Teri Alexander v. Commissioner of Social Securit , 373 F. App'x 741 ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             APR 07 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    TERI ALEXANDER,                                  No. 09-35089
    Plaintiff - Appellant,             D.C. No. 3:07-cv-00973-MO
    v.
    MEMORANDUM *
    COMMISSIONER OF SOCIAL
    SECURITY,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Oregon
    Michael W. Mosman, District Judge, Presiding
    Argued and Submitted December 10, 2009
    Portland, Oregon
    Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
    Teri Alexander appeals the district court’s affirmance of the Commissioner
    of Social Security’s denial of Social Security Disability Insurance Benefits and
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    1
    partial denial of Supplemental Security Income disability benefits under Titles II
    and XVI of the Social Security Act. We affirm.
    1.    We reject Alexander’s argument that ALJ King failed to comply with Judge
    Hogan’s remand order. Judge Hogan held that the ALJ did not articulate “specific
    and legitimate reasons” for rejecting the opinions of Alexander’s treating
    physicians as to Alexander’s functional limitations and directed the ALJ to develop
    the record further in this respect. [ER 661] ALJ King was also instructed to
    consider whether Alexander’s drug-seeking behavior “is simply a matter of
    addiction and a tendency to accordingly exaggerate pain or is consistent with her
    pain testimony.” [ER 664]
    The ALJ complied with this order by considering newly developed medical
    evidence on remand, including Dr. Kauder’s psychological assessment that
    Alexander was “exaggerating and/or fabricating . . . symptomatology.” [ER 707,
    632] The ALJ discussed Dr. Kauder’s findings in detail, including Alexander’s
    “striking” and “difficult to reconcile” discrepancies in cognitive testing that
    suggested “sub-optimal effort or embellishment.” [ER 706-07] The ALJ properly
    relied on Dr. Kauder’s clinical observations, which provide a “clear and
    convincing reason[]” for rejecting Alexander’s subjective pain testimony. See
    Carmickle v. Comm’r, Soc. Sec. Admin., 
    533 F.3d 1155
    , 1160 (9th Cir. 2008).
    2
    The ALJ was not, however, entitled to consult the Diagnostic and Statistical
    Manual of Mental Disorders and conclude that Dr. Kauder’s medical findings
    satisfied the clinical definition of “malingering.” Nor should the ALJ have
    credited the anonymous report received by a medical provider from a caller
    claiming that Alexander was “doing quite well and has been selling her
    medications.” [ER 821] This uncorroborated, anonymous, and unsworn statement
    did not “bear indicia of reliability,” a prerequisite for the admissibility of hearsay
    declarations in administrative proceedings. Calhoun v. Bailar, 
    626 F.2d 145
    , 149
    (9th Cir. 1980). As the other reasons for discrediting Alexander’s testimony have a
    strong basis in the record, however, “the ALJ’s decision remains legally valid.”
    See Carmickle, 
    533 F.3d at 1162
    .
    2,    The record supports the ALJ’s conclusion that Alexander’s drug-seeking
    behavior was evidence of “a tendency to exaggerate pain.” Alexander misled
    providers by reporting her prescriptions stolen or lost. [ER 302, 576, 610] She
    repeatedly visited the emergency room at two different hospitals seeking narcotic
    medications, despite the fact that her drug contract with her primary physician
    prohibited her from seeking narcotic medications elsewhere. [ER 439, 424, 468]
    Alexander’s “consistent fail[ure] to follow” her narcotic contract led Dr. Linden to
    “fire” Alexander as a patient. [ER 485] Her next medical provider, Dr. Schultz,
    3
    concluded that it was “difficult to know if there is underlying pain syndrome with
    [Alexander’s alleged fibromyalgia]” and became “unwilling to progress her
    narcotics any more.” [ER 517] Dr. Kauder’s clinical observations of symptom
    fabrication, as well as Alexander’s ability frequently to ride a bicycle and walk
    despite her claim of total disability [ER 727], support the ALJ’s finding that
    Alexander’s drug-seeking behavior is consistent with and indicative of a tendency
    to exaggerate pain, even if the ALJ did not specifically refer to Judge Hogan’s
    mandate in reaching that conclusion. See Edlund v. Massanari, 
    253 F.3d 1152
    ,
    1157 (9th Cir. 2001) (holding that the likelihood that claimant was exaggerating
    complaints of physical pain to “feed his Valium addiction” supported the ALJ’s
    decision to reject his testimony).
    3.    The ALJ did not err in disregarding Alexander’s alleged fibromyalgia as
    disabling.1 While the ALJ overlooked the fact that Dr. Emori had diagnosed
    fibromyalgia by assessing tenderness in at least eleven of eighteen locations, see
    Rollins v. Massanari, 
    261 F.3d 853
    , 855 (9th Cir. 2001), Dr. Emori diagnosed
    fibromyalgia in 1989, seven years before Alexander’s alleged onset date. [ER 550]
    1
    Contrary to Alexander’s contention, the ALJ was not bound by her previous
    willingness to “[g]iv[e] the claimant the benefit of the doubt” and “assume[] that
    she has fibromyalgia.” [ER 57] The earlier ALJ decision never became “final and
    binding” due to Alexander’s appeal and Judge Hogan’s remand order. Cf. Chavez
    v. Bowen, 
    844 F.2d 691
    , 692 (9th Cir. 1988).
    4
    In the interim, Alexander was able to work. [ER 397] Moreover, the ALJ found
    that Alexander’s tendency to exaggerate her symptoms undermined the validity of
    any diagnoses that relied exclusively on her self-reported pain. See Tonapetyan v.
    Halter, 
    242 F.3d 1144
    , 1149 (9th Cir. 2001) (upholding the ALJ’s rejection of
    physicians’ opinions that were entirely based on “subjective complaints and on
    testing within [the claimant’s] control.”).
    The ALJ also properly rejected Alexander’s contention that her migraine
    headaches constituted a severe impairment. Alexander reported that new
    medications had “given her significant headache relief.” [ER 634, 702] See Warre
    v. Comm'r Soc. Sec. Admin., 
    439 F.3d 1001
    , 1006 (9th Cir. 2006) (“Impairments
    that can be controlled effectively with medication are not disabling for the purpose
    of determining eligibility for SSI benefits.”). We have considered all of
    Alexander’s other arguments and find them without merit.
    AFFIRMED.
    5