Tonev v. Sullivan

• Court: Court of Appeals for the First Circuit
• Decided: October 15, 1992
• Docket: 92-1059
• Status: Published

Opinion

USCA1 Opinion

        October 15, 1992        [NOT FOR PUBLICATION]

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No. 92-1059 

                                    GEORGE TONEV,

                                Plaintiff, Appellant,

                                          v.

                                  LOUIS W. SULLIVAN,
                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            George Tonev on brief pro se.
            ____________
            Lincoln C. Almond, United  States Attorney, Everett C. Sammartino,
            _________________                           _____________________
        Senior  Assistant  United  States  Attorney,  and  Thomas  D.  Ramsey,
                                                           __________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

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____________________

Per  Curiam.  The only issue  in this pro se appeal from
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            the  denial  of  disability  insurance  benefits  is  whether

            substantial  evidence supports  the  Secretary of  Health and

            Human   Services   conclusion   that,    because   claimant's

            impairments, taken  together, were  nonsevere, his claim  was

            properly disposed of at step two of the  five-step sequential

            evaluation  process.     20  C.F.R.      404.1520.    Finding

            reasonable  and   adequate   support  for   the   Secretary's

            determination, we affirm.  

                 A year after his insured status  expired on December 31,

            1986, claimant-appellant George Tonev filed  this application

            for Social  Security disability benefits.   In it  he alleged

            that he  had been unable to work since January 1982 in either

            of the two  businesses he  owned and managed  because he  was

            disabled by memory loss, constant  pain, headaches, backache,

            a spot on his  left lung, breathing and vision  problems, low

            blood  pressure and  a broken  left knee.   Tonev,  a college

            graduate with two years  of post-graduate work, was 61  years

            old at the time  of his application.  An  electrical engineer

            by  training,  he testified,  at  a  1989  hearing before  an

            administrative law  judge (ALJ),  that both of  his companies

            ceased  operation  in  the   early  1980's  when  his  health

            problems,  specifically, memory lapses, back  pain, headaches

            and exhaustion,  curtailed his business  traveling, rendering

            him unproductive.

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The ALJ decided that  Tonev suffered from hypotension, a

            vitamin B12 deficiency, and hypertrophic ossification  of the

            left  knee,  but   that  he  did  not   have  any  documented

            impairments  which  significantly  affected  his  ability  to

            perform basic work activities prior to December 31, 1986 when

            his  insured status lapsed.  The ALJ concluded that Tonev was

            not disabled  because he  did not, as  of that  date, have  a

            severe impairment or  combination of impairments as  required

            by     404.1520(c).   The  ALJ  made what  we  take  to be  a

            subsidiary finding that  Tonev was able  to perform his  past

            relevant  work  as  an  electrical engineer  and  a  business

            manager  prior  to  the   critical  date.    Tonev  submitted

            additional materials to the  Appeals Council, but it declined

            to  review  the  ALJ's  decision.    On  judicial  review,  a

            magistrate-judge found that there was substantial evidence to

            support the ALJ's  ruling, and, after a hearing on claimant's

            objections  to the  magistrate's  report, the  district judge

            approved   the  magistrate's   findings   and  affirmed   the

            Secretary's determination.

                 To begin, a  disability is defined, in part  relevant to

            the discussion here, as "the  inability to do any substantial

            gainful  activity  by reason  of  any  medically determinable

            physical  or  mental  impairment."        404.1505(a).    The

            regulations which implement  the administration of disability

            determinations instruct a claimant:

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Your  impairment  must   result  from   anatomical,
                 physiological, or psychological abnormalities which
                 can  be shown by  medically acceptable clinical and
                 laboratory  diagnostic techniques.   A  physical or
                 mental  impairment must  be established  by medical
                                    ____                     _______
                 evidence   consisting   of  signs,   symptoms,  and
                 ________
                 laboratory  findings, not only by your statement of
                                       _____________________________
                 symptoms.
                 ________

              404.1508  (emphasis added).  Claimant's  own description of

            symptoms  are  evaluated in  light  of  the  extent to  which

            medical findings confirm those symptoms.   

                 We will  never find that you are  disabled based on
                 your symptoms, including pain, unless medical signs
                 or findings show that  there is a medical condition
                 that could be reasonably expected to produce  those
                 symptoms. 

