                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-3317
                                   ________________

                                  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
                                  ________________

                    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)

                                   ________________

                                       OPINION*
                                   ________________





 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).
                                             3
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



                                              4
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
                                             5
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.
                                            6
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



                                               7
       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

                                               8
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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