UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES D. GRIFFITH,

Petitioner,

v.

BETHLEHEM STEEL CORPORATION;

No. 96-2277

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(95-1477)

Submitted: November 18, 1997

Decided: December 3, 1997

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael C. Eisenstein, Baltimore, Maryland, for Petitioner. Heather

Holt Kraus, Stuart M. Lesser, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James Griffith appeals from a decision of the Benefits Review

Board ("Board") affirming by operation of law the administrative law

judge's ("ALJ") decision to deny his application for disability benefits

under the Longshore and Harbor Workers' Compensation Act, 33

U.S.C.A. § 901-950 (West 1986 & Supp. 1997). Pursuant to the

Omnibus Consolidated Recessions and Appropriations Act of 1996,

Pub. L. No. 104-134, § 101(d), 110 Stat. 1321, 1321-29 (1996), the

Board automatically affirmed the ALJ's decision by failing to act on

the appeal within one year of the date Griffith appealed to the Board.

The parties agree that Griffith suffered a work-related injury when, on

March 1, 1994, he fell backward several feet off of one pipe onto

another. Griffith testified that he fell on his back and neck, injuring

his left leg, left knee, left hip, lower back, and neck. He sought temporary total disability benefits from March 24, 1994, and continuing.

The ALJ determined that Griffith's injury did not impair his ability

to work "even temporarily." He determined that Griffith was "a practiced malingerer," having previously collected benefits for eight

months in 1991 for a pulled muscle injury, and having presented a

very similar set of complaints in that case. Relying primarily on the

dearth of objective evidence Griffith submitted to support his claim,

the findings of several physicians who could find no organic basis for

Griffith's complaints and opined that Griffith was embellishing his

complaints, together with surveillance tapes of Griffith engaging in

normal activities away from work, the ALJ concluded that Griffith

had fooled several doctors who found him disabled based on

Griffith's subjective complaints. Accordingly, benefits were denied.

On appeal, Griffith takes issue with the ALJ's characterization of

virtually every piece of evidence in the record in support of his position that the overall record fails to support the ALJ's finding of no

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disability. He first challenges the ALJ's summary of the findings of

the medical personnel who treated Griffith immediately after the accident, arguing that he ignored important information corroborative of

Griffith's claims of injury, such as the ambulance crew's notation of

"pelvis on palp (pain)" at the "lower left extremity," and a hospital

emergency room record noting a "positive anterior drawer sign of the

anterior ligament." He also claims that the ALJ ignored "objective"

medical findings by physicians who examined him within one week

of his injury and diagnosed pain and tenderness, prescribed crutches,

pain medication, and a knee immobilizer.

Initially, we note that there is no dispute that Griffith suffered a

soft tissue injury on March 1, 1994. Even assuming that the notations

of medical personnel who examined and treated Griffith provide "objective" evidence of some injury, such evidence does not undercut the

ALJ's conclusion that Griffith was not disabled by his injury or injuries. In finding no disability, the ALJ found pertinent, among other

factors, the relative lack of objective evidence supporting Griffith's

subjective complaints. Contrary to Griffith's contentions, the record

supports the ALJ's characterization of the medical evidence.

Griffith relies heavily on two laboratory studies tending to support

his claim. The first is a nerve conduction study conducted on April

4, 1994, by Dr. Sellman. Dr. Sellman characterized the results of the

study as "mildly abnormal." He stated that"[t]he findings suggest the

presence of a mild left L5 or possibly S1 radiculopathy. These findings would help to explain the persistent complaints of low back pain

radiating down the left leg." The other study, a CT scan performed by

Dr. Stofberg on June 24, 1994, revealed a "central bulging of the

annulus fibrosis, more so to the left," at the L5-S1 level, which "appears to be minimally impinging upon the nerve as it emerges from

the thecal sac." Dr. Stofberg concluded that the study was "suggestive

for a small focal herniation of the intervertebral disc at L5-S1, centrally to the left."

