Virginia Miller v. Commissioner Social Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3317
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VIRGINIA MILLER,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-00521)
Magistrate Judge: Honorable Richard A. Lloret
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 24, 2018
Before: AMBRO, SCIRICA, and SILER, Jr., Circuit Judges
(Opinion Filed: May 3, 2018)
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OPINION*
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
Honorable Senior Judge Eugene E. Siler, Jr., Circuit Court Judge for the Sixth Circuit
Court of Appeals, sitting by designation.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SILER, Circuit Judge
Virginia Miller appeals the district court’s order affirming an administrative law
judge’s (ALJ) denial of her claim for Social Security Disability Insurance Benefits (DIB).
For the reasons that follow, we will affirm the judgment below.
I. Facts and Procedural Background
In 2009, Miller tripped on uneven pavement and struck her head on the ground.
She experienced a traumatic brain injury that resulted in recurrent post-concussion
syndrome. Prior to her injury, Miller was a practicing attorney. In 2011, she applied for
DIB pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq. An ALJ held
a hearing in 2013, in the presence of Miller, her attorney, and a vocational expert. At the
time of the hearing, Miller was forty-eight years old and lived alone. She claimed that
her post-concussion condition caused her to suffer severe migraines several times a week,
which made her unable to carry out daily activities.
In 2014, the ALJ issued a decision denying Miller’s DIB application. In reaching
his conclusion, the ALJ weighed the record as a whole, crediting some expert reports and
discounting others. The ALJ found that Miller experienced the alleged symptoms but
that her statements concerning the intensity, persistence, and limiting effect of said
symptoms were not credible.
Objective diagnostic testing (i.e., MRI, CT scan, EEG) has
been normal. [Miller] has had no significant functional deficits
due to her headaches. She has no motor or sensory deficits.
She has a normal gait and has had no loss of balance. Her
headaches have improved with medication. The medical
record indicates that her sensitivity to light has much
improved.
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Id. Despite her symptoms, Miller still cooked, drove, shopped, attended church, watched
television, traveled, socialized with friends, cared for her dogs, and even completed a
continuing legal education course. Accordingly, the ALJ found that Miller was not
disabled because she was capable of performing light work, on her own, in a quiet
environment. Although she could not pursue her prior employment as a litigator, the ALJ
ruled that Miller could find other gainful employment:
[C]onsidering the claimant’s age, education, work experience,
and residual functional capacity [RFC], the claimant is capable
of making a successful adjustment to other work that exists in
significant numbers in the national economy.
Miller sought review of the ALJ’s decision by the Appeals Council. While her
appeal was pending, she submitted new records from a Veteran’s Affairs (VA) physician,
Dr. H. Branch Coslett, who stated that Miller’s conditions made it unlikely that she
would be able to resume work. Miller also presented VA records documenting her
ongoing struggle with migraines. The Appeals Council examined the additional
evidence, found that these new medical records would not reasonably change the ALJ’s
decision, and denied Miller’s request for review, thereby rendering the ALJ’s decision
final. Miller next sought judicial review in the Eastern District of Pennsylvania. The
parties consented to a magistrate judge’s jurisdiction under 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.
Miller asked the district court1 to remand her case based on the fourth sentence of
42 U.S.C. § 405(g): “The court shall have power to enter . . . a judgment affirming,
1
We refer to the decision below as that of the district court because the magistrate judge,
pursuant to a consent decree, functioned as a district judge. See 28 U.S.C. § 636(c).
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modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” The district court denied Miller’s request
and entered judgment in favor of the Commissioner. The district court found that
substantial evidence supported the ALJ’s credibility determination, RFC assessment, and
evaluation of Miller’s headaches. To the extent that Miller referenced the after-acquired
evidence submitted to the Appeals Council, the district court explained that this post-
decision evidence was not properly presented for consideration. Miller neither alleged,
nor explained, how such evidence was new and material and why there was good cause
for not submitting the evidence sooner. Therefore, the district court held that the ALJ did
not err and that remand was not warranted.
II. Discussion
Although Miller only sought relief under the fourth sentence of 42 U.S.C. § 405(g)
at the district court, on appeal she argues—for the first time—that her case should be
remanded under the sixth sentence of § 405(g), which provides a distinct form of relief.
The sixth sentence states that the district court may remand a case to the Commissioner
“upon 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 in a prior proceeding.”
The government responds that Miller waived the sixth-sentence argument by
failing to raise it below. Alternatively, the government contends that, even if Miller did
not waive this argument, the post-decision evidence was not material and would not
change the outcome of the ALJ’s ruling. Finally, although the government does not ask
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us to reach the merits of the ALJ’s decision, it argued below that substantial evidence
supported a finding of no disability. We will address each issue in turn.
a. Waiver of § 405(g) Sixth-Sentence Remand
This court will “generally refuse to consider issues that are raised for the first time
on appeal.” Frank v. Colt Ind., Inc., 910 F.2d 90, 100 (3d Cir. 1990). Here, although
Miller could have requested that the district court remand her case pursuant to sentence
six of § 405(g), she did not do so. Thus, this claim was waived. See McLain v. Comm’r
of Soc. Sec., 676 F. App’x 935, 940 (11th Cir. 2017) (finding that the appellant waived
his claim to a sentence six remand when it was not sought at the district court); cf.
Pennington v. Comm’r of Soc. Sec., 683 F. App’x 168, 171 (3d Cir. 2017) (finding that
the appellant waived his request for a sentence four remand when he only sought review
under sentence six of section 405(g) at the district court level).
To qualify for a remand under sentence six of § 405(g), Miller needed to show that
the post-decision evidence was both new and material, and that she had good cause for
failing to provide it to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001).
As the district court correctly held, Miller never alleged or showed that these criteria
were satisfied.2 Moreover, a district court “cannot look to evidence never presented to
2
In a footnote of its opinion, the district court referenced a treatment note from VA
neurologist Dr. Coslett that post-dated the ALJ’s decision.
Miller also cites to Dr. Coslett’s March [1]8, 2014
records . . . which stated that Miller still experienced post-
traumatic stress migraines. Miller does not argue that this post-
decision evidence warrants remand under 42 U.S.C. § 405(g),
which requires a showing that the evidence is (1) new; (2)
material; and (3) good cause exists for not presenting the
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the ALJ in determining whether that decision was supported by substantial evidence[.]”
Thompson v. Halter, 45 F. App’x 146, 149 n.2 (3d Cir. 2002).
At the district court, Miller simply argued that the ALJ erroneously denied her
DIB because it improperly evaluated her credibility, disregarded the opinions of her
physicians, and failed to address the work limitations caused by her headaches. She did
not ask the district court to remand on the basis of newly acquired evidence. In other
words, Miller only requested that the district court reverse and remand under the fourth
sentence of § 405(g). By contrast, the sixth sentence of § 405(g) “describes an entirely
different kind of remand.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). Unlike a
fourth sentence remand, when a district court acts under sentence six of § 405(g), it does
not “rule in any way as to the correctness of the administrative determination. Rather, the
court remands because new evidence has come to light that was not available to the
claimant at the time of the administrative proceeding and that evidence might have
changed the outcome of the prior proceeding.” Melkonyan v. Sullivan, 501 U.S. 89, 98
(1991). Thus, by failing to seek relief under the sixth sentence of § 405(g), Miller waived
the opportunity for her benefits ruling to be reviewed in light of the new evidence.
b. After-Acquired Evidence Was Immaterial
Even if Miller had attempted to make the requisite showings of newness,
materiality, and good cause with respect to the after-acquired VA treatment records and
evidence, remand would have been unnecessary. “To be material, there ‘must be a
evidence to the ALJ. Therefore, I need not reach whether
remand is warranted on this ground.
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reasonable probability that the new evidence would have changed the outcome’ of the
Commissioner’s decision.” Beety-Monticelli v. Comm’r of Soc. Sec., 343 F. App’x 743,
747 (3d Cir. 2009) (quoting Szubak v. Sec’y of Health and Human Servs., 745 F.2d 831,
833 (3d Cir. 1984)). The evidence Miller sought to introduce related to a later time and
showed improvement, rather than deterioration, in her health. Thus, the district court
correctly held, in the alternative, that no remand was warranted.
Dr. Coslett’s 2014 treatment note may have asserted that Miller was unlikely to be
able to return to work “at this point,” but it also stated that Miller’s headaches were still
improving; that Imitrex IM was “quite useful” for her symptoms; that she was
“volunteering with a dog rescue” in her free time; and that she was even “hoping to do
occasional legal [work] at a friend’s firm.” Therefore, this after-acquired hearing
evidence showed continued improvement in Miller’s condition rather than a precipitous
decline that would cause the ALJ to abandon the outcome of his decision. Accordingly,
the district court did not err when it held that the additional evidence was immaterial and
would not change the outcome of the ALJ’s decision.
Additionally, Miller failed to show good cause for the after-acquired VA medical
records. See Beety-Monticelli, 343 F. App’x at 747. Dr. Coslett’s March 18, 2014
treatment record was prepared eleven days after the ALJ’s decision. Miller presumably
could have asked the ALJ to keep the record open for a few additional days, until after
her appointment with Dr. Coslett.
c. Substantial Evidence Supports ALJ’s Decision
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Finally, although Miller does not directly challenge the district court’s finding that
substantial evidence supported the ALJ’s decision, we believe it is worthwhile to address
this point. In reviewing the district court’s decision affirming the ALJ, our role is
identical to that of the district court: to determine whether “substantial evidence” supports
the Commissioner’s decision. See 42 U.S.C. § 405(g); Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 359 (3d Cir. 2011). “Substantial evidence” means only “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). It is a highly deferential
standard that is satisfied by “more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id.
A claimant is disabled if she is unable to engage in “any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 20 C.F.R. § 416.905; see also Diaz v.
Comm’r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
Here, the ALJ held that Miller was not disabled within the meaning of the Social
Security Act. “[T]he ALJ conducted an extensive RFC analysis that included a summary
of each of Miller’s medical providers, the consultative examiners, and Miller’s subjective
complaints, to conclude that Miller was capable of light work with additional
limitations.” Additionally, the ALJ found that despite Miller’s allegations of “a
debilitated lifestyle, the evidence demonstrated that [Miller] is socially active, travels,
and takes care of personal needs without assistance.” Accordingly, the district court did
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not err when it found substantial evidence—more than a mere scintilla but less than a
preponderance—supported the ALJ’s credibility determination and RFC assessment.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the district court.
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