UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ALBERT HENRY SAMUEL 

McKEEL, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-cv-12815 

District Judge Gershwin A. Drain 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO GRANT PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT (DE 14) AND TO DENY DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 15) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court GRANT Plaintiff’s motion for summary 

judgment, DENY Defendant’s motion for summary judgment, REVERSE the 

Commisioner’s decision, and REMAND this case to the Commissioner and the 

ALJ under Sentence Four of § 405(g) for further consideration consistent with the 

report below. 

II. REPORT 

 Plaintiff, Albert Henry Samuel McKeel, brings this action under 42 U.S.C. 

§§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of 

Social Security (“Commissioner”) denying his applications for social security 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 1 of 30 Pg ID 475
2

disability insurance benefits and supplemental security income. This matter is 

before the United States Magistrate Judge for a Report and Recommendation on 

Plaintiff’s motion for summary judgment (DE 14), the Commissioner’s 

memorandum in opposition and cross motion for summary judgment (DE 15), 

Plaintiff’s reply (DE 16), and the administrative record (DE 12). 

A. Background 

 Plaintiff protectively filed his application for benefits on November 14, 

2011, alleging that he has been disabled since August 5, 2011, at age 51. (R. at 

171-174.) Plaintiff alleges disability as a result of obesity, chronic pain, end stage 

patellofemoral arthritis, left knee, right total knee arthroplasty, spinal disc disease 

at L3-S1, and left ankle pain. (DE 14 at 2.) Plaintiff’s application was denied 

initially and upon reconsideration. Plaintiff then sought a de novo hearing before 

an Administrative Law Judge (“ALJ”). ALJ Lawrence C. Blatnik held a hearing 

on February 28, 2013 and subsequently determined that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 12-58.) On May 30, 2014, 

the Appeals Council denied Plaintiff’s request for review. (R. at 1-3.) ALJ 

Blatnik’s decision became the Commissioner’s final decision. Plaintiff then timely 

commenced the instant action. 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 2 of 30 Pg ID 476
3

B. Plaintiff’s Medical History 

 Plaintiff presented to the St. Joseph Mercy Hospital emergency department 

on October 19, 2010 with symptoms of knee pain that worsened with movement. 

(R. at 266.) X-ray findings revealed no fracture and no significant knee joint 

effusion, but did show moderate patellofemoral compartment degenerative 

changes, with mild degenerative changes in the medial and lateral compartments. 

(R. at 267.) Plaintiff was released on the same day with a prescription for 

ibuprofen and acetaminophen, and instructions to follow up with an orthopedic 

surgeon within three to four days. (R. at 270.) On February 10, 2011, another xray revealed tricompartmental degenerative change manifesting as spur formation, 

with some narrowing of the patellofemoral space. (R. at 265.) 

 Plaintiff began treatment at the Michigan Orthopedic Center on April 27, 

2011. He was initially seen by Kristopher J. Aalderink, M.D., who described 

Plaintiff as a “morbidly obese gentleman in obvious discomfort.” (R. at 280.) He 

diagnosed Plaintiff with end stage arthritis with significant and advanced arthritis 

within the femorotibial joint space medially and laterally of the knees. (Id.) Dr. 

Aalderink noted that the only treatment option for Plaintiff was total knee 

replacement. (Id.) Plaintiff was seen by Mark A. Kelley, M.D., on May 3, 2011 

and May 19, 2011. (R. at 277 and 278.) On August 8, 2011, Dr. Kelley reported 

that Plaintiff had mild to moderate effusion and significant crepitation in both 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 3 of 30 Pg ID 477
4

knees. (R. at 316.) On November 11, 2011, Dr. Kelley noted that Plaintiff was 

having a hard time with both knees and was “unable to work.” (R. at 315.) Dr. 

Kelley again saw Plaintiff on November 28, 2011 for his preoperative appointment 

and performed a right total knee arthroplasty on February 23, 2012. (R. at 304-

306.) Following his right total knee arthroplasty, Plaintiff attended physical 

therapy at the Chelsea Community Hospital. (R. at 298-299.) He was discharged 

from physical therapy on May 3, 2012, with a note that he was walking 

“community distances” without an assistive device. (R. at 298.) Plaintiff’s right 

knee appeared to be doing well post-surgery. 

 Dr. Kelley examined Plaintiff on August 27, 2012. (R. at 295.) According 

to Dr. Kelley, Plaintiff’s right knee had “given out a little bit.” (Id.) Additionally, 

Plaintiff’s left knee was painful and restricted his tolerance for exercise. Dr. 

Kelley reported that Plaintiff had good strength and mild discomfort in the 

patellofemoral joint and full range of motion. Dr. Kelley recommended exercise 

and continued weight loss, and gave Plaintiff a left knee injection. (R. at 295-96.) 

