                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


LADONNA E. SEACHRIS,                             No. 11-72777

              Petitioner,                        BRB No. 11-0104

  v.
                                                 MEMORANDUM*
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAM;
BRADY-HAMILTON STEVEDORE
CO.; SAIF CORPORATION,

              Respondents.


                     On Petition for Review of an Order of the
                              Benefits Review Board

                            Submitted August 13, 2013**
                              San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

       LaDonna Seachris petitions for review of the Benefits Review Board’s

(“BRB”) order affirming an administrative law judge’s (“ALJ”) decision denying


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
death benefits under the Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §§ 901–50. We have jurisdiction under 33 U.S.C. § 921. Because the ALJ

erred in discrediting the testimony of Dr. Kafrouni, we grant the petition for review

and remand. Because the parties are familiar with the history of this case, we need

not recount it here.

      The ALJ’s determination that the claimant did not establish that the cervical

myelopathy caused by Cloyd Seachris’s (“Seachris”) 1979 work injury could have

accelerated the immobility and diabetes that contributed to his death is unsupported

by substantial evidence of the record considered as a whole. The ALJ’s credibility

determination as to Dr. Kafrouni’s testimony was “patently unreasonable” and

“conflict[s] with the clear preponderance of the evidence.” Hawaii Stevedores,

Inc. v. Ogawa, 608 F.3d 642, 648 (9th Cir. 2010) (internal quotation marks and

citation omitted).

      The ALJ unreasonably characterized Dr. Kafrouni’s testimony as

“ignor[ing]” and “dismiss[ing]” Seachris’s other health conditions when Dr.

Kafrouni did acknowledge that other conditions in addition to cervical myelopathy

contributed to Seachris’s immobility and diabetes. The ALJ also erred in finding

that Dr. Kafrouni’s opinion was unsubstantiated by medical records when the

preponderance of the evidence supports Dr. Kafrouni’s opinion. Dr. Kafrouni


                                          2
testified that Seachris’s medical records lacked reference to Seachris’s depression,

pain, and worsening cervical myelopathy because Seachris had not been examined

by a specialist and that Seachris’s decreased mobility over time was evidence itself

that his cervical myelopathy worsened over time. Additionally, the evidence

shows that Seachris’s medical records were incomplete and that Seachris’s own

1990 report to the Social Security Administration supports Dr. Kafrouni’s opinion

that cervical myelopathy likely caused chronic pain and depression and that the

resulting immobility likely contributed to Seachris’s diabetes and death.

      Therefore, we must grant the petition for review and remand to the BRB for

proceedings consistent with this disposition.

      PETITION GRANTED. REMANDED.




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