W.C. No. 4-570-204.Industrial Claim Appeals Office.
May 11, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated October 17, 2008, that denied the claim for permanent total disability (PTD) benefits. We affirm.
The claimant suffered an admitted work-related injury to her right arm while working for the employer. The claimant underwent a Division-sponsored independent medical examination (DIME) and the DIME physician assigned a 24 percent impairment rating for the claimant’s right upper extremity and four percent impairment for mental impairment. At the hearing, the claimant sought a determination that she was entitled to PTD benefits.
The ALJ found that the claimant’s testimony regarding her pain, permanent disability, permanent physical limitations and mental limitations was not credible. The ALJ found that the claimant could earn wages from employment and employment existed that was reasonably available to the claimant under her particular circumstances. The ALJ denied her claim for PTD benefits and the clamant appeals.
A claimant is entitled to PTD benefits if the claimant is “unable to earn wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2008. Under the statute the claimant carries the burden of proof to establish by a preponderance of the evidence that she is permanently and totally disabled. The overall objective is to
Page 2
determine whether employment is reasonably available to the claimant under his particular circumstances. In making this determination the ALJ may consider the effects of the industrial injury in light of the claimant’s “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
Ultimately, whether a claimant is permanently and totally disabled is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, supra; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Because the question of whether the claimant proved she is entitled to PTD benefits is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in a light most favorable to the prevailing party and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Thus, the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). The fact that some evidence, if credited, might support a different result affords no basis for relief on appeal. Weld County School District Re-12 v. Bymer, supra. In this regard, we note that the credibility of expert witnesses is a matter within the province of the ALJ as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). It is according to this deferential standard of review that we consider the claimant’s assertions.
I.
On appeal, the claimant first contends that the ALJ’s findings that the “claimant could perform some light and sedentary work in claimant’s commutable labor market” is not supported by substantial evidence and is insufficient to permit meaningful appellate review. The claimant apparently concedes that the respondents’ vocational expert opined that the claimant has the ability to work in jobs in a sedentary or light physical demand category and that based on his labor market research there were jobs available in the geographic area which were compatible with her vocational profile. In any event there is record support that the vocational expert did express this opinion. Exhibit J at 74.
Instead the claimant argues that the ALJ did not indicate which medical provider he credited in concluding that the claimant had the functional capacity to perform light and sedentary work and the claimant further argues that, in fact, no physician had rendered that opinion. The claimant contends that the ALJ erred in this finding because all the physicians have restricted the claimant from using her right, dominant, upper extremity. We disagree.
Page 3
The ALJ did not specifically identify the physician or physicians whose opinions he relied upon to conclude that the claimant could perform some light and sedentary work in her commutable labor market. However, the ALJ is not held to a standard of absolute clarity when issuing findings of fact and conclusions of law provided the basis of the order is apparent from the findings which are entered. When considering an order we may note findings which, although not expressly contained in the order, are necessarily implied by it. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
Here Dr. Lopez opined that based upon a functional capacity evaluation and his own observation he placed the claimant in a light category for permanent work restrictions. Exhibit A at 3. Dr. Pitzer opined that the claimant was capable of working at least at a sedentary or light-duty capacity using her left upper extremity and her right upper extremity for some assistive activity and, given a probably significant psychological overlay, she might be able to physically work well beyond this capacity. Exhibit G at 40. Dr. Gutterman opined that from the patient’s overall psychological presentation, as well as her daily functioning, he believed the patient was capable of returning to employment and that retuning to work would offer positives in her life. Exhibit H at 45. The respondents’ vocational expert relied on the opinions of Dr. Lopez, Dr. Pitzer and Dr. Gutterman in coming to his conclusion that the claimant would be able to work in a sedentary or light duty job. Exhibit J at 69. The ALJ found the opinions of the respondents’ vocational expert to be persuasive and supported by the persuasive part of the medical report.
Because the issue of the claimant’s functional capacity is factual in nature, as noted above we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8). In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). In our view, the opinions of Dr. Lopez, Dr. Pitzer, Dr. Gutterman and the respondents’ vocational expert, are substantial evidence supporting the ALJ’s determination.
The claimant further argues that the respondents’ vocational expert in his deposition clarified the opinion he expressed in his report on the claimant’s functional capacity. The claimant argues that the vocational expert testified that it was questionable whether the claimant could fully return to her prior employment duties due to the repetitive use of her upper extremities. Iberstine Depo. at 48-49. However, the expert again stated that it would appear that she would be capable of working in a sedentary or a light-duty job, which did not require repetitive use of the upper extremities. Iberstine Depo. at 49. To the extent that the testimony of respondents’ vocational expert can be
Page 4
viewed as conflicting, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). We perceive no reason to interfere with the ALJ’s findings concerning what the opinions of the respondents’ vocational expert were.
The claimant also argues that the ALJ failed to recognize the basic fact of the claimant’s restricted use of her right upper extremity. We disagree. The ALJ specifically found that, although the claimant’s functional impairment from the work related injury did not extend beyond the arm, the claimant suffered a 24 percent impairment of the right upper extremity.
