                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      April 22, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    BRUCE NILES MOORE,

                Plaintiff-Appellant,

    v.                                                   No. 07-4124
                                                   (D.C. No. 04-CV-221-TC)
    MICHAEL J. ASTRUE, Commissioner                       (D. Utah)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and ANDERSON, Circuit Judges.



         Bruce Niles Moore, appearing pro se, appeals the district court’s affirmance

of the Commissioner’s denial of his claim for supplemental security income. We

have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I

      Mr. Moore claimed disability as of November 1, 2001, from arthritis of the

knees, back, and hands. Following a hearing, an administrative law judge (ALJ)

issued a decision on July 11, 2003, in which he concluded at step five of the

sequential-evaluation process, see 20 C.F.R. § 404.1520; Williams v. Bowen,

844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step process), that

Mr. Moore was not disabled because he retained the residual functional capacity

to perform jobs that exist in significant numbers in the national economy. The

Appeals Council considered new medical evidence submitted by Mr. Moore, but

nonetheless affirmed the ALJ’s decision.

                                         II

      We construe Mr. Moore’s pro se brief “liberally and [hold it] to a less

stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). With the exceptions discussed below, it

appears to repeat the arguments that he made in the district court. Namely, he

claims that the ALJ (1) erred in finding that he retained the residual functional

capacity to perform jobs that exist in significant numbers in the national

economy; (2) incorrectly assessed his credibility and subjective complaints of

pain; and (3) failed to adequately develop the record. We review the

Commissioner’s decision to determine whether it is supported by substantial




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evidence and the correct legal standards were applied. Madrid v. Barnhart,

447 F.3d 788, 790 (10th Cir. 2006).

      In his well-reasoned report and recommendation, the magistrate judge

analyzed each of these claims using the same standard that governs our review.

R. Vol. I, Doc. 29 at 11-12. Having reviewed the record and applicable law, there

is no reason to repeat the analysis and we affirm for substantially the same

reasons set forth in the magistrate judge’s February 22, 2007, report and

recommendation, which was adopted in its entirety by the district court in its

May 4, 2007, order.

                                         III

      Mr. Moore next argues that several alleged errors and procedural

irregularities in the district court entitle him to an award of benefits. These

arguments lack merit.

      First, Mr. Moore asserts that the district court erred by failing to consider

the evidence of a new disability – reflex sympathetic dystrophy – that he raised

in his objection to the magistrate judge’s report and recommendation. This

argument apparently refers to a February 22, 2007, letter from Laura Therrien

Duncan, M.D., which provides “a questionable diagnosis of reflex sympathetic

dystrophy.” R. Vol. I, Doc. 30, Ex. 3. We construe his argument to be that, in

light of this new evidence, the court was required to remand the matter to the

Commissioner under 42 U.S.C. § 405(g) for a new disability determination.

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      However, “[i]n order to find a remand appropriate, we normally must

determine that the new evidence would have changed the [Commissioner’s]

decision had it been before him. Implicit in this requirement is that the proffered

evidence relate to the time period for which the benefits were denied.” Hargis v.

Sullivan, 945 F.2d 1482, 1493 (10th Cir. 1991) (citation omitted). Because the

alleged new disability was not even diagnosed until several years after the hearing

and the Appeals Council’s review, a remand was not appropriate because it could

not have changed the outcome.

      Next, Mr. Moore informs us that some pleadings and orders were allegedly

misaddressed and he was delayed in receiving them. Although the record is

unclear whether Mr. Moore himself was responsible for these mistakes, he points

to no prejudice.

      The last argument advanced by Mr. Moore concerns the district court’s

denial of his motion for default judgment. The sole ground for this argument is

his mistaken belief that the Commissioner’s answer was untimely. “Decisions to

enter judgment by default are committed to the district court’s sound discretion,

and our review is for an abuse of discretion.” Olcott v. Del. Flood Co., 327 F.3d

1115, 1124 (10th Cir. 2003) (quotation omitted). The record establishes that the

Commissioner answered the complaint within the sixty days prescribed by Rule

12(a)(3) of the Federal Rules of Civil Procedure. Therefore, the court properly

denied the motion for default.

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                                         IV

      During the pendency of this appeal, Mr. Moore filed a “Request for

Summary Disposition Pursuant to a Change of Facts Which [A]ffect my Legal

Status.” Attached as an exhibit to the motion is a February 25, 2008, decision

from an ALJ finding him disabled as of October 1, 2005, along with medical

evidence from 2005 through 2007. As we understand the motion, Mr. Moore

claims that the February 2008, decision entitles him to an award of disability

benefits dating back to January 1991, when he allegedly suffered his initial

disabling injury. Whether we construe the motion as a request for a remand or

a petition to reopen, the motion is without merit.

      A remand for a new disability determination under 42 U.S.C. § 405(g) is

inappropriate because the new evidence is not related to the time period for which

benefits were denied. Hargis, 945 F.2d at 1493. Moreover, any motion to reopen

should have been filed “within two years of the date of the notice of the initial

determination.” 20 C.F.R. § 416.1488. The February 25, 2008, decision states

that Mr. Moore was represented by an attorney at the hearing, at which “the

claimant amended the alleged onset date to October 1, 2005.” Req. for Summ.

Disposition, Attach. 1, at 3. The ALJ further found that Mr. Moore had “filed

numerous prior Title XIV applications dating back to 1991, but none within the




                                         -5-
two-year reopening period for good cause. The amended alleged onset date

[in this case] also moots considering reopening.” Id.

      The Request for Summary Disposition is DENIED. The judgment of the

district court is AFFIRMED.

                                      Entered for the Court


                                      Monroe G. McKay
                                      Circuit Judge




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