Tarwacki v. Commissioner of Social Security

Filing 26

OPINION AND ORDER: The Court AFFIRMS the Commissioner's decision in part, and REMANDS the case to the agency for further consideration consistent with this opinion. ***Civil Case Terminated. Signed by Judge Joseph S Van Bokkelen on 3/30/16. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

TANYA DAWN TARWACKI,
Plaintiff,
v.

Case No. 3:14-cv-1735-JVB-CAN

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,
Defendant.
OPINION AND ORDER
Tanya Dawn Tarwacki seeks judicial review of the Commissioner’s decision denying her
disability benefits, and asks this Court to reverse the administration’s decision or, alternatively,
remand the case to the agency for reconsideration.

A.

Facts
Tarwacki is forty-one years old. (R. at 263.) She applied for social security benefits on

November 28, 2011, claiming that she became disabled a month earlier. (Pl.’s Br. at 2.) Tarwacki
contends that she can no longer work as a cashier, retail manager, donut maker, or poster maker
because of various health conditions, including cervical spinal stenosis, degenerative disc disease
in her lumbar spine, and degenerative joint disease in her knees. Id. Additionally, she complains
of chronic and severe headaches. Id.
Tarwacki’s relevant medical history begins on December 23, 2008, when she received
magnetic resonance imaging of her spine. (R. at 204.) The MRI showed degenerative disc
disease, an annular tear, disc protrusion, and broad-based disc bulging. Id. On October 27, 2010,

Dr. Kevin Drew, a pain specialist, examined Tarwacki. (R. at 239.) His examination indicated
that she could balance, bend, walk (including on her heels and toes), sit, and stand without
assistance. Id. Dr. Drew also found that Tarwacki maintained a functional range of motion in her
lower back, hips, knees, and ankles. Id. An MRI taken three days later confirmed moderate disc
protrusion, broad-based disc bulging, and canal stenosis. (R. 202.)
On February 7, 2012, Dr. Saurabh Joneja, a state-consulting physician, examined
Tarwacki and found that despite “significant degenerative disc disease” she could sit, stand, and
walk without assistance. (R. at 224–25.) In addition, Dr. Joneja found that Tarwacki could use
her arms and hands for “fine and gross manipulati[on].” (R. at 225.) Three weeks later, Dr. M.
Brill, also retained by the state, assessed Tarwacki’s residual functional capacity and determined
that she could frequently lift, carry, and pull ten pounds, and occasionally twenty pounds. (R. at
244.) Dr. Brill also determined that Tarwacki could stand, walk, and sit for six hours out of an
eight hour work-day. Id. Last, Dr. Brill concluded that Tarwacki could occasionally climb ramps
and ladders, stoop, kneel, crouch, and crawl. (R. at 245.) On May 1, 2012, Dr. M. Ruiz affirmed
these findings. (R. at 256.)
On May 16, 2012, Tarwacki saw Dr. Thomas Akre, an orthopedic surgeon, and
complained of knee pain. (R. at 263.) After ordering and evaluating an x-ray of her right knee,
Dr. Akre diagnosed her with patella chondromalacia and muscle atrophy. (R. at 266.) The
following day, Tarwacki received MRI testing of her cervical and lumbar spine. (R. at 268.) The
MRIs revealed mild to moderate complications, including disc protrusion, disc bulging, disc
herniation, joint hypertrophy, impingements on her cervical cord, spinal stenosis, and
spondylosis. (R. at 268, 270–71.)
On June 5, 2012, Dr. Drew examined Tarwacki and determined that she could only sit,

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stand, and walk for two hours out of an eight hour work day, and could occasionally lift and pull
between six to ten pounds. (R. at 272–73.) Dr. Drew also found that she could not bend, twist,
squat, kneel, crouch, stoop, climb ladders, reach above her shoulders, or use her hands for fine
manipulation. Id. A week later, Tarwacki saw Dr. Stephen Smith, a neurosurgeon, and
complained of a troubled gait, difficulty with dexterity, and severe neck pain with radiation down
to her arms. (R. at 292.) After examining Tarwacki and reviewing her medical record, Dr. Smith
determined that she needed cervical spine surgery, given the loss of strength in her left arm and
moderate degree of narrowing and impingements on her spinal cord. Id.
In August 2012, Dr. Smith performed surgery on Tarwacki’s neck, fusing her cervical
spine. (R. at 296.) Still, after the surgery Tarwacki continued to complain about neck, shoulder,
and arm pain, and chronic and severe headaches. (Pl.’s Br. at 6–7.) From August 2012 to March
2013, Tarwacki saw Dr. Smith and had additional MRI and x-ray testing. (Pl.’s Br. at 7–8.)
These tests showed, among other things, mild spurring, moderate foraminal narrowing of her
spine, and positive Hoffman’s sign. (Pl.’s Br. at 8.) Yet, the severity of these conditions did not
surpass levels reported prior to her surgery. Id.
On August 14, 2013, Administrative Law Judge Angelita Hamilton denied Tarwacki’s
application for disability benefits. (R. at 25.) The ALJ found that Tarwacki’s alleged mental and
health conditions constituted severe impairments, but found that no condition, alone or in
combination, met or equaled any listed in the federal regulations.1 (R. at 21.) Furthermore, the
ALJ determined that Tarwacki’s residual functional capacity allowed her to vie for numerous
light duty jobs in the national economy. (R. at 24–25.) The ALJ’s decision became the final
decision of the Commissioner on June 6, 2014, when the Appeals Council denied Tarwacki’s

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Tarwacki also alleged suffering from anxiety and depression, but the ALJ determined that these impairments were
not severe. She does not challenge this finding on appeal.

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request to review it. (Pl.’s Br. at 1.)

B.

Standard of Review
This Court has authority to review Social Security Act claim decisions under 42 U.S.C.

§ 405(g). The Court must uphold decisions that apply the correct legal standard and are
supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th
Cir. 2005). The Court will, however, ensure that the ALJ built an “accurate and logical bridge”
from evidence to conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014).

C.

Disability Standard
The Commissioner has established a five-step inquiry to evaluate whether a claimant

qualifies for disability benefits. A successful claimant must show:
(1) he is not presently employed; (2) his impairment is severe; (3) his impairment
is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is
not able to perform his past relevant work; and (5) he is unable to perform any
other work within the national and local economy.
Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004).
A “no” at any step other than step three means that the claimant is not disabled. Zurawski
v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A “yes” leads either to the next step or, on steps
three and five, to a finding that the claimant is disabled. Id. The claimant bears the burden of
proof at every step except step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).

D.

Analysis
Tarwacki advances four arguments: (1) the ALJ’s credibility determination is not

supported by substantial evidence; (2) the ALJ did not give good reasons for not assigning

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controlling weight to the opinions of her treating physicians; (3) the ALJ failed to consider her
chronic and severe headaches in determining her residual functional capacity; and (4) the record
is incomplete as new and material evidence was not considered.

(1)

ALJ’s credibility determination is supported by substantial evidence
Tarwacki argues that the ALJ’s credibility determination is patently wrong and not

supported by substantial evidence. (Pl.’s Br. at 16.) The Court will sustain the ALJ’s credibility
determination unless it is “patently wrong” and not supported by the record. Bates v. Colvin, 736
F.3d 1093, 1098 (7th Cir. 2013). On appeal, the ALJ’s credibility determination is entitled to
great deference if she gave “specific reasons” for her finding. Steele v. Barnhart, 290 F.3d 936,
942 (7th Cir. 2002). If her finding rested on “objective factors or fundamental implausibilities,”
the Court has “greater freedom to review the ALJ’s decision.” Clifford, 227 F.3d at 872.
The Commissioner provides a two-step process for evaluating a claimant’s symptoms.
SSR 96–7p, at *2. First, the ALJ must consider “whether there is an underlying medically
determinable physical or mental impairment(s) . . . that could reasonably be expected to produce
the individual’s pain or other symptoms.” Id. (footnote omitted). Second, the ALJ must “evaluate
the intensity, persistence, and limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individual’s ability to do basic work activities.” Id.
Here, the ALJ concluded that Tarwacki’s spinal disorders and headaches “could
reasonably be expected to cause [her] alleged symptoms,” but found that her subjective
complaints about the intensity, persistence, and limiting effects of her symptoms were “not fully
credible to the extent they [were] inconsistent with [her] residual functional capacity.”2 (R. at

