                                                                           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                            NOT FOR PUBLICATION                             APR 07 2010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