Dr. Kelley completed a Medical Source Statement for Plaintiff on February 15, 

2013. (R. at 360-363.) In the Statement, he indicated that Plaintiff was diagnosed 

with bilateral end stage osteoarthritis, post right total knee arthroplasty, which 

caused fatigue, pain, and balance issues. (R. at 360.) Dr. Kelley also reported that 

Plaintiff was obese and had lost forty pounds recently. According to Dr. Kelley, 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 4 of 30 Pg ID 478
5

Plaintiff’s pain was constant, he could walk less than one city block, could sit for 

no more than thirty minutes, could stand for no more than five minutes, and needs 

more than eight periods of walking during an eight hour workday. (R. at 361.) In 

addition, Dr. Kelley opined that plaintiff must lie down twice for thirty minutes 

apiece during an eight hour workday, and would need unscheduled breaks every 

two hours. (R. at 362.) 

 On September 11, 2012, Plaintiff began treatment with Jacob Tazzi, D.C. of 

Albion Chiropractic. (R. at 289.) Plaintiff reported that his knee problems began 

after walking for about four miles. Plaintiff next sought treatment from Shahzad 

Shaikh, M.D. of the Center for Family Health, on October 12, 2012. (R. at 337-

339.) Dr. Shaikh indicated that Plaintiff’s left knee revealed joint crepitus and that 

his arthritis had a severity level of three. (R. at 337.) Dr. Shaikh saw Plaintiff 

again on November 20, 2012 and put his arthritis severity level at five. (R. at 327.) 

Plaintiff’s weight on that day was 232.60, putting his body mass index at 30.90. 

(R. at 328.) Dr. Shaikh referred Plaintiff to orthopedics. 

 On January 13, 2013, Plaintiff saw Philip Troy Henning, D.O., at the 

University of Michigan Health System. (R. at 317-326.) Upon examination, Dr. 

Henning found that Plaintiff had 5/5 muscle strength in his lower extremities. (R. 

at 319.) In addition, Dr. Henning noted that Plaintiff exercised five days per week 

by weightlifting, biking, and walking. (Id.) Dr. Henning ordered bilateral hip ex2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 5 of 30 Pg ID 479
6

rays, a left knee hinged brace, and referred Plaintiff to physical therapy. (R. at 

320.) Plaintiff attended physical therapy at ProMedica from January 2013 through 

February 2013. His functional strength was rated as poor and it was noted that 

Plaintiff entered the clinic by using a cane. (R. at 350.) In February 2013, it was 

noted that Plaintiff has improved in pain, strength and balance, but his functional 

strength was still rated as poor and he was still having issues with pain, decreased 

flexibility, decreased strength, and decreased balance. (R. at 343.) 

 C. Hearing Testimony 

 1. Plaintiff’s Testimony 

Plaintiff testified that, at the time of the hearing, he was 51 years old, six feet 

two inches tall, and weight 240 pounds. (R. at 29.) He has a high school 

education, and took some general education classes at community college. (R. at 

31.) Plaintiff testified that he worked in commercial cleaning for the past 30 years, 

in addition to some work as a retail cashier at service stations. (R. at 32-33.) 

According to Plaintiff, his knee trouble began when he was a teenager, but became 

worse in October of 2010, when is left knee “popped.” (R. at 36.) A few months 

later, on New Year’s Eve, Plaintiff experienced a similar sensation in his right knee 

and noted that it had been “downhill from there.” (R. at 36.) He testified that he 

had to leave his cleaning job because it involved some heavy lifting and it was 

“getting too painful.” (R. at 33-34.) 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 6 of 30 Pg ID 480
7

 Plaintiff testified that he has trouble with his lower back, arthritis in both 

hips and knees, and tingling in his left hand, but that his worst pain is in his right 

knee. (R. at 37 and 41.) He describes his knee pain as constant and averred that it 

has not gotten better or worse since before his 2012 surgery. (R. at 38.) According 

to Plaintiff, he has four “bad days” per week. (R. at 49.) On his bad days, Plaintiff 

stays in bed most of the time because of the pain. (Id.) Plaintiff testified that he 

can lift no more than ten pounds, cannot stoop or squat, and can climb stairs with 

some difficulty. (R. at 40.) Plaintiff testified that he could “probably walk less 

than a city block.” (R. at 39.) 

 Plaintiff underwent a right knee replacement in February 2012, but noted 

that his knee remained painful and unstable. (R. at 34-35.) As a result, he began 

attending physical therapy about a month before the hearing, but testified that he 

did not believe the three day per week sessions were helping. (R. at 35-36.) 

