The Honorable Lyle E. Strom, United States District Judge for 1

the District of Nebraska.

___________

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Administration, * [UNPUBLISHED]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

Court for the District of Nebraska affirming the decision of the

1

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).
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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 postdated 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.