                                  UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                  No. 08-2376


NORTHROP GRUMMAN SHIPBUILDING INCORPORATED,                f/k/a   Newport
News Shipbuilding and Dry Dock Company,

                   Petitioner,

             v.

JAMES KEA;        DIRECTOR,   OFFICE    OF      WORKERS’    COMPENSATION
PROGRAMS,

                   Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(BRB-0504)


Submitted:    November 19, 2009                 Decided:     January 14, 2010


Before TRAXLER,       Chief   Judge,   and   SHEDD    and     DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Jonathan H. Walker, MASON, MASON, WALKER & HEDRICK, PC, Newport
News, Virginia, for Petitioner.     Gregory E. Camden, MONTAGNA
KLEIN CAMDEN, LLP, Norfolk, Virginia, for Respondent James Kea.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Northrop        Grumman      Shipbuilding,       Inc.,     formerly       known    as

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

petitions for review of the Decision and Order of the Benefits

Review    Board      (the   “Board”),     affirming       an    Administrative          Law

Judge’s (ALJ) award of permanent partial disability benefits to

employee James Kea under § 908(c) of the Longshore and Harbor

Workers’      Compensation      Act   (the     “Act”),    33       U.S.C.A.    §     908(c)

(West 2001).      For the following reasons, we affirm.



                                          I.

     On April 6, 1995, James Kea injured his right leg while

working as a shipbuilder for the Employer.                     The injury consisted

of a serious laceration that resulted in neurological sensory

and motor compromise, measurable atrophy of the leg, and limited

range    of   motion.       Kea    received     an   award      of       temporary   total

disability benefits from April 7, 1995, to August 27, 1995, and

temporary partial disability benefits from August 28, 1995, to

December 31, 1998.          Kea subsequently sought modification of his

compensation      award,       alleging   that       he   had      also     sustained     a

permanent     loss    of    wage   earning     capacity       as     a    result   of   the

injury, entitling him to additional compensation in the form of

permanent partial disability benefits under § 908(c) of the Act.



                                          2
     Dr.    Alvin    Bryant    was   Kea’s    treating     physician,     and   the

record contains a number of his treatment records.                       In April

2003, after an extended delay in obtaining his response to a

request for an opinion on permanent disability resulting from

the injury, Dr. Bryant assigned a permanent partial disability

rating of 35% to Kea’s right leg.             In conjunction therewith, Dr.

Bryant     described    the    nature    of    the     injury,      including   the

accompanying injuries to the “veins, small arteries, fascia of

muscles,    and     nerves    in   [Kea’s]     right    lower    leg,”    and   the

resulting     permanent       abnormalities,          including       neurological

injuries, nodular fascitis, swelling, and abnormalities of gait.

J.A. 46.     Dr. Bryant also noted that Kea suffered from “severe

motor    sensory     neuropathy”      and     had      “clinical     evidence    of

peripheral venus and arterial disease of his right lower leg

which ha[d] exacerbated his injuries.”                 J.A. 46. *    Although Dr.

Bryant   described     the    injuries   and    the     permanent     disabilities

resulting therefrom, he did not identify the specific source

relied upon for determining the percentage of disability.

     On May 14, 2003, Dr. Mark Ross performed an independent

medical examination at the request of the Employer and assigned

     *
       The record also contains a report of Dr. Mark M. Levy,
opining that as of June 14, 1999, Kea suffered from “chronic
pain syndrome in his right leg” and “recommend[ing] that he see
rehabilitation doctors for what [would likely] be a chronic
problem.” J.A. 53.



                                         3
an impairment rating of 14% to Kea’s right leg pursuant to the

American    Medical      Association’s       Guides     to   the     Evaluation       of

Permanent    Impairment.       Dr.     Ross    noted    that    Kea’s      “situation

[was] complicated by the fact that he has a severe sensorimotor

peripheral neuropathy that represents the basis for the majority

of his deficits.”         J.A. 9.      Accordingly, Dr. Ross opined that

“Mr. Kea’s total impairments [were] higher than [14%],” but that

these impairments were “primarily due to his diabetic neuropathy

and not [to] the work related injury.”                J.A. 9.

     In August 2003, the parties executed a Stipulation of Facts

setting    forth   the     temporary    total     disability         and    temporary

partial     disability     benefits     paid     to     date,      as    well   as    a

stipulation that Kea had sustained permanent partial disability

equivalent to 14% loss of use of the right lower extremity.

