Tonya Freeman v. Carolyn Colvin , 669 F. App'x 861 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONYA L. FREEMAN, No. 14-17151
Plaintiff-Appellant, D.C. No. 2:13-cv-01423-CMK
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Submitted October 18, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Tonya Freeman appeals the district court’s order affirming the
Administrative Law Judge’s (ALJ’s) denial of benefits. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
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 ALJ did not err in rejecting Dr. Regazzi’s opinion. Dr. Regazzi’s
opinion was in conflict with other evidence in the record, including Dr. Canty’s
and Dr. Seidenfeld’s opinions; therefore the “specific and legitimate reason”
standard of review applies. See Widmark v. Barnhart, 454 F.3d 1063, 1066–67 &
n.2 (9th Cir. 2006). The ALJ provided specific and legitimate reasons that are
supported by substantial evidence for rejecting Dr. Regazzi’s opinion, such as
evidence that Freeman had malingered and the inconsistencies between Dr.
Regazzi’s findings and Freeman’s application for benefits and testimony. See
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
To the extent the ALJ erred in her initial disability analysis, any error was
harmless because the ALJ found Freeman to be disabled “without separating out
the impact” of her drug use, Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir.
2001). See Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007). The ALJ’s
subsequent determination that Freeman would no longer be disabled if she stopped
using drugs was supported by substantial evidence, including Freeman’s prison
medical records and Dr. Canty’s opinion that her drug use worsened her symptoms.
Therefore, the ALJ did not err in finding that Freeman’s substance abuse was a
contributing factor material to her disability. See 42 U.S.C. § 423(d)(2)(C).
2
The ALJ did not err in rejecting Freeman’s testimony as not credible given
evidence that Freeman was malingering. Benton ex rel. Benton v. Barnhart, 331
F.3d 1030, 1040 (9th Cir. 2003).
Finally, the ALJ’s duty to develop the record was not triggered here, because
the ALJ did not find the record “inadequate to allow for proper evaluation of the
evidence,” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001), nor was
there ambiguous evidence, Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir.
2001). Dr. Canty’s opinion was not ambiguous, and conflict between medical
opinions alone does not render evidence ambiguous, see Tonapetyan, 242 F.3d at
1148–49.
AFFIRMED.
3