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Webb v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

May 20, 2015



R. STEVEN WHALEN, Magistrate Judge.

Plaintiff John McKinley Webb ("Plaintiff") brings this action under 42 U.S.C. §405(g) challenging a final decision of Defendant Commissioner denying his application for Disability Insurance Benefits ("DIB") under the Social Security Act. Both parties have filed summary judgment motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that Plaintiff's Motion for Summary Judgment be GRANTED to the extent that the case is remanded to the administrative level for further proceedings and that Defendant's Motion for Summary Judgment be DENIED.


Plaintiff applied for DIB on September 25, 2012, alleging disability beginning on July 17, 2012 (Tr. 89-95). After the initial denial of benefits, Plaintiff requested an administrative hearing, held on August 19, 2013 before Administrative Law Judge ("ALJ") Mary Ann Poulose (Tr. 21). Plaintiff, represented by attorney Charles Palmer, testified by teleconference (Tr. 25-35). Vocational Expert ("VE") Shirley Powell also testified (Tr. 35-39). On August 30, 2013, ALJ Poulose found that Plaintiff was capable of his past relevant work as a telemarketer (Tr. 17). On March 25, 2014, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on May 27, 2014.


Plaintiff, born July 26, 1974, was 39 on the date of the ALJ's decision (Tr. 17, 89). He completed one year of college and worked previously as an auto detailer and as a telemarketer (Tr. 124). He alleges disability as a result of multiple sclerosis ("MS"), neck pain, and back problems (Tr. 123).

A. Plaintiff's Testimony

Plaintiff offered the following testimony:

Plaintiff, right-handed, lived with a roommate (Tr. 25). He last worked as an auto detailer (Tr. 25). He stopped in July, 2012 after experiencing his "first attack" of MS (Tr. 25). His work as an auto detailer required him to lift up to 50 pounds (Tr. 25). He was fired because he was perceived as a "liability" (Tr. 25). In 2008, he worked briefly as a telemarketer (Tr. 26). In 1998, he worked as a Hi-Lo driver, requiring him to lift up to 60 pounds (Tr. 27).

On typical day, Plaintiff arose at 7:00 a.m., drank coffee, watched television, and alternated between performing household chores for short periods and resting (Tr. 27). Back and neck pain required him to recline between household chores (Tr. 27). He was able to grocery shop by leaning against the cart (Tr. 28). He experienced intense fatigue after a 15minute shopping trip (Tr. 28). He used a cane for walking in public (Tr. 28). He currently took Rediff and Baclofen for symptoms of MS (Tr. 29). He experienced "flu-like" medication side effects beginning five hours after the injections and lasting for three to four hours (Tr. 30). His medication was prescribed by his treating neurologist (Tr. 29). He had recently been approved for Medicaid and was able to obtain better treatment than in the past (Tr. 30). He attended organized activities on an occasional basis (Tr. 30). He liked to read but experienced reading comprehension difficulties (Tr. 31). He was unable to walk for more than 10 minutes at a time (Tr. 31). He experienced constant leg and foot numbness (Tr. 31). He also experienced acute neck and lower back pain (Tr. 32). He was able to lift a gallon of milk, but was prone to gripping problems (Tr. 33). His condition was exacerbated by temperature extremes (Tr. 33). In addition, he experienced "memory issues" during hot weather (Tr. 33). He experienced a "really bad day[]" approximately once every two weeks (Tr. 33). He did not have problems interacting with his roommate, family members, or neighbors (Tr. 33).

In response to questioning by his attorney, Plaintiff testified that he experienced spasticity, "brain fog, " confusion, numbness, and extremity tingling as a result of MS (Tr. 33-34). He experienced brain fog several times a week lasting anywhere between five minutes and two hours (Tr. 34). Walking even one block caused fatigue (Tr. 34). He estimated that he could perform activities allowing him to change positions at will for up to one hour before he needed to recline (Tr. 34). He was obliged to recline "six to seven times" each day for 20 to 30 minutes (Tr. 34-35). He reported sleep disturbances, noting that he felt like his leg was "glued to the mattress" (Tr. 35).

B. Medical Evidence

1. Treating Sources

In July, 2012, Plaintiff sought emergency treatment for right leg numbness and heaviness causing him to fall repeatedly (Tr. 170). He was admitted for diagnostic testing (Tr. 169). He exhibited a "spastic gait" on the right (Tr. 168). An MRI of the cervical spine showed degenerative disc disease with disc protrusion at C5-C6 and "possible demyelinating disease" (Tr. 165). Plaintiff was deemed "at risk for falls" (Tr. 163). He reported loss of bowel control on one occasion ...

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