However,    the    Employer    subsequently       sought        to      withdraw     the

stipulation and advised that it would not pay the stipulated

amount because it believed Kea’s request for additional benefits

was time-barred.      The ALJ agreed and denied additional benefits,

and the Board affirmed.             On appeal, we reversed the Board’s

denial of additional benefits as being time-barred and remanded

for a determination of the merits of Kea’s request for permanent

partial disability benefits under the Act.                   See Kea v. Newport

News Shipbuilding & Dry Dock Co., 488 F.3d 606, 613 (4th Cir.

2007).

                                         4
        On     remand,       the       ALJ    considered         the     disability      ratings

assigned       by     Dr.    Bryant      and    Dr.     Ross,      and      awarded    permanent

partial disability benefits based upon an impairment of 24.5% to

the     right       leg,     which       also    represented           an    average     of     the

disability          ratings       assigned      by     the    two      physicians       who     had

evaluated him.

        With    regard       to    Dr.       Bryant,    the      ALJ     observed     that    “Dr.

Bryant found Claimant suffered from neurologic injuries, nodular

fascitis, swelling and abnormalities of gait, all of which were

related       to    the     work    related      injury       to    his      right    leg,”     and

assigned a 35% permanent disability rating to the right lower

leg, but that Dr. Bryant had “not indicate[d] what source he

relied upon to determine the percentage of disability.”                                       J.A.

104.         However, the ALJ felt that “Dr. Bryant’s opinion [was

entitled        to]    additional            weight     because        of    [his]     continued

treatment” of Kea.               Id.     With regard to the evaluation performed

by Dr. Ross, the ALJ observed that “Dr. Ross, in contrast [to

Dr. Bryant], only saw Claimant on one occasion at the request of

the Employer.”             Id.     However, the ALJ felt that the thoroughness

of    Dr.     Ross’s      opinion       entitled       it   to   “additional          weight”    as

well.        Id.      Also, “[i]n contrast to Dr. Bryant, Dr. Ross was

very clear as to the factors he considered in assessing the

percentage of disability under AMA guidelines.”                              Id.



                                                 5
      Having considered and identified the relative strengths and

weaknesses       of     the   respective          ratings    assigned       by     the    two

physicians,          the   ALJ     ultimately        noted       and     accepted        Kea’s

“suggest[ion] that the Court average the two ratings and assign

[Kea]     a     disability       rating      of     24.5%       based     upon     the    two

physicians’ opinions.”             Id.    “Based on the facts of th[e] case,

and considering Dr. Bryant’s status as a treating physician and

the thoroughness of Dr. Ross’s disability assessment,” the ALJ

explicitly found “this approach [to be a] reasonable one.”                                Id.

The     Board        affirmed,     holding        that    the     Employer        had    “not

demonstrated error in the [ALJ’s] decision to accord weight both

to the opinion of Dr. Bryant based on his long-time treatment of

the claimant, and to that of Dr. Ross on the basis that his

examination was thorough and his explanation clear.”                               J.A. 109

(citations omitted).



                                           II.

      On appeal, we review the Board's decisions for errors of

law     and     to     ascertain     whether        the     Board       adhered     to    its

statutorily mandated standard for reviewing the ALJ's factual

findings.       See Gilchrist v. Newport News Shipbuilding & Dry Dock

Co., 135 F.3d 915, 918 (4th Cir. 1998); Zapata Haynie Corp. v.

Barnard, 933 F.2d 256, 258 (4th Cir. 1991).                       Our review of legal

questions “is de novo and no deference is accorded the [Board's]

                                             6
legal    interpretations.”                 Gilchrist,      135    F.3d      at    918.     The

factual findings of the ALJ must be affirmed if supported by

substantial evidence.                 See 33 U.S.C.A. § 921(b)(3) (West 2001).

Substantial evidence is “such relevant evidence as a reasonable

mind     might       accept       as     adequate    to     support      a       conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971).                                 “On review,

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

       Here,       the    Employer       asserts    that    Dr.    Bryant’s        impairment

rating       of    35%    was     “wholly    conclusory”         and   offered       “without

explanation,” rendering it insufficient for consideration by the

ALJ     as    matter       of     law.      See     Dir.,    OWCP      v.    Newport      News

Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134, 140 (4th

Cir.    1998)       (“[T]o       be    sufficient    the    evidence         must    be   such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.                   The ALJ may not merely credulously

accept the assertions of the parties or their representatives,

but must examine the logic of their conclusions and evaluate the

evidence      upon        which    their    conclusions      are       based.”      (internal

quotation marks, citations and footnote omitted)).                               The Employer

                                               7
also contends that the ALJ erred as a matter of law in affording

any weight to Dr. Bryant’s 35% impairment rating solely because

he was Kea’s treating physician.                   Finally, the Employer asserts

that    the     ALJ   erred    as   a     matter    of    law    by    accepting     Kea’s

suggestion that the two impairment ratings be averaged together

and that, by doing so, the Board’s decision was rendered without

logical, rational or legal basis.

