Jirousek v. Commissioner of Social Security
Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 5/12/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
TRACY L. JIROUSEK,
COMMISSIONER OF SOCIAL
CASE NO. 1:16-cv-01221
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Tracy L. Jirousek (“Plaintiff” or “Jirousek”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”)
denying her application for social security disability benefits. Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate
Judge pursuant to the consent of the parties. Doc. 18. As explained more fully below, the Court
AFFIRMS the Commissioner’s decision.
I. Procedural History
Jirousek protectively filed an application for Disability Insurance Benefits (“DIB”) on
November 30, 2012. 1 Tr. 18, 69, 151, 169. Jirousek alleged a disability onset date of February
1, 2006 (Tr. 18, 151, 169), which she later amended to November 1, 2012 (Tr. 18, 38-39, 168).
Jirousek alleged disability due to neck pain and stiffness, low back pain, shoulder pain, arm
numbness and tendency to drop things, headaches, depression (low energy, irritable), insomnia
due to pain, impaired concentration, very slow pace due to pain and stiffness, side effects from
The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 5/12/2017).
medication, needs sit/stand/walk/recline, and limited reaching. Tr. 69-70, 95, 103, 180.
Jirousek’s application was denied initially (Tr. 95-101) and upon reconsideration by the state
agency (Tr. 103-109). Thereafter, she requested an administrative hearing. Tr. 110.
On February 26, 2015, an administrative hearing was conducted by Administrative Law
Judge Susan Giuffre (“ALJ”). Tr. 35-68. On April 6, 2015, the ALJ issued her decision. Tr.
15-34. In her decision, the ALJ determined that Jirousek had not been under a disability within
the meaning of the Social Security Act from November 1, 2012, through March 31, 2013, her
date last insured. Tr. 18, 30. Jirousek requested review of the ALJ’s decision by the Appeals
Council. Tr. 14. On March 22, 2016, the Appeals Council denied Jirousek’s request for review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 1-6.
Personal, vocational and educational evidence
Jirousek was born in 1969. Tr. 151. She completed high school and obtained a
certificate from a medical massage school. Tr. 41-42. However, she never used her medical
massage certificate. Tr. 42. Jirousek last worked full time in 2006 as a bartender/waitress at
Henry’s Bar. Tr. 42. From 2006 until 2009, Jirousek filled in at Henry’s Bar. Tr. 42. Jirousek
lives in a house with her husband and her two minor children. Tr. 45, 46. At the time of the
hearing, her children were ages nine and five. Tr. 46.
Medical evidence 2
Treatment history 3
Jirousek’s challenges relate to her physical rather than mental impairments. Accordingly, medical evidence
summarized herein relates primarily to Jirousek’s physical impairments.
In making a determination regarding Jirousek’s disability claim, the ALJ considered evidence pre-dating
November 1, 2012, Jirousek’s amended alleged onset date, and post-dating March 31, 2013, her date last insured.
Tr. 22-28. Accordingly, the evidence summarized herein includes treatment received prior to the amended alleged
onset date and after the date last insured.
Medical evidence pre-dating amended alleged onset date
Starting in 2005, Jirousek received chiropractic treatment from Gregory R. Poyle, D.C.
Tr. 231-243. Jirousek’s complaints included neck and back pain and tingling in her hands/wrists.
Tr. 234, 237, 238, 241, 242. She continued treatments with Dr. Poyle through 2007. Tr. 232243.
On October 25, 2007, upon referral of Douglas Potoczak, M.D., Jirousek’s primary care
physician since 2006 (Tr. 592), Jirousek saw Sanjay Kumar, D.O., of Neurosurgical Services,
Inc., for a consultation regarding her pain (Tr. 392-393). Jirousek was reporting some neck pain
and pain going down the arm with numbness and tingling into the thumbs since May or June of
2007. Tr. 392. Jirousek’s pain was present with turning and twisting and sometimes her pain
level was a 7/10. Tr. 392. Jirousek had been taking Vicodin, which helped minimally. Tr. 392.
Jirousek was recently pregnant so she had stopped taking her medicines except for Tylenol as
needed. Tr. 392. She had tried a prednisone taper but it did not help. Tr. 392. On physical
examination, Dr. Kumar noted that extension and flexion caused some pain in the neck area;
there was mild pain to palpation over the right mid lower cervical paraspinal muscles; and
spurling maneuver caused some mild radiating pain down the right arm. Tr. 392. Dr. Kumar
noted that Jirousek described “some paresthesias in the C6 distribution.” Tr. 392. Dr. Kumar
observed that Jirousek’s reflexes were 2+ and symmetric; there were no upper motor neuron
signs or symptoms seen; strength was at least 5/5 in the upper extremities; gait was normal; and
there were no obvious spinal deformities noted. Tr. 392. Dr. Kumar indicated that a September
27, 2007, MRI showed generalized disk bulging at C4-C5, C5-C6 and C6-C7, greatest at C6-C7,
with no stenosis. Tr. 392. Dr. Kumar’s impression was right-sided neck pain with pain going
down the arm likely secondary to C6 radiculitis with mild disk bulging. Tr. 393. Because of
Jirousek’s pregnancy, treatment options were limited. Tr. 393. Jirousek indicated she had tried
chiropractic manipulations and traction which had been helping. Tr. 393.
In November 2007, approval was obtained from Jirousek’s OB/GYN to proceed with
injections. Tr. 391. On December 11, 2007, Jirousek reported that the right C5-C6, C6-C7 facet
injection helped for about a week. Tr. 389. She was still having some numbness and tingling in
her thumb and index finger and sometimes pain in the parascapular region and shoulder blade
and neck. Tr. 389. Jirousek had experienced a miscarriage and was taking Vicodin at night. Tr.
389. Nerve conduction studies were performed and Dr. Kumar concluded that there appeared to
be electrodiagnostic evidence of mild right-sided carpal tunnel syndrome characterized by
sensory fiber demyelination. Tr. 389. Dr. Kumar recommended carpal tunnel wrist splints and a
cervical epidural injections. Tr. 389.
Several weeks after receiving the cervical epidural injections, on December 31, 2007,
Jirousek saw Dr. Kumar for follow up reporting that the injections had helped significantly. Tr.
387. Most of her pain was now in the low back right side. Tr. 387. Her pain was worse with
bending and standing and sometimes it was hard to get out of bed. Tr. 387. She was taking
Vicodin and Tylenol rarely. Tr. 387. On examination, Dr. Kumar observed some tenderness
over the right lumbosacral junction and SI region. Tr. 387. Flexion bothered Jirousek more than
extension. Tr. 387. Otherwise, she was neurologically stable. Tr. 387. Dr. Kumar
recommended x-rays of the lumbar spine and SI joints. Tr. 387. Jirousek was going to continue
her home exercise program and see Dr. Kumar in two weeks for follow up. Tr. 387.
During a January 11, 2008, follow up visit with Dr. Kumar, Jirousek reported that her
neck was still feeling pretty good but she was having low back pain, with her pain worse with
lying down. Tr. 385. The x-rays showed some posterior element sclerosis in mid distal lumbar
spine and arthritic changes at the bilateral SI joints, right greater than left. Tr. 385. Jirousek was
taking Vicodin and Tylenol only as needed and she reported that her pain interfered with her
activities of daily living and quality of life. Tr. 385. Dr. Kumar recommended an MRI since
lying down made her symptoms worse. Tr. 385.
During a January 25, 2008, Dr. Kumar indicated that the MRI showed a broad base disk
bulge at L4-L5, a small central disk protrusion at L5-S1, and bilateral mild facet arthropathy. Tr.
383. Jirousek’s back hurt with extension but her neck pain was stable. Tr. 383. Jirousek was
taking medicine only as needed. Tr. 383. She was walking “twice a day 3 miles” which Jirousek
felt helped her. Tr. 383. The plan was for Jirousek to continue her home exercise program with
some flexion oriented exercises. Tr. 383. It was decided that Jirousek would hold off on
injections and Dr. Kumar directed Jirousek to call if she had any flare ups. Tr. 383.
On May 2, 2008, Jirousek saw Dr. Kumar reporting that her pain was worse and she
could not take it anymore. Tr. 381. She wanted injections. Tr. 381. Dr. Kumar agreed to
schedule L4-L5, L5-S1 facet joint injections first. Tr. 381. Dr. Kumar prescribed both Vicodin
and Naprosyn. Tr. 381. On May 21, 2008, Jirousek saw Dr. Kumar and reported that her pain
was significantly better following the facet joint injections performed two weeks prior. Tr. 379.
Jirousek indicated that she felt “awesome[.]” Tr. 379. She did indicate that sometimes she still
had issues with her neck. Tr. 379. Dr. Kumar was happy with Jirousek’s results and indicated
that he would see Jirousek back if she had any flare ups. Tr. 379.
On July 7, 2008, Jirousek returned to see Dr. Kumar reporting that the pain in her neck
had returned with numbness in her arms, limited range of motion and some spasms. Tr. 377. Dr.
Kumar recommended epidural injections and physical therapy thereafter. Tr. 377. On July 30,
2008, Jirousek reported 80% relief from her cervical epidural injections. Tr. 375. Jirousek
inquired about cervical traction. Tr. 375. On examination, Dr. Kumar observed minimal pain to
palpation over the neck and lower back paraspinal muscles. Tr. 375. Jirousek’s range of motion
and strength were functional, her sensation was intact to light touch, and neurologically she was
stable. Tr. 375. Dr. Kumar recommended comprehensive outpatient therapy and a cervical
traction unit that she could use at home. Tr. 375.
Jirousek next saw her primary care physician Dr. Potoczak on February 8, 2010, for
follow up of her chronic neck and shoulder pain, which Jirousek described as slightly worse. Tr.
293. Jirousek indicated that her shoulder pain had started last summer and was continuing to
bother her but it was not interfering with daily activities. Tr. 293. Jirousek indicated that she
“[f]elt a pop and some clicking last summer in the pool with [her] daughter. She threw her up
into the air playing with her.” Tr. 293. On examination, Dr. Potoczak observed pain and
tenderness over the biceps; “decreased range of motion, flexion, extension, rotational
movement[;]” some pain over supraspinatus; trapezius muscle and paracervical muscular spasm
and pain with palpation; mild decreased range of motion; flexion and extension, lateral bending
secondary to pain; no parasthesias in arms; good grip strength; some lumbar discomfort, worse
when on her feet a lot; and negative straight leg raises. Tr. 293. Dr. Potoczak’s diagnoses
included chronic lumbar pain; sciatica with intermittent exacerbation; and chronic shoulder pain,
cannot rule out rotator cuff tear. Tr. 293. An x-ray of Jirousek’s right shoulder taken on
February 8, 2010, showed mild degenerative changes. Tr. 324. Dr. Potoczak indicated that the
x-ray was negative but noted that an MRI might be required. Tr. 293. Dr. Potoczak prescribed
steroids for 11 days; recommended heat in the morning and ice at night; and Vicodin every 6
hours as needed. Tr. 293. An MRI of the right shoulder taken on March 1, 2010, showed “No
rotator cuff abnormality identified. Acromioclavicular degenerative changes.” Tr. 322.
The following month, on March 31, 2010, Jirousek returned to see Dr. Kumar almost two
years since her last visit with him. Tr. 320, 372. Jirousek complained of right sided low back
pain. Tr. 320. Jirousek indicated that her back pain had flared up on the right side. Tr. 320. She
described her pain as a dull ache and reported that bending and lifting bothered her. Tr. 320.
Jirousek rated her pain as a 4/10. Tr. 320. She had minimal numbness down her right leg. Tr.
320. She was taking Vicodin as needed, three or four time per week, and Skelaxin, Motrin and
Tylenol as needed. Tr. 320. Jirousek had started to jog. Tr. 320. She indicated that her pain
affected her quality of life and her sleep was decreased. Tr. 320. Jirousek had another child
about a year prior. Tr. 320. Dr. Kumar assessed low back pain with degenerative disk and joint
disease of the lower lumbar spine with facet arthropathy, symptomatic on the right. Tr. 320. Dr.
Kumar noted that Jirousek had done well with facet joint injections in the past and recommended
L4-L5, L5-S1 facet joint injections. Tr. 320. On April 19, 2010, Jirousek reported to Dr.
Kumar’s office that she felt 75% better following her injections. Tr. 371.
On September 21, 2010, Jirousek saw Dr. Potoczak with complaints of intermittent
problems with her back and neck. Tr. 287. She was interested in trying more muscle relaxant
and needed a refill on Vicodin. Tr. 287. Dr. Potoczak observed pain and tenderness in the
paracervical musculature and into the trapezius but she was improved since before. Tr. 287. Dr.
Potoczak refilled Jirousek’s medications with instructions to follow up in a month or sooner if
her symptoms worsened. Tr. 287.
Jirousek saw Dr. Potoczak on July 27, 2011, complaining of muscle pain in her chest,
shoulders and arms that had been going on for about a month. Tr. 284. Dr. Potoczak indicated
that the muscle pain was possibly related to her use of Zocor, which she had been on for almost a
year. Tr. 284. Dr. Potoczak diagnosed history of hyperlipidemia and chronic neck/back pain,
now with myalgias. Tr. 284. Dr. Potoczak discontinued the Zocor and recommended follow up
in two weeks. Tr. 284. During an August 12, 2011, follow-up visit with Dr. Potoczak Jirousek’s
myalgias had improved slightly. Tr. 283. On examination, Jirousek’s bicep area was not as
tender but she had continued pain in the paracervical musculature and trapezius bilateral with
muscle spasm, achiness in her upper deltoid and tricep, and some chronic low back pain and
paresthesias in the right buttock area. Tr. 283. Dr. Potoczak recommended keeping Jirousek off
the Zocor and noted that she was scheduled to see Dr. Kumar for an evaluation of lumbar
cortisone injections. Tr. 283. Dr. Potoczak planned to follow up with Jirousek in a month and
would see if Dr. Kumar felt that physical therapy was appropriate. Tr. 283.
On August 17, 2011, Jirousek saw Dr. Kumar with complaints of right-sided low back
pain and neck pain. Tr. 303, 369. Jirousek had not seen Dr. Kumar for about 16 months. Tr.
303. Jirousek reported that her pain had returned over the prior three months on the right side of
her low back. Tr. 303. Her pain was worse with bending and twisting and the numbness,
tingling, and neck pain had returned on both sides but it was not as bad as her low back pain. Tr.
303. On examination, Dr. Kumar observed tenderness on the right mid lower lumbar paraspinal
muscles with positive facet joint provocative maneuvers; straight leg raising was negative;
Jirousek could heel and toe walk; gait, coordination and balance were normal; mild tightness in
her hamstrings; no pain with hip rotation; and neck range of motion was functional. Tr. 303. Dr.
Kumar assessed low back pain right sided with facet arthropathy and history of neck pain. Tr.
303. Dr. Kumar advised that Jirousek should proceed with right L4-5 and L5-S1 facet joint
injections. Tr. 303. If Jirousek’s neck continued to bother her, Dr. Kumar indicated that
Jirousek may need interventional pain management. Tr. 303. Jirousek was continuing to do
exercises at home and they discussed the possibility of an inversion table and DRX machine,
which would be more for diskogenic pain. Tr. 303. Jirousek was going to continue to take
Motrin and had enough Vicodin. Tr. 303. On September 6, 2011, Jirousek reported to Dr.
Kumar’s office that the injections she had on August 22, 2011, provided 75% relief but she still
had some pain and wanted to know whether she should have another injection. Tr. 368. Dr.
Kumar recommended holding off. Tr. 368.
Jirousek saw Dr. Potoczak on November 8, 2011, for follow up after having discontinued
the Zocor. Tr. 420-421. Jirousek had no chest pain, focal weakness or shortness of breath. Tr.
420. Jirousek was interested in restarting Zocor. Tr. 420. Dr. Potoczak provided a refill for the
Zocor. Tr. 422. On examination, Dr. Potoczak observed multiple trigger points with deep
muscle spasm. Tr. 421. Dr. Potoczak provided samples of Savella. Tr. 422. During a follow-up
visit with Dr. Potoczak on November 22, 2011, Jirousek reported that pain was present in her
neck, left clavicle, left elbow, left shoulder, right clavicle, upper right arm, upper left arm, upper
back and right shoulder and she described her pain as “medium.” Tr. 422. Jirousek reported that
physical therapy was helping with her pain. Tr. 423. Jirousek was interested in a different
muscle relaxer. Tr. 423. She had no improvement with Savella so Dr. Potoczak discontinued the
medication. Tr. 423. Dr. Potoczak’s physical examination revealed an unremarkable neurologic
exam; upper and lower extremities within normal limits; and full strength. Tr. 423. Dr.
Potoczak diagnosed fibromyalgia and he prescribed Flexeril to be taken 2 times daily as needed
for muscle spasms. Tr. 423.
On November 30, 2011, Jirousek saw a new chiropractor, Dr. Ross C. Lubrani, DC, for
evaluation and treatment of her neck and lower back pain. Tr. 245-247. Jirousek complained of
“very severe constant sharp neck pain, severe constant aching low back pain and moderate
numbness in both arms.” Tr. 245. Dr. Lubrani’s objective findings included evidence of muscle
spasms, active myofascial trigger points, and range of motion loss. Tr. 247. Dr. Lubrani treated
Jirousek through at least March 2012. Tr. 245-272.
During an April 11, 2012, visit with Dr. Potoczak regarding her anxiety, Dr. Potoczak
noted in his physical examination findings that Jirousek had a normal range of motion and her
back and neck pain were much better with therapy. Tr. 424. On May 8, 2012, Jirousek returned
to see Dr. Kumar with complaints of bilateral shoulder pain that had been bothering her for the
prior 6 months. Tr. 366. She also reported neck pain but her shoulders were really bad. Tr. 366.
Both sides bothered her with lifting her arms and sleeping at night. Tr. 366. She had a hard time
reaching behind her back. Tr. 366. Jirousek was using Vicodin sparingly and tried Motrin. Tr.
366. Dr. Kumar diagnosed bilateral shoulder pain with rotator cuff tendonitis and bursitis. Tr.
366. Dr. Kumar started Jirousek on Mobic; ordered x-rays of both shoulders; and scheduled
bilateral shoulder subacromial injections. Tr. 366. During a visit at Dr. Kumar’s office on May
30, 2012, Jirousek reported significant relief following bilateral shoulder subacromial injections
earlier that month. Tr. 363. She had more relief while awake but was still having bad pain at
night. Tr. 363. She was using Mobic and Tylenol, which seemed to help her perform her daily
activities. Tr. 363. Because Jirousek was continuing to have significant discomfort in the
evening, the nurse indicated that an MRI of the left shoulder would be taken to rule out any
rotator cuff involvement. Tr. 363.
Following her left shoulder MRI (Tr. 354, 415-416), on June 27, 2012, Jirousek saw
David Zanotti, M.D., of the Center for Orthopedics, for an evaluation of her shoulder pain (Tr.
337-338, 347). Jirousek reported that her right shoulder was worse than her left. Tr. 337. On
examination, Dr. Zanotti observed that Jirousek had full overhead motion of both shoulders; very
limited neck flexion and extension with pain radiating down both paracervical regions;
significant pain in the biceps groove on both sides; 5/5 abduction and supraspinatus strength with
mild pain during stressing; pain with impingement maneuvers on both sides; and subscapularis
stretching caused significant discomfort on both sides. Tr. 337. Jirousek denied any numbness
or tingling during the visit but reported having radiating pain down her arms at times. Tr. 337.
Dr. Zanotti indicated that x-rays of both shoulders showed minimal degenerative changes of the
glenohumeral joint with the alignment maintained and an MRI of the left shoulder showed
subluxated biceps tendon with some cuff tendinitis. Tr. 337, 354, 415-416. Dr. Zanotti assessed
right greater than left shoulder biceps tendinitis with left sided bicipital subluxation and bilateral
impingement and a history of cervical radiculopathy. Tr. 338. An MRI of the right shoulder was
ordered and Dr. Zanotti administered an injection of Celestone and Lidocaine in the left bicipital
groove. Tr. 338.
A July 2, 2012, MRI of the right shoulder showed distal supraspinatus and infraspinatus
with partial undersurface tearing of the distal anterior fibers of the supraspinatus without fullthickness tear; moderate AC joint osteoarthrosis with inferior projecting osteophyte from the
distal clavicle causing mass effect on the myotendinous junction of the supraspinatus; and mild
subacromial and subcoracoid bursitis. Tr. 351, 417.
Jirousek saw a physician assistant at Dr. Zanotti’s office on July 23, 2012. 4 Tr. 345. The
assessment was right shoulder impingement, right shoulder bicipital tendinitis, and improved left
shoulder bicipital tendinitis. Tr. 345. Jirousek received an injection of Celestone and Lidocaine
into the right subacromial space and was referred her to physical therapy for her neck and
shoulder. Tr. 345. On August 1, 2012, Jirousek received an initial physical therapy evaluation at
Total Joint Rehab. Tr. 339-340.
The treatment notes indicate “All questions were answered by myself [the physician assistant] and Dr. D. Zanotti.”
In September 2012, Jirousek saw a physician assistant at Dr. Zanotti’s office for two
different visits. Tr. 342, 344. Jirousek continued to report pain in both shoulders as well as in
her neck with stiffness in her neck. Tr. 342, 344. Jirousek reported some relief from an earlier
injection in her left bicipital groove and past cortisone injections. Tr. 342, 344. Dr. Zanotti
ordered a cervical MRI, which was taken on September 19, 2012, and showed degenerative and
arthritic changes in the cervical spine; multilevel discogenic degenerative disease and a few
bulging disks in the cervical spine but no evidence of a frank herniated nucleus
pulposus; a few narrowed neural foramina but no spinal canal stenosis in the cervical spine; and
unremarkable cervical cord with no cord compression at the c-spine. Tr. 348-349, 418-419.
A September 26, 2012, examination at Dr. Zanotti’s office showed that Jirousek had “full
overhead motion with the ability to get her hand behind her back lacking two-levels bilaterally.”
Tr. 342. She exhibited pain on impingement maneuvers and significant bicipital groove pain on
the right with less on the right. Tr. 342. She had a positive Spurling’s maneuver. Tr. 342. She
reported no numbness or tingling in her hands. Tr. 342. Jirousek received an injection in her left
shoulder, both subacromially and bicipitally, and a cortisone injection in the right bicipital
groove. Tr. 342. Jirousek was provided a prescription for Mobic, since it had provided some
relief in the past. Tr. 342. It was recommended that Jirousek be seen on an as needed basis if
she had further concerns or questions regarding her shoulder or neck. Tr. 342.
On October 24, 2012, Jirousek was seen again at Dr. Zanotti’s office. Tr. 329-330.
Jirousek reported increasing pain in her left shoulder along the outside of her arm. Tr. 329. The
physical examination showed full overhead motion with ability to get her hand behind her head
and behind her back. Tr. 329. There was pain with internal rotation and pain on stressing in
abduction as well as cross body stressing. Tr. 329. Jirousek exhibited 5/5 abduction and
supraspinatus strength. Tr. 329. Upon Jirousek’s request, an injection of Celestone and
Lidocaine was administered into the left subacromial space. Tr. 330. Jirousek would follow up
with Dr. Zanotti on an as needed basis. Tr. 330. She planned to schedule an appointment with
Dr. Kumar regarding her neck pain. Tr. 330.
Medical evidence post-dating amended alleged onset date
Jirousek saw Dr. Kumar on November 13, 2012. Tr. 361. She reported that the left side
of her neck had flared up quite a bit from last seeing Dr. Kumar six months prior. Tr. 361.
Jirousek indicated she sometimes had pain down the arm and numbness in her hands and arms
when using them. Tr. 361. She was also having right-sided low back pain. Tr. 361. On
examination, Dr. Kumar’s observations included tenderness in the left mid-lower cervical
paraspinal muscles with positive facet joint provocative maneuvers; strength was functional in
the upper extremities; some pain with shoulder strength testing on the left; tenderness in the right
lower lumbar paraspinal muscles with positive facet joint provocative maneuvers; some
tenderness in the lumbrosacral junction; strength was functional for ambulation; and gait,
coordination and balance were normal. Tr. 361. Dr. Kumar diagnosed left-sided back pain with
cervical spondylosis, degenerative disk disease; numbness and tingling in the hands and arms;
right-sided low back pain with facet arthropathy; chronic pain; and left shoulder pain with rotator
cuff syndrome. Tr. 361. Dr. Kumar ordered physical therapy for the low back; x-rays of the
lumbar and cervical spine; and facet joint injections in the cervical and lumbar regions. Tr. 361.
Dr. Kumar also ordered EMG testing of the upper extremities. Tr. 361.
Om November 28, 2012, Jirousek underwent EMG testing of the upper extremities to
evaluate for carpal tunnel syndrome. Tr. 449. The testing showed “electrodiagnostic evidence
of mild bilateral median mononeuropathies at the wrist or carpal tunnel syndrome characterized
primarily by sensory fiber demyelination, left worse than right.” Tr. 449. Jirousek was wearing
wrist splints. Tr. 449.
On December 6, 2012, Jirousek received facet joint lumbar injections. Tr. 451-453. On
December 12, 2012, Jirousek reported to Dr. Kumar’s office that the injections had taken the
edge off and she was doing about 70-80% better at the time. Tr. 364. There is a handwritten
note on the December 12, 2012, office note that states, “When pain comes back we will do RF
[radiofrequency].” Tr. 364.
In February 2013, Jirousek saw Dr. Potoczak with complaints of back pain. Tr. 430-434.
Jirousek reported a gradual worsening of her back pain, which she described as burning with a
severity level of 7/10. Tr. 431. On examination, Dr. Potoczak observed decreased range of
motion, tenderness and spasm in the cervical back. Tr. 433. There was normal range of motion
in the neck but pain and spasm in the neck and trapezius muscle. Tr. 433. Dr. Potoczak
prescribed some medication but no other orders were placed. Tr. 434.
Medical evidence post-dating date last insured
On April 24, 2013, Jirousek called Dr. Kumar’s office to report that she was having pain
again and her injections for right side lumbar had worn off. Tr. 454. Per Dr. Kumar’s prior
instructions, she was calling about right side lumbar radiofrequency. Tr. 454. On May 2, 2013,
radiofrequency ablation was performed at the right L3, L4, and L5 area. Tr. 455-457. Also, on
May 2, 2013, knee x-rays were taken, which were normal. Tr. 443-444. Also, in May 2013, Dr.
Kumar administered a right shoulder subacromial injection due to right shoulder pain. Tr. 458.
Dr. Kumar held off on administering an injection in the left knee. Tr. 458.
Jirousek returned to see Dr. Potoczak on June 25, 2013, with reports of new pains –
– bilateral shoulder pain, bilateral knee pain, and bilateral hip pain for about two months. Tr.
434-438. She was receiving moderate relief through the use of Flexeril, Mobic, Vicodin, Tylenol
and Motrin. Tr. 434. On examination, Dr. Potoczak observed normal range of motion in the
neck but decreased range of motion and tenderness in the right shoulder; decreased range of
motion, pain and spasm in the lumbar back; and tenderness in the left forearm. Tr. 437. Dr.
Potoczak recommended that Jirousek try physical therapy and Lyrica. Tr. 437. Also, Dr.
Potoczak indicated that Jirousek needed to have an MRI performed and a rheumatologist consult.
Upon Dr. Potoczak’s referral, on July 2, 2013, Jirousek saw Vagesh M. Hampole, M.D.,
for possible fibromyalgia. Tr. 572-574. Dr. Hampole’s examination findings included
no swelling of any of the joints of upper and lower extremities; tender areas present over back,
across shoulders and upper and lower extremities; no weakness; pain with range of motion in
neck rotation, bilateral shoulder abduction, bilateral elbow flexion and extension, bilateral hip
internal rotation and external rotation; motor and sensory function, reflexes, gait and
coordination all intact. Tr. 573. Dr. Hampole assessed fibromyalgia and prescribed Flexeril and
directed Jirousek to continue taking Lyrica as she had been. Tr. 574. Dr. Hampole ordered lab
work, including an arthritis panel. Tr. 574. Jirousek’s lab work showed a positive anti-nuclear
antibodies (ANA) test at 1:80 titers. 5 Tr. 577. Dr. Hampole reviewed the lab work with Jirousek
on July 23, 2013, and continued the diagnosis of fibromyalgia but added cervical radiculitis. Tr.
579. Dr. Hampole started Jirousek on Trazadone and stopped the Flexeril. Tr. 579. Lyrica,
Mobic, and Vicodin were continued. Tr. 579. Jirousek was going to follow up with Dr. Kumar
ANAs “are seen in a variety of systemic rheumatic diseases[.]” Tr. 577. “[T]iters greater than or equal to 1:160 are
considered clinically significant . . . however, healthy individuals and those with advanced age have been reported to
be positive for ANA.” Tr. 577.
regarding the cervical radiculitis. Tr. 579. Jirousek continued to see Dr. Hampole from
September 2013 through April 2014. Tr. 582-587. Dr. Hampole’s examination results were
generally the same throughout with some changes to medications made during Dr. Hampole’s
treatment of Jirousek. Tr. 585.
On July 24, 2013, Jirousek saw Dr. Kumar with complaints of shoulder and neck pain.
Tr. 461. She was having numbness down her right arm. Tr. 461. Jirousek indicated that the
numbness was driving her crazy at times and affecting her quality of life. Tr. 461. She was
frustrated with the pain. Tr. 461. On examination, Spurling’s maneuver was mildly positive and
there was positive impingement signs in the right shoulder. Tr. 461. Strength was 5/5 in the
upper extremities. Tr. 461. Extension and rotation were limited in the neck and forward flexion
past 100 degrees caused some shoulder pain. Tr. 461. Gait, coordination and balance were
normal. Tr. 461. Dr. Kumar assessed right sided cervical spondylosis with radiculitis, most
likely at C6; rotator cuff dysfunction right shoulder; chronic pain; and history of lumbar
pathology. Tr. 461. Dr. Kumar recommended an MRI of the right shoulder and a cervical
epidural. Tr. 461. An August 3, 2013, MRI of the right shoulder showed no significant change
since the July 2, 2012, MRI. Tr. 439-440. Jirousek received a cervical epidural injection at the
C7-T1 level on July 25, 2013. Tr. 463-465. During an August 8, 2013, appointment for medial
branch blocks at the C4, C5, and C6 levels for right-sided neck pain radiating down the shoulder,
Jirousek reported no improvement from the cervical epidural injections she had received two
week earlier. Tr. 466-468. She also reported that when she saw a surgeon there was no
indication for surgical intervention. Tr. 466. On August 15, 2013, Jirousek reported about 30%
relief of her right shoulder and arm pain from the C4, C5, and C6 medial branch blocks but she
was continuing to have pain from the neck down to her index finger along the C6 dermatome.
