                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 28 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOHN D. MCCUISTION,
    SSN: XXX-XX-XXXX,

                Plaintiff-Appellant,
                                                         No. 98-6039
    v.                                               (D.C. No. 96-CV-482)
                                                         (W.D. Okla.)
    KENNETH S. APFEL, Commissioner,
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Claimant John D. McCuistion appeals the determination of the district court

affirming the decision of the Commissioner of Social Security to deny him

disability benefits. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      Claimant alleges disability since July 31, 1980, because of a severe heart

condition and a severe mental impairment. The ALJ found that claimant did not

suffer from a severe mental impairment through December 31, 1981, his date last

insured for Title II purposes, and that, while claimant did have severe coronary

artery disease during that time, he could have worked as a sedentary order clerk.

On appeal, claimant takes exception to the ALJ’s conclusion regarding his

allegedly severe mental impairment.

      Claimant asserts that his disability began in June 1980. The only medical

evidence in the record, however, of claimant’s mental problems predates that date

by many years. In September 1968, while still in the United States Air Force,

claimant was admitted to the hospital at Sheppard Air Force Base in Texas. There

he was diagnosed as having “[p]sychoneurotic depressive reaction, moderate,

chronic, in remission, manifested by poor concentration, tearfulness, helplessness

and petulance.” R. Vol. II at 285. Claimant’s mental impairment was considered

marked for military duty and moderate for social and industrial adaption. Id. The

only other relevant references to a possible mental impairment in the medical




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records prior to December 31, 1981, are two references to claimant’s use of

Ativan, prescribed for nervousness. See id. at 196, 199.

      After evaluating the impact on claimant’s functional abilities before 1982

because of the alleged mental impairment, the ALJ concluded that “[t]he medical

records fail to reveal significant limitations in the claimant’s mental ability to do

basic work activities through December 1981.” Id. at 21. The ALJ found,

therefore, that claimant did not suffer from a severe mental impairment through

December 1981. See id.

      In his brief, claimant argues that the ALJ made various errors, all of which

may be relevant when the Social Security determination process reaches step five

of the traditional sequential evaluation. See Williams v. Bowen, 844 F.2d 748,

750-51 (10th Cir. 1988). The ALJ, however, implicitly decided claimant’s mental

impairment claim at step two of the process when he found that claimant had no

significant limitations on his mental ability to do basic work activities. R. Vol. II

at 21. At step two, “the claimant must make a threshold showing that his

medically determinable impairment or combination of impairments significantly

limits his ability to do basic work activities. . . .” Id. at 751. Unless the claimant

makes a de minimis showing of medical severity, the evaluation process ends and

the claimant is determined not disabled. See id.




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      Here, claimant does not even allege onset of disability until June 30, 1980.

As mentioned above, there is no evidence of mental impairment, or treatment for

such, between June 30, 1980 and December 31, 1981, except for the reference to

claimant’s use of Ativan for nervousness. Claimant still has the burden of proof

at step two to show that he suffered from a severe mental impairment before the

expiration of his insured status. Because there is no substantial medical evidence

in the record to support this proposition, the ALJ was correct in denying claimant

benefits based on a mental impairment prior to 1982.

      Claimant argues that the Social Security Agency is responsible for the lack

of evidence regarding his pre-1982 mental condition. He contends that the agency

should have developed the record and ordered a consultative examination in

conjunction with an earlier application he had filed in 1982. There is no medical

or documentary evidence in the record relative to that 1982 application, except for

the decision of the ALJ which does not mention an allegation of mental

impairment. See R. Vol. II at 245-52. However, the attorney representing

claimant in an earlier stage of this case stated in a supplemental memorandum to

the ALJ that “when Mr. McCuistion appeared and testified at a hearing in 1982,

he did not advise the Court of his existing mental impairment.” Id. at 508.

      Before an ALJ has the duty to order a consultative examination or

otherwise develop the record, the claimant must identify the issue sought to be


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developed. See Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).

Because there is no evidence that claimant even mentioned a mental impairment

to the ALJ in the 1982 proceeding, his position regarding the agency’s duty to

develop the record in that regard is without merit.

      This court acknowledges that claimant is very ill due to his heart problems

and that his mental condition now may well be of severe proportions. The

relevant inquiry for this case, however, is whether claimant had a disabling

mental impairment before December 31, 1981. Because claimant has not carried

his burden of proof on this issue, he is not entitled to benefits under Title II.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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