Ladonna Seachris v. Owcp , 538 F. App'x 813 ( 2013 )

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NOT FOR PUBLICATION AUG 20 2013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
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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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