                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-1967



NEWPORT NEWS    SHIPBUILDING      AND   DRY   DOCK
COMPANY,

                                                           Petitioner,

           versus


MELVIN DAVIS; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

                                                          Respondents.



                               No. 05-1998



MELVIN DAVIS,

                                                           Petitioner,

           versus


NEWPORT NEWS SHIPBUILDING AND DRY DOCK
COMPANY;   DIRECTOR,   OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

                                                          Respondents.



On Petitions for Review of an Order of the Benefits Review Board.
(03-184)


Argued:   September 20, 2006              Decided:   October 31, 2006
Before WILKINS, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Petitions denied by unpublished per curiam opinion.


ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER & HEDRICK,
P.C., Newport News, Virginia, for Petitioner/Cross-Respondent
Newport News Shipbuilding and Dry Dock Company. Gregory Edward
Camden, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia, for
Respondent/Cross-Petitioner Melvin Davis.     ON BRIEF: Charlene
Parker Brown, MONTAGNA, KLEIN, CAMDEN, L.L.P., Norfolk, Virginia,
for Respondent/Cross-Petitioner Melvin Davis.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

        Newport News Shipbuilding and Dry Dock Company (“the Company”)

petitions for review of an order of the Benefits Review Board

(Board) affirming the finding of an administrative law judge (ALJ)

that Melvin Davis’ occupational back injury caused a permanent

disability, thus entitling Davis to benefits under the Longshore

and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901–950 (West

2001 & Supp. 2006). Because the challenged finding is supported by

substantial evidence, we deny the petition.



                                   I.

     Davis was employed by the Company in its shipyard from 1971 to

1989.     While working as a crane operator in March 1987, Davis

injured his back when he attempted to move a hook and chain

weighing approximately 50 pounds. Davis reported the injury to his

supervisor and later went to the Company’s medical clinic.

     After initially treating Davis, the clinic doctor advised him

to consult an outside physician.        Davis contacted Dr. James L.

Phillips, an orthopedist who began treating Davis.           Based on

numerous examinations of Davis and Davis’ continuing complaints of

back pain, Dr. Phillips ultimately diagnosed Davis with chronic

back strain and placed him on various work restrictions, including

limitations on lifting, bending, and stooping.




                                   3
       Although Davis returned to work intermittently after his

injury, he was terminated in May 1989 because the Company did not

have work available to him within his restrictions.                   Based on

stipulations by Davis and the Company, the District Director of the

Office of Workers’ Compensation Programs issued a compensation

order in October 1990 awarding Davis benefits for various periods

of    temporary   total   and   partial    disability,    including    ongoing

payments of temporary total disability benefits until Davis was

able to return to work.         Thereafter, the Company paid benefits to

Davis in accordance with the compensation order.

       In June 1995, the Company moved to modify the compensation

order, see 33 U.S.C.A. § 922, claiming that Davis was able to work

20 hours per week and therefore was entitled only to temporary

partial disability benefits.        Davis asserted, however, that he was

permanently and totally disabled.          After an informal conference, a

claims examiner recommended granting the Company’s request for

modification.

       In 1999--apparently before any ruling on its original request

for    modification--the        Company    asserted   a    new   basis     for

modification, namely, that Davis’ 1987 back injury had long since

healed and thus was not the cause of his disability.             The Company

based this argument on opinions from other physicians indicating

that Davis’ back injury should have healed quickly and that there

was no objective medical evidence of a continuing disability


                                       4
resulting from the injury.         The Company therefore claimed that

Davis was not entitled to benefits for any period after the October

1990 order.   Further, the Company argued that even if causation

were established, Davis could perform his pre-injury job as of

October 1990, or alternatively, that he was only partially disabled

and could perform suitable alternate employment.

      In April 2000, the ALJ conducted a hearing on the Company’s

request for modification.     The ALJ subsequently issued an order

finding, inter alia, that Davis’ 1987 back injury was the cause of

his disability.     After reviewing in detail the medical evidence,

the ALJ rejected the Company’s causation argument:

      [I]t is noted that neither in 1990 nor 1995 did the
      [Company]   challenge   causation  regarding existing
      findings. Regardless, these non[-]treating physicians
      mainly examined [Davis] on a one-time basis while
      Dr. Phillips provided continuing treatment.    Davis’
      complaints remained constant and I do not find a
      reasonable basis on which to conclude that symptoms
      completely resolved from the 1987 injury.

