UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT GARNETT,
Petitioner,

v.

RYAN-WALSH, INCORPORATED;
                                                                        No. 96-2555
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(BRB No. 95-0951)

Submitted: March 31, 1998

Decided: June 4, 1998

Before WILKINS and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Petition denied by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

E. Paul Gibson, Allison A. Stover, RIESEN LAW FIRM, L.L.P.,
North Charleston, South Carolina, for Petitioner. Richard P. Salloum,
FRANKE, RAINEY & SALLOUM, P.L.L.C., Gulfport, Mississippi,
for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robert Garnett petitions for review of an order of the Department
of Labor's Benefits Review Board (Board). While employed by
Ryan-Walsh, Inc., as a "hustler" driver, Garnett was involved in an
accident. As a result of the injuries he sustained, Garnett sought tem-
porary total disability until his date of maximum medical improve-
ment and either permanent total or permanent partial disability
thereafter. The Board summarily affirmed the decision of an adminis-
trative law judge (ALJ) who denied Garnett's claim for permanent
total or permanent partial disability benefits under the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. #8E8E # 901-950 (1994).
The ALJ also set Garnett's date for maximum medical improvement
at May 24, 1993, ending his temporary benefits as of that date.

Ordinarily, we review the Board's decision for errors of law and
to determine whether the Board observed its statutorily-mandated
standard for reviewing the ALJ's factual findings. See Newport News
Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir.
1988); Newport News Shipbuilding & Dry Dock Co. v. Director,
OWCP, 681 F.2d 938, 941 (4th Cir. 1982). In turn, the Board's review
of the ALJ's factual findings is limited by the requirement that "[t]he
findings of fact in the decision under review by the Board shall be
conclusive if supported by substantial evidence in the record consid-
ered as a whole." 33 U.S.C. § 921(b)(3). However, under the proce-
dure introduced by the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134,§ 101(d), 110 Stat.
1321, 1321-29, the ALJ's decision in this case was affirmed by
default and there is no Board decision for this court to review. Conse-
quently, the ALJ's findings of fact must be upheld if supported by
substantial evidence.

"While substantial evidence requires `more than a mere scintilla,'
it is only `such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.'" Universal Maritime Corp. v.
Moore, 126 F.3d 256, 263 (4th Cir. 1997) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Garnett claims that the ALJ erred
in his determination of the date of maximum medical improvement
and his decision that Garnett had failed to show a permanent total or
partial disability. There is no question but that the ALJ's determina-
tion is supported by substantial evidence in this case.

The ALJ premised his conclusion regarding the date of maximum
medical improvement on the opinion of Dr. Donald R. Johnson. Dr.
Johnson examined Garnett on three separate occasions and concluded
that Garnett was capable of returning to work on May 24, 1993. Gar-
nett notes that Dr. Johnson's opinion is contradicted in the record by
the opinion of Dr. Howard Brilliant, Garnett's treating physician. Dr.
Brilliant designated June 1, 1993, as Garnett's date of maximum med-
ical improvement. Contrary to Garnett's suggestion on appeal, the
issue for this court to consider is not whether there is evidence of
record to support a different conclusion from that of the ALJ. Neither
is it whether another interpretation of the evidence is more reason-
able. See Tann, 841 F.2d at 543. Rather, this court is concerned only
with whether the ALJ's opinion is supported by substantial evidence.
Because Dr. Johnson's reasoned opinion constitutes substantial evi-
dence for the ALJ's decision, we find no cause to disturb the Board's
order on this front.

The same is true for Garnett's claim regarding the ALJ's finding
on the permanence of Garnett's disability. Garnett first advances a
type of estoppel argument, reasoning that because the Waterfront
Employers-I.L.A. Pension and Welfare Fund approved his application
for disability pension, the ALJ was bound to conclude that Garnett
was permanently disabled. In addition, Garnett refers extensively to
medical evidence of record regarding his spinal problems that might
support a finding that he is permanently disabled. Garnett also con-
tends on appeal that he would be unable to secure work on the water-
front without significant medical improvement. In advancing this
contention, Garnett attacks the credibility of Nancy Favaloro, a
licensed rehabilitation counselor, who testified regarding the require-
ments of longshore employment.

The ALJ's conclusion that Garnett could return to his previous
employment is supported by substantial evidence, namely, the opin-

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ions of both Garnett's own treating physician, Dr. Brilliant, and that
of Dr. Paul B. Prichard, III. Both physicians concluded after examin-
ing Garnett that he could return to his longshore work in numerous
capacities. Because substantial evidence in the form of the doctors'
medical opinions supported the ALJ's determination that Garnett was
unable to prove that he could not return to his previous employ, there
is no cause for this court to disturb the Board's summary affirmance
of the ALJ's order. See See v. Washington Metro. Area Transit Auth.,
36 F.3d 375, 380 (4th Cir. 1994). As with Garnett's assignment of
error regarding the date of maximum medical improvement, he identi-
fies evidence that considered in a light most favorable to his claim
would support a finding of some form of permanent disability. But as
noted above, even if Garnett's suggested finding was more reason-
able, so long as substantial evidence supports the ALJ's conclusion,
this court will uphold it. See Tann, 841 F.2d at 543. That evidence is
present in this case. Finally, contrary to Garnett's contention, the pen-
sion determination could serve as evidence of his disability, but by no
means controls the ALJ's decision. Cf. Moseley v. Peabody Coal Co.,
769 F.2d 357, 361 n.7 (6th Cir. 1985) (noting nongovernmental find-
ings of total disability not binding on ALJ in black lung case).

Because there is substantial evidence to support the ALJ's decision,
we deny the petition. We grant the motion to submit the appeal on the
briefs and 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.

PETITION DENIED

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