Tr. 469. Thus, a C6 right nerve block was administered. Tr. 469-471.
On September 6, 2013, Jirousek saw Dr. Kumar reporting continued pain and only
minimal relief from the C6 nerve block. Tr. 472. The medial branch blocks and epidural were
not helpful. Tr. 472. Jirousek relayed to Dr. Kumar that she was seeing Dr. Hampole who was
prescribing Lyrica for possible fibromyalgia. Tr. 472. Dr. Kumar recommended an EMG of the
upper extremities, noting that a cervical spine MRI might be required depending on the results of
the EMG. Tr. 472. He also recommended a “small work LSO brace to help reduce pain in the
lumbar spine and restrict mobility of the trunk and to help support the spinal muscles.” Tr.
EMG testing was performed on September 13, 2013. Tr. 474. The results of the testing
showed “electrodiagnostic evidence of mild to moderate bilateral median mononeuropathies at
the wrist or carpal tunnel syndrome characterized primarily by demyelination with some chronic
changes. There is also a hint of axonal irritation on the right at C6 but no active denervation.” Tr.
474. Dr. Kumar recommended a right-sided carpal tunnel injection. Tr. 474. If that did not
work, Dr. Kumar indicated that an MRI of the cervical spine may be needed. Tr. 474. On
September 18, 2013, Jirousek received a right carpal tunnel injection. Tr. 476-477.
During an October 18, 2013, follow-up visit with Dr. Kumar, Jirousek reported that the
carpal tunnel injection did not help much. Tr. 478. She was still having pain in the neck going
down the right arm. Tr. 478. Also, Jirousek indicated she was favoring her right leg but her low
back was hurting more on the right side. Tr. 478. Physical examination findings, included a
positive Spurling maneuver on the right; numbness in the C6 distribution on the
Right; tenderness in the right lower lumbar paraspinal muscles with positive facet joint
provocative maneuvers; gait was antalgic favoring the right lower extremity; balance was fair;
coordination was normal; and there was a decreased range of motion with right sided rotation
and side bending of the cervical spine. Tr. 478. Dr. Kumar recommended radiofrequency
ablation on the right at L3-4-5 and a cervical spine MRI. Tr. 478.
Radiofrequency ablation was performed on November 4, 2013, on the right at L3, L4,
and L5. Tr. 480-482. A November 8, 2013, cervical spine MRI showed “Mild cervical
spondylosis, with canal narrowing with mild canal narrowing at C5-6 and C6-7. Right foraminal
narrowing at C3-4. No significant change from MRI scans dated September 19, 2012.” Tr. 441.
In early January 2014, Jirousek called seeking an appointment with Dr. Kumar,
indicating she was having severe pain in her right shoulder and she was interested in an injection.
Tr. 485. She saw Dr. Kumar on January 14, 2014. Tr. 486. Dr. Kumar noted that Jirousek was
at the visit for right sided neck pain and posterior shoulder pain and she wanted a shoulder
injection. Tr. 486. However, on examination, Jirousek did not have any pain with the shoulder
with internal or external rotation or abduction and flexion so no shoulder injection was
administered. Tr. 486. She did have significant spasms in the right parascapular region and
trapezius region; her neck range of motion was impaired significantly and there was tenderness
in the right mid lower cervical paraspinal muscles. Tr. 486. Turning and twisting bothered her.
Tr. 486. She was taking two Norco at a time at 5 mg strength, which helped a little, and she was
taking Flexeril and Motrin. Tr. 486. Dr. Kumar increased the Norco strength to 10 mg, twice a
day, as needed, and recommended C4-5, C5-6, and C6-7 cervical facet joint injections to calm
down her pain. Tr. 486. The facet joint injections were performed on January 15, 2014. Tr.
Jirousek saw Caryn DeLisio, CNP, with Dr. Kumar’s office on May 21, 2014, for follow
up. Tr. 491. Nurse DeLisio noted that Jirousek had done very well with radiofrequency ablation
in the past, as well as with cervical facet joint injections. Tr. 491. Accordingly, radiofrequency
ablation on the right at levels L3-4 and 5 was set up and, after that, cervical facet joint injections
would be performed on the right at C4-5, C5-6 and C6-7. Tr. 491, 493-495, 496-498. Also, a
TENS unit was ordered. Tr. 491. Jirousek reported point tenderness on the right elbow so an xray of the right elbow was ordered to rule out other issues. Tr. 491.
Upon Dr. Kumar’s referral, on June 25, 2014, Jirousek saw Robert Perhala, M.D., for a
consultation for possible lupus. Tr. 515-519. Jirousek reported neck stiffness and pain for about
6-7 years and low back and hip pain for about 4-5 years. Tr. 515. She reported 2-3 hours of
morning stiffness, mostly in the spinal area. Tr. 515. Jirousek reported that she walked regularly
for exercise. Tr. 516. On examination, Dr. Perhala observed that Jirousek walked with a slightly
antalgic gait; there was moderate tenderness of the cervical paraspinal area bilaterally, right
lumbar paraspinal area down into the right SI joint area; tenderness in the shoulders bilaterally;
synovial thickening and tenderness of the right elbow; tenderness in right finger joints;
tenderness in the knees; and full range of motion in shoulders, elbows, wrists, hips, knees,
ankles. Tr. 517. Dr. Perhala found no tenderpoints of fibromyalgia present but noted 8 tender
joints and 1 swollen joint. Tr. 517. Jirousek’s upper and lower extremity strength was 5/5
bilaterally and her reflexes in her upper and lower extremities were normal bilaterally. Tr. 518.
Dr. Perhala reviewed radiology reports, noting that Jirousek’s left knee x-ray was normal; an xray of her knees bilaterally was normal; a cervical spine MRI showed “DDD with mild stenosis,”
and a right shoulder MRI showed “AC arthrosis and RC tendonosis.” Tr. 518. Dr. Perhala
assessed unspecified polyarthropathy inflammatory; unspecified backache; cervicalgia; and
“shoulder region affections other not elsewhere class.” Tr. 518. Dr. Perhala indicated that he
felt strongly that Jirousek’s arthritis was “inflammatory in basis, that she should be on DMARD
therapy” and he was “going to initiate sulfasalazine . . . a high risk medication requiring lab
monitoring consistently.” Tr. 519. Lab work showed an ANA titer of 1:160. Tr. 522.
In July 2014, Jirousek saw Dr. Kumar. Tr. 499. She had some relief from the
radiofrequency ablation and facet joint injections. Tr. 499. She was continuing to use Norco 10
mg at night. Tr. 499. Jirousek was seeing Dr. Perhala for more rheumatologic workup. Tr. 499.
She was having pain in her knees, back and neck with spasms. Tr. 499. Activity bothered
Jirousek. Tr. 499. She had no new numbness or weakness. Tr. 499. Dr. Kumar continued
Jirousek on Norco 10 mg and directed Jirousek to call if she needed a right SI joint injection. Tr.
499. On August 11, 2014, Jirousek called Dr. Kumar requesting the SI injection and, on August
18, 2014, Dr. Kumar administered the injection. Tr. 502-504.
Jirousek saw Dr. Perhala on August 18, 2014, for follow up of her inflammatory arthritis.
Tr. 523-526. Jirousek reported being more fatigued but her inflammatory arthritis was under
“fair control.” Tr. 523. She reported a “degree of stiffness and pain in the hands, wrists,
shoulders, knees and feet more on the right side. Most other joints [were] stable.” Tr. 523.
Norco, prescribed through her other doctors, was providing her relief for breakthrough pain. Tr.
523. On examination, Dr. Perhala observed 13 tender joints and 1 swollen joint but no
tenderpoints of fibromyalgia and full range of motion. Tr. 525. Because of the possibility that
Jirousek’s medication was causing her fatigue, Dr. Perhala changed Jirousek from Sulfasalazine
to Plaquenil. Tr. 526, 529.
Jirousek saw Dr. Perhala on October 20, 2014, for follow up. Tr. 529-532. Jirousek’s
inflammatory arthritis had been under “fair control” since the last visit. Tr. 529. Plaquenil
therapy was providing minimal control of Jirousek’s arthritis. Tr. 529. As he had in the prior
visit, Dr. Perhala observed 13 tender joints and 1 swollen joint. Tr. 531. There was full range of
motion. Tr. 530-531. Dr. Perhala stopped Plaquenil since the effects were minimal and started
Jirousek on Methotrexate. Tr. 532.
On October 23, 2014, Jirousek saw Dr. Kumar for follow up. Tr. 506. She indicated that
she had been diagnosed with rheumatoid arthritis and was taking Methotroxate. Tr. 506. She
reported being in miserable pain and understood she could not have another radiofrequency
procedure until December. Tr. 506. Norco helped some but she sometimes needed to take two
in a day. Tr. 506. Dr. Kumar’s physical examination revealed that Jirousek ambulated in a
flexed spine position favoring the left leg; she was very tender in the right mid-low back with
positive facet joint provocative maneuvers; straight leg raising was negative for radicular pain;
there was quite a bit of muscle hypertonicity appreciated; balance was fair; coordination was
normal; neck pain was worse on extremes; there was mild tightness in hamstrings; there was
generalized stiffness. Tr. 506. Dr. Kumar’s diagnoses were right sided mid-low back pain with
facet arthropathy; SI joint dysfunction; cervical spondylosis; degenerative disk disease;
rheumatoid arthritis; and chronic pain. Tr. 506. Until the radiofrequency ablation procedure
could be performed, Dr. Kumar recommended right L3-4, L4-5, L5-S1 facet joint injections. Tr.
