
USCA1 Opinion

	




        October 15, 1992        [NOT FOR PUBLICATION]                                 ____________________        No. 92-1059                                     GEORGE TONEV,                                Plaintiff, Appellant,                                          v.                                  LOUIS W. SULLIVAN,                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     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.                                 ____________________                                 ____________________                 Per  Curiam.  The only issue  in this pro se appeal from                 ___________                           ___ __            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.                                         -2-                 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:                                         -3-                 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                                    ________                                         -4-            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                                         -5-            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                                         -6-            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                                         -7-            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.            _________                                         -9-                 Appellant's motion for leave  of court for submission of                             three (identical) folders of 93 pages each is denied.                                         -10-
