                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         February 10, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    WILLIAM CANDELARIO,

              Plaintiff-Appellant,

     v.                                                   No. 05-1222
                                                  (D.C. No. 04-WM-65 (MJW))
    JO ANNE B. BARNHART,                                   (D. Colo.)
    Commissioner of Social Security,

              Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff William Candelario appeals from an order of the district court

affirming the final decision of the Commissioner of Social Security denying him

disability insurance benefits (DIB). We have jurisdiction over this appeal

pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 and AFFIRM.

                                  I. Background

      Mr. Candelario was born in 1954. Since completing the eleventh grade, he

has worked as a roofer. He filed an application for DIB on April 24, 1998,

alleging an onset date of August 5, 1997, when he injured his lower back. The

Commissioner denied his application initially and upon reconsideration. After a

hearing, an administrative law judge (ALJ) denied his claim. The Appeals

Council vacated the ALJ’s decision and remanded for consideration of additional

evidence.

      After consideration of the additional evidence and a second hearing, the

ALJ again denied the claim. He found that Mr. Candelario had degenerative disc

disease of the lumbar spine that was severe but did not meet or medically equal

the criteria for any impairment listed in 20 C.F.R., Part 404, Subpart P,

Appendix 1 (Listings), specifically Listing 1.04, Disorders of the Spine. 1 He also

found that Mr. Candelario could not return to his past relevant work. At the



1
      The Listings describe “impairments which are considered severe enough to
prevent a person from doing any gainful activity.” 20 C.F.R. § 404.1525(a).

                                         -2-
hearing, a vocational expert (VE) testified that, if restricted to occasional lifting

of twenty pounds, frequent lifting of ten pounds, no bending, and a sit/stand

option, Mr. Candelario could perform a number of jobs that exist in the national

economy: final assembler, lens inserter, film touch up inspector, touch up

screener of printed circuit boards, addresser, and order clerk. Relying on the

VE’s testimony, the ALJ determined that, at step five of the five-step sequential

evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

(explaining five-step sequential process for evaluating claims for disability

benefits), Mr. Candelario was not disabled. The Appeals Council denied review,

making the ALJ’s decision the Commissioner’s final decision, which the district

court affirmed. This appeal followed.

                              II. Standard of Review

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Doyal v. Barnhart, 331 F.3d 758, 760

(10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

“Although a reviewing court cannot weigh the evidence and may not substitute its

discretion for that of the agency, it nevertheless has the duty to meticulously

examine the record and make its determination on the record as a whole.” Dollar


                                          -3-
v. Bowen, 821 F.2d 530, 532 (10th Cir. 1987). “[I]f the ALJ failed to apply the

correct legal test, there is a ground for reversal apart from a lack of substantial

evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

                                   III. Discussion

       Mr. Candelario advances the following arguments on appeal: (1) his

impairment meets Listing 1.04(A); (2) the ALJ erred in his treatment of certain

medical evidence; and (3) the ALJ’s hypothetical to the VE was not supported by

substantial evidence. 2 Before turning to each argument, we note that, to obtain

DIB, Mr. Candelario must establish that he was disabled prior to the date his

insured status expired, December 31, 2000. See Potter v. Sec’y of Health &

Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990) (per curiam). Accordingly,

the only evidence relevant to his claim is that which pertains to his condition on

or before that date. 3




2
       In one conclusory sentence, Mr. Candelario argues that he “would assert
that the numbers of jobs set forth by the VE were insufficient.” Appellant’s
Substitute Opening Brief (Aplt. Br.) at 26. This argument is waived. See Ambus
v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th Cir. 1992) (holding that an
issue mentioned in a brief but not addressed is waived), modified on other
grounds on reh’g, 995 F.2d 992 (10th Cir. 1993) (en banc).
3
      Mr. Candelario does not dispute the Commissioner’s assertion that his
insured status expired on December 31, 2000.

