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[NOT FOR PUBLICATION]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. Sammarti
_________________
___________________
Senior Assistant United States Attorney, and Thomas D. Rams
________________
Assistant Regional Counsel, Department of Health and Human Servic
on brief for appellee.
____________________
____________________

Per Curiam.
___________
the

denial

substantial
Human

of

The only issue

disability

insurance

evidence supports

Services

conclusion

impairments, taken

in this pro se appeal from

___ __

the

benefits

Secretary of

that,

together, were

because

is

whether

Health and
claimant's

nonsevere, his claim

was

properly disposed of at step two of the

five-step sequential

evaluation

process.

404.1520.

reasonable

and

20

adequate

C.F.R.
support

for

the

Finding
Secretary's

determination, we affirm.
A year after his insured status

expired on December 31,

1986, claimant-appellant George Tonev filed

for Social
that he

Security disability benefits.

businesses he

owned and managed

disabled by memory loss, constant

a spot on his

pressure and

old at the time

training,

a broken

operation

problems,

left knee.

at

judge (ALJ),
in

Tonev,

the

early

An

a college

1989

hearing before

that both of
1980's

curtailed his business

years

electrical engineer

specifically, memory lapses, back

and exhaustion,

problems, low

of post-graduate work, was 61

he testified,

was

pain, headaches, backache,

of his application.

administrative law
ceased

he alleged

because he

left lung, breathing and vision

graduate with two years

by

In it

had been unable to work since January 1982 in either

of the two

blood

this application

an

his companies

when

his

health

pain, headaches

traveling, rendering

him unproductive.

-2-

The ALJ decided that

Tonev suffered from hypotension, a

vitamin B12 deficiency, and hypertrophic ossification

left

knee,

but

that

he

did

not

have

any

of the

documented

impairments

which

significantly

affected

his

ability

to

perform basic work activities prior to December 31, 1986 when

his

insured status lapsed.

not disabled

because he

The ALJ concluded that Tonev was

did not, as

of that

date, have

severe impairment or

combination of impairments as

required

by

The

to be

404.1520(c).

subsidiary finding that

relevant

work

as

an

manager

prior

to

the

ALJ

Tonev was able

review

the

ALJ's

we

critical

take

to perform his

electrical engineer

additional materials to the

to

made what

date.

and
Tonev

past

business
submitted

Appeals Council, but it declined

decision.

On

judicial

review,

magistrate-judge found that there was substantial evidence to

support the ALJ's
objections
approved

ruling, and, after a hearing on claimant's

to the
the

magistrate's

magistrate's

report, the

findings

and

district judge
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

of

physical

activity
or

by reason

mental

any

impairment."

regulations which implement

medically determinable
404.1505(a).

The

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
symptoms

(emphasis added).
are

evaluated in

Claimant's
light

of

own description 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
___ ____
To
two,

the

404.1529.

prove disability, claimant

existence of

"a

combination of impairments."
146

n.5 (1987).

must establish,

medically

at step

severe impairment

or

Bowen v. Yuckert, 482 U.S. 137,

_____
_______

This means making

"a reasonable threshold

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

... from working."
Services, 795 F.2d
________
U.S. at

149

n.7

McDonald v. Secretary of Health & Human

________
____________________________
1118, 1122 (1st Cir.
("[B]elow

a threshold

1986); Yuckert, 482

_______
level

of

medical

severity,
gainful

an individual
activity

'by

is not
reason

prevented from
of' the

impairment.") (citing 42 U.S.C.

engaging in

physical

423(d)(1)(A)).

or

mental

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

requirement);

of

the

404.1520(c)

"severity"

(a

severe

threshold
impairment

significantly limits claimant's physical or mental ability to

perform basic
activities,

work activities);
those abilities

404.1521(b) (basic

and aptitudes

necessary

work
to do

most jobs, defined in detail).

The Secretary, in making
step

two,

must

establishes only

evaluate
a

a nonseverity determination at

whether

"the

slight abnormality

medical

[or

evidence

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,

specifically considered."
28,

quoted in
__________

or

work

experience

Social Security Ruling

Yuckert, 482
_______

U.S.

at

154

were

(SSR) 85-

n.12; see
___

Barrientos v. Secretary of Health & Human Services,

__________
____________________________________

also
____

820 F.2d

1, 2 (1st Cir. 1987).

The Secretary may use "medical factors

alone

applicants

to

screen out

minimal that, as a

the

quoting

85-28.

SSR

limitations

on

Id. at
___

not "clearly" establish

adjudication process

the

are clearly

working because of them.

the medical evidence does

nonseverity,

so

employment," McDonald, 795 F.2d at

________

1122, i.e., prevented from

If

impairments are

matter of common sense, they

not disabled from gainful

1125.

whose

must continue.

