Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1980)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1980)

Frank HARVEY, Petitioner,v.OFFICE OF WORKERS COMPENSATION PROGRAMS, United StatesDepartment of Labor, Jones Oregon Stevedoring Co.,Respondents.

No. 87-7162.

United States Court of Appeals, Ninth Circuit.

Submitted July 11, 1988.* Decided July 21, 1988.

Before GOODWIN, Chief Judge, ALARCON and FERGUSON, Circuit Judges.


This appeal arises from a final decision of the Benefits Review Board of the Department of Labor (Board). Appellant Frank Harvey (Harvey), a claimant for workers' compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, suffered a compensable injury to one of his fingers. He challenges the Administrative Law Judge's (ALJ) conclusion, as affirmed by the Board, that he is only five percent permanently disabled.

On November 25, 1980 the long finger of Harvey's left (non-dominant) hand was crushed between moving parts of a forklift. The accident occurred during the course of his employment with appellee Jones Oregon Stevedoring Co. (Jones Oregon). This injury left Harvey with a lengthened finger, bulbous and distorted in form which does not fit neatly and normally against the other fingers of the same hand. The only issue before the ALJ was the degree of permanent partial disability.

In reaching his decision as to Harvey's permanent disability compensable under section 908(c) (9), the ALJ considered, inter alia, the testimony of Harvey and two physicians. Harvey gave credible testimony revealing that part of his finger is hypersensitive and part is hyposensitive, and that the finger does not flex normally. The ALJ further found that because of these and other abnormalities, "the hand feels awkward, the finger feels 'in the way' and [Harvey] repeatedly suffers discomfort of bumps, allows grip slippage, and has suffered temporary pinch injury."

Dr. Krisciunas, Harvey's treating physician, had concluded that there was no permanent physical impairment of his finger as a result of the injury. Dr. Button, Jones Oregon's medical expert, concluded that Harvey had five percent impairment. Harvey disputed the physicians' assessments and claimed that he suffered fifty percent disability. The ALJ, however, found that Harvey's estimate "seems high" and that Harvey's criticism of the physician's conclusions was "unsupported by formal medical evidence in this record."

The ALJ believed that he was constrained to decide within the limits of the expert assessments of Harvey's disability. Thus, the ALJ found a five percent permanent disability in Harvey's finger, despite his "personal opinion" that such an assessment "does seem low...."

Upon reconsideration before the ALJ and in his appeal to the Board, Harvey contended that the ALJ erred in considering himself limited by the upper estimate of the physicians' evaluations. The ALJ rejected this contention, reaffirming his perceived constraint despite his "subjective dissatisfaction with [his] original decision." The Board affirmed the ALJ's assessment of five percent disability because it was supported by substantial evidence. Harvey timely appealed. We have jurisdiction pursuant to 33 U.S.C. § 921.

The ALJ in this case did not find persuasive either of the physician's assessments of the degree of Harvey's disability, but in the exercise of his discretion, chose not to order an additional medical opinion. The ALJ flatly rejected Dr. Krisciunas' testimony, finding it to be "patently incredible."1  Despite Dr. Button's misidentification of the injured hand,2  the ALJ held that his testimony remained more credible than Dr. Krisciunas', and concluded that disagreement among the two medical physicians established that the issue was one of "medical judgment" and required an "expert-opinion basis." Lacking expert qualifications, the ALJ considered himself "obliged" to find a percentage of disability within the estimates given by the testifying physicians because to do otherwise would have produced a result not supported by substantial evidence. Harvey asserts that this was error, arguing that an ALJ is not bound by the upper estimate of the expert opinions regarding the degree of a claimant's medical impairment when determining the degree of permanent disability compensable under 33 U.S.C. § 908(c) (9). We disagree.3 

The testimony of medical experts is, without question, necessary to a determination of disability. It is axiomatic, however, that assuming a valid basis exists, a court may find that one or all of its experts are not credible witnesses, Ortega v. Bethlehem Steel Corp., 7 B.R.B.S. 639, 641 (1978); Iglesias v. Pittston Stevedoring Co., 6 B.R.B.S. 128, 132 (1977), and that credible expert opinion is not the only evidence a court may properly consider when determining the compensable degree of a claimant's disability.4  An ALJ is always free to "rely upon his own observation and judgment in conjunction with all the evidence before him." Crescent Wharf & Warehouse Co. v. Cyr, 200 F.2d 633, 637 (9th Cir. 1952).5 

The ability to consider non-expert testimony and other evidence, however, does not necessarily permit the ALJ to reach conclusions in excess of those reached by the experts. Rather, it provides a basis for the court's exercise of discretion in reaching a conclusion within the range of assessments offered by the experts, in light of all of the evidence presented by the parties.

Thus, we conclude that the ALJ did not err in believing that he was bound to determine the degree of Harvey's disability within the range of assessments made by the experts. Given the evidence in the record, a finding of greater than five percent disability would not be supported by substantial evidence.


The ALJ did not err as a matter of law in determining Harvey's permanent partial disability, and in fact reached the most favorable assessment supportable by substantial evidence in light of the record viewed as a whole.

The decision of the Board is AFFIRMED.


This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


It baffles the court that Harvey did not offer a different, or at least an additional, medical expert if he indeed considers himself to have fifty percent disability. Presenting Dr. Krisciunas, who believed Harvey had no physical impairment, obviously did not and could not have served Harvey's interests in receiving compensation


Dr. Button had incorrectly identified Harvey's injured finger as being on his right rather than his left hand. This misidentification was later corrected


This court will affirm the findings and conclusions of the ALJ if they are supported by substantial evidence, rational and in accordance with the law. 33 U.S.C. § 921(b) (3); O'Keeffe v. Smith Associates, 380 U.S. 359, 361 (1965)


For example, an ALJ may look to a claimant's ability to work, not as a measure of economic loss, but as a measure of physical injury. Mazze v. Frank J. Holleran, Inc., 9 B.R.B.S. 1053, 1055 (1979)


The Board recognized this standard in Mazze. 9 B.R.B.S. 1053. The ALJ had found none of the three medical experts before it to be persuasive, and arrived at his own assessment of the claimant's degree of disability within the range of those given by the experts. Upholding the ALJ's decision, the Board noted that an ALJ may make findings which fall within the range of disability testified to by medical experts, or which are contrary to the weight of medical evidence. Id. at 1055. The Board in Mazze did not, however, hold that the ALJ could assess disability at a degree entirely outside the limits set by qualified experts