USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 97-1367
CLAYTON W. MAY,
Plaintiff, Appellant,
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Boudin and Lynch,
Circuit Judges.
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Rodney F. Vieux and Ray Cebula on brief for appellant.
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Jay P. McCloskey, United States Attorney, David R. Collins,
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Assistant United States Attorney, and Wayne G. Lewis, Assistant
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Regional Counsel, Social Security Administration, on brief for
appellee.
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October 7, 1997
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Per Curiam. Clayton W. May ("claimant") appeals from
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the Commissioner's denial of disability benefits at step two
of the sequential evaluation process. See 20 CFR 404.1520.
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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.
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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
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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.
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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
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Human Services, 820 F.2d 1, 2 (1st Cir. 1987)(quoting SSR 85-
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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
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Human Services, 795 F.2d 1118, 1124 (1st Cir. 1986).
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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
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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.
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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.
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1993); Morgan v.Sullivan, 945 F.2d 1079, 1082(9th Cir. 1991).
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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
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(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
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774; see also Deblois v. Secretary of Health and Human
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Services, 686 F.2d 76, 81 (1st Cir. 1982) (remanding for ALJ
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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
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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."
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Rivera v. Sullivan, 923 F.2d 964, 969 (2d Cir. 1991) (quoting
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Wagner v. Secretary of Health and Human Services, 906 F.2d
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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,
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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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