Tonev v. Sullivan
U.S. Court of Appeals for the First Circuit
Tonev v. Sullivan
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October 15, 1992 [NOT FOR PUBLICATION]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]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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George Tonev on brief pro se.
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Lincoln C. Almond, United States Attorney, Everett C. Sammartino,
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Senior Assistant United States Attorney, and Thomas D. Ramsey,
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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
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evidence consisting of signs, symptoms, and
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laboratory findings, not only by your statement of
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symptoms.
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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.
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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,
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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
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Services, 795 F.2d 1118, 1122 (1st Cir. 1986); Yuckert, 482
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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
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basic work activities. McDonald, 795 F.2d at 1125 (endorsing
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de minimis interpretation of the "severity" threshold
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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
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Barrientos v. Secretary of Health & Human Services, 820 F.2d
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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
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1122, i.e., prevented from working because of them. Id. at
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1125. If the medical evidence does not "clearly" establish
nonseverity, the adjudication process must continue. Id.
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quoting SSR 85-28. And, while step two focuses upon
limitations on the ability to perform the basic work
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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.
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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
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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
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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,
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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
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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
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C.F.R. 404.951(b).
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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.
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Secretary of Health & Human Services, 955 F.2d 765, 769 (1st
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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
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Garcia v. Secretary of Health & Human Services, 835 F.2d 1, 3
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(1st Cir. 1987); Barrientos, 820 F.2d at 3.
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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
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of Health & Human Services, 807 F.2d 255, 256 (1st Cir.
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1986), or any unique feature of his former work as an
engineer and business manager. See Gonzalez Garcia, 835 F.2d
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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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Reference
- Status
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