Tony Warzecha v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY P. WARZECHA, No. 14-35665
Plaintiff-Appellant, D.C. No. 6:13-cv-01263-BR
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted June 23, 2017**
Before: NELSON, TROTT and OWENS, Circuit Judges.
Tony Warzecha appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Warzecha’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
*
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).
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.
The Administrative Law Judge (“ALJ”) properly relied on the opinions of
nonexamining medical consultants, supported by Warzecha’s actual work history
and the lack of objective medical evidence, to reject the opinion of Dr. Prescott.
See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (ALJ may reject
examining physician opinion that is contradicted by claimant’s past work history);
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)
(nonexamining physician opinion supported by other evidence in the record
constitutes substantial evidence to reject contradicted opinion of examining
physician). Any error in relying on Warzecha’s failure to seek treatment was
harmless. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
The Commissioner did not err in failing to include a prior examination in the
administrative record because the examination significantly predated Warzecha’s
alleged onset date of disability. See Carmickle v. Comm’r of Soc. Sec. Admin., 533
F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that predate the alleged onset
of disability are of limited relevance.”).
The new evidence that Warzecha submitted to the Appeals Council did not
become part of the administrative record when the Appeals Council returned the
evidence without considering it. See Brewes v. Comm’r of Soc. Sec. Admin., 682
2 14-35665
F.3d 1157, 1163 (9th Cir. 2012) (explaining that evidence becomes part of the
administrative record only when the Appeals Council considers it). Because the
evidence did not relate to the period on or before the ALJ’s decision, the Appeals
Council was not required to consider it. See id. at 1162.
Warzecha fails to meet the requirements for this court to remand his case to
the Commissioner based on new evidence. See Wood v. Burwell, 837 F.3d 969,
977 (9th Cir. 2016) (remand requires “a showing that there is new evidence which
is material and that there is good cause for the failure to incorporate such evidence
into the record”) (quoting 42 U.S.C. § 405(g)). Warzecha failed to establish good
cause when he argued that the records were not available earlier due to recently
beginning treatment. See Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)
(holding that good cause was not established when a claimant sought out new
treatment shortly after receiving a denial by an ALJ). Warzecha failed to establish
materiality because the additional records did not offer a “reasonable possibility
that the new evidence would have changed the outcome of the … determination.”
Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)
(internal citations omitted).
AFFIRMED.
3 14-35665