899 F.2d 52
283 U.S.App.D.C. 244
Richard COFFEE, Petitioner,
UNITED STATES RAILROAD RETIREMENT BOARD, Respondent.
United States Court of Appeals, District of Columbia Circuit.
April 6, 1990.
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.
Before HARRY T. EDWARDS, RUTH BADUR GINSBURG and BUCKLEY, Circuit Judges.
This cause came to be heard on petition for review of a decision of the United States Railroad Retirement Board. The case was briefed and argued by counsel for the Board and by Jenner & Block, appearing as amicus curiae on behalf of petitioner, Richard Coffee. The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C.Cir. Rule 14(c).
The record as a whole supports petitioner's claim regarding his disabling pain and the limitations it and his injury place on his physical capabilities. Thus, it is clear that the record supports Mr. Coffee's claim that he was disabled within the meaning of the Railroad Retirement Act of 1974 and applicable regulations. Furthermore, there is no substantial support in the record for the Referee's finding regarding petitioner's alleged residual capacity to perform work. Thus, because petitioner's claim has not been refuted, and because the Board's vocational expert testified that if the petitioner's claim were true there would be no jobs in the national economy that Mr. Coffee could perform, we find that the Board has failed to carry its burden of proof in this case. See Simms v. Sullivan, 877 F.2d 1047 (D.C.Cir.1989).
In light of the court's view of the record in this case, counsel for the Board conceded at oral argument that judgment should be entered for petitioner. We agree. See 45 U.S.C. Sec. 355(f) (Supp. V 1987); see also Carter v. Railroad Retirement Bd., 834 F.2d 62, 66 (3d Cir.1987); Baugus v. Secretary of Health and Human Services, 717 F.2d 443, 448 (8th Cir.1983); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 495-96 (3d Cir.1980).
Accordingly, it is hereby ORDERED and ADJUDGED, by the Court, that the decision is reversed and that the Railroad Retirement Board expeditiously award disability benefits to the petitioner.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. Rule 15.