Likes v. Callahan ( 1997 )

United States Court of Appeals,
Fifth Circuit.
No. 96-10875
(Summary Calendar).
Danny E. LIKES, Plaintiff-Appellant,
v.
John J. CALLAHAN, Acting Commissioner of Social Security,
Defendant-Appellee.
May 8, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:
Danny E. Likes appeals from the judgment affirming the
Commissioner's denial of Likes' claim for disability benefits under
the Social Security Act. Likes alleges that he was disabled before
his insured status ran out in 1985. Likes contends that his
disability is caused by post-traumatic stress disorder (PTSD)
stemming from his 1966 war duty in Vietnam.
Likes underwent an examination in July 1968, in conjunction
with a disability application from the Veteran's Administration
(VA) for his service-related injuries. In the report, Likes was
described as "a nervous person." The examiner wrote that Likes was
"a complaining type of individual who makes one wonder from the
very beginning if there is not a psychiatric function." The
examiner further commented, "There is mild anxiety reaction
manifest in complaints of his present illness and post military
1
period." There are no other medical reports mentioning Likes'
mental problems until Likes was diagnosed with chronic PTSD in
1991. Two mental health professionals have opined that Likes has
suffered from chronic PTSD since 1966. The record also includes
testimony by Likes' wife describing Likes' poor anger control and
dissociative episodes since 1981.
The ALJ found that Likes did not have a medically determinable
mental impairment and that he was not disabled as of, or prior to,
December 31, 1985. The ALJ accepted that Likes has suffered from
severe PTSD from 1991, but determined that the 1968 examination and
Likes' uncorroborated statements were not sufficient to establish
that he had a medically determinable mental impairment before his
insured status expired. The ALJ further determined that there was
no authority for relating Likes' present mental illness back to
December 1985 on the basis of the testimony of Likes and his wife,
which was not corroborated by "objective evidence, such as
psychiatric counseling."
The issue in this case is whether retrospective medical
diagnoses uncorroborated by contemporaneous medical reports but
corroborated by lay evidence relating back to the claimed period of
disability can support a finding of past impairment. Likes urges
us to adopt the reasoning applied in a recent Eighth Circuit
decision and remand this case to the ALJ to consider the
retrospective medical opinions and corroborating lay evidence. See
Jones v. Chater, 65 F.3d 102 (8th Cir.1995).
In Jones, the claimant alleged that he was disabled by PTSD
2
prior to 1975, before his insured status had expired. Id. at 103.
Jones' mental evaluation at his discharge in 1968 revealed
occasional insomnia, bad dreams, and mild depression; the report
concluded that these symptoms were in the normal range. Id. Jones
had no further medical reports mentioning mental problems until
1991, when Jones, upon learning of the existence of PTSD and
recognizing many of its symptoms in himself, sought diagnosis and
treatment for the condition. Id. Three mental health
professionals diagnosed Jones as suffering from PTSD, and found
implicitly that his PTSD symptoms had been present since he left
Vietnam in 1968. Id. The record also included statements from
Jones' relatives that his personality was changed dramatically for
the worse by his Vietnam experience. Id.
Like the ALJ here, the ALJ addressing Jones' application found
that although Jones' current diagnosis of PTSD may be valid, there
was no medical evidence showing that the condition had arisen by
1975, much less that it constituted a severe impairment. Id. The
ALJ did not mention the retrospective medical opinions or the
evidence of personality and behavior change. Id.
The Eighth Circuit concluded that the retrospective medical
diagnoses, uncorroborated by contemporaneous medical reports but
corroborated by lay evidence relating back to the claimed period of
disability, could support a finding of past impairment. Id. at
103-04. Because the court could not determine whether the ALJ
considered this evidence, it remanded the case to the ALJ "to
develop the record in such a way as to" determine whether the
3
impairment began before Jones' insured status expired. Id. at 104.
We find the Eighth Circuit's decision persuasive and
therefore adopt its rule for this circuit. As the Eighth Circuit
noted, "PTSD is an unstable condition that may not manifest itself
until well after the stressful event which caused it, and may wax
and wane after manifestation." Id. at 103. Retrospective medical
diagnoses constitute relevant evidence of pre-expiration
disability, and properly corroborated retrospective medical
diagnoses can be used to establish disability onset dates. As the
ALJ erred in failing to consider the retrospective medical
diagnoses and the corroborating lay evidence, the judgment is
reversed and the case is remanded for further proceedings in
accordance with this opinion.
REVERSED AND REMANDED.
4