

                    [NOT FOR PUBLICATION]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                                                   

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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.                                     

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