Gilliam v. Califano

472 F. Supp. 598, 1979 U.S. Dist. LEXIS 12494
CourtDistrict Court, E.D. Missouri
DecidedMay 10, 1979
DocketNo. 78-1309C(A)
StatusPublished
Cited by2 cases

This text of 472 F. Supp. 598 (Gilliam v. Califano) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilliam v. Califano, 472 F. Supp. 598, 1979 U.S. Dist. LEXIS 12494 (E.D. Mo. 1979).

Opinion

MEMORANDUM-OPINION

HARPER, District Judge.

Alfred P. Gilliam has filed a petition for judicial review of a decision of the Secretary of Health, Education and Welfare denying him disability insurance benefits. These proceedings are reviewable by the District Court pursuant to 42 U.S.C. § 405(g).

Gilliam originally filed his original application to establish disability and secure insurance benefits on September 8, 1977. The application was considered and reconsidered by the Secretary and ultimately denied on March 10, 1978.

Plaintiff requested a hearing which was held on May 10, 1978, where he was represented by his present counsel. He and a vocational expert appeared and testified. On June 20,1978, the Secretary’s law judge ruled against the plaintiff, finding him not under a “disability” as defined in the Act. The Appeals Council of the Social Security Administration confirmed the decision of the Administrative Law Judge and consequently that decision becomes the “final decision” of the Secretary, reviewable by this Court.

[600]*600At his hearing, Gilliam testified that he was fifty-five years of age, about five foot-eleven inches tall and weighed 168 pounds. He indicated he had completed seven grades of school and had no formal business training, although he operated as a self-employed manufacturer of aluminum windows and awnings for about fifteen years.

He revealed his work history to have been first a carpenter from 1946 to 1951 and then an underground mining drill operator from 1951 to 1962 (Tr. 31). After that he purchased the Missouri Window and Awning Sales, which he conducted until the business was destroyed by fire on February 2, 1977.

Gilliam indicated he was married and had two grown children. He denied the use of alcohol, but indicated that he smoked approximately two packs of cigarettes a day, down from four or five that he previously smoked (Tr. 36-37). He indicated he usually retired by 11:00 or 12:00 p. m., and then awakened at 2:00 or 3:00 a. m. and then retired again at 8:00 a. m. He said he spent most of the day drinking coffee, smoking cigarettes and laying on the couch. He claimed his hips disallowed his standing or sitting for over half an hour. He indicated he could lift ten pounds, but that his walking was restricted to about 150 feet. He claimed he would be unable to take a job doing light duties (Tr. 40). However, he admitted he had not attempted to secure work since his business burned down.

He claimed that he started to reconstruct his building and that he put up with the pain as long as he could, and that his doctor told him to quit. He said he had spent about $10,000 toward the reconstruction (Tr. 42 — 43).

He said he did light housework, including occasionally washing the dishes, but that he had to give up fishing, which was his principle sport. He indicated that prior to the fire, he drove about 200 miles a week carrying on his business (Tr. 51-52). He stated that his physical problems were in his hips, hands, shoulders, back and feet, and that he suffered from arthritis and diabetes. He claimed his treating physician was one Dr. Appleberry, and that he took Oricin [sic] for diabetes, Tylenol and Codeine for arthritis and Breathine [sic] for asthma. There was no mention of Insulin in the treatment of diabetes. He indicated he also took Medrol [sic] for asthma. He claimed to have discontinued working on the advice of his physician in August of 1977 (Tr. 55).

Under examination by his attorney, he indicated that he did none of the actual work in attempting to reconstruct his business, but that he was just an overseer. He testified that he had a couple of accidents, including a fall on the ice in 1975, and also a fall from a ladder in 1975, which fractured his tail bone (Tr. 58-59). These accidents incapacitated him for seven months and, thereafter, he returned to work. He claimed that presently he was unable to use a screwdriver or to remove a top from a fruit jar, and also required help getting out of the tub. He said his wife assisted him with tying shoes and putting on his clothes (Tr. 61-62). He stated he was an ex-baseball player, but stopped that activity in 1974. He stated he had been an apprentice carpenter and knew how to operate power tools.

Dr. Thomas T. Boyd, a vocational counsel- or, testified at the hearing. He indicated he had audienced the testimony and had familiarized himself with the exhibits. Boyd indicated the claimant possessed a tremendous number of skills and that he was a very capable, well trained individual. Dr. Boyd defined sedentary work as lifting ten pounds on a job that allows sitting a certain period, also walking and standing, with duties being defined as up to two hours and forty minutes total of a work day (Tr. 75). In answer to a hypothetical question, which assumed that Gilliam had no physical or mental impediments, Boyd testified that he felt Gilliam capable of performing numerous sedentary jobs in assembling and using machine tools, which were available in Gilliam’s geographical area.

Under cross-examination by Gilliam’s attorney, Dr. Boyd conceded that if the claimant had such impairments that disallowed his putting on a shirt or tying his shoes [601]*601without assistance, and had inability to get out of the tub or twist off the lid of a jar, and further that he was unable to walk more than 150 feet and was required to spend four or five hours a day laying down because of pain, that he would then be unable to perform sedentary jobs. The doctor replied that if the claimant could not perform the “activities of daily living”, then he could not work.

Medical evidence adduced at Gilliam’s hearing included a report from the Bonne Terre Hospital dated September 8, 1977, which indicated an admission for clinical evaluation and diagnosis. Dr. C. H. Apple-berry was the admitting physician. Gilliam complained of “Pain in back, hips and shoulders”. Diagnosis of Gilliam at this time showed osteoarthritis of the spine and multiple joints, severe. It also revealed asthma and chronic bronchitis. X-rays revealed minimal degenerative changes. Disability was not mentioned (Tr. 117-122).

A medical report has been submitted by R. A. Huckstep, M.D., dated October 13, 1977. A rather thorough examination was unspectacular except for complaint and flinching on lumbar back palpations. Dr. Huckstep got the impression that these were exaggerated responses, and that Gilliam had good range of motion. He concluded by observing that Gilliam probably had a prior fracture of the sacrum in 1975, and that he had osteoarthritis in the spine and right shoulder. No disability was mentioned (Tr. 124-128).

A pulmonary work study was done on Gilliam at the Farmington Community Hospital on October 13, 1977. This revealed a suggestion of moderate obstructive pulmonary disease.

We feel it worthy of note that Gilliam submitted or assisted in the preparation of a residual function capacity questionnaire on October 20, 1977, in which he indicated that he was able to sit, stand and walk seven hours out of an eight hour day. He indicated he could frequently lift ten to twenty pounds, and occasionally twenty-one to fifty pounds. He further indicated he could occasionally bend, squat, crawl and climb, and frequently reach above his shoulder level. He concluded that he had no restrictions on exterior industrial exposures, i.

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Bluebook (online)
472 F. Supp. 598, 1979 U.S. Dist. LEXIS 12494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliam-v-califano-moed-1979.