Rogers Avendaño Gabriel v. SOC, LLC (Board decision, June 7, 2024)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's denial of disability and medical benefits. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Rogers Avendaño Gabriel sought Defense Base Act benefits for a psychological condition he attributed to security guard work in Iraq. The administrative law judge found that Gabriel initially qualified for the presumption that the condition was work related, but SOC rebutted it with a medical opinion attributing the condition to later circumstances. Weighing the record as a whole, the judge found inconsistencies in Gabriel's accounts and gave greater weight to SOC's expert than to the opinions supporting a work-related PTSD diagnosis. The Board held that these credibility and medical evidence findings were supported by substantial evidence, so the denial of disability and medical benefits stood. It found that any improper use of other cases in evaluating one expert was harmless because the judge gave sufficient reasons grounded in this record.

Decision snapshot

• Authority: Work injury presumption under 33 U.S.C. § 920(a), as applied through the Defense Base Act.
• Outcome: Disability and medical benefits denial affirmed.
• Key point: After the employer rebutted the presumption, the judge could weigh conflicting medical opinions and testimony to decide whether the condition was work related.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 23-0167

ROGERS AVENDAÑO GABRIEL
)
)
Claimant-Petitioner
)
)
v. )
)
SOC, LLC
)
) DATE ISSUED: 06/07/2024
and
)
)
CONTINENTAL INSURANCE COMPANY
)
)
Employer/Carrier-
)
Respondents
) DECISION and ORDER

Appeal of Decision and Order Denying Benefits of Jonathan C. Calianos, District Chief Administrative Law Judge, United States Department of Labor.

Jacob S. Garn and Allison Graber (Attorneys Jo Ann Hoffman & Associates, P.A.), Lauderdale-By-The-Sea, Florida, for Claimant.

Sherman W. Jones, III, and Sergio A. Reynoso (Brown Sims), Houston, Texas, for Employer/Carrier.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and BUZZARD, Administrative Appeals Judges.

PER CURIAM:

Claimant appeals District Chief Administrative Law Judge (ALJ) Jonathan C.
Calianos’s Decision and Order Denying Benefits (2021-LDA-00458) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act), as extended by the Defense Base Act, 42 U.S.C. §§1651-1655 (DBA). We must affirm the ALJ’s findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant, a Peruvian citizen, allegedly sustained psychological injuries while working for Employer as a security guard in Iraq from July 2011 to January 2012.1 JX 4 at 2.2 During his last deployment to Iraq,3 Claimant developed persistent hives resistant to antihistamine therapy and was placed on medical leave on January 8, 2012, after which he did not return to work for Employer.4 See CX 19 at 10-19. Upon his return to Peru, Claimant worked as a security guard intermittently between 2012 and 2019; he claimed he could not maintain employment due to his psychological symptoms. JX 1 at 12-17.

Claimant stated he did not immediately seek treatment for his psychological injuries for economic reasons. JX 1 at 12. He claimed his symptoms intensified in 2019, and he sought a medical evaluation from psychologist Dr. Eduardo Avila Suarez on March 3, 2020. Id. at 17; CX 13 at 2. Dr. Avila diagnosed Claimant with Post-Traumatic Stress Disorder (PTSD) as a sequela of war.5 CX 13 at 3. On February 26, 2021, Claimant had an appointment with psychiatrist Dr. J. Angel Manrique Galvez, who also diagnosed him with late onset PTSD due to war sequelae. CX 15 at 4. Claimant stated he did not pursue

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Second Circuit because the district director who filed the ALJ’s decision is in New York. 33 U.S.C. §921(c); McDonald v. Aecom Tech. Corp., 45 BRBS 45 (2011); see also Global Linguist Solutions, L.L.C. v. Abdelmeged, 913 F.3d 921 (9th Cir. 2019).
2 Employer’s LS-202 First Report of Injury Form lists the date of Claimant’s alleged

injury as January 8, 2012. EX 1.
3 Claimant began his overseas work in 2007 with Triple Canopy, and he renewed his contract multiple times. JX 1 at 7; CX 21 at 1-19. He began working for Employer in 2011. JX 1 at 8; CX 19 at 16-19; CX 21 at 20-31.
4 In his deposition testimony, Claimant stated Employer’s camp physician also instructed him to see a psychologist, but the record evidence from that doctor does not reflect the recommendation and only addresses treatment for Claimant’s hives. See JX 1 at 12; CX 19 at 10.
5 For the sake of consistency, we shall identify the doctors as did the ALJ.

