* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

EDWARD JOSEF SCHULER, Plaintiff - Appellant,

v. JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant - Appellee. No. 04-4164 (D.C. No. 2:03-CV-736-TS)

(D. Utah)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Edward Schuler appeals the district court ’s affirmance of the Commissioner’s decision denying him disability insu rance benefits (DIB), because he was not insured for DIB due to insuffici ent quarters of coverage on his alleged disability onset date. We exercise jurisdi ction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm. To be insured, Mr. Schuler is required to show thathe had at least twenty quarters of coverage in the forty-quarter period in cluding October 20, 1988, his alleged date of disability. See 42 U.S.C. § 423(c)(1)(B)(i); 20 C.F.R. § 404.130(b)(2); Snyder v. Shalala , 44 F.3d 896, 897 (10th Cir. 1995). The Administrative Law Judge (ALJ) found that Mr. Schul er was not insured for DIB on October 20, or at any later date, because he had only eleven of the requisite twenty quarters of coverage. The ALJ rejected Mr. Schuler’s attempt to acquire quarters of coverage for self-employment income in 1985 and 1986, because he filed tax returns for those years outside the time limits permitted for inclusion of self-employment income in the calculation of quarte rs of coverage and no exceptions applied. Even if he qualified for the e ight additional quarters of coverage for 1985 and 1986, the ALJ noted he still had only nineteen quarters of coverage. The Appeals Council declined review, mak ing the ALJ’s decision the final decision of the Commissioner.-3-

Mr. Schuler then appealed to the district court. O n referral, the magistrate judge concluded substantial evidence supported the ALJ’s decision and recommended the decision be affirmed. The districtcourt adopted the magistrate judge’s report and recommendation. Like the district court, we review the Commissioner ’s decision to determine whether the factual findings are supported by subst antial evidence and whether the correct legal standards were applied. Threet v. Barnhart , 353 F.3d 1185, 1189 (10th Cir. 2003). “Substantial evidence is such re levant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hamlin v. Barnhart , 365 F.3d 1208, 1214 (10th Cir. 2004). Mr. Schuler argues that the Commissioner’s refusal to recompute his quarters of coverage denied him due process and equ al protection. The Social Security Administration’s (SSA) earnings record forMr. Schuler shows no self-employment income entries for 1985 and 1986. Mr. Schuler filed tax returns reporting self-employment income for these years in May 1995, after the limitations period expired for correcting self-employment income records. See 42 U.S.C. § 405(c)(1)(B), (c)(4) (setting forth thr ee-year, three-month and fifteen-day time limitations period for correcting records for year in question). The SSA’s record therefore is conclusive evidence that Mr. Schuler had no self-employment income for 1985 and 1986. See 42 U.S.C. § 405(c)(4)(C);-4-

20 C.F.R. § 404.803(c)(3); Yoder v. Harris , 650 F.2d 1170, 1172 (10th Cir. 1981). And no exceptions apply for correcting Mr. Schuler’ s earnings record for these two years. See 42 U.S.C. § 405(c)(5)(F); 20 C.F.R. § 404.822(b)(2 ). We conclude the ALJ’s decision that Mr. Schuler was no t entitled to any quarters of coverage for 1985 and 1986 self-employment income i s supported by substantial evidence and is without legal error. Next, Mr. Schuler argues that he presented new evid ence in the district court that part of his 1985 and 1986 earnings was f rom wages, and therefore this court should remand to the Commissioner for furtherproceedings. Remand is appropriate only “upon a showing that there is new evidence which is material and that there is good cause for the failure to inc orporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). In this case, remand is not appropriate. As the district court recognized, the administrative record shows only self-employment income for 1985 and 1986, not wages. Mr. Schuler fails to show good cause for not bringing this argument to the ALJ’s attention. Moreover, we note that the wage information he pres ented to the district court is from 1987, a year for which he received four quarte rs of coverage. In addition, Mr. Schuler argues that if the Commiss ioner had recomputed his earnings under 20 C.F.R. § 404.211, he would have had sufficient quarters of coverage. This section applies to the computation of the amount of benefits for-5-

persons who are entitled to DIB. Because Mr. Schul er is not eligible for benefits due to insufficient quarters of coverage, this sect ion does not apply to him. We reject Mr. Schuler’s argument that the district court erred in denying him oral argument. A party’s right to be heard may be satisfied by the district court’s review of the briefs and other materials before the court. Geear v. Boulder Cmty. Hosp. , 844 F.2d 764, 766 (10th Cir. 1988). Here, the ma gistrate judge examined the district court filings and the a dministrative record, and the district court reviewed Mr. Schuler’s objections to the magistrate judge’s report and recommendation de novo. Nothing in the record before us suggests the case could not be adequately addressed based on the dist rict court filings and administrative record. See id. We also reject Mr. Schuler’s argument that his pro se status has handicapped his ability to amend his records and ha s deprived him of due process and equal protection. Mr. Schuler’s pro se status alone is not enough to require reversal. See Musgrave v. Sullivan , 966 F.2d 1371, 1374 (10th Cir. 1992). And Mr. Schuler does not show either a deprivation of d ue process or equal protection. Finally, we reject any of Mr. Schuler’s arguments t hat have not been specifically addressed in this order and judgment.-6-

The judgment of the district court is AFFIRMED. Mr . Schuler’s request for leave to proceed on appeal in forma pauperis (I FP) is moot. The district court did not alter Mr. Schuler’s IFP status after filing its decision. Thus, he was permitted to make his payments in installments. He remains obligated to continue making payments until the entire filing fee is paid. See Fed. R. App. P. 24(a)(3); 28 U.S.C. § 1915(b)(2). The mandate shall issue fo rthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge