Mary Loscombe, Awidow, for the Estate of John D. Loscombe, Deceased v. RAILROAD RETIREMENT BOARD On Petition To Review Decision of the Railroad Retirement…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 01-3964
__________
MARY LOSCOMBE, A WIDOW,
FOR THE ESTATE OF
JOHN D. LOSCOMBE, DECEASED,
Petitioner
v.
RAILROAD RETIREMENT BOARD
__________
On Petition To Review Decision of the
Railroad Retirement Board
(R.R.B. No. A-176-22-4021 dated November 03, 2000)
__________
Submitted Under Third Circuit LAR 34.1(a)
on April 22, 2002
Before: SCIRICA, RENDELL, and NOONAN*, Circuit Judges,
(Filed: April 25, 2002)
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OPINION OF THE COURT
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____________________
*The Honorable John T. Noonan, Jr., Senior Circuit Judge for the Ninth Circuit, sitting by
designation.
RENDELL, Circuit Judge.
Mary Loscombe appeals from a November 3, 2000 decision of the Railroad
Retirement Board (hereinafter referred to as "the Board"). Because we write only for the
parties, who are familiar with the facts, we need not set forth the facts and procedural
history of the case at length. We exercise jurisdiction pursuant to Section 8 of the
Railroad Retirement Act (45 U.S.C. 355(f)). We can only set aside a decision of the
Board, if on review, we find that the decision was not supported by substantial evidence
or was based on an error of law. Carter v. Railroad Retirement Board, 834 F.2d 62, 64 (3d
Cir. 1987)
On November 3, 2000 the Board found that an award of a period of disability to
Mary Loscombe’s late husband John Loscombe, should be reopened and denied. The
board found that evidence supported the conclusion that John Loscombe had not been
permanently disabled and had been working at "substantial gainful activity" as defined by
the Board’s regulations under Section 220.141 (20 CFR.141), during his period of
disability. The evidence supporting the Board’s decision was videotape of John
Loscombe doing light construction work for his son’s building business, and a witnessed
ten-page statement, signed by John Loscombe, in which he acknowledged working for
and being paid by his son’s business.

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Substantial evidence is defined as not "a large or considerable amount of evidence,
but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Hartranft v. Apfel, 181 F.3d 358 (3d Cir. 1999). We cannot set it
aside such a decision, even if we would have decided the factual inquiry differently.
Monsour Medical Ctr. V. Heckler, 806 F.2d 1185 (3d Cir. 1986). In addition, we cannot
weigh the evidence or substitute factual conclusions. Early v. Heckler, 743 F.2d 1002 (3d
Cir. 1984). Under this standard we conclude that there is substantial evidence supporting
the Board’s decision.
Accordingly, the Railroad Retirement Board’s decision of November 3, 2000 will
be AFFIRMED. ___________________________
Please file the foregoing Not Precedential Opinion.
/s/ Marjorie O. Rend
Circuit Judge

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