W. C. No. 4-486-659.Industrial Claim Appeals Office.
September 27, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated May 3, 2007, that denied the claimant’s claim for permanent total disability benefits. We affirm.
A hearing was held on the issue of the claimant’s entitlement to permanent total disability benefits. Following the hearing the ALJ entered findings of fact that for purposes of this order may be summarized as follows. On April 30, 1999, the claimant sustained a compensable injury to his low back while working as a stucco finisher for the employer. Dr. Bergland initially provided conservative treatment and Dr. Sung eventually performed decompressive surgery at the L4-5 and L5-S1 levels of the claimant’s spine. The claimant reached maximum medical improvement on October 24, 2001, with permanent restrictions. In 2002 the claimant opened a tire shop with his brother, and performed various of the job duties attendant to that business. On August 9, 2002, the claimant returned to Dr. Bergland complaining of increased low back and leg pain. The claim was apparently reopened and Dr. Richman became the claimant’s primary treating physician. He placed the claimant at maximum medical improvement again on July 22, 2004, and restricted the claimant to sedentary to light duty. On January 11, 2005, the claimant underwent a functional capacity evaluation and on February 10, 2005, Dr. Richman determined that the claimant was no longer at maximum medical improvement and required further treatment, including psychiatric treatment. Dr. Cohen diagnosed major depression and Dr. Nelson surgically implanted a spinal stimulator. On December 16, 2005, following another functional capacity examination, Dr. Richman
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imposed further restrictions that included lifting 10 pounds occasionally and five pounds frequently, pushing and pulling restrictions, and restrictions on stooping, kneeling, and bending. Following an MRI that showed no significant changes, Dr. Richman stated that the claimant had reached maximum medical improvement on February 8, 2006. Dr. Cohen determined that the claimant had reached maximum medical improvement with regard to his psychiatric condition on April 13, 2006. On September 5, 2006, Dr. Fall performed an independent medical examination at the request of the respondents and stated that the claimant could lift 25 pounds occasionally, 10 pounds frequently, could push or pull 25 pounds, and should change positions every half hour. Dr. Fall then reviewed surveillance video surreptitiously taken by the respondents and she concluded that the claimant’s actions on the video were inconsistent with his presentation at the independent medical examination. The ALJ expressly credited Dr. Fall’s opinions as persuasive. The ALJ also weighed the competing testimony from the parties’ respective vocational rehabilitation experts. Patricia Anctil testified on behalf of the respondents and Lynn Hoppin-Elms testified for the claimant. The ALJ expressly credited the opinions of the former and concluded that the claimant had failed to carry his burden of proving entitlement to permanent total disability benefits. Accordingly, he denied the claimant’s claim for those benefits.
The claimant appealed the ALJ’s order and argues that the evidence is legally insufficient to support the ALJ’s conclusion that the claimant failed to carry his burden of proof. Since the ALJ’s factual findings are supported by substantial evidence, and since those findings in turn support the ALJ’s conclusion we decline to disturb the order.
Section 8-40-201(16.5)(a), C.R.S. 2007, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” The burden of proof to establish permanent total disability is on the claimant. In determining whether the claimant has sustained his burden of proof, the ALJ may consider those “human factors” that define the claimant as an individual. 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). The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
Because the issue of permanent total disability is generally factual, we must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without
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regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). 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). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Other standards of review permit a reviewing forum to set aside an order where “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Quintana v. City of Westminster, 56 P.3d 1193 (Colo.App. 2002) (“clearly erroneous” standard of review). The substantial evidence standard of review, however, does not permit a reviewing forum to reweigh the evidence with a view toward determining whether, given the evidence as a whole, “a mistake has been committed” in the weighing of the evidence. Rather, the existence of substantial evidence supporting a factual finding precludes the reviewing forum from disturbing it and renders it binding.
In this regard, the ALJ’s assessment of the probative value of the evidence and his credibility determinations are matters solely within his province. We may not set aside a credibility determination 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) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2001). We will neither reweigh the evidence nor substitute our judgment for that of the ALJ regarding the credibility of the competing witnesses.
We disagree with the claimant’s argument that here reasonable minds could draw but a single inference from the factual record. If that were the case, of course, then the question of the claimant’s entitlement to permanent total disability benefits would be
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converted to one of law. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo. 1993) (a factual issue may become one of law only if reasonable minds can draw but one conclusion from undisputed facts).
Despite the claimant’s argument, there is ample evidence supporting the ALJ’s findings. Initially, we note that Dr. Fall disagreed with other medical experts regarding the claimant’s physical restrictions and his ability to work. She testified as an expert that she had examined the claimant and that because of a number of “non-physiologic finding[s]” the reliability of the claimant’s subjective reports of pain was questionable. Tr. at 101, 105. Further, she testified that she viewed the surveillance video and that there were “significant difference[s]” between the claimant’s behavior there and in her office. Tr. at 107. Her viewing of the surveillance video confirmed her opinion that the claimant’s self-reported limitations did not accurately reflect “his true functional range of motion.” Tr. at 108. She also disagreed with the physical restrictions imposed by other doctors and believed that the claimant was capable of additional physical effort. Tr. at 109. She also stated that she had reviewed the results of diagnostic imaging tests and nothing in those tests provided “an adequate explanation for the Claimant’s current level of complaints.” Tr. at 114. Dr. Fall also opined that the claimant’s reports of pain were “exaggerated.” Tr. at 167. Insofar as this testimony conflicted with other expert evidence in the record, it was fully the ALJ’s prerogative to credit it as persuasive. He expressly did so and we have no authority to reweigh conflicting evidence.
We also disagree with the claimant that the ALJ was compelled to reject Anctil’s testimony as a matter of law. She testified at great length concerning her opinion that the claimant was capable of obtaining employment, and she further testified that she had identified specific positions and had spoken with prospective employers. See e.g., Deposition of Patricia Anctil at 7 (March 30, 2007). As with the expert medical evidence, the vocational testimony was highly conflicting. The ALJ expressly weighed the evidence and credited the testimony of Anctil. We perceive nothing in her testimony, the reports, or the record as a whole suggesting that this disputed case could legally have only one possible outcome. Moreover, we note that the claimant had ample opportunity to test the opinions of Anctil through cross-examination and the presentation of competing evidence from the claimant’s expert. However, the mere existence of evidence in the record from which the ALJ 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).
Insofar as the claimant has made other arguments concerning the quality of the evidence presented by the respondents or relied upon by the ALJ, we have considered them and they do not persuade us that a different result is warranted.
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IT IS THEREFORE ORDERED that the ALJ’s order dated May 3, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
RIGOBERTO GARCIA, Attn: WILLIAM A. ALEXANDER, JR., 3055 AUSTIN BLUFFS PKWY, SUITE B, COLO SPGS, CO, 80918 (Claimant).
RESOURCE MANAGEMENT SYSTEMS, INC., Attn: C. SANDRA PYUN, C/O: DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, P.C., 3900 EAST MEXICO AVENUE, SUITE 1300, DENVER, CO, 80210 (Employer).
WESTERN GUARANTY FUND SERVICES, Attn: KRISTY EICHINGER, 1720 S BELLAIRE STREET, SUITE 408, DENVER, CO, 80222 (Insurer).
ALEXANDER RICCI, P.C., Attn: WILLIAM A. ALEXANDER, JR., 3055 AUSTIN BLUFFS PKWY, SUITE B, COLO SPGS, CO, 80918 (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, P.C., Attn: C. SANDRA PYUN, 3900 EAST MEXICO AVENUE, SUITE 1300, DENVER, CO, 80210 (For Respondents).