UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

LAFAYETTE DIVISION 

KELLY SUE SCHREIBER, 

 

 Plaintiff, 

 v. Case No. 4:14-cv-37-JVB-JEM 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security Administration, 

 

 Defendant. 

OPINION AND ORDER 

 Plaintiff Kelly Sue Schreiber asks this Court to remand her case to the Social Security 

Administration based on new medical evidence, under sentence six of 42 U.S.C. § 405(g). For 

the reasons discussed below, the Court affirms the decision of the Social Security 

Administration. 

A. Overview of the Case

 Plaintiff alleges that she became disabled on February 5, 2010, due to chronic obstructive 

pulmonary disease, arthritis of the shoulder, vertigo, lumbar facet disease, anxiety and 

depression. (R. at 26.) Administrative Law Judge Michael Hellman held a hearing on August 8, 

2012. (R. at 24.) In a decision issued on November 30, 2012, the ALJ found that these conditions 

are all severe, and that Plaintiff could not engage in any of her past gainful activity. (R. at 26.) 

This past activity included working as a cashier and as a bartender. (R. at 26.) He also found that 

Plaintiff’s limitations require her to avoid chemical irritants and dust, and that she could work 
2 

only at a relaxed pace. (R. at 29.) Noting that the evidence supporting Plaintiff’s psychiatric 

symptoms was sparse, the ALJ stated “I do not find credible her allegations regarding the 

severity and persistence of her symptoms as well as the functional limitations that they allegedly 

cause.” (R. at 32.) He concluded that Plaintiff was not disabled. (R. at 31.) 

 Beginning in September 2012, Plaintiff was treated at the Wabash Valley Alliance 

(WVA), where she was diagnosed with post-traumatic stress disorder (PTSD) arising from her 

husband’s suicide in 2010. (R. at 1100.) The WVA records provide significant new detail on the 

nature and causes of Plaintiff’s anxiety and depression, including a lifelong history of abuse. 

(R. at 1100–1117.) In April 2014, Plaintiff submitted her WVA records to the Appeals Council, 

which added them to the administrative record. (R. at 8.) The ALJ’s rejection of Plaintiff’s claim 

became final when the Appeals Council denied review. (R. at 5.) When it denied review, the 

Appeals Council stated summarily that “this information does not provide a basis for changing 

the Administrative Law Judge’s decision.” (R. at 5–6.) 

B. Standard of Review 

Sentence six of 42 U.S.C. § 405(g) provides that “The court . . . may at any time order 

additional evidence to be taken before the Commissioner of Social Security, but only 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.” Thus, for a sentence six 

remand, Plaintiff must show that her evidence is new and material, and that she had good cause 

for not providing it sooner. Plaintiff must also show that the evidence relates to the period before 

the disability hearing. 20 C.F.R. § 404.970(b).
3 

C. Analysis 

The parties dispute whether Plaintiff’s evidence (1) is new, (2) is material, and (3) has 

good cause for its late submission. They do not dispute that the evidence relates to the prehearing period. 

(1) The evidence is not new 

Evidence is new if it was “not in existence or available to the claimant at the time of the 

administrative proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). Also, for sentence 

six purposes, “evidence that has been submitted to and rejected by the Appeals Council does not 

qualify as ‘new.’” Stepp v. Colvin, 795 F.3d 711, 727 n.8 (7th Cir. 2015). Here, the Appeals 

Council received and rejected Plaintiff’s evidence. Therefore, although materiality and good 

cause may be present in this case, Plaintiff’s motion fails because her evidence is not new. 

 Plaintiff has not moved this Court for review of the Commissioner’s decision under 

sentence four of § 405(g), which provides that “[t]he court shall have power to enter, upon the 

pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision 

of the Commissioner of Social Security.” Accordingly, any question as to whether the Appeals 

Council rejection is subject to sentence four review is not before this court.

E. Conclusion 

The Court finds that Plaintiff’s evidence does not qualify for a remand under sentence six 

of 42 U.S.C. § 405(g), because the Appeals Council has already rejected it, and therefore the 

evidence is not “new” for sentence six purposes. Therefore, the Court denies Plaintiff’s motion. 
4 

SO ORDERED on September 29, 2015. 

 S/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE