Schreiber v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED and Plaintiff Kelly Sue Schreiber's motion requesting remand under Sentence Six of 42 U.S.C. §405(g) is DENIED. Signed by Judge Joseph S Van Bokkelen on 9/29/15. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
KELLY SUE SCHREIBER,
Case No. 4:14-cv-37-JVB-JEM
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,
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
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
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.)
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).
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.
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.
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.
SO ORDERED on September 29, 2015.
S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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