UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES E. KIRBY,

No. 14-13025

Plaintiff, Magistrate Judge R. Steven Whalen

v.

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

 /

OPINION AND ORDER

Plaintiff James E. Kirby (“Plaintiff”) brings this action under 42 U.S.C. §405(g),

challenging a final decision of Defendant Commissioner (“Defendant”) denying his

application for Disability Insurance Benefits (“DIB”) under the Social Security Act.

Plaintiff has filed a motion for remand and Defendant has filed a motion for summary

judgment. For the reasons set forth below, Defendant’s motion for summary judgment

[Dock. #16] is GRANTED and Plaintiff’s motion for remand [Dock. #12] is DENIED. 

I. PROCEDURAL HISTORY

Plaintiff applied for DIB on November 18, 2009, alleging disability as of June 14,

2008 (Tr. 225). Upon denial of the claim, Plaintiff requested an administrative hearing, held

June 29, 2011 in Tulsa, Oklahoma (Tr. 84). Plaintiff, appearing by teleconference, testified

(Tr. 88-102), as did Vocational Expert (“VE”) A Graham Marlowe (Tr. 102-106). On

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August 8, 2011, Administrative Law Judge (“ALJ”) Charles Headrick found that Plaintiff

was not disabled (Tr. 121-122). On December 12, 2012, the Appeals Council remanded the

case for additional fact-finding for consideration of Plaintiff’s back condition, the role of

obesity in assessing his functional limitations, and whether the alleged need to change

positions and/or elevate his leg over the course of the work day would reduce the number of

available jobs (Tr. 127-129). 

On April 19, 2013, ALJ Paul W. Jones presided at a second hearing held in Lansing,

Michigan (Tr. 28). Plaintiff, represented by attorney Patrick J. Marutiak, testified, (Tr. 32-

67), as did VE Toni McFarland (Tr. 68-75). On May 8, 2013, ALJ Jones found that Plaintiff

was not disabled (Tr. 22-24). On June 23, 2014, the Appeals Council denied review (Tr. 1-

3). Plaintiff filed suit in this Court on August 4, 2014. 

II. BACKGROUND FACTS

Plaintiff, born December 3, 1965, was 47 at the time of the second administrative

decision (Tr. 24, 225). He received a GED and worked previously as a iron worker

supervisor until sustaining injuries in a boating accident (Tr. 266, 271). He alleges disability

as a result of knee problems resulting from the boating accident (Tr. 265). 

A. Plaintiff’s Testimony at the April 19, 2013 Hearing 

 Plaintiff offered the following testimony:

He lived with his wife and youngest son (Tr. 33). His wife worked as a cook at a

nursing home (Tr. 34). He was no longer able to perform the lifting or sitting requirements

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of his former job (Tr. 35). Pain due to nerve damage required him to change positions

frequently (Tr. 35). He had been advised to keep his leg above heart level by his doctor (Tr.

37). He also experienced daytime drowsiness due to Vicodin use (Tr. 38). 

Plaintiff stood 5' 8" and weighed approximately 220 pounds (Tr. 41). He left school

in 10 grade but later received a GED (Tr. 42). He could read and write “somewhat” (Tr. th

42). He did not know how to use a computer (Tr. 44). He could do “basic” math (Tr. 44). 

He did not know why the alleged onset of disability was June 14, 2008, given that the

accident did not occur until August 3, 2008 (Tr. 51-52, 60). He applied for and received

unemployment benefits after the accident (Tr. 53-54). 

In response to questioning byhis attorney, Plaintiff stated that he underwent right knee 

surgery as a result of the accident (Tr. 60). He testified that his former work required him

to lift 50 pounds occasionally and 20 frequently (Tr. 63). He admitted to dailymarijuana use,

stating that marijuana reduced his need for pain medication (Tr. 65-66). 

Plaintiff alleged back pain after standing for half an hour or more (Tr. 78). He needed

to recline his leg above heart level three times a day for half an hour to an hour (Tr. 78-79). 