              404.1529; see also   404.1529.
                        ___ ____

                 To  prove disability, claimant  must establish,  at step

            two,  the  existence of  "a  medically  severe impairment  or

            combination of impairments."  Bowen v. Yuckert, 482 U.S. 137,
                                          _____    _______

            146  n.5 (1987).   This means making  "a reasonable threshold

            showing that the impairment[s] ... could conceivably keep him

            ... from working."   McDonald v. Secretary of Health  & Human
                                 ________    ____________________________

            Services, 795 F.2d  1118, 1122 (1st Cir.  1986); Yuckert, 482
            ________                                         _______

            U.S. at  149  n.7  ("[B]elow  a threshold  level  of  medical

            severity,  an individual  is not  prevented from  engaging in

            gainful  activity  'by  reason  of' the  physical  or  mental

            impairment.") (citing 42 U.S.C.    423(d)(1)(A)).  To survive

            step two, claimant must prove that his impairments would have

            more  than minimal limiting effects on his ability to perform
            __________

            basic work activities.  McDonald, 795 F.2d at 1125 (endorsing
                                    ________

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de  minimis  interpretation   of  the  "severity"   threshold
            ___________

            requirement);         404.1520(c)   (a    severe   impairment

            significantly limits claimant's physical or mental ability to

            perform basic  work activities);     404.1521(b) (basic  work

            activities,  those abilities  and aptitudes  necessary  to do

            most jobs, defined in detail).

                 The Secretary, in making  a nonseverity determination at

            step  two,  must  evaluate  whether   "the  medical  evidence

            establishes only  a  slight abnormality  [or  combination  of

            slight abnormalities] which would have no more than a minimal

            effect on  an  individual's  ability  to  work  even  if  the

            individual's   age,  education,   or  work   experience  were

            specifically considered."   Social Security Ruling  (SSR) 85-

            28,  quoted  in  Yuckert, 482  U.S.  at  154  n.12; see  also
                 __________  _______                            ___  ____

            Barrientos v. Secretary of Health & Human Services,  820 F.2d
            __________    ____________________________________

            1, 2 (1st Cir. 1987).  The Secretary may use "medical factors

            alone  to  screen out  applicants  whose  impairments are  so

            minimal that, as a  matter of common sense, they  are clearly

            not disabled from gainful  employment," McDonald, 795 F.2d at
                                                    ________

            1122, i.e., prevented from  working because of them.   Id. at
                                                                   ___

            1125.  If  the medical evidence does  not "clearly" establish

            nonseverity,  the  adjudication process  must continue.   Id.
                                                                      ___

            quoting  SSR  85-28.    And,  while  step  two  focuses  upon

            limitations  on  the  ability   to  perform  the  basic  work
                                                              _____

            activities common to most jobs, a denial at this step is also

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inappropriate when the evidence  shows the claimant unable to

            perform his or her past work.  Id. at 1125 & n.6.  
                                           ___

                 We  conclude that  the  Secretary correctly  applied the

            severity  regulation in  finding  that the  claimant had  not

            shown  a  medical basis  for his  claim  that his  ability to

            engage in any substantial gainful work was seriously affected

            as of the date  he was last  insured.  The medical  evidence,

            which  we have  carefully reviewed  and which  is set  out in

            detail by the magistrate-judge, see Report and Recommendation
                                            ___

            at 5-8, Rec.  Doc. 15, reveals  that Tonev made  intermittent

            visits to the Mayo clinic in 1968 and 1970, twice in 1983 and

            once  again in 1987.  It  is undisputed that the sole purpose

            of  these  brief visits  was  to  undergo various  diagnostic

            tests.    Over  this  time  span,  of  the  dozens  of  tests

            performed, almost all were  negative or within normal limits.

            The  exceptions  were  four   1983  tests  which  revealed  a

            calcified (and apparently benign) nodule in the lower lobe of

            the left lung, below  normal vitamin B12 levels, hypertrophic

            ossification of the left knee due to a prior trauma, and some

            degenerative  changes of the  first metatarsophalangeal joint

            of  the right foot suggestive  of arthritis.   Letters to the

            claimant from  the internist  who had interpreted  these 1983

            test  results recommended that  claimant begin treatment with

            B12   injections,   and   repeatedly  stated   that   further

            "suggestions" could  not be  made without a  complete medical

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examination.    Four  years   later,  in  1987,  Tonev  again

            underwent  various tests at the Mayo Clinic.  All were within

            normal  limits,  except   the  B12  assay.     Again  it  was

            recommended that  a  regular  physical  examination  be  had.