2 further treatment with Drs. Avila or Manrique due to his economic circumstances. JX 1 at 16.

At Employer’s request, psychiatrist Dr. Yuri Velazco Lorenzo examined Claimant on April 19, 2021, performing various psychometric assessments to determine Claimant’s psychological condition. EX 5 at 1-2, 7. Dr. Lorenzo disagreed with Drs. Avila and Manrique that Claimant has PTSD related to his work in a warzone. He diagnosed Claimant with adjustment disorder with depressed mood, concluding his condition began several years after his employment and likely resulted from his inability to sustain employment and his mother’s health complications. Id. at 10-12, 30-32.

Claimant also reported to psychiatrist Dr. Gustavo R. Benejam on September 23, 2021, for another medical evaluation. CXs 16, 17. Dr. Benejam reviewed medical reports from Drs. Avila, Manrique, and Lorenzo, administered psychological tests, and opined Claimant’s symptoms are consistent with PTSD due to his work-related exposures. CX 16 at 4-9.6

On June 9, 2020, Claimant filed his claim, seeking benefits for a work-related psychological injury. JX 2 at 1. Employer controverted the claim, EX 2, and the case was forwarded to the Office of Administrative Law Judges (OALJ), where the parties opted for a hearing on the record. On February 2, 2023, the ALJ issued his Decision and Order Denying Benefits (D&O), finding Claimant did not establish his psychological symptoms were caused by his work for Employer.

The ALJ initially found Claimant invoked the presumption that his injury is compensable under Section 20(a), 33 U.S.C. §920(a), by proffering documentation of a PTSD diagnosis from Drs. Avila, Manrique, and Benejam, along with evidence that his guard duties in Iraq could have caused his psychological condition. D&O at 18-19.

6 Both Drs. Benejam and Lorenzo prepared addendum reports as follow-ups to their

initial reports. On March 12, 2022, Dr. Benejam provided further clarification regarding his testing. CX 17 at 1. Dr. Benejam concluded that despite Claimant’s testimony indicating feigning, and some testing suggesting feigned symptoms, Claimant’s scores on the Miller Forensic Assessment of Symptoms Test (M-FAST) indicate genuine psychiatric symptoms. CX 17 at 2. Dr. Lorenzo drafted an addendum to his initial medical report on July 9, 2022, after reviewing Claimant’s deposition testimony and medical reports from Drs. Avila, Galvez, and Benejam. EX 7. Dr. Lorenzo concluded Dr. Benejam ignored testimony supporting Claimant’s desire to return to Iraq despite claiming symptoms of PTSD and used tests insufficient to diagnose PTSD. EX 7 at 4, 18-19. He also observed that his own testing results showed Claimant was simulating his symptoms.

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Further, the ALJ determined Employer rebutted the presumption with Dr. Lorenzo’s medical opinion stating Claimant does not have PTSD or a psychological condition causally related to his work but, rather, suffers from an adjustment disorder related to issues in his personal life that manifested after his return to Peru. Id. at 19.

Weighing the evidence as a whole, the ALJ found Claimant’s credibility as a witness was questionable due to inconsistencies in his deposition testimony and inconsistent reports to the doctors of record. D&O at 19-20. The ALJ gave minimal weight to Drs. Avila’s and Manrique’s opinions because they relied heavily on Claimant’s statements and did not provide any support for their PTSD diagnoses. Id. at 21. Comparing Drs. Lorenzo’s and Benejam’s reports, the ALJ accorded greater weight to Dr. Lorenzo’s opinion, finding the results of the psychological tests that Dr. Benejam relied upon unpersuasive because they are based on self-reporting from Claimant, who lacks credibility, while Dr. Lorenzo’s testing involved more objective assessments. Id. at 21-24. The ALJ further found unpersuasive Dr. Benejam’s opinion that Claimant’s test responses “that can contribute to a possible interpretation of feigning” related to his “current symptoms,” as it was unsupported and not adequately explained. Id. at 22.7 Consequently, he found Claimant did not establish a work-related psychological condition on the record as a whole and , therefore, denied benefits. Id. at 24.

