          IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                                      _______________

                                       m 01-60715
                                     Summary Calendar
                                     _______________



                                  TRINITY MARINE GROUP
                                     AND
                     RELIANCE NATIONAL INDEMNITY COMPANY,

                                                                 Petitioners,

                                         VERSUS

                                       DALE SAVOIE
                                   AND
           DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
                   UNITED STATES DEPARTMENT OF LABOR,

                                                                 Respondents.


                                 _________________________

                            Petition for Review of an Order of
                                the Benefits Review Board
                                         (00-1030)
                             _________________________
                                      August 28, 2002



Before HIGGINBOTHAM, SMITH,                     PER CURIAM:*
  and CLEMENT, Circuit Judges.
                                                   *
                                                     Pursuant to 5TH CIR. R. 47.5, the court has
                                                determined that this opinion should not be pub-
                                                lished and is not precedent except under the limited
                                                                                      (continued...)
    Trinity Marine Group (“Trinity”) and Re-          30, 2000.
liance National Indemnity Company (“Reli-
ance”) petition for review of an order of the                                II.
Benefits Review Board (the “BRB”), uphold-               We review the findings of fact only to de-
ing a decision of the administrative law judge        termine whether the record as a whole pro-
(ALJ), that Dale Savoie remained totally dis-         vides substantial evidence. New Orleans
abled until January 30, 1999. Concluding that         (Gulfwide) Stevedores v. Turner, 661 F.2d
substantial evidence supports the findings, we        1031, 1037 (Former 5th Cir. Nov. 1981) (col-
deny the petition for review.                         lecting cases). Our “only function is to correct
                                                      errors of law and to determine if the board . . .
                        I.                            deferred to the AlJ’s fact finding.” Id. at 1037
   In June 1995, Savoie sustained an injury           n.9. We must defer t o the ALJ’s credibility
while working as an outfitter for Trinity Ship-       determinations and evaluations of lay and ex-
yards in New Orleans. Trinity and Reliance            pert testimony. Mijangos v. Avondale Ship-
hired Nancy Favaloro, whom the ALJ later              yards, Inc., 948 F.2d 941, 944-45 (5th Cir.
recognized as an expert in the field of voca-         1992).
tional rehabilitation counseling. In October
1998, Favaloro issued a report identifying at            Trinity and Reliance argue that to deter-
least five jobs that she believed Savoie could        mine the extent of Savoie’s disability, the ALJ
perform: (1) dispatcher; (2) car door unlocker;       had an obligation to consider more than just
(3) repair technician; (4) security guard; and        Savoie’s physical or medical condition. Rely-
(5) flow meter repair mechanic. Favaloro pro-         ing on cases such as New Orleans (Gulfwide)
vided Savoie with those alternative employ-           Stevedores, 661 F.2d at 1037-38, they empha-
ment opportunities, but he felt physically un-        size that disability has a mixed economic and
able to perform the jobs.                             medical foundation. According to Trinity and
                                                      Reliance, the ALJ could not have credited
    At a formal hearing on January 31, 2000,          Phillip’s testimony over Favarolo’s because
the ALJ found that Favaloro had relied on in-         Phillips did not consider factors such as Sa-
complete medical information. The ALJ point-          voie’s age, education, industrial history, and
ed to the medical opinion of Stuart Phillips,         the availability of work in the area.
Savoie’s treating physician, to illustrate that
his medical condition was more severe than               The sensible statement that determining dis-
Favaloro supposed. At that hearing, Savoie            ability requires considering medical and eco-
testified that he felt he could now work as a         nomic evidence falls far short of undermining
car door unlocker, repair technician, or flow         the ALJ’s finding. Trinity and Reliance’s
meter repair mechanic. The ALJ decided that           argument inverts the burden of proof. After
Savoie could not have performed these jobs in         the employee has shown that a job-related
fall of 1998 but could on January 31, 2000.           injury prevents him from returning to his
This led the ALJ to conclude that Savoie had          former position, the burden of proof shifts to
suffered from a total disability until January        the employer to show the extent of disability.
                                                      SGS Control Servs. v. Dir., OWCP, 86 F.3d
                                                      438, 444 (5th Cir. 1996); Rogers Terminal &
   *
    (...continued)                                    Shipping Corp. v. Dir., OWCP, 784 F.2d 687,
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                  2
690 (5th Cir. 1986). Trinity and Reliance                 measure the extent of his disability. The ALJ
concede that Savoie proved a job-related                  pointed to specific record evidence, however,
injury that prevented him from returning to his           that Favalorao had substantially underestimat-
former job, so they bore the burden of proving            ed the severity of Savoie’s injury. As we have
the extent of his disability. The ALJ found               noted, the employer bears the burden of prov-
they had failed to satisfy that burden.1                  ing the extent of disability. The ALJ, rather
                                                          than this court, should make credibility deter-
   Favaloro admitted the shortcomings of the              minations and evaluate the evidence. The ALJ
medical basis for her testimony. She testified            examined the evidence and determined that
that she relied on medical reports from several           Trinity and Reliance had not satisfied their
examining physicians compiled in 1995. The                burden of proving that Savoie suffered from
ALJ found that those physicians had underesti-            only a partial disability in October 1998.
mated the severity of Savoie’s condition.                 Substantial evidence supports that finding.
They diagnosed him with soft tissue damage
and did not perform an MRI. Phillips ordered                 The petition for review is DENIED.
an MRI in the late fall of 1995 and refused to
make a diagnosis or opine on work restrictions
without the results. In January 1996, Phillips
reviewed the results of an MRI, found a herni-
ated disc, and recommended far more aggres-
sive treatment than any of the previous (unsuc-
cessful) physicians had proposed.

   Favarolo admitted she did not consider
much information from Phillips. She pointed
to Phillips’s May 21, 1998, office notes that
classified Savoie as temporarily totally dis-
abled; she did not include Phillips’s partial,
1995 physical findings. She also failed to con-
sider the effect of medications taken by Sa-
voie. Phillips testified that Savoie remained
totally disabled throughout 1998 and 1999,
and Savoie testified he could not have per-
formed the suggested jobs in October 1998.

   Of course, Savoie’s medical condition is
not the only basis on which the ALJ should


   1
     Trinity and Reliance also argue that Savoie
did not diligently seek work, but we need not reach
that question if we find that substantial evidence
supports the finding that he was totally disabled.
Roger’s Terminal, 784 F.2d at 691.

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