930 F.2d 633 (8th Cir. 1991), 90-5179, Ghant v. Bowen

Docket Nº:90-5179.
Citation:930 F.2d 633
Party Name:Raymond GHANT, Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Appellee.
Case Date:April 16, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 633

930 F.2d 633 (8th Cir. 1991)

Raymond GHANT, Appellant,

v.

Otis BOWEN, Secretary of Health and Human Services, Appellee.

No. 90-5179.

United States Court of Appeals, Eighth Circuit

April 16, 1991

Submitted Dec. 14, 1990.

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Philip G. Lind, Minneapolis, Minn., for appellant.

Gary A. Sultz, Chicago, for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON and WOLLMAN, Circuit Judges.

LAY, Chief Judge.

The Secretary of Health and Human Services ("Secretary") denied Raymond Ghant's claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 416(i), 423 (1989). Upon review, the district court accepted the magistrate's recommendation to deny benefits and affirmed. We reverse and remand for determination of benefits.

Ghant began receiving supplemental security income benefits in January, 1974, when the federal supplemental security income program became effective. 1 He continued to receive supplemental security income benefits until September, 1983, when his benefits were terminated. 2

On September 19, 1983, Ghant filed an application for disability benefits, alleging he had been disabled since September, 1977 due to a lung condition. The Secretary initially denied Ghant's application because Ghant failed to establish that the earnings reported under two social security numbers belonged to him. The district court reversed and remanded Ghant's claim for determination of benefits.

On June 25, 1986, Ghant filed a second application for supplemental security income benefits. Ghant received a hearing before Administrative Law Judge ("ALJ") Alfred H. Varga on March 26, 1987. ALJ Varga denied Ghant's application for supplemental security income benefits on November 7, 1987.

On February 25 and July 27, 1988, ALJ Robert C. Cordek held hearings on Ghant's disability benefits claim which had been remanded to the Secretary. In September, 1988, ALJ Cordek issued a decision in which he concluded that Ghant was disabled from September, 1977 through August 31, 1983, on the basis of collateral estoppel. He also found that Ghant was disabled from September 1, 1983 through at least June 24, 1986.

The Appeals Council concluded after reviewing both ALJ decisions that Ghant was not entitled to either disability benefits or supplemental security income benefits and the district court affirmed. Ghant now appeals.

I. Background

Ghant was born on July 22, 1937. He is 5'11" tall. In March, 1987, Ghant weighed 235 pounds. It is unclear from Ghant's testimony whether Ghant has a third or an eighth grade education. 3 Ghant has testified that he can read but not write.

Ghant has worked as a machine operator, a machinist and a heater and has worked in a foundry. He has not engaged in substantial gainful employment since September, 1977. Ghant last worked as a spot welder for six weeks in 1982. He testified that he

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stopped working as a welder primarily because of the excessive fumes. App. II at 505-06.

Ghant has admitted filing two social security applications. App. I at 100. He claims he filed the second application to help him get a job. App. I at 105. Ghant claims he did not believe he could obtain a decent job because of his prison record. The record indicates that Ghant was incarcerated from July 20, 1966, to January 10, 1968, for armed robbery. App. I at 105, 369. Ghant also has admitted using two social security numbers on occasion. App. I at 107.

Ghant alleges he suffers from headaches, emphysema, a nervous stomach, depression, lung disease, dizziness, irritability, breathing problems, and abdominal, back, neck, chest and leg pain. He also claims he has difficulty sleeping and that he has a hard time dealing with stress. Ghant has a long medical history which began in 1973, when he underwent surgery for emphysematous blebs on his lungs. Ghant later was diagnosed as having lung disease and received periodic treatment.

In 1985, Ghant was examined by Sherman Nelson, Ph.D., in connection with his claims for benefits. Dr. Nelson performed a personality test which showed that Ghant suffered from mild neurotic depression with psychosomatic tendencies, rigid defensiveness and mild irritability and resentment. App. II at 962. He described Ghant as dull-normal intelligence and concluded that he was functionally literate. App. II at 962.

The following year, Azam Ansari, M.D., examined Ghant for the Social Security Administration and concluded that Ghant suffered from exogenous obesity, low back pain, anxiety, depression, and lung disease. App. II at 833.

Thomas H. Johnson, M.D., Ghant's treating physician since 1973, stated in 1986 that Ghant had become totally and permanently disabled for gainful employment by 1977. App. II at 815. At that time, Dr. Johnson diagnosed Ghant as having a chronic myofascial neck injury, moderately severe emphysema, a chronic myofascial lumbosacral injury with a protruding lumbar disk, an inguinal hernia on the left, and degenerative arthritis of both knees. App. II at 816. He stated that Ghant appeared to be in pain. App. II at 815. He found that Ghant could not walk more than one block without having to rest, that he could lift ten pounds continuously, fifteen pounds frequently and twenty pounds occasionally, that he could not stand changes in temperature, that he could not work in a stooped position, that he could not climb stairs or work with his hands above his head, that he could sit, stand, and walk only a fraction of an hour, and that he could not work in dust, fumes or smoke. App. II at 816.

James Hammersten, M.D., testified as a medical advisor at the hearing before ALJ Cordek that Ghant's impairments did not meet or equal any listed impairment. 4 App. II at 533. He believed Ghant could perform light work in an environment free of smoke, dust and fumes if he changed positions approximately every two hours, did not frequently bend or lift from the floor, did not work around heights, and did not work at a job at which he...

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