506. Also, Dr. Kumar planned to get lumbar flexion/extension x-rays. Tr. 506. Dr. Kumar also
increased Jirousek’s Norco. Tr. 506. X-rays of the lumbar spine were taken on October 23,
2014, which showed “[m]ild mid and distal lumbar posterior element arthritis, no change with
flexion and extension.” Tr. 445. Facet joint injections were performed on October 27, 2014. Tr.
On November 21, 2014, Jirousek saw Dr. Kumar and reported that the facet joint
injections had helped her a lot and were continuing to help her but they were wearing off. Tr.
510. She indicated that the Methotrexate and Motrin helped. Tr. 510. She did not need to take
as much Norco because of the facet joint injections. Tr. 510. Activity bothered her and her pain
was affecting her quality of life. Tr. 510. Dr. Kumar recommended radiofrequency ablation
after December 2, 2014. Tr. 510. There was some tenderness in the right mid low back with
positive facet joint provocative maneuvers but her straight leg raising was negative and she could
heal walk and toe walk. Tr. 510. A prescription for Celebrex was added to her medications. Tr.
510. The radiofrequency ablation procedure was performed on December 9, 2014. Tr. 512-514.
On December 16, 2014, Jirousek saw Dr. Perhala. Tr. 538-541. With Methotrexate,
Jirousek’s arthritis was under fair control and Jirousek was tolerating the medication without
significant side effects. Tr. 538. Dr. Perhala continued Jirousek on Methotrexate. Tr. 541.
2. Opinion evidence
a. Treating physicians
Douglas Potoczak, M.D.
On March 5, 2015, Dr. Potoczak completed a “Medical Source Statement: Physical
Abilities and Limitations” (“MSS”) wherein he provided his opinion regarding Jirousek’s
abilities as of November 2012. Tr. 591-592. Dr. Potoczak opined that Jirousek would have
difficulty standing/walking, sitting, lifting/carrying, fingering, handling, and reaching due to
rheumatoid arthritis and chronic neck, back and/or shoulder pain. Tr. 591-592. Dr. Potoczak
opined that Jirousek could stand/walk at one time for 30 minutes with a break in between and she
could stand/walk a total of 4 hours in an 8-hour period with intermittent breaks. Tr. 591. Dr.
Potoczak opined that Jirousek could sit for 20-30 minutes at one time, noting that she develops
pain after 20 minutes of sitting. Tr. 591. He also opined that she could sit for a total of 4 hours
in an 8-hour period with intermittent breaks. Tr. 591. Dr. Potoczak opined that Jirousek could
lift/carry 5 pounds occasionally and 1-2 pounds frequently. Tr. 591. Dr. Potoczak opined that
Jirousek was limited to occasional fingering and handling bilaterally. Tr. 591-592. Dr. Potoczak
also opined that Jirousek was limited to occasional reaching. Tr. 592. Dr. Potoczak was asked
whether there was anything that would prevent Jirousek from being able to complete 8-hour
workdays on a consistent (i.e., 5 days per week, every week) basis within the stated limitations.
Tr. 592. In response, Dr. Potoczak stated: “[M]edication side effects, patient is incapacitated
during RA treatments and during episodic flare ups [of] neck [and] back [and] shoulder pain –
inability to work full days.” Tr. 592. Also, at the bottom of the form, above his statement
regarding the date he first examined Jirousek, Dr. Potoczak added the following note –
“Disability 2012[.]” Tr. 592.
A few weeks later, on March 25, 2015, Dr. Potoczak completed the same MSS form that
was completed on March 5, 2015, with similar opinions regarding Jirousek’s limitations. Tr.
395-395. On March 25, 2015, Dr. Potoczak also completed a Medical Statement Regarding
Abilities and Limitations for Social Security Disability Claim. Tr. 596-598. These opinions predate the ALJ’s April 6, 2015, decision but they were only submitted to the Appeals Council after
the issuance of the ALJ’s decision. Tr. 593 (July 14, 2015, cover letter to Appeals Council
enclosing copies of Dr. Potoczak’s March 25, 2015, statements).
Robert Perhala, M.D.
On January 30, 2015, Dr. Perhala completed a Medical Source Statement, in which he
offered his opinions regarding Jirousek’s conditions and limitations. Tr. 588-589. Dr. Perhala
identified Jirousek’s diagnosis as inflammatory/seronegative arthritis. Tr. 588. Dr. Perhala
indicated that Jirousek had a history of joint pain, swelling and tenderness; morning stiffness;
and limitation of motion in her joints. Tr. 588. Dr. Perhala stated that the following joints had
inflammation at the most recent examination – left-hand, right-hand, right wrist, left shoulder,
right shoulder, neck, c-spine, and parascapular regions. Tr. 588. Dr. Perhala opined that
Jirousek could stand at one time for 15 minutes; sit at one time for 30 minutes; work 2 hours per
day; lift 5 pounds occasionally and no amount of weight frequently; never bend or stoop;
frequently perform fine and gross manipulation with the left hand; occasionally perform fine and
gross manipulation with the right hand; and never raise arms over shoulder level bilaterally. Tr.
588-589. Dr. Perhala explained:
[Jirousek] has a seronegative inflammatory arthritis akin to rheumatoid arthritis and
limitations for her peripheral joints are listed above. Note she has significant
limitations due to neck/thoracic [and] pariscapular pain that Dr. Kumar manages.
Subsequently, Dr. Perhala was provided treatment records from Dr. Potoczak dated
2/8/13 and 6/25/13, pain management notes from Dr. Kumar dated 11/13/12, rheumatology notes
from Dr. Hampole dated 7/2/13 through 4/17/13, and orthopedic notes from Dr. Zanotti and
Blake Currins, PA-C, dated 6/27/12 through 10/24/12. Tr. 590. Dr. Perhala was asked questions
and provided answers as detailed below:
Can you give an opinion about her limitations with a reasonable degree of medical
certainty at least as early as March 2013 based on your treatment after that date, the
history of Ms. Jirousek has provided to you, your knowledge of the nature of her
limiting conditions, and your review of her medical treatment provided to you as
described above? Yes
If yes, do the limitations indicated on the Medical Source Statement, signed by you
on 1/30/15, apply at least as early as March 2013? Yes
1. If yes, please explain how you reached that conclusion: The exams and
statements made by Dr. Potoczak, Dr. Kumar, Dr. Hampole [and] Dr.
Zanotti are consistent with my present findings regarding the
neck/shoulder/shoulder blade pain I have been managing her with.
b. Reviewing physicians
On March 11, 2013, state agency reviewing physician James Cacchillo, D.O., completed
a Physical RFC Assessment. Tr. 75-76. Dr. Cacchillo opined that Jirousek could lift/carry 20
pounds occasionally and 10 pounds frequently; stand and/or walk about 6 hours in an 8-hour
workday; sit about 6 hours in an 8-hour workday; and push and/or pull unlimitedly, other than as
shown for lift/carry. Tr. 75. Dr. Cacchillo explained that the foregoing exertional limitations
were “[d]ue to chronic neck (cervical DDD) and B/L shoulder pain (rotator cuff tendonitis and
bursitis). [Jirousek] also with low back pain (facet arthropathy).” Tr. 75. Dr. Cacchillo also
opined that Jirousek had the following postural limitations – never climb ladders/ropes/scaffolds;
occasionally climb ramps/stairs, stoop, kneel, and crawl; and frequently crouch. Tr. 75-76. Dr.
Cacchillo explained that the limitation of no climbing ropes or ladders was because of a limited
ROM in shoulders. Tr. 76. Dr. Cacchillo opined that Jirousek would be limited to overhead
reaching bilaterally due to limited range of motion in both shoulders. Tr. 76.
Upon reconsideration, on July 23, 2013, state agency reviewing physician Diane Manos,
M.D., completed a Physical RFC Assessment. Tr. 87-89. Her opinions regarding Jirousek’s
RFC were the same as Dr. Cacchillo’s. Tr. 87-89.
c. Consultative psychological evaluation
On April 11, 2013, a consultative psychological evaluation was performed by Thomas M.
Evans, Ph.D. Tr. 399-403. When asked about the nature of her disability and the reason for her
disability application, Jirousek indicated that it was “[f]or my neck and back.” Tr. 399. Dr.
Evans diagnosed depressive disorder, not otherwise specified. Tr. 402, 403. Dr. Evans found
that there was “no indication that Ms. Jirousek attempted to exaggerate or fabricate her
symptoms.” Tr. 403. Dr. Evans opined that her depression appeared to be secondary to her
physical problems. Tr. 402. During his evaluation, Dr. Evans observed that Jirousek “walked
unassisted, [but] she presented with a significant limp and [her] pace was slow. However, she
was not observed to be in any physical distress and sat comfortably in her seat throughout the
entire evaluation.” Tr. 402. When asked about her activities of daily living, Jirousek reported
that she had a driver’s license and was able to drive; she and her husband shared in the cooking,
cleaning and laundry; and she went grocery shopping with her husband. Tr. 400. She described
a typical day as “Drive kids to school; do a little housework; make some dinner; homework with
kids; bed.” Tr. 401.
Jirousek was represented and testified at the hearing. Tr. 41-55. She indicated that she
has problems going up and down stairs because of pain and swelling in feet, ankles, and knees.
Tr. 45. She has to travel the stairs very slowly and limit the number of times that she goes up
and down. Tr. 45. Using ice, heat and medicine help lessen some of her pain. Tr. 45.
In the summer of 2014, Jirousek was diagnosed with rheumatoid arthritis. Tr. 54.
Following that diagnosis, she was prescribed Methotrexate. Tr. 55. Jirousek believes that the
Methotrexate helps her. Tr. 55. Jirousek indicated that her rheumatoid arthritis affects her all
over. Tr. 54. In addition to her knee, ankle and foot pain, she has problems with her wrists,
fingers, shoulders, jaw, and hips. Tr. 54.
