NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

HELEN W. KOCHER, et al., Petitioner,

v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAM, et al., BETHLEHEM STEEL CORP., ABERCROMBIE SIMMONS & GILLETTE OF FLORIDA, Respondents. No. 12-71891 BRB No. 11-0533

MEMORANDUM *

On Petition for Review of an Order of the Benefits Review Board Submitted March 13, 2014 ** San Francisco, California Before: WALLACE, McKEOWN, and GOULD, Circuit Judges. 

# FILED

MAR 18 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously concluded this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).Petitioner’s husband was an employee of Bethlehem Steel Corporation, where he was exposed to asbestos fibe rs in the early 1940s. He was exposed to enough asbestos fibers that they could ha ve caused asbestosis. He died on January 3, 2007 from complications related to coronary bypass and aortic valve replacement surgery. His widow, Helen Ko cher, filed a death benefits claim against Bethlehem Steel and the other respondents under the Longshore and Harbor Workers’ Compensation Act (Longshor e Act). After a formal hearing, the administrative law judge (ALJ) dismissed th e claim. Kocher app ealed that decision to the Benefits Review Board (Board), wh ich affirmed the ALJ. Kocher petitions for review from that order, arguing that th e Board and ALJ’s orders were not based on substantial evidence. 1 We have jurisdiction over her timely filed petition under 33 U.S.C. § 921(c), and deny the petition for review. Although the burden of persuasion remains on the disability claimant throughout the administrative proceedings, we have a three-step process governing the burden of production for claims under the Longshore Act. Hawaii Stevedores, Inc. v. Ogawa , 608 F.3d 642, 650-51 (9th Cir. 2010). Both the Board and ALJ

1 Kocher made other arguments before the ALJ and the Board, including procedural and other due process arguments. She does not renew those arguments in her briefs, so we do not consider them. Smith v. Marsh , 194 F.3d 1045, 1052 (9th Cir. 1999). 2properly followed this legal standard. Ko cher made a prima facie case that her husband suffered a harm, and that a workplace condition may have caused, aggravated or accelerated th e harm. As a result, she benefitted from a statutory presumption in her favor that the injury was work-related and thus compensable. See 33 U.S.C. § 920(a); Ogawa , 608 F.3d at 650-51. Second, Respondents offered “substantial evidence” before the ALJ that was “specific and comprehensive enough to se ver the potential connection between the disability and the work environment.” Id. at 651 (citation omitted). They offered, among other evidence, testimony from Dr. Revels Cayton, who testified that he believed “within 95 percent” that asbestos is did not contribute to the decedent’s death. This constituted “evidence that coul d satisfy a reasonable factfinder that the claimant’s injury was not work-related.” Id. The production of this evidence meant that the “presumption in favor of th e claimant ‘falls out of the case.’” Id. Once this presumption falls out of the case, “the ALJ moves to the third and final step of weighing the evidence as a whole to determine whether claimant has established the necessary causal link between the injury and employment.” Id. (citation omitted). The ALJ had to “evaluat e whether the claimant met his burden of persuasion by a preponderance of the evidence that the r ecord as a whole justifies awarding benefits.” Schwirse v. Dir., Office of Workers’ Compensation
3Program , 736 F.3d 1165, 1171 (9th Cir. 2013). The ALJ found in favor of Respondents. The Board had to accept those findings and affirm if they were supported by “substantial evidence in th e record considered as a whole.” Id. , citing 33 U.S.C. § 921(b)(3). We independently re view the record to determine if the Board adhered to this standard. Id. When the ALJ relies on witness credib ility, we will interfere only where the credibility determinations conflict with th e “clear preponderance of the evidence,” or where the determinations are “inheren tly incredible or patently unreasonable.” Ogawa , 608 F.3d at 648. Here, the ALJ made the credibility determination that Dr. Cayton was the most credible witness, and found one of Kocher’s main witnesses equivocal and thus not as credible. We deny Kocher’s petition because the ALJ’s credibility determination about Dr. Cayton’s testimony was not incredible, unreasonable, or in conflict with th e preponderance of the other evidence. The ALJ carefully explained why the other ev idence Kocher offered was unconvincing. Thus, there is substantial evidence in the record to support the ALJ’s holding in favor of Respondents. PETITION DENIED.

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