                                          -4-
      A. Whether Mr. Candelario’s impairment meets Listing 1.04(A).

      Mr. Candelario bears the burden of establishing that his impairment meets

or equals Listing 1.04(A). See Doyal, 331 F.3d at 760. Listing 1.04(A) reads:

            Disorders of the spine (e.g., herniated nucleus pulposus, spinal
      arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
      disease, facet arthritis, vertebral fracture), resulting in compromise of
      a nerve root (including the cauda equina) or the spinal cord. With:

             A. Evidence of nerve root compression characterized by
      neuro-anatomic distribution of pain, limitation of motion of the
      spine, motor loss (atrophy with associated muscle weakness or
      muscle weakness) accompanied by sensory or reflex loss and, if there
      is involvement of the lower back, positive straight-leg raising test
      (sitting and supine)[.]

20 C.F.R., Part 404, Subpart P, Appendix 1, § 1.04.

      In reaching his finding that Mr. Candelario’s impairment did not meet or

equal Listing 1.04(A), the ALJ extensively reviewed the medical evidence,

including the testimony of Dr. Clayton, a medical expert who testified by

telephone at the hearing. Dr. Clayton stated that, based on his review of the

evidence, Mr. Candelario did not meet Listing 1.04(A) because he “doesn’t have

any neurologic abnormalities on examination.” Aplt. App. at 357.

      Mr. Candelario summarily cites to a variety of medical evidence that, he

claims, shows he meets Listing 1.04(A). 4 Although it appears from the record


4
      Without specific explanation, Mr. Candelario broadly directs our attention
to Aplt. App. at 168-180, 192-93, 199-201, 241, 250-54, 256-59, 262-65, 269,
                                                                    (continued...)

                                         -5-
that he satisfies Listing 1.04(A)’s threshold requirements (spinal stenosis,

degenerative disc disease, and an old vertebral fracture that resulted in

compromise of a nerve root or the spine), the record does not contain significant

evidence that shows he meets the additional requirements of Listing 1.04(A). To

the contrary, there is substantial evidence supporting the ALJ’s finding that he

does not meet Listing 1.04(A).

      The medical records show that, for a period of time after Mr. Candelario’s

injury, he had some radiculopathy and loss of strength and sensation on certain

occasions, but his neurological tests were normal. At his initial exam on

August 6, 1997, Dr. Carvalho, one of his treating physicians, noted “some

decreased sensation in the right foot” and “some radicular symptoms which may

relate to some foraminal narrowing,” but x-rays revealed nothing that appeared

acute. Aplt. App. at 200. One month later, Dr. Robbins read the results of a

magnetic resonance imaging (MRI) test and noted that “there is no compromise of

either exiting L4 nerve root.” Id. at 194. On multiple occasions from September

1997 through January 1998, Dr. Aschberger, another of Mr. Candelario’s treating

physicians, noted that his reflexes, strength, motor tests, and neuromuscular tests

were intact or normal and that there were no neuromuscular deficits. See id. at



4
 (...continued)
275, 277-79, 281-86, and 288-319 in support of this argument.

                                         -6-
171, 176, 180, 185, 187, 189, and 193. He also reported “[s]traight leg raising is

noted to be markedly limited bilaterally, and essentially nonphysiologic.” Id. at

168.

       An examination in November 1997 by Dr. Ogsbury of Rocky Mountain

Neurosurgery showed normal neurological functioning despite a diagnosis of

lumbar nerve root irritation syndrome. See id. at 268-69. In January 1998,

Dr. Carvalho noted some decreased sensation and loss of strength. Id. at 172. In

March, Dr. Harder found that Mr. Candelario’s “sensory and motor examinations

are intact.” Id. at 251. He assigned him a 25% whole body impairment rating,

restricted him to occasional lifting of fifteen to twenty pounds, and opined that he

could not work at jobs that required frequent flexion, extension, and twisting

movements of the spine. Id. He thought Mr. Candelario could sit for periods of

fifty minutes and stand for periods of twenty-five minutes. Id.

