### The Honorable Lyle E. Strom, United State s District Judge for 1 

### the District of Nebraska. ___________ No. 95-3018

___________ 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Court for the Shirley S. Chater, Commissioner * District of Nebraska of the Social Security * Administration, * [UNPUBLISHED] * Appellee. *

___________ Submitted: June 21, 1996 Filed: July 11, 1996

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

____________ PER CURIAM. Sybil T. Miller appeals from the final judgment of the Distric t Court for the District of Nebraska affirming the decision of th e

1 Commissioner of Socia l Security to deny Miller Social Security disability insurance benefits. For the reasons discussed below, we affirm.
Miller fi led the instant application on February 1, 1990, alleging
an onset date of March 4, 1960. Miller’s insured status expired o n December 31, 1961. Her application was denied initially and o n recons ideration; a hearing was held in October 1992 before a n Administrative Law Judge (ALJ).

### -2- At the h earing, at which Miller was represented by counsel, Mille r testified that she was born September 17, 1929, had a twelfth-grad e education, and last worked as a typist and secre tary in 1959. She did not retu rnto work after her daughter's birth in March 1960, principall y becaus e of back problems resulting from spina bifida, which produce d low-back and right-hip pain. Miller also testified to mental and emotiona l impairments.

The ALJ c oncluded that Miller's testimony relating to her disabling subje ctive complaints before December 1961 was not credible, notin g contradictions in Miller's testimony, the lack of third party observations , Mil ler's failure to seek medical attention for back pain until Decembe r 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 c ondition, the ALJ noted that the first mention of possibl e emotional difficulties was made in an October 1962 progress note from a treating physician, and that Miller's second husband testified at a hearin g 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 impa irment (myositis involving the lumbar musculature and/or congenital deformities of the l umbar spine) but that her impairment did not meet or equal th e Li stings set forth in 20 C.F.R. Part 404, Subpt. P, App. 1. The AL J further concluded that Miller retained the resid ual functional capacity to perfo rmpast relevant work as a clerk, as she described the exertiona l limitatio ns of that job. In addition, the ALJ concluded Miller did no t suffer from an emotional or intellectual disorder which would hav e restri cted her ability to perform basic work-related functions. Th e Appeals Council denie d 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

### -3-

not finding her disabled because of her mental c ondition; in not according subst antial weight to several noncontemporaneous medical opinions whic h referredto her condition during the relevant period; and in determining she lacked credibility based on contradictory an swers that were the result of her mental condition. Our "task is limited to a determination of whether th e [Commis sioner's] decision is supported by substantial evidence in th e 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 w as disabled before December 31, 1961, the date her insured statu s exp ired. See Battles v. Sullivan , 902 F.2d 657, 659 (8th Cir. 1990)
. "`[T]h e relevant analysis is whether the claimant was actually disable d prior to the expiration of her insured status.'" Hinchey v. Shalala , 29 F.3d428, 431 (8th Cir. 1994) (quoting Potter v. Secretary of Health & Human Se rvs. , 905 F.2d 1346, 1348-49 (10th Cir. 1990) (per curiam ) ( Potter )).
We disagree with Miller that there is record support that she m et the requirements for seve ral Listings involving a disabling mental condition. Most important, there was no medical evidence to support a disablin g con ditionin 1960 and 1961. See Potter , 905 F.2d at 1348. " A retro spective diagnosis without evidence of actual disability i s insuffici ent." Id. at 1349. Although there is some question about th e 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 Polask i v. Heckler , 739 F.2d 1320 (8th Cir. 1984), is paramount. W e conclu de the ALJ appropriately evaluated the evidence and supported hi s det erminationthat Miller was not credible, noting significan t inconsistencies in the record. Credibility findings are for the ALJ t o make in the first instance. Smith v. Heckler , 7 60 F.2d 184, 187 (8th Cir. 1985). W here there are inconsistencies in the evidence as a whole, th e Commissioner may discount subjective

### -4-

complaints. See Starr v. Sullivan , 981 F.2d 1006, 1008 (8th Cir. 1992). We conclu de that the bases relied on by the ALJ for discounting th e Mill er'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.