Short v. RRRB ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT W. SHORT, JR.,
Petitioner,
v. No. 95-2502
U.S. RAILROAD RETIREMENT BOARD,
Respondent.
On Petition for Review of an Order
of the Railroad Retirement Board.
(A-000-00-2723)
Submitted: May 14, 1996
Decided: September 5, 1996
Before HALL and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Barbara von Euler, KATHLEEN SHANNON GLANCY, P.A., Wil-
mington, North Carolina, for Appellant. Catherine C. Cook, General
Counsel, Steven A. Bartholow, Deputy General Counsel, Thomas W.
Sadler, Assistant General Counsel, Rachel L. Simmons, General
Attorney, RAILROAD RETIREMENT BOARD, Chicago, Illinois,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Short appeals a decision of the Railroad Retirement Board
upholding a hearing officer's order denying Short's application for
benefits and a decision declining to reopen the matter for the admis-
sion of new evidence. We affirm in part and dismiss in part.
Short worked as a railroad laborer for many years until a back
injury and resultant surgical intervention prevented him from doing
further heavy labor. Short worked for a while thereafter as a house-
man in a hotel, but he has not worked in the recent past. Short com-
plains that he continues to suffer from the effects of the back injury
and cannot perform any sort of labor because of his physical afflic-
tion, low mental abilities, and lack of fine movement dexterity.
Short first complains specifically that the evidence does not sup-
port the finding that he could perform light work. The hearing officer
before whom this cause initially was presented found that Short could
perform "light work" as defined in the applicable regulations. We will
affirm that decision if it is supported by substantial evidence. See 45
U.S.C.A. § 355(f) (West 1986 & Supp. 1995) (standard of review); 20
C.F.R. § 225.132(b) (1996) (definition of light work). That is, we
inquire only whether the decision is supported by"`such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quot-
ing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Evidence before the hearing officer revealed that Short could lift or
carry fifty pounds occasionally and frequently lift and carry twenty-
five pounds. This evidence was corroborated by Short's work as a
houseman. Further, the written medical evidence supported such a
finding. Thus, we find no basis on which to reverse the hearing offi-
cer's decision in this regard.
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Short complains second that he could not return to his past work
as a houseman, as found by the hearing officer, because that work
was, in fact, "medium work." First, we find that the evidence pro-
duced at the hearing supports the hearing officer's decision that
Short's former work as a houseman was "light work" to which he
could return. Second, we find that, even if the past work was "me-
dium work," the evidence shows that Short could perform light work
and that such jobs were present in the applicable region (see below).
Thus, we find that Short's contention, even if correct, provides no
basis to reverse the order denying benefits, because it would not have
altered the ultimate decision. See 20 C.F.R.§ 220.100(b)(5) (1996)
(detailing the final step of inquiry surrounding benefit awards).
Short complains third that he had no residual ability to perform
other work. He contends his low mental abilities, lack of fine dexter-
ity, and limitations on his physical capacity as accepted by the hearing
officer undermine that officer's decision that there existed in the perti-
nent region other jobs that Short could perform. The contention is
meritless. Notwithstanding his accepted impairments, the evidence
amply supported the hearing officer's decision. The evidence showed
that there existed jobs not inconsistent with the reaching limitations
from which Short suffers and that could be performed without the
need for a high level of education or cognitive abilities. The evidence
showed that Short could maintain a proper work attitude and concen-
tration, and that Short had, in fact, done so. Thus, we find no defi-
ciency in the hearing officer's decision that would support reversal of
her decision. We affirm the hearing officer's factual findings and the
legal conclusions to which she came on those facts.
Short next complains that the Board refused to consider proper evi-
dence on his motion to reopen the proceedings nearly one year after
the final determination denying benefits. Short requests that we order
the Board to consider the evidence on remand. We may do so only
if we find that the initial determination is flawed. 45 U.S.C. § 355(c)
(West 1986 & Supp. 1995). However, because we have found no such
flaw, Short's request cannot be granted. Were we to do so, we would
be reviewing the Board's determination not to reopen the matter, and
we are without jurisdiction to do so. See 45 U.S.C.A. § 355(c), (f);
Steebe v. United States R. Retirement Bd., 708 F.2d 250, 254-55 (7th
Cir.), cert. denied, 464 U.S. 997 19983); cf. Hall v. Chater, 52 F.3d
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518, 520 (4th Cir. 1995) (regarding review of Social Security Admin-
istration's decisions not to reopen cases). Further, we find that, even
if we had such jurisdiction, see Clifford v. United States R. Retirement
Bd., 3 F.3d 536, 538 (1st Cir. 1993) (reopening orders reviewable for
abuse of discretion), the Board did not abuse its discretion. The mate-
rial Short wanted the Board to consider in reopening his case did not
overwhelm the evidence to the contrary that was before the hearing
officer, it was new evidence, and it was available for Short's use in
a new proceeding that the Board invited him to begin if he believed
the evidence showed changed circumstances. This decision was not
an abuse of discretion. Therefore, we dismiss this portion of the
appeal.
We affirm the administrative order with regard to its substance. We
dismiss the appeal with regard to the Board's order denying Short's
motion to reopen the proceedings. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED IN PART AND DISMISSED IN PART
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