UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEARNEY J. FOX,

Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND

No. 96-2617

DRY DOCK 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.

(95-1935)

Submitted: May 6, 1997

Decided: May 29, 1997

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gregory E. Camden, RUTTER & MONTAGNA, L.L.P., Norfolk,

Virginia, for Petitioner. Benjamin M. Mason, MASON & MASON,

P.C., Newport News, Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Kearney Fox appeals an order of the Benefits Review Board

affirming the Administrative Law Judge's (ALJ) decision denying

benefits on a claim filed under the Longshore and Harbor Workers'

Compensation Act (LHWCA).1 Fox contends that the ALJ erred in

denying him permanent partial disability for an injury to his back sustained while he worked as a third class mechanic welder for Newport

News Shipbuilding and Dry Dock Co. (Newport News). Because substantial evidence supports the findings of the ALJ, 2 we affirm the

order of the Benefits Review Board.

To qualify for disability benefits under the LHWCA, Fox must

establish his inability to return to his regular and usual employment.3

While Newport News did not dispute that Fox was unable to return

to his duties as a welder in the shipyard, Newport News rebutted the

presumption of disability by showing that suitable alternative employment was available to Fox.4 Specifically, the ALJ found that considering Fox's age, background, employment history and experience, and

physical capabilities,5 Fox's employment as a mig welder with O&K

Escalators constituted suitable alternative employment. We are not

persuaded by Fox's arguments that his employment with O&K was

the result of employer beneficence or Fox's "extraordinary effort."

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1 33 U.S.C.A. § 901-950 (West 1986 & Supp. 1997).

2 See 33 U.S.C. § 921(b)(3) (1994); Newport News Shipbuilding & Dry

Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988).

3 See Tann, 841 F.2d at 542.

4 See id.

5 See Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201

(4th Cir. 1984) (quoting New Orleans (Gulfwide) Stevedores v. Turner,

661 F.2d 1031, 1042-43 (5th Cir. 1981)).

 2
Additionally, the ALJ found Fox's allegations of disabling pain not

credible. None of the medical opinions presented in this case supported Fox's continued allegations of pain. Further, none of the several and varied medical tests performed after Fox returned to work

full-time substantiated Fox's complaints. Moreover, the ALJ found

that Fox engaged in rigorous physical activity that was inconsistent

with Fox's claim of disabling pain. While Fox claims he can tolerate

the pain for short periods of intense physical activity but not a full

eight hour work day, this court must defer to the ALJ's credibility

determinations and inferences from the evidence. 6 In short, the ALJ's

determination to deny Fox permanent partial disability is rational and

supported by the record as a whole.

Accordingly, the Benefits Review Board's decision to affirm the

ALJ is hereby affirmed. 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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6 See Tann, 841 F.2d at 543; see also Kellough v. Heckler, 785 F.2d

1147, 1150 n.3 (4th Cir. 1986) (appellate deference accorded to ALJ's

findings of fact).

 3