UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,
No. 96-1901
v.
JOSEPH E. DAVIS,
Respondent.
On Petition for Review of an Order
of the Benefits Review Board.
(BRB-93-1426)
Argued: April 9, 1997
Decided: June 12, 1997
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Vacated and remanded with instructions by unpublished per curiam
opinion. Judge Michael wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Lawrence Philip Postol, SEYFARTH, SHAW, FAIR-
WEATHER & GERALDSON, Washington, D.C., for Petitioner.
Robert Elliott Walsh, RUTTER & MONTAGNA, L.L.P., Norfolk,
Virginia, for Respondent. ON BRIEF: Matthew H. Kraft, RUTTER
& MONTAGNA, L.L.P., Norfolk, Virginia, for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This appeal was taken from the decision by the Benefits Review
Board awarding workers compensation benefits to Joseph E. Davis
under the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. § 901 et seq. The Administrative Law Judge awarded Davis
permanent total disability benefits because of his back pain, and the
Benefits Review Board affirmed.
Davis was employed by Newport News Shipbuilding and Dry
Dock Company as a senior optical detailer, a type of draftsman. His
job involved placing mylar, a thin plastic film, on top of a table and
marking it with pencil. The job required small scale detail work and
often involved Davis' leaning across the work table. The job was
essentially a sedentary one.
In August 1990, Davis tripped on a section of carpet at his place
of employment and twisted his back. He had previously undergone
disk surgery for a non-work related back injury. Following evaluation
in October 1990, Dr. Richard McAdam, a board certified neurosur-
geon, did a thorough examination including a lumbar myelogram and,
based on those findings, performed a lumbar laminectomy, removing
a herniated disk. Six months later, after Dr. McAdam performed a CT
scan of the lumbar spine and ordered an EMG nerve conduction
study, he found "no recurrence of disk disease" and a "normal" EMG,
and so returned Davis to light duty work with permanent restrictions
on lifting over 40 pounds, repeated forward bending, and climbing.
He also prescribed frequent changes of position.
As Davis continued to complain of pain postoperatively, he
requested a second opinion and was examined by Dr. Douglas Grif-
fith, another board certified neurosurgeon, who agreed with Dr. Mc-
Adam's evaluation and recommendations. Also, Dr. McAdam did a
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complete myelogram in May 1991, which proved "within normal lim-
its for a postoperative patient." Again Dr. McAdam expressed his
opinion that Davis "should be able to work with restrictions," as pre-
viously given. He concluded, "I do feel that you can work a regular
40-hour week within these guidelines and, as I understand your job
requirements, you should be able to work your regular job function."
In a letter to Davis' primary-care physician, Dr. McAdam noted that
Davis "has been a management problem and I feel that I must make
a stand that he indeed can work."
Wishing to receive another opinion, Davis on his own initiative
scheduled an examination with Dr. Kathryn Holloway, another board
certified neurosurgeon, who concluded that Davis had"an excellent
decompression of his nerve roots and does not require further sur-
gery." Dr. Holloway referred Davis to Dr. William Walker, who gave
the opinion that Davis "is capable of performing sedentary work in
which he can frequently change his position." While Dr. Walker diag-
nosed Davis as suffering from Chronic Pain Syndrome, Pain Amplifi-
cation Syndrome, and Failed Back Surgery Syndrome, he concluded,
"I am unable to determine any concrete pathoanatomical correlates"
to the pain.
In November 1991, after having returned to work for approxi-
mately six months, Davis reported to the shipyard clinic that he had
hurt his back again when he tripped over some boxes in the work
area. Dr. Hall, the shipyard clinic physician and also a board certified
neurologist, prescribed heat and returned Davis to work. In December
1991, Davis was again examined by Dr. McAdam, Davis' original
treating neurologist, who recommended that Davis continue working
as "[h]e does not have a disability that would impair his ability to
work."
Finally, Davis was examined by Dr. John Jane in August 1992,
who reviewed the complete CT myelogram and found"a mild to
moderate disc at C4-5 in a central location . . .[and] a defuse arthritic
spine." He concluded, however, that these findings "do not correlate
with [Davis'] clinical symptoms" and that Davis' "lumbar region
studies were totally within normal limits."
In short, while Davis continued to work and to complain of pain
in his back, five doctors, several of whom he visited for second opin-
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ions, concluded that they could find no objective medical evidence
correlated to Davis' complaints.