       Dr. Douthit’s April 1998 exam revealed that “[r]eflexes were brisk and

equal. There is no motor or sensory loss. . . . There is no evidence of atrophy of

his legs.” Id. at 257. In August, Dr. Finch found limited range of motion along

with “evidence of L4-5 radicular pain . . . . Some of his pain response may be

exaggerated, but he does appear to be in honest discomfort. He probably has

more strength in the hamstrings and quadriceps than he [is] reporting, but does

appear to be reduced.” Id. at 264. Also in August 1998, a non-examining State


                                         -7-
agency medical consultant determined that Mr. Candelario could lift or carry

twenty pounds occasionally and ten pounds frequently, could stand at least two

hours and sit at least six hours in an eight-hour work day, and had some postural

and environmental limitations. Id. at 157-60.

      In May 1999, over eight months later, Dr. Harder examined Mr. Candelario.

He noted that his March 1998 “neurologic examination [that sensory and motor

examinations are intact] has not changed” and Mr. Candelario’s whole person

impairment rating “remains 25%.” Id. at 266. On July 23, 1999, Dr. Aschberger

performed electrodiagnostic testing on Mr. Candelario. Although the study was

limited due to poor muscle activation, he found that bilateral lumbar paraspinal

levels showed no abnormal potentials, the left lower extremity showed no acute

potentials, and his study on motor unit action potentials was incomplete due to

poor effort on muscle contraction. Id. at 276. He noted “lots of breakaway

weakness and complaints of irritation in both legs and his back.” Id.

      On September 30, 1999, Dr. Aschberger reviewed a myelogram and a CT

scan. He reported that “[d]egenerative disc changes were noted at L4-L5 with

stenosis and impingement of the left L5 and S1 nerve roots. . . . Examination

today shows intact reflexes and overall strength.” Id. at 273. Dr. Wong’s

November 1999 exam showed normal gait and minimal spasms, some (but not

major) radiculopathy, and “[s]traight leg raising 80 degrees bilaterally with no


                                         -8-
root tension.” Id. at 277-78. He also found that “[m]uscle bulk, motor power,

sensation and deep tendon reflexes in the lower extremities [were] all grossly

intact except for trace ankle jerks bilaterally.” Id. at 278.

      As the foregoing review of the record shows, there was no indication of

nerve root compression until September 1999. Moreover, when the compression

did occur, there was no evidence of “motor loss (atrophy with associated muscle

weakness or muscle weakness) accompanied by sensory or reflex loss and . . .

positive straight-leg raising test (sitting and supine)[,]” as Listing 1.04(A)

requires. The only additional records that concern Mr. Candelario’s back

impairment prior to the expiration of his insured status are those dated

October 17, 2000, and December 5, 2000, which list Dr. Askenazi as the primary

care provider. Nothing in those records indicates that Mr. Candelario meets

Listing 1.04(A). 5 We conclude, therefore, that substantial evidence supports the

ALJ’s determination that Mr. Candelario’s impairment did not meet or medically

equal Listing 1.04(A). The ALJ’s treatment of the medical evidence, discussed

below, does not alter our conclusion.

      B. Whether the ALJ erred in his treatment of the medical evidence.




5
      As discussed below, other medical records that list Dr. Askenazi as the
primary care provider do not concern Mr. Candelario’s condition during the
relevant time period.

                                           -9-
      An “ALJ may not pick and choose which aspects of an uncontradicted

medical opinion to believe, relying on only those parts favorable to a finding of

nondisability.” Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004). Nor

may an ALJ substitute his own medical opinion for that of a claimant’s treating

doctors. Id. at 1221. Mr. Candelario argues that the ALJ violated these precepts

when considering the medical opinions of Drs. Harder, Finch, Dasler, Douthit,

Askenazi, and Aschberger. He also contends that the ALJ relied on the opinion of

the non-examining medical expert, Dr. Clayton, while disregarding the contrary

opinions of treating physicians. See 20 C.F.R. § 404.1527(d)(2) (stating that a

treating physician’s opinion is entitled to “controlling weight” when it is

“well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in [the

claimant’s] case record”). We consider each of these issues in turn.