Plaintiff averred that he was not on pain medication, but used a cane prescribed by 

Dr. Kelley for stability and security. (R. at 38.) Plaintiff testified that he does not 

take “strong medication” for pain because he had trouble with drugs in his past, but 

has been clean and sober since 1995. (R. at 42 and 49.) Instead, he deals with the 

pain by lying on the couch or bed, elevating his legs, and icing his knees three 

times per day. (R. at 39-40.) 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 7 of 30 Pg ID 481
8

 Since his knee surgery, Plaintiff has lost sixty pounds, but remains a onepack-per-day smoker. (R. at 41-42 and 48.) He lives with his nine year old 

daughter and recently moved into his ex-wife’s home. (R. at 30 and 43.) He has a 

driver’s license, but no vehicle and therefore does not drive. (R. at 30.) Plaintiff 

testified that he takes public transportation to get to the grocery store every two 

weeks. (R. at 31 and 45.) His health insurance provides transportation to his 

medical appointments. (R. at 31.) Although Plaintiff has trouble sleeping due to 

the pain, he is able to take care of his own personal grooming and light housework. 

(R. at 42-44.) In addition, Plaintiff testified that he uses a computer a few times a 

week for internet searches and went fishing about four times in the past year. (R. 

at 45-46.) 

 2. Vocational Expert Testimony

 Sandra Steele testified as the Vocational Expert (“VE”) at the February 28, 

2013 administrative hearing. (R. at 49-57.) The ALJ posed a series of 

hypotheticals to the VE. In the first hypothetical, he asked the VE to determine if 

there was any work in the regional or national economy that a hypothetical person 

of Plaintiff’s age, educational background, and work experience could perform 

with the following limitations: 

[A]ssume we have an individual that cannot lift or carry more than 20 

pounds occasionally and 10 pounds frequently. Let’s assume for right 

now the individual could sit, stand or walk all for at least six hours in 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 8 of 30 Pg ID 482
9

an eight-hour workday. Oh, could not do any climbing of ladders, 

ropes or scaffolds; no kneeling, crawling or squatting. 

He would be limited to only occasional climbing of ramps or stairs, as 

well as only occasional crouching; frequent balancing and stooping. 

(R. at 52.) Based on this hypothetical, the VE testified that such restrictions were 

consistent with Plaintiff’s past work as a retail cashier at service stations. (Id.) 

 In the second hypothetical, the ALJ asked the VE to determine if the above 

hypothetical individual could perform Plaintiff’s past relevant work with the 

limitation that the individual “would have the need for a sit/stand option that 

enabled the individual to change position every 20 to 30 minutes.” (R. at 52-53.) 

The VE testified that about 25% of retail cashier positions (8,000 out of 33,000 in 

total) allow “an ability to sit and stand pretty frequently.” (R. at 53.) The ALJ 

then asked if there were other jobs in the state and national economy that the 

second hypothetical individual could perform. (Id.) The VE replied that the 

hypothetical individual could perform as an assembler, with about 4,500 full-time 

positions, a packer, with about 3,500 positions, and a visual inspector, with about 

1,600 positions in the Lower Peninsula region. (R. at 53-54.) The VE testified that 

all of the positions have a Specific Vocational Preparation (“SVP”) level of 2, 

meaning they are unskilled positions. 

 Finally, the ALJ provided the VE with Exhibit 8F (R. 360-363), which is Dr. 

Kelley’s medical source statement. (R. at 54.) The ALJ asked if a hypothetical 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 9 of 30 Pg ID 483
10

individual with the types of restrictions described by Dr. Kelly would be able to 

perform any jobs in the local or national economy. The VE concluded that the 

RFC opined by Dr. Kelley would be work preclusive. The VE further testified 

that, individually, the requirements for unscheduled breaks every two hours, the 

need to lie down for thirty minutes twice per day, and more than three absences per 

month, would preclude the hypothetical individual from competitive employment. 

(R. at 54-55.) Finally, in answer to a question posed by Plaintiff’s counsel, the VE 

testified that employees are typically required to stay on task about 85% of the 

workday, excluding breaks and lunch. (R. at 57.) 

 D. THE ADMINISTRATIVE DECISION

 On March 15, 2013, the ALJ issued his decision. (R. at 12-19.) At step one 

of the sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged 

 

1

 Social Security Regulations require ALJs to resolve a disability claim through a 

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). 

Although a dispositive finding at any step terminates the review, see Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential 

review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet 

or equal the criteria of an impairment set forth in the Commissioner’s 

Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 10 of 30 Pg ID 484
11

in substantially gainful activity since August 5, 2011. (R. at 14.) At step two, the 

ALJ found that Plaintiff had the following severe impairments: 

osteoarthritis/degenerative joint disease of the bilateral knees, status post right knee 

replacement; osteoarthritis, bilateral hips; and obesity. (R. at 14.) The ALJ further 

found that Plaintiff’s lower back pain was not a severe impairment. (R. at 15.) 

 At step three, the ALJ found that Plaintiff did not have an impairment or 

combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15.) 

At step four of the sequential process, the ALJ evaluated Plaintiff’s residual 

functional capacity (“RFC”)2

 and determined that Plaintiff can perform light work, 

with the following limitations: 

He can lift or carry a maximum of 20 pounds occasionally and 10 

pounds frequently. In an eight hour workday, the claimant can walk 

or stand for at least six hours and sit for at least six hours. He can 

never climb ladders, scaffolds, or ropes. The claimant can only 

occasionally crouch or climb ramps or stairs. He can frequently 

balance or stoop. The claimant can never kneel, crawl, or squat. 

 

 5. Considering the claimant’s age, education, past work experience, and 

residual functional capacity, can the claimant perform other work 

available in the national economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th 

Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

2

 The claimant’s “residual functional capacity” is an assessment of the most the 

claimant can do in a work setting despite his or her physical or mental limitations. 

20 C.F.R. §404.1545(a); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th 

Cir. 2002).

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 11 of 30 Pg ID 485
12

 

(R. at 16.) In reaching this determination, the ALJ gave “little weight” to the 

opinion of Dr. Kelley because it was not supported by Dr. Kelley’s reports or by 

the record as a whole. (R. at 17.) 

 Relying on the VE’s testimony, the ALJ determined that Plaintiff was able to 

perform his past relevant work as a retail cashier. (R. at 17.) In addition, the ALJ 

noted that there are other jobs in the national economy that Plaintiff is able to 

perform, including assembler, packer, and visual inspector. (R. at 18.) He 

therefore concluded that Plaintiff was not disabled under the Social Security Act. 

(R. at 19.) 

 E. STANDARD OF REVIEW

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

this standard, “substantial evidence is defined as ‘more than a scintilla of evidence 

but less than a preponderance; it is such relevant evidence as a reasonable mind 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 12 of 30 Pg ID 486
13

might accept as adequate to support a conclusion.’” Rogers, 486 F.3d at 241 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

court does “not try the case de novo, resolve conflicts in evidence or decide 

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a 

decision of the Commissioner will not be upheld where the SSA fails to follow its 

own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting 

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 13 of 30 Pg ID 487
14

F. ANALYSIS 

 1. Evidence Submitted Subsequent to the ALJ’s Decision 

 As a preliminary matter, for the purposes of this Report and 

Recommendation, the Court will not consider Exhibit 9F (R. at 364-369), which 

contains treatment records from Michigan Rehabilitation Services from May 7, 

2013 through August 6, 2013. These documents were supplemented at the 

Appeals Council stage; however, the Appeals Council declined to review 

Plaintiff’s application for disability insurance benefits on the merits. This Court, 

therefore, cannot consider the new evidence for the purposes of determining 

whether remand is appropriate under Sentence Four of 42 U.S.C. § 405(g). See 

Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (concluding that 

“where the Appeals Council considers new evidence but declines to review a 

claimant’s application for disability insurance benefits on the merits, the district 

court cannot consider that new evidence in deciding whether to uphold, modify, or 

reverse the ALJ’s decision.”). 

 I also do not recommend a remand under Sentence Six based on a finding 

that the evidence is new and material. See id. (noting that the district court can 

“remand the case for further administrative proceedings in light of the [new] 

evidence, if a claimant shows that the evidence is new and material, and that there 

was good cause for not presenting it in the prior proceeding.”). In support of such 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 14 of 30 Pg ID 488
15

a proposition, Plaintiff merely notes that such a remand is appropriate where “the 

claimant had submitted new and material evidence,” but does not indicate how the 

evidence at issue is either new or material. Plaintiff has met his burden that the 

records are new, because they are dated from May 7, 2013 through August 6, 2013, 

well after the February 28, 2013 hearing and the ALJ’s March 15, 2013 opinion. 

See St. v. Comm’r of Soc. Sec., 390 F. Supp. 2d 630, 640-42 (E.D. Mich. 2005) 

(concluding that Plaintiff had shown good cause for failing to submit the records 

until after the ALJ’s decision where the records were created well after the 

decision was issued). 

 Plaintiff does not meet his burden of materiality. In order to do so, Plaintiff 

must demonstrate that “there was a reasonable probability that the Secretary would 

have reached a different disposition of the disability claim if presented with the 

new evidence.” Id. (citing Sizemore v. Sec’y of Health & Hum. Servs., 865 F. 2d 

709, 711 (6th Cir. 1988)). In the instant case, the new records do not involve a 

medical diagnosis or further medical evidence relating to Plaintiff’s symptoms. 

Instead, they contain a letter from the Department of Human Services, Michigan 

Rehabilitation Services, indicating that Plaintiff’s case is being closed “because of 

the significant barriers to employment presented by your disability.” (R. at 365.) 

Such a determination is reserved to the Commissioner, and is not entitled to any 

special significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 15 of 30 Pg ID 489
16

513-14 (6th Cir. 2007) (noting that new evidence is material when it “would likely 

change the Commisioner’s decision,” and “where the evidence would not change 

the ALJ’s decision . . . remand for further consideration is not required.”). 

Nevertheless, if the Court agrees with the following recommendation to remand 

the case under Sentence Four for other reasons, the ALJ may properly consider the 

additional evidence on remand. Faucher v. Sec’y of Health & Hum. Servs., 17 

F.3d 171, 175 (6th Cir. 1994). 

