                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 02-2020
                                    ___________


Judy Elder,                               *
                                          *
           Plaintiff - Appellant,         *
                                          *   Appeal from the United
  v.                                      *   States District Court
                                          *   for the Western District
Jo Anne B. Barnhart,                      *   Of Arkansas
Commissioner, Social Security             *
Administration,                           *
                                          *       [UNPUBLISHED]
           Defendant - Appellee.          *

                                     __________

                            Submitted: September 13, 2002
                            Filed: December 12, 2002
                                     __________

Before MCMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
       BOGUE,1 District Judge.
                               _________

BOGUE, District Judge.




       1
        The Honorable Andrew W. Bogue, United States Senior District Judge for
the District of South Dakota, sitting by designation.
       Judy Elder appeals from the final decision of the district court2 denying her
disability insurance benefits under Title II and supplemental security income under
Title XVI of the Social Security Act. We reverse and remand.

                                   BACKGROUND

       Elder is a 54 year old woman with a 10th grade education and past work history
as a cook, dietary aide, sewing machine worker, and waitress. She suffered injuries
to her left ankle in 1990 as a result of a train accident. Although Elder returned to
work for a period of time after the accident, she alleges that she has been unable to
work since August 17, 1993, the date she underwent a surgical procedure to fuse her
ankle.

       On October 5, 1993, Elder filed applications for disability insurance benefits
and supplemental security income. Her applications were denied initially and on
reconsideration. She requested, and was granted, a hearing before an Administrative
Law Judge (“ALJ”), which occurred on February 13, 1995. The ALJ, with the
assistance of a vocational expert, determined that Elder was not disabled. The
Appeals Council granted a request for review and the case was subsequently
remanded for a supplemental hearing.

      Subsequent to the supplemental hearing, the ALJ evaluated Elder’s claim by
considering the familiar five-step sequential analysis as required by the social security
regulations. See 20 C.F.R. §§ 404.1520(a)-(f); 416.920. At the first step, the ALJ
found no indication that Elder had engaged in substantial activity since August 17,
1993. In the next step of the analysis, the ALJ determined that Elder has S/P fusion
of the left ankle, an impairment which caused significant limitations. Although


      2
       The Honorable Beverly Stites Jones, United States Magistrate Judge for
the Western District of Arkansas.
                                           2
significant limitations existed, at step three of the analysis, the ALJ found that Elder
did not meet or equal an Appendix 1 listing. See 20 C.F.R. Pt. 404, Subpt. P, App.
1. The ALJ, at step four, determined that Elder lacked the residual functional
capacity to return to her former employment. However, under the final step of the
analysis, the ALJ concluded that Elder was not disabled because there existed other
jobs in the national economy which she could perform.

      The Appeals Council denied Elder’s second request for review on February
20, 1999, thus, the determination of the ALJ became the final decision of the
Commissioner. Elder sought judicial review of the Commissioner’s decision, and on
March 19, 2002, the Commissioner’s administrative decision was affirmed by the
United States Magistrate Judge.

                                    DISCUSSION

      “Our role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence on the record as a whole.” Gowell v. Apfel, 242
F.3d 793, 796 (8th Cir. 2001). “Substantial evidence is less than a preponderance, but
is enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).
In determining whether existing evidence is substantial, we consider evidence that
detracts from the decision of the Commissioner as well as evidence that supports it.
See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).

       Elder contends that she met the listing for arthritis of a major weight-bearing
joint (due to any cause) and she is entitled, at a minimum, to a closed period of
disability. The ALJ found that the Elder’s impairment was severe, but did not meet
or equal the criteria of a listed impairment. We disagree. After a careful review of
the record, we do not find substantial evidence to support this conclusion.



                                           3
      To meet the listing requirement for arthritis of a major weight-bearing joint
(due to any cause), Elder was required to show:

      [A] history of persistent joint pain and stiffness with signs of marked
      limitation of motion or abnormal motion of the affected joint on current
      physical examination. With:
      A. Gross anatomical deformity of hip or knee (e.g. subluxation,
      contracture, bony or fibrous ankylosis, instability) supported by X-ray
      evidence of either significant joint space narrowing or significant bony
      destruction and markedly limiting ability to walk and stand; or
      B. Reconstructive surgery or surgical arthrodesis of a major weight-
      bearing joint and return to full weight-bearing status did not occur, or is
      not expected to occur, within 12 months of onset.

