Miller v. Barnhart, Comm

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANETTE E. MILLER, 
Plaintiff-Appellant,
v.
 No. 02-2394
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-01-593)
Submitted: March 31, 2003
Decided: April 22, 2003
Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Janette E. Miller, Appellant Pro Se. Debra Jean Prillaman, Assistant
United States Attorney, Richmond, Virginia; Daniel Yitzchak Bal-
sam, SOCIAL SECURITY ADMINISTRATION, Baltimore, Mary-
land, for Appellee.
2 MILLER v. BARNHART
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Janette E. Miller appeals the district court’s order affirming the
Commissioner’s denial of social security disability and supplemental
security income benefits in accordance with the magistrate judge’s
report and recommendation. We have reviewed the record and the
district court’s opinion and find no reversible error.
We must uphold the district court’s disability determination if it is
supported by substantial evidence. See 42 U.S.C. § 405(g) (2000); see
also Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Miller
argues that the district court erred by failing to consider additional
evidence submitted with her objections to the report and recommen-
dation. This argument fails because the district court may not consider
evidence that was not before the Commissioner. See Smith v. Chater,
99 F.3d 635, 638 n.5 (4th Cir. 1996) (citing United States v. Carlo
Bianchi & Co., 373 U.S. 709, 714-15 (1963)). However, as a pro se
litigant, Miller is entitled to a liberal construction of her pleadings.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Therefore, we
will construe Miller’s informal brief to advance the alternative argu-
ment that the district court should have remanded the case to the
Commissioner in light of the additional evidence.
A reviewing court may remand a case to the Commissioner on the
basis of new evidence if four prerequisites are met: (1) the evidence
must be relevant to the determination of disability at the time the
application(s) was first filed; (2) the evidence must be material to the
extent that the Commissioner’s decision might reasonably have been
different had the new evidence been before her; (3) there must be
good cause for the claimant’s failure to submit the evidence when the
claim was before the Commissioner; and (4) the claimant must make
at least a general showing of the nature of the new evidence to the
reviewing court. See Borders v. Heckler, 777 F.2d 954, 955 (4th Cir.
1985); see also 42 U.S.C. § 405(g) (2000).
MILLER v. BARNHART 3
Although Miller made the requisite showing of the nature of the
new evidence by attaching copies to her objections to the report and
recommendation, she fails to satisfy the remaining prongs of the Bor-
ders test. First, because Miller’s additional evidence relates to the
time period between June 2000 and October 2002, it is not relevant
to the determination of disability. Moreover, even assuming the rele-
vance of the additional evidence, it is not material because it would
not reasonably have changed the Commissioner’s decision had it been
before her. The findings contained in the additional records appear to
reflect rather mild impairments and are not accompanied by any
restrictions on Miller’s activities.
Finally, Miller fails to show good cause for the failure to file the
additional evidence with the Commissioner. Her only explanation is
that the hospital was late in getting test results to patients. However,
Miller admits to receiving some of the records prior to submitting
them in order to submit all of the evidence together. Furthermore, no
such explanation was offered when the ALJ left the record open on
two separate occasions for the submission of evidence.
While Miller’s newly submitted evidence cannot be considered in
this appeal, we note that Miller may be able to file a new claim with
a new onset date where such evidence may be relevant. We express
no opinion, however, as to the merits of any such claim.
Accordingly, we affirm on the reasoning of the district court. See
Miller v. Barnhart, No. CA-01-593 (E.D. Va. Nov. 21, 2002). We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED