McKinney v. Barnhart ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 4 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CARMEL MCKINNEY,
Plaintiff-Appellant,
v. No. 02-5073
(D.C. No. 00-CV-1055-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and BALDOCK , 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
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff Carmel McKinney appeals from an order of the district court
affirming the Commissioner’s determination that she is not entitled to Social
Security disability benefits. We affirm.
We review the Commissioner’s decision to determine whether her factual
findings were supported by substantial evidence in light of the entire record and
to determine whether she applied the correct legal standards. See Castellano v.
Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Ms. McKinney alleged disability as of June 1, 1995 1
due to headaches,
visual impairment, partial paralysis, fatigue and memory problems caused by a
brain tumor and depression. The administrative law judge (ALJ) determined that
Ms. McKinney was not disabled at step two of the five-step sequential process.
See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).
1
Ms. McKinney’s insured status expired March 31, 1997. Therefore, the
relevant time period for determining her disability status is from June 1, 1995, the
date she claimed she became unable to work, to March 31, 1997. See Adams v.
Chater, 93 F.3d 712, 714 (10th Cir. 1996).
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On appeal, Ms. McKinney argues the ALJ erred in determining the onset
date of her disability, and improperly evaluated her depression and pain. She
maintains the ALJ’s step two finding was not supported by substantial evidence.
Because the ALJ and the magistrate judge thoroughly and accurately
reviewed the evidence, we need not repeat their summaries and conclusions here.
We therefore affirm for substantially the reasons stated by the magistrate judge
with the following brief comments.
Ms. McKinney is attempting to overcome the fact that there are no medical
records supporting her claim that she was disabled prior to the expiration of her
insured status. She proposes that because her brain tumor was diagnosed
approximately six months after the expiration of her insured status, she had the
tumor prior to that date. This is most likely correct. In fact, the medical
examiner testified that “it’s possible that the symptomatology may have started
about six months before the angioma was detected.” Aplt. App. at 49. The record
shows that in September 1998, Ms. McKinney related a “nine month onset of
vision changes with a recent increase in her headaches over the past year.” Id.
at 159.
None of the medical reports, however, show that Ms. McKinney was
actually disabled prior to the expiration of her insured status. “[T]he relevant
analysis is whether the claimant was actually disabled prior to the expiration of
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her insured status. A retrospective diagnosis without evidence of actual disability
is insufficient. This is especially true where the disease is progressive.” Potter v.
Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990)
(citation omitted).
Counsel’s attempt to prove disability through the use of medical articles is
likewise unavailing. The determination of disability rests on medical opinions.
Medical opinions are “statements from . . . acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s),
and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
Acceptable medical sources are defined at § 404.1513(a). Medical journal
articles are not included as acceptable medical sources. We cannot give
persuasive authority to an attorney’s extrapolation of a medical article to his
client’s condition. See, generally, Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *4
(clarifying that medical source statements must be submitted by acceptable
medical sources and are to be based on the medical sources’ personal knowledge
of the claimant). While medical literature can be cited and relied on to support a
claimant’s position, it cannot be the only evidence showing disability.
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The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED for substantially the reasons stated in the magistrate
judge’s order of April 30, 2002.
Entered for the Court
Monroe G. McKay
Circuit Judge
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