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Steve Bernard Harvey v. Michael J. Astrue

July 30, 2012

STEVE BERNARD HARVEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: James E. Shadid United States District Judge

E-FILED

Monday, 30 July, 2012 01:12:57 PM Clerk, U.S. District Court, ILCD

ORDER

This matter is now before the Court on Plaintiff's Motion for Summary Reversal and the Commissioner's Motion to Affirm. For the reasons set forth below, Plaintiff's Motion for Summary Reversal [#11] is DENIED, and the Commissioner's Motion to Affirm [#15] is GRANTED.

BACKGROUND

Plaintiff, Steve Bernard Harvey ("Harvey"), was 45 years' old at the time of his administrative hearing. (R34) He completed high school and has one year of college education. (R40) He is unmarried and has six children but lives with his brother. (R40, R53) He was last employed as an activities director for a children's camp.

Harvey had his left knee replaced in 2002, but still experienced pain; Vicodin and Tylenol did not do much to relieve his pain. (R42-43) He was also experiencing pain in his right knee as a result of arthritis and underwent arthroscopic surgery in 2007. (R44, R46) During his hearing, Harvey stated that his pain never stops, even when sitting down. (R47) He takes Tylenol and Tramadol for pain, but does not require an assistive device to ambulate. (R200)

On a typical day, he wakes up several times during the night. He may go to bed at 10:30pm, get up at 2:00am and watch TV, go back to bed at 5:30am and doze before getting up for the day at 10:00 or 11:00am. (R48-49) Once he's up, he lays on the couch, sometimes with a heating pad. (R50) Harvey eats some cereal around 1:00pm before sitting back down for awhile. (R50-51) He watches TV until he has to walk a block to catch the bus to go to his former part-time position interacting with kids at the Carver Center. (R51) In this position, he pitched for kickball games and generally was on his feet for an hour of the three hours he was there. (R52) After work, Harvey caught the bus home, showered, got right in bed and watched a movie. (R53) His children's mother cooks for him or brings him something to eat. Id.

Harvey does not own or drive a car. (R55) He can go up and down the six stairs that lead to the room he stays in at his brother's house. Id. He can walk or stand for about 20 minutes at a time before needing to sit and can sit for an hour at a time. (R52, R56) Harvey stated that he can lift a gallon of milk and carry it across the room and back. (R56-57) Although his medications make him drowsy when he takes them, he does not have any trouble following the TV programs that he watches or paying attention while he is awake. (R59-60)

In May 2007, Harvey applied for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"), alleging disability that began on September 2004. His application was denied both initially and on reconsideration. Harvey requested a hearing before an administrative law judge ("ALJ"). A hearing was held before ALJ Diane Raese Flebbe on September 16, 2009, at which Harvey, who appeared pro se, and vocational expert ("VE") Malik appeared and gave testimony.

The ALJ posed a hypothetical question to the VE:

Q: I would like you to assume the following limitations. The ability to life and carry 20 pounds occasionally and 10 pounds frequently, stand and walk six hours a day, sit six hours a day. Occasionally climb ramps, stairs, ladders, ropes, scaffolding, occasionally balance, stoop, kneel, crouch, crawl. With such limitations would Mr. Harvey be able to perform any past work?

A: With that hypothetical, Your Honor, the claimant could return to the past duties of an activity director or bus monitor and the child care teacher.

Q: Okay. Now I would like you to please assume the ability to life and carry 10 pounds occasionally, five pounds frequently, stand and walk two hours a day, sit six hours a day. Occasionally climb ramps and stairs, occasionally balance, stoop and crouch but not climb ladders, ropes, scaffolding. No kneeling, no crawling, no operating foot controls, no work at unprotected heights. Does that change your answer about any past work?

A: That would eliminate the past work, Your Honor.

Q: Okay. Would a hypothetical individual of Mr. Harvey's age, education and vocational background with such limitations be able to perform other work?

A: Yes, Your Honor. At the sedentary level we would have DOT 209.687-022.

Q: I'm sorry, 209.6?

A: 209.687-022 --

Q: Okay.

A: -- a sorter --

Q: Okay.

A: -- 34,500 in Illinois, 851,800 in the ...


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