Claimant appeals the ALJ’s decision. He contends the ALJ erred in determining he lacked credibility and in failing to give his treating physicians proper weight. He further maintains the ALJ erred in taking judicial notice of evidence not in the record to discredit Dr. Benejam, in violation of the Administrative Procedure Act (APA), 5 U.S.C. §556(e). Finally, Claimant asserts Employer’s and Carrier’s alleged “abuses” and exploitation of foreign nationals violate the purpose of the Act and require the ALJ’s decision be reversed. Employer responds, urging affirmance and asserting the ALJ made no evidentiary errors or other errors when weighing the evidence, and asserts Claimant’s public policy argument is inappropriate.

Initially, we disagree with Claimant’s assertations regarding the ALJ’s credibility findings and his weighing of the evidence. Where a claimant invokes the Section 20(a) presumption that his injury is work-related, as is the case here, Rose v. Vectrus Systems Corporation, 56 BRBS 27 (2022) (en banc), appeal dismissed (MDFL Aug. 24, 2023); see also Rainey v. Director, OWCP, 517 F.3d 632, 634 (2d Cir. 2008); American Stevedoring, Ltd. v. Marinelli, 248 F.3d 54, 64 (2d Cir. 2001), the burden shifts to the employer to

7 The ALJ also found, based on past OALJ decisions, that Dr. Benejam’s report in

this case substantially mirrored and borrowed language from previous reports submitted in other claims. D&O at 23.

4 produce substantial evidence that the claimant’s condition is not work-related. Because Employer successfully rebutted the presumption, and Claimant does not dispute that finding, he is no longer entitled to the presumption, and the issue of causation must be resolved on the evidence in the record as a whole, with Claimant bearing the burden of persuasion by a preponderance of the evidence. Universal Maritime Corp. v. Moore, 126 F.3d 256, 262 (4th Cir. 1997); Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996).

In evaluating the evidence as a whole, the ALJ is entitled to weigh the medical and other evidence and draw his own inferences from it. He is not bound to accept the opinion or theory of any particular medical expert. Perini Corp. v. Heyde, 306 F.Supp. 1321, 1325- 1326 (D.R.I. 1969). The Board is not free to re-weigh the evidence or to make credibility determinations. Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 323 (2d Cir. 1993).

In weighing the evidence, the ALJ questioned the reliability of Claimant’s testimony because of inconsistencies in describing his symptoms and experiences both in Iraq and upon his return to Peru to Drs. Avila, Manrique, Lorenzo, and Benejam, and in his deposition. D&O at 19-21. Specifically, the ALJ noted Claimant asserted in his deposition that he obtained employment immediately upon his return from Iraq in 2012 but later stated he did not begin working until 2013. Id. at 19; JX 1 at 13-15. He further determined Claimant made misrepresentations regarding the camp physician telling him to seek psychological treatment when letters from the camp physician recommended only that Claimant see allergy specialists for his hives. Id. at 20; JX 1 at 8-12; CX 19 at 10. In addition, the ALJ found differences between what Claimant informed Drs. Avila, Manrique, Benejam, and Lorenzo regarding his war experiences and symptoms, including whether he developed insomnia before or after his employment with Employer, whether he had to take cover on a larvae-covered warehouse floor to protect himself, and whether he found part of a finger covered in blood while on duty. Id. at 20-21; JX 1 at 7-10, CXs 13 at 3, 15 at 2; EX 5.8

8 For example, Claimant testified during his deposition and told Drs. Lorenzo and

Benejam that he was sent on medical leave in 2012 for psychological reasons, but the camp physician’s report only indicated he should see allergy specialists. CX 19 at 10, EX 7 at 3-4. Claimant told Dr. Benejam that he had to take cover on a warehouse floor covered in larvae in 2011, which he reiterated during his deposition, but did not report this to any other doctor. JX 1 at 89; see CXs 13, 15, and 16. In addition, Claimant told Dr. Benejam that he was traumatized when he saw part of a finger on the ground covered in blood while on duty, but he did not state this to anyone else or mention it as a traumatizing event in his deposition. CX 16 at 3.

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 Claimant argues these inconsistencies are “minor discrepancies within the expected range of variance.” Cl. Brief at 6-7. He contends the ALJ handpicked evidence to formulate his opinion while ignoring evidence where he was consistent. Cl. Brief at 6. However, the ALJ is entitled to evaluate the credibility of the witnesses, Pietrunti v. Director, OWCP, 119 F.3d 1035, 1042 (2d Cir. 1997); John W. McGrath Corp. v. Hughes, 289 F.2d 403, 405 (2d Cir. 1961), accept parts of a witness’s testimony while rejecting others, Banks v. Chicago Grain Trimmers Ass’n, 390 U.S. 459, 467 (1968); Pimpinella v. Universal Mar. Serv. Inc., 27 BRBS 154, 157 (1993), and draw his own inferences and conclusions from the evidence. Compton v. Avondale Indus., Inc., 33 BRBS 174, 176-177 (1999). We will not interfere with credibility determinations unless they are “inherently incredible or patently unreasonable.” Cordero v. Triple A Mach. Shop, 580 F.2d 1331, 1335 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979). In light of the inconsistencies in the record as it relates to Claimant’s description of his symptoms and experiences, the record supports the ALJ’s determination that Claimant is not a credible witness. Carswell v. E. Pihl & Sons, 999 F.3d 18, 27 (1st Cir. 2021), cert. denied, 142 S. Ct. 1110 (2022).

Claimant next contends the ALJ erred in giving greater weight to Dr. Lorenzo’s opinion than to his “treating physicians” and medical expert. He avers the ALJ’s weighing of the medical evidence is flawed because federal courts have held the opinions of treating physicians should be accorded “considerable and special weight.” Cl. Brief at 8. In addition, he contends Dr. Lorenzo’s medical opinion is insufficient to outweigh the opinions of his treating physicians because Dr. Lorenzo purposefully refrained from administering any self-reporting diagnostic tests. Id. Claimant also asserts the ALJ failed to give sufficient weight to Drs. Avila’s and Manrique’s credentials and experience. He avers that because “impartial treating doctors” generally do not “create medical reports in anticipation of litigation,” the ALJ’s decision to give them limited weight for being less detailed than the opinions of the non-treating doctors “misconstrues the role of a treating physician.” Id. at 8-11.

Claimant cites to Pietrunti, 119 F.3d 1035, Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), amended, 164 F.3d 480 (9th Cir. 1999), cert. denied, 528 U.S. 809, and Rivera v. Harris, 623 F.2d 212 (2d Cir. 1980), in support of his argument that Drs. Avila’s and Manrique’s opinions are entitled to significant weight because they are his “treating physicians.” While these cases address the weight to which treating physicians’ opinions may be entitled, they are distinguishable from this case, and we reject Claimant’s assertion that they stand for the proposition that a claimant’s treating physicians are automatically entitled to significant weight on all issues.

First, whether Drs. Avila and Manrique are actually “treating physicians” as Claimant asserts, and as contemplated by case law addressing the weight that a treating physician’s opinion may be afforded, is questionable in this case. The record establishes 6 they each saw Claimant only one time and rendered a diagnosis but did not further provide Claimant any treatment. So, although Claimant chose them for evaluation purposes, each is arguably no more of a “treating” physician than an evaluating expert physician. A physician’s treating of a condition and familiarity with the claimant are what warrants considering them to be a “treating” physician. See Amos, 153 F.3d at 1054 (“we afford greater weight to a treating physician’s opinion because he is employed to cure and has a greater opportunity to know and observe the patient as an individual”) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

Further, this case is distinguishable from Pietrunti, where the medical evidence on causation was “uncontroverted and unanimous” and the ALJ erroneously substituted his opinion for the treating physician’s opinion. Pietrunti, 119 F.3d at 1043-1044. Nor is it like Amos, where the question was whether the claimant’s treating physicians proposed a reasonable course of treatment. Amos, 153 F.3d at 1054. Moreover, although Rivera explained treating physicians’ opinions are generally given considerable weight, the court also stated such dispositive weight need not be given when there is substantial contrary evidence. Rivera, 623 F.2d at 216. Therefore, in those cases where there is no contrary evidence disputing a treating physician’s causation opinion or recommended course of treatment, it would be reasonable to give “considerable” weight to that opinion. In this case, however, the question is whether Claimant suffered a compensable injury at all given the differing medical opinions on whether his overseas work caused his psychological condition.

