pain that he felt after
exercise. A nurse practitioner in Dr. Bilby’s office, Kelly
Burrough, prescribed Vicodin and Flexeril to treat his pain.
It was during March 2007 that Duncan filed his first
application for a disability annuity (which was ultimately
denied and is not the basis of this appeal). In relation to that
application, Duncan saw Dr. Sandeep Gupta in May 2007.
During his examination with Dr. Gupta, Duncan reported pain
in his back radiating down his left leg and rated his pain
generally as 6/10, but explained it was relieved by rest and
hydrocodone. Dr. Gupta’s musculoskeletal exam showed that
Duncan’s posture and gait were normal, that he had the ability
to stand on his heels and toes, and that he could squat and
stand up. The examination also showed decreased range of
motion in the lumbar spine, normal motor strength, no muscle
atrophy, and normal reflex and sensory findings. Based on the
examination, Dr. Gupta opined that Duncan could lift up to ten
pounds occasionally; could stand and/or walk at least two
hours in an eight hour day; should not walk on uneven terrain;
would have limited pushing and pulling capacity; and would
be able to frequently climb stairs, balance, and stoop. Most
importantly for purposes of this appeal, Dr. Gupta also opined
that Duncan should never do any handling or fingering
bilaterally, despite simultaneous findings of normal motor
strength and reflexes.
Also as part of the 2007 disability application, consultative
examiner Dr. V.P. Gomez conducted a review of Duncan’s
medical records. After his review, Dr. Gomez opined that

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Dr. Gupta’s RFC evaluation was not supported by objective
medical evidence in the record.
After Dr. Gomez’s review, Duncan returned to Dr. Bilby’s
office twice in 2007. In October, Duncan visited Dr. Bilby
complaining of back pain. The resulting musculoskeletal exam
showed slightly tender midlumbar back, negative straight leg
raise, and full motor strength. Dr. Bilby recommended that
Duncan see a pain center for options. Based on the recommen-
dation, Duncan visited Dr. Brian Foley at the Community
Spine Center in Indianapolis, who advised bed rest and
recommended exercise to manage his symptoms. In Novem-
ber, Duncan saw Dr. Bilby again. Though the primary purpose
of the visit was to discuss Duncan’s blood pressure, Duncan
mentioned that he would be going to the spine center to begin
physical therapy to treat his lower back pain.
In 2008, Duncan visited Dr. Bilby’s office five times, each
time complaining of continuing back pain. Each resultant
examination failed to reveal any abnormalities.
Duncan also began seeing Dr. L.H. Ferrell, a pain specialist,
in 2008. In January 2008, Dr. Ferrell performed a musculo-
skeletal exam which showed no abnormalities. She recom-
mended ibuprofen and physical therapy to manage Duncan’s
symptoms. A follow-up exam in April yielded similarly normal
results and she again recommended physical therapy.
Duncan did not return to Dr. Ferrell’s office until July 2009.
During the first and only 2009 exam with Dr. Ferrell, Duncan
exhibited an antalgic and steady gait, as well as normal
strength and sensation in the lower extremities. Dr. Ferrell
prescribed hydrocodone and advised Duncan to continue his

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No. 14-2222 7
home exercise plan. She also ordered an MRI, which showed
fusion at L5-S1 (from Duncan’s 2006 surgery), but was other-
wise unremarkable. Dr. Ferrell also completed a medical
assessment form, finding that Duncan could lift no more than
twenty-five pounds; could not stand or walk more than thirty
minutes at a time; could not sit for long periods of time; and
could not engage in repetitive stooping, crouching, or walking
on uneven terrain, or pushing/pulling more than twenty-five
pounds. A July 15, 2009 letter summarized these findings and
noted that Dr. Ferrell had prescribed anti-inflammatory
medication and exercise, but neither had been successful in
treating Duncan’s pain. Dr. Ferrell further wrote that MRI and
CT scan testing had not shown any pathology for Duncan’s
pain, but explained that the lack of pathology did not necessar-
ily mean that an inflammatory process was not occurring.
At a follow-up in November 2010, Dr. Ferrell examined
Duncan with substantially similar results as previous exams.
At this time, she opined that Duncan could work a four-hour
day with restrictions.
During 2010, Duncan filed his second disability application.
In relation to the 2010 application, consultative examiner
Dr. Uy reviewed Duncan’s medical records. Based on his
review, Dr. Uy opined that Duncan could only lift/carry up to
twenty pounds; he could stand/walk with normal breaks for at
least six hours of an eight-hour day; he could occasionally
climb, stoop, crouch or crawl; he was able to balance; and he
had no manipulative limitations. He also found that Dr. Fer-
rell’s RFC testing and medical assessment form were incom-
plete in light of the objective medical evidence.

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Finally, Duncan visited Dr. Ferrell twice in 2011. In January
2011, Dr. Ferrell observed a normal and steady gait, and 5/5
strength. At the second visit in April, Dr. Ferrell made largely
the same observations as in the January exam, but with the
additional notation that Duncan no longer had pain to the
touch in his lower back. She also stated that Duncan’s pain was
better with medication and exercise. She ultimately recom-
mended that Duncan continue his exercise and medication
regimen.
B. The December 5, 2011 Hearing
The transcript of the hearing held by Baca in connection
with the denial of Duncan’s disability application included
testimony from Duncan himself and Michael Blankenship, a
vocational consultant.
Duncan testified that he worked as a locomotive engineer,
and later as a switchman, before stopping due to pain. When
he stopped working for the railroad in 2007, he began working
for himself as a limousine driver until he could no longer work
at all due to his back pain. He explained that his back pain
prevented him from working and that the pain left him unable
to concentrate. He alleged that the pain was constant and had
been since his 2006 surgery. He also stated that physical
therapy had not helped.
For his part, Blankenship presented testimony regarding
jobs that Duncan could perform given his impairments based
on two different RFCs. Relying on Dr. Uy’s 2010 RFC, Blanken-
ship concluded that Duncan could perform work as a chauf-
feur as it is normally performed (although perhaps not as
Duncan was performing it in his own business), and that he

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No. 14-2222 9
could perform a variety of light or sedentary unskilled jobs.
Based on Dr. Gupta’s 2007 RFC, however, Blankenship testified
that there were no jobs in the national economy that Duncan
could perform. Blankenship attributed this conclusion to
Dr. Gupta’s total restriction on fingering and handling;
Blankenship stated that when handling is entirely restricted, all
jobs are eliminated.
After the hearing, Baca concluded that Duncan was not
entitled to a disability annuity because his impairments did not
prevent him from performing regular work. Baca reached this
conclusion by relying in large part on Dr. Uy’s testimony, as
well as the other objective medical evidence in the record.
Notably, she concluded that neither Dr. Gupta’s RFC handling
restriction nor Dr. Ferrell’s opinion regarding Duncan’s
disability were supported by the objective medical evidence
in the record. She also discounted Duncan’s complaints of
disabling pain as not credible because there was no evidence
that his impairments would compromise his ability to perform
a restricted range of light work.
C. The Board’s Decision
Following his unfavorable result at the hearing, Duncan
appealed to the Board. He argued that Baca improperly
discounted Dr. Ferrell’s opinion, improperly discredited his
own complaints of pain, and imposed her own standards as to
what sort of treatment Duncan should have sought if he was
truly disabled. Unpersuaded, the Board affirmed and adopted
Baca’s decision. The Board also added its own comments to
Baca’s ruling in its decision.
Duncan now appeals the Board’s decision.

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10 No. 14-2222
II. DISCUSSION
We will affirm a board’s decision if it is supported by
substantial evidence in the record. Peppers v. R.R. Ret. Bd., 728
F.2d 404, 406 (7th Cir. 1983). Given the similarities between
the Social Security Act and the Railroad Retirement Act, our
review is quite similar to appeals involving Social Security
disability benefits, Dray v. R.R. Ret. Bd., 10 F.3d 1306, 1310 (7th
Cir. 1993), and Social Security decisions may be relied upon
readily. Peppers, 728 F.2d at 406.
Duncan raises two arguments on appeal. First, he contends
that the Board erred in relying on the opinion of Dr. Uy, a non-
treating physician, over the opinions of Dr. Ferrell and
Dr. Gupta. Next, he argues that the Board erred in rejecting
Duncan’s allegations of incapacitating pain as not credible. We
will address each argument in turn.
A. Physicians’ Opinions
At the hearing, Baca found that neither Dr. Ferrell’s nor
Dr. Gupta’s opinions were entitled to extra weight because
they were not supported by the totality of the record evidence;
she found that Dr. Uy’s opinion was supported by the objective
findings in the record and relied on his opinion instead. On
appeal to the Board, Duncan argued that these decisions were
not supported by substantial evidence in the record. The Board
disagreed and affirmed. Now, Duncan argues that the Board’s
affirmation is without substantial support from the record.
A treating physician’s opinion, like Dr. Ferrell’s, is entitled
to controlling weight if it is supported by medical findings and
is consistent with substantial evidence in the record. Skarbek v.