During the day, Jirousek does a limited amount of cleaning. Tr. 46. She washes dishes
but has to sit down and take a break at times. Tr. 46. Jirousek’s laundry room is in the basement
so, about once a week, she will go down to the basement and do a few loads of laundry so she
does not have to go up and down the stairs. Tr. 45, 48. She is not able to carry the clothes back
up – either her husband or children will carry the finished laundry upstairs for her. Tr. 53. If
she is feeling up to it, some nights Jirousek will cook dinner. Tr. 46. If she prepares a meal, it is
usually something that does not require a lot of standing, such as a crock pot meal. Tr. 46.
Jirousek generally does not do the grocery shopping. Tr. 47. If Jirousek goes grocery shopping,
she goes with her husband. Tr. 47-48. He carries the heavy items. Tr. 48. Jirousek attends
monthly 4-H meetings with her daughter. Tr. 49. Otherwise, she does not usually socialize or
attend events. Tr. 49-51.
Also, during the day, Jirousek reads, watches television and takes naps. Tr. 48. Jirousek
owns a computer and uses it to check e-mails. Tr. 48. She naps every day for at least an hour
and a half because she does not sleep well at night – she tosses and turns. Tr. 48. About two or
three days a week, she just rests and sleeps all day. Tr. 51. The Methotrexate makes Jirousek
very tired for the first few days after taking. Tr. 52. She takes six Methotrexate pills on a
Monday and is fatigued and feels poorly until about Thursday and then she starts to feel better
but, by Sunday, she starts to get stiff and sore again. Tr. 52-53. Jirousek also takes Lyrica and
Norco (Vicodin). Tr. 53. She takes three Lyrica each day; it makes her fuzzy-headed. Tr. 53.
She has to take Norco about 4 times each week. Tr. 53. She does not take it unless her husband
is home because it makes her “kind of feel weird” and nauseous. Tr. 53.
Jirousek estimated being able to stand for 15-20 minutes at one time. Tr. 46. After that
amount of time, Jirousek starts to have pain through her lower back and right leg. Tr. 46-47.
She has to sit down and take a break. Tr. 47. Sometimes, she will apply ice to her back. Tr. 47.
Jirousek estimated being able to sit for 10-15 minutes before she needs to take a break. Tr. 47.
Jirousek can drive but she does not drive far. Tr. 47. For example, she drives her children to
school but it is only a block away. Tr. 47. She explained that she does not trust herself to drive
far because it is difficult for her to turn her head back and forth due to the pain and stiffness in
her neck. Tr. 47.
Vocational Expert (“VE”) Gail A. Klier testified at the hearing. Tr. 55-61, 63-67. The
VE described Jirousek’s past relevant work as a bartender/waitress, breaking the position into
two job titles – bartender and waitress – because the DOT does not have one code for both
positions performed together. Tr. 56, 57. The VE indicated that the DOT described both the
bartender and waitress position as light, semi-skilled positions. Tr. 56. The VE indicated that
Jirousek performed both positions at the medium level. Tr. 56.
The ALJ asked the VE whether a hypothetical individual of Jirousek’s age, education,
and past relevant work experience, with the capacity to perform light work and who can climb
ramps and stairs occasionally; never climb ladders, ropes or scaffolds; stoop occasionally; never
kneel; and reach overhead bilaterally occasionally could perform Jirousek’s past relevant work.
Tr. 56-57. The VE indicated that the described individual would be unable to perform
Jirousek’s past work as Jirousek performed it, i.e., at the medium level, but would be able to
perform the past work as described in the DOT, i.e., at the light level. Tr. 57.
questioning by the ALJ, the VE indicated that there would be other jobs, in addition to Jirousek’s
past relevant work, that the hypothetical individual counsel perform, including ticket taker,
usher, and fitting room attendant, all light, unskilled positions.6 Tr. 63-65.
The VE testified further that the hypothetical individual would be precluded from fulltime competitive work if the hypothetical individual was limited to something less than eight
hours of work activity per day. Tr. 57-58.
The ALJ also asked the VE to consider another hypothetical individual who could
perform eight hours of sitting and standing but would have to alternate between standing and
sitting – not standing more than 15 minutes at a time and not sitting more than 30 minutes at a
time – and the individual would be limited to lifting five pounds, on an occasional basis, and
none, frequently. Tr. 58. The VE indicated that the described individual would not be able to
perform Jirousek’s past relevant work as described in the DOT or as performed. Tr. 58. Also,
the VE indicated that the lifting limitations were significant and would be work preclusive. Tr.
58. Also, the VE indicated that the employer would have to allow for the alternating between
sitting and standing at the sedentary demand level. Tr. 58-59.
The ALJ then modified the first hypothetical, adding that the individual would also be
unable to reach overhead, bilaterally, and asked whether that additional limitation would affect
the individual’s ability to perform work as a waitress or bartender. Tr. 59. The VE indicated
that the DOT does not specify overhead versus normal reaching but, based on how the jobs are
performed in the real world, reaching would be required and at least, occasionally overhead. Tr.
The VE provided regional, state and national job incidence data for the identified jobs. Tr. 63-65.
3. Third party statements
Third party statements, dated February 2015, were provided by two of Jirousek’s friends,
Ms. Newman and Ms. Smith, and her mother-in-law, all of whom indicated they had known
Jirousek for many years. Tr. 214-216. They stated that Jirousek used to be athletic and energetic
and a hard worker. Tr. 214-216. They all indicated that Jirousek is no longer the person she
used to be. Tr. 214-216. They have observed drastic changes in Jirousek’s ability to do things,
noting that Jirousek is in pain and exhausted and receives assistance from others with chores and
caring for her children. Tr. 214-216.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy7 . . . .
42 U.S.C. § 423(d)(2)(A).
“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a listed
impairment, 8 claimant is presumed disabled without further inquiry.
If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under this
sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner
at Step Five to establish whether the claimant has the RFC and vocational factors to perform
work available in the national economy. Id.
IV. The ALJ’s Decision
In her April 6, 2015, decision, the ALJ made the following findings: 9
The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
The ALJ’s findings are summarized.
Jirousek last met the insured status requirements on March 31, 2013. Tr.
Jirousek did not engage in substantial gainful activity during the period
from her amended alleged onset date of November 1, 2012, through her
date last insured of March 31, 2013. Tr. 20.
Through the date last insured, Jirousek had the following severe
impairments: degenerative disk and degenerative joint disease of the
cervical and lumbar spine, obesity, bilateral shoulder pain and rheumatoid
arthritis. Tr. 20-22. Fibromyalgia, bilateral carpal tunnel syndrome, and
affective disorders were non-severe impairments. Tr. 20-22.
Through the date last insured, Jirousek did not have an impairment or
combination of impairments that met or medically equaled the severity of
one of the listed impairments. Tr. 22.
Through the date last insured, Jirousek had the RFC to perform light work
except she could climb ramps and stairs occasionally, never climb
ladders/ropes/scaffolds, occasionally stoop, never kneel, occasionally
crouch and never crawl, and occasionally reach overhead bilaterally. Tr.
Through the date last insured, Jirousek was capable of performing past
relevant work as a bartender and waiter because the work did not require
the performance of work-related activities precluded by Jirousek’s RFC.
Alternatively, considering Jirousek’s age, education, 10 work experience
and RFC, there were other jobs that existed in significant numbers in the
national economy that Jirousek could perform – ticket taker, usher, and
fitting room attendant. Tr. 29-30.
Based on the foregoing, the ALJ determined that Jirousek was not under a disability from
the alleged onset date through March 31, 2013, the date last insured. Tr. 18, 30.
V. Parties’ Arguments
Jirousek argues that the ALJ violated the treating physician rule with respect to two of
her treating physicians – Dr. Potoczak and Dr. Perhala – when weighing the medical opinion
Jirousek was 44 years old, defined as a younger individual age 18-49, on the date last insured; had at least a high
school education and is able to communicate in English. Tr. 29.
evidence. Doc. 16, pp. 14-23, Doc 25, pp. 1-6. Jirousek also argues that the ALJ did not
properly assess her credibility. Doc. 16, pp. 23-25; Doc. 25, pp. 6-7.
In response, the Commissioner argues that the ALJ properly weighed the medical opinion
evidence and properly assessed Jirousek’s credibility. Doc. 22, pp. 10-21.
VI. Law & Analysis
Standard of review
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989). The Commissioner’s findings “as to any fact if supported by substantial
evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.
2006) (citing 42 U.S.C. § 405(g)).
A court “may not try the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if
substantial evidence or indeed a preponderance of the evidence supports a claimant’s position, a
reviewing court cannot overturn the Commissioner’s decision “so long as substantial evidence
also supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003).
Establishing disability in a DIB claim
Jirousek’s claim is a DIB claim. Unlike Supplemental Security Income (“SSI”) benefits,
to receive DIB benefits, a claimant must show that her disability started on or before her date last
insured. 20 C.F.R. §§ 404.101(a); 404.131(a); Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir.
1990) (“In order to establish entitlement to disability insurance benefits, an individual must
establish that [s]he became ‘disabled’ prior to the expiration of his insured status.”); Dettloff v.
Sec’y of Health & Human Servs., 16 F.3d 1219, * 1 (6th Cir. 1993) (unpublished) (in order to
show an entitlement to benefits, burden was on claimant to prove disability prior to date last
Jirousek’s date last insured was March 31, 2013. Tr. 20. Thus, in order to demonstrate
entitlement to DIB benefits, Jirousek must show that that her disability started on or before
March 31, 2013.
The ALJ properly considered and weighed the opinions of Dr. Potoczak and Dr.
Perhala and the opinions of the state agency reviewers
Jirousek argues that the ALJ erred in weighing the opinions rendered by her treating
physicians Dr. Potoczak and Dr. Perhala and improperly assigned more weight to the opinions of
the state agency reviewers than to her treating sources.
Under the treating physician rule, “[t]reating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the
other substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)); see also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
If an ALJ decides to give a treating source’s opinion less than controlling weight, he must
give “good reasons” for doing so that are sufficiently specific to make clear to any subsequent
reviewers the weight given to the treating physician’s opinion and the reasons for that weight.
Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. In deciding the weight to be given, the ALJ
must consider factors such as (1) the length of the treatment relationship and the frequency of the
examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the
opinion, (4) the consistency of the opinion with the record as a whole, (5) the specialization of
the source, and (6) any other factors that tend to support or contradict the opinion. Bowen v.
Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir. 2007); 20 C.F.R. § 404.1527(c). When
controlling weight is not provided to treating source opinions, the factors set forth in 20 C.F.R. §
404.1527(c)(2)(i), (c)(2)(ii) and (c)(3) through (c)(6) are also considered when deciding the
weight to assign to other medical opinions in the record. See 20 C.F.R. § 404.1527. However,
an ALJ is not obliged to provide “an exhaustive factor-by-factor analysis” of the factors
considered when weighing medical opinions. See Francis v. Comm’r of Soc. Sec., 414 Fed.
Appx. 802, 804 (6th Cir. 2011).
In making a determination regarding Jirousek’s disability claim, the ALJ considered
evidence pre-dating November 1, 2012, Jirousek’s amended alleged onset date, and post-dating
March 31, 2013, her date last insured, including her subjective allegations, treatment records
from her various treating doctors, objective medical testing, types of treatment and relief
obtained, and third-party lay witness statements. Tr. 22-28. Additionally, the ALJ considered
and explained the weight assigned to the medical opinion evidence, including the opinions of
Drs. Potoczak and Perhala. Tr. 28. As discussed more fully below, the ALJ properly considered
and weighed the medical opinion evidence.
1. Dr. Potoczak
In considering Dr. Potoczak’s March 5, 2015, opinion, the ALJ stated:
The undersigned gave limited weight to the medical source statement from Douglas
Potoczak, M.D., dated March 5, 2015, to the extent that the claimant was also
limited to a reduced range of sedentary exertion work (i.e., lift/carry 1-5 pounds,
stand/walk 30 minutes, sit 20-30 minutes, and occasionally finger/handle/reach[)].
Dr. Potoczak based his conclusions on rheumatoid arthritis and chronic shoulder,
neck and back pain dating back to at least 2006. He opined that the claimant was
unable to work a full-time sustained schedule. However, Dr. Potoczak did not
provide medical findings that would support this level of restriction as evidenced
by exhibit 7F. His conclusions were also inconsistent with the preponderance of
medical evidence. Further, statements of disability remain reserved for the
commissioner. Therefore, the undersigned gave limited weight to this opinion (Ex.
Jirousek contends that the ALJ erred because she did not identify Dr. Potoczak as a
treating source when weighing his opinion. However, the ALJ acknowledged that there was an
ongoing treatment relationship between Dr. Potoczak and Jirousek when discussing in detail Dr.
Potoczak’s treatment records. Tr. 24 (“The records showed a treating history with Douglas
Potoczak, M.D. In February 2013 . . .“). Since the ALJ acknowledged that a treating
relationship existed between Dr. Potoczak and Jirousek even before the date last insured,
Jirousek has failed to demonstrate reversible error based on the failure of the ALJ to specifically
note that Dr. Potoczak was a treating source when explaining the weight assigned to his opinion.
Jirousek also contends that, since Dr. Potoczak was a treating source, the ALJ’s analysis
and explanation for providing limited weight to the opinion was insufficient to satisfy the
requirements of the treating physician rule. However, the ALJ’s explanation is sufficiently clear
to allow this Court the ability to assess whether the ALJ’s reasons are good reasons supported by
Here, the ALJ concluded that Dr. Potoczak’s opinion limiting Jirousek to a reduced range
of sedentary work was not supported by medical findings and was inconsistent with other
evidence of record. Tr. 28. The ALJ discussed in detail medical treatment history, including
treatment and observations made by Dr. Potoczak. Tr. 22-26. Following that detailed
discussion, the ALJ summarized her findings regarding what the evidence revealed stating:
. . . Although the claimant does have established degenerative/arthritic findings in
the cervical and lumbar spine as well as the bilateral shoulders, records prior to her
date last insured indicated that they were generally mild/minor changes. Imaging of
the bilateral knees was normal during the relevant period. There was no abnormal
imaging of the elbows or ankles. Her bilateral carpal tunnel syndrome was also mild
during the relevant period. The records showed no "well established" diagnosis of
fibromyalgia from a rheumatologist prior to her date last insured. Her
rheumatologist indicated that the claimant had "fair control" of her inflammatory
arthritis while treating with prescribed Methotrexate as late as December 2014.
During the relevant period, she often had no obvious upper motor neuron signs or
symptoms. Strength remained functional for ambulation. Gait, coordination, and
balance were often normal. . .
Overall, the claimant's treatment has been relatively conservative in nature prior to
her date last insured. She has not undergone any recent surgeries. No physician
indicated that she was a surgical candidate. Her treatment has generally consisted
of heat, ice or pain medications, which have been relatively effective in controlling
She reported that Cortisone injections and chiropractic
manipulation "helped" her radicular neck and back pain. She reported that cervical
spine epidural injections helped to reduce her neck pain by "80%" (Ex. 5F). Her
chiropractor noted that her condition "was improving" with chiropractic
manipulation and moist heat (Ex. 2F). The claimant testified that Methotrexate
"helped" to lessen her pain overall. She noted that Mobic and Tylenol "helped" her
do her daily activities (Ex. 5F). She reported that RF ablation "helped" her right
lower back pain and facet joint injections calmed her right upper buttock pain down
by "50%" (Ex. 10F). She reported that Motrin "helps" her generalized pain (Ex.
Tr. 26-27 (emphasis in original).
Notwithstanding the ALJ’s detailed discussion of the evidence, Jirousek contends that the
evidence shows that Dr. Potoczak’s opinion is supported by his medical findings, pointing to
treatment notes documenting pain and tenderness, stiffness, decreased range of motion and
muscle spasms and a summary in Dr. Potoczak’s treatment notes shortly before the date last
insured. Doc. 16, p. 17. However, it is not for this Court to “try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.” Garner, 745 F.2d at 387. Moreover,
Jirousek has not shown that the ALJ’s findings are unsupported by substantial evidence and,
even if substantial evidence or indeed a preponderance of the evidence supports a claimant’s
position, a reviewing court cannot overturn the Commissioner’s decision “so long as substantial
evidence also supports the conclusion reached by the ALJ.” Jones, 336 F.3d at 477.
Furthermore, there are certain issues that are reserved to the Commissioner for
determination. For example, opinions that a claimant is disabled or an opinion as to a claimant’s
RFC are issues ultimately reserved to the Commissioner. 20 C.F.R. § 404.1527(d). Although
treating source opinions on issues reserved to the Commissioner may not be ignored, such
opinions are never entitled to controlling weight. See SSR 96–5p, 1996 WL 374183, * 2-3 (July
2, 1996); see also Johnson v. Comm’r of Soc. Sec., 535 Fed. Appx. 498, 505 (6th Cir. 2013)
(unpublished) (“If the treating physician . . . submits an opinion on an issue reserved to the
Commissioner – such as whether the claimant is disabled, unable to work, the claimant’s RFC, or
the application of vocational factors – [the ALJ’s] . . . decision need only explain the
consideration given to the treating source’s opinion.” ) (internal quotations and citations
omitted). Here, Dr. Potoczak’s statement that Jirousek had an “inability to work full days” and
his note of “Disability 2012” (Tr. 592) amount to opinions that Jirousek was disabled.
Accordingly, the ALJ did not err in discounting the opinion based on the fact that it contained
opinions on issues reserved to the Commissioner.
The ALJ’s explanation of her consideration of Dr. Potoczak’s March 5, 2015, 11 opinion is
sufficiently clear to allow for review by this Court. Further, considering medical evidence
obtained during the period prior to the date last insured, which the ALJ detailed in her opinion,
Dr. Potoczak also provided opinions dated March 25, 2015. Tr. 594-598. However, those opinions were
submitted only to the Appeals Council and were not before the ALJ. Tr. 593.
Jirousek has not demonstrated that the ALJ’s decision to provide “limited weight” to Dr.
Potoczak’s opinion is not supported by substantial evidence.
2. Dr. Perhala
In considering Dr. Perhala’s January 2015 opinions, the ALJ stated:
The undersigned gave limited weight to the medical source statement completed by
Dr. Perhala in January 30, 2015, to the extent that the claimant was limited to
reduced range of sedentary exertion work (i.e., lift 5 pounds occasionally, stand 15
minutes, sit 30 minutes, never bend or stoop, bilateral gross and fine manipulation
limits, and no overhead aim raising). Dr. Perhala opined that the claimant was
limited to working only two hours per day. He based his conclusions on the
claimant's persistent neck, shoulder, and hand pain dating back to her date last
insured. However, although Dr. Perhala has a treating relationship with the
claimant, his findings are not consistent with the substantial evidence of record.
Further, Dr. Perhala's treatment records (Ex. 11F) and diagnostic testing used to
support his diagnosis did not show findings consistent with this level of impairment
during the period in question. The claimant's activities of daily living further erode
her claims of disabling impairments during this period (i.e., gave birth to two
children, performs household chores, drives, and shops in stores). Accordingly, the
undersigned finds limited weight appropriate for this opinion (Ex. 14F; 15F).
Jirousek acknowledges that Dr. Perhala did not start to treat her until after her date last
insured. Doc. 25, p. 4. Since there was no established treatment relationship prior to the date
last insured, Jirousek has not demonstrated that Dr. Perhala’s opinion would be entitled to
controlling weight under the treating physician rule. Also, to the extent that Dr. Perhala’s
opinion sheds light on Jirousek’s condition prior to her date last insured, the ALJ considered the
opinion and assigned weight to the opinion. See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.
1988) (later dated medical evidence is to be considered to the extent it sheds light on claimant’s
condition during the operative time period) ; Jones v. Comm’r of Soc. Sec., 121 F.3d 708, * 1
(6th Cir. 1997) (unpublished) (“Evidence relating to a later time period is only minimally
probative, and is only considered to the extent it illuminates a claimant’s health before the
expiration of his or her insured status.”) (internal citations omitted); see also Siterlet v. Sec’y of
Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987) (finding evidence obtained after date
last insured only minimally probative of claimant’s condition prior to date last insured and
rejecting claimant’s argument that the ALJ’s rejection of medical opinion was not supported by
Moreover, Jirousek has not shown that the ALJ did not sufficiently explain the weight
assigned to Dr. Perhala’s opinions or that the ALJ’s explanation was not supported by substantial
evidence. As discussed above with respect to Dr. Potoczak’s opinion, the ALJ thoroughly
discussed and explained the medical evidence and determined that Dr. Perhala’s opinions were
not consistent with the medical evidence, including his own findings. For example, in December
2014, Dr. Perhala indicated that Jirousek’s inflammatory arthritis was under fair control on
Methotrexate and there was normal range of motion and normal motor strength. Tr. 25-26, 538541, The ALJ also considered that Dr. Perhala’s restrictive opinion was not consistent with
evidence of Jirousek’s activities of daily living. Jirousek challenges the ALJ’s consideration of
her activities of daily living, arguing that the ALJ mischaracterized the extent of those activities.
