NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK KELLISON, 

Petitioner

 v. 

DUTRA GROUP, SEABRIGHT 

INSURANCE COMPANY, and 

DIRECTOR, OFFICE OF WORKERS’ 

COMPENSATION PROGRAMS, UNITED 

STATES DEPARTMENT OF LABOR, 

Respondents

No. 17-71143

BRB No. 16-0242

MEMORANDUM*

Appeal from the Benefits Review Board

Argued and Submitted June 4, 2018

Pasadena, California

Before: FISHER and OWENS, Circuit Judges, and MOLLOY,** District Judge.

Jack Kellison petitions for review of the Benefits Review Board’s (“Board”) 

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

and indemnity benefits under the Longshore and Harbor Workers’ Compensation 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Donald W. Molloy, United States District Judge for 

the District of Montana, sitting by designation.

FILED

JUN 11 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Act, 33 U.S.C. §§ 901–50. Kellison alleges orthopedic and respiratory injuries 

sustained during his life-long career as a waterfront pile driver. He settled with all 

of his former employers except the last in time, Respondent Dutra Group. We 

have jurisdiction over Kellison’s petition under 33 U.S.C. § 921(c), and we affirm.

The Board reviews ALJ decisions under the substantial evidence standard, 

Stevedoring Servs. of Am. v. Director, OWCP, 297 F.3d 797, 801 (9th Cir. 2002), 

and must accept the ALJ’s findings “unless they are contrary to the law, irrational, 

or unsupported by substantial evidence,” Haw. Stevedores, Inc. v. Ogawa, 608 

F.3d 642, 648 (9th Cir. 2010) (citation omitted). We in turn “review the Board’s 

decision for errors of law and adherence to the substantial evidence standard and 

may affirm on any basis in the record.” Duhagon v. Metro. Stevedore Co., 169 

F.3d 615, 618 (9th Cir. 1999) (per curiam). We thus “conduct an independent 

review of the administrative record to determine whether the Board adhered to its 

standard of review.” Marine Power & Equip. v. Dep’t of Labor, 203 F.3d 664, 667 

(9th Cir. 2000). Substantial evidence means “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Lockheed 

Shipbuilding v. Director, OWCP, 951 F.2d 1143, 1145 (9th Cir. 1991) (quoting 

Richardson v. Perales, 402 U.S. 389, 401 (1971)). 

1. The ALJ’s denial of benefits for all of Kellison’s orthopedic conditions

applied the correct legal standard and is supported by substantial evidence. First, 
3 

the ALJ’s causation analysis was consistent with the aggravation standard outlined 

in Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co. (Price), 339 

F.3d 1102, 110405 (9th Cir. 2003). In Price, the medical testimony showed that 

Price’s one day of work aggravated his preexisting injury. Id. at 1105. Here, the 

ALJ concluded that there was no work-related aggravation of Kellison’s injuries, 

however minimal. 

Second, the ALJ’s decision that Dutra rebutted the § 920(a) presumption 

with substantial evidence is supported by the record. “[I]t is within the ALJ’s 

prerogative, as finder of fact, to credit one witness’s testimony over that of 

another.” Ogawa, 608 F.3d at 650 (quoting Duhagon, 169 F.3d at 618). Here, the 

ALJ determined that Dr. Greenfield, Dutra’s expert, was more credible than Dr. 

Stark, Kellison’s expert, because even though both had limited exposure to 

Kellison, Dr. Greenfield took his own x-rays and relied more heavily on medical 

records and objective evidence and less on Kellison’s self-reporting. Because the 

ALJ found Kellison not credible, her reluctance to rely on evidence based on his 

self-reporting was rational. Kellison has not shown that the ALJ’s reasons for 

crediting Dr. Greenfield’s explanations were “inherently incredible or patently 

unreasonable.” Id. Nor was Dutra required to “‘rule out’ all other possible causes 

of injury in order to rebut the presumption under 33 U.S.C. § 920(c).” Schwirse v. 

Director, OWCP, 736 F.3d 1165, 1172 (9th Cir. 2013). 
4 

Finally, once Dutra rebutted the § 920(a) presumption, “the burden shift[ed] 

to [Kellison] to prove entitlement to benefits by a preponderance of the evidence.” 

Id. at 1171 n.2. The ALJ weighed the evidence for each orthopedic injury, 

ultimately concluding Kellison failed to carry his burden. Kellison insists that the 

ALJ’s ultimate findings were irrational because she found that while Kellison’s 

orthopedic injuries pre-existed his employment at Dutra and were exacerbated by 

his post-Dutra exercise, his intervening work at Dutra did not aggravate, 

accelerate, or contribute to them. While Kellison’s statements regarding workrelated pain while at Dutra were sufficient to establish a prima facie case of 

cumulative injury, it was not sufficient to establish by a preponderance of the 

evidence the requisite causal link between his actual work at Dutra and his injuries. 

Id. Longshore jurisprudence has consistently recognized that the “natural 

progression of [an] initial injury” is distinct from an aggravation of that injury. 

Price, 339 F.3d at 1105.

2. The ALJ found that while Kellison was entitled to the § 920(a) 

presumption regarding his chronic obstructive pulmonary disorder (“COPD”), 

Dutra successfully rebutted it, and that weighing the evidence as a whole, Kellison 

failed to establish that his work at Dutra aggravated his COPD. Her decision is 

supported by substantial evidence.
5 

First, the ALJ’s factual determination that his COPD was not an 

occupational disease because Kellison failed to show the work environment had a 

peculiar degree of exposure was supported by substantial evidence. See Port of 

Portland v. Director, OWCP, 192 F.3d 933, 939 (9th Cir. 1999).

1 Second, as 

determined by the ALJ, there are no records of Kellison having respiratory 

problems between February 2009 and 2011. And, by the time he left Dutra, 

Kellison’s respiratory symptoms had actually improved. The weight of the 

evidence therefore does not support Kellison’s aggravation argument. Moreover, 

even if Dr. Harrison’s and Dr. Bressler’s competing opinions as to whether 

Kellison’s work at Dutra aggravated his COPD were in equipoise, that is not

sufficient for Kellison to meet his burden. See Director, OWCP v. Greenwich 

Collieries, 512 U.S. 267, 280 (1994) (explaining that the Administrative Procedure 

Act places the burden of persuasion squarely on the claimant). 

AFFIRMED.

 

1

 Even if Kellison’s COPD was an occupational disease, he would not be entitled 

to relief against Dutra under an occupational disease theory because he was 

diagnosed with COPD prior to working for Dutra. “If the disability is an 

occupational disease . . . the responsible employer is the one last exposing the 

worker to injurious stimuli prior to the date the worker became aware of suffering 

from the occupational disease.” Price, 339 F.3d at 1105 (emphasis added); see 

also Port of Portland, 192 F.3d at 940. Thus, any alleged error on the part of the 

ALJ in analyzing his COPD as cumulative trauma, as opposed to an occupational 

disease, would be harmless. Ogawa, 608 F.3d at 648.