
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1367                                   CLAYTON W. MAY,                                Plaintiff, Appellant,                                          v.                     SOCIAL SECURITY ADMINISTRATION COMMISSIONER,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Rodney F. Vieux and Ray Cebula on brief for appellant.            _______________     __________            Jay  P.  McCloskey,  United  States  Attorney,  David  R. Collins,            __________________                              _________________        Assistant  United States  Attorney,  and  Wayne  G.  Lewis,  Assistant                                                  ________________        Regional  Counsel,  Social  Security  Administration,  on   brief  for        appellee.                                 ____________________                                   October 7, 1997                                 ____________________                 Per  Curiam.  Clayton  W. May ("claimant")  appeals from                 ___________            the  Commissioner's denial of disability benefits at step two            of the sequential evaluation process.  See 20 CFR   404.1520.                                                   ___            After  a hearing, an  Administrative Law Judge  ("ALJ") found            that  claimant was disabled  by a combination of physical and            mental impairments as  of November 1992,  the filing date  of            his application for Social  Security Income ("SSI") benefits,            but that  his impairments were  not severe prior  to December            31, 1985, claimant's date last insured ("DLI").  Accordingly,            the  Commissioner awarded SSI  benefits but denied disability            benefits.    On  appeal,  the  district  court  affirmed  the            Commissioner's decision.1                                    1                 At step two of the  evaluation process, claimant has the            burden of proving "that he has a medically  severe impairment            or  combination of impairments."   Bowen v. Yuckert, 482 U.S.                                               _____    _______            137,  146,  n.5  (1987).   An  impairment  or  combination of            impairments  is   severe   if  it     "significantly   limits            [claimant's]  physical or  mental ability  to  do basic  work            activities."  20 CFR    404.1520(c).  "Under  Social Security            Ruling 85-28,  a claim may be denied at  step 2 for lack of a            severe impairment  only where  'medical evidence  establishes                                            ____________________               1 Claimant moved from Vermont to Maine between the time of               1            the hearing  before the ALJ  and the  date that he  filed his            appeal to  the district court.   The  district court  applied            Second Circuit  law and  neither party has  objected to  that            aspect of the decision.   In all events, the  relevant law of            the  two circuits is not significantly different for purposes            of this appeal.                                         -2-            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. . .  . '"  Barrientos v. Secretary  of Health and                                   __________    ________________________            Human Services, 820 F.2d 1, 2 (1st Cir. 1987)(quoting SSR 85-            ______________            28).   Ruling  85-28 clarifies  that  the step  two  severity            requirement  is  intended  "to do  no  more  than  screen out            groundless  claims."   McDonald v.  Secretary  of Health  and                                   ________     _________________________            Human Services, 795 F.2d 1118, 1124 (1st Cir. 1986).            ______________                 On appeal,  claimant challenges only  the ALJ's  finding            that claimant did not suffer from a severe mental  impairment            prior  to December  31,  1985.   "[This  court's] inquiry  on            appeal  is limited to determining whether the record contains            substantial evidence  to support  the Secretary's  findings."            Barrientos,  820 F.2d at  2.  "Substantial  evidence is 'more            __________            than a mere scintilla.  It means such relevant  evidence as a            reasonable  mind  might  accept  as  adequate  to  support  a            conclusion.'" Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir.                          _________    ______            1981).                   Based  upon our  careful review of  the record,  we find            that  the evidence  regarding the  date  on which  claimant's            mental  impairment  became severe  is ambiguous.   Therefore,            Social Security Ruling  83-20 required the  ALJ to consult  a            medical advisor.  See Bailey v.  Chater, 68 F.3d 75,  79 (4th                              ___ ______     ______                                         -3-            Cir. 1995);  Spellman v. Shalala,  1 F.3d 357, 363  (5th Cir.                         ________    _______            1993); Morgan v.Sullivan, 945 F.2d 1079, 1082(9th Cir. 1991).                   ______   ________                 Neither  the absence of  medical treatment  records from            the  relevant  period  nor the  retrospective  nature  of Mr.            Karp's  opinion justified the ALJ's finding that the treating            source's  report was too speculative a basis for establishing            a severe  impairment.  See Arnone  v. Bowen, 882  F.2d 34, 39                                   ___ ______     _____            (2d  Cir.  1989)  (noting   that  dearth  of  contemporaneous            evidence does not necessarily preclude claimant's entitlement            to a  "period of disability,"  20 CFR S404.320).   Mr. Karp's            opinion, as the  retrospective opinion of a  treating source,            is entitled to "significant weight."  Dousewicz, 646 F.2d  at                                                  _________            774;  see  also Deblois  v.  Secretary  of Health  and  Human                  _________ _______      ________________________________            Services, 686 F.2d 76, 81  (1st Cir. 1982) (remanding for ALJ            ________            to obtain retrospective opinions  regarding claimant's mental            condition in relevant period).                 Nor  was Mr. Karp's opinion inconsistent with the record            as  a whole.    Neither  Dr.  Lichtenstein's  statement  that            claimant had  been "fully  and totally disabled  . .  . since            1990," nor any other medical  evidence in the record directly            contradicts  Mr. Karp's  opinion that  claimant was  severely            impaired by his mental disability prior to December 31, 1985.            Dr.  Lichtenstein's  refusal  to give  an  opinion  about the            status of claimant's  mental condition in the  pre-DLI period            suggests  that the  general practitioner  had  not formed  an                                         -4-            opinion  about the  severity of  claimant's mental  condition            during  the relevant period.  "[N]or is there 'overwhelmingly            compelling' non-medical evidence to the contrary  as required            by  Wagner in  the absence  of  competing medical  opinions."                ______            Rivera v. Sullivan, 923 F.2d 964, 969 (2d Cir. 1991) (quoting            ______    ________            Wagner v. Secretary  of Health and  Human Services, 906  F.2d            ______    ________________________________________            856, 862 (2d Cir. 1990)).                 We conclude  that the  evidence was  at least  ambiguous            with respect to  whether the claimant met his  burden at step            two to  show that  his mental impairment  was not  slight and            that it had "'more than a minimal  effect on . . . ability to            perform basic work activities' within the meaning of SSR  85-            28."   Fernandez v. Secretary  of Health and  Human Services,                   _________    ________________________________________            826 F.2d 164, 167 (1st Cir. 1987).  Therefore, the ALJ should            have  consulted with a medical  advisor to determine the date            on which  claimant's mental  impairment became  severe.   The            judgment of  the district court  is vacated, and the  case is            remanded  so  that  it   may  be  further  remanded   to  the            Commissioner for additional  proceedings consistent with this            opinion.                 Vacated and Remanded.                 _______     ________                                         -5-
