                           NOT FOR PUBLICATION                           FILED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.




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