FILED
NOT FOR PUBLICATION OCT 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT R. GALARZA, No. 09-57029
Plaintiff - Appellant, D.C. No. 2:08-cv-07144-SJO-
VBK
v.
MICHAEL J. ASTRUE, Commissioner of MEMORANDUM *
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted October 14, 2011 **
Pasadena, California
Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON, Senior
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 Glen H. Davidson, Senior District Judge for the U.S.
District Court for Northern Mississippi, sitting by designation.
Appellant Robert R. Galarza (“Galarza”) challenges the district court’s
decision upholding the Commissioner of Social Security’s determination that
Galarza was not disabled for purposes of disability and Social Security Insurance
benefits eligibility.
Before the hearing, the Administrative Law Judge (“ALJ”) denied Galarza’s
attorney Stephanie Simpson’s (“Simpson”) request that the ALJ recuse himself
based upon perceived bias towards counsel. Bias must be shown within the
context of an individual case. See Rollins v. Massanari, 261 F.3d 853, 858 (9th
Cir. 2001). As evidence of the ALJ’s bias, Simpson only cited to a previous
unpublished memorandum disposition, Bronson v. Barnhart, No. 02-55081, 2003
WL 329292, at *1 (9th Cir. Feb. 13, 2003) (unpublished), in which this court found
that the ALJ had exhibited bias against Simpson. Since Simpson provided no
evidence of bias within the context of this case, her request was appropriately
denied. Rollins, 261 F.3d at 858.
At the hearing, the ALJ found that Galarza did not present credible evidence
regarding his inability to work. In addition, the ALJ found that Galarza does not
have an impairment or combination of impairments that makes him eligible for
benefits and had not suffered a “disability” as defined by the Social Security Act at
any time through the date of the ALJ’s decision.
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Subjective complaints of pain are subject to an ALJ’s credibility assessment.
See Rollins, 261 F.3d at 856-57. In making an adverse credibility finding, the ALJ
properly considered the factual inconsistencies between Galarza’s testimony and
the medical report, and the inconsistencies within Galarza’s testimony itself. See
Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989).
The ALJ’s statements regarding the conflicting medical opinions, Galarza’s
sporadic treatment history, and inconsistencies in Galarza’s testimony regarding
his pain provide a specific and legitimate basis to determine that Galarza does not
have a severe impairment under step two of the five step sequential process. See
20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (2010). The ALJ correctly
applied the law and his decision was supported by substantial evidence. See
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
AFFIRMED.
3