Sybil T. Miller v. Shirley S. Chater

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No. 95-3018
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Sybil T. Miller, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Shirley S. Chater, Commissioner * District of Nebraska
of the Social Security *
Administration, * [UNPUBLISHED]
*
Appellee. *

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Submitted: June 21, 1996

Filed: July 11, 1996
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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
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PER CURIAM.

Sybil T. Miller appeals from the final judgment of the District
Court1 for the District of Nebraska affirming the decision of the
Commissioner of Social Security to deny Miller Social Security disability
insurance benefits. For the reasons discussed below, we affirm.

Miller filed the instant application on February 1, 1990, alleging
an onset date of March 4, 1960. Miller’s insured status expired on
December 31, 1961. Her application was denied initially and on
reconsideration; a hearing was held in October 1992 before an
Administrative Law Judge (ALJ).

1
The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
 At the hearing, at which Miller was represented by counsel, Miller
testified that she was born September 17, 1929, had a twelfth-grade
education, and last worked as a typist and secretary in 1959. She did not
return to work after her daughter's birth in March 1960, principally
because of back problems resulting from spina bifida, which produced
low-back and right-hip pain. Miller also testified to mental and emotional
impairments.

The ALJ concluded that Miller's testimony relating to her disabling
subjective complaints before December 1961 was not credible, noting
contradictions in Miller's testimony, the lack of third party observations,
Miller's failure to seek medical attention for back pain until December
1961, and medical records indicating Miller's complaints of back pain post-
dated the expiration of her insured status. With respect to Miller's
mental condition, the ALJ noted that the first mention of possible
emotional difficulties was made in an October 1962 progress note from a
treating physician, and that Miller's second husband testified at a hearing
on a previous application for benefits that her emotional disorder did not
exist before December 1961.

The ALJ concluded that Miller had a medically determinable impairment
(myositis involving the lumbar musculature and/or congenital deformities
of the lumbar spine) but that her impairment did not meet or equal the
Listings set forth in 20 C.F.R. Part 404, Subpt. P, App. 1. The ALJ
further concluded that Miller retained the residual functional capacity to
perform past relevant work as a clerk, as she described the exertional
limitations of that job. In addition, the ALJ concluded Miller did not
suffer from an emotional or intellectual disorder which would have
restricted her ability to perform basic work-related functions. The
Appeals Council denied further review, and Miller sought judicial review.

The district court concluded that the decision was supported by
substantial evidence. On appeal, Miller argues the ALJ erred in

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not finding her disabled because of her mental condition; in not according
substantial weight to several noncontemporaneous medical opinions which
referred to her condition during the relevant period; and in determining
she lacked credibility based on contradictory answers that were the result
of her mental condition.
Our "task is limited to a determination of whether the
[Commissioner's] decision is supported by substantial evidence in the
record as a whole." McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993).
To qualify for disability insurance benefits, Miller must establish that
she was disabled before December 31, 1961, the date her insured status
expired. See Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir. 1990).
"`[T]he relevant analysis is whether the claimant was actually disabled
prior to the expiration of her insured status.'" Hinchey v. Shalala, 29
F.3d 428, 431 (8th Cir. 1994) (quoting Potter v. Secretary of Health &
Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (per curiam)
(Potter)).

We disagree with Miller that there is record support that she met the
requirements for several Listings involving a disabling mental condition.
Most important, there was no medical evidence to support a disabling
condition in 1960 and 1961. See Potter, 905 F.2d at 1348. "A
retrospective diagnosis without evidence of actual disability is
insufficient." Id. at 1349. Although there is some question about the
loss of medical records from the 1950s and 1960s, the current record lacks
any objective medical evidence between 1960 and 1963. Thus, the adequacy
of the ALJ's credibility determinations under the standards set forth in
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), is paramount. We
conclude the ALJ appropriately evaluated the evidence and supported his
determination that Miller was not credible, noting significant
inconsistencies in the record. Credibility findings are for the ALJ to
make in the first instance. Smith v. Heckler, 760 F.2d 184, 187 (8th Cir.
1985). Where there are inconsistencies in the evidence as a whole, the
Commissioner may discount subjective

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complaints. See Starr v. Sullivan, 981 F.2d 1006, 1008 (8th Cir. 1992).
We conclude that the bases relied on by the ALJ for discounting the
Miller's subjective complaints were proper and that the Commissioner's
decision is supported by substantial evidence.

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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