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[NOT FOR PUBLICATION]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,
__________________
Assistant
Regional

United

United States
Counsel,

Social

States

Attorney,
Security

and

Attorney,

David R. Colli
_______________

Wayne G. Lewis,
________________

Administration,

on

Assist
brief

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.

After

that

a hearing, an

Administrative Law Judge

claimant was disabled

mental impairments as

his impairments were

On

appeal,

of

Security Income ("SSI") benefits,

Commissioner awarded SSI

benefits.

("ALJ") found

the filing date

not severe prior

31, 1985, claimant's date last insured ("DLI").

the

404.1520.

by a combination of physical and

of November 1992,

his application for Social

but that

See 20 CFR
___

the

to December

Accordingly,

benefits but denied disability

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."

137,

146,

Bowen v. Yuckert, 482 U.S.

_____
_______

n.5

(1987).

An

impairment

is

severe

if

it

impairments

[claimant's]

physical or

activities."

20 CFR

Ruling 85-28,

mental ability

404.1520(c).

only where

combination of

"significantly

to

"Under

a claim may be denied at

severe impairment

or

limits

do basic

work

Social Security

step 2 for lack of a

'medical evidence

establishes

____________________

1 Claimant moved from Vermont to Maine between the time of

1
the hearing
appeal to

before the ALJ

the district court.

Second Circuit

law and

aspect of the decision.

the

and the
The

date that he
district court

neither party has

In all events, the

filed his
applied

objected to

that

relevant law of

two circuits is not significantly different for purposes

of this appeal.

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only

slight

abnormality

or

abnormalities which would have no

combination

of

slight

more than a minimal effect

on an

individual's ability to work even

if the individual's

age,

education

were

considered. . .

or

. '"

work

experience

specifically

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

groundless

is

intended

claims."

"to do

no

McDonald v.
________

more

than

screen out

Secretary of Health and

_________________________

Human Services, 795 F.2d 1118, 1124 (1st Cir. 1986).

______________

On appeal,

claimant challenges only

the ALJ's

that claimant did not suffer from a severe mental

prior

appeal

to December

31,

1985.

"[This

finding

impairment

court's] inquiry

on

is limited to determining whether the record contains

substantial evidence

Barrientos,
__________

to support

820 F.2d at

than a mere scintilla.

reasonable

mind

might

2.

the Secretary's

"Substantial

evidence is 'more

It means such relevant

accept

as

findings."

adequate

evidence as a

to

support

conclusion.'" Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir.

_________
______

1981).

Based

that

mental

upon our

careful review of

the record,

the evidence

regarding the

date

impairment

became severe

is ambiguous.

Social Security Ruling

medical advisor.

on which

83-20 required the

See Bailey v.
___ ______

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we find

claimant's

Therefore,

ALJ to consult

Chater, 68 F.3d 75,

______

79 (4th

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

the absence of

relevant

Karp's

period

medical treatment

nor the

retrospective

records from

nature

of Mr.

opinion justified the ALJ's finding that the treating

source's

report was too speculative a basis for establishing

a severe

impairment.

(2d

Cir.

1989)

See Arnone
___ ______

(noting

that

v. Bowen, 882
_____

dearth

of

F.2d 34, 39

contemporaneous

evidence does not necessarily preclude claimant's entitlement

to a

"period of disability,"

opinion, as the

20 CFR S404.320).

retrospective opinion of a

is entitled to "significant weight."

Mr. Karp's

treating source,

Dousewicz, 646 F.2d

at

_________

774;

see also Deblois

_________ _______

Services, 686 F.2d 76, 81

________

v.

Secretary of Health and Human

________________________________

(1st Cir. 1982) (remanding for ALJ

to obtain retrospective opinions

regarding claimant's mental

condition in relevant period).

Nor

as

was Mr. Karp's opinion inconsistent with the record

a whole.

claimant had

Neither

been "fully

Dr.

Mr. Karp's

statement

and totally disabled

1990," nor any other medical

contradicts

Lichtenstein's

. .

that

. since

evidence in the record directly

opinion that

claimant was

severely

impaired by his mental disability prior to December 31, 1985.

Dr.

Lichtenstein's

status of claimant's

refusal

to give

an

opinion

mental condition in the

about the

pre-DLI period

suggests

that the

general practitioner

had

not formed

an

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opinion

during

about the

severity of

the relevant period.

claimant's mental

"[N]or is there 'overwhelmingly

compelling' non-medical evidence to the contrary

by

Wagner in
______

the absence

condition

of

competing medical

as required

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

with respect to

two to

show that

that the

evidence was

at least

whether the claimant met his

his mental impairment

that it had "'more than a minimal

ambiguous

burden at step

was not

slight and

effect on . . . ability to

perform basic work activities' within the meaning of SSR

28."

Fernandez v. Secretary of Health and Human Services,

_________
________________________________________

826 F.2d 164, 167 (1st Cir. 1987).

have

85-

consulted with a medical

on which

claimant's mental

judgment of

Therefore, the ALJ should

advisor to determine the date

impairment became

the district court

severe.

is vacated, and the

The

case is

remanded

so

that

it

may

Commissioner for additional

be

further

remanded

to

the

proceedings consistent with this

opinion.

Vacated and Remanded.

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________

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