UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Bal-
timore, 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Unpublished opinions are not binding precedent in this circuit.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 tem-
porary 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 prac-
ticed 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 posi-
tion 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 acci-
dent, 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 "ob-
jective" evidence of some injury, such evidence does not undercut the
ALJ's conclusion that Griffith was not disabled by his injury or inju-
ries. 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 find-
ings 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 "ap-
pears 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, cen-
trally 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 ab-
normalities. 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 Grif-
fith's brief argues that Dr. Stofberg's report notes that "clinical corre-
lation 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 clini-
cally correlated.

As with the objective evidence, the evidence of clinical correlation
was in conflict. Such evidence consists of the levels of pain, weak-
ness, 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 dis-
ability because he believed that Griffith misled them about his symp-
toms, 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. Wash-
ington 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 sev-
eral 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

                     4
          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 cap-
tured 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 com-
plaints he reported to his doctors. For example, Griffith's perfor-
mance on straight-leg raising tests varied greatly from physician to
physician, and Griffith was able to raise his leg from a sitting posi-
tion, but not from a horizontal position, for Dr. Wenzlaff, who stated
that his ability should have been the same from both positions. Grif-
fith 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 con-
vinced 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.

                    5
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, under-
mining 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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