And,

while

step

ability

to

perform

two
the

Id.
___

focuses

upon

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.

We

conclude that

the

Id. at 1125 & n.6.

___
Secretary correctly

severity

regulation in

finding

that the

shown

medical basis

for his

claim

applied the

claimant had

that his

not

ability to

engage in any substantial gainful work was seriously affected

as of the date

he was last

which

carefully reviewed

we have

insured.

The medical

and which

evidence,

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
of

again in 1987.
these

tests.

It

brief visits
Over

this

is undisputed that the sole purpose

was

time

exceptions

were

undergo various

span,

performed, almost all were

The

to

of

the

diagnostic

dozens

of

tests

negative or within normal limits.

four

1983

tests

which

revealed

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
of

changes of the

first metatarsophalangeal joint

the right foot suggestive

claimant from

of arthritis.

the internist

who had interpreted

test

results recommended that

B12

injections,

"suggestions" could

and

stated

made without a

-6-

these 1983

claimant begin treatment with

repeatedly

not be

Letters to the

that

further

complete medical

examination.
underwent
normal

Four

years

later,

in

1987,

various tests at the Mayo Clinic.

limits,

except

recommended that
Finally,

the

B12

regular

there are

two

assay.

physical

Tonev

All were within

Again

examination

letters from

again

it
be

a treating

year

history

of

fatigue,

cluster

headaches,

vertigo, fainting
injuries.

process

"to be
of

progressively

memory

spells, and

The doctor

pressure

hypotension,

deficits,

had.

physician

regarding a November 1988 visit when claimant reported

10

was

an 8-

worsening
positional

right shoulder and

left knee

found claimant's B12 levels

and blood

low,"

and stated

completing

that

Tonev was

full diagnostic

in

workup.

the
Those

results are not in the record.

At
he

the administrative hearing,

suffered

headaches,
sought
Chicago.

from memory

lapses, back

and exhaustion,

help for these

He

stated

claimant testified that

and

had, in

problems from
that

he

pain, incapacitating

used

the early

two doctor
an

1980's,

friends in

over-the-counter

medication for his headaches,

and self-treated the back pain

and exhaustion by

and sleeping long

lying down

hours.

He

also

recounted how

his

memory lapses

interfered with

ability to read, write, and concentrate.

reports
the

filed with his

In both

his

disability

January 1988 application (apparently

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

activities in any way.

Council

for review

longer

represented

advised him

medical

cut

of the
by

ALJ's decision,

counsel,

records

as

Tonev,

the

the Appeals

when he
pro
___

his

se,
__

was no
lodged

Secretary

were

The Appeals Council, in declining

review, reviewed these objections as well as

and

on

district court and here,1 that

presented to

inadequate and inaccurate.

that

back

Later, in his request to

objections, reiterated in the

his

to

representations

the medical records of other doctors would be provided,

_____
found no basis for

delaying resolution of

the case for

the protracted period that Tonev had requested.

In

light

Secretary

of

acted

the

evidence, we

unreasonably

in

cannot
deciding

say

that

that

Tonev's

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

manifestly

clear

that

the

relatively

the

sparse

It is
medical

foundation laid by the claimant is devoid of any report of

complete medical
are

no

examination or treatment prescribed.

recorded

evaluation of

clinical observations,

functional limitations

no

There

diagnoses,

of any kind.

no

"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

evidence for the permissible

claimant

"would

[conditions] been

have

seek

care,

provide substantial

inference by the Secretary that

secured

more

treatment

as intense as alleged."

had

his

Irlanda Ortiz v.

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

1991).

The

supported only

fact

that

the

incapacity

hypotension finding

by claimant's historical account,

any objective data obtained

supports

the

ALJ's

alleged.

is

and not by

within the critical period, also

finding

discounting

Similarly,

claimant's

severe pain

are inconsistent with the

provide

an

additional reason

Tonev's

credibility in

for

that

the

degree

of

allegations of

medical evidence, and

the

Secretary to

regard.

See, e.g.,
___ ____

doubt

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

conclusion that
31, 1986,

evidence

supports

the claimant's impairments,

the

as of

ALJ's

December

did not significantly limit his ability to perform

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

___ ______________
_________
of Health & Human Services, 807
_____________________________
1986),

or

any

unique feature

engineer and business manager.

F.2d

of

his

255, 256
former

(1st Cir.
work as

an

See Gonzalez Garcia, 835 F.2d

___ _______________

at 3.
Accordingly,
affirmed.
_________

the

judgment

of

the

district

court is

-9-

Appellant's motion for leave

of court for submission of

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

-10-