* 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. Although Shirley S. Chater, Commissioner of

Social Security, has been substituted for Donna E. Shalala, Secretary of Health

and Human Services, as the defendant in this action, we continue to refer to the

Secretary because she was the appropriate party at the time of the underlying

decision.

** This order and judgment is not binding precedent, except under the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. 

*** Honorable Myron H. Bright, Senior Circuit Judge, United States Court of

Appeals for the Eighth Circuit, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 8/22/96

FOR THE TENTH CIRCUIT

PEGGY DAVIS,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER, Commissioner

of Health and Human Services,*

Defendant-Appellee.

No. 95-7173

(D.C. No. CV-94-669-B)

(E.D. Okla.)

ORDER AND JUDGMENT**

Before PORFILIO, BRIGHT,*** and KELLY, Circuit Judges.
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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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. 

Plaintiff Peggy Davis appeals from an order of the district court affirming

the Secretary’s denial of Title II Social Security benefits. We affirm.

Ms. Davis applied for benefits claiming she was unable to work due to 

chronic pain in her right hip and leg, pain from recurrent neuromas in her feet,

poor memory, nerve disease, and numbness in her hands and arms. The

administrative law judge (ALJ) denied benefits at step five of the five-step

sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.

1988), holding that Ms. Davis possessed the residual functional capacity to

perform the full range of sedentary work.

On appeal, Ms. Davis argues that she meets or equals listing 1.11 due to a

nonhealing fracture in her leg. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.11. 

She also argues the ALJ erroneously determined her residual functional capacity

and erred in concluding that she does not have a severe mental impairment. 

"We review the Secretary's decision to determine whether her factual

findings are supported by substantial evidence in the record viewed as a whole
1 Ms. Davis’s insured status expired March 31, 1992. Therefore, she must

show she had a disability that had lasted or was expected to last at least twelve

(continued...)

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and whether she applied the correct legal standards. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,

1028 (10th Cir. 1994)(citation and quotation omitted).

Ms. Davis asserts she meets listing 1.11 because her fractured leg has not

healed and, consequently, she cannot bear full weight on that leg. The record

does not support Ms. Davis’s claim. Ms. Davis broke her leg in July 1989. Her

medical records show that as of October 1989, the fracture was not healing

properly. However, no further medical records exist until April 1994, when Dr.

Troop stated that the distal interlocking bolt of the IM rod placed in her leg had

broken. Surgery was performed at that time. In August 1994, Dr. Troop opined

that she appeared to have a sclerotic nonunion of the fracture.

Contrary to Ms. Davis’s assertion, the Secretary is not required to show Ms.

Davis could bear full weight on her leg. At step three, Ms. Davis bears the

burden of showing she is disabled. See Nielson v. Sullivan, 992 F.2d 1118, 1120

(10th Cir. 1993). Ms. Davis did not prove that the state of her fracture resulted in

her inability to bear weight as required by listing 1.11 at any time after October

1989 and prior to the expiration of her insured status.1

 
1

(...continued)

months as of that date. See 20 C.F.R. §§ 404.320(b)(2); 404.1505(a).

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Ms. Davis argues the ALJ erroneously determined her residual functional

capacity because he improperly assessed her credibility, failed to accord

substantial weight to the treating physician’s opinion, and mischaracterized the

nature of her foot impairment. No treating physician has opined that Ms. Davis is

disabled due to the neuromas in her feet. Ms. Davis’s statement that a doctor told

her to stay off her feet, R. Vol. II at 41, does not constitute substantial evidence

of disability. 

The ALJ’s misstatement of the diagnosis of Ms. Davis’s foot impairment

did not affect his proper assessment of that impairment. Ms. Davis has had

recurring neuromas in her feet since she was twenty-two. The records show she

had not sought treatment for the neuromas for almost ten years prior to 1993. Id.

at 191.

We discern no error in the ALJ’s assessment of Ms. Davis’s credibility. 

We defer to the ALJ’s assessment of a claimant’s credibility. See Kepler v.

Chater, 68 F.3d 387, 391 (10th Cir. 1995)(we will not disturb credibility 

determinations which are supported by substantial evidence). The ALJ noted that

Ms. Davis had not sought treatment for her neuromas prior to the expiration of
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her insured status. The evidence shows that Ms. Davis currently takes care of her

family, although she sits to perform most jobs. In fact, Ms. Davis testified that

she would have continued working in a plant nursery had it not closed in June of

1989. R. Vol. II at 37.

Finally, Ms. Davis argues she has a severe mental impairment. Ms. Davis’s

attempts to rely on physicians’ reports of her mental instability are unavailing. 

She cites to one report by Dr. Wade which was prepared in 1979 in which he

opines that Ms. Davis was “unable to hold down a job with her foot problems and

emotional problems.” Id. at 242. However, Ms. Davis worked for another ten

years after this report was prepared before she claimed disability. Ms. Davis also

relies on a report by Dr. Hogan in which he noted some disability. This report

was prepared almost two years after Ms. Davis claimed disability. Records

describing a claimant’s current condition cannot be used to support a

retrospective diagnosis of disability absent evidence of an actual disability during 
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the time of insured status. Cf. Coleman v. Chater, 58 F.3d 577, 579 (10th Cir.

1995).

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

John C. Porfilio 

Circuit Judge