            Finally,  there are  two  letters from  a treating  physician

            regarding a November 1988 visit when claimant reported  an 8-

            10  year  history  of  hypotension,  progressively  worsening

            fatigue,  cluster  headaches,  memory   deficits,  positional

            vertigo, fainting  spells, and  right shoulder and  left knee

            injuries.  The doctor  found claimant's B12 levels  and blood

            pressure  "to be  low,"  and stated  that  Tonev was  in  the

            process  of  completing  a  full diagnostic  workup.    Those

            results are not in the record.

                 At  the administrative hearing,  claimant testified that

            he  suffered  from memory  lapses, back  pain, incapacitating

            headaches,  and exhaustion,  and  had, in  the early  1980's,

            sought  help for these  problems from  two doctor  friends in

            Chicago.    He  stated   that  he  used  an  over-the-counter

            medication for his headaches,  and self-treated the back pain

            and exhaustion by  lying down  and sleeping long  hours.   He

            also  recounted how  his  memory lapses  interfered with  his

            ability to read, write, and concentrate.  In both  disability

            reports  filed with his  January 1988 application (apparently

            the  original was thought lost and  a duplicate was submitted

            by the claimant), Tonev indicated that 1) he currently had no

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doctor,  2)  other than  taking  aspirin-type  medication and

            "sleeping tablets", he had not been treated for his ailments,

            and  3)  no  doctor  had  advised him  to  cut  back  on  his

            activities in any way.  Later, in his request to  the Appeals

            Council  for review  of the  ALJ's decision,  when he  was no

            longer  represented   by  counsel,  Tonev,  pro   se,  lodged
                                                        ___   __

            objections, reiterated in the  district court and here,1 that

            his  medical  records  as  presented to  the  Secretary  were

            inadequate and inaccurate.  The Appeals Council, in declining

            review, reviewed these objections as well as  representations

            that  the medical records of other doctors would be provided,
                                                       _____

            and  found no basis for  delaying resolution of  the case for

            the protracted period that Tonev had requested. 

                 In  light  of  the  evidence, we  cannot  say  that  the

            Secretary  acted   unreasonably  in  deciding   that  Tonev's

            impairments, as of the critical date, were not severe.  It is

            manifestly  clear   that   the  relatively   sparse   medical

            foundation laid by the claimant is devoid of any report of  a

            complete medical  examination or treatment prescribed.  There

            are  no  recorded  clinical observations,  no  diagnoses,  no

            evaluation of   functional limitations  of any kind.   "Gaps"

            such as these, particularly the apparent failure to undergo a

____________________

            1.  Tonev has moved to submit additional materials in support
            of this appeal.   Under  the limitations  on judicial  review
            imposed  by 42  U.S.C.    405(g),  we  may only  examine  the
            evidence in the administrative record before us.  See also 20
                                                              ___ ____
            C.F.R.   404.951(b). 

                                         -8-

medical  examination  or to  seek  care,  provide substantial

            evidence for the permissible  inference by the Secretary that

            claimant  "would   have  secured  more   treatment  had   his

            [conditions] been  as intense as alleged."   Irlanda Ortiz v.
                                                         _____________

            Secretary  of Health & Human Services, 955 F.2d 765, 769 (1st
            _____________________________________

            Cir.  1991).    The  fact  that  the  hypotension finding  is

            supported only  by claimant's historical account,  and not by

            any objective data obtained  within the critical period, also

            supports   the  ALJ's  finding   discounting  the  degree  of

            incapacity  alleged.   Similarly,  claimant's  allegations of

            severe pain  are inconsistent with the  medical evidence, and

            provide  an  additional reason  for  the  Secretary to  doubt

            Tonev's  credibility in  that  regard.   See, e.g.,  Gonzalez
                                                     ___  ____   ________

            Garcia v. Secretary of Health & Human Services, 835 F.2d 1, 3
            ______    ____________________________________

            (1st Cir. 1987); Barrientos, 820 F.2d at 3.
                             __________

                 In   sum,  substantial   evidence  supports   the  ALJ's

            conclusion that  the claimant's impairments,  as of  December

            31, 1986,  did not significantly limit his ability to perform

            either basic work activities, see Gonzalez-Ayala v. Secretary
                                          ___ ______________    _________

            of  Health  & Human  Services, 807  F.2d  255, 256  (1st Cir.
            _____________________________

            1986),  or  any  unique feature  of  his  former  work as  an

            engineer and business manager.  See Gonzalez Garcia, 835 F.2d
                                            ___ _______________

            at 3.

                 Accordingly,  the  judgment  of  the  district  court is

            affirmed.
            _________

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Appellant's motion for leave  of court for submission of

three (identical) folders of 93 pages each is denied.

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