On a “bad” day, he spent most of the day reclining (Tr. 79). He experienced bad days three

to four days a week (Tr. 79). Sitting, standing, and dampness also increased the knee pain

(Tr. 79). His knee condition had worsened since the accident (Tr. 80). He used a cane when

walking more than 15 feet (Tr. 81). 

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B. Medical Records

1. Treating Records

An August, 2008 MRI of the left knee showed an “injury of the medial collateral

ligament with a medial meniscus tear and infra patellar tendinosis” (Tr. 302-303). An x-ray

of the right knee showed degenerative osteoarthritis with joint effusion (Tr. 304). In May,

2009, Plaintiff underwent a left knee arthroscopy (Tr. 350-351). He reported good results

from the procedure (Tr. 363). The following month, Plaintiff underwent right knee

arthroplasty (Tr. 323, 329, 333, 340-341). The same month, he reported that he smoked one

pack of cigarettes a day; drank three to four beers every day; and used marijuana occasionally

(Tr. 338). Treating records note a “history of alcoholism” (Tr. 339). The following month,

Plaintiff reported severe knee pain “uncontrolled by . . . OxyContin and Percocet” (Tr. 323,

362). Hospital treating staff noted moderate to severe right knee swelling (Tr. 323-324, 359). 

August, 2009 treating notes state that Plaintiff’s knee condition was “markedly

improved” (Tr. 355). He reported exercising by walking “up and down hills . . .” (Tr. 356). 

In September, 2009, Plaintiff exhibited excellent range of right knee motion (Tr. 354). He

was advised to use knee pads (Tr. 354). In October, 2009, Norman E. Walter, M.D. noted

that Plaintiff had “thrown in the towel” and was now applying for disability (Tr. 353). An

x-ray of the right knee showed “no change in [the] position of the prosthesis” (Tr. 353). Dr.

Walter advised Plaintiff that he took “too much” Vicodin ES, recommending non-narcotic

alternatives (Tr. 353). Dr. Walter opined that Plaintiff would “not be able to return to work

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unless restricted employment is available” (Tr. 353). 

In March 29, 2010, Dr. Walter observed an excellent range of right knee motion (Tr.

385). Plaintiff reported generally “good pain relief,” but noted that he used “occasional

narcotics” (Tr. 385). Dr. Walter cautioned Plaintiff against overuse of Vicodin (Tr. 385). 

An April, 2010 imaging of the right knee showed “some mild opening to varus stress. . .” (Tr.

386). In August, 2010, Dr. Walter gave Plaintiff a one month supply of Vicodin, noting the

possibility of “drug seeking behavior” (Tr. 401). In September, 2010, Dr. Walter referred

Plaintiff to a pain specialist for further requests for narcotics (Tr. 399). He opined that

Plaintiff’s “days of going back to iron working are over with bilateral knee replacements”

(Tr. 399). 

In February, 2011, orthopedist Vic Gibson, D.O. noted imaging studies showing

degenerative joint disease of the left knee and lumbar spine and post-arthroplasty pain of the

right knee (Tr. 398). Dr. Gibson noted a possible diagnosis of patella tendinitis of the right

knee (Tr. 394). He prescribed physical therapy (Tr. 394). A March, 2011 MRI of the lumbar

spine showed degenerative disc disease but no herniation (Tr. 396-397, 390). Dr. Gibson

noted that Plaintiff was “getting better with physical therapy” (Tr. 390). The same day, he

opined that Plaintiff needed “to elevate leg periodically throughout the day as needed” (Tr.

387). 

In February, 2013, Gerald Drelinski, M.D. completed a medical source statement,

finding that Plaintiff was limited to lifting less than 10 pounds on an occasional basis and

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less than two hours walking or standing in an eight-hour workday (Tr. 405). He found that

Plaintiff would be required to change positions at will and needed “to sit and elevate [right]

leg” periodically (Tr. 406). Dr. Drelinski precluded Plaintiff from all crouching, crawling,

and stooping and limited him to occasional climbing, balancing, and kneeling (Tr. 406). He

found that Plaintiff was limited to occasional reaching and handling (Tr. 407). 