      Mr. Candelario argues that the ALJ mischaracterized the results of

Dr. Harder’s 1998 examination as “normal” when in fact Dr. Harder had

diagnosed degenerative disc disease. Although we agree that the characterization

was in error, the ALJ recognized Dr. Harder’s diagnosis in reaching his finding

that Mr. Candelario has severe degenerative disc disease but not of Listing-level

severity. Therefore, the ALJ’s misstatement had no bearing on his decision.




                                         -10-
      Mr. Candelario contends that the ALJ substituted his own medical judgment

for Dr. Finch’s by misreading a comment that “[s]ome of his pain response may

be exaggerated,” Aplt. App. at 264 (emphasis added), as “some of the pain

response was exaggerated,” id. at 22 (emphasis added), and by misattributing an

additional finding to Dr. Finch, that Mr. Candelario did not cooperate fully with

testing. He also argues that the ALJ completely disregarded most of Dr. Finch’s

medical findings as well as his statement that Mr. Candelario was in honest

discomfort. These observations are not completely accurate. The ALJ recognized

Dr. Finch’s objective functional assessment of L4-5 radicular pain with some loss

of strength. Id. His finding of a severe impairment is not inconsistent with

Dr. Finch’s finding of limited range of motion and honest discomfort.

Additionally, the ALJ explained that Dr. Finch’s conclusion that Mr. Candelario’s

work capacity was significantly limited “appeared to be a regurgitation of the

claimant’s subjective complaints, and does not specifically establish restrictions

in the claimant’s exertional capacities.” Id. at 27. Thus, it is clear that the ALJ

considered Dr. Finch’s findings in his step three analysis, and he provided an

explanation for not completely accepting Dr. Finch’s conclusion about

Mr. Candelario’s exertional capacity. The other errors in the ALJ’s review of

Dr. Finch’s report are, therefore, insignificant.




                                          -11-
      We also reject Mr. Candelario’s contention that the ALJ erred by

misattributing to Dr. Dasler a statement that Mr. Candelario exaggerated his

symptoms and limitations. This contention appears to arise from the following

sentence of the ALJ’s written decision: “The record includes evidence suggesting

that the claimant had exaggerated symptoms and limitations as noted by Dr. Finch

and Dr. Dasler, who concluded that the claimant’s mild depressive symptoms

appeared to intensify his subjective experiences of pain.” Id. at 26. Reading this

sentence in full, it is evident that the ALJ did not misunderstand Dr. Dasler’s

opinion but, to the contrary, was fully aware of her finding about the effect of

Mr. Candelario’s mild depressive symptoms on his subjective pain.

Mr. Candelario also contends that Dr. Dasler’s opinion that he was incapable of

even part-time work conflicts with the ALJ’s ultimate conclusion. However,

Dr. Dasler examined him in March 2002, significantly after the date he was last

insured. Therefore, that opinion is irrelevant.

      We disagree with Mr. Candelario that the ALJ substituted his own medical

opinion for Dr. Douthit’s by stating “[h]ad the level of pain and inactivity been as

the claimant described it, Dr. Douthit would have seen evidence of atrophy upon

examination, however, he did not[,]” id. at 25. Rather, this statement represents

the ALJ’s conclusion that Mr. Candelario’s subjective complaints were not

supported by objective medical evidence.


                                         -12-
      Mr. Candelario also argues that the ALJ should have given controlling

weight to two letters written by Dr. Askenazi dated February 2002 and December

2002. In the February letter, Dr. Askenazi opined that Mr. Candelario’s

symptoms have precluded him from working. In the December letter, he stated

that diagnostic tests performed in 2001 show results similar to those obtained in

1999, and he concluded that Mr. Candelario was permanently disabled in 1999.

