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Edward Lee Kimbrough v. Michael J. Astrue

February 21, 2013

EDWARD LEE KIMBROUGH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

E-FILED Friday, 22 February, 2013 11:57:44 AM 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 [18] is GRANTED, and the Commissioner's Motion to Affirm [21] is DENIED.

BACKGROUND

Plaintiff, Edward Kimbrough ("Kimbrough"), was 47 years' old at the time of his administrative hearing. (R24) He is 5'10" and weighs around 160 pounds. (R629) Kimbrough is single and lives alone. (R24) He has a GED and has worked as a personal attendant caring for an elderly relative, machine helper, and cook. Id.

Kimbrough was diagnosed with AIDS in April 2007. (R253) He was tested after developing four MRSA infections requiring IV antibiotic treatment between November 2006 and April 2007. He was prescribed Effexor for depression in March 2006 and gets headaches as a result of high blood pressure 2-3 times per month. (R435, 653) He has asthma and uses his inhaler 3-4 times a week. (R652-53) He suffers from panic attacks 3-4 times a year. (R657) Kimbrough stated that he has become increasingly tired, is in and out of the bathroom with diarrhea, gets short of breath and fatigued, and had not noticed improvement from his HIV medications. He walks with the assistance of a cane because his right leg sometimes gives out and can stand for about 30-40 minutes before needing to sit down. (R654-55) Kimbrough estimates that he is able to lift 15 pounds, and sometimes requires that a new task be explained to him 2-3 times before he understands. (R656)

On an average day, Kimbrough gets up and has something to eat around 8:30 or 9:00 am. (R648) He makes his bed and takes a shower, but then needs to rest for a few minutes before getting dressed. Id. He lives by himself and takes care of his own needs of everyday living, like personal hygiene, grocery shopping, cooking, housekeeping, and taking out the garbage. (R648-49) Kimbrough sometimes drives a car, and when the weather permits, he will go check on his mom and stepfather. (R630, 649) He also takes a nap or lies down every day; the combination of his medications and not being able to sleep during the night make him tired. (R656) He enjoys reading a book, working a puzzle, or walking for about a half hour and attends church 3-4 times a year. (R649-50, 652) Kimbrough goes to barbeques with friends, but doesn't like crowds. (R651) He drinks beer maybe a couple of times a week, averaging 4-6 beers per week (R644-46)

On May 21, 2007, he applied for disability insurance benefits ("DIB") and supplemental security income ("SSI"), alleging disability that began on November 1, 2006. (R16) His application was denied both initially and on reconsideration. Id. Kimbrough requested a hearing before an administrative law judge ("ALJ"). A hearing was held before ALJ John M. Wood on September 16, 2009, during which Kimbrough testified and was represented by counsel.

Vocational Expert ("VE") Mr. Fisher was present at the hearing and was asked the following hypothetical by the ALJ:

Q. Assume the past work same as the claimant's exertional capacity, limited to light work with no climbing of ladders, ropes, or scaffolds. Other postural functions could be performed occasionally, all manipulative functions can be performed frequently. A need to avoid hazards and also a need to avoid concentrated exposure to pulmonary irritants, extreme temperatures and humidity. And also a limitation to perform in simple and repetitive tasks. Would I be correct in concluding that those restrictions would preclude a return to any past work?

A. Yes.

Q. Okay. And if you could now add the vocational factors by assuming that the hypothetical individual is of the claimant's age and education and work history. In your opinion would there be a number of jobs in the national and/or regional economy that such a person could perform? We should clarify first there'd be no transferability of skills with that hypothetical, correct? With given the simple and repetitive limitation there'd be no transferability of skills, correct?

A. No. The only transferable would be to some kitchen . . .

Q. Again if someone was limited to the performance of simple and repetitive tasks?

A. Well, no.

Q. Right. So now are there any, is there unskilled work that could be performed?

A. Yes. Cutter, paster, press clippings, 249.587-014, and documents preparer, microfilm, 249.587-018, I'm sorry, you said light work. We'll start at office machine operators except computers. Photocopy machine operators, 207.685-014 and photographic machine operator, 207.685-018 that combine 1,466. Under cashiers, cashier II, eliminating gambling and toll booth cashiers a total of 41, 050 employment. DOT, I'm sorry, I didn't give you that, 211.462-014. Routing under a shipping/receiving and traffic clerks, routing clerk, 222.687-022, there is also included in that occupational classification car checker which is a train freight occupation, a nominal number.

But total, combined employment in that occupational classification is 3,990 and I would say 3,900 are in the routing clerk job.

Q. Okay. And are those representative positions?

A. They are.

Q. And do they follow the national population trends?

A. They do.

Q. If someone had to alternate sitting and standing so by the end of the day in terms of the sitting and standing requirements they were sitting half the time and standing half the time, would, how would the occupational base you've identified be effected?

A. It would not.

Q. There'd be no effect ...


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