Dr. Stofberg's CT scan was contrary to a CT scan conducted on

March 14, 1994, only days after the accident, which showed no abnormalities. Moreover, Dr. Wenzlaff, an orthopedic surgeon, sharply

criticized the nerve conduction study, stating that Dr. Stofberg found

bulging on the left side based on numbers relating exclusively to the

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left side, but that to have a valid study the physician must compare

the results of the left side to the right side. He further opined that, in

his opinion, the results obtained on the left side were within normal

limits in any event.

Employer also submitted into evidence an article from the New

England Journal of Medicine discussing the fact that objective tests

commonly show mild disc bulges in patients with no symptoms. Dr.

Kan, an orthopedic surgeon who found Griffith disabled, conceded

the validity of the article's conclusions. Moreover, there is no dispute

among the physicians of record that Griffith's tests could not support

a diagnosis of disc herniation without clinical correlation. While Griffith's brief argues that Dr. Stofberg's report notes that "clinical correlation is indicated," physicians for both the claimant and the employer

testified that this medical language merely indicates that objective

findings should be clinically correlated, not that they have been clinically correlated.

As with the objective evidence, the evidence of clinical correlation

was in conflict. Such evidence consists of the levels of pain, weakness, and movement restrictions experienced by the patient. Dr. Kan

conceded that physicians must largely rely on what the patient tells

them in making their clinical findings. That is the rub in this case. The

ALJ found that he could not credit Griffith's doctors' findings of disability because he believed that Griffith misled them about his symptoms, tainting their diagnoses.

An ALJ's factual findings must be affirmed if they are supported

by substantial evidence. 33 U.S.C. § 921(b)(3) (1994); See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

"We must defer to the ALJ's credibility determinations and inferences

from the evidence, despite our perception of other, more reasonable

conclusions from the evidence." See 36 F.3d at 380. In this case,

abundant evidence supports the ALJ's factual findings. Perhaps most

damaging to Griffith's case were the surveillance tapes, taken on several different days, of his activities away from work. As the ALJ

stated:

If there is any doubt of the nature of claimant's condition,

it is resolved by the surveillance film. At the very time

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claimant was complaining of disability, he was able to walk,

bend, climb steps without any evidence of disability. While

at home, he demonstrated his ability for normal physical

activity. He did not use a cane, and there was no perceptible

limitation on his movements. He developed limitations only

when promoting his claim for total disability: the limp, the

cane, and the complaints were acted out for the doctors,

opposing lawyers, and for the court.

The ALJ discussed the films in more detail elsewhere in his opinion.

The tapes flatly contradicted Griffith's testimony at the hearing and

statements to doctors that he needed a cane to walk. The tapes captured him walking through his neighborhood and negotiating steps

with normal posture and gait, without evidence of pain. As the ALJ

noted, "he did not limp, he did not use a cane, and he moved with

agility." Still more damaging to Griffith's credibility, the tapes

showed him entering and exiting the offices of doctors and lawyers

using the cane as though it were necessary to support himself, but

then discarding it and moving normally as soon as he returned home.

The tapes also belied Griffith's claims of pain and range of motion

restriction in his back, as they depicted him bending and stooping

without any apparent difficulty. Further undercutting his credibility

were the inconsistent and sometimes inexplicable subjective complaints he reported to his doctors. For example, Griffith's performance on straight-leg raising tests varied greatly from physician to

physician, and Griffith was able to raise his leg from a sitting position, but not from a horizontal position, for Dr. Wenzlaff, who stated

that his ability should have been the same from both positions. Griffith also told physicians that he was unable to ambulate on either his

heel or his toes, but his physicians explained that disk herniation

should effect only one or the other.

Finally, the ALJ noted the similarity of this case to a prior workers'

compensation claim Griffith filed based on a 1990 injury. In that

claim, Griffith missed eight months of work due to complaints of

back pain similar to those alleged in this case. In that case, he convinced a physician that he was permanently disabled based on his

subjective complaints, for what he in retrospect described as a pulled

muscle having no residual effects.

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We must respect the ALJ's credibility determinations. In this case,

those credibility determinations provide ample support for his factual

determination that Griffith was dishonest with his physicians, undermining the credibility of their reports. Because substantial evidence

supports the ALJ's finding of no disability, the decision of the Board

is 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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