### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60927 Summary Calendar

CERES GULF, INCORPORATED,
Petitioner
v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; MARSHALL JACKSON, Respondents

Petition For Review of an Order of The Benefits Review Board

(12-0124)

Before REAVLEY, JOLLY, DAVIS, Circuit Judges. PER CURIAM: * This case is on review of a judgment of the United States Department of L ab o r ’ s Benefits Review B oard (the “BRB”), affirming a decision of an administrative law judge (the “ALJ”). The ALJ h eld that Claimant Marshall Jackson (“Jackson”) was at m aximum medical improvement and entitled to

c o m p e n s ation for a permanent hearing loss. S pecifically, Ceres Gulf, In c . (“ C e r e s U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May24, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60927 Document: 00512253229 Page: 1 Date Filed: 05/24/2013No. 12-60927

Gulf”) contends t h at the ALJ erred because Jackson was n ot at maximum medical improvement as surgery could substantially improv e J ackson’s hearing, that the ALJ erred in averaging the r esults of two of Jackson’s audiograms (hearing t e sts), and that the ALJ failed to properly address all evidence presented at trial. Finding n o error, we affirm for the reasons more ful ly set forth below. I. This appeal i nvolves Jackson’s c laim for h earing loss u nder the Longshore Harbor Workers’ Compensation Act, 33 U

. S

. C

. § 9 0 8 (c) ( 1 3)

. J a c k son, who worked

as a longshoreman for eighteen years, operated heavy equipment and was exposed to loud machinery noises during his employ. The Department of Labor a ppointed Dr. Marks, an o tolaryngologist, as an independent medical e xaminer in this case. Dr. Marks t e sted J ackson’s hearing loss twice. This testing showed m oderate sensorineural b ilateral hearing loss, and s ome portion o f this loss was attributed to a conductive impairment. The first audiogram Dr. Marks conducted on November 20, 2009, showed Jackson had 56% hearing impairment; Dr. Marks’s second audiogram of Jackson on May 2 5 , 2 0 1 0 , showed 39.6% hearing impairment. Dr. Marks characterized the results of the two tests as “virtually i d entical.” Dr. Marks testified that it would require surgical exploration of the ear to determine if surgery would correct any portion of Jackson’s impairment; thus, Dr. Marks found Jackson’s impairment permanent and best treated with the use of hearing aids.

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Jackson also h ad his h earing tested by Daniel Bo d e , a licensed clinical audiologist 1 ; Dr. Seidemann, Ph.D. 2 ; and Dr. Sanborn, Au.D. 3 After a hearing on February 4, 2011, the ALJ reviewed all a udiograms and testin g p e r f

o rmed b y the four experts and chose to most credit Dr. Marks. In crediting Dr. Marks, the ALJ found that J ackson suffered a permanent loss and

was at maximum m edical improvement. The ALJ, find i n g both audiograms conducted by Dr. Marks reliable, averaged the results of the two tests to conclude that Jackson suffered a 47.8% binaural loss.
II. We must affirm the decision o f t h e B e n e f i t s R e vi e w B o a r d if it has correctly concluded that th e d e c i s i o n of the ALJ is “supported b y substantial evidence on the r ecord as a whole and is in accordance with the law.” Diamond M. Drilling Co. v . M

arshall , 577 F.2d 1003, 1005 (5th Cir. 1 97 8 )

. “ S u b stantial evidence” is evidence that provides a “substantial b a s i s o f fact f rom which the fact in issue can be reasonably inferred.” I d. at 1006 (quoting N LRB v . Columbian Enameling & Stamping Co. , 306 U.S. 2 92, 299 (1939)). Further, “the [ALJ] alone is charged with the duty of selecting the inference which seems most reasonable and his choice, if supported by the evidence, may n ot be disturbed.” Fulks v. A v ondale Shipyards, Inc. , 637 F.2d 1008, 1011 (5th Cir. 1981) (quoting Presley v. Tinsley Maint. Serv. , 529 F.2d 433, 436 (5th Cir. 1976)).

1 Bod e conclud ed that Jack s o n had a bilateral, w ork nois e- ind uced s enos rineural hearing los s and founda 39. 8% binaural im p airm ent.

2 D r. Seid em ann tw ice perf orm ed aud iological evaluations on Jack s on and conclud ed that he s uf

f ered f rom a m ild , bilateral s ens orineural hearing los s , f irs t m eas ured at 2. 8% and then at 4. 7%

.

3 D r. Sanborn, a clinical aud iologis t, cond ucted an audiological brains tem res p ons e evaluation, w hich s he c o n c l u d e d s up p orted the p res ence of m od erate to s ignif icant s ens orineural hearing los s . 3 Case: 12-60927 Document: 00512253229 Page: 3 Date Filed: 05/24/2013No. 12-60927 III. A