J.A. 252.     Addressing the Company’s second argument, the ALJ

determined that Davis could no longer perform his pre-injury work

but that he was capable of performing light-duty work.          Thus, the

ALJ ordered the Company, inter alia, to pay Davis permanent partial

disability benefits on a continuing basis.

      The Company moved for reconsideration of the ALJ’s order,

reiterating its claim that Davis’ 1987 injury was not the cause of

his   disability.      The   ALJ    denied   reconsideration.      While



                                     5
acknowledging certain weaknesses in Davis’ causation evidence, the

ALJ found no basis for changing his prior ruling:

          The major argument for [Davis] in this case is the
     consistency of the complaints of pain. However, since
     1990 the only physician who has felt that there has been
     an ongoing process is Dr. Phillips. The opinions from
     this physician are inconsistent and vary widely.

          As the [Company] has noted Dr. Phillips reported on
     January 22, 1993 that [Davis] had no objective impairment
     and no further need for medical treatment. In September
     of that year the physician stated that Davis could work
     four hours a day, and the procedure at the District
     Director level in 1995 appears to follow that
     recommendation.

          Ultimately, the undersigned concludes that the
     [Company] almost totally mismanaged this case from 1987
     through at least 1995. The [Company’s] current arguments
     may have some merit and Davis’ complaints may be somewhat
     implausible, but I find no reason to change the decision
     in   light   of  statements    from  [Davis]   and   from
     Dr. Phillips.

Id. at 301.

     The Company then appealed the ALJ’s rulings to the Board.   In

March 2002, the Board affirmed the ALJ’s finding of causation,

explaining that the ALJ “discussed the medical evidence in detail,

noted the qualifications and bases of all physicians’ opinions, and

acted within his discretion in relying on Dr. Phillips’s opinion as

[Davis’] treating physician.”   Id. at 414.   The Board remanded the

case to the ALJ, however, to reconsider when suitable alternate

employment was first available to Davis. After further analysis on

remand, the ALJ adhered to its earlier finding concerning alternate

employment.   But, after a second appeal, the Board again remanded


                                 6
for further consideration of this issue.             The ALJ once again

adhered to its earlier ruling on remand; after a third appeal, the

Board affirmed the ALJ’s ruling.



                                   II.

       The Company challenges the ALJ’s finding, affirmed by the

Board, that Davis’ 1987 occupational back injury was the cause of

his disability after October 1990.              See 33 U.S.C.A. § 903(a)

(providing that maritime employees may recover disability benefits

“only if the disability ... results from an injury occurring upon

[or adjacent to] the navigable waters of the United States”).               In

reviewing the Board decision, we must determine “whether the Board

observed its statutorily-mandated standard for reviewing the ALJ’s

factual findings.”      Newport News Shipbuilding & Dry Dock Co. v.

Stallings, 250 F.3d 868, 871 (4th Cir. 2001) (internal quotation

marks omitted).      That standard requires the Board to determine

whether the ALJ’s factual findings are “supported by substantial

evidence in the record considered as a whole.”                33 U.S.C.A.

§ 921(b)(3).      Substantial evidence is “more than a scintilla but

less   than   a   preponderance,   and   such    relevant   evidence   as   a

reasonable mind might accept as adequate to support a conclusion.”

Norfolk Shipbuilding & DryDock Corp. v. Faulk, 228 F.3d 378, 380-81

(4th Cir. 2000) (per curiam) (internal quotation marks & citation

omitted).     Further, the ALJ’s findings “may not be disregarded on


                                    7
the basis that other inferences might have been more reasonable.

Deference     must      be   given     the      fact-finder’s         inferences      and

credibility assessments, and we have emphasized the scope of review

of ALJ findings is limited.”           Newport News Shipbuilding & Dry Dock

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

      The   Company      argues      that       the   ALJ     erred     in     crediting

Dr.   Phillips’      opinion    over    the       contrary      opinions       of    other

physicians.        As    the   Company          points   out,    and     as    the     ALJ

acknowledged, Dr. Phillips’ diagnosis of Davis’ condition and the

work restrictions he assigned to Davis varied over the course of

Davis’ treatment.        Nevertheless, the record as a whole reflects a

continuous belief by Dr. Phillips that Davis sustained an ongoing

disability as a result of his 1987 injury.                   This belief was based

on Dr. Phillips’ many physical examinations of Davis--beginning

shortly after his injury and continuing over several years--and on

Davis’ recurring complaints of back pain.                    Although Dr. Phillips’

precise diagnosis of Davis’ back problem varied somewhat, the

record indicates that Dr. Phillips eventually settled on a primary

diagnosis     of   chronic     back     strain        with    radicular        symptoms.