 2. Consultative and Non-Examining Sources

In January, 2010 J.L. Tofaute, M.D. performed a consultative examination on behalf

of the SSA, noting Plaintiff’s report that he was able to drive for only short distances and was

unable to stand or sit for more than 30 minutes or walk for more than 20 (Tr. 365-366).

Plaintiff walked with a limp but stated that he did not use a cane regularly (Tr. 365). He

exhibited knee stability but a reduced range of right knee motion (Tr. 366, 369). 

In March, 2010, Stephen E. Wood, M.D. performed a non-examining Residual

Functional Capacity Assessment on behalf of the SSA, finding that Plaintiff was capable of

lifting 20 pounds occasionally and 10 frequently; sitting for six hours and standing or

walking for two in an eight-hour period; and unlimited pushing and pulling (Tr. 371). He

found that Plaintiff was precluded from all climbing of ladders, ropes, and scaffolds; but

could climb stairs and ramps, stoop, kneel, crouch, and crawl on an occasional basis; and

balance frequently (Tr. 372). Dr. Wood concluded that Plaintiff could work “with normal

breaks” (Tr. 371). 

The following month, Carol L. Van der Harst, M.D. performed a one-time

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examination, noting Plaintiff’s history of right knee problems since sustaining injuries in the

August, 2008 boating accident (Tr. 380). She found that the right knee trauma resulted in

“significant functional impairment losses” (Tr. 383). She found that Plaintiff’s back

problems exacerbated the knee condition (Tr. 382-383). She concluded that while additional

therapy could improve Plaintiff’s gait, he was unable to return to his position as an iron

worker (Tr. 383). 

C. VE Testimony, April 19, 2013 

Citing the Dictionary of OccupationalTitles, (“DOT”), VE Toni McFarlane classified

Plaintiff’s former jobs as a structural steel worker as skilled and exertionally heavy and work

as a “reinformed steel placing supervisor as skilled and light (heavy as described by

Plaintiff) (Tr. 72). The ALJ posed the following question, describing a hypothetical 1

individual of Plaintiff’s age, education, and work experience,: 

[Assume a person . . . who’s able to do a limited light kind of work, and by

that I mean lifting up to 20 pounds occasionally, lifting or carrying up to 10

pounds frequently; but standing or walking for only about two hours and

sitting for up to six hours in an eight hour work day with normal breaks. This

person requires a sit/stand option that allows a person to sit or stand

alternatively at will provided this person is not off task for more than 10

percent of the work period . . . . [N]ever climbing ladders, ropes, or scaffolds,

1

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. 

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occasionally climbing ramps or stairs; occasionally stooping, kneeling,

crouching, and crawling; frequently balancing; and avoiding moderate

exposure to hazards, such as the operation of control of moving machinery and

unprotected heights; and no other limitations (Tr. 73).

Based on the hypothetical limitations, the VE found that the individual would be unable to

perform Plaintiff’s past relevant work, but could perform the light, unskilled work of an

information clerk (55,000 jobs in the entire country); parking lot attendant (41,500); and

inspector/hand packager (Tr. 113,900) (Tr. 74-75). 

D. The ALJ’s Decision

Citing the medical records, the ALJ found that Plaintiff experienced the severe

impairments of “right knee osteoarthritis, status-post replacement surgery; left knee

chondromalacia, status-post arthroplasty; and obesity” but that the none ofthe conditions met

or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr.

16-17). The ALJ found that Plaintiff’s degree of psychological limitation was mild (Tr. 16). 

The ALJ found that Plaintiff had the Residual Functional Capacity (“RFC”) for light work

with the following additional limitations:

[C]laimant requires the option to sit or stand alternatively, at will, provided he

is not off task more than 10% of the work period. He can occasionally climb

ramps or stairs, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or

scaffolds; and frequently balance. Claimant must avoid moderate exposure to

hazards such as the operational control moving machinery and unprotected

heights (Tr. 17). 

