McLendon v. Barnhart , 184 F. App'x 430 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 9, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-40366
GORDON D. MCLENDON,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court for
the Eastern District of Texas
(USDC No. 2:03-CV-1849)
Before REAVLEY, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
Reviewing under the same standard as the district court, we affirm the ALJ’s final
decision denying McLendon’s claim for disability insurance benefits under Title II of the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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Social Security Act, 42 U.S.C. § 401 et seq., for the following reasons:
1. We find that the ALJ’s decision comports with the legal standards for
disability determination set forth by this Court under the Act and relevant
regulations, including our decisions in Likes v. Callahan, 112 F.3d 189 (5th
Cir. 1997) and Ivy v. Sullivan, 898 F.2d 1045 (5th Cir. 1990).
2. We find there is substantial evidence of record supporting the ALJ’s
determination that McLendon is not disabled within the meaning of the Act.
3. As McLendon’s Title II insured status expired on June 30, 1977, he must
establish that he became disabled on or before that date to be eligible for
benefits. Ivy, 898 F.2d at 1048. The mere presence of an impairment does
not necessarily establish a disability. If a claimant has a degenerative or
ongoing impairment, the relevant inquiry is whether the claimant was
actually disabled during the relevant time, not whether a disease existed that
ultimately progressed to a disabling condition. Evidence showing a
degeneration of a claimant’s condition after the expiration of his Title II
insured status is not relevant to the Commissioner’s Title II disability
analysis. See Torres v. Shalala, 48 F.3d 887, 894 n.12 (5th Cir. 1995).
We have recognized, however, that retrospective medical diagnoses
may constitute relevant evidence of pre-expiration disability, and that
properly corroborated retrospective diagnoses can be used to establish
disability onset dates. Likes, 112 F.3d at 190-91. An ALJ may not refuse
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to consider retrospective diagnoses uncorroborated by contemporaneous
medical reports, but corroborated by lay testimony. Id. We have also
recognized that precise contemporaneous medical records are not always a
prerequisite to establishment of a disability onset date. Ivy, 898 F.2d at
1049.
4. In this case, we do not think the ALJ ran afoul of either Likes or Ivy. In
Likes, two mental health professionals expressly opined that Likes had
suffered from chronic post traumatic stress disorder since well before his
date last insured. 112 F.3d at 190.
In Ivy, in addition to being corroborated by lay testimony, the
medical evidence clearly demonstrated a long chronology and consistent
history of serious obesity as well as severe hypertension, the chief
impairment complained of. 898 F.3d at 1046-47. The ALJ faulted the
contemporaneous records in that they did contain precise blood pressure
readings and recordings of Ivy’s height and weight during the period of
elevated blood pressure. Id. We rejected the ALJ’s insistence on such
precision in the face of other overwhelmingly persuasive medical and lay
evidence of severe impairment, which included the testimonial recollections
of the doctor who treated Ivy contemporaneously with her alleged onset.
Id. at 1048-49.
5. Here, the problem is not a lack of record detail, but a complete dearth of
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any medical evidence prior to 1986, coupled with a lack of any express
retrospective medical opinion relating back to the insured period. While the
ALJ had potentially corroborating lay evidence before her, no physician of
record referred back in time or speculated as to McLendon’s condition on
some prior date, much less expressed specific opinions about the onset date
of McLendon’s lung or fatigue impairments.
The only evidence before the ALJ relating to McLendon’s alleged
pre-1977 disability was a single chart note made in 1986, which refers to
McLendon’s own comments regarding his long-term fatigue, and an X-ray
report made in 1996, noting signs of emphysema related to chronic
obstructive pulmonary disease (COPD). Isolated comments regarding a
patient’s complaints do not constitute medical findings as required by the
Act. See 20 C.F.R. §§ 404.1528-1529. Aside from the passing
retrospective X-ray chart entry, the record contains no medical conclusions
about the existence of McLendon’s COPD or chronic fatigue syndrome
impairment prior to June 30, 1977. This reference, when considered in
light of the entire record, does not establish the existence of McLendon’s
severe medical impairment as far back as that date.
6. While a retrospective opinion can prove the existence of a disability, the
retrospective opinion must refer clearly to the relevant period of disability
and not simply express an opinion to the claimant’s current status. Records
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describing a claimant’s current condition cannot be used to support a
retrospective diagnosis of disability absent evidence of an actual disability
during the time of insured status. Accordingly, the ALJ did not err in
declining to give retrospective consideration to the reports and evaluations
of McLendon’s post-1977 ailments.
7. Finally, we note that McLendon’s activities subsequent to the date last
insured, while not always monetarily remunerated, belie his subjective
contention that he was disabled prior to that date. See Reyes v. Sullivan,
915 F.2d 151, 154-55 (5th Cir. 1990)(recognizing that a claimant’s daily
activities are relevant in assessing subjective complaints).
AFFIRMED.
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