UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEARNEY J. FOX,
Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND
                                                               No. 96-2617
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(95-1935)

Submitted: May 6, 1997

Decided: May 29, 1997

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gregory E. Camden, RUTTER & MONTAGNA, L.L.P., Norfolk,
Virginia, for Petitioner. Benjamin M. Mason, MASON & MASON,
P.C., Newport News, Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Kearney Fox appeals an order of the Benefits Review Board
affirming the Administrative Law Judge's (ALJ) decision denying
benefits on a claim filed under the Longshore and Harbor Workers'
Compensation Act (LHWCA).1 Fox contends that the ALJ erred in
denying him permanent partial disability for an injury to his back sus-
tained while he worked as a third class mechanic welder for Newport
News Shipbuilding and Dry Dock Co. (Newport News). Because sub-
stantial evidence supports the findings of the ALJ, 2 we affirm the
order of the Benefits Review Board.

To qualify for disability benefits under the LHWCA, Fox must
establish his inability to return to his regular and usual employment.3
While Newport News did not dispute that Fox was unable to return
to his duties as a welder in the shipyard, Newport News rebutted the
presumption of disability by showing that suitable alternative employ-
ment was available to Fox.4 Specifically, the ALJ found that consider-
ing Fox's age, background, employment history and experience, and
physical capabilities,5 Fox's employment as a mig welder with O&K
Escalators constituted suitable alternative employment. We are not
persuaded by Fox's arguments that his employment with O&K was
the result of employer beneficence or Fox's "extraordinary effort."
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1 33 U.S.C.A. § 901-950 (West 1986 & Supp. 1997).
2 See 33 U.S.C. § 921(b)(3) (1994); Newport News Shipbuilding & Dry
Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988).
3 See Tann, 841 F.2d at 542.
4 See id.
5 See Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201
(4th Cir. 1984) (quoting New Orleans (Gulfwide) Stevedores v. Turner,
661 F.2d 1031, 1042-43 (5th Cir. 1981)).

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Additionally, the ALJ found Fox's allegations of disabling pain not
credible. None of the medical opinions presented in this case sup-
ported Fox's continued allegations of pain. Further, none of the sev-
eral and varied medical tests performed after Fox returned to work
full-time substantiated Fox's complaints. Moreover, the ALJ found
that Fox engaged in rigorous physical activity that was inconsistent
with Fox's claim of disabling pain. While Fox claims he can tolerate
the pain for short periods of intense physical activity but not a full
eight hour work day, this court must defer to the ALJ's credibility
determinations and inferences from the evidence. 6 In short, the ALJ's
determination to deny Fox permanent partial disability is rational and
supported by the record as a whole.

Accordingly, the Benefits Review Board's decision to affirm the
ALJ is hereby 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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6 See Tann, 841 F.2d at 543; see also Kellough v. Heckler, 785 F.2d
1147, 1150 n.3 (4th Cir. 1986) (appellate deference accorded to ALJ's
findings of fact).

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