The ALJ discounted some of Plaintiff’s allegations of limitation, noting that in

January, 2010, Plaintiff reported that he seldom used a cane (Tr. 21). The ALJ cited

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February, 2011 records showing no right knee pain or instability (Tr. 21). He rejected Dr.

Gibson’s finding that Plaintiff needed to elevate the leg “periodically throughout the day as

needed,” noting that Dr. Gibson “did not specify which leg, how far to elevate the leg, and

how long to elevate the leg” (Tr. 21). 

III. STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential

and “presupposes that there is a ‘zone of choice’ within which decision makers can go either

way, without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

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 IV. FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act 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). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof as steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

V. ANALYSIS

 The Appeals Council Remand Order

Plaintiff contends that ALJ Jones failed to comply with the December 12, 2012

Appeals Council Remand order directing, among other things, consideration of Plaintiff’s 

alleged need to elevate the right leg and obesity. Plaintiff’s Brief, Docket #12 (citing Tr.

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127-129). 

A. Elevating the Right Leg

Plaintiff argues that his purported need to elevate his right leg above heart level was

improperly omitted from the RFC. Plaintiff’s Brief at 5-8. 

The December 12, 2012 Appeals Council order noted that Dr. Gibson’s March, 2011

finding of the need for leg elevation “was not addressed” in ALJ Headrick’s opinion (Tr.

128). ALJ Jones considered but rejected the alleged need for leg elevation, noting that Dr.

Gibson’s opinion (Tr. 387) was not credible (Tr. 21). In noting that Dr. Gibson’s opinion of

extreme limitation was not well supported, the ALJ observed that “Dr. Gibson indicated that

claimant needs to elevate leg periodically throughout the day as needed, but did not specify

which leg, how far to elevate the leg and how long to elevate leg” (Tr. 21). As to Dr.

Dreslinski’s medical source statement which included the restriction of right leg elevation,

the ALJ accorded “little weight as there are no objective medical records to support his

statement” (Tr. 22). 2

First, it is important to note that while the Appeals Council ordered the ALJ to address

the allegations of the need for leg elevation, it did not require him to adopt them. Further,

the ALJ’s rejection of Dr. Gibson’s “leg elevation” opinion is sufficiently supported and

The Court likewise notes that the transcript does not contain any treating notes by 2

Dr. Dreslinski. Plaintiff states that Dr. Dreslinski was in fact his treating physician at the

time of assessment but does not provide treating records or other evidence to support his

claim. Plaintiff’s Brief at 7, fn 3. 

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explained. While Plaintiff sought treatment for knee swelling one month after undergoing

the right knee arthroplasty (Tr. 323-324) none of the subsequent records suggest the longterm need for leg elevation, much less elevation above heart level. As noted by the ALJ,

Plaintiff’s claim of substantial lumbar spine problems affecting the lower extremities was

undermined by an MRI of the lumbar spine showing no disc herniation (Tr. 20). The ALJ

also observed that Plaintiff experienced improvement in symptoms by the use of antiinflammatory agents and physical therapy (Tr. 20). 

Plaintiff also argues that in light of the Dr. Gibson’s ambiguous finding of a need for

leg elevation, the ALJ was required to recontact him for clarification. Plaintiff’s Brief at 7

(citing 20 C.F.R. § 404.1512(e)). However, the ALJ was not obligated to recontact Dr.

Gibson given that substantial evidence otherwise supported the finding that Plaintiff did not

require leg evaluation. “[A]n Administrative Law Judge need recontact a medical source

only if the evidence received from that source is inadequate for a disability determination.”

DeBoard v. Commissioner of Social Sec., 2006 WL 3690637, *5 (6th Cir. December 15,

2006); § 404.1512(e). “Absent a gap in the record, the ALJ has no duty to recontact the

physician.” Starkey v. Commissioner of Social Sec., 2008 WL 828861, *4 (W.D.Mich. March

26, 2008) (citing Johnson v. Barnhart, 138 Fed. Appx. 186, 189, 2005 WL 1414406, *3 (11th

Cir. June 17, 2005); SSR 96–5p. 