2

The Court acknowledges that a claimant’s residual functional capacity finding comes later in an ALJ’s decision,
not before assessing the claimant’s testimony regarding the intensity, persistency, and limiting effect of her

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21–22.) For support, the ALJ cited Dr. Joneja’s opinion:
She walked with a slow and very guarded gait in the examination room. She used
both vocal and nonvocal ques to display signs of excruciating pain throughout her
torso. She kept a very stiff posture as she moved about. [Tarwacki] did not require
any hand-held assistive devices. She was capable of disrobing and getting in to her
examination gown. She did not require any assistance when climbing up onto the
examination table, sitting upright, lying back flat. She did move extremely slowly
up onto the examination table, and dramatized pain behavior. When asked to walk
on her heels and toes, [Tarwacki] stated that she was having too much pain. She
tried to maintain a few steps of tandem gait, but demonstrated signs of pain and
instability. Her pain behavior and the gait that she demonstrated seemed
inconsistent with what was observed as she walked out to a small subcompact
vehicle, where her husband had been waiting. She was observed walking at a fast
pace, and she entered the vehicle on the passenger side, in what seemed to be a very
fluid manner.
(R. at 233.)
The ALJ also noted that when Dr. Drew examined her four months later she was able to
walk on her heels and toes and demonstrated brisk reflexes. (R. at 23.) “An ALJ may discount
subjective complaints of pain that are inconsistent with the evidence as a whole.” Knight v.
Chater, 55 F.3d 309, 314 (7th Cir. 1995). The record confirms that when observed by her
physicians, Tarwacki had no problem ambulating, including on her heels and toes, and
maintained a normal gait. (R. at 226–33, 235–37, 239, 345, 355.)
Additionally, the ALJ recognized the inconsistency between Tarwacki’s claims for both
unemployment compensation and disability benefits. (R. at 23.) “[A] Social Security claimant’s
decision to apply for unemployment benefits and represent to state authorities and prospective
employers that he is able and willing to work . . . [is] one of many factors adversely impacting
credibility.”3 Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005). Last, the ALJ identified

symptoms. Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012). However, this “backwards” reasoning alone is not
reversible error so long as the ALJ follows it up with an adequate “explanation for rejecting the claimant’s
testimony.” Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013).
3
Tarwacki claims for the first time in her reply brief that she sought unemployment benefits because she had no
other source of income and was merely trying to keep food on her table and a roof over her head. (Pl.’s Reply Br. at

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only mild to moderate impairments in the record and highlighted the lack of medical evidence
supporting greater limitations. (R. at 23.) An ALJ “may consider [the lack of medical evidence]
as probative of the claimant’s credibility.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)
(citation omitted). Altogether, the evidence that the ALJ relied on is substantial and raises
reasonable doubt about Tarwacki’s own testimony concerning the intensity, persistency, and
limiting effects of her symptoms.
Tarwacki contends that her allegations are consistent with the record because “she ha[s]
always had trouble with her back” and the medical evidence demonstrates that her impairments
progressively worsened. (Pl.’s Br. at 17.) Furthermore, Tarwacki argues that her own testimony
about the intensity, persistency, and limiting effects of her neck, shoulder, and arm pain is
corroborated by her positive Hoffman’s sign diagnosis. Id. She does not address her alleged gait,
inability to ambulate, or complaints of chronic and severe headaches—all of which the ALJ
principally relied on to discredit her. (R. at 22–23.) Since parts of the record support Tarwacki’s
alleged symptoms, and other parts do not, the ALJ’s partial credibility finding is affirmed.

(2)

ALJ did not give good reasons for weight afforded to treating physicians’ opinions
On this issue, Tarwacki’s argument is threefold. First, Tarwacki argues that in rejecting

Dr. Smith’s opinion, the ALJ improperly “played doctor” by making her own independent
medical conclusions. (Pl.’s Br. at 11.) Specifically, Tarwacki takes issue with the ALJ’s
comment about her neck surgery: “Despite what the undersigned notes as a lack of significant
symptomology, [Tarwacki] was recommended to undergo a cervical discectomy and fusion.” (R.
at 23.) She contends that this comment alone is reversible error. (Pl.’s Br. at 11.) The Court

8.) “This [s]he cannot do.” Gold v. Wolpert, 876 F.2d 1327, 1331 n. 6 (7th Cir. 1989). In addition to new arguments,
a claimant cannot raise “new factual matters” for the first time in her reply brief. Id.