In our opinion, the ALJ’s findings are sufficient to permit meaningful appellate review and further they are supported by substantial evidence in the record. We conclude that the claimant’s argument regarding her functional capacity present us with no grounds upon which the order of the ALJ may be set aside.
II.
The claimant also contends that the ALJ misapprehended the opinions of the claimant’s vocational expert. Specifically, the claimant argues that her expert did not rely, even in part, on Dr. Tyler’s restrictions in opining that the claimant was permanently and totally disabled. Therefore, she argues that the ALJ’s finding to that effect was erroneous and requires that the order be set aside. The claimant further contends that the ALJ, having rejected the opinions of Dr. Tyler, erred in finding that the reliance on Dr. Tyler’s opinions invalidated the opinion of the vocational expert. The claimant argues that, contrary to the ALJ’s determination, her vocational expert had testified that even absent Dr. Tyler’s mental restrictions and considering only her physical restrictions, she would be unable to maintain employment in the commutable labor market. Therefore, the claimant contends that the ALJ’s determination regarding her vocational expert is not supported by substantial evidence and the matter must be remanded. We disagree.
In his written report, the claimant’s vocational expert specifically took note of the restrictions from Dr. Tyler involving the claimant’s psychiatric problems. The expert concluded that the claimant should be considered permanently and totally disabled based on a number of factors including her documented psychiatric impairments. Exhibit 5 at 37-38. In his testimony, the expert affirmed that he had relied on Dr. Tyler’s opinion. Tr. at 130-31. The expert was asked whether he would still believe that the claimant was permanently and totally disabled even assuming that the claimant did not have any mental restrictions. The expert stated that he could not state there were no jobs available, but that as a general rule there was no work that the claimant was able to obtain and keep. Tr. at 131-132. When asked to clarify his opinion by considering whether somebody
Page 5
who could not use their dominate hand was permanently and totally disabled he replied that, “they could be.” Tr. at 133.
We do not read this testimony as compelling the conclusion that it was his opinion that even absent Dr. Tyler’s mental restrictions the claimant would be unable to maintain employment. However, even if the testimony of the claimant’s vocational expert is read as asserted by the claimant, we are not persuaded that the ALJ erred in his finding. In his order, the ALJ merely noted that the claimant’s vocational expert “to some extent” relied on the psychological opinions of Dr. Tyler regarding mental restrictions. Findings at 3, § 12. In our opinion, the record contains substantial evidence to support the finding that the expert relied to some extent on the opinions of Dr. Tyler.
Moreover, here the ALJ determined that the opinions of the claimant’s vocational expert were unpersuasive. In reaching this conclusion the ALJ noted that the expert did not review all of the pertinent medical records and did not meet with the claimant in person before issuing his initial opinion. These are matters entirely within the province of the ALJ. We may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). In our view, extreme circumstances do not exist here for setting aside the ALJ’s determination that the claimant’s vocational exert was not credible. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). Therefore the ALJ’s credibility determination is binding.
III.
The claimant finally contends that the ALJ erred in failing to consider the opinion of Dr. Cotgageorge. Dr. Cotgageorge is a psychologist who had treated the claimant and testified regarding the claimant’s psychological condition. The claimant contends that the ALJ’s failure to discuss the opinions of Dr. Cotgageorge in his order constitutes reversible error. We disagree.
We first note, as acknowledged by the claimant, that the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here it is reasonable to assume that the ALJ was simply not persuaded by the opinions of Dr. Cotgageorge to find that the claimant was permanently and totally
Page 6
disabled. We note that the ALJ in his order discussed the opinions of the respondents’ psychiatric expert who opined that the claimant suffered from minimal mental impairment, which was not disabling. Additionally, the expert stated that the claimant was capable of working. The ALJ found these opinions were well explained, reasonable and persuasive and accordingly he credited the opinions of the respondents’ expert.
In addition, certain of Dr. Cotgageorge’s opinions can reasonably be construed as supporting a determination that the claimant was not permanently and totally disabled. Dr. Cotgageorge was asked during his deposition whether the claimant was permanently and totally disabled, and he answered that she was not. Cotgageorge Depo. at 21. In our view the ALJ was under no legal obligation to discuss the opinions of Dr. Cotgageorge and the absence of such a discussion in the ALJ’s order does not constitute reversible error.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 17, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
Page 7
ANNIE M GAUVIN, DURANGO, CO, (Claimant).
MICROFILM IMAGING OF DURANGO, Attn: ZANE TRACY, DURANGO, CO, (Employer).
STATE FARM FIRE CASUALTY COMPANY, Attn: RHONDA NORRIS, GREELEY, CO, (Insurer).
DAWES AND HARRISS BLOODSWORTH, PC, Attn: ELLIOT L. BLOODSWORTH, ESQ., DURANGO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: THOMAS M. STERN, ESQ., DENVER, CO, (For Respondents).
Page 1