BRB No. 98-1427

YUSUF AL-WAAJID                         )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   07/28/1999
                                             1999
                                        )
     v.                                 )
                                        )
EAGLE MARINE SERVICES,                  )
LIMITED                                 )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER
                    
     Appeal of  the Decision and Order Denying Benefits of Anne Beytin
     Torkington, Administrative Law Judge, United States Department of 
     Labor. 

     Ronald H. Klein (Law Offices of Lyle C. Kavin, Jr., P.C.), Oakland,
     California, for claimant.

     Laura G. Bruyneel (Law Offices of Laura G. Bruyneel), San Francisco,
     California, for self-insured employer.

     Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits (97-LHC-2488) of
Administrative Law Judge Anne Beytin Torkington rendered on a claim filed pursuant
to the provisions of  the Longshore and Harbor Workers' Compensation Act, as
amended, 33 U.S.C.§ 901 et seq. (the Act).  We must affirm the
findings of fact and conclusions  of law of the administrative law judge which are
rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965);
33 U.S.C. §921 (b)(3).        

     Claimant, a tractor driver, was injured in a work-related accident on April
5, 1995,  when a crane operator dropped a container from approximately three feet
onto claimant's truck, raising the front and causing him to strike his head and
neck on the ceiling.  Claimant thereafter suffered from various shoulder, cervical
and lumbar ailments. Employer voluntarily paid claimant temporary total disability
benefits from April 5, 1995 to April 4, 1997.  33 U.S.C. §908(b).  Employer  also
paid  medical benefits pursuant to 33 U.S.C. §907  through April 4, 1997.  The
parties stipulated that the date of maximum medical improvement is January 7, 1997. 
Claimant has not returned to his usual employment or sought alternate work since
the date of the accident based on his complaints of disabling back pain resulting
from the work injury.  Claimant  filed a claim for benefits under the Act seeking
continuing compensation. 

     The administrative law judge found that claimant could return to his usual
employment as a tractor driver, and therefore denied disability benefits after
January 7, 1997, the date of claimant's maximum medical improvement. On appeal,
claimant contends that the administrative law judge erred in denying him continuing
disability benefits.  Employer responds, urging affirmance.              

     Claimant has the burden of establishing the nature and extent of his
disability.  Trask v. Lockheed Shipbuilding & Const. Co., 17 BRBS 56, 59
(1980).  In order to establish a prima facie case of total disability,
claimant must prove that he is unable to perform his usual work due to the work
injury. See, e.g., Delay v.  Jones Washington Stevedoring Co., 31 BRBS 197
(1998).  We reject claimant's contention that the administrative law judge erred
in concluding that he failed to produce sufficient evidence to prove that he could
not return to his pre-injury job. The administrative law judge rationally credited
the opinion of Dr. Ansel that claimant can perform his usual employment based on
that doctor's examination of claimant, claimant's behavior and demeanor at the
examination, the MRI, EMG, nerve conduction studies, and Dr.  Ansel's review of 
the medical reports of Drs. Meyers and Gravina.  Decision and Order at 15.  In
support of  Dr. Ansel's diagnosis, the administrative law judge also noted Dr.
Ansel's negative findings on objective testing, i.e., no atrophy, reflex
asymmetry or muscle weakness.[1]  

     The administrative law judge rationally found less persuasive the contrary
opinions of Drs. Meyers and Gravina, who opined claimant could not perform his pre-injury employment as a tractor driver, because they placed substantial reliance on
claimant's subjective complaints of pain, which the administrative law judge found
not to be credible.  In this regard, the administrative law judge found that Dr.
Ansel testified, after viewing the surveillance videotape of claimant, that
claimant made movements inconsistent with his pain complaints.  Moreover, the 
administrative law judge found various inconsistencies in claimant's testimony that
undercut his assertion that he cannot return to his usual work.[2]   Id.  The administrative law judge's credibility
determinations are within  her discretion, and claimant has raised no reversible
error in the administrative law judge's weighing of the conflicting evidence. See
Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert.
denied, 372 U.S. 954 (1963); John W. McGrath Corp. v. Hughes, 289 F.2d
403 (2d Cir. 1961).  Furthermore, the administrative law judge found that once
claimant's job was accurately described by Mr. Stauber, employer's vocational
rehabilitation specialist, unlike claimant's exaggerated description of the job
duties of a tractor driver to Drs. Meyers and Gravina, even these doctors'
restrictions would permit claimant to perform his usual work.  Consequently, we
affirm the administrative  law judge's findings that claimant can perform his usual
employment as rational and supported by substantial evidence, and in accordance
with law. Chong v. Todd Pacific Shipyards Corp., 22 BRBS 242 (1989),
aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir. 1990).

     Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed.

     SO ORDERED.




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)Dr. Ansel also diagnosed claimant with peripheral neuropathy,
a condition caused  by diabetes, which he stated accounted for some of the symptoms
claimant attributed to the work-related injury. 
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 2)The administrative law judge found claimant not to be credible
based on his inconsistent, contradictory and evasive testimony.  The administrative
law judge cited the example of claimant stating that he takes pain medication
regularly from prescriptions filled at Seton Pharmacy, but this pharmacy had no
records of prescriptions filled since November 1995.  In addition, she found that
there are many instances in the record of claimant admitting that he does not take
pain medication.  The administrative law judge concluded, however, that if claimant
were in the severe pain he claimed, he would be taking pain medication.  She also
noted instances from the surveillance tape that she found undermined claimant's
credibility, such as his ability to drive over the potholed streets surrounding his
art studio in Oakland, lack of  trouble getting in and out of  vehicles, climbing
stairs to his house and studio, and carrying packages of unknown weight. The
administrative law judge concluded that the weight of the evidence shows that
claimant functions at a much higher level than he admits and she thus  refused to
rely on claimant's recitation of his symptoms of pain.
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