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, 
2 

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, 
3 

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 

 

1

 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. 
4 

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 
5 

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 
6 

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 
7 

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. 
8 

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.) 5

 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). 
9 

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). 
10 

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.) 
11 

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). 
12 

(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. 
13 

(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