FILED
NOT FOR PUBLICATION DEC 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANYA R. SPALLIERO, No. 09-55732
Plaintiff - Appellant, D.C. No. 5:08-cv-00834-RGK-E
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted November 2, 2010**
Pasadena, California
Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Robert C. Jones, United States District Judge for the
District of Nevada, sitting by designation.
OVERVIEW
Appellant Tanya Spalliero (Spalliero) challenges the district court’s decision
upholding the Commissioner of Social Security’s denial of Spalliero’s application
for additional disability insurance benefits.
1. The district court properly granted summary judgment in favor of the
Commissioner because the Administrative Law Judge’s determination that
Spalliero’s impairment did not meet or equal the asthma listing was supported by
substantial evidence. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 303B. Spalliero
offered no evidence to contravene the medical testimony of the physician who
testified at the hearing. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)
(recognizing the importance of an uncontroverted medical opinion).
2. The Administrative Law Judge (ALJ) adequately developed the record by
providing Spalliero the opportunity to produce medical records to support her
claim, and by having a medical expert and vocational expert available to interpret
the medical evidence. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.
2001), as amended.
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3. The ALJ sufficiently incorporated Spalliero’s limitations into the
hypotheticals he presented to the vocational expert. His hypothetical questions to
the vocational expert concerning claimant’s limitations were expressly based on
the testimony of the medical expert. See Osenbrock v. Apfel, 240 F.3d 1157, 1165
(9th Cir. 1999) (noting that an ALJ is free to reject restrictions that are not
supported by the evidence).
4. Although the ALJ was frustrated with Spalliero’s counsel, Spalliero did not
establish that there was a conflict of interest or other specific indication of bias.
See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)
(citation omitted). “[E]xpressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women
sometimes display, do not establish bias.” Id. (citation and alteration omitted).
5. There was no evidence that the record was altered. The ALJ’s statements
expressing his concern and frustration of Spalliero’s representation were set forth
in the record.
AFFIRMED.
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