. Ceres Gulf first argues that Jackson is not entitled to benefits b ecause he has not reached maximum medical improvement (“MMI”). Awarding be n e f

i t s u nder the Longshore Act f or a scheduled injury first requires finding that the claimant is at MM I. S GS Control Servs. v. DOWCP, 86 F.3d 438, 443 (5th Cir. 1996). A medical expert then prescribes an impairment rating, a nd the court u ses such ratings to determine the scope of compensation for scheduled injuries. See 33 U.S.C. § 908(c)(13)(E). Ceres Gulf contends there i s a factual dispute as to whether Jackson has achieved MMI because Dr. Marks found a conductive component to Jackson’s hearing loss. All the experts in this c ase agree that when a claimant s uffers from a conductive loss, the possibility exists that the loss can be corrected. The ALJ relied on Dr. Marks’s o p i n i o n in finding that while Jackson suffered from a conductive loss, Jackson was at MMI and that no treatment b eyond amplification was appropriate. While Dr. Marks testified that t h e conductive p ortion of Jackson’s loss could “theoretically” b e improved through medication or surgery, a doctor would have to first preform an exploratory surgery t o preliminarily evaluate if f u rthe r surgical intervention could correct Jackson’s conductive l oss . I n l i gh t of this, Dr. M arks ultimately o pined that hearing aids were the best f orm o f treatment f

or J ackson’s condition. The other experts agreed that surgery could potentially correct a portion of Jackson’s loss, but those s ame experts admitted they w ould defer to the opini o n of a medical doctor to determine when such intervention is appropriate. When surgery is not anticipated, or if the p rogn o s i s a f t e r surgery is uncertain, the claimant’s condition may be considered permanent. Bunge Corp.

v. C arlisle , 227 F.3d 934, 940 (7th Cir. 2000). Further, if recovery after surgery is uncertain o r unknown, a disability may still b e found permanent. E x xon Corp.

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v. W hite , 9 BRBS 138, 142 (1978), aff’d mem. , 617 F.2d 292 (5th Cir. 1980). Thus,

even where experts disagree over the b enefit of surgery or where an expert acknowledges a surgery may be beneficial, a finding of MMI is not precluded. Here the ALJ credited Dr. Marks’s op i ni o n a n d c o nc lu d ed that s urgery was not a nticipated and that Jackson’s loss was permanent in nature. Finding that this conclusion i s supported by substantial evidence, we affirm the ALJ’s finding that Jackson suffered a permanent loss. B. Ceres Gulf next alleges that the ALJ erred a s a matter of law in averaging the results of the two audiograms that Dr. Marks performed on Jackson. The ALJ reviewed five audiogr a m s a n d the opinions o f four experts and found Dr. M arks’s opinion regarding Jackson’s loss m ost credible. In finding Dr. Marks most credible, the ALJ averaged results derived from Dr. M arks’s two audiogram s

— 56% hearing i mpairment and 3 9.6% hearing i m pairment—to determine the extent of Jackson’s hearing loss was 47.8%. Ceres Gulf c ontends that the results of D r . M arks’s two tests were not within the acceptab l e t e s t/retest v ariance of each other. Yet the Guide for Con s ervation of Hearing and Noise produced by the American Academy of Otolaryngology provides that if two “audiograms agree within 1 0 [ d ecibels] at four or more of the a udiometric frequencies (.5, 1 , 2, 3, 4, 6, and 8 k Hz), they m ay be c onsidered consistent.” As Dr. Marks’s two audiograms yielded results that

were w ithin 5 decibels at a majority of the given frequencies and more than four of these seven frequencies yielded results that w ere w i thin the 1 0 decibel threshold, the results met this standard of consistency. While a dmittedly t h e G u i d e for Conservation of Hearing and Noise suggests that the audiogram that yields the smallest number should be accepted

as representing an individual’s hearing, the ALJ, finding both of Dr. M a r k s’s audiograms reliable, instead chose to average the results.

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Ceres Gulf contends that the ALJ c ommitted legal error in averaging the

re s u l t s of Dr. Marks’s audiograms because under DOWCP v. Greenwich Collieries , 512 U.S. 267 (1994), the claimant bears the b urden of proving that he is disabled a nd if the evidence is equal the claimant must lose. Further, Ceres Gulf argues that Ceres Marine T erminals, Inc. v. Green , 656 F.3d 2 35 (4th Cir. 2011) s tands for the proposition that audiogram results may not be averaged. In Ceres Marine T

e r m i n als , the Fourth C ircuit stated, “[W]hen there is contradictory, equally probative evidence as to whether a di sability exists at all,

an ALJ cannot average a ‘zero’ result w i t h a h i gher result to f ind a disability exists.” Id. at 241 n.2. We find Ceres Marine easily distinguishable from the case at hand a s it involved an ALJ averaging the results of two a udiograms to find that a disability existed when one audiogram yielded a zero result. In fact, the Fourth Circuit explicitly stated: “[W]e do not take the position that an ALJ can
never average ev i d e n c e p resented by two m edical professionals to make a determination as to the e xtent of disability.” Id. Thus we are n ot convinced that the ALJ erred in averaging the results of Dr. Marks’s audiograms.
C

. Finally, Ceres Gulf argues that the ALJ’s decision does n ot comport with the Administrative Procedure Act b ecause the ALJ did not discuss all the evidence before him and failed to explain why h e r ejected evidence that was contrary to his findings of fact. This argument is w ithout merit. While the ALJ i s r e q u ired t o address e ach issue w ith substantial evidence, the ALJ is not required to address each conflicting fact. See H.B. Zachary Co. v. Quinones , 206 F.3d 474, 480 (5th Cir. 2000). Contrary to Ceres Gulf’s assertion, the ALJ in a thorough and l engthy opinion supported h is findings with de t ail e d evi d e nc e f ro m the record and addressed each expert’s findings in turn.

IV.

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Accordingly, the decision of the Benefits Review Board is AFFIRMED.

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