Opinion
W.C. No. 4-474-989.
January 27, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 7, 2008 that denied her claim for permanent total disability benefits. We affirm.
The ALJ entered his order after a remand to consider whether two witnesses should be prevented from testifying on behalf of the claimant due to discovery violations. The ALJ decided that the witnesses should be allowed to testify and held another hearing, after which he issued his Findings of Fact, Conclusions of Law, and Order on Remand (Order). The ALJ made extensive findings of fact. The ALJ found persuasive the opinions of Theodore J. Becker, who testified as an expert in human performance, physical capacity, and disability evaluation. Mr. Becker stated that the claimant could tolerate full-time work in a sedentary position. The ALJ also credited the opinions of Dr. Joan Sullivan, who testified as an expert in orthopedic surgery. Dr. Sullivan opined that the claimant could return to work, full-time, as a cashier, office manager, or lab technician. The ALJ found persuasive and credible the opinions of Linda Tanouye, who conducted testing and market research as a vocational counselor. Ms. Tanouye's market research indicated that there were jobs in the claimant's labor market area that she could perform. Ms. Tanyouye opined that the claimant could perform the essential functions of casher and clerk positions. Interspersed throughout his findings were references to exaggerations by the claimant regarding her physical symptoms and restrictions. The ALJ found that the claimant was capable of earning wages and therefore concluded that the claimant failed to establish that she was unable to earn a wage due to her industrial injury.
The ALJ also addressed evidence from Ms. Lynn Hoppin Elms, who testified on behalf of the claimant and opined that the claimant is unable to earn any wages. The ALJ found that Ms. Elms "relied upon outdated" functional capacity evaluations conducted prior to the claimant being placed at maximum medical improvement and prior to the "[claimant's documented improvement in function and decreased pain." The ALJ also found that Ms. Elms relied on the claimant's statements concerning her abilities to perform various jobs, which the ALJ characterized as "less than truthful." Order at 11, ¶ 52. The ALJ's findings concerning Ms. Elms' opinions, recited above, are the only findings that the claimant disputes on appeal.
The claimant argues that the ALJ's findings rejecting Ms. Elms' opinions are not supported by substantial evidence and must, therefore, be vacated. Thus, according to the claimant, Ms. Elms' opinions should be found to be credible and persuasive, thereby supporting an award of permanent total disability benefits.
We note that the ALJ was not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility. See Wells v. Del Norte School District C-7, 753 P.2d 770, 772 (Colo.App. 1987) (hearing officer in teacher disciplinary proceedings not obligated to discuss in findings all evidence or explain how and why he resolved credibility issues); cf. Tilley v. Industrial Claim Appeals Office, 924 P.2d 1173 (Colo.App. 1996) (ALJ not required to mention or make findings concerning evidence he finds unpersuasive). In any event, there is record support for the ALJ's contested findings in ¶ 52 of his Order.
We are bound by the ALJ's determinations that are supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence means "that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 2003). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review under the substantial evidence standard is "exceedingly narrow." Id at 415. This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, the existence of evidence in the record from which the hearing officer could have drawn contrary inferences does not provide a basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The ALJ found that Ms. Elms relied on "outdated Functional Capacity evaluations performed prior to Claimant's documented improvement in function and decreased pain in November 2005." The ALJ also found that Ms. Elms relied on the claimant's statements as to the claimant's abilities when opining that the claimant could not perform some jobs found by Ms. Tanouye. Contrary to the claimant's assertions, the ALJ's corresponding findings are reasonable inferences based on more than "a mere scintilla" of evidence in the record before him. See Wecker v. TBL Excavating, Inc., 908 P.2d 1186, 1188-89 (Colo.App. 1995) (evidence not substantial if overwhelmed by other evidence or constitutes mere conclusion, and must be more than scintilla).
Concerning Ms. Elms' reliance on functional capacity evaluations conducted prior to November 2005, Ms. Elms authored an addendum to her employability evaluation dated March 13, 2007. In the addendum, Ms. Elms refers to preparing the document after reviewing a vocational assessment and testing report dated May 17, 2005. She also refers to an earlier "FCE in 2004." Exhibit 2b at 40-41. Ms. Elms testified at the last hearing. She testified to the effect that, in assessing the claimant's employability, she considered an "FCE" from 2002 that was valid, as well as another from 2002 and one conducted in 2004. Tr. (9/11/08) at 41-43.
The ALJ noted with record support that there were three functional capacity evaluations performed after the claimant was placed at maximum medical improvement. On November 3, 2005, Dr. Southwell noted that while the claimant was physically at maximum medical improvement on June 29, 2005, she experienced an improvement in performance and decrease in her pain. Claimant's Exhibits for July 26, 2007 hearing, Exhibit 4b at 67. The ALJ found that with record support that three functional capacity evaluations were performed after the claimant was placed at maximum medical improvement. Exhibit T. These were performed by Concentra on October 14, 2005 (Exhibit S), by Dura on December 7, 2006 (Exhibit T at 287)and by Becker on November 9, 2006 (Exhibit Q).
Regarding Ms. Elms' reliance on the claimant's own description of her abilities in support of her opinion that the claimant could not perform some of the positions found by Ms. Tanouye, Ms. Elms described basing her opinion as to the claimant's employability, in part, on the claimant's pain and symptoms, as explained to her by the claimant. Tr. (9/11/08) at 44, 49. She stated that the claimant did not know how to use Microsoft Excel or Access, and had forgotten how to use PowerPoint. Tr. (9/11/08) at 46. Ms. Elms specifically discussed several positions related to Ms. Tanouye's efforts to locate employment for the claimant. Tr. (9/11/08) at 47-53; Exhibit T at 460-69.
Furthermore, as noted above the ALJ findings, with record support, were interspersed throughout with references to the exaggerations by the claimant regarding her physical symptoms and restrictions. The following are some of the findings that the ALJ made regarding this issue. A functional capacity evaluation performed on May 17, 2005 noted that results of a symptom questionnaire indicated that the claimant exaggerated symptoms, overreacted to symptoms and was shown to have a relationship to hysteria and hypochondriasis. Exhibit 7. Dr. Logan noted that most, if not all, of the restrictions identified by the claimant were self-imposed without physiologic basis and the claimant put forth less than maximal effort during testing. Exhibit L. Dr. Sullivan testified that while doing range of motion testing, the claimant would stop, but that with distraction she would do more. Exhibit P. Dr. Southwell noted Dr. Jasper's concerns regarding the claimant's significant pain amplification behavior and that the claimant had begun to self-limit. Exhibit J at 67. Dr. Becker stated that despite the claimant's self-limiting behavior the claimant did have the ability to perform a variety of work related tasks. Exhibit Q.
In our opinion, the record contains support for the ALJ's findings, including those findings regarding Ms. Elms' opinions. We therefore find no basis for disturbing the ALJ's denial of permanent total disability benefits under the circumstances.
IT IS THEREFORE ORDERED that the ALJ's order dated October 7, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
PAULINE STRENCH, ABERDEEN, WA, (Claimant).
WILD WEST CASINO, Attn: FRONT RANGE GAMING, CRIPPLE CREEK, CO, (Employer).
WESTERN GUARANTY FUND, Attn: CLAUDIA RENEGAR, DENVER, CO, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: SHEILA TOBORG, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: HOLLY M BARRETT, ESQ., DENVER, CO, (For Respondents).
STARRS MIHM CASCHETTE LLP, Attn: ELIZABETH A STARRS, ESQ., DENVER, CO, (Other Party).