 2. Plaintiff’s Statements of Error 

In his motion for summary judgment, Plaintiff asserts three statements of 

error. First, he contends that the ALJ improperly afforded less weight to the 

opinion of Dr. Mark Kelley, Plaintiff’s treating orthopedist. Second, Plaintiff 

posits that the ALJ erred in his conclusion that Plaintiff’s medical impairments 

failed to meet the severity of the impairments listed in 20 C.F.R. Part 404, Subpart 

P, Appendix 1, specifically Listings 1.02 and 1.03. Finally, Plaintiff argues that 

the ALJ erred in failing to consider Plaintiff’s severe impairment of obesity when 

assessing his RFC. The Commissioner opposes Plaintiff’s motion, asserting that 

she is entitled to a grant of summary judgment because substantial evidence 

supports the ALJ’s conclusions. The Undersigned will first address Plaintiff’s 

Listing argument, followed by his argument that the ALJ failed to consider his 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 16 of 30 Pg ID 490
17

obesity. Finally, I will address Plaintiff’s argument that the ALJ failed to afford 

proper weight to the opinion evidence. 

 a. Failure to Consider Listings 1.02 and 1.03 

 In the instant case, the ALJ found that Plaintiff has severe impairments of: 

osteoarthritis/degenerative joint disease of the bilateral knees, status post right knee 

replacement; osteoarthritis, bilateral hips; and obesity. (R. at 14.) He then went on 

to step three to conclude that Plaintiff “does not have an impairment or 

combination of impairments that meets or medically equals the severity” of any of 

the listed impairments. (Id.) Plaintiff now argues that the ALJ’s conclusion that 

he did not meet the criteria for Listing 1.02 and/or 1.03, along with his failure to 

articulate his reasoning, constitutes legal error. Defendant contends that the ALJ 

was not required to articulate his reasoning or discuss the relevant Listings because 

both require Plaintiff to show ineffective ambulation. According to Defendant, the 

record contains substantial evidence that Plaintiff can ambulate effectively. 

Plaintiff bears the burden of proving that his impairments meet or medically 

equal a particular listing. See Buress v. Sec’y of Health & Hum. Serv’s, 835 F.2d 

139, 140 (6th Cir. 1987). The Listing of Impairments, located at Appendix 1 to 

Subpart P of the regulations, describes impairments 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.” 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 17 of 30 Pg ID 491
18

20 C.F.R. § 404.1525(a). “A claimant must satisfy all of the criteria to meet the 

listing.” Rabbers, 582 F.3d at 653. Moreover, all of the criteria must be met 

concurrently for a period of twelve continuous months. See 20 C.F.R. 

§404.1525(c)(3), (4); 20 C.F.R. Pt. 404, Subpt. P, App. 1, §1.00D (“[b]ecause 

abnormal physical findings may be intermittent, their presence over a period of 

time must be established by a record of ongoing management and evaluation”). 

“An ALJ need not discuss every piece of evidence in the record for his [or 

her] decision to stand.” Thacker v. Comm’r of Soc. Sec., 99 F. App’x 6661, 665 

(6th Cir. 2004). However, “[a]n ALJ must evaluate the relevant evidence before 

concluding that a claimant’s impairments do not meet or equal a listed impairment. 

A boilerplate finding is insufficient to support a conclusion that a claimant’s 

impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 512 (6th Cir. 2001).

Instead, the ruling must “clearly articulate the rationale underlying the decision” in 

order to facilitate meaningful judicial review. Bailey v. Comm’r of Soc. Sec., 173 

F.3d 428, at *3 (6th Cir. 1999). The Court is not limited to reviewing the findings 

at step three, and can look to the entirety of the ALJ’s decision to determine if his 

or her reasons have been clearly articulated. See, e.g., Harvey v. Comm’r of Soc. 

Sec., No. 14-cv-10614, 2014 WL 5465531, at *4 n. 1 (E.D. Mich. Oct. 28, 2014). 

In the instant case, the entirety of the ALJ’s step three findings is as follows: 

“The claimant’s impairments do not meet the criteria of Listing 1.02 or any other 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 18 of 30 Pg ID 492
19

listing.” (R. at 15.) The ALJ provides little additional analysis, and does not 

address Listing 1.03 at all. Defendant correctly notes that the regulations do not 

“require the ALJ to address every listing.” Sheeks v. Comm’r of Soc. Sec., 544 F. 

App’x 639, 641 (6th Cir. 2013). “If, however, the record ‘raise[s] a substantial 

question as to whether [the claimant] could qualify as disabled under a listing, the 

ALJ should discuss that listing.’” Id. (quoting Abbott v. Sullivan, 905 F.2d 918, 

925 (6th Cir. 1990)). 

Applying the foregoing, I must determine whether the record raises a 

substantial question as to whether Plaintiff could qualify as disabled under Listings 

1.02 and/or 1.03. 

