                                                                           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                            NOT FOR PUBLICATION                             OCT 24 2011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unpublished memorandum disposition, Bronson v. Barnhart, No. 02-55081, 2003

WL 329292, at *1 (9th Cir. Feb. 13, 2003) (unpublished), in which this court found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.


                                          2
      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.




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