W.C. No. 4-237-745Industrial Claim Appeals Office.
August 31, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied the claim for permanent total disability benefits. The claimant argues the ALJ gave insufficient weight to the opinions of her treating physician, and contests the ALJ’s reliance on the opinions of the respondents’ vocational expert. We affirm.
The claimant, a schoolteacher, sustained compensable injuries to her shoulder, knee, and lower back. The claimant underwent shoulder surgery, arthroscopic knee surgery, and suffers from continuing back pain. The claimant’s treating physician opined the claimant is unable to return to work.
The respondents requested the claimant undergo an independent medical examination (IME). The IME physician opined the claimant is restricted to lifting 20 to 25 pounds on a repetitive basis, and should limit bending, stooping, and squatting. Based on these restrictions, as well as the claimant’s opinion of her limitations, the respondents’ vocational expert opined claimant is employable and able to earn wages. (Tr. p. 55). The expert stated the claimant has transferable skills to find work as a tutor or translator. The expert also identified other jobs including billing clerk, human resources assistant, night auditor, and front desk clerk which the claimant could perform.
The ALJ found the claimant failed to sustain her burden of proof to establish entitlement to permanent total disability benefits. In so doing, the ALJ credited testimony of the respondents’ vocational expert. The ALJ also noted the claimant’s treating physician never “assigned claimant any permanent physical restrictions.” Rather, the only physician to issue permanent physical restrictions was the respondents’ IME physician.
I.
The claimant first contends the ALJ erred in disregarding the treating physician’s opinion that the claimant is incapable of working. The claimant argues the law did not require the ALJ to reject the treating physician’s opinion merely because he did not enumerate specific physical restrictions. We find no error.
The claimant is not entitled to permanent total disability benefits unless she is “unable to earn any wages in the same or other employment,” and the claimant bears the burden of proof to establish permanent total disability. Section 8-40-201(16.5) (a), C.R.S. 1998. The question of whether the claimant carried the burden of proof is one of fact for determination by the ALJ. The ALJ must consider the effects of the industrial injury in view of “human factors” including the claimant’s general physical condition, work history, training, and the availability of work which the claimant is able to perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
Because the issue 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. 1998. The substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Weld County School District RE-12 v. Bymer, supra. Further, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to cite the evidence which she considers determinative of the issues before her. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ was most persuaded by the testimony of the respondents’ vocational expert, which was in turn based upon the restrictions imposed by the respondents’ IME physician. The relative weight to be accorded the opinions of the IME physician and the treating physician was a matter of fact for determination by the ALJ. The claimant’s argument notwithstanding, we do not understand the ALJ to have discredited the treating physician’s opinion based on an erroneous belief that she was required to do so as a matter of law. Rather, the ALJ was persuaded by the report of the IME physician who listed specific restrictions on the claimant’s physical activity. The ALJ was not persuaded by the treating physician’s broad statement that the claimant was unable to work because the opinion was not substantiated by particular medical restrictions. We cannot say the ALJ exceeded the bounds of her authority in evaluating the evidence in this manner.
II.
The claimant next contends the ALJ erred in relying on the opinions of the respondents’ vocational expert. The claimant points out that some of the specific jobs identified by the vocational expert were no longer available at the time of the hearing, and that the expert appeared to contradict herself concerning whether or not it was appropriate for the claimant to work as a night auditor. We find no error.
As we pointed out, the weight and credibility of testimony is a matter for determination by the ALJ. We specifically note that to the extent expert testimony contains internal inconsistencies the ALJ may resolve them by believing part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
We’ve reviewed the testimony of the respondents’ vocational expert and do not find it so inherently self-contradictory or contrary to other evidence in the case that it may be declared incredible as a matter of law. Although certain inconsistencies and contradictions appear in the record, and the witness was forced to admit that certain jobs might not be appropriate for the claimant, she certainly did not concede that the claimant is unemployable and permanently and totally disabled. In fact, the witness identified several categories of employment which she believes are available to the claimant, and one job at the Quality Inn which was available to the claimant at the time of the hearing. Under these circumstances, we decline to substitute our judgment for that of the ALJ concerning the credibility of the respondents’ vocational expert and the evidence she relied on in forming her opinion that the claimant is not permanently and totally disabled.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed August 31, 1999 to the following parties:
Jennie T. Martinez, 610 S. 10th, Rocky Ford, CO 81067
Rocky Ford School District R2, 601 S. 8th St., Rocky Ford, CO 81067-2013
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Michelle S. Carey, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
By: A. Pendroy