In order to be found disabled under Listing 1.02, Plaintiff must demonstrate 

the following: 

1.02 Major dysfunction of a joint(s) (due to any cause): Characterized 

by gross anatomical deformity (e.g., subluxation, contracture, bony or 

fibrous ankylosis, instability) and chronic joint pain and stiffness with 

signs of limitation of motion or other abnormal motion of the affected 

joint(s), and findings on appropriate medically acceptable imaging of 

joint space narrowing, bony destruction, or ankylosis of the affected 

joint(s). With: 

 A. Involvement of one major peripheral weight-bearing joint 

 (i.e., hip, knee, or ankle), resulting in inability to ambulate 

 effectively, as defined in 1.00B2b; 

or 

 B. Involvement of one major peripheral joint in each upper 

 extremity (i.e., shoulder, elbow, or wrist-hand), resulting in 

 inability to perform fine and gross movements effectively, as 

 defined in 1.00B2c. 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 19 of 30 Pg ID 493
20

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.02. Somewhat similarly, to be 

found disabled under Listing 1.03, Plaintiff must demonstrate the following: 

1.03 Reconstructive surgery or surgical arthrodesis of a major weightbearing joint, with inability to ambulate effectively, as defined in 

1.00B2b, and return to effective ambulation did not occur, or is not 

expected to occur, within 12 months of onset. 

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.03. Here, the ALJ notes that the 

“medical record establishes the claimant has osteoarthritis/degenerative joint 

disease of the bilateral knees, status post right knee replacement.” (R. at 17 

(emphasis added).) However, the ALJ did not discuss Listing 1.03 at all, despite 

Plaintiff’s testimony that his symptoms had not improved following his knee 

surgery. 

 Both of the relevant Listings require a showing of inability to ambulate 

effectively, which is defined in the Regulations as: 

[A]n extreme limitation of the ability to walk; i.e., an impairment(s) 

that interferes very seriously with the individual's ability to 

independently initiate, sustain, or complete activities. Ineffective 

ambulation is defined generally as having insufficient lower extremity 

functioning (see 1.00J) to permit independent ambulation without the 

use of a hand-held assistive device(s) that limits the functioning of 

both upper extremities. 

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.00. In the instant case, there is 

conflicting evidence in the record regarding Plaintiff’s ability to ambulate 

effectively. Dr. Kelley prescribed Plaintiff a cane, which he uses for “stability,” 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 20 of 30 Pg ID 494
21

although there is no indication that the case limits the functioning of both of 

Plaintiff’s upper extremities. (R. at 38.) Dr. Kelley also indicates that Plaintiff 

can walk less than a city block and has an abnormal gait. (R. at 360-363.) As 

Defendant points out, there is evidence that Plaintiff has walked four miles, but 

that statement is qualified because the context of the statement was explaining to 

his chiropractor how his symptoms began. (R. at 289.) 

 This, however, leads to a potentially more troubling point. As Defendant 

concedes, Dr. Kelley’s opinion is the only medical opinion in the record evaluating 

whether Plaintiff’s condition meets or is medically equivalent to a Listing. “SSR 

96-6p and the regulations imply that an appointed expert must provide the 

equivalence opinion.” Moran v. Comm’r of Soc. Sec., No. 13-cv-13452, 2014 WL 

4197366, at *25 (E.D. Mich. Aug. 22, 2014). The reason for this requirement is to 

ensure that lay ALJs (and federal court judges) refrain from making “complex 

medical determinations.” Id. at *26 (E.D. Mich. Aug. 22, 2014); see also Manson 

v. Comm’r of Soc. Sec., No. 12-11473, 2013 WL 2456960, at *12 (E.D. Mich. July 

9, 2013) (remanding because “neither the ALJ nor [the] court possesses the 

requisite medical expertise to determine if [Plaintiff’s] impairments . . . in 

combination equal one of the Commissioner’s listings.”) (internal quotations 

omitted). 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 21 of 30 Pg ID 495
22

 In light of this requirement, the Eastern District of Michigan has consistently 

held that ‘“longstanding policy requires that the judgment of a physician (or 

psychologist) designated by the Commissioner on the issue of equivalence of the 

evidence before the administrative law judge . . . must be received into the record 

as expert opinion evidence and given appropriate weight.”’ Fowler v. Comm’r of 

Soc. Sec., No. 12-12637, 2013 WL 52372883, at *12 (E.D. Mich. Sept. 25, 2013) 

(quoting SSR 96-60, 1996 WL 374180, at *3); see also Yahya v. Comm’r of Soc. 

Sec., No. Civ. A. 13-12054, 2014 WL 1776006, at *12 (E.D. Mich May 5, 2014) 

(remanding for “overall lack of medical expert opinion evidence.”); Trainor v. 

Comm’r of Soc. Sec., No. 13-10093, 2014 WL 988993, at *25 (E.D. Mich. Mar. 