On Davis' workers compensation claim for total permanent disabil-
ity, the ALJ conducted a hearing, following which he awarded Davis
benefits. The ALJ found Davis' claim of pain to be credible and con-
cluded that there was objective medical evidence to support the claim.
Apart from Davis' medical history, the ALJ concluded:
[Davis' May 1991 myelogram] showed post-operative
changes [at] L4 and a vacuum effect at L4-L5 and mild cen-
tral disc bulge at L5 (CX-1). He sought out a lumbar myelo-
gram in May of 1991 which is certainly inconsistent with a
man who is not in lower back pain. The CT scan of the lum-
bar spine on May 15, 1991, indicated L4-L5 degenerative
disease without evidence of frank herniation. There was
some anterior spur formation on the lower two lumbar verte-
bral bodies. CX 8 and 9 show Claimant underwent a myelo-
gram on August 4, 1992. Results showed chronic changes
throughout the lumbar spine and a disc bulge at L3-L4,
right-sided spondylosis at L4-L5 and a small disc herniation
at L5-S1. Based upon all of this, I find that the objective
medical evidence does sufficiently substantiate Claimant's
complaint of pain.
On appeal to the Benefits Review Board, the board noted that the
ALJ justified Davis' pain claim based on Davis' testimony and on the
ALJ's conclusion that the claim was "sufficiently substantiated by
various myelogram and CT scan tests results documenting spinal
defects and irregularities."
We review the Board's decision for errors of law and to determine
whether the "substantial evidence" supports the ALJ's factual find-
ings. See, e.g., Pittman Mechanical Contractors, Inc. v. Director,
OWCP, 35 F.3d 122, 127 (4th Cir. 1994); Director, OWCP v. New-
port News Shipbuilding & Dry Dock Co., 8 F.3d 175, 179 (4th Cir.
1993), aff'd, 514 U.S. 122 (1995).
While five doctors presented evidence on Davis' condition, none,
as far as we can determine from the record, supported the conclusions
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reached by the ALJ in his findings of fact about possible physical
sources of Davis' back pain. That is not to say that the ALJ's review
of the myelograms or CT scans is in error. We simply note that the
ALJ has not, to our knowledge, been qualified as a medical expert in
this case and as far as we can tell, his medical findings are unsup-
ported by medical testimony.
Because of Davis' documented medical history and the failure of
the doctors to focus on the aspects relied on by the ALJ to conclude
that objective medical evidence supports Davis' claim of pain, we
think that rather than reverse, it is the better course to vacate the deci-
sion of the Benefits Review Board and remand this case with instruc-
tions to the ALJ either to open the record for further medical evidence
on the objective medical condition of Davis' back that supports or
discredits his pain claim or to dismiss Davis' claim as unsupported by
medical evidence.
IT IS SO ORDERED
MICHAEL, Circuit Judge, dissenting:
I respectfully dissent. The Benefits Review Board has consistently
held that credible complaints of severe pain can form the basis for a
finding of disability under the Longshore and Harbor Workers' Com-
pensation Act. See Miranda v. Excavation Constr., Inc., 13 B.R.B.S.
882, 884 (1981) ("With regard to employer's contention that there is
no objective evidence of a physical impairment, a finding of disability
may be based on claimant's credible complaints of pain alone.");
Richardson v. Safeway Stores, Inc., 14 B.R.B.S. 855, 858 (1982)
("[T]he administrative law judge was correct in concluding that pain
can be a disabling factor."); Harrison v. Todd Pacific Shipyards
Corp., 21 B.R.B.S. 339, 343 (1988) ("When evaluating the evidence,
the administrative law judge may accept or reject the witnesses' testi-
mony and may find that a claimant's credible complaints of pain
alone are sufficient to satisfy his burden of proof."); Anderson v. Todd
Shipyards Corp., 22 B.R.B.S. 20, 21 (1989) ("A claimant's credible
complaints of pain alone may be enough to meet her burden of estab-
lishing disability."). Davis's complaints of severe pain in his lower
back followed the removal of a herniated disc from his spine, his sec-
ond serious back operation in two years. The ALJ found his com-
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plaints to be credible. It was well within the ALJ's scope of discretion
to find that Davis was disabled and to award him benefits. Because
there is no need for further evidence or clarification in this case, I dis-
agree with the majority's order of remand and therefore dissent.
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