* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 01-60638

(Summary Calendar)

_________________

NEW ORLEANS STEVEDORING COMPANY; SIGNAL

MUTUAL INDEMNITY COMPANY,

Petitioners,

versus

WILFORD NAILER; DIRECTOR, OFFICE OF WORKER’S

COMPENSATION PROGRAMS, U S DEPARTMENT OF LABOR,

Respondents.

Petition for Review of a Final Order of the

Benefits Review Board

BRB No. 00-0985

April 1, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

New Orleans Stevedoring Co. and Signal Mutual Indemnity Assn., Ltd. (collectively,-2-

“Petitioners”) appeal from a decision by the Benefits Review Board (“BRB”) of the United States

Department of Labor concerning benefits awarded to Wilford Nailer pursuant to the Longshore and

Harbor Worker s’ Co mpensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. On appeal, we must

determine whether the BRB’s decision affirming the finding of the Administrative Law Judge (“ALJ”)

that Nailer is permanently and totally disabled is supported by substantial evidence.

In reviewing a decision of the BRB, we consider only whether the BRB correctly found that

the ALJ’s findings of fact were supported by substantial evidence and consistent with law. L a. Ins.

Guar. Ass’n v. Bunol

, 211 F.3d 294, 296 (5th Cir. 2000). “The findings of the ALJ must be accepted

unless they are not supported by substantial evidence in the record considered as a whole or unless

they are irrational.” Mijangos v. Avondale Shipyards, Inc. , 948 F.2d 941, 944 (5th Cir. 1991).

Nailer was employed by New Orleans Stevedoring Co. as a longshorema n when he was

injured during the course of his employment. Nailer was loading containers in the hold of a vessel

when a thousand-pound jack began to roll and pinned him under a pallet board. As a result, Nailer

sustained testicular and back injuries. Although the testicular injury healed within a few months, and

an initial orthopedic examination revealed no objective evidence of a back injury, Nailer’s back

continued to bother him and he sought treatment from an orthopedic surgeon, Dr. Bi l l i ngs. Dr.

Billings treated Nailer for the next two years, concluding that he suffered from symptoms consistent

with nerve root irritation exacerbated by arthritic changes. At the time of his injury, Nailer was 57

years old, with an approximate IQ of 59 (mildly mentally retarded), and a sixth-grade education. He

is functionally illiterate. Nailer has held previous positions as a freighthandler, longshoreman,

construction worker, truckdriver, skycap, gas station attendant, and bulldozer operator. From the

time of his injury until the hearing before the ALJ, Nailer received temporary total disabilit y payments,-3-

and then permanent partial disability payments, from his employer.

The Petitioners allege that the ALJ erred in finding Nailer to be totally and permanently

disabled, as opposed to part ially and permanently disabled. S ee 33 U.S.C. § 908(a) & (c) (West

2001). In order to make out a prima facie case of total disability, a claimant must show he is unable

to return to his former employment due to his injury. N ew Orleans (Gulfw ide) Stevedores v. Turner

,

661 F.2d 1031, 1041 (1981). Once a prima facie case is shown, the burden shifts to the claimant’s

employer to establish the existence of suitable alternative employment. I d. Such a showing will

def e at a claim of total disabilit y. The claimant must have a realistic opportunity to obtain such

alternative employment, based on factors such as claimant’s age, education, work history, and mental

and physical capacities. Id. at 1042. The ALJ found that Nailer had established his prima facie case

of total disabilit y, and that the Petition ers had failed to show the availability of suitable alternative

employment, and therefore concluded that Nailer was totally and permanently disabled.

The part ies agree that Nailer has established a prima facie case of total disability, as he is

unable to return to his former work as a l ongshoreman. At the hearing, the parties presented

conflicting evidence about the availabilit y of alternative employment. Petitioners presented evidence,

based on a labor market survey conducted by their vocational specialist, that eight alternative jobs

were available, including positions as a sorter, se wing machine operator, embroidery machine

operator, linen attendant, and assembler. Nailer’s own vocational expert reviewed these positions

and concluded that only one, a part-time park ing lo t attendant position, might be appropriate,

although he was skeptical that Nailer would be able to handle the responsibi lit y of handling cash

payments. He dismissed the other positions, even though several of them had been initially approved

by Dr. Billings, because they required fine manual dexterity skills, long work hours (over six hours),-4-

literacy skills, a high-school diploma, or extended periods of sitting or standing. Nailer’s expert also

stated that if Nailer’s severe chronic pain persisted, he would be unable to retain any job.

In addition, the ALJ considered the testimony of severa l physicians. Dr. Billings testified

about Nailer’s condition and treatment, and the limitations he had placed on Nail er’s future

employment. Specifically, the doctor stated that Nailer could not perform repetitive lifting, bending

or stooping, could not drive while on pain medication if it made him sleepy, and could not stand or

sit for a period longer than three hours. The urologist who treated Nailer’s groin injury also testified,

along with the orthopedist who init ially saw Nailer, and who found no objective evidence of a back

injury. Finally, Nailer himself testified about the severe and ongoing pain he had experienced, which

prevented him from working and required high doses of pain medication.

After considering all of the evidence, the ALJ found that the Petitioners’ vocational specialist

did not take all of Nailer’s limitations into account when compiling the list of suitable alternative jobs.

In particular, the ALJ concluded that the “[vocational expert’s] labor market survey did not take into

consideration limitations placed on [Nailer’s] capacity to work by [his physician] as well as [Nailer’s]

significant cognitive limitations.” Not only did the proposed jobs require the development of new

skills, they were, with one exception, full-t ime positions which would exceed the time limit s for sitting

and standing placed on Nailer by his doctor. The ALJ also relied on Nailer’s testimony that he was

in constant pain, which was supported by the medical evidence presented by Dr. Billings. The ALJ

ultimately determined that the Petitioners had failed to carry their burden in demo nstrating the

availabilit y of suitable alternative work, and found Nailer t o be permanently and totally disabled.

We find the ALJ’s conclusion to be supported by the substantial evidence in the record as a-5-

whole. The ALJ wrote a careful and thorough opinion, in which he considered the expert testimony

presented by both parties as well as Nailer’s own testimony, along with the medical evidence. S ee

Mendoza v. Marine Pers. Co., Inc.

, 46 F.3d 498, 500 (5th Cir. 19 95) (stati ng that the ALJ’s

“selection among inferences is conclusive if supported by the evidence and the law”). The ALJ

properly took into account whether Nailer had the requisite mental ability and skills to successfully

perform the required work when evaluating the Petition ers’ evidence of suitable alternative

employment. S ee Ledet v. Phillips Petroleum Co.

, 163 F.3d 901, 905 (5th Cir. 1998). His

conclusion, in light of the evide nce presented about the available alternate positions and their

requirements, and about Nailer’s physical and mental limitations, was not unreasonable.

Moreover, we agree with the BRB’s conclusion that even if the Petitioners had successfully

established that Nailer was capable of obtaining other employment, a finding of constant debilitating

pain can support a finding of total disabilit y

. M ijangos

, 948 F.2d at 944-45 (holding credible

testimony of pain

can warrant an award of compensation even if a claimant might be physically

capable of performing certain types of work activity). Nailer testified that he was in constant pain,

and was unable to work as a result. The ALJ credited this testimony, and we are not permitted to

reevaluate such credibility determinations. Id. a t 945 (reversing BRB when it attempted to disregard

credibility determinations of ALJ on review).

We conclude that the finding of total and permanent disabilit y is supported by substantial

evidence in this case, and AFFIRM the decision of the BRB.