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No. 14-2222 11
Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). But a reviewing
board may discount a treating physician’s opinion if it is
inconsistent with the opinion of a consulting physician, id., or
when the treating physician’s opinion is inconsistent with
substantial evidence in the record, Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003), so long as the board minimally
articulates its reasons for rejecting the opinion. Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000). The Board was critical of
Dr. Ferrell’s opinion that Duncan could not perform even
sedentary work, despite objective medical evidence that his
pain improved with medicine, he had a normal gait, his muscle
strength was 5/5, and his sensation was normal. Due to these
inconsistencies, the Board discounted Dr. Ferrell’s opinion in
favor of Dr. Uy’s consultative opinion, which the Board found
was supported by record evidence. Upon review, the Board’s
recitation of the conflict between Dr. Ferrell’s opinion and the
evidence in the record is both adequately articulated and
supported by substantial evidence from the record. Accord-
ingly, the Board did not err in affirming Baca’s decision as to
Dr. Ferrell.
As to Dr. Gupta, Duncan argues that the Board and Baca
improperly rejected Dr. Gupta’s opinion in assessing Duncan’s
RFC. Because the Board adopted the hearing officer’s decision
as to Dr. Gupta without issuing further findings, we evaluate
the judgment of the hearing officer. Dray, 10 F.3d at 1310 (citing
Hayes v. R.R. Ret. Bd., 966 F.2d 298, 302 (7th Cir. 1992)). Baca
discounted Dr. Gupta’s opinion because his assessment, which
included complete restrictions on fingering and handling, was
inconsistent with his examination findings of normal motor
strength and normal reflexes. Baca instead concluded that

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12 No. 14-2222
Dr. Gupta’s examination findings were more consistent with an
RFC for less than sedentary work. As long as the hearing
officer’s decision to reject a physician’s opinion is at least
minimally articulated, the hearing officer has the discretion to
so reject the opinion. Clifford, 227 F.3d at 870. Here, Baca
explained her decision to discount Dr. Gupta’s opinion was
due to the inconsistency between his conclusion and his
examination findings; this explanation meets the minimally
articulated standard. Further, Baca’s decision is supported by
substantial evidence in the record. The record supports the
finding that Duncan is able to perform light and sedentary
work with restrictions as described by the vocational expert.
Therefore, the Board did not err in affirming Baca’s decision as
to Dr. Gupta.
B. Credibility Determination
The Board rejected Duncan’s complaints of disabling pain
as not credible in light of the objective evidence. Duncan
argues that this was error. We review credibility determina-
tions deferentially and we will affirm them unless the peti-
tioner demonstrates that they are patently wrong. Dray, 10 F.3d
at 1314.
It is well-established that the hearing officer may resolve
discrepancies between objective medical evidence and self
reports of debilitating pain, see Jones v. Astrue, 623 F.3d 1155,
1161 (7th Cir. 2010), and here, material discrepancies abound.
Duncan testified at his hearing to debilitating back pain, but
also reported improvement with medication and exercise
during his most recent visit with Dr. Ferrell. Additionally, his
most recent MRIs showed no abnormalities. He also exhibited

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No. 14-2222 13
a normal gait, normal muscle strength, and normal sensation
at his most recent doctor visits.
It is worth noting that the Board did not discount Duncan’s
complaints out of hand, but rather upheld Baca’s finding that
Duncan’s complaints of pain were only credible to the extent
that they limited him to light work. Critically, Baca’s opinion
highlights the discrepancy that supports Duncan’s capacity for
light or sedentary work despite his complaints: she explained
that there was no evidence of significant motor loss or weak-
ness, and that his examination reports to that effect were
within normal limits. Without that evidence, Baca concluded
that although Duncan’s pain would prevent him from perform-
ing strenuous labor, it would not require him to avoid all work.
Baca’s explanation of the discrepancy satisfies our require-
ments for affirmance. See Adaire v. Colvin, 778 F.3d 685, 687 (7th
Cir. 2015) (finding administrative law judge erred in rejecting
claimant’s complaints of severe pain without considering
objective evidence that could support claimant’s complaints).
The Board is not “required to give full credit to every
statement of pain, and require a finding of disabled every time
a claimant states that she feels unable to work,” Dray, 10 F.3d
at 1314, particularly where those statements are not supported
by objective medical evidence. Duncan’s complaints are not
supported by the medical evidence of record and the Board
properly affirmed Baca’s decision. In light of the foregoing
evidence, Duncan has not met his burden that the Board’s
credibility determination is patently wrong.

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14 No. 14-2222
III. CONCLUSION
The Board’s conclusion that Duncan retains the capacity to
perform a reduced range of work and that he is not disabled is
supported by substantial evidence in the record. Therefore, we
AFFIRM.

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