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*611 MEMORANDUM **

Matt Ferrando (“Ferrando”) appeals the district court’s grant of summary judgment in favor of the Commissioner of Social Security (the “Commissioner”) upholding the denial of disability benefits under Titles II and XVI of the Social Security Act.

We review de novo a district court’s judgment upholding the denial of social security benefits, but will set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir.2010). In determining whether to remand a case to the Commissioner in light of new evidence, we review de novo whether the new evidence is material and for abuse of discretion whether the claimant had good cause for the failure to incorporate the evidence into the record of a prior proceeding. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir.2001).

1. Ferrando’s argument that the mere fact of a subsequent decision awarding him benefits requires remand for reconsideration in light of new evidence is without merit. As in Bruton v. Massanari, 268 F.3d 824 (9th Cir.2001), the subsequent application in this case involved “different medical evidence[ and] a different…

concurring in part and dissenting in part:

I concur in the holdings that a subsequent decision does not constitute new evidence requiring a remand for reconsideration and that Matt Ferrando did not waive his arguments regarding the merits of Administrative Law Judge (ALJ) Ramsey’s decision. However, I dissent from the balance of the disposition.

I specifically dissent from the majority’s holding giving controlling weight to the evaluation of the “treating psychiatrist.” The reason for affording more weight to a treating medical source is because of the longitudinal history that a treating physician brings to the evaluation of a patient. In this case, the psychiatrist had only seen Ferrando once. Our precedent permits the ALJ to give the opinion less weight in that circumstance. See Holohan v. Massanari, 246 F.3d 1195 , 1203 n. 2 (9th Cir.2001) (“This is not to say that a treating physician’s every medical opinion is necessarily entitled to weight.... Under certain circumstances, a treating physician’s opinion on some matter may be entitled to little if any weight. This might be the case, for instance, if the treating physician has not seen the patient long enough to have…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT SEP 06 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MATT A. FERRANDO, No. 10-15771

Plaintiff - Appellant, D.C. No. 2:08-cv-02470 FCD

CMK

v.

COMMISSIONER OF SOCIAL MEMORANDUM*

SECURITY ADMINISTRATION,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior District Judge, Presiding

Agrued and Submitted July 22, 2011 San Francisco, California

Before: TASHIMA and RAWLINSON, Circuit Judges, and HATTER, Senior District Judge.**

Matt Ferrando (“Ferrando”) appeals the district court’s grant of summary

judgment in favor of the Commissioner of Social Security (the “Commissioner”)

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Terry J. Hatter, Senior United States District Judge for the Central District of California, sitting by designation. upholding the denial of disability benefits under Titles II and XVI of…