The ALJ did not err in determining that the alleged long-term need to elevate the leg

was not credible. While Plaintiff experienced significant edema the month after right knee

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surgery, subsequent treating records indicate that the condition resolved within a year of

surgery (Tr. 353, 385). His claim that he had been advised by his physician to elevate his leg

above heart level (Tr. 37, 78-79) is unsupported by any of the treating or consultative records. 

His testimony that he could remain at a hunting blind for two hours (presumably poised to

shoot a deer) and was able to drive significant distances (albeit with cruise control) is

inconsistent with the purported need to elevate his knee above heart level at frequent

intervals (Tr. 81). Moreover, the ALJ did not err in generally rejecting Plaintiff’s

allegations of physical limitation. Plaintiff testified that he required the use of a cane while

walking more than 15 feet yet admitted that he left the cane in car on the day of the hearing

although the distance from his car to the hearing room was presumably well over 15 feet (Tr.

365). His alleged need for a cane to walk any distance also stands at odds with his

admission to Dr. Tofaute that he did not require the use of cane on a regular basis (Tr. 365). 

Because the rejection of the leg elevation claims is adequately supported and

explained, the administrative findings will remain undisturbed. 

B. Obesity

On a related note, Plaintiff acknowledges that ALJ Jones mentioned the condition of

obesity but erred by providing only a “boilerplate evaluation” omitting “any articulation as

to how [Plaintiff’s] obesity would effect the RFC.” Plaintiff’s Brief at 8-9. 

SSR 02–1p classifies individuals with a BodyMass Index (“BMI”) greater to or equal

to 30.0 as “obese.” In the instance that a claimant is found to be obese, the Commissioner

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must conduct an individualized assessment of the impact of the claimant's obesity on his or

her functional abilities. SSR 02–1p. However, when determining the impact upon an

individual's ability to function, SSR 02–1p “does not mandate a particular mode of analysis,

but merely directs an ALJ to consider the claimant's obesity, in combination with other

impairments, at all stages ofthe sequential evaluation.” Nejat v. Commissioner of Social Sec.,

359 Fed. Appx. 574, 577 (6th Cir.2009)(citation and internal quotation marks omitted). 

In this case, the Appeals Council order states that Plaintiff’s “obesity was not

adequately considered as required by [SSR] 02-1p” in the original determination (Tr. 127). 

In response to the order, ALJ Jones included obesity among the “severe” impairments at Step

Two, noting that Plaintiff stood 5'7" and weighed 205 at the time of Dr. Tofaute’s January,

2010 consultative examination (Tr. 19). He further observed that “additional factors

concerning claimant’s obesity have been duly considered in issuing [the] decision” (Tr. 21). 

Plaintiff’s argument that the ALJ made only a “boilerplate” acknowledgment of

obesity is not well taken. The ALJ included obesity among the Step Two impairments and

elsewhere in the decision. Notably, ALJ Jones acknowledged a greater degree of limitation

than ALJ Headrick, finding that Plaintiff required a sit/stand “at will” option in the RFC in

contrast to the earlier RFC allowing only “periodic” changes of position (compare Tr. 17,

114). ALJ Jones’ acknowledgment that Plaintiff’s obesity exacerbated the other conditions,

coupled with the more restrictive RFC, was responsive to the Appeals Council order to

“address the effects of claimant’s obesityon the claimant’s activities and abilityto work” (Tr.

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127). 

In closing, it should be noted that the decision to uphold the ALJ’s findings should

not be read to trivialize Plaintiff’s limitations as a result of the boating accident or his

inability to return to his former work. Nonetheless, the determination that Plaintiff was not

disabled from all work is within the “zone of choice” accorded to the fact-finder at the

administrative hearing level and will not be disturbed. Mullen v. Bowen, supra. 

 VI. CONCLUSION

For these reasons, Defendant’s motion for summary judgment [Dock. #16] is

GRANTED and Plaintiff’s motion for remand [Dock. #12] is DENIED. 

Judgment for Defendant will be entered.

IT IS SO ORDERED.

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: September 21, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on September 21, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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