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disagrees. Even when the ALJ “plays doctor,” the Court will only reverse her decision if she
“failed to address relevant evidence.” Dixon v. Massanari, 270 F.3d 1171, 1177–78 (7th Cir.
2001) (collecting cases). In other words, the Court will uphold “all but the most patently
erroneous reasons for discounting a treating physician’s assessment.” Stepp v. Colvin, 795 F.3d
711, 718 (7th Cir. 2015) (citing Luster v. Astrue, 358 Fed. Appx. 738, 740 (7th Cir. 2010)).
The parties do not identify a particular medical opinion of Dr. Smith that was discounted
by the ALJ. Indeed, the government maintains that Dr. Smith “did not provide a medical source
opinion.” (Memo, DE 22 at 4.) Under agency regulation, a medical opinion is defined as a
statement from a physician “about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). In her opinion, the ALJ made the
remark about the recommendation for neck surgery before delving into Tarwacki’s complaints of
back, neck, shoulder, and arm pain. (R. at 23.) The ALJ concluded that the medical evidence was
inconsistent with Dr. Smith’s statement about Tarwacki’s “diminished range of motion in her left
shoulder.” 4 (R. at 23–24.) Dr. Smith’s statement concerns a physical limitation, and thus, falls
comfortably under the agency’s definition of a medical opinion.5 Nevertheless, the ALJ did not
discount Dr. Smith’s opinion; rather she accepted his finding and discounted his treatment notes
on other grounds.6 (R. at 23–24.) Consequently, there is no “treating-physician rule”7 issue for
the Court to review with respect to Dr. Smith.

4

On remand, the ALJ shall identify what “focal or neurological deficits” she is referring to. (R. at 23.)
Although he is a surgeon, Dr. Smith has an ongoing treatment relationship with Tarwacki. (Pl.’s Br. at 6–7.)
Therefore, Dr. Smith is deemed a treating physician. See Bradley v. Barnhart, 175 Fed. Appx. 87, 90 (7th Cir.
2006); see also 20 C.F.R. § 404.1502.
6
While Dr. Smith’s reports reference other limitations reported by Tarwacki, they are not “medical opinions.”
Compare § 404.1527(a)(2) (defining a medical opinion as “statements from physicians . . . that reflect judgments”),
with § 404.1528(a) (defining symptoms as a claimant’s “own description of . . . imparment[s]”).
7
Collins v. Astrue, 324 Fed. Appx. 516, 520 (7th Cir. 2009).
5

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Still, the question of whether the ALJ’s remark about the recommended neck surgery in
and of itself is reversible error requires further discussion. In disability benefits determinations,
“[a]n ALJ’s display of bias” is cause for remand. Keith v. Barnhart, 473 F.3d 782, 788 (7th Cir.
2007) (collecting cases); see also Keith v. Massanari, 17 Fed. Appx. 478, 481–82 (7th Cir. 2001)
(remanding for “the appearance of unfair bias”). In review of the evidence, the ALJ is presumed
to be “unbiased.” Keith, 473 F.3d at 788. The claimant may rebut this presumption by
demonstrating that the ALJ “displayed deep-seated and unequivocal antagonism that would
render fair judgment impossible.” Id. (citing Liteky v. U.S., 510 U.S. 540, 556 (1994)). Tarwacki
fails to meet this exacting standard. While stray remarks may be relevant evidence to show bias
by a decision-maker in employment discrimination cases,8 the Seventh Circuit has yet to extend
the doctrine to social security appeals.9 The Court finds no reason to adopt the doctrine here
since Tarwacki fails to show a causal connection between the ALJ’s comment and the denial of
disability benefits. See Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1330 (7th Cir.
1989) (stating that “stray remarks” must have some “nexus” between the statement and the
adverse decision). Moreover, under Liteky an ALJ’s expression of “dissatisfaction” does not
establish bias. 510 U.S. 540, at 555–56. Consequently, the ALJ’s dissatisfaction with the level of
“symptomology” to justify Tarwacki’s neck surgery would not result in a finding of bias.
Second, Tarwacki argues that the ALJ did not give good reasons for assigning “little
weight” to Dr. Drew’s opinion regarding work-preclusive limitations. (Pl.’s Br. at 11–12.) Under
agency regulation, a treating physician’s opinion is entitled to controlling weight if it is “well-

