                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 7 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DONALD L. MOTLEY,

                Plaintiff-Appellant,

    v.                                                   No. 97-6040
                                                     (D.C. No. 96-CV-493)
    JOHN J. CALLAHAN, Acting                             (W.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before BRORBY, LOGAN, and HENRY, 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

*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P. L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), John
J. Callahan, Acting Commissioner of Social Security, is substituted for Donna
E. Shalala, Secretary of Health and Human Services, as the defendant in this
action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Donald Motley appeals the Commissioner’s denial of his

application for social security disability benefits. Because we find that the

decision of the Administrative Law Judge (ALJ) is supported by substantial

evidence, and that the law was correctly applied, we affirm.

      Plaintiff filed an application for disability benefits in early April 1994,

alleging that he had been unable to work since February 15, 1987, due to obesity,

diabetes mellitus, high blood pressure, and pain. Plaintiff’s last insured date is

December 31, 1988. Thus, the issue is whether substantial evidence supports the

ALJ’s conclusion that plaintiff was not disabled between February 15, 1987, and

December 31, 1988, because he retained the residual functional capacity to

perform his past relevant work as a truck driver.

      “This court reviews the [Commissioner’s] decision to determine only

whether his findings are supported by substantial evidence and whether the

[Commissioner] applied correct legal standards . . . .” Hargis v. Sullivan,

945 F.2d 1482, 1486 (10th Cir. 1991). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Id. We will not reweigh the evidence or substitute our judgment for that of the

Commissioner. See id.


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      "Disability" is defined in the Social Security Act as the "inability to engage

in any substantial gainful activity by reason of any medically determinable

physical or mental impairment . . . ." 42 U.S.C. § 423(d)(1)(A). The Social

Security Act provides that, in considering whether a person is disabled under Title

II,

      [a]n individual’s statement as to pain or other symptoms shall not
      alone be conclusive evidence of disability . . . ; there must be
      medical signs and findings, established by medically acceptable
      clinical or laboratory diagnostic techniques, which show the
      existence of a medical impairment . . . reasonably . . . expected to
      produce the pain or other symptoms alleged and which . . . would
      lead to a conclusion that the individual is under a disability.

42 U.S.C. § 423(d)5(A).

      Plaintiff argues that the Commissioner failed to consider his medical

records regarding his combined impairments when determining whether plaintiff

met or equaled a listing. He further argues that the Commissioner failed to

recognize the combined impact of plaintiff’s impairments as affecting his ability

to do his past relevant work.

      In order to meet the listing for obesity, a claimant must meet certain

general weight requirements and suffer from certain specified skeletal,

hypertensive, cardiovascular, or respiratory ailments. See 20 C.F.R. Pt. 404,

Subpt. P, App. 1 § 9.09.




                                         -3-
      Our review of the record indicates that the ALJ was correct that plaintiff

met the overall weight requirement prior to the expiration of his insured status.

However, the medical evidence of record does not indicate that plaintiff suffered

from any of the other required conditions during the same period.

      In order to meet a listing, the impairment must meet all of the specified

criteria. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). A finding that an

impairment is medically equivalent to a listed impairment must be based solely on

medical evidence. See Kemp v. Bowen, 816 F.2d 1469, 1473 (10th Cir. 1987).

While there is medical evidence in the record of plaintiff’s various medical

conditions after December 1988 which might be sufficient for a finding of

disability, plaintiff must prove that at least one of those conditions, coupled with

his obesity, was disabling before his insured status expired. See Potter v.

Secretary of Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990). The

medical evidence in the record does not prove such disability. Because the ALJ,

the magistrate judge, and the district court produced thorough and accurate

reviews of the evidence, we need not repeat their summaries and conclusions

here. We therefore affirm for substantially the reasons stated by the district court

in its adoption of the report of the magistrate judge and add the following brief

comments.




                                          -4-
      Plaintiff argues that a retrospective diagnosis contained in the record is

substantial evidence of disability during the relevant period. This is incorrect.

While a treating physical may offer a retrospective diagnosis of a claimant’s

condition, that, by itself, is insufficient to prove disability during a prior relevant

period. See id. at 1348-49. What is needed is evidence of actual disability during

the insured period. See id. Here, as in Potter, the medical reports do not indicate

that plaintiff was disabled during the relevant period, 1987-88.

      Plaintiff’s quarrel with the manner in which the ALJ treated evidence from

a nonexamining physician is also without merit. Initially, there is no evidence

that the doctor was a treating physician. Further, the ALJ gave legitimate reasons

for discounting the opinion, including the six-year time lag between the opinion

and the expiration of plaintiff’s insured status, and the speculative nature of the

opinion.

      Finally, plaintiff complains that the ALJ failed to ask the vocational expert

about plaintiff’s ability to do his past relevant work in light of his residual

functional capacity. Plaintiff misapprehends the duty of the ALJ in this regard.

It is the duty of the ALJ, not the vocational expert, to make the step four

determination. See Henrie v. United States Dep’t of Health & Human Servs.,

13 F.3d 359, 361 (10th Cir. 1993). In fact, we have recently discouraged the

“practice of delegating to a [vocational expert] many of the ALJ’s fact finding


                                           -5-
responsibilities at step four.” Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir.

1996). There is sufficient evidence in the record that, taking into account

plaintiff’s combined impairments before December 1988, plaintiff could still

perform the medium work required of his past relevant work as a truck driver.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




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