Ghant v. Bowen, 90-5179

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation930 F.2d 633
Docket NumberNo. 90-5179,90-5179
Parties, Unempl.Ins.Rep. CCH 16009A Raymond GHANT, Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Appellee.
Decision Date16 April 1991

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 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 would be bruised. App. II at 534, 536, 537.

Laurence M. Greenberg, M.D., a board certified psychiatrist, testified as a medical expert at the second hearing before ALJ Cordek that Ghant had no medically determinable mental impairment. App. II at 621, 634. He stated, however, "I have no doubt that ... [Ghant has] a significant degree of chronic pain." App. II at 637.

On September 9, 1985, Ghant told an examining psychiatrist that he cooks, cleans, washes dishes, drives, and fishes from the shore. He also stated that he sometimes walks up to three or four miles at one time, but that his walking is often curtailed because his back "gives out." App. II at 961. Approximately one year later, Ghant told a different examiner that he dresses and grooms himself, drives, cooks, grocery shops, attends church, plays dominos and cards, and fishes off a pontoon boat. App. II at 838. He stated, however, that he does not work in the yard, dust, vacuum or do laundry or the dishes. App. II at 838.

Mary Harris and Avis Peterson testified as vocational experts before ALJ Cordek. Both experts were asked whether a hypothetical person of Ghant's age, education, and work history, who was restricted to performing unskilled light work in an environment free of excessive smoke, dust and fumes, who needed to change positions every two hours, who could not bend frequently or sit, stand or walk for more than two hours at a time, who could not work in an environment where he would be easily bruised, who had a short fuse and a tendency to complain, and who was unable to work closely with others, could perform any of Ghant's past jobs or any other work that exists in significant number in the economy. Harris and Peterson agreed that the hypothetical person could not perform any of Ghant's past jobs. App. II at 551, 669. They also agreed that the person could perform small part assembly jobs. App. II at 643, 669. The experts, however, disagreed as to the incidence of these jobs in the national economy. Harris stated that the hypothetical person could perform between 1000 to 2000 small part assembly jobs available in the state of Minnesota; Peterson, on the other hand, stated that the person could perform approximately 300 to 500 small part assembly jobs. App. II at 645, 672-73. Harris also stated that Ghant could perform between 700 to 800 parking attendant jobs available in the state of Minnesota. App. II at 645.

On November 7, 1987, ALJ Varga found Ghant ineligible for supplemental security income benefits. He specifically found that Ghant had the residual functional capacity to perform light work in an environment free of smoke, dust, and fumes, and that he could perform a significant number of jobs in the national economy notwithstanding his health limitations. ALJ Varga also concluded that Ghant's complaints of pain and fatigue were not credible because Ghant had used two social security numbers, had a spotty work record, took very little pain medication, and had made several inconsistent statements when he described his daily activities and his work record.

ALJ Cordek found Ghant disabled from September, 1977, the time Ghant allegedly became disabled, through August 31, 1983, the last month that Ghant received benefits, on the basis of collateral estoppel. 5 ALJ Cordek also found Ghant could perform unskilled light work that does not require bending, sitting, standing, or walking for more than two hours at a time, that would accommodate his irritability and his tendency to complain, that would not subject him to dust, fumes or smoke, and that could be performed in an environment where he would not be easily bruised. He concluded Ghant was disabled from September 1, 1983, through June 24, 1986, because Ghant could not perform a significant number of jobs in the national economy. 6 ALJ Cordek also found that Ghant's complaints of chest, back, and leg pain, shortness of breath, coughing, and difficulty handling...

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