8

See e.g., Hooper v. Proctor Health Care, Inc., 804 F.3d 486, 854–55 (7th Cir. 2015) (ADA); Merillat v. Metal
Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006) (EPA); Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 2000)
(ADEA); Cowan v. Glenbrook Sec. Servs. Inc., 123 F.3d 438, 443–44 (7th Cir. 1997) (Title VII).
9
Although, the Seventh Circuit has used the term to describe an ALJ’s reliance on isolated comments in a medical
opinion, Schmidt v. Colvin, 545 Fed. Appx. 552, 556 (7th Cir. 2013), the Court is aware of only one circuit applying
the doctrine to show bias in social security appeals. See Qualls v. Astrue, 428 Fed. Appx. 841, 848–49 (10th Cir.
2011).

9

supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence.” 20 C.F.R. § 404.1527(c)(2). The ALJ must offer
“good reasons” for not assigning a treating physician’s opinion controlling weight. Id. If a
physician’s opinion is not given controlling weight, the ALJ must consider the following factors
to determine what weight to give the opinion: (1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the treatment relationship; (3) the
supportability of the physician’s medical opinion; (4) the consistency of the physician’s opinion;
(5) the physician’s specialization; and (6) other factors that might support or contradict the
physician’s opinion. Id.
In her opinion, the ALJ determined that Dr. Drew’s findings were “significantly
inconsistent with the record as a whole.” (R. at 24.) The ALJ reasoned that the medical evidence:
(1) consistently documented that Tarwacki’s ambulatory ability was without significant
abnormality; (2) was without indicia as to Tarwacki’s inability to use her hands; and (3)
indicated that Tarwacki maintained reasonable touch sensation in her hands. Id. However, the
ALJ did not address the rest of Dr. Drew’s opinion concerning Tarwacki’s ability to sit, stand,
lift, pull, bend, twist, squat, kneel, crouch, stoop, or climb. (R. at 272–73.) Instead, the ALJ
dismissed this part of Dr. Drew’s opinion based on Dr. Brill’s and Dr. Ruiz’s conclusions that
Tarwacki could perform light duty work. (R. at 24.) The ALJ’s reliance on these opinions to
discount Dr. Drew’s opinion was improper because they were based on Dr. Joneja’s conditional
findings. Dr. Joneja examined Tarwacki in February 2012, approximately six months before her
neck surgery. (R. at 224.) At the time, Trawacki’s medical record consisted of a 2008 MRI of her
spine, “injections, physical therapy, and medication.”10 (R. at 233.) Aware of impending surgery,

10

A 2010 MRI was also part of Tarwacki’s medical record, but for some reason it was not before Dr. Joneja.
Tarwacki’s medications at the time included Norco, Daypro, Tekturna, and Vicodin. (R. at 233–37.)

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Dr. Joneja conditioned his findings:
[Tarwacki] does have significant degenerative disc disease documented on an MRI
performed 12/23/08 (only report available for me to review). She is currently being
treated for her chronic unrelenting pain and discomfort, and is scheduled to be
evaluated by a spinal surgeon. I was unable to note any gross physical abnormalities
on examination today. There was a profound level of pain displayed by [Tarwacki]
on today’s examination; which is documented above. The medical source
documentations would be needed for review to substantiate the high-level physical
impairments the claimant alleges. She needs to continue her treatment and her
medical surveillance. Reassessment would be required after she has been evaluated
by the spinal surgeon, after further suggested treatments are utilized by the
surgeon.
(R. at 224–25) (italics added).
Three weeks later, Dr. Brill evaluated Tarwacki’s ability to work despite her limitations.
Dr. Brill’s findings were based on the 2008 MRI, notes about Tarwacki’s gait, and Dr. Joneja’s
opinion. (R. at 244–45.) In May 2012, Dr. Ruiz affirmed Dr. Brill’s finding on the same
evidence. (R. at 256–57.) Since then, Tarwacki was diagnosed with patella chondromalacia and
muscle atrophy in her right knee, received additional MRI and x-ray testing of her spine,
underwent spinal surgery, and was diagnosed with Hoffman’s sign in her left hand. (R. at 266,
268, 270–71, 296, 310.) At no point after her neck surgery was Tarwacki reassessed by a stateconsulting physician, nor did she seek an independent evaluation. Regardless of whether
Tarwacki was represented by counsel, the ALJ has a “duty to develop a full and fair record and
must order supplemental testing when the gap in the medical record is significant and
prejudicial.” Warren v. Colvin, 565 Fed. Appx. 540, 544 (7th Cir. 2014) (citing Nelms v. Astrue,
553 F.3d 1093, 1098 (7th Cir. 2009). The facts of this case make it patently clear that the ALJ
should have ordered additional testing.11

11

On remand, if the ALJ does not afford Tarwacki’s physicians controlling weight, she must consider the factors
outlined by the Commissioner in § 404.1527(c)(2).

11

(3)

ALJ must factor subjective complaints of chronic and severe headaches
Next, Tarwacki argues that the ALJ’s residual functional capacity finding is erroneous

because she failed to consider the limiting effects of her chronic and severe headaches. (Pl.’s Br.
at 18.) At step-three of the disability analysis, the ALJ acknowledges disability if she finds that
the claimant’s impairment or combination of impairments meet or equal an impairment listed in
20 C.F.R. § 404, Subpart P, Appendix 1. If the ALJ finds that the claimant is not disabled, then
the ALJ must assess the claimant’s ability to work despite her limitations. 20 C.F.R. § 404.1545.
This finding is then used to determine whether the claimant can perform her past work, and, if
necessary, work in the economy. 20 C.F.R. § 416.920. In this case, the ALJ found that
Tarawcki’s was able to “perform light work as defined in 20 C.F.R. § 404.127(b).”12 Regarding
her complaints of headaches, the ALJ explained:
As to [Tarwacki’s] complaints of headaches, there is no indicia as to the objective
diagnostic testing or treatment outside of her spinal complaints. Consequently,
despite [Tarwacki’s] documented cervical procedure, the undersigned does not find
her clinical records support greater limitations than those found assessed herein.
(R. at 24.) Yet, having determined that Tarwacki’s headaches “impose more than a minimal
impact upon the [her] ability to engage in basic work activity,” the ALJ must articulate the
reasons for her decision “by building an accurate and logical bridge” from the evidence to her
conclusions. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). The ALJ cannot simply
dismiss Tarwacki’s complaints of headaches “solely on the basis of objective medical evidence.”
SSR 96-7p, at *1. See also Carradine v. Barnhart, 360 F.3d 751, 754–55 (7th Cir. 2004). On
remand, the ALJ shall consider Tarwacki’s headaches consistent with SSR 16–3p.13

12

This is the second time this ALJ has failed to complete her residual functional capacity finding. If there are
exceptions to the type of work Tarwacki can perform they should be stated. Otherwise, the ALJ should remove
“except” at the end of her conclusion.
13
Effective March 16, 2016, the Administration superseded SSR 96–7p with SSR 16–3p.

12

(4)

Evidence propounded is not new
Finally, Tarwacki presents additional evidence that was not before the ALJ. 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, Tarwacki must
show that her evidence is new and material, and that she had good cause for not providing it
sooner. Tarwacki must also show that the evidence relates to the period before the disability
hearing. 20 C.F.R. § 404.970(b). Here, the Appeals Council received and rejected Tarwacki’s
evidence, therefore it is not new. Stepp, 795 F.3d at 727 n.8 (“[E]vidence that has been submitted
to and rejected by the Appeals Council does not qualify as ‘new.’”). Moreover, Dr. Drew’s and
Dr. Smith’s supplemental reports are based entirely on evidence that was available at the time of
Tarwacki’s hearing. Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990) (evidence is new if it was
“not in existence or available to the claimant at the time of the administrative proceeding”).

E.

Conclusion
The Court AFFIRMS the Commissioner’s decision in part, and REMANDS the case to

the agency for further consideration consistent with this opinion.
SO ORDERED on March 30, 2016.

/s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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