Bright v. Stevens Shipping ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDWARD BRIGHT,
Petitioner,
v.
STEVENS SHIPPING & TERMINAL
No. 96-2484
COMPANY; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(No. BRB-95-0992)
Submitted: April 17, 1997
Decided: May 1, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
E. Paul Gibson, Allison A. Stover, RIESEN LAW FIRM, L.L.P., N.
Charleston, South Carolina, for Petitioner. Bert G. Utsey, III, Joseph
D. Thompson, III, SINKLER & BOYD, P.A., Charleston, South Car-
olina, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Edward Bright appeals from the summary affirmance by the Bene-
fits Review Board ("BRB") of the Administrative Law Judge's
("ALJ") denial of benefits under the Longshore and Harbor Workers'
Compensation Act (the "Act"), 33 U.S.C.A.§§ 901 to 950 (West
1986 & Supp. 1996).* The ALJ denied Bright's claim for permanent
partial disability, and Bright appeals. Because the ALJ's decision was
supported by substantial evidence, we affirm.
A claimant seeking disability benefits under the Act must establish
his inability to return to his former employment. See v. Washington
Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). Bright
worked as a longshoreman for twenty years. He injured his back on
August 2, 1992, when he fell backwards onto a "peg eye." He
returned to work on March 7, 1993, performing light duty until June
1993. He then stopped working, claiming that he was unable to return
to longshore duty because of pain and numbness in his back and leg.
From 1992 through 1994, Bright was examined by five doctors: Dr.
Steven Poletti, an orthopaedic surgeon; Dr. John Davis; Dr. Gregory
Jones, a physical medicine and rehabilitation specialist; Dr. Marilyn
Schimenti, a medical disability consultant; and Dr. James Aymond, an
orthopaedic surgeon. Dr. Poletti, Bright's primary treating physician,
_________________________________________________________________
*The BRB never addressed the merits of the appeal. On September 12,
1996, the BRB sent the parties a notice stating that pursuant to the provi-
sions of Public Law Number 104-134, enacted on April 26, 1996, all
appeals to the BRB relating to claims under the Act were deemed to have
been affirmed if the case had been pending before the BRB for one year
by September 12, 1996. Because Bright's appeal met these criteria, the
BRB informed the parties that the ALJ's decision had been effectively
affirmed by the BRB on September 12, 1996, for purposes of their rights
to obtain review in the court of appeals.
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concluded that Bright had incurred a "minor injury," and both he and
Dr. Aymond noted that there was no objective physical evidence to
support a finding that Bright was unable to return to his duties as a
longshoreman. Dr. Aymond further found that Bright's complaints of
pain were not supported by the radiographic and physical findings.
Nevertheless, in response to a questionnaire by a rehabilitation spe-
cialist, Dr. Aymond stated that, although Bright was cleared for "re-
strictive duty" longshore work, he was not approved for regular duty
longshore work due to the difficulty of the lifting involved.
Although Dr. Jones concluded that Bright suffered from a lumbar
spine impairment, he stated that the impairment would not prevent
Bright from working. However, neither Dr. Jones nor Dr. Davis dis-
cussed whether Bright could return to longshore work specifically.
Finally, Dr. Schimenti concluded that Bright was permanently and
totally disabled from performing longshore work.
In finding Bright able to work, the ALJ discredited only two items
of evidence: Dr. Schimenti's opinion that Bright was permanently and
totally disabled and Dr. Aymond's statement that Bright could not
return to regular longshore duty. The ALJ discredited Dr. Schimenti,
because while both she and Dr. Aymond examined Bright for disabil-
ity assessment rather than treatment purposes, Dr. Aymond's opinion
was corroborated by Dr. Poletti. Dr. Schimenti, on the other hand,
was the lone doctor concluding that Bright was totally disabled. We
must defer to the ALJ's credibility determinations and inferences
from the evidence. See, 36 F.3d at 380.
Next, the ALJ discredited Dr. Aymond's statement to the rehabili-
tation specialist, because this conclusory statement directly contra-
dicted Dr. Aymond's medically supported report finding "no
impairment rating" and releasing Bright for longshoreman duties. Fur-
ther, in his statement to the rehabilitation specialist, Dr. Aymond spe-
cifically cleared Bright for "restrictive duty" longshore work. Because
the information Dr. Aymond provided on the rehabilitation special-
ist's form conflicted with his own examination notes and medical
reports, the ALJ's decision to discredit the information on the form
was not "inherently incredible or patently unreasonable." Cordero v.
Triple A Mach. Shop, 580 F.2d 1331, 1335 (9th Cir. 1978) (quotation
omitted); see also Richardson v. Perales, 402 U.S. 389, 402 (1971)
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(holding that medical testimony was substantial evidence for adminis-
trative finding of nondisability, despite presence of opposing medical
testimony and claimant's testimony).
The medical evidence provided in the examination notes and medi-
cal reports of Drs. Poletti and Aymond constituted more than substan-
tial evidence to support the ALJ's finding that Bright is not
permanently disabled. See 36 F.3d at 380 (standard of review).
Accordingly, we need not address Bright's claim regarding wage-
earning capacity, and we affirm. 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
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