Hamidullah Makhmoor v. Mission Essential Personnel

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAMIDULLAH MAKHMOOR, No. 18-70723
Petitioner, BRB No. 17-0339
v.
MEMORANDUM*
MISSION ESSENTIAL PERSONNEL; et
al.,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Submitted October 23, 2019**
San Francisco, California
Before: WALLACE and BRESS, Circuit Judges, and ENGLAND,*** District
Judge.
Hamidullah Makhmoor seeks review of the Benefits Review Board’s (Board)
order affirming the denial of total disability benefits under the Longshore and Harbor
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
Workers’ Compensation Act, 33 U.S.C. § 901, et seq., as extended by the Defense
Base Act, 42 U.S.C. § 1651, et seq. We have jurisdiction under 33 U.S.C. § 921(c),
and we affirm.
In reviewing the Board’s decisions, this Court conducts an independent
review of the record, though the “task is not to reweigh the evidence, but only to
determine if substantial evidence supports the ALJ’s findings.” Lockheed
Shipbuilding v. Dir., OWCP, 951 F.2d 1143, 1146 (9th Cir. 1991). The substantial
evidence standard requires a basis in evidence that “a reasonable mind might accept
as adequate to support a conclusion.” Rhine v. Stevedoring Servs. of Am., 596 F.3d
1161, 1165 (9th Cir. 2010) (quotation omitted). Here, the ALJ heard testimony from
six witnesses and then issued a detailed, 49-page decision finding that Makhmoor
failed to prove that he had sustained psychological injuries from working as a
translator for Mission Essential, a U.S. military contractor in Afghanistan.
Substantial evidence supports the ALJ’s determination.
The ALJ concluded, and the parties do not dispute, that Makhmoor was
entitled to a statutory presumption that his alleged psychological injuries were
workplace-related. See 33 U.S.C. § 920(a). To rebut this presumption, Mission
Essential was required to present “substantial evidence that is specific and
comprehensive enough to sever the potential connection between the disability and
the work environment.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th
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Cir. 2010) (quotation omitted). We agree with the Board that Mission Essential
satisfied its burden in that regard. Mission Essential introduced the expert opinions
of Dr. Perry Maloff and Dr. Jared Maloff who opined, after examining Makhmoor
about his workplace and symptoms and conducting objective psychological testing,
that there was no workplace-related injury because Makhmoor was malingering, i.e.,
exaggerating or fabricating symptoms.
Makhmoor contends that Mission Essential’s evidence does not rebut the
causal connection because it implies that he was not psychologically injured. What
both experts actually concluded, however, was that no workplace-related harm had
occurred, and that Makhmoor was malingering. “[U]nequivocal testimony of a
physician that no relationship exists between an injury and a claimant’s employment
[is] sufficient to rebut the § 920(a) presumption.” Duhagon v. Metro. Stevedore Co.,
169 F.3d 615, 618 (9th Cir. 1999). Such evidence “could satisfy a reasonable
factfinder that the claimant’s injury was not work-related.” Ogawa, 608 F.3d at 651.
With the § 920(a) presumption removed, the ALJ then weighed all of the
evidence, finding that Makhmoor failed to meet his burden to prove a work-related
injury by the preponderance of the evidence. See Albina Engine & Machine v. Dir.,
OWCP, 627 F.3d 1293, 1298 (9th Cir. 2010); Ogawa, 608 F.3d at 651. As required,
the ALJ “‘took into consideration all the testimony given at the hearing, as well as
all medical reports of other doctors submitted to him.’” Id. at 653 (quoting Walker
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v. Rothschild Int’l Stevedoring Co., 526 F.2d 1137, 1139 (9th Cir. 1975) (per
curiam)). In evaluating the evidence, the ALJ made numerous, well-explained
credibility determinations. This Court adheres to an ALJ’s credibility
determinations unless they “‘conflict with the clear preponderance of the evidence,
or where the determinations are inherently incredible or patently unreasonable.’”
Ogawa, 608 F.3d at 648 (quoting Todd Pac. Shipyards Corp. v. Dir., OWCP, 914
F.2d 1317, 1321 (9th Cir. 1990)).
There is no basis for overturning the ALJ’s well-supported determinations.
Makhmoor argues that the ALJ discredited the opinions of his treating professionals
and experts solely because they failed to conduct objective psychological testing.
But although the ALJ stated that objective measures and validity indicators were
“particularly helpful in a situation such as this one” where the claimant’s credibility
was dubious, the ALJ also acknowledged that there was “no requirement” that
objective testing be performed.
Instead, the ALJ’s credibility determinations were based on the thoroughness
and asserted bases of each professional’s opinion or diagnosis. The ALJ explained
his decision not to defer to the opinions of Makhmoor’s treating professionals, Dr.
Afshar and Ms. Phillips, finding them perfunctory and contradicted by other
evidence. This was proper, as an ALJ “need not accept a treating physician’s opinion
which is ‘brief and conclusory in form with little in the way of clinical findings to
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support [its] conclusion.’” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)
(quoting Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986)).
The ALJ also analyzed factors undermining the credibility of Makhmoor’s
expert, Dr. Takamura. For example, the ALJ explained that Dr. Takamura had relied
heavily on Makhmoor’s own self-reporting, even though Dr. Takamura had himself
questioned Makhmoor’s credibility. The ALJ also found Makhmoor “only
minimally credible” considering the psychological test results establishing
malingering and Makhmoor’s own testimony. Makhmoor testified, for example,
that he could return to work if his knee improved but failed to “mention his alleged
psychological injury until prompted by his attorney.” The ALJ’s credibility
determinations were sound and not incredible or unreasonable. It was “within the
ALJ’s prerogative, as finder of fact, to credit one witness’s testimony over that of
another.” Duhagon, 169 F.3d at 618.
Makhmoor’s other objections to the ALJ’s credibility determinations are
similarly unsupported. For example, Makhmoor maintains that expert opinions
concluding he was malingering cannot be reconciled with the fact that he reported
depression in 2011, well before making a disability claim. The ALJ did, however,
evaluate the timeline of events despite Makhmoor’s claims otherwise. The ALJ
simply found that “being treated for PTSD and major depressive disorder does not
prove Claimant actually suffers from these conditions,” and “[t]here is no indication
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in the medical records that either [treating physician] tested Claimant to determine
if he was malingering.” Makhmoor again offers no valid basis for disturbing the
ALJ’s findings, which are supported by substantial evidence.
Finally, Makhmoor asserts that the ALJ’s reasoning was inconsistent because
he credited expert opinions that Makhmoor was malingering, while also crediting
Makhmoor and his family’s testimony that Makhmoor’s temperament changed after
he returned from Afghanistan. These positions do not reflect any logical
inconsistency. It was Makhmoor’s burden to prove a work-related injury by a
preponderance of the evidence. See Albina Engine, 627 F.3d at 1298. The ALJ, in
his thorough treatment of the record, could permissibly recognize that Makhmoor
may have changed during his time in Afghanistan, while also finding (for example)
that other aspects of Makhmoor’s account were not credible and that objective
psychological testing revealed malingering.
We have reviewed Makhmoor’s other arguments and hold that they do not
demonstrate error in the ALJ’s decision. Accordingly, the judgment of the Board is
AFFIRMED.
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