13, 2014) (same); Klink v. Comm’r of Soc. Sec., No. 12-15172, 2014 WL 902707, 

at *10 (E.D. Mich. Mar. 7, 2014) (remanding where a lay review of the record 

“suggests it is at least plausible that Plaintiff’s impairments could medically equal” 

a Listing.). 

 Here, the ALJ’s cursory explanation for his discounting of Listing 1.02 and 

complete failure to make even a passing reference to Listing 1.03, in addition to 

the lack of evidence in the record as to whether Plaintiff’s condition meets or 

medically equals a Listing, does not provide the Undersigned with sufficient 

information to perform a meaningful judicial review. A review of the entire record 

indicates, in the opinion of this layperson, that it is plausible that Plaintiff’s 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 22 of 30 Pg ID 496
23

impairments could medically equal a Listing impairment. Accordingly, I 

recommend that the Court remand the case to the Commissioner with instructions 

to further develop the record on this issue. 

 b. The ALJ’s Obesity Analysis 

 Plaintiff asserts that the ALJ failed to consider his obesity when determining 

his RFC. Neither party disputes Plaintiff’s obesity, although Defendant notes that 

Plaintiff “barely qualifies as obese.” (DE 15 at 18.) Nevertheless, the ALJ 

concluded that obesity was one of Plaintiff’s severe impairments. (R. at 14.) 

 When obesity is at issue, an ALJ need not employ a “particular mode of 

analysis” when considering its impact. Bledsoe v. Barnhart, 165 F. App’x 408, 

411-12 (6th Cir. 2006). The ALJ must, however, “consider the claimant’s obesity 

in combination with other impairments at all stages of the sequential evaluation.” 

Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009). While there 

is no longer a Listing for obesity, “obesity may increase the severity of coexisting 

or related impairments to the extent that the combination of impairments meets the 

requirements of a listing.” S.S.R. 02-1P. Specifically, “someone with obesity and 

arthritis affecting a weight-bearing joint may have more pain and limitation than 

might be expected from the arthritis alone.” Id. 

 The burden is on Plaintiff to show specifically “how the obesity, in 

combination with other impairments, limited her [or his] ability to a degree 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 23 of 30 Pg ID 497
24

inconsistent with the ALJ’s RFC determination.” Smith v. Astrue, 639 F. Supp. 2d 

836, 846-47 (6th Cir. 2009). Here, as support for his proposition, Plaintiff 

describes Dr. Kelley’s note that his “obesity effects the patient by some increase in 

pain.” (DE 14 at 21.) Plaintiff fails to point to any other evidence that his obesity 

significantly exacerbated his other impairments or that any resulting limitations 

were greater than those opined by the ALJ in his RFC assessment. Nor did 

Plaintiff testify to the effects of his obesity at the hearing. See, e.g., Griffith v. 

Comm’r of Soc. Sec., No. Civ. A. 12-10579, 2014 WL 1213257, at *19 (E.D. 

Mich. Feb. 14, 2014) report and recommendation adopted, No. 12-15079, 2014 

WL 1224807 (E.D. Mich. Mar. 24, 2014) (noting that Plaintiff’s failure to testify 

about the limiting effects of obesity provided was evidence supporting the ALJ’s 

limited consideration). However, given the specific notation in the Regulations 

about the potential for obesity to exacerbate arthritis in the knee, the Undersigned 

recommends that, upon remand, the ALJ be directed to certify that he has fully 

considered Plaintiff’s obesity and its effects “in combination with other 

impairments,” in compliance with Social Security Regulation 02-1P. See Nejat, 

359 F. App’x at 577. 

 c. Weighing of Opinion Evidence 

 The ALJ must consider all medical opinions that he or she receives in 

evaluating a claimant’s case. 20 C.F.R. § 416.927(d). The regulations define 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 24 of 30 Pg ID 498
25

medical opinions as “statements from physicians . . . that reflect judgments about 

the nature and severity of your impairment(s), including your symptoms, diagnosis 

and prognosis, what you can still do despite impairment(s), and your physical or 

mental restrictions.” 20 C.F.R. § 416.927(a)(2). “Administrative law judges are 

not bound by any findings made by State agency medical or psychological 

consultants, or other program physicians or psychologists.” 20 CFR § 

404.1527(e)(2)(i). The ALJ must, however, “consider findings and other opinions” 

of State Agency medical or psychological consultants. 

The ALJ generally gives deference to the opinions of a treating source 

“since these are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of [a patient’s] medical impairment(s) and may bring 

a unique perspective to the medical evidence that cannot be obtained from the 

objective medical findings alone . . . .” 20 C.F.R. § 416.927(d)(2); Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). To qualify as a treating 

source, the physician must have an “ongoing treatment relationship” with the 

claimant. 20 C.F.R. § 404.1502. 