20 C.F.R. Pt. 404, Subpt. P, App. 1. § 1.03 (1991).

        Whether Elder’s impairment met the listing is strictly a medical determination.
See Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990). The medical evidence
indicates that Elder has a history of persistent joint pain and stiffness with signs of
marked limitation of motion. In 1996, Dr. Dale E. Goins noted decreased range of
motion in Elder’s left ankle. Similarly, the records of Dr. Julius K. Sheppard indicate
that in 1997, Elder’s left ankle was somewhat limited in its range of motion. It is also
undisputed that Elder underwent arthrodesis/fusion of her left ankle, performed by
Dr. Lloyd Mercer, on August 17, 1993. Therefore we agree with Elder that the only
remaining issue relevant to her claim of a listed impairment is whether she returned
to full weight-bearing status within 12 months of August 17, 1993, the onset of her
disability.3 If Elder’s disability persisted until August 17, 1994, she would be entitled


      3
       Although Elder’s ankle injury was the result of an accident that occurred in
1990, we conclude, on the limited facts of this case, that the onset of disability was
August 17, 1993. The Commissioner found that Elder was unable to engage in
employment after this date and she also does not appear to object to its use as the
onset of disability date.
                                           4
to benefits for a minimum of one year. See Payton v. Shalala, 25 F.3d 684, 686 (8th
Cir. 1994) (citing Harris v. Secretary of DHHS, 959 F.2d 723, 724 (8th Cir. 1992).

       The Commissioner argues that Elder failed to show that her impairment met the
listing requirements. In support of her argument, the Commissioner cites the absence
of treatment records after June 8, 1994. We have recognized that the denial of
benefits may be proper when no medical evidence indicating a serious impairment
exists during the relevant time period. See Battles v. Sullivan, 902 F.2d 657, 659 (8th
Cir. 1990). However, lack of medical evidence is not an issue in this case.
Competent medical evidence exists which supports Elder’s assertion that she was
unable to return to full weight-bearing status within 12 months of the onset of her
disability. Specifically, the observations and notations of Dr. Mercer, Elder’s treating
orthopedic surgeon, indicate that Elder’s ankle did not unite or fuse completely within
12 months of her surgical procedure. Several weeks after the surgery, Dr. Mercer
indicated that Elder would be unable to work for three months. He later changed his
opinion, and on November 4, 1993, his records indicate that Elder’s ankle was not
united properly and therefore she would be unable to work for an additional three
months. Subsequent medical records further indicate that the ankle was not fused by
February 2, 1994 or by June 8, 1994.

      We particularly find significant the June 8, 1994 dictation by Dr. Mercer,
which stated that the ankle was not united, Elder was undergoing treatment, and, she
would be unable to return to work for at least an additional one year period. This
uncontradicted evidence indicates that Elder’s ankle did not heal properly after the
surgery and that she did not regain full weight-bearing status within 12 months of the
onset of her disability.

      The Commissioner also contends that the most recent examination by Dr.
Sheppard supports the ALJ’s finding that Elder’s ankle impairment does not meet the
§ 1.03 listing criteria. On July 17, 1997, Dr. Sheppard determined that the fusion of

                                           5
Elder’s ankle was solid and that her ability to bear weight on the ankle was fairly
normal. It appears that this examination only focused upon Elder’s current condition.
There is no indication that Dr. Sheppard made any retrospective conclusions.
Therefore, his findings only indicate that Elder was not disabled on July 17, 1997,
and his opinion does not constitute substantial evidence to support the ALJ’s
determination that Elder did not meet the § 1.03 listing requirements at an earlier
time.

       The record indicates that Elder’s period of disability continued into 1995, but
the medical evidence also indicates that Elder’s disability ended sometime prior to
July 17, 1997. As there exists no evidence by which we can determine when her
period of disability ended, this matter must be remanded for additional consideration
to determine when Elder’s ankle regained full weight-bearing capacity.4

                                 CONCLUSION

       We thus conclude that the record does not contain substantial evidence
justifying the denial of disability benefits to Elder. Accordingly, we reverse and
remand with directions to award Elder benefits for a closed period of disability,
beginning on August 17, 1993 and continuing until the date upon which Elder’s
ankle regained full weight-bearing capacity.




      4
        Elder also argues that the Commissioner did not carry her burden of
showing that there other work existed in the national economy which she could
perform. However, since we have found that Elder met the requirements of a
listed disability, we see no need to address this additional argument.
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A true copy.

      Attest:

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




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