See, e.g., J.A. 603 (letter from Dr. Phillips stating that “Mr.

Davis has a 20% permanent whole body disability as the result of

chronic back strain with radicular symptoms which are caused by

lifting a heavy chain and hook at work on 3/11/87”).                          And, while

the specific work restrictions that Dr. Phillips imposed on Davis


                                            8
varied over time, Dr. Phillips apparently maintained restrictions

throughout his treatment of Davis.

     To be sure, the record contains significant evidence from

other physicians indicating that Davis’ 1987 injury was not the

cause of his alleged disability. For example, Dr. James E. Lesnick

observed, after examining Davis, that “he has no physical signs nor

studies to corroborate his complaint of pain.”         Id. at 677.

Dr. Richard K. Neal opined that Davis’ 1987 injury “consisted of a

low back muscular strain injury,” that Davis “should have made a

good and complete recovery from this injury by July 1, 1987,” and

that he had no “permanent disability secondary to his injury at

work of March 11, 1987.”   Id. at 687.   Dr. Neal also stated that,

based on the objective evidence of Davis’ condition, his subjective

complaints of pain were “markedly exaggerated.”    Id. at 688.   And,

Dr. Felix M. Kirven observed that Davis had “no objective evidence”

to support his complaints of back pain but did have “a multitude of

signs of symptom magnification.”     Id. at 878.    Dr. Kirven thus

determined that Davis had “no permanent nor partial disability as

it relates to the March 11, 1987 back injury.”     Id. at 879.

     Despite this contrary evidence, we conclude that the ALJ acted

within its discretion in crediting the opinion of Dr. Phillips--who

began treating Davis soon after his injury and continued treating

him for several years thereafter--over the opinions of other

physicians who treated Davis on a much more limited basis and, in


                                 9
some cases, not until many years after the injury.                  See Mitchell v.

Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (per curiam) (noting

general rule that treating physician’s opinion “is entitled to

great       weight   for   it   reflects    an   expert    judgment    based     on   a

continuing observation of the patient’s condition over a prolonged

period of time”).          By reviewing the conflicting medical evidence

and   choosing       to    credit   Dr.    Phillips’      opinion   based   on    his

continuing treatment of Davis, the ALJ “provide[d] a sufficient

explanation for [his] rationale in crediting [that] evidence.”

Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 190 (4th Cir. 2000)

(internal quotation marks omitted); see Stiltner v. Island Creek

Coal Co., 86 F.3d 337, 342 (4th Cir. 1996) (“We defer to the ALJ’s

evaluation of the proper weight to accord conflicting medical

opinions.”).         We therefore conclude that substantial evidence

supports the ALJ’s finding that Davis’ back injury caused his

disability.1




        1
       The Company also contends that the ALJ erred in considering
 that the Company had failed to contest causation in earlier
 proceedings.   The extent to which the ALJ’s causation ruling
 actually relied on this point is unclear. Nevertheless, based on
 the record here--reflecting a nearly ten-year delay by the Company
 in raising the causation issue, and the fact that much of the
 causation evidence the Company now relies on was available
 earlier--we cannot say that the ALJ erred in considering this
 delay as one factor in declining to modify the 1990 compensation
 order based on the newly alleged lack of causation.

                                           10
                                   III.

     For   the   reasons   set   forth   above,   we   deny    the   Company’s

petition for review.2


                                                              PETITION DENIED




      2
       In his cross-petition, Davis argues that the Board
 erroneously considered one of the Company’s appeals on the merits
 despite the filing of an untimely notice of appeal and therefore
 that we lack jurisdiction over this case. The Board concluded,
 however, that the notice was timely filed, based on the Company’s
 certificate of service and internal postmark.      See 20 C.F.R.
 § 802.207(b) (2006).     We find no error in this ruling and
 accordingly deny Davis’ cross-petition.

                                    11
