Najeeba Mohammad v. Carolyn W. Colvin

FILED
NOT FOR PUBLICATION DEC 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAJEEBA E. MOHAMMAD, No. 13-35415
Plaintiff - Appellant, D.C. No. 2:12-cv-01391-BAT
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding**
Submitted December 10, 2014***
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Najeeba Mohammad appeals the district court’s order affirming the ALJ’s
denial of social security benefits. We review de novo and reverse only if the ALJ’s
decision was not supported by substantial evidence or if the ALJ applied the wrong
legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We affirm.
The ALJ found that Mohammad was “not entirely credible” because the
record contained (1) affirmative evidence of malingering and exaggeration of her
symptoms to obtain her children’s attention; (2) multiple inconsistent statements
regarding her activities; (3) discrepancies in the evidence regarding her ability to
speak English and Farsi; and (4) other evidence that undermined her claims
regarding the intensity, persistence, and limiting effects of her symptoms. As a
result of this credibility finding, the ALJ also rejected several medical opinions that
were based on Mohammad’s statements.
The ALJ’s determination that Mohammad was not “forthright” about her
language abilities is supported by substantial evidence. As the ALJ explained,
Mohammad had been observed speaking English, and various individuals reported
that they had been able to communicate with her in English, albeit with some
difficulty. Much of Mohammad’s argument challenges the ALJ’s decision to
credit the report of Doctor Meinz, an examining psychologist, which Mohammad
claims is unreliable due to insufficient translation. But the case on which she
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relies, Ghokassian v. Shalala, 41 F.3d 1300 (9th Cir. 1994), does not support her
claim. The claimant in that case challenged the ALJ’s decision for crediting a
malingering diagnosis made by a medical resident who did not use an interpreter.
Id. at 1302–03. But unlike Ghokassian, Meinz used an Iranian interpreter who
“had learned to interpret” the Pashtu that Mohammad spoke. We are sensitive to
the fact that the record might bear “more than one rational interpretation” as to the
efficacy of the resulting interpretation, but the ALJ’s findings that credit this report
are “reasonably drawn from the record” and therefore must be upheld. Molina,
674 F.3d at 1111 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008)).
Evidence of malingering is also sufficient to support a negative credibility
finding, which would render any claimed error regarding Mohammad’s language
skills harmless. See Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040–41
(9th Cir. 2003) (noting that evidence of malingering would support the rejection of
a claimant’s testimony, but noting no such evidence in that case). The evidence of
malingering in the record here includes three instances in which Mohammad’s
symptoms disappeared after arriving at the emergency room with her son, a
psychological evaluation that refers to a rule-out malingering diagnosis made by
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another examining psychologist, and the provisional malingering diagnosis from
Meinz.
Mohammad’s other arguments are unpersuasive because the ALJ offered
“germane” reasons for discounting the evidence that she would have this court
credit. See Molina, 674 F.3d at 1114 (requiring the ALJ to give “reasons that are
germane to each witness” before discounting lay testimony (quoting Dodrill v.
Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). Despite the “close bond” between
Mohammad and her therapist, Ms. Mowat, the ALJ found Mowat’s reliability to be
undermined by the fact that she accepted Mohammad’s self-reported symptoms.
The opinion of the nurse practitioner, Ms. Fisher, was inconsistent with the
observations recorded in her treatment notes. Finally, the ALJ offered two
legitimate reasons for giving little weight to the lay witness testimony.
AFFIRMED.
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