IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 96-60684
                          Summary Calendar
                       _____________________


BETHLEHEM STEEL CORPORATION,

                               Petitioner,

          v.

JOEL RAY CHILDRESS,

                               Respondent.

_________________________________________________________________

                 On Petition for Review of a Final
                Order of the Benefits Review Board
                              (94-0618)
_________________________________________________________________
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                           April 11, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

     An administrative law judge found that Joel Ray Childress

was permanently and totally disabled because of work-related

injuries covered by the Longshore and Harbor Workers’

Compensation Act and awarded benefits accordingly.     The Benefits

Review Board affirmed the judgment.   Petitioner Bethlehem Steel

Corporation appeals the determination by the Benefits Review

     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.

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Board that Joel Ray Childress is permanently and totally

disabled.   Finding no error, we affirm.

                           I. BACKGROUND

     Joel Ray Childress was employed by Bethlehem Steel

Corporation, a self-insured company, as a shipfitter in the early

1980s when he injured his back in the course and scope of his

employment on two separate occasions.   On September 23, 1981,

Childress was fitting a drip pan on a jackup rig when he slipped

and fell approximately fifteen feet though the drip pan onto some

scaffolding.   Childress was examined by Dr. Mitchell, a

neurosurgeon, and Dr. Nowlin, an orthopedist.   After

consultation, Dr. Mitchell and Dr. Nowlin assisted a third doctor

in performing a posterior lumbar interbody fusion of Childress’

fifth disk on May 12, 1982.   Following the surgery, Dr. Mitchell

assessed Childress with a permanent disability rating of twenty-

five percent of the whole body.   Dr. Nowlin assessed a twenty

percent permanent partial impairment to Childress’ lumbar spine.

     Childress returned to work on September 7, 1983.   On

September 9, 1983, Childress reinjured his back when he stepped

into a manhole.   He underwent a lumbar myelogram that showed a

defect which was later determined to be spinal stenosis, a

preexisting condition that was aggravated by the second injury.

Childress underwent surgery to correct this condition on May 21,

1984.

     Childress has not returned to work or attempted to find any

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other employment since his second injury.   The parties have

stipulated that Childress reached maximum medical improvement on

April 6, 1987.

     Childress brought a claim for total disability benefits

under the Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §§ 901-950, (“LHWCA”) against Bethlehem Steel in 1992.

The administrative law judge (“ALJ”) held a formal hearing to

address the nature and extent of Childress’ disability, as well

as several other issues not raised on appeal.

     In a deposition taken in 1987, Dr. Mitchell, who is

Childress’ primary physician, testified that Childress was fifty

percent medically disabled and one hundred percent occupationally

disabled as a shipfitter.   He restricted Childress from lifting

more than twenty-five pounds and recommended a limit of ten to

fifteen pounds.   He further restricted Childress from stooping,

crawling, squatting, climbing, or bending excessively.     Dr.

Nowlin testified that Childress was thirty percent permanently

disabled and recommended that Childress not lift more than thirty

pounds and avoid climbing or squatting.

     The Department of Labor arranged for a neurologist, Dr.

Newmark, to examine Childress in September 1989.   After

performing a standard neurological examination that lasted about

forty-five minutes, Dr. Newmark wrote a report in which he stated

that Childress’ symptoms did not fit in any kind of organic

pattern.   He also implied that it was to Childress’ financial

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benefit to exaggerate his symptoms, suggesting that there was

“certainly a large amount of secondary gain from his difficulty.”

     At the hearing, three vocational rehabilitation counselors

testified that Childress could find work within the medical

restrictions set by his doctors and produced evidence of

available jobs.   Childress, however, testified that he was in

such pain that he was unable to sit, stand, or walk for any

length of time either with or without medication, and that he had

to lie down for several hours twice a day.     Furthermore, he

testified that on average he could not get out of bed several

days each week because of intense pain.     Childress’ wife

corroborated his testimony.   All of the vocational rehabilitation

counselors agreed that if what Childress said about his condition

was taken as true, he could not be employed at any of the

available jobs.

     The ALJ found Childress and his wife to be credible and

ruled that Childress was permanently and totally disabled.       The

decision was automatically affirmed by the Benefits Review Board

(“BRB”), pursuant to the Omnibus Consolidated Rescissions and

Appropriations Act of 1996, Public Law 104-134, § 101(d), 110

Stat. 1321, because it had been pending before the BRB for more

than one year.    The ALJ’s decision is considered the final order

of the BRB for purposes of review by this court.

                           II. DISCUSSION

     This court reviews the decisions of the BRB for errors of

                                  4
law and applies the same substantial evidence standard that

governs the BRB’s review of the ALJ’s factual findings.       Mendoza

v. Marine Personnel Co., 

, 500 (5th Cir. 1995).       We

must affirm the BRB’s decision if the ALJ’s findings are

supported by substantial evidence and are in accordance with the

law.    

under the LHWCA is considered permanently

disabled if he has any residual disability after reaching maximum

medical improvement.    SGS Control Serv. v. Dir., Office of Work.

Comp., 

, 443 (5th Cir. 1996).     Whether that disability

is partial or total is evaluated in economic terms, in light of

the availability of suitable alternative employment.      

makes a prima facie case of total disability by

demonstrating that he is unable to perform his former job due to

his job-related injury.    

then shifts to the

employer to reduce or eliminate its compensation liability by

establishing that the employee is capable of performing other

realistically available jobs.     

as the finder of

fact, is entitled to determine the credibility of the witnesses

and weigh the evidence and need not accept the opinion of any

particular medical examiner.     Atlantic Marine, Inc. v. Bruce, 

, 900 (5th Cir. 1981).

       In this case, both parties stipulated that Childress’

injuries occurred during the course and scope of his employment.

Bethlehem Steel concedes that Childress is not able to return to

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his former job as a shipfitter, but argues that he can find

employment in a semi-skilled or unskilled job.    Thus, the

permanency of Childress’ disability is not at issue, but the

extent of it is.

       In arguing that Childress can find suitable employment,

Bethlehem Steel focuses solely on the medical and vocational

testimony and completely disregards Childress’ testimony.      As the

ALJ notes, however, “a finding of disability may be based on

claimant’s credible complaints of pain alone.”    See Mijangos v.

Avondale Shipyards, Inc., 

, 944 (5th Cir. 1991).      The

ALJ found the testimony of Childress and his wife to be credible.

Based on their testimony, the vocational rehabilitation

counselors stated that Childress could not be employed in any

job.    The ALJ’s decision that Childress is permanently and

totally disabled under the LHWCA is supported by substantial

evidence.

                           III. CONCLUSION

       For the foregoing reasons, we AFFIRM the final order of the

Benefits Review Board.




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