* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOHN D. MCCUISTION, SSN: 440-42-6260,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellee. No. 98-6039 (D.C. No. 96-CV-482) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Claimant John D. McCuistion appeals the determinati on of the district court affirming the decision of the Commissioner of Socia l Security to deny him disability benefits. We exercise jurisdiction unde r 28 U.S.C. § 1291 and affirm. Claimant alleges disability since July 31, 1980, be cause of a severe heart condition and a severe mental impairment. The ALJ f ound that claimant did not suffer from a severe mental impairment through Dece mber 31, 1981, his date last insured for Title II purposes, and that, while clai mant did have severe coronary artery disease during that time, he could have work ed as a sedentary order clerk. On appeal, claimant takes exception to the ALJ’s co nclusion 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 ment al 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 A ir Force Base in Texas. There he was diagnosed as having “[p]sychoneurotic depres sive 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 an d industrial adaption. Id. The only other relevant references to a possible mental impairment in the medical-3-

records prior to December 31, 1981, are two referen ces to claimant’s use of Ativan, prescribed for nervousness. See id. at 196, 199. After evaluating the impact on claimant’s functiona l abilities before 1982 because of the alleged mental impairment, the ALJ c oncluded 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 seve re mental impairment through December 1981. See id. In his brief, claimant argues that the ALJ made var ious errors, all of which may be relevant when the Social Security determinat ion 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, implici tly 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 thre shold 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.-4-

Here, claimant does not even allege onset of disabi lity 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. Claimantstill 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 cons ultative examination in conjunction with an earlier application he had file d 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 a llegation of mental impairment. See R. Vol. II at 245-52. However, the attorney repre senting claimant in an earlier stage of this case stated in a supplemental memorandum to the ALJ that “when Mr. McCuistion appeared and test ified 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 ide ntify the issue sought to be-5-

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 reg arding the agency’s duty to develop the record in that regard is without merit. This court acknowledges that claimant is very ill d ue to his heart problems and that his mental condition now may well be of se vere proportions. The relevant inquiry for this case, however, is whetherclaimant had a disabling mental impairment before December 31, 1981. Becaus e claimant has not carried his burden of proof on this issue, he is not entitl ed to benefits under Title II. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge