John H. Fell, Plaintiff-appellant, v. Shirley S. Chater, Commissioner, Defendant-appellee, 142 F.3d 443 (9th Cir. 1998)

MEMORANDUM^* 

John H. Fell appeals the district court's summary judgment affirming the Commissioner of Social Security's ("Commissioner") denial of his application for disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990), and we affirm.

Fell contends that the Appeals Council erred by denying review of the ALJ's decision and failing to remand Fell's proceedings so the ALJ could consider new evidence that Fell submitted after the ALJ had rendered his decision. This new evidence was a note from Dr. Sheryl Yamamoto, Fell's treating physician, stating that Fell suffered from osteoarthritis which caused some impairment in the use of his hands.

The Appeals Council shall review an ALJ's decision if an applicant submits "new and material evidence" and the decision is contrary to the weight of evidence on the record. See 20 C.F.R. §§ 404.970(b) and 416.1470. Dr. Yamamoto's note merely restated the existence of a hand impairment which had been considered by the ALJ and found not to preclude Fell from performing his past relevant work as a technical illustrator. Because Dr. Yamamoto's note did not provide new and material evidence, the Appeals Council did not err by denying review. See 20 C.F.R. § 404.970(b); cf. Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (Appeals Council did not err by holding that ALJ's decision not contradicted by weight of evidence because medical reports issued by treating physician after issuance of ALJ's decision are less persuasive than opinions issued prior to decision)

Further, because substantial evidence existed in the record to support his decision, the ALJ did not err by holding that Fell was not disabled because he was able to perform his past relevant work as a technical illustrator. See Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

AFFIRMED.