                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 4 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    CARMEL MCKINNEY,

                Plaintiff-Appellant,

    v.                                                   No. 02-5073
                                                   (D.C. No. 00-CV-1055-M)
    JO ANNE B. BARNHART,                                  (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and BALDOCK , Circuit Judges.



         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); 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      This order and judgment is not binding precedent, except under the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 Carmel McKinney appeals from an order of the district court

affirming the Commissioner’s determination that she is not entitled to Social

Security disability benefits. We affirm.

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

findings were supported by substantial evidence in light of the entire record and

to determine whether she applied the correct legal standards. See Castellano v.

Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quotations omitted). In the course of

our review, we may “neither reweigh the evidence nor substitute our judgment for

that of the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,

800 (10th Cir. 1991).

      Ms. McKinney alleged disability as of June 1, 1995   1
                                                               due to headaches,

visual impairment, partial paralysis, fatigue and memory problems caused by a

brain tumor and depression. The administrative law judge (ALJ) determined that

Ms. McKinney was not disabled at step two of the five-step sequential process.

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



1
       Ms. McKinney’s insured status expired   March 31, 1997. Therefore, the
relevant time period for determining her disability status is from June 1, 1995, the
date she claimed she became unable to work, to   March 31, 1997. See Adams v.
Chater, 93 F.3d 712, 714 (10th Cir. 1996).

                                           -2-
      On appeal, Ms. McKinney argues the ALJ erred in determining the onset

date of her disability, and improperly evaluated her depression and pain. She

maintains the ALJ’s step two finding was not supported by substantial evidence.

      Because the ALJ and the magistrate judge thoroughly and accurately

reviewed the evidence, we need not repeat their summaries and conclusions here.

We therefore affirm for substantially the reasons stated by the magistrate judge

with the following brief comments.

      Ms. McKinney is attempting to overcome the fact that there are no medical

records supporting her claim that she was disabled prior to the expiration of her

insured status. She proposes that because her brain tumor was diagnosed

approximately six months after the expiration of her insured status, she had the

tumor prior to that date. This is most likely correct. In fact, the medical

examiner testified that “it’s possible that the symptomatology may have started

about six months before the angioma was detected.” Aplt. App. at 49. The record

shows that in September 1998, Ms. McKinney related a “nine month onset of

vision changes with a recent increase in her headaches over the past year.” Id.

at 159.

      None of the medical reports, however, show that Ms. McKinney was

actually disabled prior to the expiration of her insured status. “[T]he relevant

analysis is whether the claimant was actually disabled prior to the expiration of


                                         -3-
her insured status. A retrospective diagnosis without evidence of actual disability

is insufficient. This is especially true where the disease is progressive.” Potter v.

Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990)

(citation omitted).

      Counsel’s attempt to prove disability through the use of medical articles is

likewise unavailing. The determination of disability rests on medical opinions.

Medical opinions are “statements from . . . acceptable medical sources that reflect

judgments about the nature and severity of your impairment(s), including your

symptoms, diagnosis and prognosis, what you can still do despite impairment(s),

and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).

Acceptable medical sources are defined at § 404.1513(a). Medical journal

articles are not included as acceptable medical sources. We cannot give

persuasive authority to an attorney’s extrapolation of a medical article to his

client’s condition. See, generally, Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *4

(clarifying that medical source statements must be submitted by acceptable

medical sources and are to be based on the medical sources’ personal knowledge

of the claimant). While medical literature can be cited and relied on to support a

claimant’s position, it cannot be the only evidence showing disability.




                                         -4-
      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED for substantially the reasons stated in the magistrate

judge’s order of April 30, 2002.


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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