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

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NOT FOR PUBLICATION APR 07 2010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.
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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).
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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,
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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).
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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.
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