However, it is not for this Court to “try the case de novo, nor resolve conflicts in evidence, nor
decide questions of credibility.” Garner, 745 F.2d at 387.
Jirousek also contends that the ALJ erred because she did not mention or properly take
into account Dr. Perhala’s rheumatological specialty or the nature of the treatment relationship.
However, the ALJ did both. The ALJ acknowledged that there was a treating relationship (Tr.
28) but, as indicated, that treatment relationship did not arise until after Jirousek’s date last
insured. Also, the ALJ acknowledged that Dr. Perhala was an arthritis specialist. Tr. 25.
Jirousek takes issue with the fact that the ALJ did not acknowledge that Dr. Perhala
reviewed medical records from other physicians. However, as acknowledged by Jirousek, Dr.
Perhala did not review all the medical record evidence for the relevant period. Doc. 25, p. 4.
Further, the ALJ considered the entirety of the record and found that the evidence did not support
limitations as restrictive as those contained in Dr. Perhala’s opinions.
Based on the foregoing, Jirousek has failed to demonstrate reversible error associated
with the ALJ’s consideration of Dr. Perhala’s opinions.
State agency reviewing physician opinions
In considering the medical opinion evidence, the ALJ considered and weighed the
opinions of the state agency reviewing physicians, stating:
The State agency medical consultant's physical assessment and psychological
consultant's mental assessment of "not disabled"[ 12] dated March 2013 and on
reconsideration in July 2013 are given great weight, as the consultants are familiar
with the disability program and its requirements. Further, they had the opportunity
to review the entire record and their findings were largely consistent with the
evidence of record (Ex. 1A; 3A).
Jirousek contends that the ALJ’s decision to provide greater weight to the opinions of
reviewing physicians than his treating physicians was error. The Court disagrees. As discussed
above, the ALJ’s decision to provide limited weight to the opinions of Dr. Potoczak and Dr.
Perhala is sufficiently explained and supported by substantial evidence. Jirousek takes issue with
the ALJ providing greater weight to the state agency reviewers’ opinions because there was
evidence they did not consider, including the treating source opinions offered by Drs. Potoczak
and Perhala. Doc. 16, p. 23. The state agency reviewers provided their opinions on March 11,
As previously indicated, Jirousek does not challenge the ALJ’s decision with respect to her mental impairment
2013, and on July 23, 2013, and their RFC assessments were based on the record at the time of
their evaluations. Tr. 75-76, 87-89. Additionally, as reflected in the RFC assessment provided
by Dr. Manos, who was the state agency reviewer upon reconsideration, the RFC assessment was
provided for the date last insured, i.e., 3/31/2013. Tr. 87. Accordingly, the fact that the state
agency reviewers did not have or review evidence post-dating the date last insured is not
unexpected. Moreover, the ALJ did review the entirety of the record when weighing the
evidence, including later dated treatment records and medical opinion evidence, and found the
state agency reviewing physicians’ “findings were largely consistent with the evidence of
record[.]” Tr. 28; See McGrew v. Comm’r of Soc. Sec., 343 Fed. Appx. 26, 32 (6th Cir. 2009)
(indicating that an ALJ’s reliance upon state agency reviewing physicians’ opinions that were
outdated was not error where the ALJ considered the evidence that developed after the issuance
of those opinions); see also Pence v. Comm’r of Soc. Sec., 2014 WL 1153704, *13 (N.D. Ohio
Mar. 20, 2014) (finding no error where the ALJ explained that weight was given to non-treating
physicians’ opinions because they were generally consistent with evidence of record and where
the ALJ considered relevant evidence that was developed after the issuance those opinions).
Thus, although the ALJ gave more weight to the opinions of the state agency reviewers,
the ALJ sufficiently explained the weight assigned to the medical opinion evidence and Jirousek
has not shown that the decision is not supported by substantial evidence. Accordingly, the Court
concludes that the ALJ did not err in her consideration of and treatment of the medical opinion
The ALJ properly assessed Jirousek’s credibility
Social Security Ruling 96–7p and 20 C.F.R. § 404.1529 describe a two-part process for
assessing the credibility of an individual's subjective statements about his or her symptoms.
First, the ALJ must determine whether a claimant has a medically determinable physical or
mental impairment that can reasonably be expected to produce the symptoms alleged; then the
ALJ must evaluate the intensity and persistence associated with those symptoms to determine
how those symptoms limit a claimant’s ability to work.
When evaluating the intensity and persistence of a claimant’s symptoms, consideration is
given to objective medical evidence and other evidence, including: (1) daily activities; (2) the
location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken
to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of
pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other
factors concerning functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c); Soc. Sec. Rul. 96–7p, Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 1996 WL 374186, at 3 (July 2, 1996)
(“SSR 96-7p”). 13 “An ALJ's findings based on the credibility of the applicant are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of observing a
witness's demeanor and credibility. Nevertheless, an ALJ's assessment of a claimant's credibility
must be supported by substantial evidence.” Calvin v. Comm'r of Soc. Sec., 437 Fed. Appx. 370,
371 (6th Cir. 2011) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)).
The ALJ explained her assessment of Jirousek’s credibility stating:
A review of the claimant's work history shows that the claimant had a strong work
history as of her alleged onset date. Specifically, a review of the claimant's work
history shows she consistently worked since at least 1995. In fact, the year of her
alleged onset date she posted $8,100.00 in earnings. Her earnings from 1995 to
2006 ranged from $8,100.00 to $22,112.28. She reported she last "filled in" for her
employer in 2009. However, a review of the claimant's work history in 2010 and
SSR 16-3p, with an effective date of March 28, 2016, supersedes SSR 96-7p. 2016 WL 1119029 (March 16,
2016); 2016 WL 1237954 (March 24, 2016).
2011 (prior to November 1, 2012, her amended alleged onset date) showed that she
had a no work history (i.e. no posted earnings), which raised a question as to
whether her inability to work is actually due to her medical impairments. Further,
the record showed that the claimant had good activities of daily living and adaptive
functioning. She maintained a household, took care of two young children, and
completed daily hygiene tasks. The claimant's lengthy work history and her ability
to perform activities of daily living without great difficulty tended to bolster the
credibility of her ability to sustain regular and continuing work (Ex. 3D-8D).
In assessing the claimant's credibility, the claimant's daily activities are not limited
to the extent one would expect given her alleged symptoms and limitations. The
claimant alleged that pain "everywhere" restricted her ability to function. Yet she
prepared simple meals and did dishes. She lived independently with her family and
did household chores such as laundry, light cleaning, and grocery shopping. She
had little difficulty managing her own personal care. She could care for her two
young children and a pet. The claimant alleged that mental symptoms associated
with pain restricted her concentration. However, she went outside, attended her
children's school activities, and attended doctor 's appointments without difficulty.
She enjoyed watching television, reading, and helping her daughter with
schoolwork. She could manage her personal finances without difficulty. She used
a computer and email. Thus, her testimony, when coupled with the claimant's daily
activities, suggest that her testimony is inconsistent with the longitudinal medical
record, and therefore is inconsistent with the above residual functional capacity
assessment (Ex. 4E; Cl. Testimony).
Jirousek contends that the ALJ mischaracterized the extent to which Jirousek could
engage in activities of daily living and, therefore, the ALJ’s credibility assessment is flawed.
Doc. 16, pp. 23-25. However, as discussed above, it is not for this Court to “try the case de
novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner, 745 F.2d at
Jirousek also argues that the ALJ improperly considered evidence regarding her work
history. Here, while Jirousek had a lengthy work history for a period of time (Tr. 27 (noting
earnings of $8,100.00 to $22,112.28 from 1995-2006), she also did not work for two years prior
to her amended alleged onset date (Tr. 27). “A long and continuous past work record with no
evidence of malingering is a factor supporting credibility of assertions of disabling
impairments.” Hudson v. Astrue, 2010 WL 4272674, * 6 (E.D. Miss Oct. 25, 2010) (citing Allen
v. Califano, 613 F.2d 139, 147 (6th Cir.1980)). Nevertheless, “[f]or the same reason, an ALJ
may discount a claimant's credibility based upon her poor work record.” (citing Ownbey v.
Sullivan, 5 F.3d 342, 345 (8th Cir.1993) and Pena v. Chater, 76 F.3d 906, 908 (8th Cir.1996);
McClees v. Shalala, 2 F.3d 301, 303 (8th Cir.1993)). Accordingly, the Court finds that the ALJ
properly considered Jirousek’s work history when assessing her credibility.
Jirousek also argues that the ALJ’s credibility assessment is flawed because the ALJ did
not mention that the consultative examining psychologist observed no evidence of exaggeration
or fabrication during the evaluation. However, a physician’s observations regarding claimant’s
reliability are not binding upon an ALJ with respect to an ALJ’s assessment of a claimant’s
credibility. Furthermore, an ALJ is not required to discuss every piece of evidence. See Thacker
v. Comm’r of Soc. Sec., 99 Fed. Appx. 661, 665 (6th Cir. 2004); see also Simons v. Barnhart,
114 Fed. Appx. 727, 733 (6th Cir.2004) (“[A]n ALJ is not required to discuss all the evidence
submitted, and an ALJ's failure to cite specific evidence does not indicate that it was not
considered.”) (internal citations omitted).
Based on the foregoing, Jirousek has failed to demonstrate reversible error based on the
ALJ’s assessment of her credibility.
For the reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.
Dated: May 12, 2017
Kathleen B. Burke
United States Magistrate Judge
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