Motley v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 7 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD L. MOTLEY,
Plaintiff-Appellant,
v. No. 97-6040
(D.C. No. 96-CV-493)
JOHN J. CALLAHAN, Acting (W.D. Okla.)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRORBY, LOGAN, and HENRY, 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
*
Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P. L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), John
J. Callahan, Acting Commissioner of Social Security, is substituted for Donna
E. Shalala, Secretary of Health and Human Services, as the defendant in this
action.
**
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Donald Motley appeals the Commissioner’s denial of his
application for social security disability benefits. Because we find that the
decision of the Administrative Law Judge (ALJ) is supported by substantial
evidence, and that the law was correctly applied, we affirm.
Plaintiff filed an application for disability benefits in early April 1994,
alleging that he had been unable to work since February 15, 1987, due to obesity,
diabetes mellitus, high blood pressure, and pain. Plaintiff’s last insured date is
December 31, 1988. Thus, the issue is whether substantial evidence supports the
ALJ’s conclusion that plaintiff was not disabled between February 15, 1987, and
December 31, 1988, because he retained the residual functional capacity to
perform his past relevant work as a truck driver.
“This court reviews the [Commissioner’s] decision to determine only
whether his findings are supported by substantial evidence and whether the
[Commissioner] applied correct legal standards . . . .” Hargis v. Sullivan,
945 F.2d 1482, 1486 (10th Cir. 1991). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. We will not reweigh the evidence or substitute our judgment for that of the
Commissioner. See id.-2-
"Disability" is defined in the Social Security Act as the "inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . ." 42 U.S.C. § 423(d)(1)(A). The Social
Security Act provides that, in considering whether a person is disabled under Title
II,
[a]n individual’s statement as to pain or other symptoms shall not
alone be conclusive evidence of disability . . . ; there must be
medical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment . . . reasonably . . . expected to
produce the pain or other symptoms alleged and which . . . would
lead to a conclusion that the individual is under a disability.
42 U.S.C. § 423(d)5(A).
Plaintiff argues that the Commissioner failed to consider his medical
records regarding his combined impairments when determining whether plaintiff
met or equaled a listing. He further argues that the Commissioner failed to
recognize the combined impact of plaintiff’s impairments as affecting his ability
to do his past relevant work.
In order to meet the listing for obesity, a claimant must meet certain
general weight requirements and suffer from certain specified skeletal,
hypertensive, cardiovascular, or respiratory ailments. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 9.09.
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Our review of the record indicates that the ALJ was correct that plaintiff
met the overall weight requirement prior to the expiration of his insured status.
However, the medical evidence of record does not indicate that plaintiff suffered
from any of the other required conditions during the same period.
In order to meet a listing, the impairment must meet all of the specified
criteria. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). A finding that an
impairment is medically equivalent to a listed impairment must be based solely on
medical evidence. See Kemp v. Bowen, 816 F.2d 1469, 1473 (10th Cir. 1987).
While there is medical evidence in the record of plaintiff’s various medical
conditions after December 1988 which might be sufficient for a finding of
disability, plaintiff must prove that at least one of those conditions, coupled with
his obesity, was disabling before his insured status expired. See Potter v.
Secretary of Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990). The
medical evidence in the record does not prove such disability. Because the ALJ,
the magistrate judge, and the district court produced thorough and accurate
reviews of the evidence, we need not repeat their summaries and conclusions
here. We therefore affirm for substantially the reasons stated by the district court
in its adoption of the report of the magistrate judge and add the following brief
comments.
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Plaintiff argues that a retrospective diagnosis contained in the record is
substantial evidence of disability during the relevant period. This is incorrect.
While a treating physical may offer a retrospective diagnosis of a claimant’s
condition, that, by itself, is insufficient to prove disability during a prior relevant
period. See id. at 1348-49. What is needed is evidence of actual disability during
the insured period. See id. Here, as in Potter, the medical reports do not indicate
that plaintiff was disabled during the relevant period, 1987-88.
Plaintiff’s quarrel with the manner in which the ALJ treated evidence from
a nonexamining physician is also without merit. Initially, there is no evidence
that the doctor was a treating physician. Further, the ALJ gave legitimate reasons
for discounting the opinion, including the six-year time lag between the opinion
and the expiration of plaintiff’s insured status, and the speculative nature of the
opinion.
Finally, plaintiff complains that the ALJ failed to ask the vocational expert
about plaintiff’s ability to do his past relevant work in light of his residual
functional capacity. Plaintiff misapprehends the duty of the ALJ in this regard.
It is the duty of the ALJ, not the vocational expert, to make the step four
determination. See Henrie v. United States Dep’t of Health & Human Servs.,
13 F.3d 359, 361 (10th Cir. 1993). In fact, we have recently discouraged the
“practice of delegating to a [vocational expert] many of the ALJ’s fact finding
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responsibilities at step four.” Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir.
1996). There is sufficient evidence in the record that, taking into account
plaintiff’s combined impairments before December 1988, plaintiff could still
perform the medium work required of his past relevant work as a truck driver.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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