Because there are conflicting medical opinions, the ALJ was obligated to weigh the evidence. That another adjudicator may have reached a different result is an insufficient reason to disturb an ALJ’s finding that is supported by substantial evidence. Sea-Land Services, Inc. v. Director, OWCP [Ceasar], 949 F.3d 921, 927 (5th Cir. 2020). As stated above, an ALJ is entitled to evaluate the credibility of the witnesses, accept all or any part of a witness’s testimony, and draw his own inferences and conclusions from the evidence. Banks, 390 U.S. at 467; Pietrunti, 119 F.3d at 1042; Calbeck v. Strachan Shipping Co., 306 F.2d 693, 695 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Hughes, 289 F.2d at 405; Perini Corp. v. Heyde, 306 F. Supp. 1321, 1325-1326 (D.R.I. 1969); Compton, 33 BRBS at 176-177; Pimpinella, 27 BRBS at 157. While treating physicians’ opinions may be entitled to special weight based on their familiarity with the claimant’s injuries, Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978), the ALJ must nevertheless consider the quality of the physicians’ reasoning, the bases for their determinations, and whether their overall rationale is supported. Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).

The record in this case contains reports from four physicians addressing the cause of Claimant’s psychological condition which are not all in agreement. The ALJ properly weighed and assessed their opinions when considering the cause of Claimant’s 7 psychological condition based on the record as a whole. Victorian v. International-Ma tex Tank Terminals, 52 BRBS 35, 41-42 (2018), aff’d sub nom. International-Matex Tank Terminals v. Director, OWCP, 943 F.3d 278 (5th Cir. 2019). Drs. Avila and Manrique, whom Claimant asserts are his treating providers, each evaluated him only once. Dr. Avila evaluated him on March 3, 2020, and provided a report diagnosing him with PTSD as a sequela of war based on anxiety, distress, frustration, irritability, impatience, impulsivity, violence, lack of tolerance, excessive stress, sleep disorders, social isolation, and depressive episodes. CX 13 at 3. As the ALJ found, however, Dr. Avila’s report does not detail any testing or evaluations that the doctor performed to correspond Claimant’s self- reported symptoms to a PTSD diagnosis. D&O at 21. Dr. Manrique examined Claimant on February 26, 2021, but his report, as the ALJ described, only mentioned a “mental exam” with a list of symptoms and concluded with a “diagnostic impression” of late onset PTSD due to war sequelae. Id.; CX 15 at 4.

In rejecting their opinions, the ALJ concluded Drs. Avila’s and Manrique’s reports were largely based on Claimant’s subjective complaints and therefore discounted them due to Claimant’s lack of credibility, D&O at 21, which we have already affirmed. Further, he determined their reports deserved minimal weight because they did not provide any explanation for why Claimant’s symptoms supported a PTSD diagnosis. 9 Id.; see Carswell v. E. Pihl & Sons, 999 F.3d 18, 31-33 (1st Cir. 2021), cert. denied, 14 S. Ct. 1110 (2022) (the ALJ did not err by not giving great weight to conclusory and vague expert witness testimony).

Turning to Dr. Benejam’s and Dr. Lorenzo’s opinions, Dr. Benejam diagnosed Claimant with PTSD while Dr. Lorenzo opined he had Adjustment Disorder with depressed mood from his economic situation and family health struggles after completing his overseas employment and returning to Peru. CX 16 at 4-5; EX 5 at 9-10. The ALJ gave Dr. Lorenzo’s medical opinion more weight because he found Dr. Benejam, Claimant’s expert who also evaluated him only once, relied on Claimant’s self-reported symptoms and experiences while Dr. Lorenzo, Employer’s expert, performed and based his opinion on objective tests. D&O at 22, 24. In addition, the ALJ questioned elements of Dr. Benejam’s report that contained descriptions of incidents Claimant had purportedly experienced, but which were not discussed by any other expert in the record. Id. at 22. Comparing their reports, the ALJ also found persuasive Dr. Lorenzo’s critique of Dr. Benejam’s opinion that Claimant may not have demonstrated malingering, and Dr. Lorenzo’s assessment that Claimant’s report to Dr. Benejam that he had experienced anxiety, depression, and

9 Contrary to Claimant’s assertions, the ALJ appropriately detailed both Drs. Avila’s

and Manrique’s medical credentials and experience. D&O at 6, 8; CXs 12, 14.

8 nightmares, seemingly since the beginning of his deployment in 2007, is contradicted by Claimant’s decision to renew his contract with Employer four times.10 Id. at 24.

Thus, contrary to Claimant’s assertions, the record supports the ALJ’s decision to give Dr. Lorenzo’s opinion greater weight than those of the other doctors.11 Carswell, 999 F.3d at 32. Because the ALJ’s credibility determinations are rational and supported by substantial evidence in the record, we affirm his finding that Claimant’s psychological

10 The ALJ’s decision to give greater weight to Dr. Lorenzo’s opinion over Dr.
Benejam’s due to Dr. Benejam’s reliance on Claimant’s self-reported symptoms and experiences is supported by the record. CX 16 at 6-9. Dr. Benejam’s report indicates he used the Beck Depression Inventory (BDI), Beck Anxiety Inventory (BAI), Beck Scale for Suicide Ideation (BSI), the Posttraumatic Stress Disorder Checklist for DSM-5 (PCL-5), and the Structured Inventory of Malingered Symptomatology (SIMS) tests. All are self- report measures that rely on Claimant’s statements to diagnose psychological disorders. Id. Conversely, while Dr. Lorenzo also administered SIMS, he reported also administering the Test of Memory Malingering (TOMM) and Miller Forensic Assessment of Symptoms Test (M-FAST), which are psychometric, objective tests. EX 5 at 7-10. As the ALJ indicated, Dr. Benejam acknowledged the possibility that Claimant feigned his symptoms as indicated by his M-FAST and SIMS analyses, but his addendum report stated, without evidentiary support, that the testing could relate to Claimant’s current symptoms. CXs 16 at 8, 17 at 2; D&O at 22.
11 Claimant also contends the ALJ took improper judicial notice of evidence not in

the record, by criticizing Dr. Benejam’s report in this case as being notably similar to medical reports the ALJ found he authored in other cases before the OALJ. A factfinder may take judicial notice of verifiable government websites and documents. See Duvall v. Mi-Tech Inc., 56 BRBS 1, 2 n.6 (2022). Court documents, including previous decisions, typically fall under this category because they are verifiable and a matter of public record. Id.; Hill v. Avondale Industries, Inc., 32 BRBS 186, 188 (1998). However, if an ALJ takes judicial notice of something not submitted into the record, then the parties must be presented with an opportunity to respond. See Jordan v. James G. Davis Constr. Corp., 9 BRBS 529, 530 (1978) (an ALJ must provide the parties with “the opportunity to contradict the noticed facts with evidence to the contrary” if he decides to take judicial notice of medical evidence not provided in the evidentiary record). Nevertheless, any improper judicial notice the ALJ took is harmless in this case, as the ALJ provided sufficient rationale based on the record in this claim for giving Dr. Lorenzo’s opinion greater weight than Dr. Benejam’s. See Fleishman v. Director, OWCP, 137 F.3d 131, 135 (2d Cir. 1998), cert. denied, 525 U.S. 981(1998).

9 condition is not work-related and, therefore, affirm the denial of disability and medical benefits.12 Carswell, 999 F.3d at 32.

Accordingly, we affirm the ALJ’s Decision and Order Denying Benefits.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

12 Claimant also argues public policy supports reversing the ALJ’s decision, essentially stating the ALJ erred by not resolving doubtful questions of fact in this case in his favor and asserting DBA employers have “exploited foreign nationals.” Cl. Brief at 18. The purpose of the Act, as extended by the DBA, is to provide a means for covered employees to recover against their employers for injuries sustained during the course of their employment. O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 62 (2d Cir. 2002). Under the Act, after a claim has been filed, a hearing must be held upon the application of any interested party to be presided over by an ALJ. 33 U.S.C. §§919(c), (d). However, claimants are not given the benefit of the doubt under the Act; once the Section 20(a) presumption is invoked but is then rebutted, claimants are required to prove their case, bearing the ultimate burden of persuasion that they sustained a disability as a result of a work-related injury. Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994); Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996). There is no showing that Employer impeded Claimant in pursuing his claim or otherwise violated the requirements of the Act.

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