        We disagree.      First, we do not find Dr. Bryant’s rating to

be wholly conclusory or without explanation.                          On the contrary,

Dr.    Bryant    explained     that       Kea’s    work-related        injury    involved

injuries to Kea’s “veins, small arteries, fascia of muscles and

nerves” and that, as a result, Kea suffered from “neurologic

injuries, nodular fascitis, swelling, . . . abnormalities of

gait,” “severe motor sensory neuropathy in th[e] right lower

leg,” and “peripheral venus and arterial disease of his right

lower    leg    which    ha[d]      exacerbated      his    injuries.”           J.A.    46.

Accordingly, while Dr. Bryant’s opinion is not as detailed as

Dr. Ross’s report, or even as detailed as we might prefer, it

falls     far    short    of     being      a     conclusory      assignment        of   an

impairment rating wholly devoid of basis.                         Second, the ALJ’s

decision did not afford weight to Dr. Bryant’s impairment rating

solely because he was the claimant’s treating physician, nor did

the    ALJ     credit    his   opinion      to     the    exclusion      of   all    other

pertinent       evidence.           The    ALJ     gave    Dr.        Bryant’s    opinion

                                             8
“additional,”        but   not    controlling,          weight     based      upon    Dr.

Bryant’s continued treatment.               See Grigg v. Dir., OWCP, 28 F.3d

416, 420 (4th Cir. 1994) (noting that physician’s “status as

treating physician entitles his opinion to great, though not

necessarily        dispositive,       weight”);        Milburn     Colliery     Co.   v.

Hicks, 138 F.3d 524, 533 (4th Cir. 1998) (“[A]n ALJ should not

mechanistically credit, to the exclusion of all other testimony,

the   testimony      of    an   examining       or     treating    physician     solely

because the doctor personally examined the claimant.”) (internal

quotation marks and alteration omitted).                       In sum, Dr. Bryant’s

final opinion was not a conclusory one.                    And, while the ALJ may

have legitimately criticized Dr. Bryant’s failure to identify a

specific    source     (such     as   the   AMA      Guides)     for   his    disability

assignment, the ALJ did not err in taking note of the medical

basis that was articulated in Dr. Bryant’s report or in giving

Dr. Bryant’s opinion additional weight based upon his long-term

treatment of Kea.

      Finally, we disagree with the contention that the ALJ’s

averaging     of    impairment        ratings     by    evaluating      and    treating

physicians indicates a baseless decision.                      On the contrary, the

ALJ discussed the findings of both physicians, discussed the

pros and cons of each, and explained when and why he specially

credited one or the other.              Ultimately, the ALJ made a finding

of 24.5% disability based upon the facts of the case, which

                                            9
included the specific findings of both Dr. Bryant and Dr. Ross,

and concluded that averaging their assignments of disability was

a reasonable approach to the evidence.                  It is well within the

province of an ALJ to assign a disability award that is higher

or lower than any disability rating suggested by any party.                         Dr.

Bryant’s opinion noted that Kea’s injuries had been exacerbated

by    his    “severe    motor   sensory       neuropathy,”      as     well    as   his

“peripheral venus and arterial disease.”                     J.A. 46.        Likewise,

Dr.     Ross   acknowledged     that    “Kea’s       total    impairments       [were]

higher      than   [14%],”      although      this    was,      in     his     opinion,

“primarily due to [Kea’s] diabetic neuropathy and not the work

related injury.”         J.A. 9.       Under the circumstances, we cannot

say that the ALJ’s decision to award disability based upon a

24.5%       permanent    partial    disability         rating        was     arbitrary,

unsupported by substantial evidence on the record, or otherwise

erroneous as a matter of law simply because it also represented

an average of the ratings assigned by the physicians who had

evaluated Kea.



                                        III.

        For the foregoing reasons, we affirm the decision of the

Board.       We dispense with oral argument because the facts and

legal    contentions     are    adequately      presented       in    the     materials



                                         10
before   the   court   and   argument    would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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