Sommerville v. Railroad Retirement ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT SOMMERVILLE,
Petitioner,
v. No. 99-1825
RAILROAD RETIREMENT BOARD,
Respondent.
On Petition for Review of an Order
of the Railroad Retirement Board.
(A-000-00-2580)
Submitted: May 19, 2000
Decided: June 12, 2000
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Robert Sommerville, Petitioner Pro Se. Karl Theodore Blank, III,
RAILROAD RETIREMENT BOARD, Chicago, Illinois, for Respon-
dent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert W. Sommerville appeals the Railroad Retirement Board's
("Board") order affirming a hearing officer's denial of a disability
annuity under the Railroad Retirement Act, 45 U.S.C.A. §§ 231-231u
(West 1986 & Supp. 2000). Finding no error, we affirm in part and
dismiss in part.
The Board's findings of facts (as determined by the hearing officer)
are conclusive if supported by the evidence. See 45 U.S.C.A. §§ 231g,
355(f) (West 1986 & Supp. 2000). Thus, our review of factual find-
ings is limited to "whether the findings of the Board are based upon
substantial evidence in the record and its conclusions consonant with
law." Marr v. Railroad Retirement Bd., 206 F.2d 47, 49 (4th Cir.
1953). Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Richardson
v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is more
than a scintilla of evidence but less than a preponderance. See Crow-
ley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999); Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966). Therefore, in reviewing for sub-
stantial evidence, this court does not weigh evidence, make credibility
determinations, or substitute its judgment for that of the Board. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Rather, it is the
duty of the hearing officer to make findings of fact and to resolve
conflicts in the evidence. See Hays v. Sullivan , 907 F.2d 1453, 1456
(4th Cir. 1990).
Sommerville first contends that the Board erred by finding that he
failed to proffer good cause for his failure to timely submit results of
a MRI exam to the hearing officer, and therefore failed to justify
reopening the record for consideration of this evidence. The record
discloses, however, that Sommerville knew of the MRI prior to the
hearing officer's decision but failed to notify the hearing officer that
he had any intention to submit it. In fact, Sommerville fails to dispute
respondent's assertion on appeal that not only did he fail to request
that the record be held open, he in fact requested an expedited deci-
sion. The Board therefore properly found that Sommerville failed to
establish good cause.
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Sommerville next contends that the hearing officer erred by finding
that his need for therapy for his back pain could be accommodated in
an employment setting. We find that substantial evidence supports the
hearing officer's finding, and affirm the Board's ultimate finding that
Sommerville was not disabled from all work.
In an effort to submit new evidence, Sommerville next contends
that the Board erred in not reopening his case. We note that Sommer-
ville never appealed the Board's order denying his request to reopen.
Even were the question properly presented, however, this court lacks
jurisdiction to review the Board's decision not to reopen a case. See
Harris v. Railroad Retirement Bd., 198 F.3d 139, 142 (4th Cir. 1999).
Accordingly, we dismiss this portion of Sommerville's appeal. Fur-
thermore, to the extent that Sommerville attempts to submit new evi-
dence originally filed with his reopening petition, we are prevented
from considering it. See 45 U.S.C.A. §§ 231(g), 355(f) (West 1986 &
Supp. 2000).
Accordingly, we affirm the Board's order denying the disability
annuity and dismiss the appeal with regard to the Board's order deny-
ing the petition to reopen. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART AND DISMISSED IN PART
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