This argument is not persuasive. The letters significantly post-date the relevant

time period. In the absence of evidence of actual disability, a treating physician’s

retrospective diagnosis is insufficient to establish a disability. Potter, 905 F.2d at

1348-49. Because the record does not otherwise indicate that Mr. Candelario was

disabled prior to the expiration of his insured status at the end of 2000,

Dr. Askenazi’s retrospective extrapolation of test results from 2001 to

Mr. Candelario’s condition in 1999 is insufficient to do so. Accordingly, the

ALJ’s failure to give either letter controlling weight was not error.

      Mr. Candelario also takes issue with Dr. Aschberger’s January 30, 1998,

opinion that his finding of marked limitations in lumbosacral range of motion was

inconsistent with previous examinations. According to Mr. Candelario, prior

exams also showed marked limitations in lumbosacral range of motion.

Therefore, he argues, the ALJ should not have relied on Dr. Aschberger’s

statement. Assuming Mr. Candelario is correct that Dr. Aschberger’s finding was


                                         -13-
consistent with the results of prior exams, the ALJ’s recognition of this fact

would not have affected his decision that Mr. Candelario is not disabled because

it is merely additional consistent evidence of the severe impairment the ALJ

found.

         We agree that there is no record that supports the ALJ’s assertion that

Dr. Aschberger was unable to complete an examination on September 17, 1997,

due to Mr. Candelario’s guarding and uneasiness with the examination

procedures. However, this error has no particular significance to the ALJ’s

findings with regard to Listing 1.04(A) or Mr. Candelario’s residual functional

capacity (RFC).

         Finally, we disagree with Mr. Candelario’s suggestion that the ALJ relied

substantially on the opinion of the non-examining medical expert, Dr. Clayton,

that Mr. Candelario did not meet Listing 1.04(A), while rejecting the contrary

opinions of Drs. Harder, Finch, and Askenazi. The ALJ relied on his entire

review of the medical evidence, including Dr. Clayton’s testimony. Dr. Clayton’s

testimony does not conflict with the opinions of Drs. Harder, Finch, and Askenazi

because none of them found conditions that meet all the requirements of

Listing 1.04(A). Furthermore, even if Dr. Clayton had not testified, there would

still be substantial evidence supporting the ALJ’s decision.




                                           -14-
      C. Whether the RFC accounts for all of Mr. Candelario’s limitations.

      Mr. Candelario testified that, about one year prior to the June 2002 hearing,

he began to need to lie down five or six times a day for up to one hour each time.

See Aplt. App. at 374. When the ALJ asked the VE to assume a person had to lie

down five or six times a day for up to one-half hour, a lesser limitation, the VE

testified that none of the jobs he identified would be available. As the ALJ

recognized, however, the asserted limitation began after the relevant time period.

Even if it was relevant, the ALJ explained that the limitation was inconsistent

with the record evidence. Accordingly, he properly disregarded the VE’s

testimony on this point. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir.

1993) (holding that testimony premised on limitations unsupported by the

evidence is not binding on an ALJ).

      Mr. Candelario also takes issue with the ALJ’s treatment of the VE’s

testimony that, “[a]s long as the individual can perform the job task, meet the

criteria for production quotas and quality assurance[,] the sit, stand option is

available.” Aplt. App. at 389. He contends that no evidence was presented “to

confirm that [he] could meet such standards.” Aplt. Br. at 26. However, the

ALJ’s RFC finding does not contain any limitations related to production quotas

or work quality, and nothing in the record supports such limitations. The ALJ,




                                         -15-
therefore, was not bound by the VE’s statement. See Gay, 986 F.2d at 1341.

      The judgment of the district court is AFFIRMED.


                                                 Entered for the Court



                                                 Wade Brorby
                                                 Circuit Judge




                                      -16-