If the ALJ does not afford controlling weight to a treating physician’s 

opinion, the ALJ must meet certain procedural requirements, specifically: 

[A]n ALJ must apply certain factors—namely, the length of the 

treatment relationship and the frequency of examination, the nature 

and extent of the treatment relationship, supportability of the 

opinion, consistency of the opinion with the record as a whole, and 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 25 of 30 Pg ID 499
26

the specialization of the treating source—in determining what 

weight to give the opinion. 

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

 Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice 

of determination or decision for the weight [the ALJ] give[s] [the claimant’s] 

treating source’s opinion.” 20 C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s 

reasoning “must be sufficiently specific to make clear to any subsequent reviewers 

the weight the adjudicator gave to the treating source’s medical opinion and the 

reasons for that weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL 

1725066, at *7 (6th Cir. 2010) (internal quotation omitted). The United States 

Court of Appeals for the Sixth Circuit has stressed the importance of the goodreason requirement: 

“The requirement of reason-giving exists, in part, to let claimants 

understand the disposition of their cases,” particularly in situations 

where a claimant knows that his physician has deemed him 

disabled and therefore “might be especially bewildered when told 

by an administrative bureaucracy that she is not, unless some 

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 

F.3d 128, 134 (2d Cir.1999). The requirement also ensures that the 

ALJ applies the treating physician rule and permits meaningful 

review of the ALJ’s application of the rule. See Halloran v. 

Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly 

important when the treating physician has diagnosed the claimant as disabled.” 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 26 of 30 Pg ID 500
27

Germany-Johnson v. Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) 

(citing Rogers, 486 F.3d at 242). 

 Plaintiff argues that the ALJ improperly weighed Dr. Kelley’s opinion. 

Plaintiff points out that the State Agency did not have his medical records 

reviewed by a doctor or refer Plaintiff for a consultative examination. According 

to Plaintiff, that leaves Dr. Kelley in the “best position to judge the limitations 

caused by the conditions for which he treated” him. (DE 16 at 4.) Plaintiff asserts 

that the limitations opined by Dr. Kelley are consistent with the medical evidence 

in the record, including the x-ray findings, Dr. Henning’s examination, and Dr. 

Shaikh’s assessment of Plaintiff’s condition. Dr. Kelley was Plaintiff’s treating 

orthopedist from April 2011 through August 2012. (R. at 360.) Defendant asserts 

that the ALJ afforded proper weight to Dr. Kelley’s opinion and that his reasons 

for doing so were supported by substantial evidence. In support of her position, 

Defendant points out inconsistencies between Plaintiff’s testimony, Dr. Kelley’s 

notes, and the record evidence. 

 Such an analysis, however, brings the Court back to the fact that there is no 

evidence of a consultative examination (as is required for Listing purposes), and no 

State Agency reviewer examined Plaintiff’s records. Although such an evaluation 

is not required for the purposes of determining the weight afforded to a treating 

physician, the record in this case is undeveloped, making the ALJ’s weighing of 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 27 of 30 Pg ID 501
28

opinion evidence incapable of meaningful judicial review.3

 To the extent possible, 

the ALJ did provide good reasons for discounting Dr. Kelley’s opinions as 

inconsistent with his own treatment notes and inconsistent with the record as a 

whole. See, e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) 

(an ALJ’s finding that a medical opinion conflicts with other evidence in the record 

is sufficient to discount the opinion.). However, the record will not be fully 

developed until a consultative examination is obtained, and Dr. Kelley’s opinions 

remain the only opinion evidence in the record in some areas. When the record is 

fully developed in accordance with the instructions above, I recommend that the 

ALJ be required to fully consider Dr. Kelley’s conclusions in combination with 

any additional opinion evidence provided by a consultative examiner. 

G. CONCLUSION

Due to the errors outlined above, Plaintiff is entitled to an order remanding 

this case to the Social Security Administration pursuant to Sentence Four of 42 

U.S.C. § 405(g). Accordingly, the Undersigned RECOMMENDS that the Court 

GRANT Plaintiff’s motion for summary judgment (DE 14), DENY Defendant’s 

motion for summary judgment (DE 15), REVERSE the Commissioner of Social 

 

3

 Although a consultative evaluation is necessary for the purpose of determining 

whether Plaintiff’s impairments meet or medically equal a Listing, and not for the 

purpose of evaluating the ALJ’s assignment of weight to opinion evidence, the 

completion of the record for the former, as is recommended above, will 

undoubtedly be helpful in analysis of the latter. 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 28 of 30 Pg ID 502
29

Security’s non-disability finding, and REMAND this case to the Commissioner 

and the ALJ under Sentence Four of § 405(g) for further consideration consistent 

with this Report and Recommendation. 

III. PROCEDURE ON OBJECTIONS

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 29 of 30 Pg ID 503
30

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: May 20, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

CERTIFICATE OF SERVICE 

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

on May 20, 2015, electronically and/or by U.S. Mail. 

 s/Holly Monda 

 Case Manager, in the absence of 

 Michael Williams 

2:14-cv-12815-GAD-APP Doc # 18 Filed 05/20/15 Pg 30 of 30 Pg ID 504