                                                                              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                           NOT FOR PUBLICATION                                DEC 28 2010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.




                                           2
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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